Burks v. Shain

• Decision Date: 01 January 1811
• Citation: 5 Ky. 341
• Parties: Burks <I>vs.</I> Shain.
• Court: Kentucky Court of Appeals

Page 341

5 Ky. 341

Burks vs. Shain.

Court of Appeals of Kentucky.

Spring Term, 1811.

Opinion of the Court by Chief Justice BOYLE.

THIS is a writ of error to a judgment in an action upon a promise of marriage.

The first question which the record presents, respects the sufficiency of the three first counts of the declaration, and grows out of the bill of exception taken by the defendant to the refusal of the circuit court to instruct the jury to disregard those counts as being faulty and defective.

Each of the counts in question lays the promise in the usual manner, to be made in consideration of a promise on the part of the plaintiff to marry the defendant. The first and third state no time when the promise was to be performed; the second states that it was to be performed within a period which is left blank, and neither of them alleges any place of performance. In all of them the plaintiff avers her willingness and readiness to perform her promise, but makes no averment that she had offered to do so.

The omission to allege a time or place of performance, does not vitiate the counts: for a promise to marry is valid, though no time or place be agreed on. If the time be not fixed by the contract, it is to be performed in a convenient and reasonable time, and if no place be agreed upon, the contract being transitory in its nature may be performed any where, according to the maxim delictum et contractus sunt nullius loci. But where the time and place of performance are not fixed by the agreement of the parties, to entitle either to an action for a breach of the contract on the part of the other, an averment of an offer to marry on his or her part, is indispensably necessary — See Bac. Abr. 530, title Mar. and divorce, and Carthew 467, there cited. In such a case an averment of readiness to perform is not equivalent to, nor can it be substituted in the place of an averment of an offer to perform; one party may be ready and willing, but at a remote distance from the other, who may in like manner be ready and willing to perform his part of the engagement, and not being bound to a performance at any particular place, cannot be said to be in default. Contracts of this kind do not differ in principle from other species of contracts, where mutual and concurrent acts are to be performed at the same time.

In contracts of this last description, although it be not certain that either is to do the first act, yet it is a well settled rule, that neither party can maintain an action against the other, without showing that he has performed or offered to perform, his part of the agreement — 1 Tidd's Practice 382. Where indeed a...