We have now to consider, first, contracts to marry; then contracts in relation to a future marriage; then contracts in restraint of marriage; and, lastly, the contract of marriage. SECTION I. CONTRACTS TO MARRY. Contracts to marry at a future time were once regarded by the English courts with disfavor. They "should be looked upon," says Lord Hardwicke, "with a jealous eye;" and Lord Mansfield quoted this remark with approbation. (a) But it is now perfectly well settled, both in England and in this country, and indeed has been for a considerable time, that these contracts are as valid and effectual in law as any; and that, in actions upon them, damages may be recovered, not only for pecuniary loss, but for suffering and injury to condition and prospects. (b) The reason is obvious; marriages can seldom be celebrated simultaneously with betrothment, or engagement; a certain time must intervene; and it would be very unjust to leave parties who suffer by a breach of a contract of such extreme importance wholly remediless. (a) Holcroft v. Dickinson, Carter, 233; Key v. Bradshaw, 2 Vern. 102; Wood house v. Shepley, Atk. 539; Lowe r. Peers, 4 Burr. 2230. In this last case Lord Mansfield says: "All these contracts should be looked upon (as Lord Hardwicke said in Woodhouse . Shepley) with a jealous eye; even supposing them clear of any direct fraud." This particular phrase is not found in Lord Hardwicke's decision as reported, but the opinion may be gathered from what he says. (b) Boynton v. Kellogg, 3 Mass. 189; Paul v. Frazier, id. 71; Wightman v. Coates, 15 id. 1; Morgan v. Yarborough, 5 La. Án. 317. 1 See Short v. Stotts, 58 Ind. 29, which declared that an action for breach of a marriage contract existed at common law long before the fourth year of James I.-K. The promises must be reciprocal; (c) but they need not * 61 be made at the same time; for if an offer be made, though retractable until acceptance, yet if not retracted, it remains open for acceptance for a reasonable time, and when accepted the contract is complete. An apparent exception as to this necessity of reciprocity is taken where the promise to marry is made by deed. There, as the seal implies consideration, no other is strictly necessary; but the covenantee must be ready, able, and willing to receive the covenantor in marriage. The plaintiff need not aver or prove a promise on his or her part; and if the plaintiff be a woman, she need not aver or prove an offer by her; it is well enough without saying obtulit se at all, because she was semper parata. The man is ducere uxorem. "(d) "The modesty of the sex is considered by the common law," says Lord Coke. "It can hardly be expected that a lady should say to a gentleman, 'I am ready to marry you, pray marry me.' "(e) 1 A woman is doubtless bound by such a covenant as well as a man; yet it would be regarded with more suspicion; and if such an obligation were obtained by a man who gave no corresponding promise on his part, and it were obvious that he intended to bind her but leave himself at liberty, it would probably be set aside in equity. Where the promise is mutual, it was long since settled that an action for a breach of the contract may be maintained against the woman. (f) This action cannot be maintained against an infant; and some question has been made whether an infant can maintain this action; because the promise of the infant being void or voidable, the contract is not mutual, and is without consideration. (c) Hebden v. Rutter, 1 Sid. 180, 1 Lev. 147; Harrison v. Cage, Carth 467; Stretch v. Parker, 1 Roll. Abr. 22 pl. 20. 347. (d) Holcroft v. Dickenson, 1 Freem. (e) Seymour v. Gartside, 2 Dow. & R. See Wells v. Padgett, 8 Barb. 323. In Moritz v. Melhorn, 13 Pa. 331, and in 57. Wetmore v. Wells, 1 Ohio St. 26, it is decided, that where the defendant's promise is proved, the female may prove her own acts and declarations in order to show her assent. See also Morgan v. Yarborough, 5 La. An. 317. (f) Harrison v. Cage, 1 Ld. Raym. 386; s. c. 1 Salk. 24. 1 But the plaintiff must aver and prove her readiness and willingness to marry the defendant. Graham v. Martin, 64 Ind. 567. — K. 2 Rush v. Wick, 31 Ohio St. 521; Warwick v. Cooper, 5 Sneed, 659. In England it is held that the section of the Infants' Relief Act, which makes ineffectual ratification by an infant after coming of age (37, 38 Vict. c. 62, s. 2), covers promises to marry. Coxhead v. Mallis, 3 C. P. D. 439; Ditcham v. Worrall, 5 C. P. D. 410. But a new promise of marriage made after majority is of course binding, and if the defendant's words may bear this construction, the question whether his words amounted to a fresh promise or were only a ratification of a former promise may be left to the jury. Northcote v. Doughty, 4 C. P. D. 385. 65 [BOOK III. But in many cases an infant may bring an action for breach of contract against the adult, where the adult could not sue *62 the infant for a breach on his or her part. It seems to be distinctly settled, that this is so in the case of a contract to marry. (g) * The very words, or time, or manner of the promise need not be proved; for it may be inferred from circumstances. It may be that this inference is sometimes made too easily, and that juries, or perhaps courts, justify the reproach, that feeble evidence is sometimes held sufficient to prove such a promise. But it must be remembered that such engagements are often, if not usually, made without witnesses, and are not often reduced to writing. A requirement of precise and direct testimony would facilitate fraud, more perhaps than in any other class of contracts, and fraud that might work extreme mischief. It has therefore been wisely decided that the contract may be inferred from the conduct of the parties, and from the circumstances which usually attend an engagement to marry; as visiting, the understanding of friends and relations, preparations for marriage, and the reception of the party by the family as a suitor. 1 But it also held that preparations by the plaintiff in the absence of the defendant, and not connected with him, are inadmissible as evidence. (gg) Where the promise by the defendant was proved, the demeanor of the plaintiff, being that of a betrothed woman, was held to be sufficient evidence of her promise. (h) And consent (g) Holt v. Ward, Stra. 937; Willard v. Stone, 7 Cowen, 22; Hunt v. Peake, 5 Cowen, 475; Pool v. Pratt, 1 D. Chip. (Vt.) 252. See Frost v. Vought, 37 Mich. 65; Reish v. Thompson, 55 Ind. 34. (99) Russell v. Cowles, 15 Gray, 582. (h) In the case of Hutton v. Mansell, 3 Salk. 16, tried before Holt, C. J., the promise of the man was proved, but no actual promise on the woman's side, yet he held, that there was sufficient evidence to prove that the woman likewise promised, because she carried herself as one consenting and approving the promise of This question was much dis the man. cussed in the case of Wightman v. Coates, It 1 Wagenseller v. Simmers, 97 Pa. 465. Homan v. Earle, 53 N. Y. 267, declared that the promise may be inferred from acts without any formal words; and where the defendant continues in acts by which the plaintiff to the defendant's knowledge has been induced to believe in an engagement to marry, the defendant cannot deny such engagement; whether the latter's acts are intended and regarded as serious being a question of fact for the jury. See Richmond v. Roberts, 98 Ill. 472, where a newspaper article entitled "Love, the Conqueror," given by the defendant to the plaintiff previous to the time of the alleged contract, was allowed to be read in evidence. K. of parents in the presence of a daughter, with the absence *63 of objection on her part, is held to imply her consent; (i) nevertheless language used to third parties, amounting to an expression of intention to marry the plaintiff, but not uttered in the presence of the plaintiff, does not in general prove a promise to marry.) But statements made to a father, who had a right to make such inquiries and to receive a true answer, especially where corroborated by visits and the conduct of the parties, are not only sufficient evidence of a promise, but although the statement of the defendant is of a promise to marry the plaintiff in six months, and the count is upon a promise to marry generally, or in a reasonable time, the jury may infer from the statement a general promise to marry. (k) It has been contended that the promise should be in writing, under the clause in the 4th section of the statute of frauds, which provides that no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage; but the courts of England, after once so deciding, () have since taken a distinction, which is certainly a very nice one, between promises to marry and promises in consideration of marriage. (m) This clause is not generally contained in *64 the statutes of frauds of our States; but it has been held in this country, that a promise to marry at the end of five years, is within that clause of the statute which requires that a promise not to be performed within one year from the making shall be in writing. (n) A contract to marry, without specification of time, is, as we have seen, a contract to marry within a reasonable time; each party having a right to reasonable delay, but not to indefinite in evidence, and the course of his conduct towards the plaintiff, they were satisfied that there was a mutual understanding and engagement between the parties to marry each other, they might find for the plaintiff. In Honyman v. Campbell, 2 Dow. & C. 282, the Lord Chancellor said: "I deny that courtship, or an intention to marry however plainly made out, can constitute, or, in the language of the Scotch law, is equipollent to a promise. There must be a promise, and the promise must be mutual and binding on both parties; for the law attaches on the promise and not on the intention. But still courtship is a most material circumstance, when we have to consider whether there was a promise. When we consider how natural it is that lovers should marry, and that marriage is usually the result of courtship, and that in these cases mutual promises are so common, although courtship, or intention, will not supply the place of a promise, yet they come so near, that if these are once made out, we get on a good way towards our journey's end." See also, Southard v. Rexford, 6 Cowen, 254; Weaver v. Bachert, 2 Penn. St. 80; Blackburn v. Mann, 85 Ill. 222; McCrum v. Hildebrand, 85 Ind. 204; Homan v. Earle, 53 N. Y. 267. (i) Daniel v. Bowles, 2 C. & P. 553. (j) Cole r. Cottingham, 8 C. & P. 75. (k) Potter v. Deboos, 1 Stark. 82. (1) Philpot v. Wallet, 3 Lev. 65. (m) Cork v. Baker, Stra. 34; Harrison v. Cage, 1 Ld. Raym. 387. (n) Derby v. Phelps, 2 N. H. 515. See Short v. Stotts, 58 Ind. 29. postponement; nor to delay without reason or beyond reason. 1 If both parties delay the fulfilment of the contract unreasonably, it may be considered as abandoned by mutual consent, in the absence of evidence to negative this inference. 2 These contracts, like most others, may be on condition, and if the condition be legal and reasonable, the liability of the parties under it attaches as soon as the condition is satisfied. (o) But it may easily happen that the condition shall be such as to be void, leaving the contract valid; as if it be frivolous or impossible, and evidently introduced by one party in fraud of the other. And it may also happen that the condition shall make the contract void. Thus contracts to marry at the death of parents or relations from whom money is expected, and who are kept in ignorance of the contract, are regarded with great dislike by courts, and would probably be declared void, unless the circumstances cleared them from suspicion. (p)3 And if the condition were entirely uncertain, or very remote, the contract might be regarded as made in restraint of marriage, as it might prevent either party from marrying for a very long, or for an indefinite period; and it would be held void on that ground. (q) If the promise is to marry on request, a request should be 65 alleged and proved; but this is not necessary when the defendant is incapacitated from marrying by his or her own act. () The defences which may be urged against an action to enforce a promise to marry are very numerous. Consanguinity within (0) Cole . Cottingham, 8 C. & P. 75; Atchinson v. Baker, Peake, Ad. Cas. 103. (p) Woodhouse v. Shepley, 2 Atk. 539; Drury v. Hooke, 1 Vern. 412, was a bill for relief from a marriage brokage bond. The marriage had been brought about without the consent of the woman's parents. The Chancellor "for that reason alone decreed the bond to be delivered up, terming it a sort of kidnapping.” (9) Hartley v. Rice, 10 East, 22. This was an action on a wager that the plaintiff would not be married in six years. It was endeavored to distinguish this from other contracts in restraint of marriage, on the ground that it was not for life, but for a time certain; it was held, however, that a restraint for a time certain falls within the same policy of the law, and makes the contract void. (r) Short v. Stone, 8 Q. B. 358; Caines v. Smith, 15 M. & W. 189; Harrison v. Cage, 1 Ld. Raym. 386; Millward v. Littlewood, 1 E. L. & E. 408; s. c. 5 Exch. 775. 1 After a reasonable time elapses, and one party without cause refuses to perform, the other is justified in breaking the engagement and bringing suit. Bennett v. Beam, 42 Mich. 346. — K. 2 Wagenseller v. Simmers, 97 Pa. 465. 3 In Frost v. Knight, L. R. 7 Ex. 111, however, the defendant promised to marry the plaintiff upon the death of his father, and having subsequently refused absolutely to do was held liable even before the father's death. But a promise to marry by one already married, when a divorce has been obtained, is against public policy. Noice v Brown, 38 N. J. L. 228; 39 N. J. L. 133; Paddock v. Robinson, 63 Ill. 99; cf. Millward v. Littlewood, 5 Ex. 775. |