*1 " аppropriate sufficient to constitute words in the contract crops indicate that raised on the lands to he held in cotenancy.” (Clarke Cobb, supra.) only ambiguity appears agree-
Not do we think no evidence, chang- ment could be oral cured without ing expressed intention as the written agreement, but appellant had twice before amended the complaint stating against without a cause of action this re- refusing and no spоndent, appears abuse of discretion permission alleged further time to amend. At no was it only had paid, notes been and until time a cash rent was due. The record respondent also discloses that potato mortgage broker, crop it held a this buyer potatoes, and that it in its normal potatoes sold to a course of business. judgment is affirmed. J.,
Griffin, and Mussell, J., concurred. No. 19413. Dist., [Civ. Second Apr. 9, Div. Three. 1953.] EILEEN MASLOW, Appellant, v. WALTER MASLOW,
Respondent. *3 Appellant. Silverton for
David ¡Respondent. for appearance
No Appeal by plaintiff VALLÉE, J. from a judgmеnt deny her ing her an annulment of to defendant. The alleged that for complaint defendant, purpose inducing fraudulently falsely marriage, and plaintiff to consent to have children with he desired to represented represеntations; family; believed the her and to raise a she not have consented made would if had not been she de- false in that representations were marriage; de- her; and to have children fendant did not intend family raising a no had intention fendant “at time defaulted. plaintiff.” Defendant having children with the separated August 17, 1951, and married The were testimony of 30, 1952. The evidence consisted March “Q. you Will Plaintiff testified: plaintiff and mother. you under which circumstances plеase tell court Walter, my argument with Well, I had an separated. A. family having about a husband, that was him family I did and I told He children. didn’t want says he doesn’t intend I one and he wanted start him felt that he I asked whether he to and never intended to. So, hе did. I asked way married and he said before we were me that why me; why he didn’t tell before he married I you if I told knew that said, ‘Well, we were married. He Q. you If had you And was it. marry wouldn't me.’ you regard, would known of his intent in that you in- Q. After learned of that No, him? A. wоuldn’t. Q. you ? A. No. Did tent, you to live with him continue your marriage? A. thing very feel that that was a vital Definitely . . . Q. very part of A. Yes. vital it? months, together five or six Well, you for some Court: lived all that time? you? Q. Have intercourse didn’t A. Yes. time? A. Q. you did from time to But, A. Not often. too he plaintiff] : Did Q. [Attorney Bv Yes. Mb. Silverton periods, on those require anything during use of those you did when Q. On those occasions occasions? A. Yes. ... the use of require did he engage in matrimonial intercourse engage in such contraceptive? Q. Did he refuse to A. Yes. A. Yes: contraceptives were used? you activities with unless family, did that concerning raising a Q. This conversation *4 Yes.” contraceptives? A. on arise account of the use of such By Now, Plaintiff’s mother testified: “Q. Mr. Silverton: your daughter when she you with did have a conversation Q. Where was Yes, sir. separated from her husband? A. my you ? A. In home. plaintiff the conversation had with the her hus- you of her with Q. I see. Did conversation she tell told Q. you did do whеn she Yes, A. And what band? sir. got I upset I and you Well, A. of that conversation? supposed to He was their home. called believe I touch—I him and I called with us and have dinner and come over they they quarreled and that surprised know that I wаs just Q. Wool, I Mrs. of- happy together because weren’t your him after your with tell me of conversation you to want say you What did conversation. you about her daughter told you never me that ‘Walter, Eileen tells said, I to him? A. he And is that true?’ сhildren and have intended to before those intentions said, you ‘Did said, ‘Yes.’ And said, ‘Yes.’ And I daughter?’ And he said you my you if have married Eileen would not you know that ‘Well, would we con- family and neither you not want to raise a just Well, he he say? A. said Q. did he to it.’ Whаt sent to make an issue her he want marry and didn’t wanted to marry him if he had said thought she wouldn’t that at all. He you say par- he Q. And what did anything like that. he family? Well, A. raising a ticularly with reference to had tried— personal experience, that shе told me of their very her. He sore at you pardon me—and that he was will time she always contraceptives her and that one told to use very he was sore at put it over sort of wanted to argument.” is what started their and that falsely or fraud- found that défendant did The court have children ulently represent he desired to that mar- induced to consent to the her; plaintiff was not with that de- was not true that riage by representation; said plaintiff; and children with did not intend to have fendant any in- no time had defendant, “at that it was not true that having children family tention of ’’ plaintiff. the evidence she was to a
Plaintiff contends entitled decree of annulment as a matter of law. matrimony, by prime purpоses of
One of the the laws of Ordinary society, procreation. marriage nature rela and wife are the tions between husband foundation on which society perpetuation and civilization rests. Im plicit marriage representation in the contract is the that the parties will and natural marital have normal relations anything will will not do frustrate the normal (Millar Millar, and natural result of those relations. 1918E Cal. Ann.Cas. L.RA. 1918B P. spouse other at the time is defrauded whеn the One no intention of natural marital has might in the birth of children. intercourse which result *5 242 promise by spouse marriage, express one before the children, any keep without implied,
or to have intention to marriage. fraud void promise, is a sufficient to the The promise have normal and natural fraud consists of keeping promise intention of and with relations without spouse. Millar, deceive the other v. (Millar the intention to 394, 184, Ann.Cas. 1918E L.R.A. 1918B 797 P. 175 Cal. [167 Aufort, Cal.App.2d ; 310 P.2d ; 9 v. [49 620] 415] Aufort Brucе, Cal.App.2d 641, 95]; 644 P.2d cases v. 71 Bruce [163 227.) collected—4 A.L.R.2d marriage contraceptives spouse one uses
When after spouse object, may does be inferred that the other not spouse expected latter or thаt he or she is this is what the (Gerwitz misrepresentation. Gerwitz, v. 66 victim of not the 327.) practice The duration and the moral N.Y.S.2d drawing considered in factors to be standards of spouse the other hand when one inference. On such an re objects practices such and shows his or her promptly refusing under con by further intercourse such sentment reasonably spouse may conclude that that ditions, the court objects spouse mildly When one has been defrauded. period of time restricted intercourse but continues the justified concluding fraud, is and then claims the court (Stegienko v. or she is not the victim of fraud. that he Witten, ; v. Stegienko, 530 N.W. Witten 295 Mich. 252] [295 Richardson, 103 254; Richardson v. N.Y.S.2d 109 N.Y.S.2d Schwind, 219; 108; Riley Riley, 99 v. v. N.Y.S.2d Schwind 442.) 347; Hafner, 66 89 v. N.Y.S.2d N.Y.S.2d Hafner prenuptial promises, ex Subsequent failure to fulfill necessarily establish that a press implied, does obligations performing his marital spouse had no intention of (Bragg Bragg, performed. v. at the time Schaub, 715, ; v. 71 P.2d Schaub 219 720-721 Cal. 1046] [28 966].) P.2d An admission Cal.App.2d 476 [162 be received with annulment action should a defendant an parties, by be sure that col “particular caution” order to marriage in valid. lusion, seeking annul a fact are not thus Maduro, 683].) P.2d (Maduro Cal.App.2d 62 780 v. [145 voluntarily husband parties cоhabited as When the constituting the knowledge the facts with full and wife Code, 82.) (Civ. annulment is lost. fraud, right .to § and it is not over against fraud presumption Assur. (Shapiro Equitable v. by shadowy evidence. come Life 725].) Proof of 75, 91 P.2d Soc., Cal.App.2d 76 [172 243 satisfactory court. convincing, and clear, must fraud be And whether the evidence 832, 81.) (12 Cal.Jur., § question for the trier of convincing primarily clear P.2d Cal.App.2d 483, (Baines Zuieback, 84 fact. v. [191 Cal.App.2d Riesenberg Riesenberg, 67]; support different P.2d Where the еvidence will court; the trial inferences, of inferences is for the choice drawn, finding, and its based the inferences cannot *6 (Bruce Bruce, Cal.App.2d 641, appeal. v. 71 disturbed 95].) of is the exclusive 644 The trier fact P.2d [163 credibility (Code Prоc., judge of Civ. of the the witnesses. Reis, 654, 788].) 21 P.2d § 1847, 659 Hicks v. Cal.2d [134 reject The trial court is disbelieve and the testi free to mony though of witnesses even are uncontradicted and unimpeached. (Lohman Lohman, 144, 29 149 v. Cal.2d [173 657]; Lee, Cal.App.2d P.2d v. 113 669 Odenthal [248 Valley 937]; Co., Cal.App.2d Manha v. Meat 113 P.2d Grass 45].) apply par P.2d These with rules [249 emphasis ticular to an for annulment action since the state party every is a silent to but active third to action dissolve marriage. a seeing The state is interested in to it that no marriage is void of collusion, declared as a result fraud or statutory grounds and that the on which the is annulment sought actually (Maduro Maduro, exist. v. 62 Cal.App.2d do 683].) P.2d [145 granted promiscuously is a relief as
Annulment
give the
right.
of
The cold record cannot
look or
matter
a
witnesses;
hesitations,
doubts,
their
their
their
manner
language,
precipitancy,
their calmness or
of
their
variations
may
testify
all
hear him
convince who
witness
consideration.
testimony,
untruthful,
yet his
disingenuous and
he is
that
convey
impression.
Did
read, may
a most favorable
when
testify
and as
mother
with the conviction
and her
plaintiff
truthfulness; or
either of them
did
compatible
surance
though laboring under the handi
haltingly
give testimоny
as
uncertainty
of
or
either
them
apprehension and
cap of
by
pur
for the
though
tale learned
rote
glibly
it
as
give
questions
only
which can
of the courtroom! These
poses
fact. The court
seen
the trier of
аnswered
be
was
may
there
well have concluded
heard
testimony
a fabric of
plaintiff’s
was
collusion;
now
lift her from bonds
exaggeration
fancy woven
plaintiff’s mother
testimony of
was
distasteful;
and that
of
evidence.
recitаl
rehearsed
judge
trial
found the
evidence to
unconvinc
ing and insufficient. Plaintiff
she
testified
discovered the al
leged fraud more than six months
marriage.
after the
It is
obvious from her testimony that she must have discovered
it sooner. She
livе, cohabit,
continued to
and have restricted
intercourse with
with full knowledge
defendant
of the facts
constituting
alleged
period
fraud for a
of several months.
plaintiff’s
Had
eagerness for children been as real as she
сlaims,
now
is
why,
it
difficult
see
face of defendant’s
persistent procrastination,
put
she had
wait
into
loudly proclaimed.
words what his
so
conduct
A rea
sonable
really
inference
that if
she were
deceived she would
not hаve tolerated the claimed situation for
We
an instant.
say, as a matter
law,
cannot
of
if
fraud;
that there
there was, that it was not
(See
Maduro,
condoned.
Maduro
Affirmed. J.,
Wood (Parker), concurred. SHINN, P. J. rule dissent. There no as to the doubt Anyone law which invokes. who is aware of fact people is the who the children primary objects marriage would know that one of *7 family. question of a this There is but one appeal understanding simple my and a one аt that. It belong people law that the courts to and that when litigant by clear, positive complete makes out a ease evidence, any respect credible in af untainted would ground rejecting ford a it, reasоnable relief should be granted right. as of No Plaintiff made out such case. woman proved in situation If could have a better one. judgment this affirmed it would mean that trial courts nullify by denying can marriages law in annulment of by merely saying: case “I am not convinced.” I cannot part leaving plaintiff have a being cruel position (which married to a would-be actor defendant shown be), who cannot be bothered with children around preserving house. If the law has an interest in relation, should, does, pseudo marriages frown on such present as the prisoner. one which an unfortunate