Edmonds v. Hughes

Opinion op the court by JUDGE BARKER Affirming. The appellee, Flora Edmonds, instituted this action in the Todd circuit court to recover damages of the appellee for a breach of his contract to marry her. The facts stated in the petition constitute a valid cause of action. Appellee, in his answer, admits his promise to marry appellant, as alleged in the petition, but pleads as a defense: First. That the consideration for the contract was the agreement by appellant to then and there have illicit intercourse with him, and that his-promise was made upon no [564] other consideration. Second. That at the time the promise was made by him he believed the appellant to be a virtuous woman; that he did not at that time or prior thereto know that she was, or had been, an immoral or unchaste woman, or that she had been guilty of lewd or lascivious conduct with other men, but .since his promise he has learned, and now charges it to be true, that she was prior thereto, then, and now unchaste, and that she has been guilty of adultery with other men. Third. That at the time he promised to marry her she was a woman in full possession of the power of procreation, and was able to bear children; that after the promise was made she voluntarily submitted to and permitted an unnecessary surgical operation to be performed upon her body, by which she was rendered unable to procreate or bear children, and will forever remain so. Without examining the pleadings minutely, it is sufficient to say that the issues were made upon these three defenses of appellee. In Beach on the Modern Law of Contracts, section 1553, it is said: “A contract made in. consideration of future illicit sexual intercourse is void, and the woman can not recover under such contract, although it has been performed on her part.” In Parsons on Contracts, star page 66, the rule is thus stated: “But it would seem on general principles to be a good defense [to an action for breach of promise to marry] that the promise was made on condition that the plaintiff would commit fornication with the defendant; for such a promise might be void as founded upon an illegal consideration.” In Baldy v. Stratton, 11 Pa., 316, the court say: “A promise to marry on condition of illicit intercourse is illegal, and a consideration that will not support a promise. A promise to marry on an illegal consideration is virtually void.” In the case of Judy v. Sterrett, 52 Ill. [565] App., 265, it was held that “a promise of marriage in consideration of illicit sexual intercourse is void.” In the case of Hanks v. Naglee, 54 Cal., 52, 35 Am. Rep., 67, it is said: “Upon'well-settled principles the plaintiff should not have recovered upon a contract of this character [to marry], as, being a contract for illicit cohabitation, it is tainted with immorality. ... It was confessedly not a case in which the defendant, taking advantage of the trust and confidence which may be fairly supposed to exist between parties who have in apparent good faith made mutual promises of marriage, has abused the confidence of the female, and induced her to yield him favors which she might have otherwise withheld. The agreement to> yield her person to him was one appearing to have been deliberately made in advance, and when there had been no promise of marriage.” In Addison on Contracts, vol. 2, star pages 838, 839, it is said: “If, subsequent to the making of the contract to marry, one of the parties, being bodily diseased, becomes unfit for the performance of the most important duty of marriage, the party so unfit is not thereby entitled to treat the contract as dissolved, the other party still desiring its performance; but the latter may break off the engagement, for if a man, by disease, accident or mutilation, becomes impotent-, he can never maintain an action against a lady for refusing-to marry him.” In the case of Berry v. Bakeman, 44 Me., 164, it is said: “Proof that the plaintiff is a loose and immodest woman, and that the defendant broke his promise bn that account, is a bar to the action, unless it should also appear that the defendant was aware of this when he made the promise, in which case it is no defense.” In Addison on Contracts, vol. 2, star pages 838, 839, it is said: “If the woman, at the time of her betrothment, was of loose 'and immodest character, and this was unknown at the time to the man who prom [566] ised to marry her, the latter is entitled as soon as he discovers her real character to break off the engagement. General reputation of want of chastity must be established in such actions; or, if particular'instances of misconduct are relied upon, they must be fully proved. If the circumstances, whatever they may be, were known to the other contracting party, there is then no fraud or deceit in the matter, and he has no ground for refusing to complete his engagement.” In Parsons on Contracts, vol. 2, star page 65, in enumerating the defenses to action of breach of promise to marry, it is said: “So the bad character of the plaintiff, or his or her lascivious conduct. The cases generally exhibit this defense where the woman is plaintiff; but it ought with equal justice, and on moral as well as on public grounds, to be permitted to the woman when she is defendant. It was so held in the case of Braddeley v. Mortlock, and undoubtedly would be so held in this country. If the defense be general bad character, evidence of reputation is receivable; for, says Lord Kenyon, ‘character is the only point in issue; public opinion, founded on the conduct of the party, is a fair subject of inquiry.’ If the defense rests on specific allegations of misconduct, these must be strictly proved; and if the defendant knew the general bad character, or the specific misconduct, before making the promise, they constitute no defense.” We conclude, then, from these authorities, that each of the three defenses set up by the appellee in his answer, if true, constitute a valid bar to the cause of action contained in the petition. These principles of law were all fairly presented to the jury in the instructions, which after a careful examination, we think were as liberal to the appellant’s interest as .she was entitled, and that the evidence justified the verdict rendered by the jury. Wherefore the judgment is affirmed.