The contract to marry must be mutual, that is, there must have been an intention to enter into an agreement, as by an offer and acceptance. But this contract may be proven from the circumstances usually attending an engagement, and the acceptance may be implied. The contract is not within the Statute of Frauds, and is valid though not to be performed within a year." Mutual promises are sufficient consideration, but a contract founded upon an immoral consideration would be void. This contract, when properly made between capable parties, is binding, and either party has an action for damages against the party refusing to carry out the contract.80 62. Breach of promise. The well-known and much-abused action of breach of promise results from the failure of one of the parties to fulfill the executory agreement to marry. The action is sustainable by a man against a woman, but it is usually the woman who asks this primary consolation, for when the female is the injured party there is generally more reason for a resort to the laws, than when the man is the sufferer. The damage sustained, doubtless, is always more in the case of the woman, and in determining it, the actual money loss plays but a small part, the wounded spirit, the unmerited disgrace, and the probable solitude which would be the consequences of desertion after a long courtship, being the great factors.s 79 Lewis v. Tapman, 90 Md. 294, 45 Atl. 459. 81 80 Cooley, Blackstone's Commentaries, I, p. 433, note; Wetmore v. Mell, 1 Ohio St. 26; Cole v. Holliday, 4 Mo. App. 94; Inhabitants of Taunton v. Inhabitants of Middleborough, 53 Mass. 35. 81 Wightman v. Coates, 15 Mass. 1. The party ready to perform may request performance and offer to perform the contract before bringing the action. But this is not necessary on the part of the woman if a time has been fixed for carrying out the agreement, or a reasonable time has elapsed since the mutual promises, and she is ready and willing.82 The fact that the party in default is incapable of carrying out the agreement, as where already married, is no defense, if the plaintiff was ignorant of that fact when the promise was made. And the injured party may sue at once without waiting for the time of performance, or making any offer or demand. But where the incapacity to perform the agreement is known to both parties before the making of the agreement, neither party may sue.s So where both parties are ignorant of the incapacity, or it arises, without fault, after the agreement, as mental incapacity, the contract is void.8* 83 63. Circumstances excusing a breach of contract. -The rules of contract apply to promises to marry as well as to other contracts with the exceptions that have just been noted. There are, however, some situations peculiar to contracts of marriage, that should be considered in this connection. Thus, one may avoid performing a contract that he has entered into on the ground that the contract is against public policy, or that it is void for some other reason, or he may avoid it on the ground that the other induced him to enter into it by fraud. In contracts 82 Turner v. Baskin, 2 Ohio Dec. 24. of marriage it is against public policy for a man and woman already married to others, to agree to marry upon procuring divorces,85 or even for an unmarried person to agree to marry a married person where he knows of the other's marriage, notwithstanding the agreement is to take effect after the death of the other's spouse. Such contracts are void and unenforcible. Suppose, then, that one who was married, represented to a woman that he was unmarried, proposed marriage to her, and she, believing him to be unmarried, agreed to marry him. Can the deceived woman sue the man for breach of contract to marry? Apparently courts are in conflict on this situation. Some courts consider that the whole contract is void, because the married person was not able to make such a contract, and therefore there could be no breach of the contract upon which to sue.86 A better considered rule, however, holds that the married person who deceived the other should not be permitted to rely upon his own wrong to defeat the action.87 In cases where there is knowledge that the one person is already married, it is held to be inconsistent with the affection that ought to exist between husband and wife for the one to enter into an agreement to marry a third person upon the other's death. One case argues that this rule is not immutable, but that such a promise might not be against public policy in all cases, as where one's 85 Paddock v. Robinson, 63 Ill. 99. 86 Eve v. Rodgers, 12 Ind. App. 623, 40 N. E. 25. 87 Wild v. Harris, 7 C. B. 999 (Eng.). spouse was in a lunatic asylum and incurably insane, or where one's spouse expressly asked him to marry a particular person. 88 Fraud excuses a breach of contract to marry. The question then arises, what constitutes such fraud? The mere failure of the one party to notify the other that she had at one time been in an insane asylum was held not to excuse a breach by that other.89 The same case sets up the English rule that unchastity on the part of the one person is all that will excuse. The question is properly to be considered with reference to whether the person charged with the fraud has made a positive misstatement, or has merely remained silent as to some matters of family history. The rule is undisputed, apparently, that mere silence as to family history, with nothing more, is not fraud. Even express misstatements as to matters that do not affect the health or morals or identity of the parties, are not fraud that interferes with the contract. The statements must be material. But misstatements as to material facts or partial statements with a suppression of other material statements so as to give a wrong impression, do constitute fraud excusing breach." As to whether mere silence as to existing disease or illness will excuse breach, the cases are in conflict. The general rule is that where, at the time of entering into the contract, the parties knew of the illness, its existence furnishes no excuse for breach, 88 Wilson v. Carnley, 23 Times Law. Rep. 578 (Eng.). unless it can be said that public policy makes it undesirable for the contract to be enforced, as where one party has consumption.91 But even where there was ignorance of the disease, some cases hold it is not an excuse, though the majority of the cases hold that it is, at least where the disease affects the reproductive organs. 92 93 Of course, if the parties release each other from the engagement neither can bring an action for breach of promise and a cessation of intercourse and correspondence is evidence of such release, particularly where it is not reconcilable with any other theory." 94 When the action is maintainable the plaintiff is entitled to damages for the mental suffering, mortification and pain resulting from the defendant's failure to perform, also to punitive damages in case of seduction.95 Infancy of the defendant at the time the promise was made is a good defense.96 64. Void and voidable marriages.-The words void and voidable are frequently used in relation to marriages, and it is important to understand at the outset the distinction in effects and consequences between a void and a voidable marriage. marriage is a mere nullity, and its validity may be impeached in any court, directly or collaterally, and whether the parties be living or dead. A voidable 91 Grover v. Zook, 44 Wash. 489, 87 Pac. 638. 92 Smith v. Compton, 67 N. J. L. 548. A void 93 Sanders v. Coleman, 97 Va. 690, 34 S. E. 621; Allen v. Baker, 86 N. C. 91; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79. 94 Davis v. Bomford, 6 H. & N. 245 (Eng.). 95 Glasscock v. Shell, 57 Tex. 215. 96 Rush v. Wick, 31 Ohio St. 521. |