Pearce v. Stace

• Decision Date: 11 March 1913
• Citation: Pearce v. Stace, 207 N.Y. 506, 101 N.E. 434 (N.Y. 1913)
• Parties: PEARCE v. STACE.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 506

101 N.E. 434

PEARCE

v.STACE.

Court of Appeals of New York.

March 11, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Carrie W. Pearce against William A. Stace. From a judgment of the Appellate Division (145 App. Div. 900,129 N. Y. Supp. 1139) affirming a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.Edward W. Hatch, of New York City, for appellant.

Harlan W. Rippey, of Rochester, for respondent.

HOGAN, J.

This action was brought to recover damages for a breach of promise of marriage.

The complaint alleged an express contract made between the parties in of about the year 1880 (amended on the trial to read 1884), to be performed within a reasonable time thereafter, and renewals of the contract, at the request of the defendant, until the spring of 1904, when ‘defendant did agree to marry plaintiff, and plaintiff agreed to marry defendant immediately thereafter,’ and a breach of said contract on the 13th day of September, 1904. A further allegation in the complaint charged that defendant, after the mutual promises to marry, did persuade plaintiff to yield to his demands; that she was seduced by him, and illicit relations continued between them during the years following.

A second cause of action alleged an express contract made between the plaintiff and defendant in the spring of 1904, omitted reference to improper relations charged in the first count of the complaint, and alleged a breach of that contract September 13, 1904.

The answer of the defendant denied the making of the contracts or the breach thereof, and for a further defense alleged the statute of limitations as a bar to the cause of action.

At the time of the trial of the action plaintiff was 50 years of age; the defendant was 8 or 9 years her senior. Plaintiff testified that in 1883 she was engaged to one Crean, who resided in Canada, which fact was known to defendant; that shortly after their acquaintance defendant accompanied her to places of amusement, on walks and carriage drives, and asked her to break her engagement with Crean, which she did early in 1884, and thereupon, in the fall or winter of 1884, the defendant promised to marry her ‘inside of a year,’ and she said ‘she would marry him.’ The testimony of plaintiff, referred to, covers the evidence adduced tending to show mutual promises between the parties in 1884. This evidence alone would not permit a recovery by plaintiff for a breach thereof, in view of the statute of limitations pleaded by defendant. To avoid the statute, plaintiff asserted numerous postponements of marriage and renewals of the promise by defendant to marry her. From the evidence it appears that illicit relations between the plaintiff and defendant continued from at least 1885 to and including a portion of the year 1904.

Under the second count of the complaint, she testified that in the spring of 1904 she had some talk with the defendant in regard to marriage. ‘At that time defendant said he would marry me positively in the following fall, to which I replied that I would be very glad to marry him.’ The defendant denied any contract or promise of marriage, or any promise upon his part at any time to marry the plaintiff.

The trial justice properly charged the jury, ‘if it appears that the original promise was made as stated and was not renewed, the cause of action therefor would have been barred by the statute of limitations in 1891; but if the promise was kept alive, so that by mutual consent it stood as originally made, except its time of fulfillment was extended, then the statute of limitations would not begin to run against it until there was an ending and passing by of the time of fulfillment. * * * If the jury should find that the defendant agreed in the spring of 1904 to marry the plaintiff and broke the agreement in the fall of that year, the statute of limitations would not run against that particular cause of action.’ Upon the subject of relations between the parties: ‘If the jury should find from the evidence that intercourse between the plaintiff and defendant was had prior to the primary engagement in 1884 (as was claimed by defendant), plaintiff could not recover anything by reason of the continuance of that intercourse between herself and defendant; * * * that if the seduction antedated the promise of marriage plaintiff could not recover anything by reason of the seduction; the promise must have either been concurrent with or before the seduction.’

[1][2] Exceptions appearing in the record raise important questions of law. One F. W. Clark, a brother-in-law of plaintiff, testified to an acquaintance with the parties for a number of years, and to declarations of the plaintiff, her acts, conduct, and physical appearance, including her conduct, mental and physical condition at the time of the alleged breach of the contract in September, 1904. He was asked: ‘Q. Mr. Clark, will you state whether or not you formed any opinion as to whether or not plaintiff was attached to the defendant? (Objected to; overruled; exception.) A. I certainly did.’ ‘Q. From your association with the plaintiff, during the period of time she was a member of your family, and from your observance of her whole deportment during all that time, and also from your observance of her deportment and conduct at the time of the breaking of the engagement, what do you say as to whether or not, in your opinion, plaintiff was attached to the defendant? A. In my opinion she was attached to Mr. Stace.’ Two other witnesses were called, and like testimony was given by them, over objection of defendant. In reply to the question, ‘State what opinion you formed,’ one answered, ‘They seemed to have the greatest affection for one another, so far as I could see,’ and the second answered, ‘I supposed they had a mutual attachment one for the other.’

In support of the admissibility of the evidence referred to, counsel for respondent called attention to some cases, which he claimed supported the admission of the evidence noted. We do not assent to the argument. McKee v. Nelson, 4 Cow. 355, 15 Am. Dec. 384, was especially relied upon. In that case three witnesses were permitted, without objection, to express their opinions that the plaintiff was, from what they saw, much attached to the defendant. Afterward like questions were propounded, to which objection was made, overruled, and answers admitted, and, though the questions were held proper, still the court said that the objection came too late, as the same question had already been answered by different witnesses. The case was decided in 1825, prior to the time when parties to an action were permitted to testify in their own behalf, and when the courts by reason of such inhibition were liberal in the admission of evidence of that character, since the only mode of proof was by the testimony of third parties. Since the amendment to the law enabling parties to testify, the courts of this state have enforced a more rigid rule as to the admission of opinion evidence so called, and have uniformly held: ‘Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence.’ Ferguson v. Hubbell, 97 N. Y. 507, 513,49 Am. Rep. 544;Welle v. Celluloid Co., 186 N. Y. 319, 79 N. E. 6; Schwander v. Birge, 46 Hun, 66, approved in Van Wycklen v. City of Brooklyn, 118 N. Y. 430, 24 N. E. 179;People v. Smith, 172 N . Y. 210, 64 N. E. 814.

Here the question at issue was the existence of a mutual promise to marry. It was competent for plaintiff to show the attentions paid her by defendant, but manifestations of attachment can hardly be said to be uniform. To one individual the deportment and actions of the parties might appear as the conduct of an engaged couple; to another person the same deportment might seem but the indication of friendship. To allow witnesses to express opinions formed by them from observations of the actions of a man and woman keeping company would admit of opinion evidence that the deportment of the parties indicated the relation of a man towards his mistress. The admissibility of that class of evidence would hardly be asserted. It was for the jury to determine from the acts and conversations of plaintiff ...