Haslam v. Barge

• Decision Date: 03 July 1903
• Docket Number: 13,090
• Citation: Haslam v. Barge, 69 Neb. 644, 96 N.W. 245 (Neb. 1903)
• Parties: GEORGE HASLAM v. MARIE BARGE
• Court: Nebraska Supreme Court

96 N.W. 245

69 Neb. 644

GEORGE HASLAM v. MARIE BARGE

No. 13,090

Supreme Court of Nebraska

July 3, 1903

ERROR to the district court for Dodge county. JAMES A. GRIMISON DISTRICT JUDGE. Reversed.

REVERSED.

J. E Frick and Frank Dolezal, for plaintiff in error.

Thomas M. Franse, F. Cole Anderson and Harry Keefe, contra.

DUFFIE C. ALBERT, C., concurs.

OPINION

DUFFIE, C.

On the trial of this case, a verdict was returned in favor of the plaintiff below for $ 750. The defendant immediately filed a motion asking the court to reserve the case for further argument, and to reserve judgment. This motion was granted by the court. After this motion was filed, and pending a hearing thereon, defendant below filed a motion for a new trial. Upon the argument of the motion to reserve the case and for judgment notwithstanding the verdict, the court entered judgment for the defendant below. From this judgment plaintiff below prosecuted error, and this court reversed the court below and remanded the case for action upon the motion for a new trial, which still remained undisposed of. 63 Neb. 296. Opinion on rehearing, 65 Neb. 656.

On October 10, 1902, the motion for a new trial came on for hearing in the district court, in pursuance of the mandate from this court, and upon consideration thereof the court overruled said motion, and judgment was entered on the verdict of the jury. Thereupon, the defendant settled and had his bill of exceptions allowed and has brought the case to this court on error. Judge Marshall, who presided at the trial and in all the proceedings up to the argument on the motion for a new trial, having deceased, the motion for a new trial was heard and passed on by another judge.

The principal errors relied on are: (1) That the court erred in overruling the motion for a new trial; (2) that the verdict is not sustained by the evidence and is contrary to law. The only question decided on the former appeal was the sufficiency of the plaintiff's petition to state a cause of action, while this appeal involves the merits of the controversy between the parties. The 8th and 9th instructions of the court are as follows:

"8th. The jury are instructed that the contract or promise of marriage set out in the plaintiff's petition, to the effect that on or about the first day of July, 1890, the defendant, orally, that is, not in writing, promised to marry the plaintiff, and the plaintiff orally, that is, not in writing, promised to marry the defendant, when the plaintiff should arrive at the age of 18 years; and from the undisputed evidence the plaintiff was at the time only a little over the age of 15 years, leaving nearly three years to intervene between the time of making the contract or promise and the time when, by its terms, it was to be performed. This contract or promise under our statute of frauds was and is void, or voidable, at the instance of either of the parties thereto, and can not be enforced in this action, for the reason, as required by that statute, this contract or promise was not in writing, nor was any memorandum thereof made or signed by either of the said parties, at the time it was made.

"9th. The jury are instructed that although the contract of marriage as set out in the preceding 8th instruction is void and of no force, it would remain void and of no force and effect against the defendant, or in favor of plaintiff, unless the defendant afterward, and before the 24th day of May, 1893, signed a memorandum of said contract, which memorandum should be as broad and full as the original contract or promise, and the memorandum, to be good, should embrace all the terms and conditions of said original contract. Under the pleadings in this case, a new contract of marriage will not suffice, for such new contract is not the cause of action set out in the plaintiff's petition and can not in this case be made the ground of recovery in favor of the plaintiff. The plaintiff must recover, if she is entitled to recover at all, upon the cause of action set out in her petition, and can not recover upon a new or different contract, or cause of action."

In these instructions the jury are plainly and explicitly told: (1) That the oral contract of marriage, nearly three years intervening between the making of the contract and the time when by its terms it was to be performed, was, under our statute, void. (2) That, being void, it would remain so unless the defendant before the 24th of May, 1893, signed a memorandum of said contract as broad and full in its terms as the original. (3) That under the pleading no new contract could be made the ground of a recovery as such new contract is not the cause of action set out in the petition.

Whether an oral contract of marriage, which by its terms is not to be consummated for more than a year after the making thereof, falls within our statute, is not necessary to be determined in this case. That it was void was the opinion of the district court and it so instructed the jury. For the purposes of the trial, this was the law of the case and the jury should have been governed by these instructions whether the law was properly stated or not.

In Boyesen v. Heidelbrecht, 56 Neb. 570, 76 N.W. 1089, it is said:

"Under the evidence and the instructions of the court, which forcibly and perhaps too strongly stated the privileges of an innocent purchaser before maturity of negotiable paper, the plaintiff was entitled to a verdict. The verdict was rendered in plain disregard of these instructions. A verdict so rendered is contrary to law, whether the instructions be correct or not. Aultman & Co. v. Reams, 9 Neb. 487, 4 N.W. 81; Omaha & R. V. R. Co. v. Hall, 33 Neb. 229, 50 N.W. 10; Standiford v. Green & Co., 54 Neb. 10, 74 N.W. 263. While a judgment will not be reversed for that reason if the verdict be the only one which could properly be rendered, this case does not fall within the exception. "

Accepting, as we must, the instructions of the court as the law of the case for the purpose of determining whether the verdict was contrary to law, an examination of the record makes it plain that these instructions were wholly disregarded. The cause of action stated in the petition is as follows:

That on or about the first day of July, 1891, the plaintiff being then unmarried, at the request of the defendant, then promised the defendant to marry him, and the defendant at the same time promised to marry her; that said contract and promise of marriage was between the said parties, in the first instance, oral and spoken, and said contract of marriage was to be fulfilled upon the plaintiff's arriving at the age of eighteen years or over; that after said original and mutual agreement of marriage between said parties was made, said defendant at many and numerous times, both orally and in writing by letters between July 1, 1891, the date of the first promise of marriage, and November 25, 1893, renewed and acknowledged said first contract and mutual promise of marriage; that plaintiff relied on said promise and remained unmarried; that defendant, contrary to said promise, on the 25th day of November, 1893, married another, and that plaintiff was at all times ready and willing to marry said defendant.

The answer, among other things, alleged that the promise of marriage was oral and was made about the first of July, 1890; that it was not to be consummated until plaintiff attained the age of eighteen years; that at the time the promise was made she was fifteen years of age; that no note or memorandum of said promise was ever made in writing, subscribed by the party charged, and said oral promise was, by its terms, not to be performed within one year from the making thereof.

The reply admitted that the marriage was not to take place until the plaintiff below had attained the age of eighteen years; and, in her testimony given on the trial, she stated that the defendant proposed marriage to her in May, 1890, and that she gave him her answer in August, shortly after attaining her fifteenth birthday. The only evidence of any written memorandum of the marriage contract existing between the parties was given by the plaintiff and her mother. The plaintiff testified that shortly after the defendant's marriage she burned all the letters received from him. She was allowed to testify as to the contents of one letter received in April, 1893. On being asked the contents of that letter, she replied:

"He wrote he would be up in a few days and make arrangements about our marriage."

Q. Anything further?

A. Only that he would be up in a few days.

Her mother testified that she had read the letter, and on being asked to state its contents, replied:

"Well he told...