Falk v. Burke

Citations

• 93 Kan. 93
• 143 P. 498
• 1914 Kan. LEXIS 388

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Marriage Contract — Breach—Omission to Marry on Day Set Not Necessarily a Breach of Marriage Contract. An omission to marry upon a particular day is not necessarily a breach of a promise of marriage; the contract necessarily continues in force until the one or the other of the parties by conduct or words manifests an unwillingness to proceed to carry it out, and a bona fide offer to marry is a defense to an action for a breach of promise to marry, where it is made before the plaintiff has signified her intention to end the matter, although the defendant may have been guilty of conduct that would warrant the plaintiff in considering the engagement at an end.</p> <p>2. Same — Acts Constituting a Waiver of Breach of Marriage Contract. The failure of one to carry out such contract of marriage at the appointed time does not terminate the contract, unless there is an unequivocal election on the part of the other to consider the contract as terminated; and if, following such failure to carry out the contract at the designated time, negotiations are entered upon for the purpose of arranging ■ a subsequent date for the marriage, such negotiations in law constitute a waiver of whatever rights may have accrued by the failure to be married at the designated time.</p> <p>3. Same. Plaintiff and defendant entered into a contract of marriage in March, 1912, and the date for the ceremony was afterwards fixed for the 25th of September. ' The marriage did not take place on the date fixed, through the fault of the defendant, or on account of circumstances over which he had no control. Held, the plaintiff could not after said date continue to treat the contract as still in existence and negotiate with the defendant for the setting of a future date, and then afterwards elect to treat the contract as having been broken by the postponement of the marriage on the original date.</p> <p>4. Trial — Answer to Special Questions Contrary to Evidence— Excessive