Snell v. Bray

• Decision Date: 21 November 1882
• Citation: 56 Wis. 156,14 N.W. 14
• Parties: SNELL AND OTHERS v. BRAY.
• Court: Wisconsin Supreme Court

56 Wis. 156

14 N.W. 14

SNELL AND OTHERS

v.BRAY.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, St. Croix county.

It is alleged in the first count of the complaint that on February 10, 1875, there existed, and had for a long time theretofore existed, a contract of marriage between the defendant and the plaintiff Bertha, (then Bertha Hunter,) and that in consderation that she released him from said contract and the obligations thereof the defendant, on the day aforesaid, made and delivered to her a promise or agreement in writing whereby he promised to pay her $3,000 for such release as soon as she should be married. It is further alleged that on the nineteenth of January, 1876, she intermarried with the plaintiff Marcellus Snell, and immediately notified the defendant of her said marriage, and requested him to pay her the $3,000, which he refused to do, and has not paid the same or any part of it. The complaint contains a second count in all respects like the first, except it is not stated therein that the agreement was in writing. Judgment is demanded for $3,000, with interest thereon from January 19, 1876, and for costs. The answer denies generally all of the allegations of the complaint, except it admits the marriage of the plaintiffs, as stated in the complaint. The action was commenced in 1880. It was tried in November, 1881, and resulted in a verdict for the plaintiffs for $4,064, being the full amount of the claim. A motion for a new trial, on the ground that the verdict was contrary to the evidence, was made by the defendant and denied by the court, and judgment was entered pursuant to the verdict. The case is further stated in the opinion. The defendant has appealed from the judgment.

Pike & Van Keuren, for respondents, Bertha J. Snell and another.

C. D. Cleveland, for appellant, J. M. Bray.

LYON, J.

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 defendant by Bertha from the marriage contract is not a good consideration for his promise to pay her a sum of money. Certainly the release of one party to a valid contract by the other party thereto is, ordinarily, a sufficient consideration for a promise by the party released to pay such other a sum of money, or to do any other lawful act. Such a transaction amounts to a substitution of one contract for another, the consideration of the original contract being the consideration for the substituted contract. Brown v. Everhard, 52 Wis. 205; [S. C. 8 N. W. REP. 725.]

As was said by Lord DENMAN, in Stead v. Dawber, 10 Adol. & E. 57: “The same consideration which existed for the old agreement is imported into the new agreement which is substituted for it.” We 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 plaintiff to recover, they were required to satisfy the jury by evidence that a marriage contract existed between 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 testimony 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 he thereupon wrote, signed, and delivered to her an instrument in writing substantially in the words following:

“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. BRAY.”

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 plaintiff, 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 this 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, c. 134, (Rev. St. 1858, p. 817,) this court held, in Hackett v. Bonnell, 16 Wis. 417, 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 objection to the competency of the husband as a witness, and that ruling is one of the grounds upon which the judgment of that court was reversed. It is true, as suggested by counsel, that in the case cited in the opinion to sustain the rule, ( Barnes v. Martin, 14 Wis. 240,) the husband was a party in interest; but the fact remains that the rule as above stated received the sanction of the court, and has not since been disturbed. The case is, in principle, precisely like this case. Each relates exclusively to separate property of the wife. The language of the corresponding provisions in the present Revised Statutes, § 4068, differs somewhat from the former statute, which was construed in Hackett v. Bonnell, but we think there was no intention to change the law, and that it is not changed by the revision. Section 4068 is as follows: “No person shall be disqualified as a witness in any action or proceeding, civil or criminal, by reason of his interest in the event of the same, as a party or otherwise; and every party shall be in every such case a competent witness, except as otherwise provided in this chapter. But such interest or connection may be shown to affect the credibility of the witness.” Counsel rely upon the words “in every such case,” and claim that they mean “in every case in which the party is a party in interest,” leaving intact (if the husband or wife be only a nominal party) the common-law rule that they are not competent witnesses for or against each other. We cannot adopt this construction. We think the words above quoted simply mean “every such action or proceeding, civil or criminal,” previously mentioned in the section. We must, therefore, adhere to the rule of Hackett v. Bonnell, and hold that the plaintiff husband was a competent witness in the action.

4. A witness was called by the plaintiff to prove that the defendant usually signed his name “J. M. Bray.” He also described the defendant's handwriting. The witness was the cashier of a bank, and was permitted to testify that defendant was a depositor in such bank and had been for 15 years. The admission of testimony that he was such depositor is assigned as error. The testimony was properly received for the purpose of showing the means witness had of becoming acquainted with defendant's signature. It was not shown how large his deposits or balances were, but only the mere circumstance that he had kept a bank account for 15 years. This does not tend to show that the defendant is a man of wealth, as claimed by counsel for the defendant. The members of this court can testify truthfully from actual exporience that the keeping of a bank account for many years is a luxury in which even the poor sometimes indulge. Besides, the defendant, when on the stand as a witness, was interrogated in respect to his wealth. Such testimony was rejected by the court on objection of his counsel. But the objection was at once withdrawn, and by consent he was examined and answered fully in respect to his pecuniary condition when the contract in suit is alleged to have been made. After such testimony had been admitted by consent, it would be difficult to say that the testimony of the cashier is material, even though technically inadmissible.

5. The plaintiffs offered in evidence the following letter, which was probably written in 1877:

“OSHKOSH, September 23.

ELIZA ROGERS: 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 course, and are sure to...