Caylor v. Roe

• Decision Date: 31 December 1884
• Docket Number: 11,450
• Citation: 99 Ind. 1
• Parties: Caylor v. Roe
• Court: Indiana Supreme Court

99 Ind. 1

Caylor v. Roe

No. 11,450

Supreme Court of Indiana

December 31, 1884

From the Randolph Circuit Court.

The judgment is reversed, with costs.

E. L Watson, J. S. Engle, M. B. Miller and J. E. Neff, for appellant.

W. A Thompson and J. W. Thompson, for appellee.

OPINION

Zollars C. J.

Appellee recovered a judgment below for the breach of a marriage contract. The only question made here by appellant is as to the sufficiency of the second and third paragraphs of the complaint, to which a demurrer was overruled.

It is averred in the second paragraph, that, on the 30th day of June, 1882, the parties entered into a contract of marriage, to be consummated in the following July. The day in July is not named. Following these statements are the further allegations that at the time of entering into the marriage contract, appellant represented that he was a man advanced in years and of great wealth; that he had been married--had living children of that marriage--and that the marriage contract here was upon the condition that appellee should enter into a written antenuptial contract, by which she should accept certain described real estate and $ 1,000 in money in lieu of the interest she would have as appellant's wife in and to his estate, both real and personal, at the time of his death.

It is further averred that at that time it was further agreed that the written contract, when drawn up, should be submitted to a brother of appellee for approval before being signed by her. It is further averred, that from the making of the marriage contract until the bringing of this action, appellee has been ready and willing to enter into said written agreement, and to marry appellant, and that in July, 1882, the month agreed upon for the marriage, appellant refused, and has ever since refused, to marry her.

In the third paragraph the contract of marriage is set out as in the second. Following this, it is averred that at the time of entering into this contract, and as the condition upon which it was entered into, and in consideration of the contemplated marriage, the parties made an antenuptial contract, which contract appellant was to cause to be reduced to writing, and presented to appellee and her brother for their approval, and that it should be signed by the parties before the marriage. The terms of the marriage settlement here set out are, in the main, the same as stated in the second paragraph.

It is averred further, that with the intent to cheat and defraud appellee, appellant caused a contract to be reduced to writing (a copy of which is set out) and submitted it to appellee, which she declined to execute, because it was not the contract agreed upon, but another and different one, which, if executed, would have resulted in a fraud upon her rights under the antenuptial contract. It is further averred that the appellee has all the while been ready and willing to execute the contract as agreed upon, and to marry appellant, and that he has neglected and refused to have the real contract reduced to writing and executed and has refused to marry her.

The contention of appellant is that the facts set up in each paragraph show that the agreement to marry, and the agreement in relation to the marriage settlement, make but one entire contract, and that as it is not in writing, under the statute of frauds, damages can not be recovered for a breach of it.

The contention on the part of appellee is that the facts show that two contracts were made, the contract of marriage being the principal contract, and that in relation to the property being collateral to it, and that hence damages may be recovered upon the breach of the marriage contract without reference to the other contract. We think that the position of appellant is the only tenable one.

It is averred in the second paragraph, as we have seen, that the marriage contract was upon the condition that appellee should execute the agreement in relation to the property, by which she should relinquish certain rights and acquire others. This agreement shows a conditional contract of marriage. The marriage was not to take place except upon the condition named. It is said in 2 Parsons on Contracts (7th ed.), p. 526, that "Mutual contracts sometimes contain a condition, the breach of which by one party permits the other to throw the contract up, and consider it as altogether null."

A contract to marry, like most other contracts, may be on condition. 1 Wait's Actions and Defenses, p. 724, and cases cited.

It could not be contended, with reason, that appellee, while asserting that the marriage contract was upon the condition that she should execute the contract in relation to the property, might refuse to execute that contract, and still insist upon damages because appellant refused to consummate the marriage. Such a refusal upon her part would, clearly, relieve him from all obligation and liability upon the contract of marriage. His promise of marriage was upon a condition; his contract was a conditional contract. To separate the condition from the contract of marriage would be to destroy that contract; and to allow damages for the breach of the contract of marriage, without reference to the condition upon which that contract rests, would be to hold appellant liable upon a contract very essentially different from the contract agreed upon by the parties.

At section 140, in Browne on the Statute of Frauds, it is said: "It is clear that if the several stipulations are so interdependent that the parties can not reasonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one stipulation can not be fairly and reasonably extracted from the transaction, no recovery can be had upon it, however clear of the statute of frauds it may be, or whatever be the form of action employed. The engagement in such case is said to be entire."

This furnishes a very good test as to whether or not a contract of different parts and items should be regarded as one entire contract. Under this test, the averments in each paragraph of the complaint show a single contract only, but of different items. It is very evident that the parties here contracted with a view to the performance of all of the stipulations, and not a part only.

Either party may insist upon the performance of the condition, if called upon to perform the contract. Appellant has the right to insist upon the performance of the condition, before he shall be made to respond in damages.

Appellee shows by the second paragraph of the complaint, that she has not performed that condition; and while she avers that she has been ready and willing to execute the contract in relation to the property, she does not undertake to furnish an excuse for her failure to do so, unless the statement that appellant has refused to marry her is a sufficient excuse. It is averred that the contract was to be reduced to writing, but there is no averment as to whose duty it was to have this done.

We hold that the agreements, as to the marriage and the property, constitute but one unwritten, conditional contract of marriage. See Henry v. Henry, 27 Ohio St. 121. There can be no recovery for a breach of this contract, if any portion of it is within the statute of frauds. Rainbolt v. East, 56 Ind. 538 (26 Am. R. 40); Frank v. Miller, 38 Md. 450; Fuller v. Reed, 38 Cal. 99; Browne Stat. Frauds, section 140, et seq.

It is well settled that simple contracts of marriage are not within the statute of frauds, and hence need not be in writing. Short v. Stotts, 58 Ind. 29; 2 Parsons Cont. (7th ed.) 73, and cases cited.

It is well settled too, that antenuptial contracts in consideration of marriage, or in relation to real estate, are within the statute of frauds, and hence, unless they are in writing, no action can be maintained upon them, either in the way of enforcing them, or for damages for a breach of them. Section 4904, R. S. 1881; Flenner v. Flenner, 29 Ind. 564; Brenner v. Brenner, 48 Ind. 262; Rainbolt v. East, supra; 2 Parsons Cont. (7th ed.) 71. See, also, Hackleman v. Board, etc., 94 Ind. 36.

Properly interpreted, the second paragraph is, that a part of the contract of marriage was the further agreement that appellee should have certain specific real estate, and $ 1,000 in money, and no further portion of appellant's estate, and that this agreement should be reduced to writing.

If there were no averments as to the agreement being reduced to writing, it would be a simple case of an oral agreement in relation to real estate, which would be clearly within the statute of frauds.

The averment that the contract was to be reduced to writing and executed by appellee, we think, does not take the case out of the statute, and hence we conclude that the paragraph is insufficient as against the demurrer directed to it. Our reasons for so holding will further appear in the examination of the third paragraph of the complaint. That...