Kraxberger v. Roiter

• Citation: 3 S.W. 872,91 Mo. 404
• Parties: Kraxberger v. Roiter, Plaintiff in Error
• Decision Date: 21 March 1887
• Court: United States State Supreme Court of Missouri

3 S.W. 872

91 Mo. 404

Kraxberger v. Roiter, Plaintiff in Error

Supreme Court of Missouri

March 21, 1887

Error to Morgan Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

A. W Anthony for plaintiff in error.

(1) The first instruction given for the defence, considered in the light of the evidence, was erroneous. It puts the case upon the ground that, if defendant notified plaintiff that he could not, or would not, comply with his promise, the defendant was liable. The mutual consent to a rescission need not be expressed by words, being valid if implied. Wheeden v. Fiske, 50 N.H. 125; Fine v Rogers, 15 Mo. 315; Jones v. Neale, 2 Pat. & H. 339. (2) Plaintiff's second instruction took the case entirely from the jury. Whether she intended to abandon the contract was a question of fact to be determined by the jury from all the facts and circumstances surrounding the transaction and the conduct of the parties. Brewington v Jenkins, 85 Mo. 57. (3) There was no evidence that plaintiff was ready and willing to marry defendant, which was essential to plaintiff's case. Groll v. Tower, 85 Mo. 219. (4) The evidence as to the advice given plaintiff by her pastor should have been admitted. (5) The verdict for three thousand dollars was excessive, there being no evidence of defendant's financial responsibility. Gilbert v. Berkinshaw, Lofft. 771.

Draffen & Williams and D. E. Wray for defendant in error.

(1) There was no error in the exclusion of the questions asked plaintiff in regard to her conversation with the preacher, Klechner. State v. Leland, 82 Mo. 260; Jackson v. Hardin, 83 Mo. 175; Schlicker v. Gordon, 19 Mo.App. 479. (2) Plaintiff's first instruction was properly given. If defendant notified the plaintiff that he could not, or would not, marry her, it constituted a breach of his contract and authorized her to sue at once. Burtis v. Thompson, 42 N.Y. 246; Holloway v. Griffith, 7 Am. Rep. 208; Kurtz v. Frank, 76 Ind. 594. (3) A change of feeling is no defence, nor the fact that another had supplanted the plaintiff in the affections of the defendant. 2 Parsons on Contracts [5 Ed.] 68. (4) Plaintiff's second instruction is correct. (5) Even an offer by a defendant to perform his agreement, which was refused by the plaintiff has been held incompetent to mitigate the damages, much less could it be a defence. Bennett v. Beam, 42 Mich. 346; Holloway v. Griffith, 32 Ia. 409; Miller v. Hays, 34 Ia. 496. (6) The measure of damages was properly declared. Wrightman v. Coats, 15 Mass. 1; Royal v. Smith, 40 Ia. 615; Wilbur v. Johnson, 58 Mo. 600. (7) There was no error in the refusal of defendant's fifth instruction. Hamby v. Brooker, 51 Mo. 439; State v. Holme, 54 Mo. 153; State v. Chambers, 87 Mo. 406; Snell v. Bray, 56 Wis. 156. (8) The damages were not excessive. Wilbur v. Johnson, 58 Mo. 600; Wrightman v. Coats, 15 Mass. 1.

Brace J. Norton, C. J., absent.

OPINION

Brace, J.

Action for damages for breach of promise to marry. Defendant admitted the engagement and pleaded a release. The jury found a verdict for the plaintiff for three thousand dollars. The following is all the evidence in the case that it will be necessary to consider in passing upon the errors complained of:

Plaintiff testified: "We were engaged about three months when he commenced to break off the engagement, by letters. At first I could not believe that he meant what he wrote, and wrote him for an explanation. When I learned he was in earnest it almost made me crazy. I could not eat or sleep. I came to Missouri; went to Uncle Mike's; staid all night; next morning went to see the defendant. He treated me very cool and would scarcely speak to me; he said it was time to break off the engagement; he said his feelings were changed, and that he could not marry me; that he loved another woman; that he loved her before he met me. I took off the ring he had given me and gave it up to him, and told him he did not talk that way when he courted me and won my love, and told him the way he had treated me had broke my heart. I did not know what I was doing when I gave him the ring; he said he had written to me and told me what the reason was; he then hung his head down and would not talk to me any more; I then left the room and told him I would see him again; I went to see him because I could not believe what he had written in his last letters, as it was so different from what he had said and written before; I have his letters." The letters were read to the jury, but not embraced in the bill of exceptions.

On cross-examination the witness was asked the following questions:

Q. "Since this conversation had with defendant, and after you had given up the ring and presents to defendant, did you have any conversation with preacher Kleckner?" (Objected to by plaintiff, and objection sustained).

Q. "Did preacher Kleckner tell you that a marriage engagement could not be cancelled, and it was your religious duty to enforce it, or words to that effect?" (Objected to by plaintiff, and objection sustained).

Defendant, in his own behalf, testified: "I wrote the letters read in evidence; I referred to another lady in one of those letters; I was engaged to her before I was engaged to plaintiff; I thought I had got over my love to her, and told plaintiff so before we were engaged, but found I had not, and changed my mind about marrying plaintiff, and wrote to plaintiff immediately; she came to my father's house to see me; I told her how it was; that I could not marry her with a clear conscience, and she offered me the ring, our engagement ring, and some other presents I had made her; I did not take them, but told her she could keep them; she laid them on the bureau and left them; when she left she said she would see me again about it; we had no more conversation." On cross-examination he said: "I conveyed the impression to her that it would be wrong for me to marry her; I told her that I had become convinced I could not marry her while I loved this other lady; this was before she handed me the ring; I told plaintiff's uncle the day we had the talk that I would not marry the plaintiff."

Miss Roiter, sister of defendant, testified in his behalf: "I saw the plaintiff when she came out of the room after the conversation with the defendant at my father's house; she told me that defendant did not love her any more, and that if he did not love her she did not want him; she was crying at the time, and went away from our house crying."

The exception to the ruling of the court, refusing to allow plaintiff to answer the questions set out in the evidence, is not well taken. The questions do not disclose...