Dreibelbiss v. Banner
| Decision Date | 30 April 1917 |
| Citation | 195 S.W. 68,196 Mo.App. 236 |
| Parties | !!EDITH DREIBELBISS, Respondent, v. J. C. BANNER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. Fred Lamb, Judge.
Judgment affirmed.
Burns Burns & Burns, Sebree, Conrad & Wendorff and Ray B. Thomson for appellant.
Atwood & Hill and Bresnehan & West for respondent.
Plaintiff's action is for breach of promise of marriage. She recovered judgment in the trial court.
It appears from the evidence that defendant began to court her in the year 1913, and that shortly they became engaged to be married; each promising to marry the other. That these promises were repeated from time to time during the courtship. That during this time defendant seduced her and continued his illicit relations, all the time renewing his promise of marriage. Finally, without cause, he broke his promise and refused to marry. Plaintiff then brought an action for breach of promise, charging the seduction in aggravation. Then defendant sought her out, persuaded her to dismiss the action and again promised to marry her, but there was no further illicit relation. Again he broke his promise and again he refused to marry. Thereupon she brought the present action in which the original promise and seduction and breach of the original promise is alleged together with his subsequent promise and refusal.
One of the chief points made against the judgment is that when defendant refused to marry plaintiff and she accepted the refusal as a breach and instituted her action, the contract was at an end; and the subsequent engagement and promise was a new contract which was declared on as such and that as there was no seduction connected with the last promise, it was error to allow any evidence or enhancement of damages on account of seduction.
Defendant has cited us to an array of authority that a new, or substituted contract is the contract which must be pleaded and depended upon for recovery. That the substitution of the second for the first, is an abandonment of the latter, the substitution and abandonment becoming the consideration supporting the new contract.
But, in our opinion, the facts pleaded do not show a new contract. They show the same contract renewed, restated, or reaffirmed at different times, A contract of marriage which is made during a protracted courtship, or which is followed by courtship, from the very nature of the contract and the contracting parties, is one that is being constantly restated with no thought of anything more than a reaffirmation of the original promise.
It is true that a contract of marriage may be mutually rescinded like any other. But a refusal to comply by one and the institution of an action for damages by the other, and a reiterated promise by the former, immediately followed by a dismissal of the action and then another refusal, followed by reinstituting the action, is not a rescission, nor is it a substitution of a new contract for the old, and seduction following the first promise, but not repeated after the last, may be given in evidence on the second action.
Defendant must have recognized this as the law for he did not state such point during the trial, nor did he object to the evidence offered in proof of the seduction, and he is thus cut out of any right to bring it forward on appeal.
Evidence was heard tending to show that plaintiff previously to her intercourse with defendant was unchaste. While this was not credited by the jury, yet it should not be shut off from consideration. In this connection defendant claims that error was committed in plaintiff's instruction No. 3 authorizing the allowance of damages for the seduction, without qualifying it with the...
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