Haviland v. . Halstead

The action is brought to recover damages for a breach of promise of marriage. The complaint avers such promise to have been made by defendant, and its breach by marrying another person. The defendant had been previously married, and had been divorced from his wife on the ground of his adultery, and the decree of divorce contained a prohibition against his marrying again. The contract of marriage was made in this State, although it appeared that, after it was made, the parties agreed to be married in the State of New Jersey. The defendant moved the court to nonsuit the plaintiff, on the ground that the contract was void by the laws of this State; which motion was denied, and the jury, under the charge of the judge, found a verdict for plaintiff, and judgment thereon was affirmed at General Term. The opinion of the learned judge of the Supreme Court at General Term, holding that this action cannot be maintained, being the only one delivered in that court, so ably and fully discusses the questions presented on this appeal, and arrives at a conclusion so satisfactory, that but little, if anything, remains to be said. The plaintiff avers, in her declaration, that the defendant promised to marry her on request, and a readiness and willingness on her part to do so, and a breach of the contract on his part by marrying another person. It appeared, upon *Page 644 the trial, that both parties were residents and domiciled in this State, and that this contract of marriage was made in this State, and that the plaintiff knew at the time that the defendant had a wife living of a former marriage; that he had been divorced from such former wife, and she knew the cause for such divorce. The Revised Statutes of this State declare that no second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless, 1. The marriage with such former husband or wife shall be annulled or dissolved for some cause other than the adultery of such person; or, 2. Unless such former husband or wife shall have been finally sentenced to imprisonment for life. "Every marriage contract in violation of the provisions of this section shall, except in the case provided for in the next section, be absolutely void." (2 R.S., 5th ed., § 4, p. 227.) The exception in the next section referred to is unimportant here to be considered. This court, in Crapsey v. Ogden (1 Kern., 228), had occasion to consider the validity of a contract of marriage made under similar circumstances to that for the breach of which this plaintiff seeks to recover damages, and held it to be invalid. Judge JOHNSON, in the opinion of the court, says: "The prohibition, then, relates to the case of either party to a marriage whenever and wherever contracted, both the parties to which are living, and prohibits either party to contract a second or other subsequent marriage during the lifetime of the other, except in certain cases specified." He also observed that the party divorced, in that case, on the ground of his adultery, was incapable, by the provisions of the Revised Laws, from marrying again, and that those laws prescribed no limit to his incapacity during the life of his former wife, and that the provisions of the Revised Statutes above quoted continue the same incapacity and impose it upon all others against whom divorces are granted on the ground of their adultery. "There has been no moment of time since he was divorced when marriage was lawful to him in this State, nor has the policy of the law, as evinced in the statutes, at any moment since his *Page 645 divorce, been changed." The question is not here, whether a marriage contracted in another State, and solemnized there between these parties, would be a legal and valid marriage here, but whether, in effect, this plaintiff, a party to an illegal and void contract by the laws of this State, can, in effect, enforce it here. Can the aid of the courts of this State be invoked to award her damages for the breach of a contract more honored in its breach than it would be in its observance? Clearly not; neither can the contract be validated on the ground that it was to be performed in another State. The contract set out in the complaint contained no such element, nor did that sworn to on the trial by the plaintiff herself show that it was made to be performed in another State, and she is the only witness who furnishes any testimony on this point. She says: "When the engagement was made, nothing was said about the place of marriage. The first suggestion about going to New Jersey to be married was after the engagement; can't tell how long; perhaps four or six weeks after. We were to be married in Jersey City. I had no friends or acquaintances there. I was going there at his proposal, and start from there traveling. He said he was not to be married in New York State." We cannot close our eyes to the fact that the idea of the marriage being celebrated in New Jersey was an afterthought, but the contract of marriage, for the breach of which this action was brought, contained no stipulation as to the place of its performance. Even if it should be conceded that, if the parties had proceeded to the State of New Jersey and there been married, that such marriage would have been lawful and binding, yet, as already observed, it is quite another question whether an action can be maintained in the courts of this State for damages upon a breach of a contract made here, and in contemplation of the parties, at the time it was made, to be performed here, and which, by the laws of this State, is prohibited and declared to be void. I think clearly not, and that the plaintiff should have been nonsuited upon the trial. Judgment should be reversed and a new trial ordered, costs to abide the event. *Page 646