Massuco v. Tomasi

• Decision Date: 06 August 1907
• Citation: 80 Vt. 186,67 A. 551
• Court: Vermont Supreme Court
• Parties: MASSUCO v. TOMASI.

67 A. 551

80 Vt. 186

MASSUCO

v. TOMASI.

Supreme Court of Vermont. General Term.

Aug. 6, 1907.

Exceptions from Washington County Court; Willard W. Miles, Judge.

Action by Irene Marie Massuco against Dominico Tonaasi for breach of promise to marry. From a judgment for plaintiff, defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Lord & Carleton and Hale K. Darling, for plaintiff. A. M. Sartorelli, Geo. W. Wing, and H. C. Shurtleff, for defendant.

ROWELL, C. J. The original declaration contains but one count, which alleges with time, but not with place, that the defendant promised to marry the plaintiff. It then alleges that at such another time, at such a place in Italy, for the purpose of deceiving the plaintiff, the defendant had a marriage ceremony performed by a priest in a Roman Catholic church, which was not a legal marriage, as the defendant well knew, and that he then and there promised to have a civil marriage performed, and afterwards, at divers times, changed the time and place of having said marriage performed—at one time promising to have it performed at Boston; at another, at Montpelier; and finally, at such another time, but stating no place, he refused to have it performed at all, and married another woman. Several new counts were filed. Some laid the whole cause of action in Italy; some, part of it there and part of it in New York; and some, all of it at Montpelier, where the parties lived when suit was brought. The case was tried on all the counts.

The defendant admitted that he promised to marry the plaintiff, and said that he was ready and willing, and repeatedly offered to marry her, but that she would not marry him. To meet this claimed refusal, it was competent for her to show, as she did, that in reply to letters received by her in Italy from the defendant here, which she did not produce, they being still in Italy, and the terms of which she did not seek to establish, she wrote to the defendant, who, on notice to produce, denied having received such a letter, that her father would not consent to their marriage; that he could write to her father, and, if he consented, everything would be all right. It appeared that her father did subsequently consent. The plaintiff left home when her father refused to consent, and would not go back. Her testimony that, while thus away, her father sent word to her that if she would come back he would consent, was harmless, as it appeared that he did subsequently consent.

It appeared that a religious marriage ceremony was performed in Italy between the parties, and that such a ceremony did not make a legal marriage there. The objection that the performance of that ceremony could not be shown by parol, for that the best evidence of it would be some writing that authenticated it, is not well taken. It does not appear that there is any such writing, nor that any such was required; and, if it did, it would not preclude the testimony of eyewitnesses, as is abundantly shown by the cases. Indeed, the testimony of such witnesses is regarded as better evidence than the record, as further evidence of the identity of the parties may be necessary. 2 Wig. Ev. § 1336; 3 Wig. Ev. § 2088.

In testifying to what took place at the religious ceremony the plaintiff said, among other things, that the priest made the defendant swear to marry her by civil marriage as soon as they arrived here, because he had promised many times before to marry her then. The defendant moved to strike out this last statement; and, on being asked if that was what the priest said, the interpreter said it was a statement of what the defendant had previously said. It is now urged that the statement was not responsive, was prejudicial, and could have been regarded by the jury only as evidence that this promise had before that been frequently made to the priest. That the statement was not responsive did not make it inadmissible. Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488. And, whether the statement was of a promise to the priest or to the plaintiff, it was harmless; for the defense was put solely on the ground of no breach by the defendant, and accord and satisfaction.

To show the financial condition of the defendant at the time of the promise in March, 1899, the plaintiff introduced evidence of his declarations to the effect that he was worth from $20,000 to $30,000. It does not appear how far back of the promise these declarations went; but it is fair to presume that some of them went back a considerable time, for a sister of the plaintiff testified that he talked with her about his property "lots of times" before he went to Italy to marry the plaintiff, which was the March of the promise, and that he always said he was worth about $25,000. The plaintiff also introduced evidence tending to show that at the time of the promise the defendant owned a block in Montpelier worth from $10,000 to $15,000. The purchase price of the block was conceded to be $6,000. The deed of it, dated November 29, 1897, was taken to the defendant's former wife, a sister of the plaintiff, who died in 1898.

As bearing on his actual financial condition at the time of the promise, and also on whether he made the claimed declarations as to his property, the defendant offered to show that he had to mortgage the block for $5,500 of the purchase money. This was objected to as immaterial, and excluded, and the defendant confined to the time of the promise, and not allowed to go back of it to show his financial condition at that time. This was error. The plaintiff was asserting and the defendant was denying, and it cannot be said that the condition he offered to show he was in when he bought the block did not tend to rebut the plaintiff's evidence as to the condition he was in 15 months later, when he made the promise; for it tended to lessen the probability that in that short time, with his facilities, he had come to be worth from $20,000 to $30,000. Indeed, the plaintiff does not now claim that the offered testimony was immaterial, but seeks to justify its exclusion only on the ground of remoteness in time. But that objection was not made below, and therefore cannot be made here. The testimony should...