Stamm v. Wood

• Decision Date: 23 October 1917
• Citation: 86 Or. 174,168 P. 69
• Parties: STAMM v. WOOD.
• Court: Oregon Supreme Court

168 P. 69

86 Or. 174

STAMM v. WOOD.

Supreme Court of Oregon

October 23, 1917

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Daisy Stamm against John A. Wood. Judgment for plaintiff and defendant appeals. Reversed, and new trial ordered.

This is an action by Daisy Stamm against John A. Wood to recover damages for an alleged breach of a mutual promise of marriage, and for seduction averred to have been brought about by the defendant through the plaintiff's reliance upon such promise. The answer denied all the material averments of the complaint, and for a further defense alleged, in effect, that the plaintiff ought not to be permitted to say that a contract of marriage was ever entered into by the parties, for that in the year 1912 the defendant and Myrtle Roberts mutually engaged to marry, the ceremony of which was not to be performed until after the death of his mother, who was then ill; that during his courtship of Miss Roberts, which wooing was well known to the plaintiff, she discussed such engagement with him and other members of his family; that at no time prior to the commencement of this action did the plaintiff ever claim or assert that she was engaged to marry him; and that as a result of his betrothal he and Miss Roberts were married July 15, 1915, after the death of his mother. The answer did not allege, however, that in consummating such union the defendant relied upon the plaintiff's alleged conduct, that he was deceived thereby, or that in consequence thereof he was induced to assume a relation which he would not otherwise have undertaken. A motion was sustained to strike out the further defense on the ground that it was incompetent, irrelevant and immaterial, and that in a prior answer herein a demurrer to a similar defense was sustained. the cause was thereupon tried resulting in a verdict and judgment for the plaintiff in the sum of $3,000, and the defendant appeals.

M. H Clark and C. M. Idleman, both of Portland (Clark, Skulason & Clark, of Portland, on the brief), for appellant. Elton Watkins, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for respondent.

MOORE J. (after stating the facts as above).

It is contended that an error was committed in striking out the separate defense. The matter thus set forth was evidently designed as a bar or impediment raised by law to prevent the plaintiff from alleging or denying a fact in consequence of her own previous act, allegation, or denial to the contrary. The facts stated were insufficient for the purpose contemplated. Thus in Haun v. Martin, 48 Or. 304, 86 P. 371, Mr. Chief Justice Bean, discussing this subject, says:

"Where an estoppel is relied upon, the facts constituting it must be pleaded with particularity and precision, and it must be alleged that the party setting up the estoppel relied upon such facts believing them to be true, and will be prejudiced by allowing them to be disproved. Nothing can be supplied by inference or intendment."

To the same effect see, also, McGregor v. Oregon R. & N. Co., 50 Or. 527, 93 P. 465, 14 L. R. A. (N. S.) 668; Ashley v. Pick, 53 Or. 410, 100 P. 1103; Cooper v. Flesner, 24 Okl. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29.

A text-writer in commenting upon the legal postulate now under consideration observes:

"It may be stated as a general rule that it is essential to the application of the principle of equitable estoppel that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the state of the facts, but was also destitute of any convenient and available means of acquiring such knowledge; and that, where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel." 11 Am. & Eng. Ency. Law (2d Ed.) 434.

See, also, upon this subject, 10 R. C. L. 696, note 13, and cases cited thereunder.

It will be remembered that the answer denied any marriage engagement was ever entered into by the parties. If such a contract had ever been consummated, the parties hereto must have understood the terms of the agreement. That fact, if it existed, was therefore known to both, and hence no estoppel could arise from the separate defense thus set forth. Testimony offered by the defendant, however, to substantiate such averments was received without objection. Thus the defendant and all his witnesses who were called on this branch of the case minutely detailed declarations imputed to the plaintiff wherein she frequently referred to his proposed marriage with Miss Roberts while she, a music teacher, was for about three years the companion of the defendant's mother. Addressing her conversation to his daughters, the plaintiff often stated, "You will have Miss Roberts for a stepmother." At a fashionable restaurant in Portland, Or., where were present others besides the defendant, Miss Roberts, and the plaintiff, the latter at a dinner, after the death of the defendant's mother, offered a toast to Mr. Wood and his contemplated bride, Miss Roberts, wishing them much happiness in their proposed union. Such testimony, though not evidencing an estoppel for the reason hereinbefore stated, was properly admissible under the general issue. "The pleader," says a text-writer, "is not confined, however, to mere negative proof in denial of the facts stated by his adversary, but he may give evidence of independent facts inconsistent therewith which tend to meet and break down the cause of action or defense stated." 7 Standard Ency. of Proced. 91. In Tisdale v. Mitchell, 12 Tex. 68, a headnote reads:

"Under the general denial, it seems, the defendant may prove a settlement, or admissions of the plaintiff, adverse to his right to recover in whole or in part."

The defendant thus having the benefit of the testimony tending to support his averments of an estoppel suffered no prejudice in the particular specified, and hence in striking out the separate defense complained of no error was committed.

It would probably have been more compatible with the general rules of practice if the motion to strike out the separate defense had stated that this part of the answer was "frivolous." L. O. L. § 76; Bliss, Code Plead. § 421. In Farris v. Hayes, 9 Or. 81, 87, it is said:

"A pleading that is but a repetition of a former one adjudged insufficient may be regarded as frivolous."

It will be kept in mind that one of the grounds stated in the motion was "that in a prior answer herein a demurrer to a similar defense was sustained." Such assignment was equivalent to an assertion that the separate defense was frivolous.

An exception having been taken to parts of the court's charge it is contended that an error was committed in instructing the jury as follows:

"If you find from the evidence that the acts and declarations of the defendant were such as to induce the plaintiff to believe that there was an

engagement between plaintiff and defendant to marry, and that plaintiff acted on that belief, and you further find that the defendant, knowing plaintiff was acting on such belief, continued thereafter to act in a manner to induce the same, the law would not, in such case, permit defendant to deny that the engagement existed; in other words, if the parties entered into a contract to marry, and one of them did not intend to perform the promise when it was made, if it was not made in good faith, and the other party made the promise in good faith, and in reliance upon the promise made that party was deceived thereby, this want of good faith by one party would not prejudice the rights of the innocent party, nor affect the validity of the marriage contract."

It is argued that as the complaint alleged an express contract of marriage and averred seduction under the promise thereof in aggravation of damages, and as the plaintiff testified that the defendant requested her to marry him, to which solicitation she acceded, and thereupon promised to marry him, the engagement was definite, the instruction so quoted is outside the issue and predicated upon an estoppel which was not set forth by the plaintiff, and for that reason the part of the charge so challenged constitutes reversible error. In order to entitle a party to a suit or action in this state to rely upon an estoppel in pais it is incumbent upon him to set forth in his pleading the facts constituting such bar if he have a chance to do so. First Nat. Bank v. McDonald, 42 Or. 257, 70 P. 901; Union St. Ry. Co. v. First Nat. Bank, 42 Or. 606, 72 P. 586, 73 P. 341; Christian v. Eugene, 49 Or. 170, 89 P. 419. Where, however, no opportunity arises to plead such estoppel, and the necessity therefor occurs at the trial of a cause upon the admission of evidence, the truth of such plea may be established in the absence of any averment to that effect. Morback v. Young, 58 Or. 135, 113 P. 22; West Side Lumber & Shingle Co. v. Herald, 64 Or. 210, 128 P. 1006, Ann. Cas. 1914D, 876; Mascall v. Murray, 76 Or. 637, 149 P. 517, 521.

The bill of exceptions does not state that no evidence was offered at the trial tending to justify the giving of the instruction quoted. In the absence of a showing to that effect it will be taken for granted that testimony was received which authorized a reliance upon the estoppel in pais without pleading the facts constituting such bar and sanctioned the giving of the part of the charge so challenged. If testimony was received tending to show that one of the parties, without intending to keep or perform his engagement, promised to marry the other in order to secure from such person some favor which would not otherwise have been granted, except by a reliance upon such...