Barge v. Haslam

• Decision Date: 18 December 1901
• Citation: 88 N.W. 516,63 Neb. 296
• Parties: BARGE v. HASLAM.
• Court: Nebraska Supreme Court

63 Neb. 296

88 N.W. 516

BARGE

v.HASLAM.

Supreme Court of Nebraska.

Dec. 18, 1901.

Syllabus by the Court.

1. Where judgment has been entered notwithstanding the verdict, and the only finding of the trial court is that on the pleadings defendant is entitled to judgment, only the pleadings will be considered in deciding the rightfulness of the judgment.

2. A petition pleading that mutual oral promises to marry when plaintiff came of age were made in 1891, and that defendant many times between that date and November 25, 1893, renewed and acknowledged the contract, both orally and in writing, with an answer denying generally, and alleging an oral promise in 1890, and that plaintiff was then only 15 years old, and the promise was void because not in writing, and a reply admitting only that the marriage was not to take place until plaintiff came of age, and denying all other allegations, do not, when taken together, show a contract void under the statute of frauds.

3. While a verdict cannot be taken to supply essential facts which are wanting in the pleadings, it must be taken, where parties go to trial without objection on that ground, to supply any lack of definiteness and precision in the allegation of facts which appear.

Commissioners' opinion. Department No. 1. Error to district court, Dodge county; Marshall, Judge.

Action by Marie Barge against George Haslam. From a judgment in favor of defendant, plaintiff brings error. Reversed.Anderson & Keefe and T. M. Franse, for plaintiff in error.

J. E. Frick and McNish & Oleson, for defendant in error.

HASTINGS, C.

This is an action for breach of promise of marriage, in which the trial court rendered judgment for defendant, and dismissed the action, notwithstanding a verdict for plaintiff in the sum of $750. The final action of the trial court was in terms as follows: “On this 11th day of May, 1898, this cause came on for hearing upon the motion of the defendant for a judgment upon the pleadings notwithstanding the verdict of the jury, and the court, being of opinion that the defendant is entitled to judgment upon the statements in the said pleadings, and being fully advised in the premises, does sustain said motion; to which ruling of the court the plaintiff at the time duly excepted, and plaintiff is allowed forty days in which to prepare and serve bill of exceptions. It is therefore ordered, considered, and adjudged by the court that the defendant, George Haslam, go hence without day, and recover of and from the plaintiff, Marie Barge, his costs herein expended, taxed at $2.10; to which judgment the plaintiff at the time duly excepted.” Counsel for defendant in error make some claim that this action of the court can be supported on the ground that there was no legal evidence submitted at the trial to support plaintiff's cause of action, even if it is found that one was alleged. It does not seem possible that this judgment can be sustained on any such ground. It is true that defendant's motion was to defer judgment on the verdict rendered, as well as to enter judgment for defendant non obstante veredicto. It is claimed on defendant's behalf that, when the formal order to defer judgment on this verdict was entered, this, under section 439 of the Code, gave the court authority to pass upon the facts in the case, and render such judgment as was required upon the evidence submitted. A somewhat careful examination of the authorities cited by the defendant fails to uphold this contention. But it is not necessary to decide the point in this case. The learned trial court did not assume to pass on the facts, but only on the pleadings. It would seem that the only circumstances under which the court has authority to enter judgment without a verdict or finding to support it, is when the pleadings on their face disclose a right to such judgment on the part of the successful contestant. The only finding made by the court here is that the defendant is “entitled to judgment upon the statements in the pleadings,” and, unless that finding can be upheld, the judgment must be set aside. Only the pleadings, therefore, will be examined, to determine as to whether or not this judgment should be affirmed.

The petition alleges the residence of the defendant, under the name of George Haslam, in Dodge county, for many years; that on or about July 1, 1891, both being then unmarried, at his request the plaintiff promised to marry him, and he to marry her; that the agreement was oral, and the marriage was to take place on plaintiff's reaching 18 years of age; that afterwards the defendant many times orally and in writing between July 1, 1891, and November 25, 1893, renewed and acknowledged said contract; that plaintiff, in reliance upon defendant's promises, remained single; that defendant, on November 25, 1893, married another; and that plaintiff was...