Bailey v. Brown , 4 Cal. App. 515 ( 1906 )

Plaintiff brings the action to recover damages for the alleged breach of defendant's agreement to marry her. Upon the conclusion of plaintiff's evidence the court granted defendant's motion for a nonsuit. The appeal is from the judgment on bill of exceptions.

The grounds of the motion for nonsuit were: 1. That the contract testified to is at fatal variance with that alleged in the complaint; 2. That the contract is void as against public policy; and 3. That there is no breach of the contract shown.

The court granted the motion on the ground that the contract testified to was "against public policy and in restraint of marriage." No other ground was mentioned in the order made by the court. It is well settled, however, that a nonsuit must be sustained if it might have been properly granted upon any ground. The trial judge may or may not place his judgment upon sufficient grounds. His action will be upheld if it can be justified on any ground, whether made a ground of the motion or not. (Miller v. Wade, 87 Cal. 410, 412, [25 P. 487]; Davey v.Southern Pac. Co., 116 Cal. 325, [48 P. 117].)

The complaint avers that "on request the defendant promised to marry the plaintiff, and that the said promise has been from time to time renewed."

It appeared from plaintiff's testimony in chief that the question of marriage between her and defendant was first "talked about" by them in 1896, but it is not shown to have taken any definite form until January 5, 1899. Plaintiff testified: "At that time we were talking about some one being engaged to be married, and he said to me, 'Let you and me get engaged to be married,' and I said, 'All right, I am willing.' " On cross-examination she stated the matter more definitely. She testified: "The time agreed upon that we were to be married was after my mother's death. That arrangement was not made at the time of our engagement on January 5, 1899, it was subsequent. My mother is still living. . . . After our engagement it was understood that we should not be married until after my mother's death and that has always been the understanding since that time. . . . I made no immediate plans or preparations for our marriage, which was owing to the fact that we had agreed not to be married until after my mother's death. . . . I said we were to be married when my mother should die." It was admitted by the pleadings that defendant had married another woman shortly before the action was commenced.

It seems clear enough from the complaint that the contract was that defendant agreed to marry plaintiff upon her request at any time. But the contract as testified to was that he agreed to marry her after and not before the death of her mother, who is still living. According to the complaint the marriage was to take place at plaintiff's option and without further condition. Under the contract proven the marriage was not to take place until the happening of an important event over which neither party had any control and which might not happen for many years. Indeed it might not happen at all, for plaintiff's mother might outlive one or both the parties to the action. There is an essential difference here between allegation and proof in which case the rule is that defendant is entitled to a nonsuit on the ground of variance. (Owen v. Meade, 104 Cal. 179, [37 P. 923], and cases there cited.) The rule is sometimes thus stated: that the plaintiff must recover, if at all, upon the cause of action alleged and not upon some other which may appear from the proofs. (Shenandoah M. Co. v. Morgan, 106 Cal. 409, 417, [39 P. 802];Davis v. Pac. Tel. Co., 127 Cal. 312, 321, [59 P. 698].) Unless plaintiff obtained leave to so amend his complaint as to conform to the proofs, the defendant may have his nonsuit, though the testimony was admitted without objection. (Tomlinson v. Monroe, 41 Cal. 94; Elmore v. Elmore, 114 Cal. 516, [46 P. 458].)

There was not only a variance between the proof and the allegation, but a failure to prove the cause of action alleged. It may be said that the point is not now available to defendant, for the reason that he has by his marriage made it impossible for him to perform the contract as proven. We think, however, that it was still incumbent upon plaintiff to make her complaint conform to the proofs by amendment, upon leave of the court, or under the consequences by nonsuit. In any view of the case and whatever the effect of defendant's marriage theallegata and probata must correspond. (Owen v. Meade, 104 Cal. 179, [37 P. 923].)

We express no opinion upon the question as to whether the contract was in restraint of marriage and against public policy. The question is, so far as we have discovered,res integra in this state and, as the judgment may rest upon the point just disposed of, we prefer to leave it open.

Several errors are assigned in the exclusion or admission of evidence and error also as to permitting defendant to amend his answer. There was no evidence excluded which reflected any light upon the contract or which affected the question of variance above discussed. The rulings, even if erroneous, were harmless in view of that question. The amendment of defendant's answer was within the discretion of the court.

The judgment and order are affirmed.

Buckles, J., concurred in the judgment sustaining the nonsuit.