Bailey v. Brown
Before: Chipman, McLaughlin
Synopsis
Nonsuit—Review op Grounds upon Appeal.—Where a nonsuit has been granted by the trial court, the nonsuit must be sustained upon appeal if it might have been properly granted upon any ground, regardless of the particular ground assigned by the trial judge.
Id.—Variance—Nonsuit in Action tor Breach op Promise to Marry —Departure op Proof prom Pleading.—In an action for breach of promise of marriage, where the complaint alleged that defendant agreed to marry the plaintiff upon her request at any time, and the proof showed that he agreed to marry her after and not before the death of her mother, who is still living, there is an essential difference between allegation and proof, which entitles the defendant to a nonsuit on the ground of variance, and failure to prove the contract alleged, though a particular ground was stated by the trial judge which is not here passed upon.
ID.—Recovery Limited to Cause op Action Alleged.—The plaintiff must recover, if at all, upon the cause of action alleged, and not upon some other cause of action which may be developed in the proofs; and where there is a failure to prove the cause of action alleged, and another is proved, if the plaintiff does not obtain leave so to amend his complaint as to make it conform to the proofs, the defendant may have his nonsuit, though the testimony to a different cause of action was admitted without objection.
Id.—Ground Stated by Trial Judge—Invalidity op Contract Proved —Restraint op Marriage—Question Reserved.—The special ground of nonsuit stated by the trial judge that the contract proved is void as against public policy, and as being in restraint of marriage, is reserved and left open as being res integra in this state. [McLaughlin, J., concurring specially with trial judge.]
Opinion — Chipman
[516]
CHIPMAN, P. J.
Plaintiff brings the action to recover damages for the alleged breach of defendant’s agreement to marry her. Upon the conclusion of plaintiff’s evidence the court granted defendant’s'motion for a nonsuit. The appeal-is from the judgment on bill of exceptions.
The grounds of the motion for nonsuit were: 1. That the contract testified to is at fatal variance with that alleged in the complaint; 2. That the contract is void as against public policy; and 3. That there is no breach of the contract shown.
The court granted the motion on the ground that the contract testified to was “against public policy and in restraint of marriage.” No other ground was mentioned in the order made by the court. It is well settled, however, that a nonsuit must be sustained if it might have been properly granted upon any ground. The trial judge may or may not place his judgment upon sufficient grounds. His action will be upheld if it can be justified on any ground, whether made a ground of the motion or not.
(Miller
v.
Wade,
87 Cal. 410, 412, [25 Pac. 487] ;
Davey
v.
Southern Pac. Co.,
116 Cal. 325, [48 Pac. 117].)
The complaint avers that “on request the defendant promised to marry the plaintiff, and that the said promise has been from time to time renewed.”
It appeared from plaintiff’s testimony in chief that the question of marriage between her and defendant was first “talked about” by them in 1896, but it is not shown to have taken any definite form until January 5, 1899. Plaintiff testified: “At that time we were talking about some one being engaged to be married, and he said to me, ‘Let you and me get engaged to be married, ’ and I said, ‘All right, I am willing. ’ ’ ’ On cross-examination she stated the matter more definitely. She testified: “The time agreed upon that we were to be married was after my mother’s death. That arrangement was not made at the time of our engagement on January 5, 1899, it was subsequent. My mother is still liv'ing. . . . After our engagement it was understood that we should not be married until after my mother’s death and that has always been the understanding since that time. . . . I made no immediate plans or preparations for our marriage, which was owing to the fact that we had agreed not to be married until after my mother’s death. ... I said
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