Burtis v. . Thompson

This action was commenced by the plaintiff to recover damages for the breach of a promise of marriage, and she recovered a verdict of $2,000, upon which judgment was rendered, and the same was affirmed by the General Term. The promise was clearly proved, and the defendant, in the early part of October, 1862, expressly refused to marry the plaintiff at any time, and this action was commenced on the 25th October, 1862. The defendant's counsel requested the court to charge the jury, "that the action was prematurely commenced, inasmuch as the defendants' promise was to marry in the fall of 1862, and that season had not elapsed, when this suit was commenced." The court refused so to charge, and the defendant's counsel excepted. The court did charge as follows: "That the absolute refusal of the defendant to marry the plaintiff gave her the right to sue at once." To which the defendant's counsel excepted. The evidence leaves the time very uncertain, when by the contract, the marriage was to occur. The plaintiff states as follows: "No day was fixed for the marriage, but there was a time agreed upon; it was to have taken place in the fall in which he left (of 1862). It was to have been during that fall; I don't recollect that the month was named. I got *Page 248 every thing that was necessary; I did not get dresses to carry out the engagement; I procured some dresses for the express purpose of carrying out the engagement; I told him I was preparing." The defendant testifies in regard to it as follows: "I fixed no particular time to marry; no particular day or month; I might have said in the fall of 1862, I don't remember." It was in thefall of 1862 that the defendant refused to marry the plaintiff, and thereupon this action was commenced. Under the facts of this case, I do not think the court was called upon to hold that, after the unqualified refusal of the defendant in the fall of 1862, to marry the plaintiff, she was compelled to wait until winter before she commenced the action. The season of the year had arrived, when according to the most favorable view of the evidence for the defendant, he had agreed to perform his contract, and had absolutely refused. We do not think the defendant was entitled to defeat the plaintiff's action, and impose upon her the payment of a bill of costs, upon the ground that he had some thirty-six days, at the time the action was commenced, within which to repent, and retract his refusal. Especially so, when at no time, did he evince a disposition to do so. I do not think the facts of this case require us to express an opinion, whether, when by a contract of marriage, a particular time is clearly fixed for its performance, and a party to it absolutely refuses to perform the contract, the other party is compelled to wait until the expiration of such time before commencing an action. The judgment should be affirmed with costs.