Coad v. Coad
| Decision Date | 29 June 1910 |
| Docket Number | 16,081 |
| Citation | 127 N.W. 455,87 Neb. 290 |
| Parties | VALERIA W. COAD, APPELLANT, v. MARK M. COAD, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed and decree entered.
Judgment reversed, and plaintiff entitled to absolute divorce, and to receive $ 20,000 and execution issued.
Price & Abbott and George L. Loomis, for appellant.
Isaac E. Congdon, W. J. Coad and Hall, Woods & Pound, contra.
This is an action for divorce and alimony. It is alleged in the amended petition that on the 1st day of January, 1905, plaintiff and defendant "entered into a contract of marriage, whereby plaintiff and defendant entered into the relation of husband and wife," neither being under any disability, and that that relation has existed between them from that date hitherto. Such facts are stated in the petition as, if sustained by the evidence, would constitute a common law marriage and entitle plaintiff to a divorce. It is averred that defendant is the owner of property in this state of the value of $ 800,000, and that plaintiff is without means. The averments of the petition need not be stated with any greater particularity. The answer of defendant is a general denial. A trial was had in the district court involving the examination of a great number of witnesses, the evidence being presented here in a bill of exceptions of over 600 pages. The trial resulted in a finding and decree in favor of defendant, and plaintiff appeals.
The real, and practically the sole, issue upon which the determination of the cause depends is as to whether or not there was such an agreement and contract between the parties, followed by cohabitation, etc., as to create what is termed a common law marriage. If that relation existed at any time, it has not been dissolved, and, under the evidence as to the subsequent conduct of defendant, plaintiff would be entitled to a decree in her favor. If, however, that relation did not in law exist, the decree against her will have to be affirmed.
The law governing common law marriages is pretty well settled in this state by our former decisions and will not be herein discussed with the view of throwing any new or further light upon the subject. We need only refer to the following among other cases: Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450; Olson v. Peterson, 33 Neb. 358, 50 N.W. 155; Bailey v. State, 36 Neb. 808, 55 N.W. 241; University of Michigan v. McGuckin, 62 Neb. 489, 64 Neb. 300; Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995, annotated in 1 A. & E. Ann. Cas. 199; Sorensen v. Sorensen, 68 Neb. 483, 490, 500, 509, 94 N.W. 540. Marriage being a civil contract, the rules to be applied must be, to a great extent, the same as are applied to ordinary contracts. Hence, if one party to such relation induces the other to believe in good faith that the contract is made and binding, the law will hold the party taking such advantage to the full terms of the agreement, as in other cases. So, if one party to the agreement is known by the other to rely upon the contract in good faith and that it is binding, the other party will be bound by it. This, of course, must depend upon what is said and done, the same as in other cases. Proof of a common law marriage is sufficient to sustain an action for divorce and alimony. A common law marriage, while criminal under our statutes, is just as valid a marriage as if solemnized under all the forms of law, usage and custom, and is followed by exactly the same results. While the mere fact of the indulgence in the sexual intercourse and relation is not of itself conclusive proof of the marriage, yet it is always a proper subject for consideration after evidence of the agreement to enter into the matrimonial relation. Again, where such presumption may arise, the law will always presume that the acts of persons are lawful and that the commission of crime was not intended. If, under the circumstances shown, a person may have acted from motives of morality and purity, the presumption in favor of such motives will prevail, as the presumption is that people do not intentionally do wrong. These propositions are so well established that no citations are deemed necessary.
The evidence in this case established beyond dispute or conflict that after the first day of January, 1905, defendant very frequently went to the house of plaintiff, who resided with her widowed mother, in Omaha, and that no kind of formality in his visits was observed, and, when there, his actions and conduct were as free and informal and homelike as that of any husband; that plaintiff and her mother were in straitened financial circumstances, and that finally he caused their removal to Lincoln where they were placed in his own house, and the relations between them continued as before; that during the whole time he furnished money to aid in the expenses of the household; that neither party ever held the other out to the public, or even to their most intimate acquaintances and friends, as wife or husband, nor did they in their voluminous correspondence ever refer to each other in that light, yet the general terms used were often endearing and affectionate. Upon these two propositions it is testified by defendant that their relations were at all times meretricious and that they had existed long before the date named. This is denied upon the part of the plaintiff, and she insisted on the witness-stand that their relations were never criminal, and did not exist at all until after the date referred to. She also testified that the alleged marriage was kept secret at the special instance and request of defendant, for reasons which were assigned by him and which were by her deemed reasonable, but particularly because it was in accordance with his request and to which, for that reason, and having faith in him and his assurances, she agreed. The bill of exceptions contains about 20 letters from defendant to plaintiff written during the year 1904, the last date being in the latter part of December of that year and just prior to the time when the plaintiff and her mother testified that the contract of marriage was entered into. There are five letters written in the fall and winter of 1903. It is to be remembered that at the time of the commencement of this correspondence plaintiff was the lawful wife of a Mr. Hoover, but they failed to agree, were separated, and an action by plaintiff for divorce was then pending. The decree of final divorce was entered March 6, 1904, and was doubtless aided in a financial way by defendant.
The letters written in 1904 abound in expressions of friendship and affection, but cannot be here set out at length. A few selections may be made from the closing portions of some of them. In the letter of January 13, 1904, to "My Dear Val," he closes with, February 9: " March 6: "My Dear Val * * * May sweet memories around your heart entwine leaving a place for a friend of Old Lang Sine (Auld Lang Syne)." March 19: "My Dear Val * * * I am your loving friend." April 12: "My Dear Val * * * I will bid you good bye and hoping to see you at the earliest opportunity I am as ever your dear old friend and sweetheart." April 30: May 10: May 23: July 7: This must be sufficient to show the trend of defendant's letters prior to the date of the alleged contract of marriage. It may be said--is said, in effect, by defendant--that these are the letters of a libertine to his mistress. We have read them, as well as many others written prior to January 1, 1905, and have been unable to find a single word which necessarily implies an impure thought or reference. We cannot believe they were so intended, nor that any part of them can be rightfully so construed.
The history of the case shows that plaintiff's father and mother were Germans, and, as many do, they kept intoxicating liquors in their home; that during the early days of this state they kept a hotel in Sidney, and, in connection with it, a saloon. At that time plaintiff was a little child. Defendant had a ranch near Sidney, and patronized the hotel and thus became acquainted with the family. Plaintiff's father finally closed out his business, removed to Denver for a time, and then to Omaha, where again they met and the acquaintance was renewed. Plaintiff was then the wife of Hoover, but a separation had taken place. Her father was in poor health--probably drinking heavily--and the family were not living in affluence. Plaintiff's father became bedridden, and, after lingering a long time, died. Plaintiff's health had failed her and her prospects of long life...
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