Massucco v. Tomassi

Rowell, C. J. The original declaration contains but one count, which alleges with time but not with place, that the defendant promised to marry the plaintiff. It then alleges that at such another time, at such a place in Italy, for the purpose of deceiving the plaintiff, the defendant had the marriage ceremony performed by a priest in a Roman Catholic church, which was not a legal marriage, as the defendant well knew, and that he then and there promised to have a civil marriage performed; and afterwards, at divers times, changed the time and place of having said marriage performed; at one time promising to have it performed at Boston; at another, at Montpelier; and finally, at such another time, but stating no place, he refused to have it performed at all, and married another woman. Several new counts were filed. Some laid the whole cause of action in Italy; some, part of it there.and part of it in New York; and some, all of it at Montpelier, where the parties lived when suit was brought. The case was tried on all the counts. The defendant admitted that he promised to marry the plaintiff, and said that he was ready and willing, and repeatedly offered, to marry her, but that she would not marry him. To meet this claimed refusal, it was competent for her to show, — 191 — as she did, that in reply to letters received by her in Italy from the defendant here, which she did not produce, they being still in Italy, and the terms of which she did not seek to establish,— she wrote to the defendant, who, on notice to produce, denied having received such a letter, that her father would not consent to their marriage; that he could write to her father, and if he consented, everything would be all right. It appeared that her father did subsequently consent. The plaintiff left home when her father refused to consent, and would not go back. Tier testimony that while thus away her father sent word to her that if she would come back he would consent, was harmless, as it appeared that he did subsequently consent. It appeared that a religious marriage ceremony was performed in Italy between the parties, and that such a ceremony did not make a legal marriage there. The objection that the performance of that ceremony could not be shown by parol, for that the best evidence of it would be some writing that authenticated it, is not well taken. It does not appear that there is any such writing, nor that any such was required; and if it did, it would not preclude the testimony of eye witnesses, as is abundantly shown by the cases. Indeed the testimony of such witnesses is regarded as better evidence than the record, as further evidence of the identity of the parties, may be necessary. 2.Wig. Ev. §1336; 3 Wig. Ev. §2088. In testifying to what took place at the religions ceremony the plaintiff said, among other things, that the priest made the defendant swear to marry her by civil marriage as soon as they arrived here, because he had promised many times before to marry her then. „ The defendant moved- to strike out this last statement; and on being asked if that was what the priest said, the interpreter said it was a statement of what the defendant had previously said. It is now urged that the statement was not responsive, was prejudicial, and could have been regarded by the jury only as evidence that this promise had before that been frequently made to the priest. That the statement was not responsive did not make it inadmissible. Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488. And whether the statement was of a promise to the priest or to the plaintiff/it was harmless; for the defence was put solely on the ground of no breach by the defendant, and accord and satisfaction. — 192 — To show the financial condition of the defendant at the time of the promise in March, 1899, the plaintiff introduced evidence of his declarations to the effect that he was worth from twenty to thirty thousand dollars. It does not appear how far back of the promise these declarations went, but it is fair to presume that some of them went back a considerable time, for a sister of the plaintiff’s testified that he talked with her about his property “lots of times” before he went to Italy to marry the plaintiff, which was the March of the promise, and that he always said he was worth about twenty-five thousand dollars. The plaintiff also introduced evidence tending to show that at the time of the promise the defendant owned a block in Montpelier worth from ten to fifteen thousand dollars. The purchase price of the block was conceded to be six thousand dollars. The deed of it, dated Nov. 29, 1897, was taken to the defendant’s former wife, a sister of the plaintiff, who died in 1898. As bearing on his actual financial condition at the time of the promise, and also on whether he made the claimed declarations as to his property, the defendant offered to show that he had to mortgage the block for $5,500 of the purchase money. This was objected to as immaterial and excluded, and the defendant confined to the time of the promise, and not allowed to go back of it to show his financial condition at that time. This was error. The plaintiff was asserting and the defendant was denying, and it cannot be said that the condition he offered to show he was in when he bought the block did not tend to rebut the plaintiff’s evidence as to the condition he was in fifteen months later when he made the promise, for it tended to lessen the probability that in that short time, with his facilities, he had come to be worth from twenty to thirty thousand dollars. Indeed the plaintiff does not now claim that the offered testimony was immaterial, but seeks to justify its exclusion only on the ground of remoteness in time. But that objection was not made below, and therefore cannot be made here. The testimony should also have been received as bearing on whether or not the defendant made the claimed declarations as to his property; for if he was in the financial condition he offered to show, he would be less likely to be saying what was claimed, as it would have been untrue. As further tending to show his financial condition at the time of the promise, the defendant offered to show that in 189 B — 193 — or 1894 the only property lie and bis wife bad was some real estate in Bellows' Falls, of wbieb bis wife held tbe title, and some money tbat be bad; tbat in one' of -those years tbey went to Berlin Falls, N. H., and leased a piece of land on which bis wife built a store; tbat be bought goods with bis money to tbe amount of between four and five thousand dollars, and stocked tbe store for the purpose of carrying on a fruit and grocery business; tbat before tbe store was fairly finished tad tbe business in - it fairly begun, both the store and tbe goods were destroyed by fire and entirely lost, as tbey were not insured; tbat then tbey went to Montpelier, at wbieb time be bad no property, and owed debts for some of tbe property destroyed; tbat tbey leased the Montpelier property for a year .or two, and when tbey bought it tbey bad no money to pay for it, and bad to mortgage it for $5,500 of the purchase money. This was objected to, for tbat tbe loss of tbe Berlin Falls property bad no tendency to show tbat the defendant was not tbe owner of property five years later, and excluded. This was also error, for tbe same reason first given tbat made tbe exclusion of the other offer error. And here, also, tbe objection made below is abandoned, and only remoteness of time urged, which was not objected below. As further tending to show bis financial condition at tbe time of tbe promise, tbe defendant offered jto show tbat bis wife willed tbe Montpelier property to him on condition tbat be should, for tíre benefit of the children, - clear tbe Bellows Falls property from a three thousand dollar mortgage she put upon it for money tbat she put into tbe Montpelier property, and should pay tbe balance of tbe incumbrance on tbe Montpelier property; otherwise, tbat it should be differently disposed of. This was excluded, but on what ground does not appear. Tbe exclusion is now sought to be justified on tbe ground tbat an attested copy of tbe will itself would have "been the proper evidence of its contents; and, for aught tbat appears, tbat may have been tbe ground of exclusion, for counsel, in making tbe offer, said tbey should have to call tbe defendant.“to show tbe will,” tbe contents of which could not, of course, be shown in that way. — 194 — It does not appear whether or not the defendant offered to show his financial condition at the time of the promise otherwise than as above stated. The court charged that the wealth and condition in life of the parties should be considered in determining how much, if any, the plaintiff would have been elevated in her social relations on account of the defendant's property. The defendant excepted to this, for that there was no evidence of any loss in that respect. It is enough to say of this exception that it does not appear whether there was any such evidence or not; for although a transcript of the testimony is referred to by the bill of exceptions, a-transcript of only a part is furnished. It is objected that there is no sufficient allegation of loss of social position, and that no recovery could be had therefor without proof of a law in Italy allowing it. But as these objections were not made below, they are not considered. It was error to overrule pro forma the motion to set aside the verdict as against the weight of evidence and as excessive. The motion was addressed to the discretion of the court on both grounds, and the defendant had a right to have the court consider it, and exercise its judgment and discretion in disposing of it. Ranney v. St. Johnsbury & Lake Champlain R. R. Co., 67 Vt. 594, 601, 32 Atl. 810; State v. Newell, 71 Vt. 476, 45 Atl. 1045. The defendant moved in arrest, for that the counts are not all for the same cause of action; and for that the original declaration gives no jurisdiction, while the new counts amend into jurisdiction, if any is thereby conferred. But the motion is not sustainable merely because the counts are not all for the same cause of action; for it is not only permissible but desirable that all •causes of action on different contracts between the same parties that can be joined in one action should be joined, for if separate actions thereon are pending in a court at the same time, the court may restrict costs. V. S. 1680. When counts are for different causes of action and some of them bad and the verdict general, with nothing to show on what counts the damages were assessed, you may move in arrest, as was done in Posnett v. Marble, 62 Vt. 481, 20 Atl. 813. But here the motion does not allege that any of the counts are bad, and hence it did not present that question to the court below, and therefore it will not be considered here on this branch of the motion. — 195 — As to the jurisdictional branch of the motion the argument is, that the original declaration discloses no cause of action, as it sets up a contract made in Italy, to be performed in Italy, and broken in Italy, but alleges no right of action under the laws of Italy, and that therefore there was no subject-matter over which the court could acquire jurisdiction, as you can not amend into jurisdiction. But this'does not go to the jurisdiction of the subject-matter, but only to the sufficiency of the declaration; for the cause of action as’ originally declared upon being transitory, the court had power to judge concerning' the general question involved, and that was jurisdiction of the- subject-matter, irrespective of the sufficiency of the declaration or the existence of a good cause of action. Perry v. Morse, 57 Vt. 509; Hunt v. Hunt, 72 N. Y. 217; St. Louis etc. Railway Co. v. Lowder, 138 Mo. 533, 60 Am. St. Rep. 565; North Pacific Cycle Co. v. Thomas, 26 Oregon 381, 46 Am. St. Rep. 636. The omission in the original declaration to lay the action in Washington county under a videlicet, does not affect the jurisdiction of the court to try the .case, for in this State that fiction does not designate the county from which the jury is to come, as it did at the common law, but the place of trial is determined by the statute. We hold in this regard as they do in Massachusetts under a similar statute. Briggs v. Nantucket Bank, 5 Mass. 94; Gay v. Horner, 13 Pick. 535. The question of jurisdiction being 'the only one presented below by this branch of the motion, no other is considered thereunder. The motion to dismiss for want of jurisdiction, filed in this Court, is sufficiently disposed of by what has already been said. The claim that the court erred in not ruling that the case should be tried by the law of Italy is not considered, for the question is not presented by the exceptions. Reversed and remanded.