Fible v. Caplinger

• Decision Date: 08 January 1852
• Citation: 52 Ky. 464
• Parties: Fible <I>vs.</I> Caplinger.
• Court: Kentucky Court of Appeals

Page 464

52 Ky. 464

Fible vs. Caplinger.

Court of Appeals of Kentucky.

January 8, 1852.

ERROR TO OLDHAM CIRCUIT.

Chief Justice HISE delivered the opinion of the court.

The declaration in this case is upon an agreement to marry, which like all other agreements, where the undertakings of the parties to it are to be performed at the same time, and where the obligation and duty of either to perform his or her undertaking necessarily depends upon the concurrent performance of the other, cannot of course be carried out except by the mutual consent, good faith, and cotemporaneous action of both the contracting parties; hence neither party can be said to be in default or guilty of a breach of such agreement to marry the other, unless the other is willing and ready to be married, at the time and place agreed upon for the actual consummation of the marriage; or, if no time and place were, by consent of the parties, fixed for the performance of the contract, neither party can be in default, nor has either violated their pledged faith or broken their agreement until the other has proposed and made the offer to fix the time and place and to fulfil the engagement. Where no time and place are, by the agreement, fixed for the marriage to be solemnized, such agreements come under the rule which govern contracts to be performed upon special demand, where one party covenants to perform certain things which in their nature cannot be done unless the other party shall first do certain other things by which alone the performance is rendered practicable; as if one undertake to erect and construct an edifice for another within a given time, with the materials to be furnished by the latter, the undertaker commits no breach of such agreement unless the other party shall first furnish the materials.

In this case the plaintiff has not attempted to charge the defendant upon a contract of marriage to be performed on any given day or at any designated place, and unless actually requested by plaintiff to perform his engagement, and unless the plaintiff was not only ready and willing but offered to perform the contract on her part, and unless upon such offer the defendant failed or refused to comply, he has not committed a breach of his engagement, and is not responsible in this action. For if time and place be not fixed, both parties may be ready and willing to marry, but neither may or can be married to the other until one notify the other when and where the marriage may take...