261 Pa. 410 | Pa. | 1918
Opinion by
Plaintiff avers she is the common-la'w wife of defendant and sues in assumpsit to recover money she claims to have given defendant from time to time out of her earnings, under agreement to deposit in bank in their joint names that the fund so deposited might be drawn by plaintiff at her pleasure. Defendant denied such agreement, as well as the fact of marriage, and testified to an understanding that plaintiff should pay her expenses and that the money should be used for that purpose, she to receive only the balance of the fund. This version of the agreement was denied by plaintiff, who, to corroborate her testimony, and show liability on the part of defendant to support her without deduction from her earnings, offered evidence to establish a common-law marriage. The terms of the contract, if any, between the parties and whether a marriage actually took place were submitted to the jury who returned a verdict for plaintiff, and from judgment entered thereon defendant appealed.
No denial is made that a considerable sum of money was paid over to defendant by plaintiff. In fact, he admits receiving the sum of $1,283.55, but avers he paid out on plaintiff’s account more than the amount received and that there remained after deducting such payments a balance due him. The evidence as to the terms of the contract between the parties depended entirely upon their individual testimony which, being conflicting, was necessarily a question for the jury. The verdict indicates the jurors found the contract to be as testified to by plaintiff. Defendant denies a marriage between himself and plaintiff and sets off against plaintiff’s claim the amount of money expended by him on her behalf.' The case was tried by defendant, however, on the theory
The, contention of defendant is also refuted by the finding of the jury that a common-law marriage existed between the parties; if such finding is warranted by the fa!cts defendant’s set-off is invalid, for the reason he was liable for the maintenance and support of his wife and could not seek reimbursement for such expenditures as a set-off against her claim to recover her separate earnings entrusted to his care. There is little dispute in the testimony concerning the relations between the parties with the single exception as to what took place at the time the alleged marriage was contracted. Defendant and plaintiff first met in 1905 and it is not denied that from that time until August, 1908, there were frequent instances of improper intercourse between them. Plaintiff testified that at the request of defendant they came to Philadelphia in August, 1908, to be married. No actual ceremony, however, was performed by either a clergyman or magistrate; they remained at a hotel the night of their arrival in the city, and on the following day visited the home.of defendant’s sister where plaintiff was introduced by defendant as his wife. As to the agreement to marry, plaintiff testified: “After he told her [his sister] we were married we just had the ordinary conversation, after he had told her we were married and I was his wife. After that we left and coming up on the train to Reading we agreed to be married, and would live together as man and wife..... .Q. What else
There is no doubt of the sufficiency of the evidence as, to cohabitation and reputation to raise a presumption of marriage and to show the agreement, if made, was fully carried out. Defendant contends, however, that the presumption arising from cohabitation and reputation is rebutted in this case by evidence showing.the relation between the parties was illicit in its commencement, and, consequently, such relation will be presumed to have continued until a change of the situation is actually proved, citing Hunt’s App., 86 Pa. 294; Tholey’s App., 93 Pa. 36; Reading Fire Ins. & Trust Co.’s App., 113 Pa. 204; Grimm’s Est., 131 Pa. 199. It does not appear, however, that this is a- case where the beginning of the cohabitation was meretricious. While it is ad-' mitted there was frequent illicit intercourse between the
Admitting the cohabitation was meretricious in the beginning, that situation will not help appellant. It can hardly be contended a man and woman living together in illicit relations cannot subsequently marry. In McCausland’s Est., 213 Pa. 189, this court held, where the father and mother of a child, who had been living together, agreed, six weeks after the birth of the child, to become husband and wife and thereafter continued to live together as man and wife, holding themselves out to the world as such, the contract of marriage was valid. The rule of presumption has no force in the
The agreement, as testified to by the plaintiff in this case and believed by the jury, was sufficient (under the
The judgment is affirmed.