Schreder v. Michel

• Decision Date: 23 March 1889
• Citation: 11 S.W. 314,98 Mo. 43
• Parties: SCHREDER v. MICHEL.
• Court: Missouri Supreme Court

11 S.W. 314

98 Mo. 43

SCHREDER v. MICHEL.

Supreme Court of Missouri.

March 23, 1889.

BREACH OF MARRIAGE PROMISE — INSTRUCTIONS.

1. In an action for breach of marriage promise, an instruction that if certain facts are true plaintiff may recover is not reversible error for omitting from view the defense of limitation, where another instruction clearly states that, if the limitation has expired before the bringing of the action, plaintiff cannot recover.

2. An instruction that a breach takes place, where defendant refuses to carry out or disables himself from carrying out his promise is not defective, as fixing defendant's marriage with another, which was in evidence as the only time for the beginning of the period of limitation.

3. Plaintiff's petition having asserted a marriage promise without asserting that the promise was to marry within a reasonable time, or to marry generally, and defendant having denied any promise whatever, it was not necessary for the court to define a "reasonable time" with reference to the running of the statute of limitations.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Hermann & Reyburn, for respondent. B. Schnurmacher, for appellant.

PER CURIAM.

This action is based on a breach of promise to marry. The defense was a general denial and plea of limitation. At the trial the court gave (among others) the following instructions for plaintiff: "(1) If the jury find and believe from the evidence that plaintiff and defendant being unmarried, and residing in the city of St. Louis, defendant, during the year 1874, and at various times subsequent thereto, requested plaintiff to marry him as soon as he (defendant) would be enabled to make satisfactory arrangements for the support of a family, and at such time subsequent thereto as he (defendant) would request plaintiff to complete or perform said contract of marriage; and if you further find that plaintiff accepted said offer and agreement, and consented to marry defendant when thereto requested, as above stated; and if you further find that plaintiff relied on such promise and agreement, and has ever since remained unmarried, and willing to marry defendant; and if you further find that prior to any request on the part of defendant to plaintiff to carry out said contract of marriage defendant married another woman, — then the court instructs you that plaintiff is entitled to your verdict." "(3) An action for the breach of promise of marriage is barred in five years from the time a breach of the contract takes place; and a breach only takes place where defendant refuses to carry out, or disables himself from carrying out, his promise. If, therefore, you find and believe from the evidence that defendant requested plaintiff to marry him at such time as he should make satisfactory business arrangements, and should request plaintiff to carry out the agreement to marry, and plaintiff assented to such arrangement, then the court instructs you that the statute of limitations did not begin to operate against plaintiff until such request was made by defendant, unless you find that defendant married another woman prior to making such request; and plaintiff has five years within which to bring her action from the date of such marriage to another woman or refusal of defendant." For defendant: "(6) Even if the jury believe from the evidence that defendant promised to marry plaintiff, yet if you...