Fraudulently to induce one to enter into a void marriage is conceded to be an actionable wrong.1 And it has been held that the person aggrieved may "waive the tort " and sue in assumpsit for the value of services rendered the wrongdoer as a result of the fraud:
Higgins v. Breen,Admr. of McNally, 1845,9 Mo. 497: Assumpsit for work and labor. McNally, representing himself to be a widower, induced the plaintiff to marry him. She lived with him until his death, when she discovered that he had a former wife living, and that her marriage to him was void. Scott, J. (p. 501): "If the injury of McNally was a mere tort which resulted in no benefit to himself, . . . the action would not survive; but if it can be shown that the injury resulted in advantage to him, that he was made richer, or his circumstances improved by the work and labor of the unfortunate plaintiff, then this action will lie. It is not maintained that for the deceit practiced, for the injury to her person, the plaintiff has any redress against the administrator, . . . she is only allowed the value of her work and labor which were performed under such circumstances, as the law will imply a promise to pay for them."2
But there are also cases in which restitution is denied:
Cooper v. Cooper, 1888, 147 Mass. 370; 17 N. E. 892; 9 Am. St. Rep. 721: Assumpsit. Facts similar to those in Higgins v. Breen, supra. Allen, J. (p. 373): "The work and labor never constituted a cause of action in tort. The plaintiff could have maintained no action of tort against the intestate for withholding payment for the work and labor in housekeeping, or for by false representations inducing her to perform the work without pay. The particular acts which she performed as a wife were not induced by the deceit, so that each would constitute a substantive cause of action, but by the position which she was deceived into assuming, and would be elements of damage in an action for that deceit. Labor in housekeeping was a small incident to a great wrong, and the intestate owed no duty, and had no right to single that out and offer payment for it alone; and the offer to do so might as well have been deemed an aggravation of the injury to the plaintiff." 1
1 Morrill v. Palmer, 1895, 68 Vt. 1; 33 Atl. 829; 33 L. R. A. 411.
2 Accord: Fox v. Dawson, 1820, 8 Mart. (O. S.) (La.) 94. And see Mixer v. Mixer, 1905, 2 Cal. App. 227 ; 83 Pac. 273.
Payne's Appeal, 1895, 65 Conn. 397; 32 Atl. 948; 33 L. R. A. 418; 48 Am. St. Rep. 215; Claim of Ferguson against the estate of Lizzie Seymour, deceased, for board, lodging, and other necessaries furnished said Lizzie Seymour, whom claimant had been induced to marry by false representations that she was a single woman. Hamersley, J. (p. 409): "The principle the plaintiff invokes does not apply to his case; because, during the life of the intestate he had no cause of action against her, except for damage resulting from a private wrong; the injury he suffered was a personal injury, and if a consequential damage to his personal estate followed the injury, it was so dependent upon and inseparable from the personal injury which is the primary cause of action, that there is no right to maintain a separate action in respect of such consequential damage."
The reasons for denying relief, given in these cases, are not convincing. The chief arguments seem to be: (1) that the tort of inducing one to enter into a void marriage is essentially a personal injury to which the benefit obtained by the wrongdoer is merely incidental; and (2) that the value of the benefit obtained by the defendant is only a single item of consequential damages which cannot be separated from the wrong itself and made the sole basis of an action by the person wronged. In answer to the first, it is submitted that if a wrongdoer is benefited at his victim's expense to any extent whatever, the relative insignificance of such benefit, as compared with the injury suffered by his victim, affords no reason for denying to the latter the right to elect an action for restitution instead of an action for damages. As to the second, it may be pointed out that the plaintiff, in electing to sue for restitution, does not separate the consequential benefit to the defendant from the wrong committed by him. The very foundation of the action for restitution is the fraud of the defendant in inducing the plaintiff to enter into the void marriage ; and the only essential difference between the action in assumpsit and that of deceit, in such a case, is that in the former the plaintiff seeks to recover the value of the benefit resulting to the defendant, while in the latter he demands compensation for the damages resulting to himself.1
1 See Graham v. Stanton, 1901, 177 Mass. 321; 58 N. E. 1023, where, upon the authority of Cooper v. Cooper, supra, it is said that if one takes a child into his household and falsely represents to her that he has legally adopted her, and thereby induces her to render services in household work, the child's only remedy is in tort for the deceit.
Even were there no fraudulent representation in these cases, it is submitted that restitution should be enforced upon the ground that the benefit conferred upon the defendant is conferred in reliance upon a supposed legal duty which turns out to be non-existent. But this topic is treated in another chapter (ante, Sec. 184).