Ettinger v. Jones

OPINION, Mb. Chief Justice Paxson : The only question of importance in this case is whether the plaintiff was bound by her release. This point was raised by the second assignment, which alleges that the court below refused, at the request of the defendant, to instruct the jury “ that if they find from the evidence that the plaintiff executed the [222] release, dated December 29,1888, then the verdict must be for the defendant.” The suit was brought to recover damages for breach of a promise of marriage. After the case was at issue and ready for trial, the defendant prepared a formal release, took it to the plaintiff, and procured her signature thereto. The release was formal enough, and, had it been obtained without fraud, the plaintiff would have been out of court. But she alleges that the defendant induced her to sign the paper by falsehood and fraud. It appeared that the defendant was in trouble with another woman, a Miss Graham, and was under bail. Under these circumstances he called upon the plaintiff, and this is her version of what occurred: “‘Well,’ he said, ‘if you release me until I am not in so much trouble with this Miss Graham, (and a suit of my own with the company, and this suit of yours, makes three suits hanging over me,) then I will do what is right and just by you after that.’ I thought; I considered; I knew he hadn’t done right by me, but I thought I rvould look over everything, on his promise. He said: ‘If I am bound by law to marry you, I will never marry you; but if you will release me, I will do what is right by you.’ I broke down, and he says, ‘ Don’t fret,’ and he took me in his arms and kissed me and says: ‘ You will be all right when I get all right with Miss Graham.’ So he went away, and he came in the evening with this paper, and he laid it down before me, and he says: ‘Now I have this paper here that I want you to sign.’ I had no idea that he would bring a paper to me, and I was all alone. Mrs. Batten wasn’t there, and I got up and made a light, and took him in the parlor, and he says : ‘ I want you to sign this paper.’ I says: ‘ I can’t read all the paper. Can you read it?’ ‘I can’t read it either,’ he said. Well, then he induced me to sign it, and said it would be all right, when I hesitated about signing it.” The defendant denied having made any such promises as those above stated, in order to procure the release. He admitted going to see her, in order to get the release, when she said to him, “ What are you going to do ? ” To which he replied, “ I can’t say what I will do yet; I want to get my release to clear my bail, and that is what I want, and we can talk afterwards.” [223] All this, and much more, was submitted to the jury, under proper instructions, and they have found for the plaintiff. They evidently believed her story, and there was much to commend it to their favor. It was corroborated in some respects, and had upon its face an air of probability. With the facts thus found, it is clear the release was obtained by a trick and a fraud. While he did not in so many words say to the plaintiff, “ If you will sign this release, and relieve my hail, I will marry you,” yet such was the only rational conclusion to be drawn from his language. The subject of their conversation was their marriage; he was entangled with another woman; he had a suit with some company, thus making three suits hanging over him. When he said “ I will do what is right by you, if you release me,” he meant marriage, and she under-wood it was to he marriage. Under these circumstances, it was not only fradulent, but mean, to procure the release, throwing out of view the blandishments which he resorted to as make-weights, and which were well calculated to inspire confidence in his sincerity and continued attachment. We are of opinion that the facts fully justified the learned judge in refusing to affirm the defendant’s second point, and the instructions to the jury referred to in the remaining assignments. It is to be further observed that there was no attempt to reform or contradict the release. The paper was admitted, but the allegation was that it had been procured by fraud, which is quite another matter. Judgment affirmed.