45 Neb. 472 | Neb. | 1895
This was an action by the defendant in error, in the district court for Lancaster county, for the breach by the plaintiff in error (defendant below) of an alleged promise of marriage. It is also alleged as a part of the cause of action in the court below that the defendant therein, under promise of marriage, seduced and debauched the plaintiff, to her damage, etc. The answer, while denying the alleged seduction, admits a promise of marriage conditioned that the plaintiff should prove upon inquiry to be a woman of good character and reputation. It is further alleged that the defendant, subsequent to said promise, ascertained that the plaintiff was not v woman of good character and reputation, but that she was, on the contrary, immoral and unchaste, by reason of which he declined to consummate the agreement above mentioned. There was a trial in the district court, resulting in a verdict and judgment for the plaintiff therein, from which the defendant prosecutes proceedings by petition in error to this court.
The first of the errors assigned is the denial of a continuance on the motion of the defendant in order to enable him
The plaintiff was permitted, while a witness in her own behalf, to repeat an alleged statement of the defendant’s mother relating to his, defendant’s, financial standing, and which is assigned as error. In actions of this character evidence of the defendant’s general reputation for wealth is admissible, not for the purpose of proving his ability to pay damages, but as tending to show the condition in life which the plaintiff would have secured by a consummation of the marriage contract. (Kerfoot v. Marsden, 2 Fos. & Fin. [Eng.], 160; Kniffen v. McConnell, 30 N. Y., 285; Holloway v. Griffith, 32 Ia., 409; Bennett v. Beam, 42 Mich., 346; Olson v. Solveson, 71 Wis., 667; Johnson v.
Q,. Did you learn anything of his financial condition prior to his coming to your house?
A. Yes, sir.
Q,. Through whom?
A. Through his mother, his brother-in-law, and sister.
Q. What, if anything, did you learn through his mother as to his financial condition?
Objected to, as incompetent and hearsay. Overruled. Exception.
A. I learned that he had property in the city of Lincoln and that he also had 160 acres of land lying northeast of the city. She said they owned a half-section all together, that is, Mr. Stratton senior and Mr. T. A. Stratton, but that T. A. Stratton’s property was worth more than the others, and she estimated the property at about $300,000, as near as I can remember.
The plaintiff had just been examined regarding the contents of Mrs. Stratton’s letters, and the utmost that can be
Albert Dole, the plaintiff’s father, who was a witness in her behalf, referring to a conversation with the defendant, in which the latter solicited the witness’ consent to the proposed marriage, testified as follows:
Q. State what he said.
A. I think he told me at that time that they had a half section within two miles of the Lincoln post-office, and half of it was in his name and the other half in his father’s or mother’s name; that is the best of my recollection now. And I was wanting to know, curiously, what the property was worth so near the city, so I quizzed him something
Q. Did you make any estimate from his representations as to what property he had?
Objection to the witness giving any estimate he made overruled and defendant excepts.
A. As near as I can remember he estimated to me so that I figured out his land, what he had left, was worth about $500 per acre from the lots he had sold. He told me he had sold a few lots off the piece. Tdon’t remember how many.
Q. Off what piece?
A. Off his quarter section, and in platting it it was worth about $500 per acre; something like that.
It is contended that the overruling of the foregoing objection was prejudicial error. Counsel do not attempt a defense of the above ruling in this court, and we assume that it cannot be successfully defended. But is the error prejudicial, calling for a reversal of the judgment? It will be observed that although the question embraces all of the defendant’s property, the answer is confined to a particular tract of land; and while the first sentence thereof might warrant the inference that the value mentioned was merely the estimate of the witness, the answer as a whole, in connection with the succeeding one, points unmistakably to the defendant’s own estimate rather than that of the witness. We are, after repeated examinations of this part of the record, unable to determine that the ruling under consideration was prejudicial to the defendant. It is not sufficient, as elsewhere stated, that an erroneous ruling may possibly be prejudicial, and that errors not probably conducing to a wrong final decision will be disregarded by the appellate court. (Vide Elliott, Appellate Procedure, 539, 632.) True, the jury might have construed the language quoted as referring to the estimate of the witness only, but
It was sought by John Paul and other witnesses to impeach the plaintiff's character by proving that she was reputed to be unchaste in the neighborhood of her home, and the following question was excluded on her objection during the examination in chief of the witness named: “Is there anything you know of your own personal knowledge, other than what y.ou have told, relative to her improper conduct?" It was certainly permissible for the defendant to show specific acts of incontinence on the part of plaintiff, whether committed before or subsequent to the marriage contract. If she had been guilty of fornication, that fact would have been a complete defense, since personal purity was one of the implied conditions of her agreement. If she had been guilty of acts wantonly indelicate and inconsistent with the conduct of a pure-minded woman, that fact was admissible at least in mitigation of damage. (Willard v. Stone, 7 Cow. [N. Y.], 21; Palmer v. Andrews, 7 Wend. [N. Y.], 142; Williams v. Hollingsworth, 6 Baxt. [Tenn.], 12; Cole v. Holliday, 4 Mo. App., 94.) But we cannot say that the ruling on that question, although erroneous, is prejudicial to the defendant, for the reason that no offer was made from which the court could determine that the evidence was material to the issues of the case. It has been frequently held that such an offer is necessary as a basis for review by petition in error. (Masters v. Marsh, 19 Neb., 458; Hamilton v. Ross, 23 Neb., 630.)
Exception was taken to the giving of one paragraph of the charge of the court as follows : “ With respect to the absolute contract to marry, damages for its breach, and the aggravation thereof by the alleged seduction, you are instructed that the burden of proof is upon the plaintiff to maintain the same by a preponderance of evidence. And with respect to the alleged conditional promise to marry
“ Dearest Al. : I arrived here safely and feel very well-under the circumstances. * * * Darling, there is a place in my heart no one but you can fill, and I realize the fact more and more all the time. However, I am going to be brave and cheerful, and wait until the time comes when we shall not be separated. I cannot help but worry about your mother. I fear there is more the matter with her than.*484 she is willing to admit. I don’t imagine this letter will seem very cheerful to you, but I do feel so worried about her that I can’t help expressing it. * * * Write immediately so that I may know. I have had so much attention from you for the past week that I miss it now. * * * Give my love to your mother.”
The foregoing was followed by letters on the 11th and 19th of the same month, in each of which reference is made to their mutual affection and contemplated marriage. From the last we quote the following: “I have all the confidence .in you imaginable, for I know you would not have confided in me as you did if you had not thought me worthy of your undivided love, and you may be sure no gentleman will be of much importance this winter. I do not intend to go with them any more than if we were married, for I think it just as wrong as it will be later.” The defendant, replying to the letter of January 2, addressed the plaintiff "Dear Eva,” and, after some suggestion of medical treatment for' her, adds, “I am sure your father and mother •will concur with me, and I assure'you my motives are the best, for I would write this if I-never expected you to become my wife.” Again, on the 15th, after addressing her as “My Darling Girl,” he wrote: “How I would enjoy that talk, for I am just as lonely without you as a man can be. * * * Why could we not write our love talks on separate slips of paper and write only sober business talk in our letters proper?” These communications afford unmistakable evidence of the relations of the parties ■on and prior to the date last above mentioned, and are, to say the least, radically inconsistent with the claim that the defendant had before that time learned from the plaintiff’s confession of her illicit relations with other men, including his own sister’s husband.
Mrs. Stratton, defendant’s mother, who was a witness in his behalf, testified on her examination in chief that while driving from her home to Lincoln in company with the
Finally, it is argued that the district court should have set aside the verdict on account of the misconduct of the plaintiff’s attorney “in reading to the jury and commenting
Affirmed.