Barnett et al. v. Kimmell
| Decision Date | 01 January 1860 |
| Citation | 35 Pa. 13 |
| Parties | Barnett et al. versus Kimmell. |
| Court | Pennsylvania Supreme Court |
Kopelin, for the plaintiff in error.—The court below submitted a question of fraud to the jury, upon evidence wholly insufficient for such purpose. Fraud is not to be implied from doubtful circumstances, which only awake suspicion: Story on Contracts, p. 416. There was no evidence at all, as to what took place at the execution of the bond and agreement; and it was, therefore, error to charge the jury, that if they found the bond and agreement were simultaneously executed, on the part of Barnett, in pursuance of a concerted scheme, &c., it was a fraud upon the plaintiff's rights. To leave a fact to the jury, of which there is no evidence, is error: Werkheiser v. Werkheiser, 6 W. & S. 188; Muirhead v. Fitzpatrick, 5 Id. 508; Evans v. Mengel, 1 Barr 82. And it is error to submit it to the jury, to draw an inference, when there is no evidence from which it may legally be drawn: Gilchrist v. Rogers, 6 W. & S. 488; Urket v. Coryell, 5 Id. 84.
The court also erred in charging that a design on the part of Barnett, at the time of the marriage, not to live with his wife, was such a fraud upon her rights, as tainted and vitiated the marriage contract, and consequently enabled her to recover on the bond. It is the consent of the parties, and not their cohabitation, which constitutes a valid marriage: Broom's Legal Maxims, p. 369; 2 Bac. Abr. p. 331.
The marriage extinguished the debt between the principals to the bond: 1 Inst. 264; 6 Rep. 68. And a wife cannot, in a suit against her husband, treat her marriage as a nullity; she must first establish the nullity of the marriage, by a judicial proceeding for that purpose: Griffith v. Smith, 3 Penn. L. J. 151.
R. L. Johnston, for the defendant in error.—The very able charge of the judge before whom the case was tried, is a sufficient answer to the argument of the plaintiff in error. There was abundant evidence of fraud to be submitted to the jury, and the legal axiom that "fraud vitiates everything it touches," is not more invincible in its application, than the maxim that "the party perpetrating a fraud cannot be benefited by it;" while it would allow the defrauded woman her remedy under the marriage, it will also declare it void for her protection, and as a punishment to the perpetrator of the fraud.
Theodore Barnett, a minor, with his uncle, David Hamilton, entered into a bond with warrant of attorney to Emma Kimmell, in the penal sum of six hundred dollars, conditioned for the payment of three hundred dollars within sixty days from the 9th June 1858, with stay of execution for that period, and on the 14th June in the same year, judgment was entered upon it. At the same time, and of the same date with the bond, another paper was drawn up and executed by the obligee, and delivered to Hamilton, one of the obligors, in which, after reciting the giving of the bond, &c., it was provided that, if within sixty days, Barnett proposed to marry Miss Kimmell, and was rejected by her, or on the other hand, if his proposition was accepted, and he married her, then and from thenceforth the bond was to be null and void. On the 14th July 1858, they were married in the presence of witnesses, at the house of Miss Kimmell's sister, where she resided, by the Rev. Mr. Babcock, a minister of the Methodist Episcopal Church. Upon a rule taken on the 13th June 1859, on the plaintiff, to show cause why the judgment should not be marked satisfied, the court directed an issue to determine whether the conditions expressed had been complied with, which was tried, and under a strong charge from the presiding judge, the jury gave a verdict for the plaintiff. The fact of marriage was not denied, but it was alleged, that it was accompanied by such circumstances of fraud as to render it null and void; or, in other words, that the parties were not married at all. This is a startling proposition, and requires a careful examination, as it would give the courts the power, in an entirely collateral proceeding, to divorce man and wife.
Barnett, by the obligation, was bound to make the offer to marry. This was imposed upon him as a duty by the plaintiff, and one which she knew he was unwilling to perform. His connections were opposed to the match, and this was well known to the plaintiff, who provided for it, by securing the payment to her of three hundred dollars, in case he did not give her the opportunity, within a limited period, of accepting or rejecting him.
The plaintiff declined taking any smaller sum,...
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