Poe v. Arch
| Decision Date | 12 October 1910 |
| Citation | 128 N.W. 166,26 S.D. 291 |
| Parties | POE v. ARCH. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Sanborn County.
Action by Annie Poe against Charles Arch. From a judgment for plaintiff, defendant appeals. Affirmed.
Preston & Hannett, for appellant.
L. L Lawson and J. E. Whiting, for respondent.
The plaintiff, who is the respondent, in her complaint, in substance, made the following allegations: That on or about the 1st day of September, 1903, the plaintiff being then unmarried, at the request of the defendant, entered into a contract of marriage with the defendant, whereby he, the defendant for and in consideration of mutual love and affection promised plaintiff herein that he would marry her; that the defendant at various times thereafter and more especially about the 1st of August, 1907, renewed the said promise and agreement of marriage, and again promised plaintiff that he would marry her on or about the 1st day of August, 1908, and again, on the 5th day of May, 1908, defendant promised plaintiff that he would marry her in the near future; that the plaintiff, relying on said promise of defendant, has always remained sole and unmarried, and has been and still is ready and willing to marry the defendant, to all of which he has had due notice; that the plaintiff herein has at various times between the 5th day of May, 1908, and the 11th day of February, 1909, requested the defendant to marry her, but the defendant has failed and still fails and refuses to carry out the contract of marriage, although a reasonable time has elapsed since said promise and before the commencement of this action; that the plaintiff by reason of the failure of the defendant to carry out the promise of his contract of marriage has been subjected to great mental anguish and bodily suffering, and has been damaged in body and mind and character in the sum of $15,000. The defendant denied generally the allegations of said complaint, and also affirmatively alleged that about the month of December, 1908 for the purpose of avoiding litigation, he had paid to the plaintiff the sum of $175 in full payment, satisfaction, and settlement of all claims against this defendant for damages alleged to have been sustained by her growing out of and on account of the alleged promise of defendant to marry plaintiff. The trial of the issues resulted in a verdict and judgment in favor of plaintiff for the sum of $5,000. At the commencement of the taking of testimony on the trial, the defendant objected to the introduction of any evidence, on the ground that the complaint fails to state facts sufficient to constitute a cause of action. The objection was overruled, and the defendant excepted. This ruling of the court is assigned as error. We are of the opinion that the ruling of the court was correct.
It appears that plaintiff has a small child, who has been referred to in the evidence as Arthur C. Arch. While there is no direct evidence as to who is the father of the child there are some slight circumstances tending to show that defendant is the father. For some reason not disclosed by the record, both parties had very little to say in regard to the paternity of the child. In a case of this character, where the testimony of plaintiff and that of defendant is in direct conflict with each other upon the question as to whether or not defendant promised to marry plaintiff, and which is the only testimony directly bearing upon that issue, the jury would have the right to take into consideration all the probabilities of the story told by each in the light of all the surrounding circumstances and in the light of the conduct of both parties to each other, and whether or not plaintiff was the mother of the child, whether by defendant or not, would be a surrounding circumstance that might...
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