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? 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 cause of action enforceable in earthly courts. Then, too, age creeps on all apace, and if the contingency which could make this promise quick with life, as a legal obligation performable presently, was delayed through many weary years, waning desire and ripened judgment might prompt the parties to acknowledge the wisdom of that rule of public policy which forbids long-continued restraint upon marriage, and frowns upon a contract tantamount to an *Page 519 indefinite postponement thereof. And if the roseate dreams of youth survived the blasting frosts of age, decrepitude, mental or physical incapacity, infirmities due to weight of years might be urged as defenses not now available to this defendant.
Counsel for appellant, whose ability cannot be questioned, and whose industry has always afforded welcome aid to this court in the consideration of questions by them presented, have cited cases from other jurisdictions supporting a doctrine at utter variance with the views above expressed. But I am unwilling that a rule so repugnant to my reason and so fraught with uncertainty and temptation, should find implied sanction in a decision here rendered. In one of these cases it was said that such a contract was not a restraint upon marriage because the restraint was terminable at the will of the parties. This reasoning does not commend itself to my judgment. To say that restraint might be ended by mutual consent of the parties is to admit the existence of such restraint while such consent is withheld. To say that parties may obviate an objection based on rules of public policy, is to admit that some new promise or agreement is necessary to legalize a compact between them. In the case at bar could either of the parties compel the other to give that consent essential to terminate the restraint imposed by their original agreement? Could either of them demand the fulfillment of the mutual promise before the stated contingency happened? These questions must be answered in the negative. Any contract, not wholly denounced by rules of law, may be made enforceable and legal by consent of the parties, no matter how absolutely impotent it might be as originally drawn or made. Parties to a verbal agreement falling within the statute of frauds might consent to reduce their agreement to writing. Parties to a lease of premises for an immoral purpose might consent to remove the taint of immorality, or parties to a fraudulent agreement might consent to waive or remove the taint of fraud. But the legality or enforceability of a contract does not depend upon what the parties thereto might have done or may still do, but upon what they did do at the time the agreement was made. The fact that an invalid contract may be made valid by consent of the parties does not prevent either of the parties from withholding such consent, nor does it prevent either of them from urging such invalidity *Page 520 when the other sues to recover damages for the breach of a contract which is nudum pactum.
God alone can tell whether a promise to marry upon the death of a third party will become potent as a personal contractual duty during the lifetime of either of the parties to it. He alone can say whether such a promise will restrain or postpone marriage for one or many years. If a promise to marry was expressly made performable only after the lapse of ten or twenty years, few courts would be found willing to lend legal sanction to an agreement so at variance with public policy. And what finite being can say that a promise of the character here under consideration would become performable even within twenty years? Human laws deal only with finite knowledge and finite things. They do not attempt to probe the secrets of the Infinite, nor make the solution of infinite problems a test of human contractual rights. Hence, a promise to assume marital relations with another cannot be made contingent upon the Infinite will concerning the span of a third life, without creating uncertainty which the finite mind can neither unravel nor dispel.
Waiving these considerations, however, and assuming that the compact here proven amounted to a contract untainted by uncertainty and uncondemned by public policy, I am still unable to see how a cause of action could be stated. True, the promisor still lives and is married to another, but, according to this record, plaintiff is still blessed with the care, love and companionship of her mother. The wife of defendant's present choice may precede that mother to the bourne "whence no traveler returns," or divorce, though suspended for one year by our beneficent laws, may sever the existing nuptial tie, and render respondent free to embark on the matrimonial sea for another voyage before the plaintiff can call upon him to take his place by her side. He may, when the oft-mentioned contingency happens, be willing or even anxious to claim the plaintiff as his bride, and if so how could she complain?
He did not agree to abstain from matrimony until her mother obligingly stepped from the stage of human action, nor did he promise to refrain from loving and cherishing another during the interval which might elapse before his promise could become a present obligation, for the breach of which he could be mulcted in damages. He might feel the need of *Page 521 wifely counsel and comfort during the years and years which might pass away before the plaintiff would be bereft of her parent. True, inconveniences, many and annoying, might result from a marriage ad interim. Adult sons and daughters, fruits of his union with another, might tearfully protest against the fulfillment of his ancient trothplight, but if he should be free of hand, faithful of heart and ready to abide the promise of his virile youth when plaintiff's mother dies, the plaintiff must needs be content. She can only call upon him to perform his promise when the time arrives, and meantime she must forego compensation in ducats for the breach of a promise he has not yet broken. Her mother still lives and she must wait until a daughter's filial love and care no longer avails to stay the hand of the destroyer. If, in the fullness of time, this should happen, during the lifetime of both plaintiff and defendant, she might at least be able to prove a breach of this promise, which, in my opinion, was void ab initio and is void in toto.