Smith v. Compton

• Decision Date: 16 June 1902
• Citation: 52 A. 386,67 N.J.L. 548
• Parties: SMITH v. COMPTON.
• Court: New Jersey Supreme Court

52 A. 386

67 N.J.L. 548

SMITH

v. COMPTON.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court.)

Error to supreme court.

Action by Ida E. Smith against Charles W. Compton. Judgment for plaintiff, and defendant brings error. Affirmed.

Egbert J. Tamblin and Robert H. McCarter, for plaintiff in error.

Riker & Riker, for defendant in error.

VAN SYCKEL, J. The writ of error in this case is brought to review a judgment of $7,500 recovered by the plaintiff for breach of a contract of marriage. The contract was not denied. The alleged infirmity in the proceedings below is based upon exceptions to the charge of the trial court, and to the admission of evidence offered by the plaintiff. The exceptions will be considered in the order in which they have been presented by the counsel of the defendant.

The defendant pleaded the general issue, and gave notice in writing to the plaintiff, under section 116 of the practice act (2 Gen. St. p. 2552), that he would Interpose the following defenses under his plea of general issue: "(1) The defendant will deny the making of the contract mentioned in the declaration filed in this cause. (2) If it shall be established that the said defendant made the contract mentioned in the declaration herein, the said defendant will insist that subsequently thereto said defendant discovered that the said plaintiff was not a proper person for him to marry, on account of her character, and thereupon said defendant rescinded said contract. (3) If it shall be established that said defendant made the contract mentioned in the declaration herein, the said defendant will insist that subsequently thereto the said defendant became physically ill and infirm, whereby he was rendered incapable, without imminent hazard to his life, to execute or consummate said alleged contract."

1. The court refused the defendant's request to charge the jury that if after the making of the promise to marry the plaintiff, but before the day named for the consummation of the marriage, the defendant, without his fault, contracted or developed a urinary or other disease which kept him under the treatment of a physician, and which would be aggravated by sexual intercourse, and hazardous to his health, such malady was a complete defense to the plaintiff's action for breach of promise. The charge of the court was "that nothing will excuse the defendant for the breach of his promise, except such a disease or complication of diseases as renders the making of the marriage contract, and the consummation of the marriage by marital intercourse, impossible. For instance, a man may upon the day fixed for his wedding be stretched upon his bed in the delirium of fever. Under such circumstances it will be no breach of his contract if he failed to perform it on that day. So be might, conceivably, without fault on his part, be in such a physical state that, while able to go through a marriage ceremony, it might be impossible for him to consummate the marriage by marital intercourse. Where such an impossibility exists, there would be a good defense to an action for failure to perform upon the day fixed; and if the impossibility of going through the marriage ceremony became permanent, as in a case of incurable insanity, or the impossibility of consummating the marriage became permanent, as in a case of incurable impotency, there would be a valid defense to any action whatever for breach of promise. Such an impossibility is not alleged or proved in this case. The extent to which the evidence for the defense goes is that the consummation of the marriage would be attended with imminent hazard to the defendant's life. However unfortunate that may be for the defendant, assuming it to be true, it is no defense to this action. The defendant has made the contract. He has failed to perform it He must pay the damages for that failure. Contracts the performance of which involves Imminent hazard to life are not infrequent. No one would think of excusing a locomotive engineer or the captain of a ship from the performance of his duty because of an unexpected danger to his life in the performance."

It is undeniably the general rule that if a party enter into an absolute contract, without any qualification or exception, he must abide by the contract, and either do the act or pay the damages. Rosenbaum v. Credit System Co., 64 N. J. Law, 34, 44 Atl. 966. In Superintendent, etc., v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373, Mr. Justice Whelpley says: "No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and Inflexible honesty. He that agrees to do an act should do it, unless absolutely impossible. He should provide against contingencies In his contract" This question is elaborately discussed in the opinion of Mr. Justice Depue in the recent case in this court of Middlesex Water Co. v. Knappmann-Whiting Co., 64 N. J. Law, 240, 45 Atl. 692, and the general rule is declared to be, in accordance with the cases of Paradine v. Jane, Aleyn, 26, and Superintendent, etc., v. Bennett 27 N. J. Law, 513, 72 Am. Dec. 373, "that where the contract is express to do a thing not unlawful, the contractor must perform it, and if, by some unforeseen accident, the performance is prevented, he must pay damages for not doing it No distinction is made between accidents that could be foreseen when the contract was entered into, and those that could not have been foreseen." This firmly settled rule must be applied to contracts of marriage, unless it can be shown that such engagements are exceptions to the general rule. This question has been the subject of much discussion in the courts of different jurisdictions, which has resulted in great diversity of opinion. In Shackleford v. Hamilton (Ky.) 19 S. W. 5, 15 L. K. A. 531, 40 Am. St Rep. 166, and in Allen v. Baker, 86 N. C. 91, 40 Am. Rep. 444, the defendant successfully set up in bar of an action for breach of promise to marry that he was afflicted with a venereal disease which rendered him unfit for the married state, without disclaiming any fault on his own part To those cases I am unwilling to give my assent, as I conceive that such a defense is excluded by the well-settled rule that no one can claim to be absolved from the performance of his obligation by reason of his own immoral conduct or his own turpitude, where the other party has not participated in it Where both parties are in complicity in an illegal act or an act of turpitude, the court will not listen to a controversy between them founded upon it, but will leave them in the position in which they have placed themselves. Where a party offers to set up in his own defense his own immoral conduct the court will not permit it in my judgment, it would be more in accordance with correct legal principle to hold that the plaintiff would be entitled to refuse to marry him, and treat his condition as a breach of his contract The cases which hold that the defendant's physical condition in cases of insanity or incurable impotency can be successfully interposed as a bar have no relation to this controversy. No such condition was in evidence, and, if it had been, the charge of the court recognized it as a good defense. The case of Sanders v. Coleman (Va.) 34 S. E. 621, 47 L. R. A. 581, is more liberal to the defendant, and lays down the rule that where the defendant, after the promise, contracts or develops a disease, without fault on his part, which renders it unsafe and dangerous to his health or life to perform his contract, it will constitute a defense to an action against him. On the contrary, Hail v. Wright, 96 B. C. L. 746, main tains that such physical defects cannot be set up in bar to the action.

In the case under consideration the declaration alleges that the promise made was to marry on the 15th day of June, 1900, and both the plaintiff and defendant admit that such was...