Blattmacher v. Saal — 7 Abb. Pr. 409

Majority

p. 409

BLATTMACHER a. SAAL.

Supreme Court, Second District;

General Term, October, 1858.

Headnote

Breach of Promise.^[1] —Cause of Action.

A complaint for breach of promise of marriage is not demurrable because it shows that the defendant was married at the time of the promise, if it appear that the fact was unknown to the plaintiff.

The defendant was married at the time of the promise, and deceived the plaintiff by representing that he was unmarried.

Held, that the agreement was not illegal on her part, and the defendant’s disqualification to perform such a promise was no defence.

p. 410

Appeal from judgment of the City Court of Brooklyn.

The action was by a female for breach of promise of marriage. The complaint alleged that the defendant, being already married, represented himself to the plaintiff to be unmarried, and so contracted a marriage promise with her.

Within a few days of the time the marriage was to have been consummated, she learned the fact of his existing marriage, and commenced thereupon the present action. The defendant demurred, on the ground that as he could not legally make such a promise while married, and a performance of the contract would be illegal by reason of his existing marriage, such an action could not be maintained.

Culver, city judge, overruled the demurrer, and the damages of the plaintiff were assessed by a jury at five thousand dollars. The defendant appealed to the Supreme Court.

G. Milder, for the appellant.

G. L. Ford, for the respondent.

—This complaint states sufficiently the promise to marry by the defendant, and his representation that he was unmarried and competent to marry the plaintiff. It was obviously unnecessary to allege that he knew this representation to be untrue, when he is alleged to have been in fact married. It then avers that the plaintiffj confiding in this representation and promise, continued, and still is unmarried, and that she had no knowledge or information to lead her to believe that the promise and representation of the defendant were false or fraudulent; and it avers a breach of the defendant’s representation and promise, and damages.

This is a good cause of' action, and the plaintiff may recover, either upon the deceit and damage, or upon the contract and promise to marry, which implied and involved a promise and agreement that the defendant was competent legally to mar

p. 411

ry. It is said that the performance of the agreement was impossible and illegal. But this was unknown to the plaintiff, and her agreement was not illegal. It was to marry the defendant, if he was, and believing him to be, unmarried. It cannot be possible that she may not recover the damages which she has sustained in consequence of having innocently made this engagement, and remained unmarried to perform it. The parties are not in pari delicto, and the defendant must restore the plaintiff to what she has lost by his deceit, and his promise to do what he could not legally perform.

What he agreed to do was not an act illegal in itself. If it'had been, no action could have been maintained upon the promise. But he promised to do an act which it was unlawful for him to consummate with the plaintiff, only because he was legally disqualified from doing it; and this was unknown to the plaintiff.

There are two cases in the English courts directly in point. (Wild a. Harris, 7 C. B., 999 ; and Millward a. Littlewood, 1 Eng. L. & E., 408.) The reasoning of the Barons of the Exchequer in the latter case, particularly the opinion of Baron Parke, is entirely satisfactory to us.

The judgment of the City Court must be affirmed; but the defendant may withdraw his demurrer, and put in an answer within ten days after notice of the filing of the remittitur, on payment of all the costs since the demurrer. The judgment may stand as security.