The complaint alleged mutual promises, on December 15th, 1904, to marry within a reasonable time. The plaintiff offered evidence of such promises, made shortly prior to December 15th. The defendant offered evidence that he had asked her to marry him before that day; but that she declined, unless he would make a written contract that she should have $1,000 out of his estate, if she survived him. It was agreed that such a contract was made on December 15th, 1904, and signed by both, reciting that they were about to intermarry, and that later on that day they agreed to marry on January 5th, 1905. The defendant requested the court to charge the jury that, should they find that the contract made on December 15th was that the parties should marry on January 5th, the plaintiff could not recover, because her averments were of a contract to marry within a reasonable time.

This request was properly refused. It assumes that the oral agreement on December 15th, 1904, to marry on January 5th, 1905, would supersede any prior agreement to marry within a reasonable time. On the contrary the later agreement might be entirely consistent with the former, and amount simply to setting a day for its execution.

The plaintiff offered evidence that in February, 1905, the defendant demanded of her the surrender or destruction of the written contract of December 15th, and that she refused to comply with the demand. He offered evidence that he then promised to marry her if she would comply with it, and claimed that any previous contract to marry was at this time rescinded. Rescission at that time, by mutual consent, was pleaded as a separate defense.

On this point the court, in its charge, after observing that the defendant was not bound to show express words of rescission, recounted the claims of the parties in detail, as to the circumstances in proof, on which he relied as amounting to a rescission, and then said that if the jury found that the plaintiff did not consent to free the defendant *Page 313 from the obligation of the marriage contract, either expressly or by reasonable implication from her conduct, or that she would not consent to destroy or surrender the written contract of marriage and the defendant refused to marry her unless she would, the defense of rescission was not made out; but that if, on the whole case, he had satisfied them that her conduct was such as to amount to a release of his obligation to marry her, the verdict should be in his favor.

The defendant complains of this charge on two grounds.

One is that it assumed a claim on his part that he never made, namely, that the plaintiff's refusal to destroy or surrender the contract of December 15th, and his refusal to marry her unless she would, amounted, standing alone, to a rescission; whereas he relied also on all the attending circumstances. All the instructions must be read together, and when that is done this exception is without merit.

The other ground of objection is that the contract of December 15th was described as "the written contract of marriage," and that the jury may have been thus led to believe that the agreement to pay $1,000 was part of the marriage contract, and furnished a rule of damages. The purpose of the parties to intermarry was recited in this paper as the prime consideration of the promise by the defendant that the plaintiff should have $1,000 immediately after his decease. While the contract would have been more accurately named an ante-nuptial agreement in the nature of a marriage settlement, we perceive no reason to think that the jury can have been in any way misled by the language used. The writing was before them. It recited the existence of a contract of marriage, and the jury were specially instructed that if they found for the plaintiff, the obligation which it purported to cast upon the defendant's estate was not an element to be considered in assessing her damages.

There is no error.

In this opinion the other judges concurred.