Cain v. Corley , 44 Tex. Civ. App. 224 ( 1906 )

STEPHENS, Associate Justice.

Appellee sued appellant for damages, both actual and exemplary, for breach of promise of marriage, and recovered judgment for $1,500 actual damages, from which this appeal is prosecuted. The suit was instituted August 2, 1905, and the contract declared on was thus stated in the amended petition, on which the case was tried: “That on or about June 21, 1901, at the instance and request of the defendant, it was mutually promised, contracted and agreed by and between the plaintiff and the defendant that they would intermarry with each other, the date for said marriage not then and there being definitely fixed and agreed upon by them, but that thereafter at divers dates and times, not now remembered by plaintiff, each date and time being then and there within less than twelve months of the one next and immediately preceding it, the said marriage contract was constantly renewed by and between the plaintiff and the defendant until on or about the 9th day of February, 1904, at which time it was mutually agreed, promised, contracted and understood, by and between the plaintiff and defendant that, they would conclude their said marriage at the earliest practicable date after the birth of plaintiff's child, to wit: two months thereafter, which was then and there understood by and between the plaintiff and the defendant would be born to plaintiff on or about July 3, 1904, and which was bom to plaintiff on July 3, 1904.” Breach of the contract and the resultant loss were then alleged, followed by a charge of seduction and other circumstances of aggravation.

Appellant denied that he had ever promised to marry appellee, but alleged that if he had he was justified in breaking the promise because of her unchastity which was unknown to him at the date of the alleged promise; and further that the alleged contract was not enforcible because it was founded on an immoral consideration. The statute of limitation of one year was also pleaded in bar of the action.

As to whether appellant had ever promised to marry appellee the evidence was conflicting, but her testimony, if believed by the jury, warranted a finding in her favor on that issu'e. We would not be warranted in disturbing this finding, since the issue was one of credibility of witnesses, whose appearance and demeanor on the witness stand—prime tests of credibility,—the law withholds from us. It would therefore seem presumptuous of us in such case to substitute our judgment for that of the trial court, before whom the witnesses were examined. As to the unchastity of appellee" prior to her relations with appellant the evidence was also conflicting. As to the issue of limitation, the testimony of appellee warranted a finding that the promise of marriage had been renewed from time to time, as alleged, up to within less than, one year before the institution of this suit, when, admittedly, appellant refused to marry her, denying that he had ever been engaged to her. The illicit intercourse between them was admitid by both, but the testimony of appellee tended to prove that this was due to the promise of marriage, though there was cogent evidence to the contrary, some of it impeaching her chastity then and prior to her relations with appellant. We are therefore constrained to hold that the court did not err, as first assigned in the brief, in overruling the motion for a new trial.

Nor did the court err in refusing the first application for continuance, as next assigned, since it was addressed to the discretion of the court and the diligence shown was not such as to require a contrary ruling.

Nor did the court err in refusing a new trial on account of newly discovered evidence, as next assigned, since it (the testimony of Mrs. Appleby) was but cumulative and corroborative of the testimony of Fred Myers, who claimed to have had illicit intercourse with appellee prior to her relations with appellant.

Nor did the court err in excluding the testimony of N. H. Allen asset forth in fourth and fifth assignments in the brief, or of Dr. Kimmins, as set forth in the sixth, since the evidence was hearsay and not within any of the exceptions to the rule excluding such testimony.

Nor did the court err to the prejudice of appellant in excluding the testimony of appellant, as set forth in- the seventh assignment, as to his motives in assisting appellee to obtain admittance to the Rescue Home at Dallas, Texas, since the issue of exemplary damage was eliminated by the verdict.

Nor did the court err as set forth in the eighth and ninth assignments, in admitting in evidence the newspapers sent to appellee while at the Rescue Home at Dallas from Iredell, and leaving it to the jury to determine whether appellant had sent them. The circumstances tended to prove that appellant had mailed and sent these papers, which issue was properly submitted to the jury, and was not one exclusively for the court. It has been- held in this State that even the execution of a deed may be proved by circumstantial evidence.

The numerous assignments complaining of the court’s charge and of the court’s refusal to give numerous special charges have all been carefully considered in consultation, but we fail to find any ground in these assignments for reversing the judgment and they are all overruled.

The court did not err in admitting the testimony of appellee as to-what occurred between her and appellant more than a year before the filing of the suit, as complained in the thirty-first assignment-, since she was entitled to make out her case as she had alleged it. Limitation was pleaded as a bar to the action and as such was submitted to the jury in the charge, and this was all that appellant was entitled to.

The love letters sent appellee by appellant were clearly admissible, which overrules the thirty-second assignment.

The exceptions to the petition were properly overruled; at least no harm could have resulted from these rulings.

There is clearly nothing in the alleged misconduct of the jury complained of in the thirty-fifth assignment.

These conclusions lead to an affirmance of the judgment.

Affirmed.

Writ of error refused.