Eve v. Rogers

• Decision Date: 20 March 1895
• Docket Number: 1,526
• Citation: 40 N.E. 25,12 Ind.App. 623
• Parties: EVE v. ROGERS
• Court: Indiana Appellate Court

40 N.E. 25

12 Ind.App. 623

EVE v. ROGERS

No. 1,526

Court of Appeals of Indiana

March 20, 1895

Petition for rehearing overruled May 28, 1895.

From the Clark Circuit Court.

Judgment reversed, with instructions to the court below to sustain appellant's motion for a new trial.

E. B Stotsenburg, A. Dowling and G. H. Voigt, for appellant.

L. A Douglass and W. D. Marshall, for appellee.

ROSS C. J. GAVIN, J., dissents.

OPINION

ROSS, C. J.

This was an action brought by the appellee, in the Floyd Circuit Court, against the appellant, to recover damages for the breach of a marriage contract. The venue of the cause was changed to the Clark Circuit Court, where, upon a trial by jury, a verdict was returned in favor of appellee.

The specifications of error assigned in this court are as follows:

"First. The court erred in overruling the demurrer to the substituted and amended complaint.

"Second. The court erred in overruling the appellant's motion for a new trial."

The first specification has not been argued, and for that reason is considered waived.

Under the second specification, which calls in review the ruling of the court in overruling appellant's motion for a new trial, several questions are presented, namely: Whether or not the evidence is sufficient to sustain the verdict; whether or not the court erred in admitting in evidence a certified copy of a decree of the Floyd Circuit Court, and whether or not the damages assessed are excessive.

Counsel, while admitting that the appellee testified that the appellant promised to marry her, insist that her testimony, as shown by the record, fails to prove a contract.

In this position we think counsel are in error. True the evidence is uncertain as to the time when the contract was entered into, and time, in this case, is a very material question, for if the contract was entered into prior to June 1, 1890, and at a time when appellee was a married woman, it was void for want of mutuality. The contract must be binding upon both parties, or it can not bind one. Hence it follows that a contract to marry, entered into between a man and a woman, one of whom is qualified to make such a contract and the other is not, is void, and can not be enforced. Neither can damages be recovered for a breach thereof, for the reason that the contract, not being binding as to the one, is not binding as to the other.

The evidence, as it comes to us, is in narrative form, and although, as heretofore stated, is not clear as to when the promise was made, is sufficient on that...