Bailey

Plaintiff brings the action to recover damages for the alleged breach of defendant’s agreement to marry her. Upon the conclusion of plaintiff’s evidence the court granted defendant’s'motion for a nonsuit. The appeal-is from the judgment on bill of exceptions.

The grounds of the motion for nonsuit were: 1. That the contract testified to is at fatal variance with that alleged in the complaint; 2. That the contract is void as against public policy; and 3. That there is no breach of the contract shown.

The court granted the motion on the ground that the contract testified to was “against public policy and in restraint of marriage.” No other ground was mentioned in the order made by the court. It is well settled, however, that a nonsuit must be sustained if it might have been properly granted upon any ground. The trial judge may or may not place his judgment upon sufficient grounds. His action will be upheld if it can be justified on any ground, whether made a ground of the motion or not. (Miller v. Wade, 87 Cal. 410, 412 , [ 25 Pac. 487 ] ; Davey v. Southern Pac. Co., 116 Cal. 325 , [ 48 Pac. 117 ].)

The complaint avers that “on request the defendant promised to marry the…

I concur in the order affirming the judgment. In my opinion the evidence clearly demonstrates that the plaintiff could not recover even if a complaint was filed containing the most elaborate averments in consonance with the proof. According to plaintiff’s testimony the defendant only agreed to marry her upon the death of her mother, who is still in the land of the living. This event might not occur during the lifetime of either of the contracting parties. The contingency upon which the fulfillment of the promise rests is so far beyond the control of the parties, and is so uncertain, that no valid contract could exist. How can it be said that either of these parties are bound by a promise which neither might ever be called upon to fulfill? How could a contract to marry exist when the promisor might never be under a present obligation to marry the promisee, or vice versa f If this good mother should live to a very ripe old age, as mothers sometimes do, no human could tell what might happen. Either of the parties might be waiting for the other, harp in hand, beyond this vale of tears, or both might pine away and die before this promise of future connubial bliss could ripen into a…