Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

........

II. That afterwards, on the....... day of...... .., 187., the plaintiff, at the request of the defendant, delivered to him the said sum of money so deposited by A. B., which money the defendant claimed; and that the plaintiff did not know to whom the same belonged.

III. That afterwards, on the said. . . . . . . day of..... 187., the plaintiff, at the request of the defendant, agreed with the defendant that he would defend any action which the said A. B. should commence against him for the said money; and the defendant, in consideration of the premises, then promised the plaintiff to indemnify and save him harmless from the consequences of such an action.

IV. That the said A. B., on the... .day of....... 187., commenced an action against the plaintiff in the [state the court], for the recovery of the said sum of money, of which the defendant then had notice.

V. That the plaintiff, with the privity of the defendant, and to the best of his ability, defended the said action; but the said A. B., on the........day of........... .day of........, 187., at a general term of said court, recovered a judgment against the plaintiff in said action, to the amount of....... dollars; and, afterwards, an execution was issued upon the said judgment, against the property of the plaintiff, who, on the....day of.... ., 187., paid the said sum of.....dollars, and, also, the sum of... dollars, for officers' fees, and other expenses upon the said writ. And the plaintiff was also by means of the premises, compelled to pay other charges and expenses, for costs and disbursements and counsel fees, amounting to the sum of... ...dollars, in defending the said action.

VI. That the defendant has not paid the same to the plaintiff.

[Demand of Judgment.]

30. Voluntary Payment.-Under a bond conditioned to indemnify the obligee against being compelled by law to pay a second time a sum claimed by and paid to the obligor, if the obligee is subsequently sued by two other persons separately claiming the same sum, and interpleads such plaintiffs by suit in chancery, and by leave obtained pays the money into court, this is not a breach of the bond, for it is a voluntary payment: Massey v. Schott, Pet. C. Ct. 132.

[blocks in formation]

The plaintiff complains, and alleges:

I. That heretofore, to wit, on the......day of......, at in consideration that the plaintiff, being then sole and unmarried, at the request of the said defendant, had then promised the said defendant to marry him, the said defendant, on request, the defendant promised to marry the plaintiff within a reasonable time [or if a time certain was agreed upon, state the time].

II. That the plaintiff, confiding in said promise, has always since remained and continued, and still is sole and unmarried, and has been for and during the time aforesaid, and now is ready and willing to marry the defendant.

III. That the defendant refuses to marry the plaintiff, although a reasonable time elapsed before this action [or although she, on the......day of... ..., requested him so to do], to her damage in the sum of........ .. dollars.

[Demand of Judgment.]

1. Action. That a man may maintain an action for breach of promise to marry, see Harrison v. Gage, 1 Ld. Raym. 386.

2. Birth of Child.--An action for breach of promise of marriage will not be made to survive by proof that the promisee had a child, born out of wedlock, now living, and that the defendant is the father of said child: Hovey v. Page, 55 Me. 142.

3. Consideration.-Marriage is a consideration as valuable as money, if bona fide: Magniac v. Thompson, 1 Bald. 344.

4. Contract Mutual.-The action on a promise to marry is sustainable only when the contract is mutual: 1 Rol. Ab. 2215; Wells v. Padgett, 8 Barb. 323. And though one of the parties be an infant, the contract is binding on the other: 2 Stra. 937; Bac. Abr. Infaut, 7 Cow. 22. But an executor cannot sue: 2 M. & S. 408; see, also, Hovey v. Carter, supra.

5. Damages. Damages for pecuniary loss may be recovered, as for loss of time in preparing for marriage: Smith v. Sherman, 4 Cush. 408. As well as for suffering and injury to prospects in life: 1 Pars. on Contr. 513. And seduction will aggravate the breach: Wells v. Padgett, 8 Barb. 323; Leavitt v. Cutler, 37 Wis. 46. Special damages for impaired health may be alleged and proved, if resulting from the breach: Bevell v. Powell, 13 Barb. 183. Whatever damages the plaintiff may have suffered in consequence of the defendant's refusal to marry her, she is legitimately entitled to recover; and these

damages are to be estimated from the circumstances of the parties, and the situation in which the plaintiff is left by the defendant's refusal to perform his contract: Tubbs v. Van Kleek, 12 Ill. 449. The interposition of the defense that the character of the plaintiff is unchaste, even if unsuccessful, ought not, per se, to aggravate the damages, unless it is interposed in bad faith, from malice, wantonness, or recklessness: Powers v. Wheatley, 45 Cal. 113.

6. Deceit and Injury.-Deceit and injury are presumed from the breach, and need not be alleged: Leopold v. Poppenheimer, 3 Code R. 39.

7. Declaration of Defendant.-In an action for breach of promise of marriage, the declaration of the defendant that he would make a good home for the plaintiff, made at the time, and as part of his conversations with the plaintiff, which are declared on as establishing the promise of marriage, are admissible in connection with the other conversations, as tending to prove the contract: Button v. McCauley, 5 Abb. Pr. (N. S.) 29.

8. Promise, when Void.-An agreement by a man to marry when a divorce should be decreed between himself and his wife in a suit then pending, is contrary to public policy, and void: Noice v. Brown, 38 N. J. L. 228. No action can be maintained for a breach of promise of marriage made in consideration of illicit sexual intercourse between the parties: Steinfield v. Levy, 16 Abb. Pr. (N. S.) 26.

9. Promise Implied. That a promise of marriage may be implied from circumstances, see Hotchkins v. . Hodge, 38 Barb. 117.

10. Promise after Seduction.-A promise of marriage made after seduction has been effected, and in consequence thereof, is not thereby rendered invalid. It is not liable to the objection that it encourages immorality, because the wrong has been already perpetrated: Hotchkins v. Hodge, 38 Barb. 117.

11. Request.-Positive proof of request and refusal is never required; but they may be inferred from circumstances, and the request may be made by the father or other friend, whose authority may be inferred from existing relations: 32 Ill. 312. The plaintiff must, however, aver a special request or an offer to perform. A bare allegation of readiness and willingness is not sufficient: 1 Littell (Ky.) 234; Greenup v. Stoker, 3 Gilm. 212; but see par. 15, post.

12. Seduction.-Where a seduction is accomplished by means of a promise of marriage on the part of the seducer, a consent of the female to marry the seducer, amounting to a mutual promise on her part to marry, may be implied: People v. Kenyon, 5 Park. Cr. 254.

13. Time Alleged.—Where the promise is special, as "after the death of the defendant's father," it should be so declared on, with proper averments: 2 Peake, 103; Chitt. on Contr. 426. But it is not necessary that the time of marriage should be specified: Carth. 467. But if the promise was to marry on a particular day, it should be so stated: 2 Chitt. 324; see 1 Chitt. 409; 1 M. & P. 239.

[blocks in formation]

The plaintiff complains, and alleges:

I. and II. [Same as preceding form.]

III. That the defendant afterwards married a certain other person, to wit, one A. B., contrary to his said promise to the plaintiff.

[Or, III. That at the time of making said promise, the defendant represented to the plaintiff that he was unmarried, whereas, in fact, he was then married to another person, of which fact the plaintiff had no notice.]

[Demand of Judgment.]

14. Married Man Liable.-A single woman, to whom a man, in fact married, represents that he is single, and promises marriage, may maintain an action against him for his breach of promise: 7 C. B. 999; 1 E. L. & E. 408; Blattmacher v. Saal, 29 Barb. 22; 7 Abb. Pr. 409.

15. Request.—In case of the marriage of defendant, a request need not be alleged: 1 Pars. on Cont. 544: Short v. Stone, 8 Q. B. 358; Caines v. Smith, 15 Mees. & W. 189; compare Lovelock v. Franklyn, 8 Q. B. 371; Turner v. Baskin, 2 W. Law M. 98. The averment of marriage dispenses with request: Short v. Stone, supra.

16. Statute of Frauds.-A parol contract of marriage that may be performed at any time within three years, and consequently within one year is not within the Indiana Statute of Frauds; but if not to be performed within one year, it is within the statute: Paris v. Strong, 51 Ind. 339.

CHAPTER VII.

SALE AND DELIVERY OF CHATTELS.

No. 287.

i. Seller against Purchaser, for Refusing to Receive and Pay for Goods. [TITLE.]

The plaintiff complains, and alleges:

I. That on the......day of...... 187., at... the plaintiff and defendant entered into an agreement, in substance as follows [state the agreement].

II. That the plaintiff duly performed all the conditions of said contract on his part, and was, on the ...... day of [the day and place of delivery], ready and willing to deliver said property, and tendered the same to the defendant.

., 187., at

III. That defendant refused to accept said goods, or pay for them, pursuant to said agreement, to the damage of the plaintiff dollars.

[Demand of Judgment.]

1. Constructive Delivery.-A statement of circumstances constituting a constructive delivery as equivalent to an actual delivery, should be unequivocal: Bailey v. Ogden, 3 Johns. 399. A delivery to the purchaser of a city weigher's certificate of sugar lying on the wharf, is a sufficient delivery: Glasgow v. Nicholson, 25 Mo. 29. The delivery of the export entry is not a delivery of the article sold: Johnson v. Smith, Anth. N. P. 81. Mere delivery of a bill of parcels is not sufficient: Smith v. Mason, Anth. N. P. 225. The delivery of an order on the custom house, when the buyer fraudulently intends not to pay, knowing his inability to do so, is no delivery: Ives v. Polak, 14 How. Pr. 411. The delivery, with indorsement, of a shipping broker's acknowledgment of the receipt of merchandise to be transported, drawn in the form of a bill of lading, but not signed by the carrier, is sufficient to constitute a constructive delivery of merchandise to one who made advances upon the faith of it: 8 How. U. S. 284; 4 Comst. 497; Rowls v. Deshler, 28 How. Pr. 66. An order on the depositary of goods sold, given by the vendor to the vendee, constitutes a delivery as between themselves: Sigerson v. Harker, 15 Mo. 101. The transfer of warehouse receipts operates as a constructive delivery of the goods: Burton v. Curyea, 40 Ill. 320.

2. Delivery of Less Quantity.-If the vendor delivers a less quantity of goods than he contracted to deliver, the vendee is at liberty to refuse to accept, and if he accepts a part, he may return that, and refuse to accept less than the whole, but having received and retained a part, he cannot refuse to pay for the part received: Polhemus v. Heiman, 45 Cal. 573; Shields v. Pettee, 2 Sandf. 262.

3. Delivery.-Selecting goods, and putting them aside in the seller's shop, held sufficient delivery: Brewer v. Salisbury, 9 Barb. 511. The delivery of the keys of a warehouse in which goods sold are deposited is a sufficient delivery: Wilkes v. Ferris, 5 Johns. 335; Gray v. Davis, 10 N. Y. 285. Merely taking samples does not amount to a delivery: Johnson v. Smith, Anth. N. P. 81; Carver v. Lane, 4 E. D. Smith, 168. There can be no delivery so long as anything remains to be done by the seller to ascertain the quantity or quality of the goods: Cunningham v. Ashbrook, 20 Mo. 553; Outwater v. Dodge, 7 Cow. 85; Caruthers v. McGarvey, 41 Cal. 15. Or so long as anything remains to be done by either party to ascertain the price: Ward v. Shaw, 7 Wend. 404. Cumbersome and heavy articles may be delivered without actual removal. Delivering a schedule, followed by an agreement on the part of the buyer with the depositary for keeping charge of them, is sufficient: Dixon v. Buck, 42 Barb. 70.

4. Delivery, how Alleged.-Tender and refusal of goods on the part of the principals is equivalent to delivery, and may be specially averred: Kemble v. Wallis, 10 Wend. 374. A performance of all the conditions on his part may be alleged.

5. Growing Crops.-A growing crop, until ready for the harvest, cannot by itself become the object of a delivery, and can only be delivered into the possession of the vendee by delivering to him the possession of the land

« ΠροηγούμενηΣυνέχεια »