Davis v. Slagle

Richardson, Judge, delivered the opinion of the court. This was an action to recover damages for a breach of promise of marriage. The petition averred that about the 15th December, 1857, “ the defendant, in consideration that the plaintiff, then being sole and unmarried, at the request of the defendant, faithfully promised to marry the defendant, did then and there undertake and faithfully promise to marry the plaintiff; that, confiding in the said promise and undertaking of said defendant, plaintiff has remained and continued and still is sole and unmarried, and has always been and still is ready and willing to marry the defendant; that, though a reasonable time has elapsed since said promise and undertaking for the defendant to marry plaintiff, and although requested so to do, he has wholly neglected and refused and still does neglect and refuse,” &c. There was no demurrer, and the first question arises as to the sufficiency of the petition on the motion in arrest of judgment. It is objected that the petition is fatally defective in omitting the averment of a special request or an offer by the [603] plaintiff to perform the contract on her part. It is a general rule that in contracts requiring mutual and concurrent acts to be performed at the same time, neither party can maintain an action against the other without showing that he has performed or offered to perform his part of the agreement; but in actions of this kind a declaration like the one in this case has been held after verdict to be good. In Seymour v. Gartside, 2 Dow. & Ry. 55, the declaration was substantially like this petition, which averred “ that plaintiff, confiding in the promise, had always remained unmarried, and was still ready and willing to marry the defendant; and that although a reasonable time for the defendant to marry the plaintiff had elapsed, yet the defendant, not regarding his promise, did not nor would within such reasonable time marry the plaintiff, but had hitherto wholly neglected and refused so to do.” It was held by the court of king’s bench that the declaration after verdict was sufficient, without averring that the defendant had any notice of the plaintiff’s readiness, or averring any request made to the defendant to marry the plaintiff, or any averment of a special refusal. (2 Saund. Pl. & Ev. 347.) There was no error in giving the first, second and third instructions, because it was admitted in the answer that the defendant had refused to marry the plaintiff, and the allegation in the petition that a reasonable time had elapsed for the defendant to marry the plaintiff was not denied in the answer. The defendant attempted in his answer to excuse his abandonment of the plaintiff by stating on the record that her character for virtue was bad. The plaintiff was allowed without objection to repel by proof this assault on her reputation, and as the defendant entirely failed'to show any thing against it, the imputation on her virtue, deliberately made and sworn to, was a circumstance that aggravated the damages. (Southard v. Rexford, 6 Cow. 254.) A nominal verdict would have endorsed the slander and ruined her reputa [604] tion, and the jury under the circumstances of this case were properly told in the fifth instruction to take into consideration, in estimating the damages, the injury to the plaintiff’s character. With the concurrence of Judge Scott, the judgment will be affirmed. Judge Napton absent.