Carter v. Rinker

• Decision Date: 13 December 1909
• Parties: CARTER v. RINKER.
• Court: U.S. District Court — District of Kansas

174 F. 882

CARTER v. RINKER.

United States Circuit Court, D. Kansas, First Division.

December 13, 1909

Charles Blood Smith, T. A. Milton, and Samuel Barnum, for plaintiff.

David Ritchie, for defendant.

PHILIPS District Judge.

This is an action for breach of promise to marry. While the amended petition was not wholly free from the criticism made by defendant's counsel, for presenting the double aspect of an action in assumpsit for breach of promise to marry and one in trespass for fraud and deceit in bringing about the engagement, which respective actions might present a different measure of damages, this objection has been obviated. On the hearing of the motion of the defendant striking at this claimed defect, plaintiff's counsel stated that he construed the petition as founded alone on a breach of promise, and he would so try his case. Thereupon the motion was denied, and the defendant has demurred to the petition as not stating a cause of action.

The substance of the allegations of the petition is that at the time of making the contract, in February, 1907, the plaintiff was, and ever since has remained, an unmarried woman; that she then, at defendant's request, promised to marry him and he at the same time promised to marry her; that the defendant at the time represented himself to be an unmarried man, when in fact he was then married to another person, of which the plaintiff had no notice; that he represented himself as a man of wealth; that he was a widower, and that if she married him he would establish their home at Kansas City, Mo., apart from his children; that after said contract of marriage was announced and made known to plaintiff's relatives and friends, at the urgent request of the defendant, she discarded former friends and ceased to have social intercourse with them; that she believed the representations of the defendant that he would carry out his promise of marriage; that he thereafter gave her constant attention, referring to her as 'wife,' 'darling,' and 'sweetheart,' in their correspondence; that as his fiancee, and at his earnest solicitation, and in expectancy of said marriage, she consented to sexual intercourse with him; that this continued until about March or April, 1907, when she discovered for the first time that he was a married man, and had been such during their entire acquaintance, during which time he was living with his wife in the state of Kansas; that until such discovery she was at all times ready and willing to marry the defendant. The petition then alleged that in consequence of her situation she was greatly humiliated, prostrated, etc.

The question presented by the demurrer for decision is: It appearing that the defendant, at the time of making the promise, was a married man and incapable of performing the contract, is this action maintainable? The argument of defendant's counsel is that such a contract is contrary to public policy, and as such is nonactionable; that being incapable of performance by the defendant at the time it was entered into, and ever thereafter during his coverture, the general rule of law is that such a promise cannot be the basis of a suit at law.

I have examined the authorities cited in support of the foregoing proposition. In Eve v. Rogers, 12 Ind.App. 623, 40 N.E. 25, the court used the following language:

'The contract must be binding upon both parties, or it cannot bind one. Hence it follows that a contract of marriage entered into between a man and a woman, one of whom is qualified to make such a contract and the other is not, is void and cannot be enforced. Neither can damages be recovered for a breach thereof, for the reason that the contract, not being binding as to one, is not binding as to the other.'

No authorities were cited in support of this broad proposition.

The case of Leaman v. Thompson, 43 Wash. 579, 86 P. 926 is not in point. The evidence there showed that when the first promise of marriage was made the plaintiff herself was under coverture, and, of course, she could not predicate an action upon such a contract contrary to public policy; she herself being aware of her incompetency. The case turned upon the question of fact as to whether or not the promise was not renewed after the defendant was divorced.

The case of Buelna v. Ryan, 139 Cal. 630, 73 P. 468, is not different in principle from the last case cited. The question there involved was whether or not the plaintiff, a divorced woman, could enter into such contract within a year subsequent to the decree of divorce under the Civil Code of California. The court held:

'That when she was divorced she was no longer a married woman, and that under the Code she could not marry in the state until after the lapse of the year; she had the right to marry after the expiration of the year; that she had the right to marry at a certain time, and to agree to so marry, provided the agreement was not consummated until the end of the year.'

Reed v. Reed, 49 Ohio St. 654, 32 N.E. 750, only holds:

'That an action will not lie in the state of Ohio to recover damages for a breach of contract of marriage made in that state between first cousins'

-- for the reason that the statute prohibits such contract.

The case of Fuller v. Fuller, 33 Kan. 582, 7 P. 241, only holds:

'That where a man innocently marries a woman who has a husband living, he may maintain an action against her in equity, independent of the statutes relating to divorce and alimony, to have the colorable marriage declared a nullity.'

Werner v. Werner, 59 Kan. 399, 53 P. 127, 41 L.R.A. 349, 68 Am.St.Rep. 372, is practically to the same effect.

The case of Noice v. Brown, 38 N.J.Law, 228, 20 Am.Rep 388, cited by counsel for defendant, does not support his contention. That presented the naked question of an agreement of a married man to marry when he should obtain a decree of divorce from his...