Chiles v. Kail

• Court: Washington Supreme Court
• Writing for the Court: SCHWELLENBACH, Justice.
• Citation: Chiles v. Kail, 208 P.2d 1198, 34 Wn.2d 600 (Wash. 1949)
• Decision Date: 18 August 1949
• Docket Number: 30820.
• Parties: CHILES v. KAIL.

208 P.2d 1198

34 Wn.2d 600

CHILES v. KAIL.

No. 30820.

Supreme Court of Washington

August 18, 1949

Department 2

Action by James P. Chiles against Jean Kail, also known as Jean Rousseau, also known as Jean Davis, for money allegedly given by plaintiff to defendant in reliance upon her promise to marry the plaintiff. From the judgment, plaintiff appeals.

Affirmed.

GRADY J., dissenting.

Appeal from Superior Court, King County; Malcolm Douglas, judge.

Frank C. Trunk, Rummens & Griffin and Kenneth P. Short, Seattle for appellant.

Will G Beardslee, Lynn J. Gemmill, Seattle, for respondent.

SCHWELLENBACH Justice.

Plaintiff commenced an action against defendant for the sum of $12,314.84, given by him to her between April, 1940 and March, 1945, in reliance upon her promise to marry him, alleging that the money was obtained by fraud and trickery. The defense was that the action was barred by the statute of limitations.

At the time of the trial, plaintiff was a bachelor, sixty-two years of age. He is assistant engineer at the Seattle Public Library and the National Biscuit Company. In May, 1940, he was walking down Fourth Avenue in Seattle, when he was accosted by defendant. She smiled at him and called him by name. He did not recognize her. She said that she had met him at a civil service ball. He took her to dinner. She asked why he had never married. He replied that no one would have him. She said, 'Would you marry me?'

After dinner she took him out to her house and introduced him to her younger sister, Marion. Although she denied it, even at the trial, there is no doubt that Marion is her daughter. A couple of days later, she called him on the telephone, and from then on, for the next two months they were together almost every day.

By July, he was in love with her and it was agreed that they would be married. She told him that she had been married and had had a 'bad time.' She asked if it would be alright to let her settle up some things and be married around Christmas. She said that she was behind in the rent and owed some bills, and he agreed to give her $65.00 a month for living expenses. By Christmas he had given her $2,304.13. In January he protested because they had not married. She then told hime that she had obtained an interlocutory order from Rousseau, her husband, but that her lawyer was holding up the final decree; so he gave her $75.00 and later paid the lawyer $25.00 additional, after which the final decree was entered.

Still, she did not marry him. By July he had become insistent, so she promised to marry him at Christmas. Each year she reiterated her promise of a Christmas marriage. He always bought her a dress at Christmas time to be married in, but he never saw it on her. There was never any sexual intimacy. In addition to the $65.00 a month, he bought her clothes, toiletries, fixed up the house, made payments on a piano and a car. From time to time he would cease making payments to her and then she would come to him and make up. But she always put off the marriage date.

This continued until 1944, when he broke off for two or three months. Then in May she came to him and told him that she had remarried Rousseau, but had not lived with him and could therefore obtain an annulment. She said that Rousseau was in an army camp in California; that he claimed an interest in her house but that for $300.00 he would give her a quitclaim deed; that if she could go down there and pay him, then come back and get an annulment that would be the final hurdle, and they could get married at last. So he gave her $800.00 and she left.

From June 6, 1944 to April 14, 1945, she sent him fifty-six letters and postcards, which are very revealing. Most of them asked for money or clothes. In addition she sent sixteen telegrams for money and placed several long distance calls for the same purpose. The trial court summed it up:

'So the theme song running all through this correspondence and through the telegrams from first to last was well expressed in the first three words of the telegram of July 26th, Plaintiff's Exhibit '57': 'Honey, wire money.'

'That was the gist of all her communications with the defendant.'

The letters all contained endearing terms and although they include no specific promise of marriage, there is no question but that such a promise was intended to be inferred. On June 6th, she wrote for $400.00. June 10th, she wanted him to wire $425.00. She said she would be home in a few days. June 13th, she wrote from Bakersfield:

'Honey, I'll send an Air Mail post card when I leave and I'm hoping you'll take the bus down to Portland and meet me. * * * Did you take care of the piano? The car payment will be due soon too. I hope some day I can be a real pleasure to you Jim instead of a big debt. * * * Write to me often, honey. Be sure and tell me about the piano because I'll feel better. Love til I see you and I hope that will be dog gone soon. Your Jean.'

June 16th she wrote that she was leaving Friday and to send $20.00. Later she wrote that the lawyer wanted $1,000.00 instead of $300.00 and to send $500.00 more. June 28th she said she was going to Las Vegas to establish residence and that it would take ninety days. She listed what she wanted for her birthday: 2 pair shoes; 2 pair bobby sox; seersucker dress; 2 blouses; panty girdle.

Then she had to go to the hospital for a very serious operation which would be quite expensive. Instead of sending small amounts, it became necessary to send large amounts. Each time she was ready to go to the hospital, her doctor would get sick and the operation was delayed. This required more money. A friend of hers met Chiles in Seattle and said that Jean needed $20.00, which she would send to her. Jean denied asking her friend to obtain money for her, and was very indignant that any one could be so deceitful.

This went on for months. She was finally operated upon and then had to recuperate. During the time she was in California he sent her $2,787.70, and, in addition, paid bills and bought merchandise totaling $680.49. In each letter she expected to be home 'real soon.' In the spring she wrote that Marion was going to have a baby. She wrote that she was going to Los Angeles for a couple of weeks.

The latter part of March he had a feeling that she was home. He called the house and was told that the telephone was disconnected. That evening he went out and knocked at the door, but no one answered. He heard the telephone ring inside and some one answered it. The next day, when he was supposed to be at work, he went out again and knocked on the door. Jean answered and said, 'Who is there?' He was very happy to hear her voice and wanted to come in, but she said the doctor was there with Marion and she could not come out. That night he went back again, and the caretaker came to the door. The latch remained on. Chiles asked how Jean was, and how she walked, and everything about her. The caretaker said, 'There is no use. You can't get in.' When Chiles asked what it was all about, he replied, 'I have orders not to let you in.' Later that night Chiles heard Jean talking to a man in Marion's bedroom.

Finally he came to his senses. He felt as if he had been cheated. All these letters were 'just humbug.' Jean went back to California the next day without contacting him, but even after that she wrote to him and called him long distance. However, he had had enough.

The truth was that she never remarried Rousseau at all. On June 13th, the day she wrote the letter from Bakersfield, heretofore quoted, she married a soldier named Davis. As a result of that marriage, she obtained allotment money from the Government. She testified in her defense that she had first married Davis in 1943 when they were both drunk; that she never knew where the ceremony was performed and could not find the marriage certificate; that she told Chiles all about the escapade; that in the spring of 1944 she thought she was pregnant by Davis and went to California to remarry him, intending to divorce him immediately; that the veiled promises made to Chiles in the letters were not promises of marriage; that because he had been so nice to her, she was going to have a different relationship with him. The trial court did not believe her testimony, nor do we.

The trial judge entered an order of dismissal at the close of the plaintiff's case. He was of the opinion that the statute of limitations barred recovery on the agreement of July, 1940, and, as to the later agreement, he stated:

'But there again, from his knowing or believing that she was remarried to Rousseau, and advancing money to straighten up her affairs, looking forward to an eventual annulment of that marriage--at least it was a valid marriage until annulled in his mind--actually there was no marriage. But I believe that the law will not lend itself to enforce a contract of that kind. I think he was defrauded badly on that.

'Unfortunately, in the opinion of the court, it is just one of those situations you have to write off to experience and the price that must be paid when a generous and unsuspecting man meets a greedy and unscrupulous woman.'

We agree with the trial court as to the promise of 1940. The fraud was discovered in January, 1941. The action was not commenced within three years from the discovery of the facts constituting the fraud, and is therefore barred by the statute of limitations. Rem.Rev.Stat., (Sup.) § 159.

We now concern ourselves with the promise made in May, 1944. Respondent told appellant that she had remarried Rousseau but had never lived with him; that by paying him $300.00 he would give her a quitclaim deed to the house; then she could obtain an annulment and the parties could be married at last. Relying...