120 Me. 501 | Me. | 1921
The material and uncontroverted facts are as follows: The plaintiff, a school teacher, and the defendant, a prosperous farmer, both of admittedly good standing and character, after an acquaintance of several months entered into a contract of marriage on November 5, 1918. The following Christmas the defendant gave the plaintiff a diamond ring in token of their engagement. These relations continued without interruption during the following year, and in the fall of 1919 the parties made their plans for marriage and a winter in Florida. About Thanksgiving 1919, however, the defendant’s attentions began noticeably to wane. He visited the plaintiff less frequently than in the past and his promises to call on various occasions were not kept.
One day the plaintiff happened to overhear a telephone conversation between the defendant and a Miss Ginn, in which they were arranging for a meeting the next day and also for dates near Christmas. Later the same day, the plaintiff telephoned the defendant and evidently desired an explanation. He replied that she should not be “rubbering,” and said that he would come in and see her. This he did, on the same day when the following conversation took place:
“Q. What talk did you have at the store?
A. He came into the store; I was near to the door, right up next to the door.
Q. Inside the store?
Q. Go ahead.
A. I told him no I wasn’t ready.
Q. Did you have some talk with him?
A. He said it didn’t make any difference whether I gave it to him or not, he was all done with me. I told him I didn’t think he had any reason for being done with me, and he had better think over what he was saying.” Clearly this was a breach of the contract of marriage on the part of the defendant. He was “all done” with the plaintiff, that is, he no longer bound himself by the engagement and he would no longer keep his promise.
The next day the plaintiff saw the defendant on the street talking with the woman with whom he had been telephoning but no conversation was then held between the plaintiff and defendant. On January first the plaintiff met and talked with the defendant when he reiterated his renunciation of the engagement in no uncertain language. Her testimony on this point is as follows:
''Q. Did you have some talk with him there?
A. Yes. I asked him to think over what he had been doing. He told me it didn’t make any difference what I said; I might as well keep still; he was all done with me.”
The latter part of January, however, the defendant seemed repentant. He called upon the plaintiff, told her that he was very sorry he had “treated her so mean,” and asked her if she did not think he had. She assented. Whether the defendant was sincere in this may well be doubted. No old promise was renewed, and no new one was made, but the statement may have served to temporarily allay the plaintiff’s anxiety. The plaintiff was out of town for a time after this and after her return she telephoned the defendant’s house. A woman’s voice answered the call. The defendant then was summoned and the plaintiff told him that she wanted to see him and asked him to call. Concealing the true situation he promised to do so, but did not. That was on March first. The next morning she learned from an independent source that he was already married. This recital of undisputed facts proves absolutely both the existence of a valid contract of marriage and its breach by the defendant.
The defendant did not see fit to take the stand himself, nor did he introduce any evidence in his behalf. His defense, as set out in
“Fort Fairfield, Me.,
Dec. 23, 1919.
Dear Charlie:' — •
Thought I would write to you this morning. You seem to put me pretty low. I will tell you that I only listened twice and both times I was not sly enough to-keep still. If I had been listening before, you would have heard something too. Besides we haven’t been on Ginn’s line two months. I am not sly and sneaky as you seem to think. I try to be square and I say just what I think and there isn’t anything kept back. Perhaps that is why I don’t get along so well as some.
You excuse her because she cares for you, perhaps she does. . Perhaps you think I don’t care. But as I see that you don’t care for me and want to call it off you may. I don’t want to thrust myself on anyone.
I don’t feel that I have done anything wrong. I haven’t done any little mean tricks which I could have done. If you cared for me, I wouldn’t have to think of you running after other girls. Besides I can’t treat you as nice as I could when I know you run after other girls and say that you are engaged to me. I notice that it didn’t take much for you to lose confidence in me, but you expect me to have great confidence in you, no matter what you do. You have been only looking for a chance on me and this is the only chance you have had, and you have taken advantage of it.
Your friend,
Stella.”
The defendant relies wholly upon the two sentences: “But as I see that you don’t care for me and want to call it off you may. I don’t want to thrust myself on anyone” as proving a mutual agree-.
Another difficulty with the defendant’s contention on this point is that he had already broken the contract before the letter was written. There was nothing to mutually rescind. Rescission by agreement implies an existing and unbroken contract, not a broken one. There might of course be a waiver on the part of the plaintiff, the voluntary relinquishment on her part, of a knojvn right, but there is nothing on which to base such a waiver here. The plaintiff distinctly testified that she had never released the defendant from the engagement and there is no evidence that she released him from the consequences of his breach. It is significant that the defendant did not take the stand to make any claim of rescission or waiver or state any facts to substantiate the same, but rested his whole defense upon two excerpts
The finding of the jury in favor of the plaintiff upon this, as upon all other material points, should stand.
Motion for new trial overruled.