145 A. 912 | Pa. | 1929
Argued March 19, 1929. The pleadings and evidence in this case reveal that Mrs. Olive Campbell, a resident of the Borough of Butler, a widow, at the time 44 years of age, appellant, on or about February 7, 1925, entered into an agreement of marriage with William M. Fairman, a widower, then 89 years old, a citizen of the Borough of Punxsutawney. On the same date Fairman executed and delivered to appellant, in consideration of the engagement referred to, a paper, clearly testamentary in form and substance, as follows:
"When I pass out of this life, I give and direct Thirty Thousand ($30,000) Dollars worth of my bonds now deposited in the Punxsutawney National Bank be given to Mrs. Olive Campbell." *371
Later, on May 22, 1925, when attacked by serious illness, Fairman went to the residence of Mrs. Sadie C. Taylor, in Punxsutawney, appellant's sister, remaining there until May 27th, and was then removed to Adrian Hospital in Punxsutawney, where he died May 31, 1925. The day following his arrival at the Taylor home, appellant appeared there and remained in the house of her sister until Fairman was removed to the hospital. While both were at the Taylor home, Fairman executed and gave to appellant a promissory note dated May 22, 1925, payable to her order, sixty days after date, saying to Mrs. Taylor, according to her testimony: "I am making the note to her in place of the other paper," referring to the one of February 7, 1925. Eight days later he died at the hospital, the marriage not having been performed. This note forms the basis of the present action against Fairman's estate. At the close of the testimony offered by plaintiff, defendant moved for a nonsuit, which was granted, and on this appeal the only error assigned is the court's refusal to reverse its action. With variation in terms, both parties present that question for consideration as the sole one involved; and the court below concludes that the only question for its determination is whether the promise to marry made February 7, 1925, is, without more, a valid consideration to support the note given May 22, 1925, and finds there was a total failure of consideration. We are of the opinion that on the pleadings and proofs before us the question as set forth by the court covers the precise point in controversy and controls the case and was rightly answered in the negative.
We are at the start left in no doubt as to appellant's contention in the controversy, and the correctness of the finding of the court below is emphasized by the plainly mistaken theory of the case upon which her counsel claims an erroneous conclusion by the court below; they state in their brief of argument that the "transaction between the parties — the engagement of marriage — was *372 complete when she, in good faith, promised to marry the maker of the note in consideration of his (in equal good faith) giving her the note." This theory however is entirely at variance with the facts as revealed by the evidence. As we understand appellant's contention, expressed in the above quoted words, her promise to marry was coincident with the giving of the note of May 22d. It certainly was not, and in the entire range of plaintiff's evidence we find no assertion to that effect. The fact is undisputed that the engagement of marriage was made and concluded on or before February 7, 1925, more than three months previous to execution of the note of May 22d, of the same year; and if that contract to marry was induced by any consideration, it was the consideration represented by the testamentary paper of the same date, which later was revoked and rendered void, as the evidence establishes, by the declaration of Fairman that he made the promissory note to appellant in lieu of the other paper.
The mistaken theory of appellant is serviceable here, since it at once brings to the front the important question, namely, What possible ground, established by the proofs, can be found upon which to base the claim that the concluded promise of marriage of February 7th was the inducing consideration for the note of May 22d? The law requires the consideration to be valuable to support an executory contract; slight loss however, or inconvenience to the promisee upon his entering into the contract, or like benefit to the promisor, is deemed a valuable consideration: Conmey v. Macfarlane,
We have, as the learned judge of the court below sets forth, no Pennsylvania decisions involving the precise situation which here confronts us. In lieu of such decisions he quotes at length from authorities directly in point from other states, which we adopt here. The case *374
of Blanshan v. Russel et al.,
That is the situation here. The engagement between appellant and Fairman was an agreement made months previous to the giving of the obligation. It was a subsisting agreement at that date, and no reasonable mind *375 can assent that the note was executed by Fairman to secure a promise already gained or to renew a promise that remained unbroken. Nor, as we have said, does appellant show that the delay of marriage, for which in fact she was responsible, resulted in loss or inconvenience that might be sufficient to constitute a consideration, and on this point the learned court below emphatically declares: "It was not claimed on the trial that the plaintiff had given up any position she then held or was likely to obtain, or that she made any arrangements to change her abode, or that she had in any way altered her household arrangements, or even that she had announced the proposed marriage and was humiliated by its never having taken place, or indeed any circumstance whatever to show that she had altered her conduct in the slightest degree from the course she would have pursued if the engagement had never been entered into. . . . . . . She seeks to recover the sum of thirty thousand dollars for nothing except a bare naked promise to marry, which, so far as we know, she never made any effort to perform. She does not even aver in her pleadings that she was ready to marry the deceased or had ever offered to do so."
Since we sustain the finding of the learned court below that the evidence does not show a valid consideration to support the note in question, we shall refer only briefly to the aspect of the case noted at length by that court, namely, that the contract to marry, being executory, failed of completion by the death of Fairman, on the legal principle that a contract fails where the continued existence of something essential to the performance is an implied condition of the contract and such thing has ceased to exist: 5 Page on Contracts (2d ed.), page 4713. On this point we may adopt the language of Wilson v. Nolen,
Judgment affirmed.