Page:Harvard Law Review Volume 32.djvu/717

IGNORANCE OF IMPOSSIBILITY AS TO CONSIDERATION 68 1 rendered himself liable to a tort action for deceit — a view of the matter which later commended itself to an American court. ^ In deciding the case of Wild v. Harris for the plaintiff, Wilde, C. J., held that the promise alleged was to marry the plaintiff within a reasonable time; and that the plaintiff's counter-promise to marry the defendant within a reasonable time was, for one thing, "not absolutely impossible of performance, for his wife might have died within a reasonable time, and so he would have been in a condition to perform his promise to the plaintiff." This means of outflanking the fortress of legal impossibility thus seized upon by the English judge did not meet with the approval of the court in Noice v. Broum,^^ on the theory that the practical effect of it was to make the law countenance an agreement in derogation of the marriage relation, and establish a rule contrary to public policy. This would, doubtless, be the judgment of most courts to-day." An agreement to marry after the death or divorce of a present spouse would be just as void, just as impossible for the law to consider seriously or permit, as would be under the same circumstances an agreement to marry presently. But however that may be, it is with the latter kind of case, and not with the former, that I wish to deal. In order that the discussion may be more clear, let us take as our model the following A B case: A, a married man, intending to deceive B, an unmarried girl ignorant of A's existing marriage, promises to marry B presently, and in return for his promise requests and obtains B's promise to marry him presently. The question is, can there be found in such a combination of facts any consideration upon which a contract can be erected that is binding upon A, and if so, what is it that B does that constitutes such consideration? The usual answer, or an essential part of it, as has already been pointed out, is that B is ignorant of A's existing marriage, and that therefore an action ex contractu lies.^^ When so stated, it seems ' Pollock V. Sullivan, 53 Vt. 507, 38 Am. Rep. 702 (1880). See also Blattmacher v. Saal, 29 Barb. (N. Y.) 22 (1858). Opposed to these two cases, which seem to the writer to take the right view, are Coover v. Davenport, i Heisk. (Tenn.), 368 (1870), and Kelley v. Riley, 106 Mass. 339 (1871). '" 38 N. J. L. 228 (1876); 2 WiLLisTON, Cases on Contracts, 543. " Brown v. Odill, 104 Tenn. 250, 56 S. W. 840 (1900). ^ Coover v. Davenport, i Heisk. (Tenn.), 368, 377: "As plaintiff did not know that defendant was married, it was a lawful contract on her part," etc.