Burtis v. . Thompson , 1870 N.Y. LEXIS 46 ( 1870 )

The exception taken by the defendant's counsel to that part of the charge instructing the jury, that the absolute refusal of the defendant to marry the plaintiff gave her the right to sue at once, raises the question whether such refusal will sustain an action commenced thereafter, but before the time agreed upon for the celebration of the marriage. It is a general rule that an action commenced upon a contract before a breach thereof by the defendant is premature and cannot be maintained. Indeed this rule may be regarded as universal, as the idea of maintaining an action for the recovery of damages upon a contract against a party who had not been guilty of a breach would be absurd. The inquiry is, therefore, whether one, who has contracted to marry another at a future day, makes himself responsible for a breach thereof, by notifying the other party that he has determined to put an end to the contract, and that in no event will he ever perform it, before the arrival of the time for performance. This must be held a breach or otherwise as having no effect upon the contract, because if not a breach, the contract will remain in force mutually obligatory upon the parties. Can it for a moment be contended that the plaintiff continued bound by the contract after the receipt by her of this notice from the defendant; and that if thereafter, and before the day fixed for the marriage, she had intermarried with another, the defendant could have maintained an action against her? If not, upon what principle is her defence based? Manifestly upon the ground that she was discharged by the prior breach of the defendant. In Short v. Stone (8 Q.B., 358), it was held, that a man who had promised to marry a woman on a future day, and before that day arrives, marries another woman, is instantly liable to an action for breach of promise of marriage. Upon what principle was this determination based? Clearly that by the marriage of the defendant, he had incapacitated himself to perform his contract with the plaintiff and thereby rendered it certain that such contract never would be performed, or that the marriage with another was such a violation of the obligation to the plaintiff imposed by the contract upon the defendant as, of itself, to constitute a breach relieving her from the obligation to perform, should the defendant's capacity be restored by the death of his wife, before the arrival of the day. In what respect does the present case differ in principle? Here, the defendant renounced the contract and declared that he never would perform it. Does it now lie in his mouth to say that this did not render it certain that he never would perform his contract, or that this was not such a violation of his obligation to the plaintiff incurred by the contract as to exonerate her from its obligation? Any conduct by a party who has promised to marry another, that will render the contract no longer obligatory upon that other, is a violation of the duty and obligation created by the contract, and may therefore be treated by the injured party as constituting a breach. Clearly, notifying the other party of a settled determination not to perform the contract is such an act. Annoying and distressing the feelings of the plaintiff in this way, whether the defendant was in earnest or not, fully justified the plaintiff in treating the contract as broken by the defendant. The plaintiff's counsel insists that, if this is the law to be applied in the present case, it will follow that the maker of a note due at a future day will make himself liable to an action instantly by declaring to the holder that he will never pay it. This conclusion does not at all follow. In the case of such a note the holder is in no respect damnified until payment is withheld after it is due. Until this happens, no legal right of his has been violated by the maker. He has sustained no injury from the declaration of the maker; not so in the present case. The defendant in a legal sense had rendered it certain that the plaintiff had lost absolutely all benefit to be derived by her from the contract. He had wrongfully caused her all the distress of wounded feelings that a breach by him at the day would inflict, which is an essential consideration in estimating her damages. In Hochster v. De Lataur (20 Eng. L. Eq.), it was held that a party who had contracted with another to enter his service as a carrier on the 1st day of June thereafter, became liable to an action before that day by giving notice of his refusal to employ him according to the contract. While not fully prepared to concur in the judgment in this case without further consideration; yet the reasoning of the learned judge, when applied to the facts in the present case, clearly shows the correctness of the charge upon the point under consideration.

The judgment of the Supreme Court must be affirmed with costs.

All concur for affirmance, except LOTT, J., who did not vote.

Judgment affirmed.