178 N.W. 428 | N.D. | 1920
The plaintiff sued the defendant for the breach of a contract of marriage and alleged, by way of aggravation of her damages, that she had been seduced by him. The defendant admitted the promise of marriage and averred that after such marriage contract had been made the plaintiff promised and agreed to marry one Nick Wolfe, and that by reason thereof the plaintiff broke her contract with the defendant and exonerated him from all obligations to marry the plaintiff. The case was tried to a jury upon the issues thus framed and resulted in a verdict in favor of the plaintiff. Judgment was entered pursuant to the verdict, and defendant has appealed from the judgment.
The undisputed evidence shows that plaintiff and defendant were members of neighboring families. At the time the alleged contract of marriage was made the defendant was about twenty-three years old and the plaintiff about eighteen. The defendant had repeatedly made propositions of marriage to the plaintiff, which she had refused on the ground that she was too young to marry. In the spring of 1916, the plaintiff, however, finally agreed to marry the defendant, and some time thereafter, under such promise of marriage, he seduced her. In the fall of 1916, the defendant went to Bismarck, North Dakota, to attend school. The plaintiff testified that before he loft she informed him that she believed she was pregnant, and that defendant then again assured her to have no fear, that he would marry her. It appears that some time after defendant had gone to Bismarck, — to wit, on November 13, 1916,
On this appeal defendant contends: (1) That the defendant became released from his agreement to marry the plaintiff by reason of her promise to marry Wolfe; (2) that this result followed regardless of
(1, 2) An action for breach of promise to marry is, of course, predicated upon the proposition that there was an existing valid contract to marry, which has been breached by the defendant. In determining whether there was such existing and valid contract, recourse must be had to the general principles applicable to all contracts. A valid contract to marry presupposes mutual promises by the parties thereto. “The consent of the parties to a contract must be: (1) Free; (2) mutual; and (3) communicated by each to the other.” Comp. Laws 1913, § 5842. And “an apparent consent is not real or free when obtained through: (1) Duress; (2) menace; (3) fraud; (4) undue influence; or (5) mistake.” Comp. Laws 1913, § 5844; see also 4 E. C. L. p. 154.
The contract to marry creates a recognized status between the parties, and doubtless a subsequent contract by one of the parties entered into to marry some other party constitutes a breach of the first contract, and operates as a release of the other party to the contract. This is so because, of course, the status of the parties fixed by the first contract is wholly inconsistent with the condition created by the second contract. It is unnecessary to determine whether or to what extent the so-called engagement of the plaintiff to Nick Wolfe might have operated, or did operate, as a breach of her contract to marry the defendant. Under the evidence, the jury was entirely justified in finding that the plaintiff never in fact consented to marry Nick Wolfe; that her apparent consent was not real; and that she never had any intention of marrying him. After her return from the priest she immediately notified the defendant of the unfortunate position in which she found herself placed (largely if not wholly through his fault). The jury was also justified in finding that the defendant in due course received |he letter which plaintiff wrote him, and hence was fully aware of plaintiff’s position at the time he heard the announcement by the priest of plaintiff’s and Wolfe’s engagement. In fact, in the ordinary course, defendant should
(3) It is further contended that the plaintiff, and not the defendant, had the burden of proving that the contract between the plaintiff and Nick Wolfe was not voluntary, and that the court erred in instructing the jury that this burden was upon the defendant. It is asserted that the defendant sustained his burden by proving that the plaintiff had in fact promised to marry Nick Wolfe, and that thereupon the burden shifted to the plaintiff to show that the contract to marry was not a valid one.
In this case the contract to marry, and the refusal of the defendant to carry it out, were admitted in the answer, and the defendant as an affirmative defense averred that he was released from such contract by reason of plaintiff’s subsequent promise to marry Nick Wolfe. Unquestionably the defendant had the burden of showing that he had been released from his contract to marry the plaintiff. This burden rested upon him throughout the entire ease. It is true “the burden of evidence” might shift to the plaintiff, but “the burden of proof” did not; it remained upon t_e defendant during the entire trial. See Guild v. More, 32 N. D. 432, 466, 467, 155 N. W. 44. “Where plaintiff has established a promise and a breach with loss, a prima facie case is made out, thus throwing on defendant the burden of vindicating himself; and hence it is incumbent on him to prove a release from the engagement or the unchastity of plaintiff subsequent to the promise; and where he relies on the immoral conduct of "plaintiff as a defense, it is incumbent on him to prove that he renounced plaintiff on discovering such conduct, and that the contract to marry was broken on account thereof. But it has been held not necessary for defendant to prove a justification of a failure to marry on the particular ground alleged by him. Where defendant sets up a release, the burden of proof is on him to show such release.” 9 C. J. p. 350.
(4) Nor do we believe there is any merit in the contention that the court erred in admitting proof relating to the bastardy proceedings against the defendant. The testimony was admitted under these circumstances : The defendant, on his cross-examination, testified that in the conversation he had with the plaintiff at the barn on November 19, 1918, he told her he would not marry her; but “if she was going to' have a child (he) will keep track of that,” and “I support it.” He was. then asked if bastardy proceedings were not brought against him after the child was born. He admitted that such proceedings had been brought; that the court ordered him to pay $15 a month for the support of the child; that he did not pay anything until after the court so ordered, and that he had never given either the plaintiff or the child any
The judgment appealed from must be affirmed. It is so ordered.