Smyth v. Greacen

Ingraham, J.: The contract as alleged is that on or about May 21,1882, “in consideration that the plaintiff, who was then a sole and unmarried woman, at the request of the defendant,.agreed and would marry him on such request, the defendant promised the plaintiff to so marry her on his request.” It is further alleged that, after the making of the said promise and undertaking of the defendant, to wit, on the 20th day of March, 1902, and at divers other places the plaintiff requested the defendant to marry her, but the defendant, disregarding his promise and undertaking, did not nor would he at any [276] time before or after marry her; and the plaintiff demands judgment for $50,000. The complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action, this demurrer was overruled, and the defendant appeals. The only promise of the defendant alleged is that he would “ so marry her (the plaintiff) on his (the defendant’s) request.” I am inclined to think that this contract lacks the mutuality Which is necessary to support a contract based upon mutual promises of'the parties. Thus, in the Cyclopedia of Law and Procedure (Vol. 9, p. 327) it is said: “ There are many cases in which, although the offer is definite enough, yet the accepter by merely accepting has really himself promised nothing in return, has not made himself liable for anything, so that, although one is bound,- the other is not, and the engagement lacks what is called mutuality. In suchxa case there is not an enforcible agreement; ” and the author states many .illustrations of contracts that are void for want of the mutuality required. In the American and English Encyclopaedia of Law;(Vol. 7 [2d ed.], p. 114) it is said: “ Closely related tOj the doctrine of consideration is the rule as.to the mutuality of contract. Mutuality of-contract means that an obligation must rest oil each party to do or permit to be done something in consideration ■ of the act or promise of the other, that is, neither party is bound unless both are bound.” In Tucker v. Woods (12 Johns. 190) it was said“ In contracts, where the promise of the one party is. the consideration for the promise of the other, the promises must be concurrent and obligatory upon both at the same time.” To. entitle the plaintiff to maintain this action there must be alleged a valid contract. Where the consideration of a contract is based upon mutual promises, to make the contract enforcible there must be the obligations of -both parties to it, and thus,' to hold the defendant, it must appear that he promised to do something.' What was it that "the defendant promised ? He promised to marry the plaintiff at his request or, in other words, that he would marry her when lie made a request that she marry him. This was in substance a mere option to marry the plaintiff, without any corresponding obligation on his part to marry her and there was, therefore, no mutuality in the promise which can sustain the contract. I-think that the judgment appealed from should be reversed, [277] with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend upon payment of costs in this court and in the court below. Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Hatch, J., dissented.