Bogue v. Maurer

KERRIGAN, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff for the sum of $6,250 in an action for breach of promise of marriage.

The appellant makes two points for a reversal of the judgment, viz., (1) that the evidence is insufficient to support the verdict, and (2.) the refusal to give, or modification of, instructions, by which the court declined to make the plaintiff’s right of recovery contingent upon a finding by the jury that the promise sued on was made upon a specific date and no other.

As to the first point, the plaintiff testified categorically to the promise of marriage, and the record contains other evidence in corroboration. This contention of the appellant therefore is without substantial merit.

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The second point mentioned is the main reliance of the appellant in support of his appeal. His argument is that the complaint charged the promise to have been made on November 5, 1919, and that the plaintiff’s testimony was directed exclusively to this same date; that the defendant met this testimony by a showing—which he regards as almost, if not quite, conclusive—that the defendant neither saw nor talked with the plaintiff on said date; that consequently the plaintiff was not entitled to a verdict unless the jury found that the promise was in fact made on the date alleged.

We think the contention of the appellant in this regard not tenable. The language of the complaint upon this particular subject matter is “that heretofore on or about the fifth day of November, 1919, plaintiff and defendant were each unmarried persons . . . ; that on said date the defendant requested plaintiff to marry defendant and at the same time promised to marry the plaintiff.”' It is urged that this is an allegation of a promise made on November 5, 1919, and not on or about that date.

We think this too narrow a construction of the language, and that the pleader having alleged the unmarried condition

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of the parties to have existed “oil or about the fifth day of November,” the words immediately following, viz., “on said date,” refer to the previous allegation of time, viz., “on or about the fifth day of November”; for it is obvious that if the pleader intended to confine his allegation of the making of the promise to the specific date of November 5th, he thereby rendered inept the preceding allegation of the existence of the unmarried condition of the parties as “on or about” that date.