Saxon v. Wood

• Decision Date: 16 March 1892
• Citation: 30 N.E. 797,4 Ind.App. 242
• Parties: SAXON v. WOOD.
• Court: Indiana Appellate Court

4 Ind.App. 242

30 N.E. 797

SAXON

v.WOOD.

Appellate Court of Indiana.

March 16, 1892.

Appeal from circuit court, Fayette county; N. S. GAVIN, Special Judge.

Action by Addie Wood against Walter Saxon for the breach of a promise of marriage. Judgment for plaintiff. Defendant appeals. Reversed.

J. 1. Little and D. W. McKee, for appellant. Reuben Conner and H. L. Frost, for appellee.

BLACK, J.

The appellee, a minor, by her next friend, sued the appellant. Upon the appellant's motion, the next friend was removed. The appellee was permitted to prosecute her suit as a poor person. She recovered judgment for $250. A demurrer to the complaint for want of sufficient facts was overruled. This ruling alone is assigned as error. The complaint, filed in September, 1889, omitting the title of the cause, was as follows: “Addie Wood, plaintiff, by Emma L. Disborough, her next friend, complains of Walter Saxon, defendant, and says that plaintiff was a minor of the age of twenty years on the - day of May, 1889; that, for a period of one year prior to the time of the promise hereinafter alleged, the defendant kept company with, and paid his attentions to, plaintiff as her suitor; that on the --- day of September, 1888, while so keeping company and paying his attentions, defendant solicited plaintiff to have sexual intercourse with him, which she refused to do; that thereupon defendant agreed with and promised her that if she would have sexual intercourse with him, and she should become pregnant from such intercourse, he would at once marry her; that in consideration of such promise and agreement so to marry in case of pregnancy, to which promise and agreement she assented, plaintiff yielded to defendant's solicitations, and did, on four or five occasions, then and on days following, have sexual intercourse with defendant, from which pregnancy resulted, and from which a child was born to plaintiff; that plaintiff was at the time of such promise and intercourse, and still is, unmarried; that, immediately upon the discovery of such pregnancy, plaintiff, who was then willing to marry defendant, requested defendant to fulfill his said promise of marriage, which defendant refused, and still refuses, to do, to plaintiff's damage in the sum of five thousand dollars. Wherefore,” etc.

In an action for a breach of a promise to marry, a consideration for the promise must be shown. There must have been mutual promises to marry. Unless there has been a promise on the part of the plaintiff, the promise of the defendant is void for want of consideration. Adams v. Byerly, 123 Ind. 368, 24 N. E. Rep. 130. In the case before us the agreement of the parties did not consist merely of mutual promises to marry. The promise and agreement to which it was alleged the appellee assented was to marry in case of pregnancy resulting from her future intercourse with the appellant. It is alleged that he solicited her, not to marry him, but to have sexual intercourse with him, and offered marriage as a consideration for such intercourse and consequent pregnancy. Her acceptance of his offer implied her agreement to marry if their intercourse should result in her pregnancy. The consideration of his promise to marry was alleged to be that she should have sexual intercourse with him, and should thereby become pregnant. The marriage which they agreed about was not to take place until she should have so paid for it. A woman cannot maintain an action for her own seduction, when the yielding of her person has been induced by the promise of a pecuniary reward, (Wilson v. Ensworth, 85 Ind. 399;) but she may maintain such an action where she has been prevailed upon to surrender her chastity under the promise of the seducer to marry her, (Lee v. Hefley, 21 Ind. 98;Shewalter v. Bergman, 123 Ind. 155, 23 N. E. Rep. 686, and cases cited.) Her action for seduction is an action of tort provided by statute, whereby she obtains damages for the defendant's wrong, notwithstanding her consent to the act which injures her. An action for a breach of promise to marry is a common-law action founded upon a contract. An action will not lie for the breach of a contract based upon an illegal or immoral consideration. In 2 Kent, Comm. 466, it is said: “The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy or good morals, ex turpi contractu actio non oritur, and no person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity. *** If the contract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not enforce it.” See, also, 2 Chit. Cont. (11 Amer. Ed.) 979; 1 Pars. Cont. 456; Bish. Cont. § 494; 1 Whart. Cont. §§ 370-373. The validity of a man's promise to marry a woman is dependent upon the consideration existing for such promise. Felger v. Etzell, 75 Ind. 417-419. In Hanks v. Naglee, 54 Cal. 51, which was an action for a breach of promise to marry, the plaintiff testified, in substance, that the agreement between the parties was that the plaintiff should then presently surrender her person to the defendant, and that in consideration of such surrender the defendant would afterwards marry her. It was held that, upon well-settled principles, the plaintiff could not recover upon such a contract; that, being a contract for illicit cohabitation, it was tainted with immorality. See, also, Boigneres v. Boulon, 54 Cal. 146; Baldy v. Stratton, 11 Pa. St. 316; Goodal v. Thurman, 1 Head, 208; Steinfield v. Levy, 16 Abb. Pr. (N. S.) 26. If it be said that the complaint showed by implication a promise of the appellee to marry the appellant, yet she is not shown to have made any promise which could serve as a consideration for his promise. Her implied promise was so united with the immoral part of the consideration, and so dependent upon the consequences of the immoral conduct proposed, that it cannot be separated and made to serve as a valid consideration. Steinfield v. Levy, supra; James v. Jellison, 94 Ind. 292;Lodge v. Crary, 98 Ind. 238;Ricketts v. Harvey, 106 Ind. 564, 6 N. E. Rep. 325. The appellee relies in argument upon Kurtz v. Frank, 76 Ind. 594;Wilson v. Ensworth, 85 Ind. 399; and Kenyon v. People, 26 N. Y. 203. Kurtz v. Frank, supra, was an action for breach of marriage contract. The questions presented on appeal arose upon a motion for a new trial. It is said in the opinion of ...