
    Caroline Smyth, Respondent, v. Edward J. Greacen, Appellant.
    
      A complaint alleging that “ the defendant promised, the plaintiff to so marry her on his request ” is demurrable.
    
    A complaint in an action for the breach of a promise of marriage alleged that on a specified date, “in consideration that the plaintiff, who' was then a sole and unmarried woman, at the request of the defendant, agreed and would marry him on such request, the defendant promised the plaintiff to so marry her on his request.;,” that subsequently the plaintiff requested the defendant to marry her, but that the defendant, disregarding his promise and undertaking, refused to do so, to the plaintiff’s damage in the sum of $50,000.
    
      Held, that the complaint did not state a cause of action, for the. reason that the only promise alleged to have been made by the defendant was that he would “ so marry her (the plaintiff) on his (the defendant’s) request,” the effect of which was simply to give the defendant a mere option to marry the plaintiff without any corresponding obligation to do so, and that consequently the contract lacked the mutuality which is necessary where the consideration thereof consists of mutual promises.
    Hatch, J., dissented. -
    Appeal by the defendant, Edward J. Greacen, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 5th day of April, 19Of, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defend- * ant’s demurrer to the plaintiff’s complaint.
    
      William A. Keener, for the appellant.
    
      M. E. Duffy, for the respondent.
   Ingraham, J.:

The contract as alleged is that on or about May 21,1882, “in consideration that the plaintiff, who was then a sole and unmarried woman, at the request of the defendant,.agreed and would marry him on such request, the defendant promised the plaintiff to so marry her on his request.” It is further alleged that, after the making of the said promise and undertaking of the defendant, to wit, on the 20th day of March, 1902, and at divers other places the plaintiff requested the defendant to marry her, but the defendant, disregarding his promise and undertaking, did not nor would he at any time before or after marry her; and the plaintiff demands judgment for $50,000. The complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action, this demurrer was overruled, and the defendant appeals.

The only promise of the defendant alleged is that he would “ so marry her (the plaintiff) on his (the defendant’s) request.”

I am inclined to think that this contract lacks the mutuality Which is necessary to support a contract based upon mutual promises of'the parties. Thus, in the Cyclopedia of Law and Procedure (Vol. 9, p. 327) it is said: “ There are many cases in which, although the offer is definite enough, yet the accepter by merely accepting has really himself promised nothing in return, has not made himself liable for anything, so that, although one is bound,- the other is not, and the engagement lacks what is called mutuality. In suchxa case there is not an enforcible agreement; ” and the author states many .illustrations of contracts that are void for want of the mutuality required. In the American and English Encyclopaedia of Law;(Vol. 7 [2d ed.], p. 114) it is said: Closely related tOj the doctrine of consideration is the rule as.to the mutuality of contract. Mutuality of-contract means that an obligation must rest oil each party to do or permit to be done something in consideration ■ of the act or promise of the other, that is, neither party is bound unless both are bound.” In Tucker v. Woods (12 Johns. 190) it was said“ In contracts, where the promise of the one party is. the consideration for the promise of the other, the promises must be concurrent and obligatory upon both at the same time.”

To. entitle the plaintiff to maintain this action there must be alleged a valid contract. Where the consideration of a contract is based upon mutual promises, to make the contract enforcible there must be the obligations of -both parties to it, and thus,' to hold the defendant, it must appear that he promised to do something.' What was it that "the defendant promised ? He promised to marry the plaintiff at his request or, in other words, that he would marry her when lie made a request that she marry him. This was in substance a mere option to marry the plaintiff, without any corresponding obligation on his part to marry her and there was, therefore, no mutuality in the promise which can sustain the contract.

I-think that the judgment appealed from should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend upon payment of costs in this court and in the court below.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Hatch, J., dissented.

Hatch, J.

(dissenting) : I am unable to agree with the conclusion reached by the court in this case. It may be conceded that the averment of the contract to marry is not only inartificially stated, but is ambiguous in statement to a degree that nearly works its annihilation. I think, however, that a contract to marry may be spelled out of the language used, and that a breach of the contract is averred. The prevailing opinion proceeds upon the ground that the contract stated in the complaint lacks mutuality of promise and is, therefore, insufficient to constitute it an enforcible contract. The language of the averment is: “That on or about'May 21, 1882, in consideration that the plaintiff who was then a sole and unmairied woman, at the request of the defendant, agreed and would marry him on such request.” Stopping here, the averment is that the defendant requested the plaintiff to marry him, and upon such request she agreed to marry him. There is here a clear mutuality of promise stated — upon defendant’s part the request to marry and upon the plaintiff’s part an acceptance of such request. There could not, therefore, be a more complete mutuality of promise than is to be fairly gathered from this language. Does the succeeding part of the paragraph destroy this averment of mutual promise ? It reads: “ The defendant promised the plaintiff to so marry her on his request.” What request ? Evidently the first, that the defendant would marry the plaintiff upon the request which he had made and which she had accepted. Considering the whole of- the paragraph together it is susceptible of the construction that the defendant requested the plaintiff to marry him ; that she accepted and that upon such request and its acceptance he promised the plaintiff to marry her upon the request to marry which he had made. It would seem to follow, therefore, that the last clause does not destroy the first, but is in harmony with it, and is in fact a mere confirmation of the original request which it is averred was accepted and acted upon. If the complaint be susceptibie of this construction, and I thin)c it is, there is expressed mutuality of promise and a valid contract is susceptible of being deduced therefrom. The construction of such a pleading, even though it be conceded that a different conclusion might be reached, is to adopt 'the construction which will support it. (4 Ency. PI. & Pr. 744, and cases cited.) As it is capable of a construction which expresses a valid contract to marry, it is -sufficient to resist the demurrer. , .

The interlocutory judgment should, therefore, be affirmed, with costs, and the defendant be given leave to plead over within twenty days upion the payment of costs in this court and in the court below.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.  