Brown v. Odill

• Decision Date: 24 February 1900
• Citation: 56 S.W. 840
• Parties: BROWN v. ODILL.
• Court: Tennessee Supreme Court

56 S.W. 840

BROWN v. ODILL.

Supreme Court of Tennessee.

February 24, 1900.

Error to circuit court, Maury county; Sam Holding, Judge.

Action by Sarah A. Odill against William H. Brown for breach of marriage contract. From a judgment for plaintiff, defendant brings error. Affirmed.

E. H. Hatcher and W. B. Greenlaw, for plaintiff in error. Wm. A. Flemming and Figures & Padgett, for defendant in error.

CALDWELL, J.

William Hugh Brown prosecutes this appeal in error from a judgment for $2,800 obtained against him by Miss Sarah Alberta Odill for the alleged breach of a contract of marriage. The plaintiff averred in her declaration that on the 2d day of January, 1894, she and the defendant entered into a contract to marry each other on the 18th day of the same month and year; that before the latter day arrived, at the solicitation of the defendant, who had a divorced wife still living, and on account of religious scruples on his part, they postponed the marriage until that divorced wife, whom he represented to be in very had health, and not long to live, should die; that during the continuation of their agreement to marry upon the death of his divorced wife, and while she still survived, the defendant, on the 19th of December, 1897, married another woman, and avowed that he would never marry the plaintiff. The defendant assigned three grounds of demurrer: (1) That the contract averred "is void for indefiniteness and uncertainty"; (2) that it is void because "in restraint of marriage"; and (3) that it it void because "against public policy." The circuit judge overruled the demurrer in toto, and his action in so doing is assigned as error.

This court deems no objection raised by the demurrer tenable in any particular. In the first place, the contract, as averred, is entirely definite and absolutely certain in every element and part except as to the time of consummation, and that is reasonably definite and certain, since it is made to depend upon an event which, in the course of nature, must inevitably occur. It is true that one or both of the contracting parties might die in advance of that event, but the same would be true if the marriage had been set for the first day of the next month or of the next year; and in neither case would that possibility render the contract "void for indefiniteness and uncertainty."

In the next place, the contract is in favor of marriage, rather than in restraint of it. It bound the plaintiff and the defendant mutually to marry each other. In that respect it was positive and absolute. Of course, its terms were intended to restrain her from marriage with any other man, and him from marriage with any other woman; but that is not restraint of marriage in the legal sense, otherwise there could be no lawful marriage contract between any man and woman, because it would restrain each of them from marrying some one else. Nor is it material, in this aspect of the contract, that it did not designate a particular or specific day for the performance of the marriage ceremony.

The third assignment of demurrer, though not specifying any reason for the assertion therein that the contract is "against public policy," was no doubt intended to advance the proposition that it was subject to that objection because its ultimate consummation was, by its terms, made to depend upon and to follow the death of the defendant's divorced wife, and in that way to hold out an inducement to the destruction of her life. At first view, there is seeming force in the proposition; yet the court, after mature consideration, does not regard it as sound in law. There was, in reality, no legal impediment in the way of the marriage, and both parties were cognizant of that fact. Only "religious scruples" prevented an immediate or early consummation; and it can hardly be conceived that persons actuated by so high a motive could be tempted to end the postponement by committing murder. The agreed delay, self-imposed, and self-terminable at any moment as it was, cannot properly be said to imply illegality of purpose, or to afford any inducement to crime. A promise of marriage to be fulfilled on the death of the defendant's father was recognized as a valid contract by Lord Chief Baron Kelly in the case of Frost v. Knight, 5 L. R. Exch. Cas. 322, and later by Lord Chief Justice Cockburn in the same case, reported in 7 L. R. Exch. Cas. 111. A note in 4 Am. & Eng. Enc. Law (2d Ed.) p. 889, refers to a case of same style as reported in 41 Law J. Exch. 78, and holding such a contract to be good. The very much earlier case of Woodhouse v. Shepley, 2 Atk. 535, cited for the present defendant, is not in point here. There the woman, Hannah Woodhouse, and the man, Ralph Shepley, had become engaged to marry without the knowledge and over the opposition of her father, and executed each to the other a bond in the penalty of £600, and with condition that each should marry the other within 13 months after the death of her father. When 13 months after the death of the father had expired, the woman filed her original bill to be relieved against her bond, and the man brought his cross bill to enforce the penalty. In disposing of the case Lord Chancellor Hardwicke said: "I am therefore of opinion that on the original bill the plaintiff ought to be relieved; and I say the same in this case as Lord Cooper did in Floyer v. Lavington, 1 P. Wms. 268, that, though none of these circumstances singly might be sufficient to overturn this bond, yet altogether they are so; but the chief of these, and which has great weight with me, is the encouragement this might give to disobedience, and the fraud on parents." 2 Atk. 540. That was not a suit upon the marriage contract itself, as was the case of Frost v. Knight, supra, nor was the supposed inducement to take the intervening life even suggested by Lord Hardwicke as one of the several circumstances, upon which, as a whole, the judgment was rested.

After his demurrer had been overruled, the defendant filed pleas in which he averred that the second agreement between the plaintiff and himself was a cancellation of their engagement, and not simply a postponement of the time for their marriage, as averred in the declaration. The fact of the original marriage contract between these parties was conceded in the proof, as were the defendant's marriage to Dora Bunch, his present wife, and the continuing life of his divorced wife; and the principal controversy before the jury was whether that contract had been actually canceled, as the defendant averred and testified, or only its fulfillment postponed, as the plaintiff averred and testified. There was no proof to sustain the averment of the declaration that the defendant had formally declared his purpose never to marry the plaintiff, nor that he had done or said anything that could be construed as a breach of the alleged contract to marry her upon the death of his divorced wife, unless his intermarriage with his present wife should be considered such a breach.

In a request for special instruction, as well as in his motion in arrest of judgment, the defendant advanced the proposition that the contract, if found to be that he had agreed to marry the plaintiff after the death of his divorced wife, was not breached by his marriage to Nora Bunch, and his present conjugal relations with her during the lifetime of that divorced wife and while she still survives; and the court's refusal to give that instruction and grant that motion is made the ground of the next assignment of error. The substance of the contention made for the defendant on this assignment is that the time for the fulfillment of his alleged promise to marry the plaintiff has not yet arrived, because his divorced wife is still living, and that it cannot be foreseen, and should not be adjudged in advance of her death, that he will not, when that event shall occur, have been released, by death or otherwise, from his alliance with his present wife, and then be ready to fulfill both the letter and spirit of the alleged contract with the plaintiff by intermarriage with her. To say the least of it, the contention possesses the merit, not only of novelty, but of apparent plausibility as well. It is clear and incontrovertible that the time for the performance of the contract averred...