200 Ky. 609, 34 A.L.R. 80
Court of Appeals of Kentucky.
Oct. 26, 1923.
ACTION: Reversed, with directions to grant new trial.

Appeal from Circuit Court, Bell County.
Action by Elizabeth Nolen against R. D. Wilson's Administrator.
Judgment for plaintiff, and defendant appeals.

On the 17th day of January, 1920, R. D. Wilson executed his note, payable to appellee one day thereafter, for $5,000, in consideration of their mutual promises to each other, then and theretofore made, to marry.

He retained the actual custody of the instrument, and it remained in his safety deposit box at the bank at all times between that and his death in March, 1920; but the findings of fact hereinafter referred to show there was in truth a constructive delivery of the same to appellee.

In March, 1920, R. D. Wilson died intestate, unmarried and without issue, and thereafter appellant qualified as his administrator.

This is an action by appellee on that note, wherein she alleges there was a valuable consideration for the same, and in another paragraph that the consideration therefor was work and labor theretofore performed by her for Wilson, and an additional consideration was that, at and before the execution thereof, the plaintiff, at the special instance and request of said Wilson, had agreed and promised to marry him, and had been at all times thereafter, until the death of said Wilson, ready, able, and willing and desirous of complying with her said promise. There is, however, no averment that the agreement to marry was to be carried out at any particular time or day, nor is there any allegation of failure or refusal upon the part of Wilson to comply with their mutual promise then made to each other, nor that he voluntarily by self- destruction or otherwise placed it out of his power to comply with his agreement.

The answer denied the delivery of the note to the plaintiff; denied the same was executed in consideration of work or labor theretofore performed, and affirmatively averred that the same was wholly without consideration.

By agreement a jury trial was waived, and the action tried by the judge of the court, and the plaintiff requested the court at the conclusion of the trial to separate his findings of fact and his conclusions of law. Accordingly the court, before entering judgment, found the facts to be (1) that the consideration for the execution of the note was that at the time and prior thereto, and continuously thereafter, until the death of Wilson, he and the plaintiff were mutually promised and engaged to marry each other; (2) that while the note was never actually delivered to the plaintiff, Wilson retained the custody thereof with the intention on his part that same should become the property of the plaintiff, and that he would thereafter actually deliver the same to her.

The conclusions of law separately stated are: (1) That the facts recited show a constructive delivery of the note by Wilson to the plaintiff; (2) that the note was based upon a valuable consideration, to wit, the promise of the plaintiff to marry Wilson, which promise was in existence at and prior to the date of the note, and continued in existence until the death of Wilson.

Thereupon the court entered a judgment for the plaintiff on the note, and the defendant at the time excepted to the findings of fact, the conclusions of law, and the judgment of the court, and prosecutes this appeal.

There was no motion for a new trial, nor is there in the transcript any bill of evidence or exceptions, except as stated.

It will be observed that the court in its findings of fact wholly ignored the issue that the consideration for the note was for service theretofore rendered, and we will therefore assume either there was no evidence on this issue, or, if there was, it was unfavorable to the plaintiff; and will therefore treat the findings as having reference to the sole consideration shown by the evidence.

As we interpret the court's conclusions of law, its judgment was primarily based upon the view that the promise of the plaintiff to marry Wilson was at the time, and yet is, a sufficiently valuable consideration to support the note and uphold the judgment. That a promise of a woman to marry a man is at the time a valuable consideration is not to be denied; but the question raised here goes far deeper than that. Although the promise at the time is a valuable consideration, yet, where the contract between the parties is from its very nature an executory one, and contemplates future performance as the consideration, and before the time comes for that consideration to pass, and before it has passed, unforeseen things happen which are not brought about by either of the parties involved, and it thereby becomes impossible for the contract to be performed by either party, then there has come about a state of things not contemplated by either, and which, relating back to the original transaction, destroys the original consideration, or, as it is sometimes said, brings about a total failure of consideration.

It was not the bare promise of appellee to marry decedent that induced the execution of the note; it was the benefits he expected to realize in the future when that promise was carried out. The contract on its face was executory in its nature; the benefits to be derived by the obligor in the note as its consideration were all to be performed by appellee in the future, and before the time came for their performance, and by the intervening death of Wilson, not superinduced by any act of his, the carrying out of her promise--the real consideration--was made impossible of performance.

In this case, it was the culmination of the things desired by Wilson that induced him to sign the note, and not the mere promise of appellee that she would marry him. He looked forward to the happiness her society would bring him, and to the comforts of a home over which she would preside, and to the rearing and training of his children. These were the things that were in his mind, and were the things that induced him to execute the note. Manifestly a contract between two people to marry at some time in the future contemplates the continued existence of both such people, and with that contemplation in view, if by any intervening cause for which neither is responsible, the consummation of their desires becomes impossible because of the death of either, then any obligation entered into by either in consideration of that agreement is wholly without consideration.

A general agreement to marry, with no time fixed, is an agreement to marry within a reasonable time; and as there is nothing in the pleadings alleging any default upon the part of Wilson in carrying out his promise, and as the note was executed only about two months before the death of Wilson, it is apparent that the expiration of a reasonable time had not come at the time of his death. The agreement between the parties appears to have been that Wilson would pay to her, at a time in the future, $5,000, in consideration of which she at some time in the future, not fixed, would become his wife. In other words, in a reasonable time in the future they were to be married and their whole agreement consummated. But before the expiration of that reasonable time, without fault upon the part of either, his death made it impossible for the contract to be carried out. It was from its nature such a contract as no one could carry out for him after his death, and his death having occurred at a time when there was no default upon his part, the direct question is presented whether there was a total failure of consideration.

"While services to be rendered in the future can furnish no consideration for the giving of a note, and if the payee relies simply upon a contract for future services as furnishing the consideration for the note, he must show a valid, binding contract; yet the payee of such a note may show that the note was given in consideration of future services to be rendered, and that such services were rendered, thus furnishing the consideration. In the intermediate time the obligation of the contract or promise is suspended; for until the performance of the condition of the promisee, there is no consideration, and the promise is nudum pactum; but on the performance of the condition by the promisee it is clothed with a valid consideration, which relates back to the promise, and then becomes obligatory." "Where the consideration of a contract totally fails, that is, when that which was supposed to be a consideration turns out to be none, the contract, as far as the immediate parties are concerned, may be avoided, and the same rule applies as if there never had been any consideration."

Certainly the contract in question was made in contemplation of the continued existence of the life of Wilson, and it is on its face such a contract as could not be performed by his assignee or personal representative.

Without further elaboration, we are impelled to the conclusion that as Wilson died at a time before the contract was to be performed, and his death made its performance wholly impossible, and its performance being the sole consideration for the execution of the note, there was a total failure of consideration, and the judgment should have been for the defendant.

The judgment is reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith.

Whole court sitting.

Ky.App. 1923.


255 S.W. 267, 200 Ky. 609, 34 A.L.R. 80


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