#### FANNY FROLICK v. JAMES T. SCHONWALD.

Where the mother of an illegitimate child, and its father entered into covenants, whereby the mother obliged herself to keep and edúcale it, till it got to be twenty-one, and the father to pay her a stipulated monthly price for so doing, with a provision, that if the father should become dissatisfied with the manner of its education and treatment, he might resume the possession of the child, and the payments cease, it was Held that, in order to get rid of the obligation to pay, the father had to show that he had reasonable cause of dissatisfaction.

ActioN of coveNant, tried before Shepheed, J., at the last Spring Term of New Hanover Superior Court.

The plaintiff being the mother of an illegitimate child, begotten by the defendant, they entered into articles of agreement in respect to the custody and nurture of the child, the provisions of which material to this suit, are as follows:— “that the said James T. Schonwald being anxious to provide support and maintenance for a certain female child, known by the name of Eveleen, and the said party of the second part, having agreed to keep, rear, and maintain the said child until she comes of lawful age, hath, and by these presents, doth for himself, his heirs, &e., covenant * * to, and with the said *428■party of fhe second part, that he will well and truly pay or cause to be paid to her, or her order annually, during the minority of the said child, * * one hundred and twenty dollars in twelve equal annual instalments of ten dollars each, x- » anq j-0 continue during the minority of the said child, or-for such period only, as the said child shall remain in the custody of the said party of the second part.” Then comes a covenant on her part, “keep,-rear, and board, clothe and instruct” the said child'" dnring-thewhole time of her minority, or during the whole time in which she shall remain in her custody.” * * “And, it is agreed, understood and mutually ¡covenanted by and between the parties hereto, that if at any time hereafter, the said party of the first pai-t shall become dissatisfied with the manner in which the said child is educated, treated or maintained, or any other canse, or at the request of the said party of the second part, or in the event of her marriage or decease, or the like, that then it shall and may be lawfel for the-said party of the first part to resume the -possession of the said child, without any question, doubt, suit, or trouble.”

It was in evidence that the defendant made several payments according to the terms, and some months previous to the beginning-of the suit, he demanded that the child should be given up to him, which was refused by the mother. It was further in evidence, that she has had the custodj1- and nurture of the child-from the date of the covenant.

The Court was of opinion that the demand made by the defendant for the surrender of the child, discharged the défendaat from subsequent liability, and so instructed the jury.

The plaintiff-excepted. Verdict for the defendant. -Judgment and appeal.

V. A. Wright-má JSalcer, for the plaintiff.

No counsel appeared for the defendant -in this Court

MaNly, J.

The-decision, made in the Court below, is predicated upon the -construction that defendant’s obligations, *429arising out of the contract, were determinable by him, at will. In substance, it was there held- that a demand for the child operated as a rescisión of the covenant to pay the stipulated price for her support. This seems to us, not to be reasonable, and therefore, not the true construction of the instrument.— It amounts, according to this view, to nothing more than a putting of the child, with plaintiff, to be brought up; and.a promise to pay at the rate of $10 per month, for the time she might be permitted to stay there. The parties would hardly have conceived it necessary, to resort to the amount of verbiage, adopted in the paper, to evidence so simple an idea. We take it, something more was meant. Our construction is, that the child is committed for nurture and education to the plaintiff, to remain until the ward attained the age of twenty-one, unless plaintiff, 'in the mean time, shall fail to perform, or improperly fulfil her duties ; (other stipulations and conditions, not affecting our enquiries, we omit to notice.)

The words of the paper are, that “ the custody of the child may be resumed by defendant when he shall become dissatisfied with the manner of its education, treatment, or maintenance, or other cause? A capricious and wanton dissatisfaction, on the part of defendant, seems not to have been in the minds of the parties, and would be inconsistent with a fundamental idea in respect to mutual covenants, viz: equal, as well as mutual benefits and obligations. The defendant must have cause- — reasonable cause, for dissatisfaction. It is only in that state of things, he can terminate the woman’s right, under the contract, to the .custody of the child. And, it is very certain, that as long as the right is united with the actual custody, the plaintiff may recover the stipulated pay. There was error in the instructions to1 the jury, and there should, therefore, be a veni/re ele novo.

Pee Cueiam,

Judgment reversed.