§ 1863. Contract-Generally.-In an action to recover damages for breach of promise to marry, it is necessary to prove that there has been a mutual promise,' that is, an offer and acceptance, either directly or impliedly, a breach of this contract and that the complaining party has been injured. It is also generally necessary for the plaintiff to show a readiness to perform, but no request by the plaintiff is necessary where the defendant has renounced his promise3 or

'Burnham v. Cornwell, 16 B. Monroe (Ky.) 284, 63 Am. Dec. 529; Phillips v. Crutchley, 3 Car. & P. 178; Cates v. McKinney, 48 Ind. 562, 17 Am. R. 768; Homan v. Earle, 53 N. Y. 267; Wightman v. Coates, 15 Mass. 1, 8 Am. Dec. 77.

'Weaver v. Bachert, 2 Pa. St. 80, 44 Am. Dec. 159; Lawrence

V.

Cooke, 56 Me. 187; Willard v. Stone, 7 Cow. (N. Y.) 22, 17 Am. Dec. 496; Graham v. Martin, 64 Ind. 567.

3 Kurtz v. Frank, 76 Ind. 594, 40 Am. R. 275; Wagenseller v. Simmers, 97 Pa. St. 465; Holloway v. Griffiths, 32 Iowa 409, 7 Am. R. 208; Burtis v. Thompson, 42 N. Y. 246.

put it out of the power of plaintiff by absconding or by marrying

another.5

§ 1864. Express and implied contracts.-It is not necessary that an express contract be proved. Any set of facts or circumstances which will show that both parties understood that they were to be married may be sufficient to support this action. An implied contract of marriage will be presumed if the plaintiff can show the belief, based upon certain acts and conduct of defendant, that there was a mutual promise to marry, and the defendant knowing this, continued the visits and attentions without any explanation to the contrary."

8

§ 1865. Burden of proof.-The burden of proof is upon the plaintiff to show a mutual promise, that is, an offer and acceptance." The plaintiff must further show the breach,10 the readiness of the plaintiff to perform, or request of the defendant to fulfill his promise11 and the damages resulting from the breach.12 If, however, the defendant wishes to take advantage of a special matter by way of defense, the burden of producing evidence may be upon him as to such matter. 13

11

'Johnson v. Caulkins, 1 Johns. Cas. (N. Y.) 116; 1 Am. Dec. 102; Coil v. Wallace, 24 N. J. L. 600.

Sheahan v. Barry, 27 Mich. 217; Pettingill v. McGregor, 12 N. H. 179.

Hahn v. Bettingen, 88 N. W. 10, 84 Minn. 512; Wise v. Schloesser, 111 Iowa 16, 82 N. W. 439; Homan v. Earle, 53 N. Y. 267.

'Kennedy v. Rodgers, 2 Kans. App. 764, 44 Pac. 47.

Hook v. George, 108 Mass. 324; Bleiler v. Koons, 132 Pa. St. 401, 19 Atl. 140.

"Ellis v. Guggenheim, 20 Pa. St. 287; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385.

10 Hook v. George, 108 Mass. 324; Folz v. Wagner, 24 Ind. App. 694, 57 N. E. 564.

11 Rime v. Rater, 108 Iowa 61, 78 N. W. 835; Burke v. Shaver, 92 Va. 345, 23 S. E. 749; Olson v. Solverson, 71 Wis. 663, 38 N. W. 329.

12 Giese v. Schultz, 53 Wis. 462, 10 N. W. 598; Rime v. Rater, 108 Iowa 61, 78 N. W. 835; Glasscock v. Shell, 57 Tex. 215; Hook v. George, 108 Mass. 324; Kniffen v. McConnell, 30 N. Y. 285.

13 Foster v. Hanchett, 68 Vt. 319, 35 Atl. 316, 54 Am. St. 886; Bell v. Eaton, 28 Ind. 468, 92 Am. Dec. 329; Gring v. Lerch, 112 Pa. St. 244, 56 Am. R. 314, 3 Atl. 841; Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422; Liese v. Meyer, 143 Mo. 547, 45 S. W. 282; Kelley v. Highfield, 15 Ore. 277, 14 Pac. 744; Johnson v. Travis, 33 Minn. 231, 22 N. W. 624.

§ 1866. Presumptions. In absence of evidence to the contrary, the parties are presumed to be of proper age, of opposite sex, unmarried and competent to enter into the marriage relation.1 Where a contract is proved to have been entered into, but no time set, it is presumed that it was to have been carried out within a reasonable time.15

17

§ 1867. Questions of law or fact.-Whether there was a mutual promise to marry,10 whether it was express or conditional, whether a breach,18 and the assessment of damages,19 are all questions of fact and are for the determination of the jury. The admissibility of all evidence is a question of law.20 The question of the justice or adequacy of the verdict rests largely in the judgment of the jury under the discretion of the trial judge;21 and as to the amount of damages, unless it appears that the jury was influenced by passion and prejudice, the verdict will usually stand.22

§ 1868. Direct evidence.-Direct evidence of a proper character is always admissible to prove a promise of marriage; but as this contract is usually private and of a confidential nature, it cannot always be shown by direct proof.23 Circumstantial or indirect evidence is, therefore, often resorted to.

"Tucker v. Hyatt, 144 Ind. 635, 41 N. E. 1047; Jones v. Layman, 123 Ind. 569, 24 N. E. 363; Simmons v. Simmons, 8 Mich. 318.

"Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. R. 442; Clement v. Skinner, 72 Vt. 159, 47 Atl. 788; Blackburn v. Mann, 85 Ill. 222; Kelly v. Renfro, 9 Ala. 325, 44 Am. Dec. 441; Wagenseller v. Simmers, 97 Pa. St. 465; Burtis v. Thompson, 42 N. Y. 246; Holloway v. Griffith, 32 Iowa 409; Clement v. Skinner, 72 Vt. 159, 47 Atl. 788.

737, 42 N. W. 759; Clark v. Pendleton, 20 Conn. 495; Bird v. Thompson, 96 Mo. 424, 9 S. W. 788, holds that if the jury find the defendant liable, their assessment of damages is sufficient.

20 Tobin v. Shaw, 45 Me. 331, 71 Am. Dec. 547.

" Hahn v. Bettingen, 84 Minn. 512, 88 N. W. 10; Allen v. Baker, 86 N. Car. 91, 41 Am. R. 444.

22 Schreckengast v. Ealy, 16 Neb. 510, 20 N. W. 853.

23 Burnham V. Cornwell, 16 B.

"Yale v. Curtiss, 151 N. Y. 598, Mon. (Ky.) 284, 63 Am. Dec. 529; 45 N. E. 1125. Wightman v. Coates, 15 Mass. 1, 8 "Olmstead v. Hay, 112 Iowa 349, Am. Dec. 77; Olmstead v. Hay, 112

83 N. W. 1056.

18 Grant v. Willey, 101 Mass. 356. "Musselman v. Barker, 26 Neb.

Iowa 349, 83 N. W. 1056; Kennedy v. Rodgers, 2 Kans. App. 764, 44 Pac. 47; Tefft v. Marsh, 1 W. Va. 38.

1

§ 1869. Circumstantal evidence.-A contract of marriage may be inferred from the conduct and relation of the parties with each other.24 Any proper circumstantial evidence showing the acts and conduct of the parties may be admitted.25 A definite understanding corroborated by their actions may be shown to prove the contract.26 Evidence of courtship, or repeated visits by the defendant, when connected with relevant circumstances, may be shown.27 Admissions to third parties are often competent, but it has been held that they can only be used as a part of a chain of circumstances tending to prove the contract.28 Evidence of plaintiff's feeling after a breach cannot be used to show the feeling for defendant during engagement;29 but the acts of the plaintiff may often be shown when they are intimately connected with the breach, as tending to prove a promise. Evidence to show the relation of the parties prior to the alleged breach as bearing on the question whether a promise was made, is admissible.30 Such facts as will prove affectionate intercourse between marriageable persons are usually competent; and evidence is admissible to prove the promise by such acts as, exchange of presents, letters, plans for future married life, furnishing the house, rides and walks with each other, caresses, endearing epithets, fondness for each other and desire to be in each other's company and devoted attention.1 Evidence

24 Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529, says: "To corroborate testimony of express promise all the facts and circumstances that have taken place between the parties are admissible in evidence." Olmstead v. Hay, 112 Iowa 349, 83 N. W. 1056; Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529; Wightman v. Coates, 15 Mass. 1, 8 Am. Dec. 77.

25

Rime v. Rater, 108 Iowa 61, 78 N. W. 835; Hubbard v. Bonesteel, 16 Barb. (N. Y.) 360; Tefft v. Marsh, 1 W. Va. 38; Von Storch v. Griffin, 71 Pa. St. 240.

26 Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529.

27 Wightman v. Coates, 15 Mass. 1, 8 Am. Dec. 77; Kennedy v. Rodgers, 2 Kans. App. 764, 44 Pac. 47.

28 Weaver v. Bachert, 2 Pa. St. 80,

44 Am. Dec. 159; Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529.

"Edwards v. Edwards, 93 Iowa 127, 61 N. W. 413; Robinson v. Craver, 88 Iowa 381, 55 N. W. 492. 30 Smith v. Hall, 69 Conn. 651, 38 Atl. 386; Ray v. Smith, 9 Gray (Mass.) 141; Hook v. George, 108 Mass. 324; Clark v. Hodges, 65 Vt. 273, 26 Atl. 726; Chamness v. Cox, 131 Ind. 118, 30 N. E. 901; Wise v. Schloesser, 111 Iowa 16, 82 N. W. 439; Weaver v. Bachert, 2 Pa. St. 80, 44 Am. Dec. 159; Hahn v. Bettingen, 88 N. W. 10, 84 Minn. 512.

31 Geiger v. Payne, 102 Iowa 581, 69 N. W. 554; Stone v. Sanborn, 104 Mass. 319, 6 Am. R. 338; Button v. Hibbard, 64 N. Y. St. 80, 31 N. Y. S. 483; Walker v. Johnson, 6 Ind. App. 600, 33 N. E. 267.

may sometimes be introduced showing acts and conduct of the parties after the promise to prove the probability of the engagement,32 and a direct or express repudiation of the contract need not always be shown. Any set of acts which show that defendant does not intend to carry out the contract is usually sufficient evidence of a breach.

34

§ 1870. Letters.-The plaintiff may prove by parol that letters have passed between the parties,33 and this even without producing them. Letters expressing love and affection are admissible as tending to prove the promise.35 Letters in the possession of the plaintiff may be presumed to have been written to plaintiff and it is said to be the duty of the defendant, if he acknowledges the letters to prove they were intended for another, when he disputes the rightful possession of the letters by plaintiff.36 Where letters are placed in evidence the replies may also be used in rebuttal.37

§ 1871. Secondary evidence of letters.-The plaintiff may prove by parol that letters have passed between the parties and the contents of the letters may be shown where the letters themselves cannot be produced, after laying the proper foundation, even, in some instances, it has been held, if the party wishing to show the contents destroyed the letters.38 But this is not always so.39 And, ordinarily, of course, the letters are themselves the best evidence of their contents.

§ 1872. Declarations and admissions.-To establish a promise by defendant, his or her admissions or declarations are admissible as part of a chain of circumstances to prove the promise; 40 but plaintiff's

*Rutter v. Collins, 96 Mich. 510, 56 N. W. 93; McElree v. Wolfersberger, 59 Kans. 105, 52 Pac. 69; Kelley v. Highfield, 15 Ore. 277, 14 Pac. 744; Wagenseller v. Simmers, 97 Pa. St. 465.

33 Conaway v. Shelton, 3 Ind. 334; Rutter v. Collins, 96 Mich. 510, 56 N. W. 93, holds that plaintiff may introduce copies of letters sent in reply to defendant's, where defendant says the letters are destroyed.

Conaway v. Shelton, 3 Ind. 334; Geiger v. Payne, 102 Iowa 581, 69 N. W. 554; Stone v. Sanborn, 104 Mass. 319, 6 Am. R. 338.

35

Tefft v. Marsh, 1 W. Va. 38; Judy v. Sterrett, 52 Ill. App. 265; Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936.

36 Tefft v. Marsh, 1 W. Va. 38. 37 Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936; Richmond v. Roberts, 98 Ill. 472.

38 Rutter v. Collins, 96 Mich. 510, 56 N. W. 93; Shields v. Lewis, 20 Ky. L. R. 1601, 49 S. W. 803.

39 Tobin v. Shaw, 45 Me. 331, 71 Am. Dec. 547.

40 Weaver v. Bachert, 2 Pa. St. 80, 44 Am. Dec. 159; Chellis v. Chapman, 7 N. Y. S. 78, 26 N. Y. St. 953,