Siemers v. Siemers

67 N.W. 802, 65 Minn. 104, 1896 Minn. LEXIS 219

• Court: Supreme Court of Minnesota
• Decided: June 10, 1896
• Docket: Nos. 9857-(122)
• Status: Published

Opinions

COLLINS, J.

The parties to this action are husband and wife, having, been married July 20, 1894. About July 6 he wrote, in German, signed, and delivered to her a purported agreement, which she has lost; but, as testified to on the trial, it read as follows: “I, the undersigned, herewith promise to pay to the Widow Margaretbe Gruenenfelder, on the wedding day when she shall become my wife, the sum of $1,000.” The parties separated soon after the marriage, and, alleging in her complaint that the writing was executed and delivered in consideration of her promise to marry defendant, the plaintiff brought this action to recover the amount claimed to be due. She had a verdict, and defendant appeals from an order denying his motion for a new trial.

The only question we find it necessary to discuss lies at the threshold of the right of action, and is whether the consideration for the agreement, promise, or undertaking was sufficiently expressed in the agreement. The statutory provision is imperative in this state, and no action can be maintained on the writing before us unless it has been complied with. G. S. 1894, § 4209. It is not required that what the consideration was shall be expressly stated, but upon what consideration the promise or undertaking was given must appear with reasonable clearness. There was no express statement of the consideration, and, if it appears at all, it must be gathered from the clause, “On the wedding day when she shall become my wife.” And counsel for plaintiff concede that it can only be found in this clause by construing it as if written, “On the wedding day, ‘if’ she shall become my wife.” The position is that, with this construction, the ■consideration would appear with reasonable clearness and would evidently be plaintiff’s promise to marry, and her marriage to defendant. We are not prepared to say that this would not he correct if the clause had been written as counsel ask to have it construed. But it was not, for the word “when” was used, instead of the word “if.” Upon its face this clause simply fixes the time when the payment shall be made. To be sure, the time would have been fixed with sufficient certainty, had the words “on the wedding day” been used, and nothing further, or had the only expression been “when she becomes my wife.” But it does not follow, because both phrases were written, that we should depart from the language used, by substituting one word for another, thus forcing a construction as to what was intended by the promisor. The reasonable clearness with which the consideration for the agreement must appear, when not expressly stated, cannot be made to depend upon what may be conjectured from that which has been written. The order must be reversed, and a new trial granted.

Order reversed.