192 Mo. App. 78 | Mo. Ct. App. | 1915
This is an action for breach of promise of marriage. The petition states a good cause of action and specifically alleges that plaintiff had leg'al
Plaintiff, whose maiden name was Millie M! Mitchell, was married in 1897 to Edwin M. Chapman and lived' with him until 1901 when they separated and Chapman removed to Mangum, Oklahoma, where he engaged in the practice of dentistry. Plaintiff remained in Kansas City and supported herself by keeping a rooming house. The proof shows and defendant concedes that she is a woman of good character. At the trial plaintiff testified she was single at the.time of the events in controversy and her counsel introduced in evidence a duly authorized copy of a decree of divorce rendered in February, 1904, by the district court of Greer county, Oklahoma, in an action brought against her by her husband. This decree, which gives the title of the case as “E. M. Chapman v. M. M. Chapman” recites that “defendant having wholly failed to
Sometime before her marriage, plaintiff, becoming dissatisfied with the name of “Millie” announced to her family and friends her wish to be called “Grace” but she was married under her proper name and during her cohabitation with her husband was called by him and their friends by her initials “M. M.,” her husband being known by his initials “E. M.” After their separation she resumed the name of Grace and was introduced to and known by defendant as Grace M. Chapman.
Defendant is a bachelor about fifty years of age who owns and resides upon a farm of 200 acres in Cass county. lie and plaintiff met in February, 1910, at her home in Kansas City, where he called in response to an advertisement published by her sister who desired employment as a housekeeper. It is not necessary to go into the history of the courtship' that had its genesis in this chance encounter. According to the evidence of plaintiff it followed the usual and natural course and culminated in a mutual agreement to intermarry. Defendant’s version of their relationship does not differ widely from hers except that he would have it appear that his was the passive role and that she was the aggressor until his reluctance to enter into the state of matrimony was overcome when he became masculine enough and exhibited proper anxiety to hasten the advent of the happy day. But he was cautions and would not be swept off his feet by the floods of passion. Plaintiff had separated from one husband — for good cause, he was convinced — and might become dis
Plaintiff denies that any such humiliating condition was attached to their mutual promises and states that nothing was said by defendant about entering into a contract of that character until sometime after their engagement. Defendant came to Kansas City one day to buy a wagon and found himself without sufficient money to pay the purchase price. Pie asked his fiancee to lend him $30 for that purpose. She hesitated but finally drew her check for that amount and gave it to him. After buying the wagon he returned to plaintiff and said: “I have used the check you wrote out for me — you didn’t seem veiy willing to let me have it. I expect it will be just that way after we are married.” “No,” replied plaintiff, “things will be different after we are married.” “Aren’t we as good as married now we are engaged?” defendant inquired. Plaintiff answered, “Oh, no, not exactly.” Then defendant asked plaintiff if she would be willing to sign a contract that neither should have any interest in the property of the other, if they separated. Plaintiff, astounded, replied £ £ that sounds like a funny question to ask a woman that you are intending to marry.” Defendant exclaimed: “I didn’t mean it. I was just trying you out to see if you would do it.”
The parties agreed to delay the wedding until plaintiff could sell her business. She encountered many delays and disappointments before she finally
In his version of the incidents leading to the breaking of the engagement, defendant assigns as his reason for refusing to marry plaintiff the honest belief, which he admits subsequent investigation demonstrated to be false, that plaintiff was sustaining an improper relationship with her companion at the restaurant table. He did not complain at that time of her failure to enter into his proposed antenuptial contract, nor was the subject of such contract referred to in the conversation which preceded the breaking of the engagement. Defendant places himself in the position of having broken his promise to marry plaintiff, without just cause, and the only defense he offers to the merits of the action is that his original promise was conditioned upon the execution by her of an ante-nuptial contract and her refusal to accept his subsequent offer to perform this conditional promise left her without a meritorious cause of action. On the other hand plaintiff’s evidence tends to show that the promise was unconditional and that defendant in breach of its terms, on two occasions, cunningly and falsely tried to turn innocent acts of hers into measures for coercing her into a degrading ante-nuptial agreement, and then breached his promise when the final effort proved unsuccessful.
The verdict resolved this evidentiary controversy in favor of plaintiff and as her evidence is substantial, we are bound by the verdict and must look at the facts of the case from the viewpoint of her evidence.
The first point urged against the judgment is that the court erred in submitting to the jury in the instructions asked by plaintiff the issue of whether or not plaintiff, “at the time of entering into said con
We do not find it necessary to go into the question of the sufficiency of that record to show that the former husband of plaintiff had been lawfully divorced from her. The legal capacity of plaintiff to enter into a contract of marriage was expressly admitted in the answer and was not questioned in the proof of defendant or treated as an evidentiary issue. An action for breach of promise of marriage is founded on contract and the general rule that a party to a contract will he presumed, in the absence of an averment and proof to the contrary, to have possessed legal capacity to enter into such contract, obtains in such cases. [4 Am. & Eng. Ency. of Law (3 Ed.), 884; 5 Cyc. 1011; Tucker v. Hyatt, 41 N. E. Rep. (Ind.) 1047; Jones v. Layman, 123 Ind. 569; Ortiz v. Navarro, 30 S. W. Rep. (Tex Civ. App.) 581.] As is well said by the Supreme Court of Indiana in Tucker v. Hyatt, supra: ‘ ‘ She did not need to allege or prove that she was a woman, that she was of marriageble age, that she was unmarried, or that she was otherwise competent to enter into a contract of marriage. Her capacity to enter into such contract will be presumed, in the absence of averment and proof to the contrary. In Jones v. Layman, 123 Ind. 569, 24 N. E. 363, which like this was an action on breach of marriage contract, it was contended that the complaint was had because it was not alleged that the parties were of marriageable age. The court said: ‘There is nothing in this objection. The presumption is, as to all contracts, that the parties were competent to contract, until the contrary is made to appear.’ ”
Further defendant objects to instructions given at the request of plaintiff which assumed to cover the. whole case and to direct a verdict without requiring the jury to find that defendant refused to marry plaintiff or that plaintiff was ready and willing to marry defendant. The truth of both of the facts was conceded by defendant in his testimony where he not only admitted that plaintiff was ready and willing to marry him and that he refused to perform the contract, but went further and admitted that his refusal was.without good cause. It is not error for instructions to assume the truth of conceded facts. [Davidson v. Transit Co., 211 Mo. l. c. 359; Sotebier v. Railroad, 203 Mo. 702; Edwards v. Schreiber, 168 Mo. App. 197; Murphy v. Railroad, 168 Mo. App. 588.]
We do not approve the contention that defendant’s offer to marry plaintiff, made after his breach of the contract and after this suit was brought, constitutes a good defense to the action. There may be circumstances under which a bona-fide offer to marry, following an undue delay in the performance of the promise but before the promisee has signified her intention to end the matter, will be treated as a substantial compliance with the promisor’s contractual obligation. [Kelly v. Renfro, 9 Ala. 325.] But this is not that kind of case, and the court was right in instructing the jury to give no effect to defendant’s offers, if they believed they were “not made in good faith but to avoid this suit.”
Other criticisms of the rulings are found to be clearly without merit and need not be discussed. We do not wish to be understood as implying that the ante-nuptial contract proposed by defendant would have been valid if entered into by the parties. We express no opinion on that subject, since the validity of such an agreement may be conceded for argument, and as we have shown the judgment still would be free from the taint of prejudicial error. The case was fairly tried and submitted and the judgment is affirmed.