Opinion
No. 5135.
Argued June 4, 1963.
Decided July 9, 1963.
1. The effect of a covenant by a wife not to sue her husband, on account of an accident occurring in this state, executed in the foreign state where both parties resided was held to be governed by the laws of the foreign state in the absence of any reasonably clear indication of the parties' intention that the laws of any other jurisdiction should control.
2. Under the laws of Maine a seal upon a covenant not to sue implies a consideration and the want of consideration may not be averted against the instrument.
Action for personal injuries brought by Marie L. Goulet against her husband William Goulet, both being domiciled in the State of Maine, for injuries resulting from an automobile accident in New Hampshire. The plaintiff signed in Maine a covenant not to sue the defendant. He moved to dismiss the case on the ground "That the plaintiff, Marie L. Goulet, for consideration on April 2, 1954, executed a covenant not to sue her husband, William Goulet, and agreed to execute a full release of any and all claims and demands against her husband, William Goulet, as a result of an automobile accident which occurred in said Raymond, on March 21, 1954." The Court, after a hearing at which it received evidence, denied the motion in the following terms: "Motion denied. The Court finds that there was no consideration for the Covenant not to sue." The defendant excepted to this denial and also to the Court's failure to grant certain findings of fact and rulings of law.
Further facts appear in the opinion.
Transferred by Sullivan, J.
Fisher, Parsons, Moran Temple (Mr. Robert H. Temple orally), for the plaintiff.
Burns, Bryant Hinchey and Joseph P. Nadeau (Mr. Nadeau orally), for the defendant.
The first issue before us is whether the effect of the covenant not to sue the defendant, which was signed by the plaintiff, is governed by the laws of Maine or New Hampshire. The material portions of the instrument read as follows: "In consideration of the payment of one dollar ($1.00) receipt of which is hereby acknowledged, the undersigned hereby expressly covenants and agrees not to [sue] or to proceed after the date of the execution hereof with any suit or proceeding of any kind against William Goulet, either severally or jointly with any other person, on account of injuries claimed to have been sustained by me on March 21, 1954 at Raymond, N.H. and that undersigned will execute a full release of all claims and demands against my husband Wm. Goulet growing out of said alleged accident on demand.
Dated April 2, 1954.
Marie L. Goulet (Seal)"
While the accident from which these proceedings arose happened in New Hampshire, the covenant was signed in Maine by a party domiciled there. As we interpret its terms they are inclusive to the end that the plaintiff wife agreed not to sue her defendant husband on account of the accident anywhere or at any time. In these circumstances and in the absence of any reasonably clear indication of the parties' intention that the laws of any other jurisdiction should control, we believe that the validity and effect of the instrument is to be governed by the law of the place where it was signed and where both parties were domiciled. Hinchey v. Surety Company, 99 N.H. 373, 377; Restatement, Conflict of Laws, ss. 332, 335. We therefore hold that the law the state of Maine is controlling.
The defendant bases his defense on the sole proposition that the plaintiff "for consideration" executed this covenant not to sue him and further agreed to sign a full release of all claims and demands against him. Although the Court found that no consideration was given for the covenant not to sue, yet under the law of Maine a seal implies a consideration and the want of it cannot be averred against an instrument under seal. Tucker v. Smith, 4 Me. 415, 419; Wing v. Chase, 35 Me. 260; see Shaw v. Philbrick, 129 Me. 259. The case of Goodwin v. Amusement Company, 129 Maine 36, also states that neither the absence nor the failure of consideration avails to overcome the binding legal effect of a seal. Id., 42. No Maine cases have been called to our attention which indicate any departure from this established rule.
What we have said renders unnecessary consideration of other issues and the order is
Exception sustained.
All concurred.