Cicco v. Schweizer

• Citation: 117 N.E. 807,221 N.Y. 431
• Parties: DE CICCO v. SCHWEIZER et al.
• Decision Date: 13 November 1917
• Court: New York Court of Appeals

221 N.Y. 431

117 N.E. 807

DE CICCO

v.SCHWEIZER et al.

Court of Appeals of New York.

Nov. 13, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Attilio De Cicco against Joseph Schweizer and others. From a judgment of the Appellate Division, First Department (166 App. Div. 919,152 N. Y. Supp. 1106), modifying and affirming a judgment of the trial term in favor of plaintiff, the defendant named appeals. Affirmed.

See, also, 176 App. Div. 679,163 N. Y. Supp. 823.Willard Bartlett, of Albany, for appellant.

Michael Schneiderman, of New York City, for respondent.

CARDOZO, J.

On January 16, 1902, ‘articles of agreement’ were executed by the defendant Joseph Schweizer, his wife, Ernestine, and Count Oberto Gulinelli. The agreement is in Italian. We quote from a translation the part essential to the decision of this controversy:

‘Whereas, Miss Blanche Josephine Schweizer, daughter of said Mr. Joseph Schweizer and of said Mrs. Ernestine Teresa Schweizer, is now affianced to and is to be married to the above said Count Oberto Giacomo Giovanni Francesco Maria Gulinelli: Now in consideration of all that is herein set forth the said Mr. Joseph Schweizer promises and expressly agrees by the present contract to pay annually to his said daughter Blanche, during his own life and to send her, during her lifetime, the sum of two thousand five hundred dollars, or the equivalent of said sum in france, the first payment of said amount to be made on the 20th day of January, 1902.’

Later articles provided that ‘for the same reason heretofore set forth,’ Mr. Schweizer will not change the provision made in his will for the benefit of his daughter and her issue, if any. The yearly payments in the event of his death are to be continued by his wife.

On January 20, 1902, the marriage occurred. On the same day, the defendant made the first payment to his daughter. He continued the payments annually till 1912. This action is brought to recover the installment of that year. The plaintiff holds an assignment executed by the daughter, in which her husband joined. The question is whether there is any consideration for the promised annuity. That marriage may be a sufficient consideration is not disputed. The argument for the defendant is, however, that Count Gulinelli was already affianced to Miss Schweizer, and that the marriage was merely the fulfillment of an existing legal duty. For this reason, it is insisted, consideration was lacking. The argument leads us to the discussion of a vexed problem of the law which has been debated by courts and writers with much subtlety of reasoning and little harmony of results. There is general acceptance of the proposition that where A. is under a contract with B., a promise made by one to the other to induce performance is void. The trouble comes when the promise to induce performance is made by C., a stranger. Distinctions are then drawn between bilateral and unilateral contracts; between a promise by C. in return for a new promise by A., and a promise by C. in return for performance by A. Some jurists hold that there is consideration in both classes of cases. Ames, Two Theories of Consideration, 12 Harvard Law Review, 515;13 Harvard Law Review, 29, 35; Langdell, Mutual Promises as a Consideration, 14 Harvard Law Review, 496; Leake, Contracts, p. 622. Others hold that there is consideration where the promise is made for a new promise, but not where it is made for performance. Beale, Notes on Consideration, 17 Harvard Law Review, 71; 2 Street, Foundations of Legal Liability, pp. 114, 116; Pollock, Contracts (8th Ed.) 199; Pollock, Afterthoughts on Consideration, 17 Law Quarterly Review, 415; 7 Halsbury, Laws of England, Contracts, p. 385; Abbott v. Doane, 163 Mass. 433, 40 N. E. 197,34 L. R. A. 33, 47 Am. St. Rep. 465. Others hold that there is no consideation in either class of cases. Williston, Successive Promises of the Same Performance, 8 Harvard Law Review, 27, 34;Consideration in Bilateral Contracts, 27 Harvard Law Review, 503, 521; Anson on Contracts (11th Ed.) p. 92.

The storm center about which this controversy has raged is the case of Shadwell v. Shadwell, 9 C. B. (N. S.) 159; 99 E. C. L. 158, which arose out of a situation similar in many features to the one before us. Nearly everything that has been written on the subject has been a commentary on that decision. There an uncle promised to pay his nephew after marriage an annuity of £>>>150. At the time of the promise the nephew was already engaged. The case was heard before Erle, Ch. J., and Keating and Byles, JJ. The first two judges held the promise to be enforceable. Byles, J., dissented. His view was that the nephew, being already affianced, had incurred no detriment upon the faith of the promise, and hence that consideration was lacking. Neither of the two opinions in Shadwell v. Shadwell can rule the case at bar. There are elements of difference in the two cases which raise new problems. But the earlier case, with the literature which it has engendered, gives us a point of departure and a method of approach.

[1][2][3] The courts of this state are committed to the view that a promise by A. to B. to induce him not to break his contract with C. is void. Arend v. Smith, 151 N. Y. 502, 45 N. E. 872;Vanderbilt v. Schreyer, 91 N. Y. 392;Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562, 47 Am. Rep. 75;Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224. If that is the true nature of this promise, there was no consideration. We have never held, however, that a like infirmity attaches to a promise by A., not merely to B., but to B. and C. jointly, to induce them not to rescind or modify a contract which they are free to abandon. To determine whether that is in substance the promise before us, there is need of closer analysis.

The defendant's contract, if it be one, is not bilateral. It is unilateral. Miller v. McKenzie, 95 N. Y. 575, 47 Am. Rep. 85. The consideration exacted is not a promise, but an act. The count did not promise anything. In effect the defendant said to him: If you and my daughter marry, I will pay her an annuity for life. Until marriage occurred, the defendant was not bound. It would not have been enough that the count remained willing to marry. The plain import of the contract is that his bride also should be willing, and that marriage should follow. The promise was intended to affect the conduct, not of one only, but of both. This becomes the more evident when we recall that though the promise ran to the count, it was intended for the benefit of the daughter. Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49. When it came to her knowledge, she had the right to adopt and enforce it. Gifford v. Corrigan, 117 N. Y. 257, 22 N. E. 756, 6 L. R. A. 610, 15 Am. St. Rep. 508; Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454; Lawrence v. Fox, 20 N. Y. 268. In doing so, she made herself a party to the contract. Gifford v. Corrigan, supra. If the contract had been bilateral, her position might have been different. Since, however, it was unilateral, the consideration being performance (Miller v. McKenzie, supra), action on the faith of it put her in the same position as if she had been in form the promisee. That she learned of the promise before the marriage is a legitimate inference from the relation of the parties and from other attendant circumstances. The writing was signed by her parents; it was delivered to her intended husband; it was made four days before the marriage; it called for a payment on the day of the marriage; and on that day payment was made, and made to her. From all these circumstances, we may infer that at the time of the marriage the promise was known to the bride as well as the husband, and that both acted upon the faith of it.

[4] The situation, therefore, is the same in substance as if the promise had run to husband and wife alike, and had been intended to induce performance by both. They were free by common consent to terminate their engagement or to postpone the marriage. If they forebore from exercising that right and assumed the responsibilities of marriage in reliance on the defendant's promise, he may not now retract it. The distinction between a promise by A. to B. to induce him not to break his contract with C., and a like promise to induce him not to join with C. in a voluntary rescission, is not a new one. It has been suggested in cases where the new promise ran to B. solely, and not to B. and C. jointly. Pollock, Contracts (8th Ed.) p. 199; Williston, 8 Harv. L. Rev. 36. The criticism has been made that in such circumstances there ought to be some evidence that C. was ready to withdraw. Williston, supra, pp. 36, 37. Whether that is true of contracts to marry is not certain. Many elements foreign to the ordinary business contract enter into such engagements. It does not seem a far-fetched assumption in such cases that one will release where the other has repented. We shall assume, however, that the criticism is valid where the promise is intended as an inducement to only one of the two parties to the contract. It may then be sheer speculation to say that the other party could have been persuaded to rescind. But where the promise is held out as an inducement to both parties alike, there are new and different implications. One does not commonly apply pressure to coerce the will and action of those who are anxious to proceed. The attempt to sway their conduct by new inducements is an implied admission that both may waver; that one equally with the other must be strengthened and persuaded; and that rescission or at least delay is something to be averted, and something, therefore, within the range of not unreasonable expectation. If pressure, applied to both, and holding both to their course, is not the purpose of the promise, it is at least the natural tendency and the probable result.

The defendant knew that a man and a woman...