Thrush v. Fullhart

• Decision Date: 04 November 1913
• Docket Number: 1,170.
• Citation: 210 F. 1
• Parties: THRUSH v. FULLHART.
• Court: U.S. Court of Appeals — Fourth Circuit

210 F. 1

THRUSH v. FULLHART.

No. 1,170.

United States Court of Appeals, Fourth Circuit.

November 4, 1913

William MacDonald, of Keyser, W.Va. (Frank C. Reynolds, of Keyser, W Va., on the brief), for plaintiff in error.

W. H Griffith, of Keyser, W.Va. (Roscoe A. Heavilin, of Marion Ind., on the brief), for defendant in error.

Before PRITCHARD and KNAPP, Circuit Judges, and CONNOR, District Judge.

KNAPP Circuit Judge.

This is an action for breach of promise of marriage. It was tried to a jury, and the defendant in error (hereinafter called the plaintiff) had a verdict on which judgment was entered. The plaintiff in error (hereinafter called the 'defendant') prosecutes this writ to reverse the judgment against him.

The declaration of plaintiff is in the usual form. The defendant in addition to the general plea of non assumpsit, filed two special pleas; one alleging that his promise to marry was void under the statute of frauds of West Virginia, the other alleging that plaintiff's cause of action was barred by the statute of limitations of that state.

The parties to the suit became engaged in the spring of 1894, when they were both students at Otterbein University, at Westerville, Ohio. The plaintiff was then upwards of 23 years of age, the defendant a year older. The defendant was preparing for the ministry, and plaintiff knew that he intended to take a theological course at Lane Seminary, Cincinnati, Ohio. He did in fact attend that institution during the three years following his graduation from Otterbein in June of the year named. The plaintiff testified that their marriage was to take place 'as soon as defendant was able to be married,' but she evidently understood that this would not be until he completed his studies and 'was located in some employment.' The record does not show definitely when or for what reason defendant abandoned his intention to become a minister, but it appears that after leaving the seminary in 1897 he was employed for about two years as a clerk in his brother's store at Piedmont, W. Va., and in 1899 returned to his father's farm near Burlington in that state, where he has since resided. His father was then advanced in years and in failing health. He died intestate in April, 1910, leaving a considerable estate which passed to his five sons and his widow, their stepmother.

At the time of their engagement the plaintiff lived at North Manchester, Ind., but some two years later removed to Marion, in that state, where she has continued to reside. She left Otterbein soon after the engagement, and for a while was employed as a school teacher, but later became a stenographer, which has since been her occupation. During this time the defendant visited her on two occasions. The first was at Christmas, 1895, when she gave him her watch, which she says he was to return when he came to claim her as his bride. The other occasion was during the defendant's vacation in June, 1896, an account of which appears in the testimony. With these exceptions the parties did not see each other from the time they were students at Westerville until they met 18 years later at the trial of this action in September, 1912.

Throughout this long period, except perhaps the last year or two, there was a more or less frequent correspondence between the parties. Most of the letters appear to have been destroyed, but some which happened to be preserved were produced at the trial and are printed in the record. It is unnecessary to comment upon the contents of these letters except in connection with certain assignments of error which will be presently considered. On the 29th of November, 1911, the defendant married one Mary Whipp, and on the 4th day of June, 1912, this action was commenced.

The defense based upon the statute of frauds is without merit and needs but a word of mention. If it be granted that the statute applies to a contract to marry, and that this contract by its terms was not to be performed within a year after it was made, we are of opinion that the subsequent letters of defendant, which in effect acknowledged and ratified the agreement, constituted a promise in writing within the meaning and intent of the statute.

On the trial of the action the plaintiff was allowed, against the objection of defendant, to introduce and read to the jury a certified copy of the appraisement of his father's estate, which was filed in the clerk's office of Mineral county in October, 1910. To the list of personal property and real estate was appended a certificate of the appraisers to the effect that the list of items with the value thereof was correct, and a further certificate of the administrators, of whom the defendant was one, that the list embraced all the property belonging to the estate. This appraisement was offered in evidence for the purpose of showing the defendant's financial condition and was admitted solely for that purpose.

We perceive no error in this ruling of the trial court. Evidence of the defendant's means and consequent ability to respond in damages is clearly admissible in actions of this kind, and we see no reason to doubt that it was competent to prove this defendant's financial condition, prima facie at least, by the official valuation of his father's estate, in which he had a known and definite interest. It may be, as claimed by counsel, that the introduction of this appraisement, with its long list of items, of the nominal value in the aggregate of more than $91,000, gave the jury an exaggerated impression of the amount of property which defendant inherited and which he then presumably possessed. But it was open to defendant to point out any items which were overvalued, or to show subsequent losses and depreciation, or to give independent proof of his actual financial condition. Having failed to avail himself of the opportunity to rebut any inferences as to his present circumstances which might be drawn from the appraisement in question, he cannot now be heard to complain if the jury in fact based the amount of its verdict upon an excessive estimate of his pecuniary ability.

After the evidence was concluded, and before the arguments of counsel, the court gave to the jury certain instructions, five in number, which the plaintiff requested, and to each of which the defendant duly excepted. Without stating the various propositions submitted, or discussing the questions which they severally present, it is sufficient to say that in our judgment none of these instructions involves substantial error. Even if they be regarded as favoring the plaintiff's contention, we are not persuaded, in view of the pleadings and evidence, that they were incorrect or unwarranted.

A different and more serious question arises from the refusal of the court to give the instruction requested by defendant, to which refusal exception was taken, and from the instruction afterwards given by the court of its own motion, with the consent of plaintiff, but over the objection of defendant; and, in order that this question may be determined on its merits, we pass by as unimportant the technical point that the instruction was not given in the order provided by the West Virginia statute. The instruction asked for and refused was this:

'The court instructs the jury that if they believe

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