56 Wis. 156 | Wis. | 1882
The alleged errors assigned as grounds for a reversal of the judgment herein will be considered in their order.
1. At the commencement of the trial counsel for defendant objected to the admission of any evidence under the complaint, for the reason that it fails to state a cause of action. The point of the objection is that a release of the
As was said by Lord Denman, in Stead v. Dawbar, 10 Ad. & El., 57: “Tbe same consideration which existed for the old agreement is imported into the new agreement which is substituted for it.” Ve are not aware of any rule of law which takes a contract of marriage out of this general rule. A party to a marriage contract may recover damages of the other party for a breach of it. This shows that the contract has a money value, and it necessarily results that a release of such a contract is a good consideration for a promise, by the party released, to pay money for the release.
2. To entitle the plaintiffs to recover, they were required to satisfy the jury by evidence that a marriage contract existed betw'een Bertha and the defendant, and that she released him from the obligation thereof in consideration of a promise made by him to pay her $3,000 when she should be married. The court so instructed the jury, and instructed further that there could be no recovery unless the promise of defendant to pay the money was in writing. No statement of the evidence bearing upon these propositions will be attempted here. It is voluminous and very conflicting. It must suffice to say that we find testitaony in the record tending to prove that a marriage contract existed between the defendant and Bertha; that in February, 1875, he offered her $3,000 to release him therefrom; that she accepted the offer; and that
“ I, J. M. Bray, promise to ■ pay to Bertha Hunter $3,000 for the release of promising to marry her, as soon as she is married. J. M. Brat.”
The testimony also tends to show that during the same year the writing was burned in a conflagration which consumed the building in which Bertha resided. The court admitted parol proof of the writing. There was, therefore, sufficient testimony to support a special verdict finding the existence of the marriage contract, the release of the defendant from the same by Bertha, and the execution to her of the alleged written agreement, in and by which he promised and agreed to pay her $3,000 for such release as soon as she should be married. In other words, there is sufficient testimony to support the verdict for the plaintiffs, and the refusal of the circuit court to grant a new trial on the ground that the verdict was against the evidence is not cause of reversal.
3. On the trial, the deposition of the plaintiff Marcellus Snell was read in evidence on behalf of the plaintiffs, against the objection of defendant’s counsel. His testimony relates to material and controverted facts in the case. The argument against the admission of the deposition is that the deponent is not a party in interest, but only a nominal party to the action; and that the statute requires that he should be a party in interest in order to make him a competent witness for his wife.
Under the provisions of the general law of 1858, ch. 134, (R. S. 1858, p. 817), this court held, in Hackett v. Bonnell, 16 Wis., 471, that, if husband and wife join in an action affecting only the wife’s separate property, the husband, being a proper party to the action (although not a necessary party and perhaps not a party in interest), is a competent witness for his wife. The circuit court in that case sustained an ob
4. A witness was called by the plaintiff to prove that the defendant usually signed his name “ J. M. BrayP He also described the defendant’s handwriting. The witness was the cashier of a bank, and was permitted to testify that defendant
5. The plaintiffs offered in evidence the following letter, which was probably written in 1877:
“ Oshkosh, September 23.
“ Eliza Ro&ERS: .We have heard that you allowed yourself, or are about to allow yourself, to be connected with certain women here in an attempt by them to Blackmail Mr. Matt. Bray. We hope this is not so, and that you have not and will not have anything to do with them. They are ruining themselves by their courses, and are sure to get into trouble, and you cannot help injuring your credit by taking part with them. We write this on account of the family name of Rogers, as well as on your own account. We warn you for -old association’s sake. That you may keep out of sueh a scrape is the wish of your Sihoeeb Feiehds.”
On the general subject of the admissibility of such, evidence we cannot do better than quote from what was said by Cockburn, C. J., in Moriarty v. L. C. & D. Railway Co., 5 L. R., Q. B, 314: “ The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defense, if he is defendant, is honest and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can show that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. I do not say that it is conclusive. I fully agree that it should be put to the jury with the intimation that it does • not always follow, because a man, not sure he shall be able to succeed by righteous means, has recourse to means of a different character, that that which he desires, namely, the gaining of the victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action, any more than a prisoner’s making a false statement to increase his appearance of innocence is necessarily a proof of his guilt; but it is always evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts.” Page 319. See, also, 1 Greenl. on Evi., § 196.
We conclude that the letter signed “ Sincere Friends ” was properly received in evidence.
6. The next question to be considered arises upon the letter above mentioned, from the plaintiff Bertha to Mrs. Rog
“ I write you these few lines in hast to let you now that things ar red hot — be shur and let me now where you go so I can fiend you when you are wanted and be shuer and say these wirds I J. M. Bray promes to pay to bertha Hunter 3000 thousand Dol for the relese of promising to marry her as soon as married J MBray you stick to that. This was exactly the form of the note I saw. Mark sends you his love
in ha^t write soon
your ever true friend
Bekt SNELl”
The testimony tended to show that the above words, “ This was exactly the form of the note I saw,” were not written by Bertha, and it was claimed that they were written by Mrs. Rogers. The letter, except the sentence above quoted, was offered in evidence on behalf of the defendant. Counsel for plaintiffs demanded that this sentence also should be read, and the court so ruled. Upon this ruling error is assigned. It is said that the reading of this sentence made a statement by Mrs. Rogers, not otherwise verified by her (for she was not produced as a witness), testimony in the case, and that the jury may have predicated their verdict on such unauthorized testimony. If it be conceded that the sentence was written by Mrs. Rogers, there is a great force in the position of counsel. But it is not very satisfactorily proved that she wrote it. The letter being produced by the defendant as having been written and signed by Bertha, in the absence of any other testimony and aside from the intrinsic evidence furnished by the letter itself, the presumption undoubtedly is that she wrote the whole of it. She refused to admit, when examined as a witness on the subject,
Looking into the original letter, which is returned as part of the record, we find it is not separated into paragraphs, but is written continuously, from beginning to end, as one paragraph. It covers two and one half pages of ordinary ruled note paper, and contains no blank spaces or interlineation. The spaces between the written fines are uniform throughout The words “ you stick to that ” are on one fine, commencing close to the left margin. Then follows the sentence in question. The first two words, “ This was,” are written on the same fine, and the remainder of the sentence occupies the whole of the next ruled fine. Then follows on the next ruled fine the words “ Mark sends you his love,” etc., commencing at the left margin. The sentence in question was written with ink apparently a little fighter than that .used in the balance of the letter, and the handwriting of that sentence appears to us, who are not experts, quite similar to that in the rest of the letter. If there is any difference the penmanship of the sentence is the best. The idea expressed, however, would indicate that it came from some person other than Bertha, whoever wrote it. Omit the concluding words, “I saw,” or for the latter word read “had,” and there would be nothing in the sentence to indicate that it was written by another.
The testimony and reasonable probabilities on the subject are so uncertain and conflicting that had the circuit judge held that it appeared prima faeie that Bertha wrote the whole
7. The defendant offered in evidence nine letters or notes purporting to have been written to him by the plaintiff Bertha, which he received through the post office. They were proved to be in her handwriting. Eive of them were received, and four were rejected. Those rejected were short notes written on postal cards. There is nothing in them but threats, invective, and epithets, and demands for an interview with the defendant. They were probably competent evidence in the case. But the five letters which were admitted covered the whole ground. In these the threats were more violent, the invective more severe, and the epithets coarser and more brutal than in the postal cards. Besides, the admitted letters were profane and grossly indecent in expression. In some of them she demanded money, in smaller or larger sums, but did not once demand $3,000. There is not
Finding no material error disclosed by the record, we must affirm the judgment of the circuit court.
By the Court.— Judgment affirmed.