declarations, not part of the res gestae, made to persons not related to or interested in plaintiff, cannot be used to prove the promise on the part of the defendant, nor it seems even on the part of the plaintiff when sought to be introduced by the plaintiff."1 Plaintiff's declarations of willingness to marry the defendant, made to third parties in the absence of the defendant cannot be used to prove the promise.12 But admissions and declarations of the defendant showing the promise made in the presence of the plaintiff and otherwise competent may be shown. Ordinarily, however, it is said that declarations of intention to marry plaintiff are admissible only to corroborate other evidence, that he made the contract.** Declarations of the plaintiff, made before institution of suit, that there was a promise, have been held admissible.45 So, declarations made to a relative at the time of the breach, and a part of the res gestae are admissible. Admissions of the plaintiff tending to show that plaintiff had little affection for the defendant may be used by the defendant, in a proper case, to reduce damages. It has also been held that the statements of the plaintiff may be shown, where the plaintiff has told the defendant that she was engaged to another.48

47

46

§ 1873. Opinions.-Opinions are not admissible to prove the contract. This is not a subject in regard to which expert witnesses can be used, as one person is as competent to pass an opinion as another,

26 N. E. 308, 35 N. Y. St. 17, 11 L. R. A. 784; Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529.

41 Cates x. McKinney, 48 Ind. 562; also see, Hughes v. Nolte, 7 Ind. App. 526, 34 N. E. 745.

42 Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529; Jones v. Layman, 123 Ind. 569, 24 N. E. 363; Fidler v. McKinley, 21 Ill. 308.

43 Leckey v. Bloser, 24 Pa. St. 401; and so generally the defendant's admissions may be shown against him in a proper case.

"Lohner v. Coldwell, 15 Tex. Civ. App. 444, 39 S. W. 591; Geiger v. Payne, 102 Iowa 581, 69 N. W. 554;

Tamke v. Vangsnes, 72 Minn. 236, 75 N. W. 217.

45 Wetmore v. Mell, 1 Ohio St. 26; Wilcox v. Green, 23 Barb. (N. Y.) 639.

46 Jones v. Layman, 123 Ind. 569, 24 N. E. 363.

47 Robinson v. Craver, 88 Iowa 381, 55 N. W. 492; Healey v. O'Sullivan, 6 Allen (Mass.) 114.

4 Johnson v. Leggett, 28 Kans. 590.

49 Brown v. Odill, 104 Tenn. 250, 56 S. W. 840; Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936; Leckey v. Bloser, 24 Pa. St. 401; Saunders v. Railroad Co., 99 Tenn. 131, 41 S. W. 1031.

and the whole matter must be left to the jury. The facts observed by the witnesses may be shown, but not conclusions or surmises.50 This rule, however, is somewhat modified by the doctrine that ordinary witnesses may sometimes speak as to appearances, and it has been held that one living with the plaintiff may be permitted to give an opinion or statement as to the affection shown toward defendant51 and in one jurisdiction it has been held that neighbors and intimate friends may give an opinion as to the amount of damage sustained by the plaintiff.52

54

§ 1874. Acceptance.-Acceptance of defendant's promise, either express or implied, must be shown.53 The acts of the parties and the relations assumed by them may usually be shown for this purpose. Many cases hold that the acceptance of the plaintiff may be proved by acts and declarations before the breach, and while attentions were being paid, as that the plaintiff communicated to her family the fact of her engagement.55 But there is some conflict upon this subject, and certainly acts and declarations of the plaintiff which are not part of the res gestae, and are unknown to the defendant, are not ordinarily admissible to prove a promise on his part nor, under all circumstances, to prove an acceptance on the part of the plaintiff.

§ 1875. Breach.-A declaration by defendant that he would not carry out the contract of marriage is admissible to prove the breach, although the time within which the contract was to have been performed has not expired.56 Anything which will show that the defend

50 Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Roberts v. Bonaparte, 73 Md. 191, 20 Atl. 918, 10 L. R. A. 689.

Y.) 639; Wightman v. Coates; 15
Mass. 1, 8 Am. Dec. 77; contra,
Cates v. McKinney, 48 Ind. 562, 17
Am. R. 678; Hahn v. Bettingen, 81
Minn. 91, 83 N. W. 467, 50 L. R. A.
449; Walmsley v. Robinson, 63 Ill.

"McKee v. Nelson, 4 Cow. (N. 41, 14 Am. R. 111; Russell v. Cowles, Y.) 355, 15 Am. Dec. 384. 15 Gray (Mass.) 582, 77 Am. Dec. 391.

"Jones v. Fuller, 19 S. Car. 66, 45 Am. R. 761.

55 Lewis v. Tapman, 90 Md. 294, 45

"Wells v. Padgett, 8 Barb. (N. Atl. 459, 47 L. R. A. 385; Peppinger Y.) 323. v. Low, 6 N. J. L. 467.

Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Robinson v. Craver, 88 Iowa 381, 55 N. W. 492; Wilcox v. Green, 23 Barb. (N.

Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Burtis v. Thompson, 42 N. Y. 246; Johnstone v. Milling, L. R. 16 Q. B. 460;

60

ant has refused or has made it impossible, as by his marriage with another, may, as a rule, be admissible to show a breach.57 So, it has been held that a statement of the defendant denying that he ever promised, may be used as evidence to show a refusal.58 Where defendant refuses to communicate with or maintain a suitor's relation with plaintiff, this may be shown as evidence of a breach.59 But evidence that the defendant was ill or unable to marry at a particular time will not ordinarily show a breach, and may excuse delay. The mere fact that the marriage has been postponed or that the parties were not married upon a certain date, while usually admissible, is not, ordinarily, sufficient to prove a breach. Some evidence must usually be introduced which shows that the defendant was unwilling to marry plaintiff. This repudiation may be shown by the acts, words or conduct of defendant breaking the contract without sufficient reason or cause.62

§ 1876. Request of plaintiff.-Proof of a request and refusal need not be direct and positive; they may be inferred from circumstances or conduct of the defendant.68 Evidence which shows that defendant has refused to marry the plaintiff, or has married another, or has wholly discarded the plaintiff, is sufficient; and, in such cases, formal request need not be proved.

66

64

65

§ 1877. Consideration.-The consideration need not be proved as the mutual promises are sufficient, but if there happen to be other

Kelly v. Renfro, 9 Ala. 325, 44 Am.
Dec. 441.

57 Brown v. Odill, 104 Tenn. 250, 56 S. W. 840; Folz v. Wagner, 24 Ind. App. 694, 57 N. E. 564.

Burke v. Shaver, 92 Va. 345, 23 S.
E. 749.

62 Walters v. Stockberger, 20 Ind. App. 277, 50 N. E. 763; Burtis v. Thompson, 42 N. Y. 246, 1 Am. R.

58 Wagenseller v. Simmers, 97 Pa. 516; Holloway v. Griffith, 32 Iowa St. 465.

50 Jones v. Layman, 123 Ind. 569, 24 N. E. 363; Olson v. Solverson, 71 Wis. 663, 38 N. W. 329; Kelley v. Brennan, 18 R. I. 41, 25 Atl. 346. 60 Campbell v. Arbuckle, 51 Hun (N. Y.) 641, 4 N. Y. S. 29.

1 Clark v. Corey, 24 R. I. 137, 52 Atl. 811; Kelly v. Renfro, 9 Ala. 325, 44 Am. Dec. 441; Kennedy v. Rodgers, 2 Kans. App. 764;

409, 7 Am. R. 208.

63 Prescott v. Guyler, 32 Ill. 312. 64 Rime v. Rater, 108 Iowa 61, 78 N. W. 835; Burke v. Shaver, 92 Va. 345, 23 S. E. 749; Kelley v. Brennan, 18 R. I. 41, 25 Atl. 346.

considerations, as the exchange of property, this may be shown.67 Illicit intercourse is not a good consideration for a promise to marry.68

§ 1878. Statute of frauds.-A promise to marry is not a promise in "consideration of marriage" so as to require it to be evidenced by writing, under the statute of frauds." But, it has been held, that where a man promises to pay a woman a certain sum of money if she would marry him, the entire contract must be in writing.70

§ 1879. Defenses-Infancy.-There are several defenses that may be successfully interposed in cases of the kind under consideration."1 Infancy of the defendant may be proved as a defense, in an action for breach of promise to marry, even in those states where an infant may enter into the marriage relation.72 And it has been held to be a complete defense even though seduction be also alleged." Infancy of the plaintiff cannot, however, be taken advantage of by the defendant in such a case, either as a defense or to reduce damages."

74

§ 1880. Release. As in the case of other contracts a release may be shown when properly pleaded, and this has been held to be so, even though the plaintiff is a minor, at least where she has power to enter into the marriage contract.75 But, as a general rule at least, the release must be mutual, and a mere unaccepted offer to release or a re

"Shields v. Lewis, 20 Ky. L. R. 1601, 49 S. W. 803; Finkelstein v. Bernett, 74 N. Y. St. 551, 38 N. Y. S. 961.

"Hanks v. Naglee, 54 Cal. 51, 35 Am. R. 67; Saxon v. Wood, 4 Ind. App. 242, 30 N. E. 797.

* Lawrence v. Cooke, 56 Me. 187, 96 Am. Dec. 443; Short v. Stotts, 58 Ind. 29; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385, holds: A contract to marry is not within statute of frauds, requiring "any agreement not to be performed within a year to be in writing." MacElree v. Wolfersberger, 59 Kans. 105, 52 Pac. 69.

71 See Notes in 63 Am. Dec. 532; 40 Am. St. 166; 44 Am. St. 381.

72 McConkey v. Barnes, 42 Ill. App. 511; Wells v. Hardy, 21 Tex. Civ. App. 454, 51 S. W. 503; Frost v. Vought, 37 Mich. 65; Rush v. Wick, 31 Ohio St. 521, 27 Am. R. 523.

73 Leichtweiss v. Treskow, 21 Hun (N. Y.) 487.

74 Willard v. Stone, 7 Cow. (N.. Y.) 22, 17 Am. Dec. 496; Frost v. Vought, 37 Mich. 65.

7 Snell v. Bray, 56 Wis. 156, 14 N. W. 14; Kraxberger v. Roiter, 91 Mo. 404, 3 S. W. 872, 60 Am. R. 262; Develin v. Riggabee, 4 Ind.

* Cushman v. Burritt, 14 N. Y. 464, release by infant held valid; Wkly. Dig. 59.

see also, Mabin v. Webster, 129 Ind. 430, 28 N. E. 863, 28 Am. St. 199.

lease by the defendant and not by the plaintiff would not constitute a defense.76

§ 1881. Fraud.-Evidence of fraudulent concealment or misrepresentations of former history and character of the plaintiff is admissible for the defendant in a proper case, and may be sufficient to constitute a complete defense." Generally speaking, however, it may be said that, except, perhaps, as to chastity, ability to consummate the marriage and possibly one or two other more unusual exceptions, there is no implied representation, and the parties are not bound to communicate to each other the previous history and circumstances of their lives. This is conceded in the case above referred to; but it is there held that if representations are made and all material matters are undertaken to be stated by one to the other, even though voluntarily, fraudulent representation or fraudulent concealment of material facts inducing the contract will entitle the other party to withdraw from it.

§ 1882. Unchastity-Reputation.-Unchastity may be shown as a defense when the defendant was ignorant of this fact at the time of the contract;78 but it is not a good defense if he knew of these facts or if he did not cancel the contract on that account.80 The character of the plaintiff for chastity when attacked, can always be sustained by evidence of good reputation.81 If the defendant is ignorant of the unchastity of the plaintiff at the time of contract, he may prove this fact as a defense; 82 but it has been held that mere reputation con

76 See, Kellett v. Robie, 99 Wis. 303, 74 N. W. 781, in which case, however, it was held that the release was mutual; and compare, Kraxberger v. Roiter, 91 Mo. 404, 3 S. W. 872, 60 Am. R. 262, in which it was held that there was not a mutual release.

"Van Houten v. Morse, 162 Mass. 414, 38 N. E. 705, 44 Am. St. 373, and note; 26 L. R. A. 430.

78 Bell v. Eaton, 28 Ind. 468, 92 Am. Dec. 329; Clark v. Reese, 26 Tex. Civ. App. 619, 64 S. W. 783; Goddard v. Westcott, 82 Mich. 180, 46 N. W. 242; see also, notes in 40 Am. St. 172, and 63 Am. Dec. 543.

79 Foster v. Hanchett, 68 Vt. 319, 35 Atl. 316, 54 Am. St. 886; Kelley v. Highfield, 15 Ore. 277, 14 Pac. 744; see also, notes in 40 Am. St. 172, and 63 Am. Dec. 543.

So Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422.

81 Smith v. Hall, 69 Conn. 651, 38 Atl. 386; Dent v. Pickens, 34 W. Va. 240, 12 S. E. 698; Jones v. Layman, 123 Ind. 569, 24 N. E. 363; Hughes v. Nolte, 7 Ind. 526, 34 N. E. 745.

82 Foster v. Hanchett, 68 Vt. 319, 35 Atl. 316, 54 Am. St. 886; Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422; Bell v. Eaton, 28 Ind.