Knecht v. Knecht

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE FRAZER:
• Citation: Knecht v. Knecht, 261 Pa. 410, 104 A. 676 (Pa. 1918)
• Decision Date: 03 June 1918
• Docket Number: 8
• Parties: Knecht v. Knecht, Appellant

104 A. 676

261 Pa. 410

Knecht v. Knecht, Appellant

No. 8

Supreme Court of Pennsylvania

June 3, 1918

Argued March 4, 1918

Appeal, No. 8, Jan. T., 1918, by defendant, from judgment of C.P. Berks Co., Oct. T., 1916, No. 28, on verdict for plaintiff, in case of S. Kathryn Knecht v. Elmer Knecht. Affirmed.

Assumpsit for money had and received to plaintiff's use. Before WAGNER, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $1,747.30 and judgment thereon. Defendant appealed.

Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v answers to points and instructions to the jury.

The judgment is affirmed.

W. B Bechtel, with him Earle I. Koch, for appellant. -- As the relations of the parties were admittedly meretricious for three years prior to the alleged common law marriage, the evidence of the alleged marriage was not sufficient to overcome the presumption that they continued to be meretricious: Hunt's App., 86 Pa. 294; Grimm's Est., 131 Pa. 199; Appeal of Reading Fire Insurance Company, 113 Pa. 204; Bicking's App., 2 Brewster 202, p. 220; Tholey's App., 93 Pa. 36; Hantz, Adm. c.t.a. of Sealy, v. Sealy, 6 Binney 405; Commonwealth v. Stump, 53 Pa. 132, p. 136; Com. v. Dando, 28 Luz. Leg. Reg. 153; Hine's App., 10 Pa.Super. 124; Comly's Est., 185 Pa. 208.

Paul N. Schaeffer, of D. N. Schaeffer & Son, for appellee. -- The issue in this case under the pleadings is whether the plaintiff gave her earnings to defendant and defendant received them under the contract testified to by plaintiff, or under the contract testified to by defendant.

The refusal of the court to direct a verdict for defendant and to enter judgment for defendant n.o.v. was proper as there was sufficient evidence to carry the case to the jury as to whether or not a common-law marriage had taken place: Richard v. Brehm, 73 Pa. 140; Commonwealth v. Gamble, 36 Pa.Super. 146; Rose v. Clark, 8 Paige Chanc. R. 574; Maryland v. Baldwin, 112 U.S. 490, 494; Hantz v. Sealy, 6 Binney 405; Commonwealth v. Haylow, 17 Pa.Super. 541; Bergdoll's Est., 7 Pa. District R. 137, 139.

In considering whether or not the parties intended a marriage, their subsequent acts and declarations which indicate and throw light upon their own construction of the agreement must be considered: People's Natural Gas Co. v. Braddock Wire Co., 115 Pa. 22, 25; New York Tartar Co. v. French, 154 Pa. 273, 283; Greenwalt v. McEnelley, 85 Pa. 352, 355; Commonwealth v. Haylow, 17 Pa.Super. 541; Richard v. Brehm, 73 Pa. 140, 144; Comly's Est., 185 Pa. 208, 209; Senser v. Bower, 1 Penna. Rep. 450; Rose v. Clark, 8 Paige Chanc. R. 574; Thewlis's Est., 217 Pa. 307, 309; Beegle's Est., 64 Pa.Super. 180, 188.

Before BROWN, C.J., POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff avers she is the common-law wife of defendant and sues in assumpsit to recover money she claims to have given defendant from time to time out of her earnings, under agreement to deposit in bank in their joint names that the fund so deposited might be drawn by plaintiff at her pleasure. Defendant denied such agreement, as well as the fact of marriage, and testified to an understanding that plaintiff should pay her expenses and that the money should be used for that purpose, she to receive only the balance of the fund. This version of the agreement was denied by plaintiff, who, to corroborate her testimony, and show liability on the part of defendant to support her without deduction from her earnings, offered evidence to establish a common-law marriage. The terms of the contract, if any, between the parties and whether a marriage actually took place were submitted to the jury who returned a verdict for plaintiff, and from judgment entered thereon defendant appealed.

No denial is made that a considerable sum of money was paid over to defendant by plaintiff. In fact, he admits receiving the sum of $1,283.55, but avers he paid out on plaintiff's account more than the amount received and that there remained after deducting such payments a balance due him. The evidence as to the terms of the contract between the parties depended entirely upon their individual testimony which, being conflicting, was necessarily a question for the jury. The verdict indicates the jurors found the contract to be as testified to by plaintiff. Defendant denies a marriage between himself and plaintiff and sets off against plaintiff's claim the amount of money expended by him on her behalf. The case was tried by defendant, however, on the theory of an express contract whereby plaintiff agreed to pay her personal living expenses and upon a settlement of their account any balance remaining in his hands should be returned to her. The verdict of the jury indicates the contract or understanding of the parties was as testified to by plaintiff and, the case having been tried on this assumption, this court cannot now be asked to review the action on a theory different from that upon which it was presented to the court below: Richardson v. Flower, 248 Pa. 35; Armstrong & Latta v. Philadelphia, 249 Pa. 39; Weiskircher v. Connelly, 256 Pa. 387.

The contention of defendant is also refuted by the finding of the jury that a common-law marriage existed between the parties; if such finding is warranted by the facts defendant's set-off is invalid, for the reason he was liable for the maintenance and support of his wife and could not seek reimbursement for such expenditures as a set-off against her claim to recover her separate earnings entrusted to his care. There is little dispute in the testimony concerning the relations between the parties with the single exception as to what took place at the time the alleged marriage was contracted. Defendant and plaintiff first met in 1905 and it is not denied that from that time until August, 1908, there were frequent instances of improper intercourse between them. Plaintiff testified that at the request of defendant they came to Philadelphia in August, 1908, to be married. No actual ceremony, however, was performed by either a clergyman or magistrate; they remained at a hotel the night of their arrival in the city, and on the following day visited the home of defendant's sister where plaintiff was introduced by defendant as his wife. As to the agreement to marry, plaintiff testified: "After he told her [his sister] we were married we just had the ordinary conversation, after he had told her we were married and I was his wife. After that we left and coming up on the train to Reading we agreed to be married, and would live together as man and wife. . . . Q. What else did he say if anything? A. He said we were mated by God and not by the people and that we were married just as well as if we were married by all the ministers in the world. Q. What did you say to that? A. I agreed to the same thing, we would live together as man and wife. Q. Was that on the train coming back? A. Yes, sir. Q. And you agreed to live together then? A. Yes, sir, and so did he." Upon their return to Reading plaintiff went to her home and defendant to Ashland, Pa., where he was employed at the time and continued to work there until the following February, frequently visiting plaintiff at her boarding house in Reading where they were known as husband and wife. Defendant returned to Reading in February, 1909, and took up his residence with plaintiff and from that time until April, 1916, a period of seven years, with the exception of about a year when employed in other parts of the county, they lived and cohabited together as man and wife, were known as such to their relatives and friends and to the pastor of the church they attended and by whom their child was baptized, and when absent from home defendant frequently wrote to plaintiff addressing her as Mrs. Elmer R. Knecht.

There is no doubt of the sufficiency of the evidence as to...