32 Iowa 409 | Iowa | 1871
I. The first point urged by appellant in argument is, that “ the verdict was unwarranted by the evidence.” The answer admits the contract of marriage averred in the petition, but avers that, by the agreement of the parties, the time for the consummation of the marriage had been postponed until the spring of 1871. The petition alleges that it was agreed'between them that the marriage should be solemnized during the latter part of November or December, 1870, and that defendant, about the 11th day of November, 1870, informed plaintiff that he was going to dispose of his property and leave the State, and go to some of the southern States, and did not want to perform his marriage contract, and would not do so; and that, against the consent of plaintiff, defendant at that time peremptorily refused to marry her as he had agreed. Upon the issue thus made, whether the defendant had renounced the contract and refused to many the plaintiff as averred in the petition, or whether the time for the consummation of the marriage had been postponed as stated in the answer, the evidence was conflicting. The jury have decided the issue (and, as we think, according to the preponderance of the evidence), and we will not disturb the verdict on this ground.
The averment of the petition is, that about the 11th day of November, 1870, defendant renounced his agreement to marry plaintiff. Evidence, therefore, that such renunciation occurred on the fifteenth of the month, or even later, would support a verdict under the averment. And, in the view of the case which follows, the verdict would not be against the law, though it was averred positively that the renunciation or breach occurred on the eleventh of the month, instead of about that time.
The paragraph of the charge complained of was in substance that, if the contract was to be performed in the latter part of November or in December, and that no particular deny was fixed for the solemnization of the marriage, then, as it might have been performed at any time during such time, so it-might also be broken at any time during such period, and that plaintiff was not bound to wait until the whole time had elapsed before bringing her action.
The question made.and argued by counsel for appellant,
Strictly and technically speaking there can be no breach of contract until the time for performance has arrived, and yet this court has recognized it as “ a well-settled rule of law, that, if before the time of performing the contract arrives the promisor expressly renounces the contract, the promisee may treat this as a breach of said contract, and may at once maintain an action in respect thereof.” Crabtree v. Meessersmith, 19 Iowa, 179, and casssp cited.
Appellant’s counsel have called our attention to the case of Frost v. King, recently decided in the court of exchequer, England, in- which it is held that, where the defendant had promised the plaintiff to marry her on his father’s death, p nd before that event happened he renounced the contract, the plaintiff could not treat this renunciation as a breach of the contract, and at once maintain an action in respect thereof. <„■ ¡l— i 1 ■ , ■' /
This case cited and relied on by counsel would seem to be in conflict with the decision in Crabtree v. Meessersmith, supra, and yet the conflict is more apparent than real, for the learned judge in the opinion in Frosts. Ki/ngyafter an elaborate argument to show that there can be no technical breach of a contract prior to the time for performance, and especially in contracts to marry, says: “ It seems to me, therefore, upon the whole, that we cannot sustain this verdict without falling into the error of mistaking the renunciation for the breach of the contract.
But I think we may hold that -the defendant, by renouncing the contract, has entitled the plaintiff to elect whether she will accept the renunciation, thus putting an end to the contract, and bring a special action on the case
The rule announced in Crabtree v. Meessersmith, supra,
It is not, that,'if before tbe time for performing tbe contract arrives, the promisor expressly renownces tbe contract, that tbis constitutes a breach of the contract, but that in ease of such renunciation by tbe promisor tbe promisee may treat this as a breach, and may at once maintain an action in respect thereof. Not that such renunciation, prior to tbe time for performance, is a technical breach, but that tbe party injured may so treat it and bring bis action at once for the injury. Tbe rule is founded upon correct principles of justice.
Taking tbe case before us for an illustration, .if tbe plaintiff could not have brought her action until the full time, in which tbe contract was to be performed, bad elapsed, tbe defendant might have disposed of bis property, and left the State, and, as tbe evidence tends to show, be bad intended to do. An action brought after be should thus leave tbe State would afford tbe injured party no remedy. To require her to thus wait would be a mockery of justice, i
Again, it is urged by appellant that, inasmuch as contracts to marry are subject to many vicissitudes, tbe estimation of damages becomes difficult if an action is allowed to be maintained prior to tbe time for performance; that tbe man who is to-day of good name and social position, and of ample fortune, may in a day or a week have lost all. How then, it is asked, are plaintiff’s damages to be estimated? Tbe difficulty, if any exists, of estimating tbe damages, is not sufficient reason for denying to tbe plaintiff any redress whatever for the wrong and injury inflicted. It is not necessary in tbis connection, however, to lay down what tbe true rule of damages is. It is sufficient to say that there was evidence tending to show that withm tbe time in which tbe contract was to have been performed, it was renounced and repudiated by tbe defendant, and
IY. Appellant complains of the tenth instruction, which is in these words:
It is argued that this instruction tended to mislead the jury on the question of damages; that they are told by the instruction, “ that, if the defendant is a rich man, of good standing, damages should be found accordingly; but if he is a poor man, of humble station, that fact should make no difference in the damages.”
We think the instruction is not fairly susceptible of the interpretation given to it by appellant’s counsel; and, taken in connection with the eighty and ninth instructions of the court, fairly expresses the law. They are as follows:
“ 8. If you find that plaintiff is entitled to recover, then the amount thereof is to be determined by you, from all the circumstances in the case, without any special proof as to the amount, and the amount of the damages should include indemnity for the injury to the feelings, affections and wounded pride of plaintiff, as well as the loss of marriage.”
“ 9. In determining tbie amount of damage on account of loss of marriage, you should take into consideration the rank and condition of the parties, the estate of the defendant and all the facts proven in the case, and award damages commensurate with the injury inflicted.”
Appellant complains of these instructions as erroneous. It is not urged that an offer to execute the contract after a refusal would be a defense to the action, but it is insisted that it should go in mitigation of damages, and that it would have forbidden exemplary damages in the case. Exemplary damages were not asked for, nor is there any thing in the instructions of the court that would per > mit the jury to give such damages. The court directed, in case of recovery, compensatory damages only, such an amount as would indemnify the plaintiff for the injury to
Appellant does not complain that the damages are excessive.
■ This disposes also' of the point of appellant’s argument wherein he complains of the giving of the fourteenth and fifteenth instructions, in which the’ court told the jury what would amount to a refusal on plaintiff’s part to accept a subsequent offer of defendant to perform. If there was error in these instructions, it was error without prejudice. The plaintiff had a right to refuse his offer to fulfill his promise, made after his renunciation of the contract, and after suit brought, so that the error, if any, was upon an immaterial matter.
The judgment is
Affirmed.