Swanson v. Griffin , 68 Miss. 319 ( 1890 )

Cooper, J.,

delivered the opinion of the court.

The verdict and judgment in this cause should have been for the plaintiff.

The court erroneously instructed the jury for the defendant, but even under the instructions as given, and accepting as true the defendant’s own testimony, the jury should have returned a verdict against him for the amount demanded in the suit.

There is no controversy about the material facts, which are that the defendant had sexual intercourse with the infant unmarried daughter of the plaintiff, and that she became pregnant and gave birth to an illegitimate child; that the plaintiff threatened legal proceedings against defendant, and that he executed his written agreement for the payment of five hundred dollars in satisfaction of the plaintiff’s demand. The defendant explains as his motive in executing the writing that he desired the knowledge of his conduct to be concealed from his family and church, and, since the facts have become known, he considers that a failure of consideration Has intervened and he should be absolved from the payment of the sum agreed on. This is the whole defense, and it is entirely insufficient.

The court should have rejected the instructions asked by the defendant and should have sustained the plaintiff’s motion for a new trial. The first instruction given for the defendant is correct as an abstract proposition, but was wholly inapplicable to any phase of the ease being tried and could only serve to confuse the jury. The second and fifth instructions erroneously told the jury that the defendant was not liable on his promise to the father, if another person had before the defendant’s debauchment of the infant daughter, had intercourse with her. The third instruction finds no support in the facts, even accepting the defendant’s statement of them. The sixth instruction imputes to the plaintiff the defendant’s purpose in giving the promise to pay, and permitted the jury, against the proved facts, to infer that past cohabitation was the consideration of the promise, instead of the legal liability of the defendant to respond to the plaintiff for the consequences of such past cohabitation, the pregnancy of the daughter. The seventh instruction is opposed to the well-settled rule that the compromise of a doubtful claim is a sufficient consideration for a promise to pay money, and devolved on the plaintiff the burden of proving beyond doubt the validity of the original claim. The uniform current of authority is to the contrary. 3 Am. & Eng. Ency. of Law, 837, note 1; Gunning v. Royal, 59 Miss. 45.

The judgment is reversed.