Sloin v. Lavine , 11 N.J. Misc. 899 ( 1933 )

Per Curiam.

The defendant Miss Levine and plaintiff were engaged to marry. He gave her an engagement ring and certain other presents of minor value. They quarreled, the engagement was broken off, and he brought replevin for what he had given her. The court awarded her the other presents and him the ring, and she appeals. The grounds of appeal are: (1) refusal to nonsuit; (2) awarding ring to plaintiff instead of to defendant.

The motion to nonsuit was on two grounds:

(a) That the evidence failed to show the plaintiff’s right to possession of the property.

(b) That the evidence showed the gifts were absolute.

It is now urged for appellant that no demand prior to suit was proved. The appellee’s brief states that this demand was stipulated to have been made, but the state of the case fails to show any such stipulation. However, the point was not made on the motion to nonsuit or elsewhere in the case so far as appears, and appellant is barred from taking it now. Woodward v. Harden, 102 N. J. L. 31; 131 Atl. Rep. 62; Franklin v. Millville, 98 N. J. L. 262; 119 Atl. Rep. 29; Allen v. Paterson, 99 N. J. L. 489; 128 Atl. Rep. 884; Glinsky v. Sennert, 111 N. J. L. 285, 287; 168 Atl. Rep. 264.

So we have on the merits the simple case of an engagement ring and engagement broken and ring not returned. The decisions are not numerous, but we follow those holding what we deem the correct rule, viz., that such a gift is impliedly conditional, and must be returned, particularly when the engagement is broken by the donee, as the court was entitled to find in this case. Williamson v. Johnson (Vt.) 20 Atl. Rep. 279; Jacobs v. Davis (1917), 2 K. B. 532; Cohen v. Sellar (1926), 1 Id. 536; Beck v. Cohen, 262 N. Y. Supp. 716.

The judgment will be affirmed.