Hobson

This is an action brought by the plaintiff to recover from the defendant the balance due upon a written contract for the payment of money in the sum of $3,500. The contract in question was entered into between the parties, who were at that time husband and wife, for the purpose of settling and adjusting their property rights prior to the obtaining of a divorce. After the divorce was obtained the plaintiff brought an action to rescind and set aside the contract in question upon the grounds of fraud and undue influence exercised by the defendant, and in such action also sought to have the court adjudicate the property rights of the parties. The court, adopting the advisory verdict of the jury, found that the contract in question was procured through the fraud and undue influence of the defendant. But further found in accordance with a separate defense of the defendant that “an interlocutory judgment of divorce was duly and regularly made, given and entered wherein and whereby it was adjudged that all property rights between the parties hereto had been settled.”

Judgment was accordingly given in favor of the defendant and against the plaintiff. In the present action upon the…