In support of the motion for a nonsuit, the defendant claims that there is no evidence of a legal contract to marry existing between the parties at a later date than 1898. He admits that there is evidence of an original legal promise to marry, but claims that it conclusively appears that this promise was shortly thereafter abandoned and a promise based upon an illegal consideration substituted therefor. But if the evidence is sufficient to support such a finding it is by no means the only conclusion which might reasonably be reached. It could fairly be found that the subsequent negotiations all had to do with the fulfilment of the original promise, that there was never any abandonment of it and that both parties recognized its binding obligation and agreed that the time for its performance should be postponed. The fact that their illicit relations furnished the motive for delaying performance of the legal agreement, did not abrogate the original contract or render it illegal.
The defendant's contentions are largely based upon a misconception of the nature of the contract to marry, and of what is necessary to show a breach thereof. After the promise has been made, it is the right of either party to demand performance, and if the demand be reasonable in point of time, etc., a refusal to comply therewith is a breach of the contract, and a cause of action arises. But, until such demand is made and insisted upon, the contract continues in force, unless abandoned by agreement of the parties, or disavowed by one of them. "Before a right of action accrues for the breach of a marriage contract, it must be averted and proved that the contract has been repudiated and such repudiation must be shown by the acts, words, conduct or deed of the party who so repudiates it, and to be without sufficient reason or cause. There must be a refusal to marry, or a repudiation in some way of the contract." Walters v. Stockberger,20 Ind. App. 277.
The reasons which induce one of the parties to refrain from demanding present performance of the agreement are immaterial. If the question were whether the agreement to postpone for a fixed time were itself a binding contract, so that until the time had elapsed neither could demand performance, the question of the legality of *Page 105 the consideration for it would be presented. But no such question arises upon the evidence in this case. The plaintiff does not rely upon such promise to make out her cause of action. The evidence of their relations and negotiations is material to the plaintiff's case merely to show that the original promise to marry had not been abandoned.
The original promise and the ultimate refusal to perform being shown, it was incumbent upon the defendant to excuse or justify the refusal. The mere fact that there had been no disavowal or abandonment at an earlier date was sufficient for the plaintiff's purposes, and proving that failure to disavow was induced by illegal acts in which both participated would not show that there was a disavowal.
Since the cause of action arose at the time of breach and not when the original promise was made, the action was seasonably brought. The plaintiff's evidence was that there was no breach until shortly before suit was begun. It is of no consequence that she might have made and insisted upon a demand for performance at a much earlier date. It is not the right to demand performance, nor even the demand which creates the right to sue, but the refusal to comply with the demand, or the disavowal of the contract when no demand is made. If the defendant had desired to terminate the contract at an earlier date he could have done so at any time. As he did not do so, he cannot claim the protection of the statute of limitations. He is sued for breaking the contract, not for making it. The nonsuit was properly denied.
The statement of plaintiff's counsel in his closing argument that he "never saw one of those rings marked" was testimony upon a point material to the case. Because of it the verdict must be set aside.
The exceptions to the charge merely present questions whether certain admitted propositions were fairly covered by the instructions given. As there must be a new trial there is no occasion to examine the details of the charge.
Verdict set aside.
YOUNG, J., was absent: the others concurred. *Page 106