Cole v. Holliday

• Decision Date: 22 May 1877
• Citation: 4 Mo.App. 94
• Parties: COLE, Respondent, v. HOLLIDAY, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 94

COLE, Respondent,

v.HOLLIDAY, Appellant.

St. Louis Court of Appeals, Missouri.

May 22, 1877.

1. In an action for breach of promise of marriage, where the precise time is not agreed upon, the law construes it to be a promise to marry in a reasonable time, upon request, and the plaintiff must allege and prove, not only that defendant did not marry her, but also that she was willing and offered to marry him, and that he refused her, before suit brought.

2. In considering what will fulfil the conditions of a tender by the woman, the law makes allowance for the natural modesty of the sex. Such tender may be made by any one whose authority to do so may be inferred from the relation of the parties.

3. In an action for the breach of a promise of marriage, testimony of the plaintiff's bad character for chastity is legitimate in mitigation of damages.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

CLINE, JAMISON & DAY, for appellant: What constitutes a breach of promise to marry.--Roscoe's Dig. Ev. 261; Gough v. Farr, 2 Car. & P. 631. Where there is evidence of a refusal to marry, the question is one for the jury.-- Willard v. Stone, 7 Cow. 22; Hubbard v. Bonesteel, 17 Barb. 360; 2 Stark. on Ev. 942. Damages, mitigation, and aggravation.-- Buller v. Eschleman, 18 Ill. 44; Denslow v. Vanhorn, 16 Iowa, 476; White v. Thomas, 12 Ohio St. 312.

R. S. MacDONALD, for respondent: What constitutes a promise to marry.-- Green v. Spencer, 3 Mo. 318; s. c., 8 Barb. 323. Where no definite time is fixed upon by the parties to the contract, for the performance thereof, then a reasonable time is meant.-- Coil v. Wallace, 24 N. J. 291. Positive proof of a tender and refusal are not required, but conduct or declarations equivalent to a refusal are sufficient evidence of an intention not to perform the contract.-- Davis v. Slagle, 27 Mo. 602; Seymour v. Gartside, 2 Dow. & Ry. 55; Willard v. Stone, 7 Cow. 22; Martin v. Patton, 1 Litt. 236; Prescott v. Guyler, 32 Ill. 328; Holcraft v. Dickson, 1 Freem. 346. Damages, mitigation, and aggravation.-- Thorn v. Knapp, 42 N. Y. 474; Krippen v. McConnell, 30 N. Y. 285; Buckley v. Knapp, 48 Mo. 159; Reed v. Clark, 47 Cal. 194; Sheehan v. Barry, 27 Mich. 217; Simpson v. Black, 27 Wis. 296; 24 N. Y. 252; 8 Barb. 323. Excessive damages.-- Woodson v. Scott, 20 Mo. 272; Wells v. Sanger, 21 Mo. 344; Fallenstein v. Booth, 13 Mo. 427; Sedgw. on Dam. 466; Smith v. Woodfine, C. B. 660; Gough v. Farr, 1 Y. & J. 477.

BAKEWELL, J., delivered the opinion of the court.

This is an action for breach of promise of marriage, commenced November 9, 1874. The petition alleges that plaintiff, on or about July 5, 1873, promised to marry defendant, and that defendant then promised to marry plaintiff; that, relying on defendant's promise, plaintiff had sexual intercourse with defendant, in consequence of which she was delivered of a child, now dead; that, though a reasonable time has elapsed, defendant, though often requested to do so, has refused and still refuses to marry plaintiff, to her damage $30,000.

Defendant, in his answer, denies all these allegations, and says that plaintiff never offered to marry him at any time, and that he has “no knowledge or notice of any kind whatever of any desire, claim, purpose, or intent on the part of plaintiff to marry” him.

There was a verdict and judgment for plaintiff for $7,000. A remittitur was then entered of $3,000; and, a motion for a new trial being overruled, defendant brings the case here by appeal.

Plaintiff introduced evidence tending to show mutual promises of marriage, and sexual commerce on several occasions between herself and defendant, and the consequent birth of a still-born child. Defendant introduced evidence tending to show that there was no promise and no talk of marriage on either side; that he had never had sexual commerce with plaintiff; that the father of her child was, and was by plaintiff, to several persons and on several occasions, declared to be, another man. He also introduced evidence tending to show that plaintiff was a young woman of bad character for chastity, and the associate of lewd persons of either sex, before and since the date of the alleged promise of marriage; and that this was unknown to him when he was visiting her. Respondent introduced evidence in rebuttal, tending to show that her character for chastity was good.

At the close of plaintiff's case the court refused an instruction, asked by the defendant, in the nature of a demurrer to the evidence. The following instructions were given at the instance of plaintiff:

“1. The jury are instructed that to maintain the action of the plaintiff it is necessary that they should find a mutual promise to marry between plaintiff and defendant, but it is not necessary that either promise should be expressed, i. e., that any witness should hear the contract made. On the contrary, the promise of each to the other may be inferred from circumstances. Nor is it necessary, to maintain the action, that the promise on either side should have been made in writing, to make it valid and binding on both. Whether there was mutual promise to marry between plaintiff and defendant is a question for the jury, to be determined by them from all the proof and circumstances shown in the evidence.”

2. If the jury find from the evidence that the plaintiff and defendant contracted to marry each other, and that no time was fixed or agreed upon at which the marriage was to take place, then the law is that the marriage was to be performed within a reasonable time; and if you further find from the evidence that the defendant refused or unreasonably delayed to perform such contract, no special request by the plaintiff to defendant to marry her is necessary.

3. If the jury believe from the evidence that any witness or witnesses wilfully swore falsely to any matter material to the issue, the jury may exclude the whole of said witness's or witnesses' testimony.

4. If the jury find from the evidence for the plaintiff, they ought to assess the damages; and in determining the amount, they ought to find such sum as in their judgment, under all the circumstances of the case, may be a proper indemnity to her for the injury she has suffered in her feelings, affections, and wounded pride, as well as the loss of marriage; and if the defendant has attacked the character of the plaintiff, and failed to sustain such attack, it is proper subject of consideration as aggravating the damages.”

To the giving of which instructions the appellant at the time duly excepted.

And thereupon the court gave the following instructions for defendant:

“1. If the jury find from the evidence that the plaintiff was guilty of lewd and unchaste conduct with other men prior to the alleged breach of the alleged contract to marry, and the defendant was ignorant of the same and believed her to be a chaste and virtuous woman, then the plaintiff cannot recover.” "2. Before the jury can find for the plaintiff upon the cause of action set out in the petition, they must believe from the evidence that the defendant actually promised to marry plaintiff, and that she in earnest accepted said promise, and that the plaintiff actually and in earnest promised to marry defendant, and that he actually received her said promise in earnest; and unless the jury believe such mutual promises were so given and received they will find for the defendant, and in such case it makes no difference whether defendant had sexual intercourse with plaintiff or not, or was not the father of plaintiff's child.”

The promise to marry is, in law, like any other contract. The promise must, in general, be reciprocal, and obligatory upon both parties. It is not necessary to prove an express promise totidem verbis; but the contract must be evidenced by the unequivocal conduct of the parties, and by a definite understanding between themselves, their friends, and relations that a marriage is to take place; and, when the promise of the man is proved, evidence of the woman having demeaned herself as if she concurred, is sufficient to establish her promise to marry him. The contract is not within the statute of frauds, and need not be reduced to writing. The contract is binding though the precise time of completing it is not agreed upon; and, in such a case, the law construes it to be a promise to marry in a reasonable time, upon request. Where the promise does not ascertain and fix the time, a special request must be laid in the declaration and proved on the trial, unless the defendant, by marrying another, has incapacitated himself from performing his engagement, in which case that fact should be alleged.

These principles may be regarded as the law of the subject. They are founded upon well-considered decisions, which have been followed both in England and America, and are laid down in all the books on pleading and evidence, and by all the text-writers on the subject of contracts. 1 Chitty on Con. 2, 790; 2 Pars. on Con., 6th ed., 63, 64; 1 Archb. N. P. 281; 2 Saunders on Pl. 177; Roscoe's Dig. Ev. 262; 1 Tidd's Pr. 382; 2 Bac. Abr. 530; 1 Rob. Abr. 1, 5, 22; Harrison v. Cage, 1 Ld. Raym. 386; Sutton v. Mansell, 1 Salk. 10.

There is no evidence in the case at bar that plaintiff, or any one in her behalf, ever offered on her part to fulfil this alleged mutual promise of marriage; or that defendant, who, for all that appears, is as much in a condition to marry as ever he was, would not have fulfilled his alleged engagement, by marrying her, if he had been asked to do so before the suit. There was a delay which may have been unreasonable, but evidence of delay is not evidence of refusal, but rather evidence that the contract was abandoned by mutual consent. In any case, where there has been no request upon the defendant to fulfil the contract, and the contract was indefinite as to time, there is no cause of action. 2 Pars. on Con., 6th ed., 63, 64.

As to what will constitute a tender...