Garmong v. Henderson

• Decision Date: 03 December 1914
• Citation: 112 Me. 383,92 A. 322
• Parties: GARMONG v. HENDERSON.
• Court: Maine Supreme Court

92 A. 322

112 Me. 383

GARMONG

v. HENDERSON.

Supreme Judicial Court of Maine.

Dec. 3, 1914.

Exceptions from Supreme Judicial Court, Penobscot County at Law.

Action by Elizabeth Garmong against John B. Henderson. Exceptions to allowance by way of amendment to the declaration of an additional count Exceptions sustained.

Argued before SAVAGE, C. J., and KING, HALEY, HANSON, and PHILBROOK, JJ.

John B. Merrill, of Bangor, for plaintiff.

L. B. Deasy, of Bar Harbor, and Fellows & Fellows, of Bangor, for defendant.

SAVAGE, C. J. Action for breach of promise of marriage. The writ was dated October 16, 1913. The original declaration contained three counts, one alleging defendant's promise, March 10, 1910, at Washington, D. C., to marry the plaintiff "when he should be thereunto afterwards requested," a request, and a breach; another alleging, at the same time and place, mutual promises by plaintiff and defendant to marry each other, an offer by the plaintiff to marry the defendant on that date, and a breach by defendant; a third alleging, November 6, 1910, at Washington, mutual promises to marry on March 1, 1911, a request by plaintiff, and a breach by defendant. The second and third counts contain also averments of the plaintiff's readiness and willingness to marry.

The plaintiff after entry asked leave to amend the writ by increasing the ad damnum, and to amend the declaration by adding a new count. Both amendments were allowed. Exceptions were taken to the allowance of the additional count, and are now before the court for its determination.

The additional count alleges that:

"Whereas when plaintiff was visiting at Bar Harbor, in the town of Eden, county of Hancock, and state of Maine, during the month of August, 1909, the said defendant courted and wooed her and declared to her his love and deep affection for the plaintiff; and by reason of his assurances of love and affection for the plaintiff, he persuaded and induced her to believe he was sincere in his protestations of love and affection, and, so believing, the plaintiff then and there accepted and relied upon the defendant's said protestations of love, and in good faith accepted and reciprocated same by assuring him in return of her love and affection for him; and by reason of such mutual understandings, the plaintiff and defendant then and there, in said Bar Harbor, became and were engaged to be married to each other; and the plaintiff further says by reason of said mutual agreements, understandings, and assurances, as stated last aforesaid, the plaintiff believed and, so believing, relied upon the fact that she and the defendant were, in good faith, engaged to be married to each other; and, so believing in and relying upon the good faith of the defendant in making his said protestations of love and affection for the plaintiff, and believing and relying upon his good faith in entering into his said agreement with the plaintiff to marry her, she was induced by said defendant to permit him to kiss her, and finally in the month of February, 1910, while in the city of Washington, District of Columbia, permitted him to take other liberties and privileges with her, whereby she became pregnant with child by the defendant, and by reason thereof she, on the 8th day of November, in the city of Washington, D. C, became a mother of said child. And plaintiff avers that by reason of the defendant's failure and refusal to carry out his mutual agreements and promises to marry the plaintiff as herein aforesaid stated, to wit, March 10, 1910, and November 6, 1910, the defendant has wantonly, deliberately, and unjustifiably degraded and disgraced the plaintiff, and wantonly and without any justifiable excuse has mortified, wounded, and injured the feelings and sensibilities of the plaintiff, and has wantonly and without any justifiable excuse subjected her to the greatest possible humiliation and mortification, and thereby caused her inexpressible anguish and pain of both body and mind; all to the great and irreparable loss and damage of the plaintiff, to wit, in the sum of $250,000."

The defendant in argument contends that the amendment is not legally allowable for three reasons: First because the amendment itself is demurrable; secondly because it sets up a new cause of action; and thirdly because, if allowed, it will result in great hardship and injustice to the defendant. The first two grounds present questions of law, proper for consideration now. The last was one proper to be addressed to the discretion of the presiding justice who allowed the amendment. It raises no question of law, and is not open to exceptions. Clark, Applt., 111 Me. 399, 88 Atl. 245.

Disregarding for the present any want of sufficiency in the averments in the additional count, and assuming with the contention of the plaintiff that there is a sufficient allegation of a promise of marriage and of a breach, the question resolves itself to this: Having alleged in the original counts promises of marriage on March 10, 1910, and November 6, 1910, at one place, without averment of special or consequential damages, does the allegation of a promise of marriage in March, 1909, at another place, followed by seduction and pregnancy, before March 10, 1910, set up a new cause of action? We think not.

A contract to marry from its very nature is attended by some peculiar incidents. It has been said that to put a contract to marry on the same footing as a bargain for a horse or a bale of hay is not in accordance with the general feeling of mankind. Hall v. Wright, Ellis, B. & E. 746; 5 Cyc. 998. The peculiarities of the contract affect the present discussion. If these parties ever promised to marry each other, no matter how many times the promise was repeated, no matter at how many places the protestations were renewed, altogether they constituted but one contract. If, then, the defendant finally refused to perform his part of the contract, it was but one breach, and constituted but one cause of action. So that, if the plaintiff on March 10, 1910, and again on November 6, 1910, promised to marry the plaintiff, to show that he also made the same promise in August, 1909, does not, on the face of it, show a separate and independent contract. A contract to marry is evidenced ordinarily by many promises at many different times. Such is the nature of it. But there is only one contract And in the end, if there is a breach, it is only one breach of one contract.

Sometimes causes of action are confounded with...