Nelson v. Sutton

South Dakota Supreme Court

Nelson v. Sutton

173 N.W. 158, 42 S.D. 124, 1919 S.D. LEXIS 89

CourtSouth Dakota Supreme Court

DecidedJune 24, 1919

DocketFile No. 4550

StatusPublished

This text of 173 N.W. 158 (Nelson v. Sutton) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nelson v. Sutton, 173 N.W. 158, 42 S.D. 124, 1919 S.D. LEXIS 89 (S.D. 1919).

Pincite

Opinion

McCOY, J.

This action was instituted to recover damages for alleged breach of promise of marriage. In substance plaintiff alleged that on December 24, 1917, in consideration that she would marry the 'defendant on request, he promised and agreed [125]*125to marry liter within a reasonable time; that plaintiff, relying upon said promise, remained ready, able, and willing to marrv defendant upon request; that on about the 12th day of August, *918, defendant, contrary to the said promise to plaintiff, married a person other than plaintiff, and that by reason of the failure of defendant to perform his said promise to plaintiff she has-been damaged in the sum of $15,000. To the said complaint the defendant interposed the demurrer that the same does not state facts sufficient to constitute a cause of action against defendant. From an order overruling said demurrer defendant appeals.

[1] Appellant attacks this complaint on two grounds: (il That the complaint does not show- a mutual promise; (2) that no demand of performance is alleged. The language of the complaint, “In consideration that plaintiff would marry defendant on request, the defendant promised and agreed to marry plaintiff,” dearly signifies that plaintiff affirmatively assented to and accepted the said- promise of defendant. The consideration for defendant’s promise being that plaintiff “would marry” him inherently implies mutual consent, mutual agreement. It is not necessary in a pleading that such mutual agreement be alleged in any particular form or words. The complaint in question is in the exact language of the form found on -page 450, vol. 1, Winslow’s Forms, Form No. 1191.

[2] The allegation that defendant has married another person relieved the plaintiff from alleging in her complaint a request or demand on her part that defendant perform said promise. The defendant having made it impossible for him to perform said promise, such a demand or request on the part of plaintiff would have been futile and of no avail. 9 C. J. 345.

Findng no error in the record, the order appealed from is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

McCOY, J.

This action was instituted to recover damages for alleged breach of promise of marriage. In substance plaintiff alleged that on December 24, 1917, in consideration that she would marry the 'defendant on request, he promised and agreed [125]*125to marry liter within a reasonable time; that plaintiff, relying upon said promise, remained ready, able, and willing to marrv defendant upon request; that on about the 12th day of August, *918, defendant, contrary to the said promise to plaintiff, married a person other than plaintiff, and that by reason of the failure of defendant to perform his said promise to plaintiff she has-been damaged in the sum of $15,000. To the said complaint the defendant interposed the demurrer that the same does not state facts sufficient to constitute a cause of action against defendant. From an order overruling said demurrer defendant appeals.

[1] Appellant attacks this complaint on two grounds: (il That the complaint does not show- a mutual promise; (2) that no demand of performance is alleged. The language of the complaint, “In consideration that plaintiff would marry defendant on request, the defendant promised and agreed to marry plaintiff,” dearly signifies that plaintiff affirmatively assented to and accepted the said- promise of defendant. The consideration for defendant’s promise being that plaintiff “would marry” him inherently implies mutual consent, mutual agreement. It is not necessary in a pleading that such mutual agreement be alleged in any particular form or words. The complaint in question is in the exact language of the form found on -page 450, vol. 1, Winslow’s Forms, Form No. 1191.

[2] The allegation that defendant has married another person relieved the plaintiff from alleging in her complaint a request or demand on her part that defendant perform said promise. The defendant having made it impossible for him to perform said promise, such a demand or request on the part of plaintiff would have been futile and of no avail. 9 C. J. 345.

Findng no error in the record, the order appealed from is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

173 N.W. 158, 42 S.D. 124, 1919 S.D. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-sutton-sd-1919.