(dissenting) : I am unable to agree with the conclusion reached by the court in this case. It may be conceded that the averment of the contract to marry is not only inartificially stated, but is ambiguous in statement to a degree that nearly works its annihilation. I think, however, that a contract to marry may be spelled out of the language used, and that a breach of the contract is averred. The prevailing opinion proceeds upon the ground that the contract stated in the complaint lacks mutuality of promise and is, therefore, insufficient to constitute it an enforcible contract. The language of the averment is: “That on or about'May 21, 1882, in consideration that the plaintiff who was then a sole and unmairied woman, at the request of the defendant, agreed and would marry him on such request.” Stopping here, the averment is that the defendant requested the plaintiff to marry him, and upon such request she agreed to marry him. There is here a clear mutuality of promise stated — upon defendant’s part the request to marry and upon the plaintiff’s part an acceptance of such request. There could not, therefore, be a more complete mutuality of promise than is to be fairly gathered from this language. Does the succeeding part of the paragraph destroy this averment of mutual promise ? It reads: “ The defendant promised the plaintiff to so marry her on his request.” What request ? Evidently the first, that the defendant would marry the plaintiff upon the request which he had made and which she had accepted. Considering the whole of- the paragraph together it is susceptible of the construction that the defendant requested the plaintiff to marry him ; that she accepted and that upon such request and its acceptance he promised the plaintiff to marry her upon the request to marry which he had made. It would seem to follow, therefore, that the last clause does not destroy the first, but is in harmony with it, and is in fact a mere confirmation of the original request which it is averred was accepted and acted upon. If the complaint be suscep*278tibie of this construction, and I thin)c it is, there is expressed mutuality of promise and a valid contract is susceptible of being deduced therefrom. The construction of such a pleading, even though it be conceded that a different conclusion might be reached, is to adopt 'the construction which will support it. (4 Ency. PI. & Pr. 744, and cases cited.) As it is capable of a construction which expresses a valid contract to marry, it is -sufficient to resist the demurrer. , .
The interlocutory judgment should, therefore, be affirmed, with costs, and the defendant be given leave to plead over within twenty days upion the payment of costs in this court and in the court below.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.