Ellis v. Guggenheim

The opinion of the Court was delivered by Woodward, J. In an action by a woman for breach of a marriage contract, she is bound to prove not only a promise on the part of the defendant, but a promise on her own part. If there be not mutual promises, the contract is void for want of consideration. What declarations and circumstances are sufficient grounds for presuming mutual promises, need not be considered in this case, for the plaintiff here proved not only attentions bestowed and received, such as usually indicate a promise of marriage, but the very words of the contract itself. To Langsdorf and to Einstein, the defendant repeatedly expressed his intention to marry Fanny. Emily Rosenbaum describes a scene between the parties, when Ellis declared to Fanny, “ I swear to you, and God is my witness, I will never marry any other girl but you.” To which solemn vow Fanny, with less emphasis, replied, “I won’t swear, because we don’t know what might happen; but I promise you I will never marry any other man, but will wait for you.” Here were mutual promises much more distinctly proved than is usual in actions of this sort. Of wdiat moment is it then that the XJourt may have erred in admitting subsidiary proof of the contract from the same witness? But an examination of the bills of exception will show there is no error in them. The first relates to Fanny’s answer when Emily Rosenbaum communicated to her Ellis’s intention to marry her. Fanny’s answer was evidence on the same principle a letter from her to Ellis would have been. It was part of the res gestee. The witness was the friend and confidant of Ellis, and had been his messenger to carry his letters. Whether she was sent to make this communication or not, it was authorized by what he is proved to have said on various occasions. If the plaintiff’s response were not evidence; it is difficult to see how a woman is ever to prove her acceptance of an overture of marriage. When she makes an express promise in reply to that of her suitor, she has a right to prove it. It is not evidence manufactured for an occasion by herself, but a declaration drawn out by him; the benefit of which be cannot take from her when he chooses to violate his own solemn engagements. The third and fourth errors assigned relate to the proof of the contents of the lost letters. The plaintiff was a competent witness to prove the loss; and when she swore that they were stolen, they were lost to all intents [290] and purposes. Then says the bill, “the counsel for plaintiff offered to prove by this witness (Emily Rosenbaum), the contents of letters ; objected to, and objection overruled by the Court.” By the expression “ contents of letters," we must intend the letters which were proved to have been stolen. The objection then, on the face of the bill, was to Miss Rosenbaum as a witness to prove the contents, and nothing more. To the matter of her testimony, there was no exception, and no prayer to the Court for direction in regard to it. Eor myself, I greatly doubt whether her compendious criticism that “there was nothing in the letters but love,” could be regarded as proof of contents. Doubtless she so interpreted them, but she was called to furnish, not a construction or interpretation of the letters, but the contents themselves. The contents proved, the jury were the interpreters. The argument was on the insufficiency of this evidence, but the bill does not raise this question. Had it done so, however, and had the plaintiff in error convinced us that it was error to admit such evidence of the contents of the lost letters, it would have been no cause for reversal, since the evidence tended only to prove the contract, which was fully established by unexceptionable testimony from the same witness. The second error assigned relates to evidence which tended rather to aggravate damages, than to make out the contract. The objection to it is, that it was hearsay. It does not appear to be so on the face of it. The witness was asked for her knowledge in the premises, and she answered according to her knowledge. She did not reveal the source of her information, because she was not asked. Why should we presume it was hearsay? Langsdorf’s testimony to the same point was not hearsay. And Emily may have been present at interviews between Fanny and other suitors, as she certainly was present at one between her and the defendant. Or she may have derived her information from the defendant himself. A cross-examination would have developed.the character of her information; but this, for some reason, was withheld. So far as appears from the record, the evidence was properly admitted. The judgment is affirmed.