Vierling v. Binder

• Decision Date: 10 April 1901
• Parties: AUGUSTA VIERLING v. GEORGE J. BINDER, Appellant
• Court: Iowa Supreme Court

85 N.W. 621

113 Iowa 337

AUGUSTA VIERLING v. GEORGE J. BINDER, Appellant

Supreme Court of Iowa, Des Moines

April 10, 1901

Appeal from Des Moines District Court.--HON W. S. WITHROW, Judge.

ACTION for breach of promise of marriage. Defendant denies generally and alleges special facts tending to show that he never agreed to marry the plaintiff. Verdict for plaintiff for $ 2,000. On defendant's motion for a new trial the court remitted a portion of the verdict, and rendered judgment for $ 1,300. Defendant appeals.

Affirmed.

Dodge & Dodge for appellant.

Seerley & Clark for appellee.

OPINION

MCCLAIN, J.

The parties became acquainted with each other by reason of defendant's advertisement through a matrimonial agency. After considerable correspondence, plaintiff agreed to go from Toledo, Ohio, where she resided, to Burlington, Iowa, the place of defendant's residence, in order that defendant might become better acquainted with her and in the mutual hope expressed on both sides that marriage would result if defendant should find himself satisfied to take the plaintiff as his wife. It is not claimed that there was any contract of marriage until after plaintiff reached Burlington, but plaintiff claims that on the second day after her arrival in Burlington (i. e. on June 21, 1898) defendant entered into a verbal contract to marry her without specification as to the exact time for the marriage, and that again, on November 22, 1898, defendant agreed to marry plaintiff within two months from that date. For the purpose of explaining the relations between plaintiff and defendant at the time the alleged agreements were charged to have been made, and also to show that no such agreements to marry were entered into, defendant avers that, during the time he was paying attentions to plaintiff with a view of determining whether he would make her a proposal of marriage, he ascertained that she was afflicted with ovarian and other troubles which impaired and injured her health, and which would prevent her from becoming a desirable wife, and that he informed plaintiff that, because of her physical ailments and her characteristics and disposition, he was satisfied that she would not make him a desirable wife, and that they should not become engaged, with the intention of future marriage.

I. Appellant claims that the trial court in an instruction limited the jury to the consideration of the question whether or not the contract of marriage was made and broken, and directed them that this was the sole test of liability, and urges that the evidence of physical defects and poor health should have been considered as a defense to the action for breach of contract, even if such contract was shown to have been made. It is true, no doubt, that physical defects or disease which incapacitate the woman for the marriage state or for the birth of children, if unknown to the other party to the contract at the time the contract was entered into, may be pleaded and proven in bar to an action for breach of the contract of marriage. Gring v. Lerch, 112 Pa. 244 (3 A. 841); Goddard v. Westcott, 82 Mich. 180 (46 N.W. 242). Likewise the incapacity or unfitness of the man for the marital relation, accruing after the making of the contract, without his fault, or unknown to him at the time the contract was made, may be shown. Shackleford v. Hamilton, 93 Ky. 80 (19 S.W. 5, 15 L.R.A. 831); Gardner v. Arnett (Ky.) 21 Ky. L. Rep. 1, 50 S.W. 840; Allen v. Baker, 86 N.C. 91; Sanders v. Coleman, 97 Va. 690 (34 S.E. 621). But the diseased condition of the plaintiff, which defendant sets up in this case, was alleged as bearing on the question whether defendant entered into any contract of marriage, and not as a bar to the action for breach of contract. Not until appellant asked instruction on this matter did it appear that he relied on any such defense. For this purpose the matter should have been pleaded by way of confession and avoidance, and it was not so pleaded. It may be true that, where evidence of matter which is clearly in bar has been received without objection, the court should treat the defense as having been pleaded, and instruct the jury on such issue; but where evidence has properly been admitted on the theory of the case presented by the pleadings, we know of no rule or practice which requires the court to instruct the jury as to the effect of such evidence with reference to an issue not raised by the pleadings. The court therefore properly limited the jury, in the consideration of the evidence as to plaintiff's physical condition, to the question whether a contract of marriage was made, and properly refused to give instructions asked by defendant directing the jury to consider this evidence as tending to show that defendant was not liable for breach of the contract, if made. Certainly the court is justified in instructing the jury in accordance with the theory on which the case was tried, and does not commit an error in refusing to present issues which might have been raised, and to which the evidence would have been pertinent, but which were not raised or considered in the trial of the case. Appellant seems to think that the evidence in question ought to have been considered by way of mitigation of damages, but he did not in his instructions, suggest that the evidence was to be considered in mitigation, but asked that it be treated as constituting a bar. Moreover, the proper rule of pleading seems to be that even matter in mitigation should be specially pleaded as a partial defense, and cannot be proven under a general denial. Pomeroy, Remedies, section 695.

II. Appellant complains of the refusal of the court to sustain the motion made by him at the conclusion of his evidence asking that plaintiff be required to submit to a physical examination by physicians to be appointed by the court, for the purpose of...