20 Ind. App. 277 | Ind. Ct. App. | 1898
Lead Opinion
This was an action by appellee against appellant to recover damages for an alleged breach of a marriage contract. The suit was commenced in the Fulton Circuit Court. The venue was changed to the Miami Circuit Court, where a trial was had before a jury, and a verdict returned in favor of appellee, awarding her damages in the sum of $4,200.00. Pending appellant’s motion for a new trial, the appellee entered a remittitur of all the judgment but $1,200.00, whereupon the motion for a new trial was overruled, and final judgment pronounced.
As no question is presented by the assignment of errors as to the sufficiency of the complaint, and the affirmative paragraph of answer, we will but notice
The answer was in one paragraph, and it is therein averred that at the time said promise was made, which promise he denied, appellee was an unchaste woman; that the same was unknown to him, and that without the connivance of appellant, she did, on a certain day, have illicit carnal intercourse with a person named, and that appellant was then ignorant thereof. The answer contained a denial of all other matters in the complaint not therein specifically denied.
The errors assigned are as follows: (1) The court erred in granting a continuance * * * on the application of the appellee. (2) The court erred in granting a change of venue * * * on the affidavit of appellee. (3) The court erred in overruling appellant’s motion to strike out affidavit for change of venue. (4) The court erred in overruling appellant’s motion for a new trial. The first error assigned is expressly waived by appellant, and we will consider the remaining questions in the order counsel have discussed them. The second and third specifications of the assignment of error, do not present any questions, but the points involved therein, are properly saved in
On February 12, 1896, being the ninth judicial day of the February term, 1896, of the Fulton Circuit Court, the appellee filed her motion, supported by affidavit for a change of venue from the county, and over appellant’s objections, the motion was sustained, and the venue ordered changed. The reason assigned in the affidavit for the change was that appellant had an undue influence over the citizens of said county, and that by reason thereof she could not have a fair and impartial trial therein. Appellant makes no objection to the form and substance of the affidavit, but contends that it was not filed in time, under a rule of court then in force. The rule referred to is as follows: “All applications for a change of venue must be made by the second Wednesday of each term, or the right shall' be deemed waived;” * * * The complaint in the case at bar was filed on December 24, 1894, and summons issued the same day. We judicially know that the February term, 1896, of the Fulton Circuit Court commenced on the first Monday of February, 1896, being the third day of said month. On the 12th of February the affidavit for a change of venue was filed. That was on Wednesday, the ninth judicial day of the term, and the second Wednesday. The question is properly presented by a bill of exceptions. The order granting the change contained the following entry: “For the reason that it has been the universal practice, under rule six of the rules of this court, to allow motions for a change of venue to. be filed on the second Wednesday of each term, and to grant changes- of venue from the county on affidavit and motion filed on, such second Wednesday.” We do not understand why the court made this entry, and are clearly of the opinion that it does not add any force to the rule of the court quoted.’
In Montana it was held that an order of court to file certain papers by a certain day, was complied with by filing them on that day. Higley v. Gilmer, 3 Mont. 433. It has also been held that a rule to plead by a particular day, that such day was construed to continue until the office was open the next day, or morning. Oxley v. Bridge, 1 Doug. 67. But aside from this construction of the rule, we do not think there was any reversible error in sustaining appellee’s motion for a change of venue. If, as appellant contends, the application was not made in time, under the rule, it was a matter largely within the discretion of the trial court, and it not appearing that such discretion was abused, or that the appellant was injured thereby, there was no error in sustaining the motion. This disposes of the second assignment of error.
The appellant moved to strike out the affidavit in support of the motion for a change of venue, and this
Appellant assigned thirteen reasons for a new trial, and the overruling of such motion is challenged by the fourth assignment of error. The first ground for the motion was that the verdict is not sustained by sufficient evidence, and counsel have argued this at some length. Appellant insists that there is not sufficient evidence to show that any marriage contract was ever made between appellant and appellee, and hence the evidence is insufficient to support the alleged breach. This insistence is not maintainable. Briefly stated, it appears from the evidence that appellant was a widower, about sixty-six years old, and that appellee was a widow, about twenty-four years old. They both had children, those of the appellee being infants. Appellant was a retired farmer and was worth probably about $20,000.00. The appellee was in indigent circumstances and was receiving charitable donations. Up to about the 23rd of November, 1894, they were strangers to each other, and through some ladies, who were making some provision for appellee, appellant heard of her, called on her and gave her some assistance in a financial way. The appellee testified that on or about the 28th day of November, 1894, appellant proposed marriage to her; she accepted the proposal and that they mutually agreed to marry each other, and that said marriage should be consummated about December 14, 1894. Appellant in his own behalf, denied these statements, and testified that no contract of marriage was ever made between them; that the matter was never talked of, and while he admitted that he was at the home of the appellee on one or more
Where there are no legal disabilities existing, an offer of mariage by one person to another, and an acceptance of such other, such offer and acceptance constitute a marriage contract. No formal words are necessary, and it is sufficient if both parties understood it to be an offer of marriage. An additional element of the contract is, that the acceptance must be made known to the party making the offer. As there must be a consideration to support all contracts, so there must be a consideration in a marriage contract, and the mutual promises of the parties constitute the consideration. As to these elementary principles, we cite 4 Am. and Eng. Ency. of Law (2nd ed), pp. 882 to 889, and authorities there cited. There being some evidence that there was a marriage contract, and that question having been submitted to the jury and determined by them, we cannot disturb the judgment on that ground.
There is some conflict in the evidence as to dates when appellant and appellee met, and when the contract was finally consummated, as testified to by appellee, but it is not our province to reconcile this conflict, and in any event the exact dates do not constitute the essence of the contract.
Counsel for appellant insist that the short acquaintance between appellant and appellee, the disparity in their ages, and the fact that the evidence shows that there were no acts or manifestations of love or affection between them, are enough to discredit the appellee. These were all questions the jury had before them and doubtless weighed, and we cannot consider them.
Appellant next contends that the evidence wholly
She testified further that he called again, and they talked the matter over, and he again said he wanted to wait awhile, and that she again told him she was not in favor of waiting. She also testified that he then told her he wanted to wait awhile because his children objected to his marriage. Again she testified as follows: “Q. Do you remember of being at Phil. Stoekberger’s after that, — -24th December? A. Yes I was there at that time. Q. Was the defendant there? A. Yes. Q. You may state to the jury what was said between you and him? A. Well, he just talked on other subjects for a while until the other ladies went out, ' * then he asked me to speak to me privately, and I told him anything he had to say he could say before Mr. Stockberger, then he asked me why I did this, and I told him he didn’t do as he agreed to. I told him he promised to marry me and
On cross examination the following questions were propounded to her and answered: Q. “ * * * Now then, you knew on the 14, he didn’t call in accordance with the statements you made, and that he came and wanted to postpone the matter. Now he hadn’t stated then that he would not marry you, had he? Up to the time you filed the complaint had he ever said he would not marry you? A. I don’t know whether he said that or not. I don’t think he did just say that.”
She then testified that on December 23, she went to Phil. Stockberger’s, who was her brother-in-law, and sent for and consulted an attorney, and on the following day commenced her action. Within nine days from the time the marriage was to have been consummated, as shown by appellee’s evidence, which stands uncontroverted, and even before appellant had renounced the contract or refused to marry her, we find this woman seeking solace for her wounded affections and lacerated heart in the counsel of her lawyer, preparatory to the commencement of her action for damages, and which action was commenced within ten days of the time fixed for the marriage.
According to her evidence, which stands alone upon the subject, the appellant visited appellee after the 14th of December. They talked over the subject of their contemplated marriage, and appellee says appellant went no further than to say that on account of his children, he wished to postpone the marriage for awhile, and she distinctly says that up to the time she commenced her action, he had not refused to marry her, and had not renounced the marriage contract. Even on the day the suit was commenced, he called on her, and asked her what she had done this
Here, as the record shows, appellant had a family of five children, all of whom had attained their majority and all were married but one. He owed at least some consideration to them, and if they were opposed to his marriage with appellee, and he knew it, it was his duty if he could to reconcile them to it, and it was not unreasonable for him to want to postpone the marriage for that purpose. The record clearly shows that neither by word, act or deed did appellant renounce his alleged marriage contract, but on the contrary shows that he intended to perform it. We recognize the rule that a renunciation of the contract carries
In Kurtz v. Frank, 76 Ind. 594, it was said: “If before the suit was brought, the appellant had renounced the contract and declared his purpose not to keep it, that constituted a breach for which the appellee had an immediate right of action.” To the same effect in principle are the following: Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516; Halloway v. Griffith, 32 Ia. 409, 7 Am.Rep. 208, note; Frost v. Knight, L. R. 7 Exch. 111, 1 Moak’s Eng. Rep. 218. In Adams v. Byerly, 123 Ind. 368, it was charged that appellant promised to marry appellee on April 30, etc.; that .the promise or agreement was mutual; that he refused to marry her on that date and persisted in his refusal till June 7, following, when suit Avas commenced. The court said: “A refusal to comply with his contract, without any apparent-or sufficient reason, gave the plaintiff below an immediate right of action. Any conduct of a party who has promised to marry another, which amounts to a repudiation of the contract, renders the contract no longer obligatory on the other, and constitutes such a breach as entitles the latter to sue. Thus, where the agreement was to
In Jones v. Layman, 123 Ind. 569, appellant wrote appellee that he had heard rumors and reports about her which were derogatory to her character, and that he would not visit her until he had investigated them and learned whether or not they were true. After writing this letter, a month or more elapsed and no communication passed between them, when she commenced her action. The court said: “When all the evidence is considered, including the letter, we are not prepared to say that there was no evidence to show a breach of the contract, if a contract existed between the parties.” In Kansas it has been held that a positive refusal to perform a contract to marry, even if made before the time for performance, is such breach as will authorize an immediate action for damages. Kennedy v. Rogers, 2 Kan. App. 764. In Virginia it was held that a repudiation of his marriage contract, in tolo, even where no day was fixed, gave the woman an immediate right of action. Burke v. Shaver, 92 Va. 345, 23 S. E. 749.
We have cited these authorities in support of the universal rule that before a right of action accrues for the breach of a marriage contract, it must be averred and proved that the contract has been repudiated and such repudiation must be shown by the acts, words, conduct or deed of the party who so repudiates it, and to be without sufficient reason or
Under these facts, the judgment must be reversed. This makes it unnecessary for us to decide other questions presented by the record, as they will not likely occur in a subsequent trial. The judgment is reversed, with instructions to the court below to sustain appellant’s motion for a new trial.
Dissenting Opinion
Dissenting Opinion.
I cannot concur in the opinion of the majority of the court.
The jury found, and were warranted from the evi
It is the policy of the courts to insist on good faith in all social, domestic and business relations of life. The rule should not be relaxed in favor of a man of age and experience and against a member of the weaker sex struggling with the adverse conditions of poverty. The judgment should be affirmed.