Burke v. Shaver

• Decision Date: 28 November 1895
• Citation: 23 S.E. 749,92 Va. 345
• Parties: BURKE v. SHAVER.
• Court: Virginia Supreme Court

23 S.E. 749

92 Va. 345

BURKE

v.SHAVER.

Supreme Court of Appeals of Virginia.

Nov. 28, 1895.

Breach op Marriage Promise—Consideration— Trial—Examination of Witness.

1. A promise of marriage on consideration of sexual intercourse is void, as contra bonos mores.

2. On repudiation by the man in toto of the promise of marriage, by which no day was fixed for the marriage, the woman may sue without first having demanded the performance of the contract on a fixed day.

3. The granting of permission to examine a witness a second time is largely within the discretion of the trial court.

Error to circuit court, Rockingham county.

Action by Alice E. Shaver against Robert M. Burke. There was a judgment for plaintiff, and defendant brings error. Reversed.

Sipe & Harris, for appellant

Patterson & Haas, for appellee.

CARDWELL, J. This is a writ of error to a judgment of the circuit court of Rock Ingham county. The action is for a breach of promise of marriage brought by the defendant in error against the plaintiff in error, —the declaration alleging, in aggravation of damages, the seduction of defendant in error, birth of child, etc., —and at the trial the jury awarded damages in the sum of $1,000.

The first assignment of error is to the refusal of the trial court to give the following instructions, asked for by the defendant (plaintiff in error): "Instruction 1. The jury are instructed that if the plaintiff yielded to the request of the defendant to have sexual intercourse with her upon the promise of the defendant, if the plaintiff got into trouble, he would marry her, such contract did not constitute a legal contract of marriage. Instruction 2. The jury are instructed that, upon an agreement between a single man and a single woman to have illicit intercourse, and that, if pregnancy of the female shall follow, the man agrees to marry the woman, such an agreement is against morality, and does not create a legal contract of marriage." The first question to be determined is whether these instructions correctly propound the law applicable to the case. A contract for marriage is the mutual agreement of a man and a woman to marry.each other, or become husband and wife, in the future, and must satisfy the legal requirements as to parties, consideration, etc., as other contracts must. Wharton, in his work on the Law of Contracts (volume 1, § 373), states the law thus: "An agreement is void when the consideration is future illicit cohabitation, no matter what other considerations may unite, or how skillfully the illegal object might be clothed. * * * A promise-of marriage on consideration of sexual intercourse also is void." Chancellor Kent, in his Commentaries (volume 2, 13th Ed., p. 467), in discussing what constitutes a valuable consideration of a contract, says: "The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law, or sound policy, or good morals. 'Ex turpi contractu actio non oritur.' And no person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity. The reports in every period of English jurisprudence and our American reports equally abound with cases of contracts held illegal on account of the illegality of the consideration, and they contain certain striking Illustrations of the general rule that contracts are illegal when founded on a consideration contra bonos mores, or against principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law. If the contract grows immediately out of or is connected with an illegal or immoral act, a court of justice will not enforce it." In the case of Saxon v. Wood (Ind. App.) 30 N. E. 797, where the complaint alleged "that defendant, who was a suitor of plaintiff, an unmarried woman, solicited her to have sexual in-tercourse with him, and on her refusal agreed that if she should yield to bis wishes, and thereby become pregnant, he would at once marry her; that in consideration of such agreement, to which she consented, plaintiff yielded to defendant's solicitations, and did have sexual intercourse with the defendant, from which pregnancy resulted, and from which a child was born to plaintiff, and the defendant, on her request to fulfill his agreement, refused to marry her, "—it was held that the action would not lie, the contract being based on an immoral consideration. Judge Black, in delivering the opinion of the appellate court of Indiana, in that case, cites with approval what has above been quoted from Kent's Commentaries, and a number of other authorities on the same line. In the case of Hanks v. Naglee (decided by the supreme court of California) 54 Cal. 51, which was an action for a breach of promise of marriage similar in many respects to the case at bar, the plaintiff testified, in effect, that the defendant promised to marry her if she would surrender her person to him, and that she thereupon consented. The court held that promise was void on account of the immorality of the consideration, the court saying, in its opinion, that "upon well-settled principles the plaintiff should not have recovered on a contract of this character, as, being a contract for illicit cohabitation, it is tainted with immorality, "—citing Story, Cont. § 458. and Steinfeld v. Levy, 16 Abb. N. S. 26. In the latter case, which was decided by the supreme court of New York, Chief Justice Neilson, in discussing the nature of the contract sued on, says: "It is hardly necessary to say that a contract thus grossly immoral would not support the action. The learned presiding judge [of the court below] seems to have had in view the rule that where a contract is founded on two considerations, one of which is merely void, but not vicious, and the other good, the contract is binding to the extent of the good consideration. He ruled that if, in fact, mutual concurrent provisions to marry were a part of the consideration, the plaintiff could recover. It does not seem to have occurred to him that such a rule would tend to legalize contracts for prostitution, or that the principle In view is never applied to a contract tainted with immorality. Courts of justice will not aid the illicit or corrupt arrangement, or sift one part of it to save the other part." The learned counsel for defendant in error cites this case as authority for his contention that instructions 1 and 2 were not applicable to the case at bar, because there was a promise of marriage, independent of the promise made in consideration of sexual intercourse; but the case of Steinfeld v. Levy sustains the doctrine laid down in Hanks v. Naglee and the other authorities above cited. Moreover, we shall see, later on, that the evidence does not show a promise in the case at bar, by the plaintiff in error, to marry the defendant in error, independent of the...