Greenup v. Stoker

• Decision Date: 31 December 1846
• Parties: DARIUS GREENUPv.NANCY STOKER.
• Court: Illinois Supreme Court

3 Gilman 202

8 Ill. 202

1846 WL 3845 (Ill.)

DARIUS GREENUP

v.NANCY STOKER.

Supreme Court of Illinois.

December Term, 1846.

ASSUMPSIT in the St. Clair circuit court, brought by the appellee against the appellant, and heard before the Hon. GUSTAVUS P. KOERNER, and a jury, at the October term, 1846. Verdict for the plaintiff below for $525.00, upon which the court rendered judgment.

The pleadings, instructions asked, etc. appear in the opinion of the court. L. TRUMBULL, for the appellant, relied upon the following points and authorities for a reversal of the judgment:

1. It was erroneous to permit Fulweiller, who had seen the parties together but once, to give his opinion as to the character of the attention paid by Greenup. The witnesses should state facts, and it is for the jury to draw conclusions. The question, “Did he court her?” was also leading, and therefore improper. 1 Starkie's Ev. 150, 152.

2. If no time or place for the marriage is appointed, which was the case in all the counts except the first, an offer to perform must be alleged and proved; allegations of readiness and willingness are not sufficient. Bucks v. Shane, 2 Bibb 341; Martin v. Patton, 1 Littell 235; Gough v. Farr, 12 Eng. Com. Law R. 293; Gould's Pl. 176.

The first instruction given on the part of the plaintiff, which was general to all the counts, that it was not necessary for plaintiff to prove a request, was therefore erroneous. Coke v. Ferrall, 13 Wend. 285; Porter v. Rose, 12 Johns. 209; Tapping v. Root, 5 Cowen 204; Nelson v. Bostwick, 5 Hill's (N. Y.) R. 37; 1 Chitty's Pl. 363; 1 Saunders 33, note 2.

3. The third count is upon a special contract made and to be performed at a certain time; and the third instruction given on behalf of plaintiff, that the time of making the marriage contract and the time of the refusal by Greenup need not be proved precisely as laid, and that proof of different times would sustain the declaration, was erroneous when applied to this count; and for the same reason the third instruction asked by defendant should have been given. The allegata and probata must correspond.

4. The eleventh instruction asked by defendant should have been given.

5. The fifth count of said declaration, which is on a promise to marry on request, avers no request, and is therefore defective, and the instruction to disregard it should have been given. Rev. Stat. 417 § 25; Bach v. Owen, 5 Johns. 409.

6. A special request and refusal being alleged in the first and second counts, it was incumbent on the plaintiff below to prove said request as laid, and the instructions to that effect, asked by defendant should have been given.

7. The verdict was manifestly contrary to evidence, and for this cause a new trial should have been granted.

8. The fact that two of the jurors who rendered the verdict in said cause were aliens,which fact was unknown to the defendant till after the rendition of the verdict, is a ground for a new trial, and the court erred in not granting it. Guykowski v. The People, 1 Scam. 476.

The want of a freehold qualification in one of the jurors is a ground for a new trial, if the fact was not known to the party making the motion at the time of the trial. Briggs v. Georgia, 15 Vt. 61; King v. Tremaine, 16 Eng. Com. Law R. 318.

W. H. UNDERWOOD and J. GILLESPIE, for the appellee.

A witness may be asked whether, from the appearance of parties, they were or were not sincerely attached. McKee v. Nelson, 4 Cowen 357.

A leading question is no ground of error. It is addressed to the sound discretion of the court. 2 Phil. Ev. 724, note 506; Warren v. McHatton, 2 Scam. 33; 1 Starkie's Ev. 151.

The question in this case was not leading. It only called the attention of the witness to a collateral fact. Williams v. Jarrot, 1 Gilman 130; Leonard v. Thomas, 4 Scam. 557, 558.

The time and place of making contract must be alleged, but need not be proved. Martin v. Patton, 1 Littell 236; 1 Greenl. Ev. 56.

Injury to plaintiff's character is a proper subject for the consideration of the jury in assessing damages. Johnson v. Calkins, 1 Johns. 116. The damages depend upon the peculiar circumstances of each case. 2 Tidd's Pr. 875; Southron v. Rexford, 6 Cowen 261.

Greenup failed to use due diligence, by inquiring of jurors as to their competency. 2 New Hamp. 360; People v. Jewett, 6 Wend. 389; Crawford v. Creagle, 1 Ala. 593; Simpson v. Pitman, 13 Ohio 367; Jeffries v. Randall, 14 Mass. 206; Amherst v. Hadley, 1 Pick. 41, 42; Vennum v. Harwood, 1 Gilman 661; 15 Verm. 73. It is no ground for a new trial that one of the jurors was an alien. 2 Peters' Cond. R. 499 and 500; 15 Eng. Com. Law R. 253.

The informality of the verdict should have been objected to in the court below, or it is waived. Schlencker v. Risley, 3 Scam. 487; Bank v. Batty, 4 Scam. 202.

A refusal to marry dispenses with the necessity of a request. 2 Chitty's Pl. 322 n.

The opinion of the court was delivered by PURPLE, J.^a1

This action was instituted by the appellee against the appellant to recover damages for the breach of a marriage contract.

The declaration contains five counts, to one of which (the fourth) the circuit court sustained a demurrer.

The first count is upon a promise to marry within a reasonable time, and avers that such reasonable time has elapsed, and that the appellee, to wit, on the 25th of March, A. D. 1844, after the making of the promise, requested the appellant to marry her, and that he, upon such request, refused.

The second count is upon a promise to marry generally, and avers that the appellee has always been ready and willing to marry the appellant; and also that appellee (to wit), on the 20th of March, 1844, requested appellant to marry her, and that he refused.

The third count is upon a special contract to marry the then next morning, that is to say, on the 1st of January, A. D. 1844, and avers a readiness and willingness on the part of appellee to perform the contract, and that appellant, although often requested on his part always wholly refused.

The fifth count is upon a promise to marry upon request, and avers a readiness and willingness on the part of appellee, to marry and a positive refusal on the part of the appellant.

The appellant pleaded the general issue.

The jury found a general verdict for the appellee, and assessed her damages at $525. The circuit court, at the request of the plaintiff's counsel in that court, instructed the jury:

1. That to entitle the plaintiff to recover, it is not necessary that she should prove an express contract on the part of defendant to marry her; but that an agreement to marry may be inferred, from those circumstances which usually accompany an agreement to marry.

2. That if the jury believe from the evidence, that the defendant refused to marry plaintiff, then it is not necessary that plaintiff should prove a request to defendant to marry her, in order to maintain this action; and

3. That the time of making the marriage contract and the time of refusal by Greenup need not be proved precisely as alleged; but proof of different times will sustain the declaration if such times be before the commencement of this suit.

The counsel for the defendant below requested the court to instruct the jury:

1. That in order to sustain the first count of her declaration on the part of the plaintiff, it is necessary for her to prove a request and refusal, and that unless the jury believe from the evidence that the said Miss Stoker requested said Greenup to marry her on the 25th of March, A. D. 1844, as stated in said count, and that he refused upon such request so to do, they must find for the defendant upon said first count;

2. That unless it has been proved by testimony so as to satisfy the jury of the fact that the said Miss Stoker requested said Greenup to marry her on the 20th of March, A. D. 1844, as alleged in the second count of said declaration, they are bound to to find for the defendant upon said second count;

3. That unless the jury believe from the evidence that the said Miss Stoker and the said Greenup mutually promised each other to marry on the then next morning as alleged in said third count, they must find for the defendant upon the third count of said declaration;

4. That unless the jury believe from the evidence that the said Miss Stoker was ready and offered to marry the said Greenup, and that he refused to marry her at the time stated in said third count, they must find for the defendant;

5. That unless the jury believe from the evidence that Miss Stoker and the said Greenup promised on the 31st day of December, 1843, to marry each other on the next morning, January 1st, 1844, and that she being ready, he actually refused to marry her, they must find for the defendant upon said third count;

6. That the fourth count of the declaration is not before the jury and that they have nothing to do with it;

7. That unless the jury believe from the evidence, that the said Greenup promised to marry the said Nancy Stoker on request, and that upon being requested or without request, that having the oportunity, he refused to marry her, they are bound to find for the defendant upon the fifth and last count of the declaration;

8. That the jury are bound to find in favor of the defendant upon the first and second counts of said declaration, unless they believe from the evidence before them, that the said Nancy Stoker requested said Greenup to marry her and that he refused to do so; that proof of the bare omission or neglect of the defendant to marry the plaintiff even after he has agreed to do so is not sufficient to entitle the plaintiff to recover upon either of said counts.

9. That unless it has been proved by testimony that the said Nancy Stoker requested the said Greenup to marry her, and that he refused upon such request to do so, or that some acts were done by the parties which in their opinion were tantamount to a request and refusal, they are bound to find the issues upon the first,...