Buelna v. Ryan

COOPER, C.

This action was brought to recover damages for breach of contract to marry. The case was tried with a jury, and a verdict rendered for plaintiff in the sum of seven liundred and fifty dollars, upon which judgment was entered. This appeal is from the judgment and order denying defendant’s motion for a new trial.

1. It is claimed that the court erred in overruling the •defendant’s demurrer to the complaint. The complaint was filed August 11, 1900. The contract to marry is alleged to have been made on August 10,1898, and the breach or refusal •of defendant to marry the plaintiff is alleged to have occurred on the ninth day of August, 1900. The defect relied upon is, that the complaint alleges that plaintiff was at all times up to and including the ninth day of August, 1900, ready and willing to marry the defendant, and that it does not allege that she was ready and willing to marry defendant after August 9, 1900, up to the time of filing the complaint, August 11, 1900. The complaint was sufficient in the respect pointed out. The breach occurred' on August 9, 1900, at which time it is alleged defendant refused to marry plaintiff, although plaintiff was ready and willing to marry the defendant. It is further alleged in the complaint that the •defendant not only refused to marry the plaintiff on the ninth •day of August, 1900, but that he continued to refuse up to the time of filing the complaint. When the defendant broke "his promise the plaintiff had. a cause of action. The breach occurred then and there. The plaintiff was not required to ■further request the defendant to marry her after she had once done so and he had refused. If the defendant had after-wards repented of his refusal, and before the complaint was filed had. gone to plaintiff and asked her forgiveness, and

[632]

offered to carry out Ms contract, that might present a different question. But nothing of the kind seems to have occurred, for in the answer the defendants “admits that on the said ninth day of August, 1900, he refused to marry said plaintiff at any time, or ever, or at all, and that he still refuses so to do.” Not only this, but the demurrer was general. It did not in any way point out the alleged defect in the complaint.

2. There is no merit in the contention that the cause of action was barred because not brought within two years after the contract was entered into. The cause of action arose by reason of the breach of the contract, and not by reason of the contract. The action was brought two days after the cause of action accrued. It could not have been brought before the breach.