Leibbrandt v. Sorg
Before: Cooper, Henshaw
Synopsis
Breach of Marriage Promise—Evidence.—Code of Civil Procedure, section 1845, provides that a witness can testify to those facts only which he knows of his own knowledge. Held, that, in an action for breach of marriage promise, the admission of plaintiff’s declarations to third parties, who were not invited to attend the wedding, and before any wedding day had been set, that plaintiff and defendant intended to marry, constituted prejudicial error.
Breach of Marriage Promise.—The Fact That There was Competent Evidence to prove a contract of marriage in an action for breach of promise did not render the admission of declarations of plaintiff to third- parties that plaintiff and defendant intended to marry harmless, where the court stated in the presence of the jury that such evidence was competent.
Breach of Marriage Promise—Damages.—Where, in an Action for Breach of promise, the court charged that, if plaintiff and defendant entered into an agreement to marry, plaintiff was entitled to damages if defendant wrongfully violated the agreement, a further charge that the shock and injury to plaintiff’s affections occasioned by defendant “having violated his promise” was a proper element of damages was not misleading.
Opinion — Cooper
COOPER, C. Plaintiff recovered judgment for $4,500 damages f-or breach of promise of marriage. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and order.
Plaintiff testified fully as to all the facts and circumstances connected with thé alleged contract of marriage. Her counsel then asked her this question: “Did you ever tell anybody about your contemplated marriage with Sorg?” Defendant objected to the question as immaterial, incompetent and ir[688]relevant, and the objection was overruled. The judge at the time of the ruling remarked that the question would be allowed, not for the purpose of proving a promise of marriage, but to show humiliation on the part of plaintiff. The witness then answered that she said to Mrs. Barkley: “Mrs. Barkley, 1 am going to tell you the truth. I am going to get married, and I am going to marry a rich man, and will not have to work so hard any more.” The witness further said that she thought she told Mrs. Barkley that the man’s name was Sorg. The plaintiff’s attorney afterward called Mrs. Barkley, who testified that she had a conversation with plaintiff in Santa Cruz about the last of August, 1898, in which plaintiff spoke about getting married. Then this question was asked: “Just relate what was said at that time.” To this question the defendant objected upon the ground that it was incompetent, and that declarations made by plaintiff are inadmissible to show a contract of marriage on the part of defendant. The court overruled the objection, to which ruling defendant excepted, and the witness said: “No, I cannot tell.” The plaintiff’s counsel then asked the following question: “Did Mrs. Liebbrandt at that time say to you that she was to marry Mr. Sorg?” This question was again objected to, the objection overruled, and the witness answered: “Yes, sir.” The court did not limit the evidence of Mrs. Barkley in any manner. On the contrary, the objection went directly to the point that the declarations of plaintiff are incompetent to show a contract of marriage on the part of the defendant. The testimony was hearsay and incompetent, and the ruling of the court clearly erroneous. It is provided in the Code of Civil Procedure (section 1845): “A witness can testify of those facts only which he knows of his own knowledge; that is which are derived from his own perceptions, except in those few cases in which his opinions or inferences or the 'declarations of others are admissible.” This is not one of those few cases. We might search the text-books and decisions in vain for the purpose of finding any authority for the admission of the declarations of a party to a contract made to third parties in his own favor and in his Own interest for the purpose of proving such contract. It is said in 2 Bice on Evidence, page 863, in speaking of evidence as to breach of promise: “The conduct of the defendant may be evidence of a promise by him in favor of a plaintiff, because
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