Vaughn v. Smith

• Decision Date: 28 November 1911
• Docket Number: No. 21,867.,21,867.
• Citation: Vaughn v. Smith, 177 Ind. 111, 96 N. E. 594 (Ind. 1911)
• Parties: VAUGHN v. SMITH.
• Court: Indiana Supreme Court

177 Ind. 111

96 N.E. 594

VAUGHN

v.SMITH.

No. 21,867.¹

Supreme Court of Indiana.

Nov. 28, 1911.

Appeal from Circuit Court, Wayne County; H. C. Cox, Judge.

Action by Susan J. Smith against John D. Vaughn. Judgment for plaintiff. Defendant appeals. Affirmed.

Transferred from the Appellate Court, under section 1405, Burns' Ann. St. 1908; Acts 1901, c. 259.

Thomas J. Sturdy and Wilfred Jessup, for appellant. Henry U. Johnson and Robbins & Robbins, for appellee.

COX, J.

This action was brought to recover damages for breach of an alleged verbal contract of marriage.

The original complaint, consisting of one paragraph, was filed on the 24th day of December, 1907, in this it was alleged that on the - day of -, 1905, the appellant, in consideration of the promise of the appellee to marry him upon request, promised and agreed to marry her. No proceedings were taken in the cause upon this complaint. The appellee, on the 20th day of January, 1908, filed an amended complaint, which was very materially and essentially different from the original complaint, and in which it was alleged that appellant's former wife died on the 7th day of October, 1903, and on the - day of June, 1904, the exact date the appellee being unable to give, the appellant, in consideration of the promise of the appellee to marry him, then and there promised and agreed to marry her at the expiration of three years from the date of his wife's death. And that at many and divers times thereafter, down to the - day of April, 1906, in consideration of the promise of the appellee; made as aforesaid to marry the appellant, the appellant promised and agreed to marry the appellee at the expiration of the period of time aforesaid; and that in the month of April, 1906, the exact date she is unable to give, the appellant in consideration of her promise to marry him made as aforesaid, promised and agreed to marry her on the 7th day of October, 1906. The appellant filed a general denial to this complaint, and the issue thus formed was submitted to the jury for trial on the 13th day of April, 1908. Near the close of the trial, the appellee filed her motion for leave to amend her complaint. The motion being granted, the appellant excepted thereto, and appellee filed her second amended complaint. In this amended complaint, the appellee alleged that on the 7th day of October, 1903, the former wife of appellant died, and on the - day of June, 1904, he promised and agreed to marry appellee at the expiration of three years from the death of his former wife; and that in March or April, 1906, he promised and agreed to marry her on the 7th day of October, 1906, or thereafter during said month. On the motion of the appellant, the appellee was required to and did separate the several causes of action set up in said last-amended complaint into separate paragraphs, and separately number them. The appellee then filed another, being the third amended complaint, in two paragraphs, in the first of which she alleged that the appellant's wife died on the 7th day of October, 1903, and on the - day of June, 1904, he promised and agreed to marry the appellee at the expiration of three years from the death of his former wife. And in the second paragraph it is alleged that in March or April, 1906, he promised and agreed to marry her on the 7th day of October, 1906, or thereafter during said month. The appellant filed a demurrer to each paragraph of this last-amended complaint, which was sustained to the first paragraph and overruled to the second. The appellant filed an answer of general denial to the second paragraph of this amended complaint. The cause was tried by jury, and a verdict was returned against appellant for $2,500, and judgment was rendered thereon.

The errors assigned and not waived are all based on alleged errors of law occurring during the trial, and presented to the trial court in appellant's motion for a new trial, which was overruled.

[1] The first in the order in which these alleged errors are presented and argued by counsel in the briefs filed in the cause is that the verdict is not sustained by sufficient evidence, and is contrary to law. It has been decided times not readily numerable that this court will not weigh the evidence and determine the preponderance, and that it is only where there is no legal evidence to prove some fact, material and essential to the prevailing party, that a verdict or finding will be set aside on the grounds above assigned. While appellant, as a witness for himself, vigorously, if ungallantly, denied any promise to marry whatever on his part, or any love-making with such serious intent, it may be said that the evidence is overwhelmingly against him, and it is conceded by his counsel that a verbal contract of marriage was proved to have been made between the parties on the 20th day of June, 1904, which was to have been consummated three years from the date of the death of appellant's wife, which had occurred on the 7th day of October, 1903. Counsel for appellee concede for her that this contract, because not to be performed within a year from its making, was within the statute of frauds, and not enforceable. Burns' 1908, § 7462, cl. 5; Paris v. Strong (1875) 51 Ind. 339. But it is apparent that the cause was finally submitted to the jury on the theory that such agreement had been mutually rescinded and abandoned, and subsequently succeeded by another verbal contract between the parties, entered into in March or April, 1906, by the terms of which they were to marry in October of that year. Such a contract is not within the statute of frauds, and may be enforced. Short v. Stotts (1877) 58 Ind. 29;Caylor v. Roe (1884) 99 Ind. 1.

[2] The whole argument on the question of the sufficiency of the evidence centers on two questions: First. Was the original contract of 1904 mutually abrogated? and, second, Was there thereafter a new engagement between the parties to marry? If there was evidence given on the trial of the cause from which the jury could have found facts from which these questions could be answered in the affirmative, then the verdict cannot be disturbed for insufficiency of the evidence.

The evidence shows that early in the spring of 1904 appellee became the tenant of an apartment in a flat building which appellant then owned. Shortly thereafter, appellant began paying court to her, and in June of that year they had reached an agreement to marry three years from the date of the death of the wife of appellant, as above stated. While the testimony of many witnesses show that appellant was constant and loverlike in his attentions to appellee for more than a year after this agreement was entered into by them, yet appellant did not obtrude their intimacy outside of their immediate family, or upon the larger world of the city in which they lived, by taking appellee out to church, places of amusement, and social gatherings. This caused criticism of appellant by the relatives and friends of appellee, and she told him of it. These criticisms of appellant's neglect to take appellee out and show her attentions publicly had been brought to his notice several times, and he made excuses, and became irritated. Appellee testified about this trouble of theirs, which is stated to have culminated about a year after the original contract was entered into, and said she had told appellant what her sister had said about this matter, and that he said that if she intended to listen to her sister and let her people interfere he did not see how they were going to get along, and that he thought they had better “play quits.” She further testified that she answered him, “Very well, Mr. Vaughn, if that be your wish, why you may return my letters.” This conversation was on a Saturday night. Appellant was, she testified, angry and indignant. The next day he returned appellee's letters, and perhaps for a few days after that he did not call on her. Whether the contract of 1904 was mutually abandoned by the parties was a question of fact for the jury, and was so submitted to them by the court under proper instructions. The jury necessarily found that that contract was abrogated, or they could not have returned the verdict they did for appellee, under the instructions the court gave them. While it is shown by the transcript of the evidence that appellee gave some testimony, not entirely in harmony with the conclusion that the first contract was rescinded at the time of and by the agreement to “play quits” and the return of appellee's letters, yet the latter testimony was given by her as her ultimate and positive recollection of the matter, and if the jury believed it, as they evidently did, we cannot say that they were not warranted in saying by their verdict that it constituted a mutual abandonment of the agreement to marry. The words are apt, and the conduct of the parties immediately following are all in harmony with an intention on the part of both to end their relation as engaged lovers. The appellant proposed that they “play quits”; appellee said, “Very well, return my letters.” The letters were returned the next day. Appellant was indignant and angry, and, contrary to his usual practice, he did not return for several days. The court is not wholly unaware of the fact, which is a part of the knowledge common to mankind, that a lover's tiff, brought on by circumstances similar to those which produced the one here, is frequently followed by an agreement to “play quits,” and that the return of mementoes and insignia of the betrothed state, like letters, follows, and puts a period to the agreement to marry. The jury must have had this knowledge and had the right to apply it in drawing the inference from the above facts that the contract in this case, made in 1904, was abandoned and rescinded by the parties. Had the contract in question not been within the statute of frauds, had appellant refused to carry it out, and in a suit for its breach pleaded...