
    Fible vs. Caplinger.
    ERROR TO OLDHAM CIRCUIT.
    Okd. Pet.
    Case 29.
    1. Contracts to marry, like all other contracts which are to be performed by the concurrent acts of the parties, cannot be carried out but by the mutual good faith of the contracting parties; and neither party can be said to be in default,unless the Other party is ■frilling and ready to perform at the time ahd place agreed upon, if any has been fixed. If no tirúó and place have been agréed upon, there is no default, until' au offer is made to fix time and place and to consuntiraate the agreement to marry.
    
      January 8.
    1. Contracts to marry, like all other contracts which are to be performed by the concurrent acts of the parties, cannot be carried but but by the mutual good faith of the contracting- parties; and neither party can be said'to be in default, unless the other party is willing and ready to perform at the time and place agreed upon, if any has been fixed. If no time and place have been agreed upon, there is no default until an offer is made to fix time and place and to consummate the agreement to marry.
    2. Where no time and place are agreed upon for the consummation of a marriage contract, no action can be maintained by either party for a failure to perform, unless the plaintiff show an offer to perform, and a failure of the defendant to comply.
    3. Where the plaintiff fails to set forth a good cause of action in his petition, and the fault is not cured by the answer, a verdict foi? the plaintiff cannot stand; but a new trial should be ordered.
    4. When the petition, in ordinary proceeding, sets forth no cause of action, and the defect is not cured by the answer, advantage maybe taken of the. error'by motion in arrest of judgment or writ of error. (Code of Practice, § 146-7-8-9.)
    
   Chief Justice Hise

delivered the opinion of the court*-

The declaration in this case is upon an agreement to marry, which like all other agreements,- where the undertakings of the parties to it are to be performed at the same time, and where the obligation and duty of either to perform his or her undertaking necessarily depends upon the concurrent performance oí the other, cannot of course be carried out except by the mutual consent, good faith, and cotemporaneous action of both the contracting* parties; hence neither party can be said to be in default or guilty of a breach of such agreement to marry the other, unless th'e other is willing and ready to be married, at the time and place agreed upon for the actual consummation of the marriage; or, if no time and place were, by consent of the parties, fixed for the performance of the contract, neither party can be in default, nor has either violated their pledged faith of broken’ their agreement until the other has proposed and- made the offer to fix the time and place and to fulfil the engagement. Where no' time and platee aré, by the Agreement, fixed for the marriage to be solemnized, such agreements come under the rule which govern contracts to be performed upon special demand,where one party covenants to perform certain things which in their nature cannot be done unless the other party shall first do certain other things by which alone the performance is rendered practicable; as if one undertake to erect and construct an edifice for another within a given time, with the materials' to be furnished by the latter, the undertaker commits no breach of such agreement unless the other party shall first furnish the materials.

2. tVhere no time an¿U place are agreed upon for the consummation of a marriage contract, no action can be maintained fey either party for a failure to perform, unless the plaintiff show an offer to perform, and afailure of the defendant to eomp!y-

In this case the plaintiff has not attempted to charge the defendant upon a contract of marriage to be performed on any given day or at any designated place, and unless actually requested' by plaintiff to perform his engagement, and unless the plaintiff was not only .ready and willing but offered to perform the contract on her part, and unless upon such offer the defendant failed or refused to comply, he has not committed a breach of his engagement, and is not responsible in this, action. For if time and place be not fixed, both parties may be ready and willing to marry, but neither may or can be married to the other until one notify the other when and where the marriage may take place, and propose and offer to be married at such time and place. The plaintiff in this case has not averred in her petition that she ever offered to perform the engagement at all, or proposed to defendant to fix time and place and carry out and •execute the contract; and although she avers that she was ready and willing to marry the defendant, yet he, the defendant, may have been also ready and willing to marry her, and might have done so if she had informed him of such readiness and willinghess, and offered to perform the contract on her part. The petition, therefore, does not contain a good cause of action, and the defendant’s demurrer should have been sustained.

3. Where the plaintiff fails to set forth a good cause of action iñ his petition, and the fault is not cured by the answer, a verdict for the plaintiff cannot stand; but a new trial should be ordered.

4'. When' the petition, in ordinary proceeding, sets forth no cause of action, and the defect is not cured by the answer, advantage may be taken of the error by motion in arrest of judgment or writ of error. (Code of Practice, § 146— 7-8-9:).

The failure of the plain tiff’s petition to present Si-good cause of action is not cured by the verdict of the jury, because such failure in «the petition was not supplied by the answer of defendant, which relies upon, as matter of defense, the alleged fact that the plaintiff was an infant, and that her father and natural guardian had refused his consent to the marriage; and secondly, that by mutual consent the marriage contract was rescinded. This answer' admits only that there had been a marriage engagement between the parties; but it does not, either in form or in substance, expressly or by implication, admit that the plaintiff herself had ever offered to perform it, or that upon such offer he had refused. On the contrary the answer negatives any such idea; for if the contract was cancelled or dissolved by consent, plaintiff could not offer to perform an agreement which no longer existed, nor could defendant have refused th® plaintiff’s offer to perform an engagement which had been voluntarily abandoned by agreement of the parties. There was nothing, therefore, in the answer to' eure the defect in the petition; nor in fact Was there-any evidence whatever in the cause showing-the offer by the plaintiff, or refusal by the defendant, to perform the engagement.

If a-petition be so defective that it does not, in fact, show a cause of action, or state facts enough to warrant a recovery, such defect is not cured after verdict by any of the provisions of our statutes of jeofails; where the other pleadings do not, in' fact, cure the defect, and where the verdict does not settle upon the proof of the fact omitted or defectively stated; and such defect, under the Code of Practice, may be taken advantage of by demurrer or by answer; and although the objection be not taken by demurrer or by answer-, yet it is not waived, and may be taken advantage of by motion for an- arrest of the judgment, or by writ of error. (See Code of Practice, page 31, and § 146, § 147, § 148, and § 149.)

Reed and Gazlay, for plaintiff; Harlan and Rodman, for defendant.

Wherefore the judgment is reversed, and cause remaanded, with direction that the defendant’s demurrer to plaintiff’s petition be sustained, and for further proceedings conformable to this opinion.  