227 S.W. 868 | Mo. Ct. App. | 1921
Plaintiff proceeded in replevin in a justice of the peace court to recover a piano. The cause found its way to the circuit court and was there tried to a jury, and plaintiff prevailed, and defendant appealed.
The defense is that the piano was an unconditional gift, while plaintiff contends that the piano was given in contemplation of marriage, and that defendant broke the engagement, and that he, plaintiff, is entitled in law to the return of the property so given. Plaintiff testified to the engagement and the breaking thereof by defendant, and to the gift of the piano, and stated in effect that it was given to defendant in contemplation of their marriage, and not as an absolute and unconditional gift. In addition plaintiff offered evidence tending to support his evidence that an engagement of marriage existed. Defendant denied the engagement and offered evidence *564
tending to support her. She testified in effect that the piano was a Christmas gift from plaintiff, and was not conditioned directly or indirectly on any contemplated marriage. If the piano was given to defendant by plaintiff in contemplation of marriage, and she broke the engagement for no fault of plaintiff, then he can recover. We find no case in our State directly bearing on this class of gifts. In 14 A. E. Encycl. of L., 1045, we find this statement of the law on gifts made in contemplation of marriage; "A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee the property may be recovered by the donor. But if the gifts are made simply for the purpose of introducing the donor to the donee's acquaintance, and to gain her favor, the property is not recoverable although marriage does not ensue." In support this text cites Williamson v. Johnson,
Defendant makes complaint that the trial court erroneously modified her instruction. Plaintiff's instructions mentioned three classes of gifts, a gift in contemplation *565 of marriage, a gift fraudulently induced, and the requirements of an unconditional gift. Defendant's modified instruction, the modification in italics is as follows: "The court instructs the jury that if you find and believe from the evidence that the plaintiff delivered the piano in controversy to defendant and gave it to her as a gift, but not in contemplation of a marriagewith her, as defined under other instructions of the Court, then your verdict will be for the defendant, and if you do so find that the piano was a gift from plaintiff to defendant, it is immaterial whether the plaintiff and defendant were engaged to be married at that or any other time." There is no merit in this assignment. This instruction unmodified was practically a direction to find for defendant. Plaintiff did not deny that he gave the piano to defendant, but he contended that he did so in contemplation of marriage. Unmodified the instruction was in direct conflict with instructions given for plaintiff, and wholly ignored plaintiff's case, and the modification was proper. [Daso v. Bridge Co., 189 S.W. (Mo. App.) 400.]
Defendant also assigns as error certain remarks of the court. The modification of defendant's instruction mentioned above did not occur until plaintiff's counsel had made the opening argument, and while defendant's counsel was arguing the cause to the jury. The record pertaining to this assignment discloses the following: "Mr. Bailey: Comes now the defendant and objects and excepts to the modification of instruction No. 1 by the Court, after the argument of the defendant had begun, by inserting in the instruction the words `but not in contemplation of a marriage with her,' and to the comment of the Court to the jury that this instruction is not meant to apply in the event there was a contemplation of marriage between the plaintiff and defendant, in the presence and hearing of the jury. By the Court: Let the record show that counsel for defendant argued and stated to the jury that the instruction wiped the marriage proposition out of this law suit, whereupon the court *566 modified the instruction by interlining the words the Court has put in, and the Court's remarks were made to counsel and not to the jury. Mr. Bailey: I offer the further objection that the remarks made at that time to the counsel were made so the jury could hear, and I further object to the remarks just put into the record being made in the hearing and presence of the jury, and asked that the jury be discharged, submission of the case set aside and the cause continued for that reason. By the Court: All right, overruled, Mr. Bailey: I except."
We have already held that it was proper to modify the instruction, and it was proper also to make the modification at the time it was made, although plaintiff had made her opening argument and defendant had commenced his argument. [Sweet v. Bunn, 195 Mo. App. l.c. 502, 193 S.W. 897; Wilmott v. Railroad,