Anna C. Dyer v. Charles H. Lalor

• Decision Date: 17 January 1920
• Parties: ANNA C. DYER v. CHARLES H. LALOR
• Court: Vermont Supreme Court

109 A. 30

94 Vt. 103

ANNA C. DYER v. CHARLES H. LALOR

Supreme Court of Vermont

January 17, 1920

October Term, 1919.

ACTION OF CONTRACT for breach of promise of marriage. Pleas, the general issue and the statute of limitations. Trial by jury at the March Term, 1919, Rutland County, Butler, J presiding. Verdict and judgment for the plaintiff for $ 20,000. The defendant excepted. The opinion states the case.

Judgment affirmed as of the date it was rendered by the county court.

M C. Webber for the defendant.

Lawrence Lawrence & Stafford for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

The declaration, based on an alleged breach of promise to marry, contains four counts: The first, declaring on a promise made on, to wit, May 2, 1916, to marry when requested; the second, on a promise made on, to wit, May 2, 1916, to marry within a reasonable time; the third, on a promise made on, to wit, March 28, 1918, to marry within a reasonable time; and the fourth (called in the record the substitute count) on a promise made on, to wit, April 10, 1901, to marry thereafter, and further alleging that said agreement was by agreement from time to time postponed from time to time until October 5, 1918. All the counts allege the breach to consist of defendant's marrying another woman on the day last named. Defendant pleaded the general issue to all the counts, and the statute of limitations to the alleged contract set up in the last count. No replication being filed to the plea of the statute, issue was treated as joined thereon by force of a rule of practice.

The plaintiff introduced evidence tending to show mutual promises of marriage (in legal effect) within a reasonable time, made between her and the defendant in March, 1901, subject to objection on the ground that no action would lie thereon, the statute of limitations being pleaded. No exception was taken to this particular ruling; but inasmuch as the same legal question is raised several times where exceptions were taken in connection with the admission of evidence, and in connection with the charge to the jury, we consider it at this time in disposition of all exceptions in a legal sense within the same group.

The material allegations of the fourth count were strongly supported by the evidence, direct and circumstantial, introduced by the plaintiff. It is said that there was no evidence showing any agreement to postpone the time of performance. But an examination of the transcript convinces us that the circumstances had such tendency as evidence. There was no right of action by the plaintiff until there was a breach by defendant of the mutual promise of marriage, and consequently until such breach the statute of limitations did not commence to run. The evidence had no tendency to show a breach prior to the time of his marriage to another woman, on October 5, 1918. That act in itself constituted such a breach.

A postponement, by mutual understanding of the parties, of the time of marriage, leaving it, as before in legal effect, within a reasonable time, did not terminate the contract, nor make a new one. Rather, in the circumstances shown by plaintiff's evidence, it was a recognition of an existing contract. Clement v. Skinner, 72 Vt. 159, 47 A. 788. On the same authority, there was no error in permitting the plaintiff to testify that, being a music teacher and engaged in giving music lessons, she ceased such work in the spring of 1917 at his instance, he saying to her that she did not have to work, that they were engaged, and he was going to take care of her. This evidence was admissible on the question as to whether the time of performance was in fact postponed by mutual agreement. Of the same tendency and properly admitted was the evidence that defendant would come to plaintiff's home and assist in preparing meals, bringing with him venison in season, partridge, steaks, chicken, fish, baked meat, fruit, and candy.

To corroborate the testimony of an express mutual promise between the plaintiff and defendant, all the facts and circumstances that took place between them from the time when they first became acquainted with each other in 1900 to the time of the alleged breach were admissible in evidence. Whitcomb v. Wolcott, 21 Vt. 368; Anderson v. Kirby, 125 Ga. 62, 54 S.E. 197, 114 A. S. R. 185, 5 Ann. Cas. 103; Vaughan v. Smith, 177 Ind. 111, 96 N.E. 594, Ann. Cas. 1914 C, 1092; Richmond v. Roberts, 98 Ill. 472; Russell v. Cowles, 81 Mass. 582, 15 Gray 582, 77 Am. Dec. 391; Burnham v. Cornwell, 55 Ky. 284, 16 B. Mon. 284, 63 A. D. 529; 4 R. C. L. 169, § 26. And in view of the fact that in the promise of marriage, as originally made between the parties, the defendant stated that when he reached the height of his ambition and success, they would be married, his statement to the plaintiff in the spring of 1915, that he was worth $ 75,000, was relevant to the issue of betrothed relations then existing between them. Clement v. Skinner, 72 Vt. 159, 47 A. 788. As bearing on the same question, evidence was properly received tending to show that when defendant was visiting the plaintiff at her home, prior to the death of her mother in February, 1918, he, in speaking to the latter, always called her "mother."

The plaintiff's attention (when on the witness stand) was called to an occasion shortly, or a few weeks, after her mother's death, and asked if defendant called at her home and made some statement in reference to their marriage. Answering in the affirmative, she was asked to state the circumstances of that call. She answered that he said he realized "now that his mother was gone," he would have to show himself a man, "and he arranged the marriage in six or eight weeks from the 28th of March." Counsel for defendant objected to the part of the answer that he arranged the marriage within a certain time as not responsive. Further that, since the only allegations in the pleadings are an arrangement to marry within a reasonable time, the answer was not material, and he moved to strike it out. Exception was saved to the ruling permitting the answer to stand. These objections are without force. The fact that so much of the answer was not responsive, did not make it inadmissible. Massucco v. Tomassi, 80 Vt. 186, 67 A. 551. And such an arrangement by the parties was evidence of what would be a reasonable time. Clement v. Skinner, before cited.

The plaintiff was asked whether she made any preparations, or did after that, in the way of getting her marriage clothes. The time referred to in the question was in Holy Week, March, 1918. Objection was made on the ground that the declaration contained no allegations for special damages. The evidence was admitted and exceptions saved. She answered in the affirmative, and that the matter was talked over between her and the defendant. In answer to other questions, she said it related to a dress she had not made up and which she was to use for the occasion; that it was a dress defendant gave her the year before in January, telling her at the time that he would not make it up, "that we would use that later." It appearing that the matter of what she was doing and was preparing to do in the respect named, was talked over between them, the evidence given had a direct tendency to establish the promise of marriage, and was properly received. Munson v. Hastings, 12 Vt. 346, 36 A. D. 345; Rime v. Rater, 108 Iowa 61, 78 N.W. 835. The distinction between plaintiff's acts in preparation for the marriage, made with defendant's knowledge, and those made without the latter's knowledge, is pointed out in Russell v. Cowles, 81 Mass. 582, 15 Gray 582, 77 Am. Dec. 391.

In cross-examination of the plaintiff as a witness, she was asked whether defendant during all the twenty years (of her claimed courtship) was paying polite attention to other ladies, and answered, "Not attention like that. He denied that." Defendant moved to strike out the answer, because (it was said) there was nothing in the question that excused the plaintiff's saying, "He denied that." Exception was saved to the court's refusal to strike out. Though the part of the answer to which objection was made was not strictly responsive, it was proper evidence. Consequently it was discretionary with the court to permit it to stand.

Exception was taken to the statement in the charge to the jury that such a contract may be made part at one time and part at another; also to the statement that the time when the promise was made is not essential, for such time is not of the essence of the contract. The former statement is unobjectionable when taken with the context. It is clear from what was said immediately following and as a part of the same sentence, that what the court meant was that the promise to marry might be made at one time, and the time of performance "be subsequently fixed by the parties," conveying the idea that even though the time was not specified in the promise of marriage, the parties could fix it by agreement later, and if not so fixed by them, either party might insist upon its performance within a reasonable time. The latter statement objected to was made in connection with the statement that "something has been said in respect to the time of the contract as alleged in the declaration." Referring to this, the court said, "but the time when the promise was made is not essential, for such time is not of the essence of the contract." This means no more, in that connection, than that it is not essential that the true time when the promise was made be the time alleged in the declaration. The general rule is that, though a time of the making of the promise must be alleged, it is only for form, and the plaintiff is at liberty to prove the...