McQuillen v. Evans

• Decision Date: 11 October 1933
• Docket Number: No. 21746.,21746.
• Citation: 187 N.E. 320,353 Ill. 239
• Parties: McQUILLEN v. EVANS.
• Court: Illinois Supreme Court

353 Ill. 239

187 N.E. 320

McQUILLEN

v.EVANS.

No. 21746.

Supreme Court of Illinois.

June 22, 1933.

As Modified on Denial of Rehearing Oct. 11, 1933.

Error to Second Branch Appellate Court, First District, on Error to the Superior Court, Cook County; Marcus Kavanagh, Judge.

Action by Lilliam McQuillen against William H. Evans. To review a judgment of the Appellate Court affirming a judgment for plaintiff, defendant brings certiorari.

Reversed and remanded.

Miller, Gorham, Wales & Adams, of Chicago (Amos C. Miller, Edward R. Adams, and Herbert C. De Young, all of Chicago, of counsel), for plaintiff in error.

Clarence Kammermann and J. J. Cooke, both of Chicago, for defendant in error.

ORR, Chief Justice.

This action was brought to recover money loaned and damages for breach of an alleged verbal contract of marriage. A declaration in assumpsit consisting of two counts was filed in the superior court of Cook county by Lillian McQuillen, defendant in error (herein called plaintiff), against plaintiff in error, William H. Evans (herein called defendant). It charged that plaintiff loaned $2,200 to defendant, and that he had promised to marry her on successive dates between November 1, 1919, and May 5, 1924. A plea of the general issue was filed to the money-loaning count, and the other count was met with the general issue and a plea of the five-year statute of limitations. Two special pleas also charged plaintiff with knowledge that at the time defendant made the promise of marriage he had a wife living. Issue was joined, and following a jury trial plaintiff obtained a judgment for $16,000, which was affirmed on review by writ of error from the Appellate Court for the First District. The cause comes here on leave granted by certiorari.

The parties first met in Chicago in September, 1919. In the following November defendant proposed marriage to plaintiff, and his proposal was accepted. At this time defendant was engaged in developing a metal reamer, used in automotive work. He was much discouraged, but the encouragement and material assistance of plaintiff caused him to persist in his work. The marriage was deferred from time to time because defendant lacked the financial means to maintain a home and wife. In May, 1924, defendant told plaintiff that he was making $50 a week and that they would be married on Decoration Day, 1924. This was agreeable to plaintiff, who made preparations for the wedding. When they started out together to be married on Decoration Day, defendant informed plaintiff that he could not marry her, as he already had a wife and family in California. This news was a surprise to her, and was her first knowledge that he had a wife and children. Defendant then assured her that he would secure a divorce from his wife and when that was obtained they would be married. No breach of the promise to marry then occurred, as defendant did not refuse to carry out his former promise, but only postponed the time of marriage until he could secure a divorce. Plaintiff continued going with defendant and waiting for him to obtain a divorce until March, 1929. Two years earlier, in March, 1927, defendant told plaintiff that he did not care to see her any more and that they were not going to get married. After this declaration, he made no further agreements or offers to marry plaintiff, and their relations were not as friendly or their visits together as frequent as they had been in the past. At various times from 1921 to 1923 plaintiff gave defendant different sums of money, aggregating slightly over $1,000. She testified that in October, 1928, she asked him if he was going to give her a birthday present, and he replied that he would not, but that he expected to pay her back the $1,000 he owed her.

One of the pleas of defendant upon which reliance is now based was that the cause of action did not accrue to plaintiff at any time within five years before the commencement of the suit. The evidence shows that this plea is not founded upon the fact. Whether the breach be said to be in May, 1924, or in March, 1927, the suit, which was begun on March 19, 1929, was well within the five-year limitation in point of time.

The evidence shows only one promise to marry, made in November, 1919. At this time, and until Decoration Day, 1924, plaintiff had no knowledge that defendant was married. A married man may become liable upon a promise of marriage if plaintiff at the time the promise is made is not aware that defendant was a wife living. Paddock v. Robinson, 63 Ill. 99, 14 Am. Rep. 112. In such case the promisor cannot avail himself of the fraudulent concealment of his marriage as a defense to an action upon the contract. Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336;Cammerer v. Muller, 60 Hun, 578, 14 N. Y. S. 511;Carter v. Rinker (C. C.) 174 F. 882.

For a proper consideration of this case, it must be borne in mind that during the period from November, 1919, when the promise to marry was made, until March, 1929, when this suit was begun, the plaintiff did not occupy the same continuing relation toward the defendant. During the first four and a half years, from November, 1919, until May, 1924, plaintiff was not aware that defendant had a wife living-in other words, she was then an innocent victim of defendant's deceit. During that period the jury might have properly allowed her not only actual damages for the breach which later occurred but also punitive or exemplary damages. After acquiring knowledge of defendant's married status and perfidy, however, she continued to go with him for five more years. From May, 1924, until March, 1927, when he finally breached the marriage promise by telling her flatly he would not marry her, she no longer occupied the position of an innocent person, but was, as she stated, waiting for him to secure a divorce from his wife. During this period she was not entitled to recover any damages, actual or punitive, as the execution of the promise was then based upon the contingency of divorce, not recognized as valid in a court of justice. Paddock v. Robinson, supra. After the breach of the promise in March, 1927, until suit was instituted in 1929, nothing could have occurred to enlarge plaintiff's scope of damages beyond those provable at the time of the breach, as she was still chargeable with knowledge of defendant's marriage. Even the breach of a new promise to marry, made under such circumstances and during such period, would furnish no legal basis for recovery.

A review of the record shows that the trial court, both in the introduction of evidence and in instructions to the jury, failed to take the above-mentioned distinctions into consideration. In the course of the trial, which started June 15, 1931, plaintiff offered in evidence two instruments. The first (Exhibit 8) was a financial statement of the Evans Flexible Reamer Corporation, made for a Chicago bank on January 17, 1930, purporting to show the financial condition of the corporation as of December 31, 1929. The defendant, Evans, was the president of that corporation, and owned nearly all of its capital stock. The statement in question was made by the secretary of the corporation, while the affidavit thereto was executed by the defendant. A second financial statement (Exhibit 9), signed and sworn to by the secretary of the corporation, dated January 8, 1931, purported to show the financial condition of the corporation as of December 31, 1930. The exhibits were allowed in evidence over general objections of the defendant which went to their relevancy.

Exhibit 9 was not signed in any manner by defendant, and the objection to its admission should therefore have been sustained. Exhibit 8, which was sworn to by defendant as president of the corporation, was properly admitted in evidence, as it tended to furnish some evidence of his financial worth by showing the net value of the corporate stock largely owned by him. It is the common practice in such cases to allow specific evidence of defendant's pecuniary circumstances to be introduced. The contrary has been held in a few cases, but the great weight of authority and reason is in support of the practice stated, 3 Elliott on Evidence, § 1888; Vaughan v. Smith, 177 Ind. 111, 96 N. E. 594, Ann. Cas. 1914C, 1092;Vierling v. Binder, 113 Iowa, 337, 85 N. W. 621;Dent v. Pickens, 34 W. Va. 240, 12 S. E. 698,26 Am. St. Rep....