Downing v. Maag , 215 Minn. 506 ( 1943 )

But one matter deserves comment on the petition for rehearing. Respondents belatedly assert that they want a new trial in order to establish that the contract to make a will was against public policy, because, as they assert, it provided that the plaintiff agreed as a part of the consideration for the contract not to "marry anyone else during decedent's lifetime." It is true that the verified complaint contains such an allegation, but defendants in their answers all denied this allegation and made no effort to prove that the contract, as conclusively established by the testimony of the plaintiff's witnesses, contained any such provision. No witness so testified, and the defendants refrained from inquiring on cross-examination as to whether there was any such provision in the contract. The plaintiff at the close of the testimony sought to have the allegation stricken from her complaint, but the trial court denied the motion. The defendants made no argument in support of the contention of illegality either in their brief or the oral argument here.

Since the evidence is conclusive against their contention and they have had their day in court, the petition for rehearing is denied.