Anderson v. Kirby

• Decision Date: 23 March 1906
• Citation: 54 S.E. 197,125 Ga. 62
• Parties: ANDERSON v. KIRBY.
• Court: Georgia Supreme Court

54 S.E. 197

125 Ga. 62

ANDERSON v. KIRBY.

Supreme Court of Georgia

March 23, 1906

Syllabus by the Court.

In an action for breach of promise of marriage, allegations and proof of circumstances antecedent to the promise of marriage which tend to show the relations of the parties and the state of feeling between them at the time of the alleged promise are permissible.

A promise by the defendant to marry the plaintiff just as soon as the defendant's mother, who was ill, got well, was not a conditional promise of marriage, but an absolute promise to marry at an uncertain time in the future; and if, while the mother was still ill, the defendant told the plaintiff that he did not intend to marry her, the plaintiff could treat such renunciation of the contract by him as a breach of the same, and bring an action for such breach, without waiting for the time for the performance of the contract to arrive.

Seduction of the plaintiff by the defendant under promise of marriage may be alleged and proved in aggravation of the damages sustained by the breach of the contract to marry.

Error from Superior Court, Pickens County; Geo. F. Goher, Judge.

Action by Ella Anderson against Govan Kirby. Judgment for defendant and plaintiff brings error. Reversed.

N. A Morris and Isaac Grant, for plaintiff in error.

Jno. W Henley and F. C. Tate, for defendant in error.

FISH C.J. (after stating the facts).

We think the judge erred in sustaining the special demurrers to paragraph 4 and a portion of paragraph 6 of the petition. Paragraph 4 was as follows: "From July, 1902, to February, 1903, defendant lived with his aged mother, Mrs. Mary Kirby, in said county. During all this time said Mrs. Kirby was seriously sick with fever, and petitioner stayed at her house and waited upon her day and night." Paragraph 6 alleged that the petitioner's sister helped her wait upon Mrs. Kirby a part of the time, and contracted fever while doing so, was sick only a few days, and died; that "defendant would often remind petitioner of this fact while courting her stating to petitioner that her sister contracted fever from his mother and died, and that he loved petitioner more on this account, and as soon as his mother recovered he would marry her and make her happy and comfortable the balance of her life." It is impossible to tell how much of this paragraph, as it is copied in the record, was demurred to; for it is clearly apparent that the lines of written matter in this paragraph in the record do not correspond with the lines of such matter in the original petition. But we think it was permissible for the plaintiff to allege everything contained in this paragraph. Upon denial by defendant of the alleged promise to marry plaintiff, we think it would be competent for plaintiff to prove the circumstances under which she and defendant were thrown in intimate, daily association with each other for some time prior to the alleged engagement, and any facts which tended to show the state of his feelings toward her at the time of the alleged promise. Particularly is this true as to facts and circumstances to which he referred while paying his addresses to her, as having caused or increased his love for her, and which might naturally have had that effect. Such facts and circumstances, coupled with his declarations as to the influence which they had upon him, would tend to corroborate evidence as to a specific promise by him to marry plaintiff, and thus strengthen the probability that he did, in fact, make such promise. We do not think that in cases of this character a rigorous rule of exclusion should be applied to circumstances which, if proved, would tend to illustrate the state of feeling between the parties at the time when it is alleged the contract to marry was entered into. While it was not necessary for plaintiff to allege these circumstances in order to state a cause of action, yet, as it would be proper for her to prove them upon a trial of the case, we see no reason why it was not permissible for her to allege them by way of inducement to the more material and substantial allegations of the petition.

2. Of course, sustaining the special demurrers which we have just been considering would not have resulted in the dismissal of the case, but would have simply stricken from the petition the allegations alleged by the demurrers to be immaterial and irrelevant. The order of dismissal was the logical and inevitable result of sustaining the fifth paragraph of the demurrer, which was, in effect, a separate demurrer upon the ground that the petition set forth no sufficient cause of action, and showed "upon the face thereof that the plaintiff is not entitled to maintain her present action." In support of the judgment of the court, sustaining this general demurrer, counsel for defendant in error contend that "It appears upon the face of plaintiff's petition that the alleged promise of marraige was conditional, contingent upon the recovery of defendant's mother from sickness," and that as it is not alleged that she recovered, there "is no sufficient allegation of the breach of the promise set out in the declaration." The contention that the promise was conditional is not sound. The promise alleged in the petition is not that the defendant would marry the plaintiff if his mother recovered from her sickness, but the promise, on one occasion, was "that they would get married as soon as his mother recovered," and upon another occasion it was "that they would get married just as soon as his mother got well"--the same thing, with but slight alteration in the language. This was not a conditional, but an unconditional promise to marry, to be performed at an uncertain time in the future. The time for the performance of the promise was to be fixed by the recovery of defendant's mother from her illness. The effect of the promise was that the marriage agreed upon was not to take place while the mother remained ill, but as soon as she ceased to be ill the marriage was to occur. The expressions, "as soon as his mother recovered," and "just as soon as his mother got well," carry the idea that the mother's illness was all that prevented an immediate marriage, and that "as soon as" this reason for postponing the marriage was removed it should take place. It would be utterly unreasonable to construe this promise as being contingent upon the recovery of the defendant's mother from her sickness, so as to absolve him from it if she died. We are clearly of opinion that he would have been bound by this promise if his mother had died. While the petition did not allege that the defendant's mother had recovered from her illness, or that she had died, it did allege that the defendant, after giving "one excuse after another to postpone the marriage," had finally "refused to marry petitioner, claiming he did so on account of the publicity of their [illicit] intimate relations," occasioned by their indictment for fornication. After this absolute renunciation of the contract by defendant, plaintiff was not obliged to wait until the time for its performance arrived before bringing suit, but could treat the contract as broken by defendant and bring suit for its breach at once."

This principle is well settled by a long line of authorities. In the English case of Frost v. Knight, reported in Law Rep. 5 Exch. 322, Law Rep. 7 Ech. 111, and 41 L. J. (N. S.) 78, the action was for breach of promise of marriage. The promise of defendant proved was to marry plaintiff on the death of defendant's father. While the father was still alive defendant announced his intention of not fulfilling his promise on the death of his father, and broke off the engagement, upon which plaintiff, without waiting for the father's death, at once brought suit. Plaintiff obtained a verdict, and upon a rule nisi to arrest the judgment, upon the ground that a breach of the contract could only arise on the father's death, till which event no claim for performance could be made, and no action for breach of the promise could be maintained, two of the judges of the Court of Exchequer, concurred in making the rule absolute; from which judgment the third judge dissented. But upon a review of this decision in the Exchequer Chamber, the judgment was reversed, all four of the judges presiding at the time of the decision concurring in the judgment of reversal. Chief Justice Cockburn delivered an elaborate opinion, in which it was held that the case fell within the principle of Hochster v. De La Tour, 2 E. & B. 678, 22 L. J. (Q. B.) 455, and Danube & Black Sea Co. v. Xenos, 13 C. B. (N. S.) 825, 31 L. J. (C. P.) 284. In the opinion he said: "The considerations on which the decision in Hochster v. De La Tour is founded are that the announcement of the contracting party of his intention not to fulfill the contract amounts to a breach, and that it is for the common benefit of both parties that the contract should be taken to be broken as to all its incidents, including nonperformance at the appointed time; as by an action being brought at once, and the damages consequent on nonperformance being assessed at the earliest moment, many of the injurious effects of such nonperformance may possibly be averted or mitigated. It is true, as pointed out by the Lord Chief Baron, in his judgment in this case, that there can be no actual breach of a contract by reason of nonperformance so long as the time for performance has not yet arrived. But, on the other hand, there is--and the decision in Hochster v. De La Tour proceeds on that assumption--a breach of the contract when the promisor repudiates it and declares he will no longer be bound by it." After forcibly giving the reasons upon which this principle is based, he said: "It appears to us that the...