Thurston v. Cavenor

Weight, C. R -It seems that plaintiff was a minor, and sued by her next friend. This next friend moved to dismiss the cause, for the reason that he did not wish further to prosecute it. Rased upon this motion, defendant also asked that the suit be dismissed. The motion of defendant was overruled, and (as the record states), “the application heretofore made by A. Newton, (the next friend), to be dismissed from this cause, came on for hearing ; and, the court being'advised in the premises, ordered that said application be granted, and that Rate Thurston have leave to substitute some other person as her next friend.” An agreement was then filed, signed by a competent person, consenting to act as such next friend, and to become responsible for the costs. The name of this person was then directed to be substituted, and said cause ordered to proceed in accordance with such substitution, without prejudice to either party. The order of the court directing this substitution, and the refusal to sustain defendant’s motion, are now assigned as error. We are very clear that there was no error in this part of the case. It was entirely competent to discharge the “next friend,” in whose name the suit was commenced, and substitute another. And if erroneous to thus substitute, it was [160] an error without prejudice to the rights of defendant, and he cannot therefore complain. The second error relied upon is the over-ruling of defendant’s motion for a continuance. The continuance was asked on account of the absence of a witness. The affidavit-states that the witness is a resident of Polk county; that he is now temporarily absent, but where he is affiant does not know; that on a day named, (about a month before the commencement of the term), & subpoena was issued ; that it was returned on the third day of the term, “ not found and that, up to that time, affiant did not know but that said witness had returned, and had been served; “so affiant says that he has used due diligence to obtain the attendance of said witness,” &c. One conclusive objection to this affidavit is, that for aught that is shown, affiant knew of the intended departure or absence of the witness from the county, and took no steps to subpoena him, or to take his deposition. It seems that he was aware of his absence, for he says: “that he did not know but that said witness had returned.” He should have shown, either that he was not aware of the intended absence of the witness, or that ho left expecting to be back in time for the trial. And these things should ndt be left to inference. Nor is it sufficient to state, that a party has used diligence to obtain the testimony. What has been done should be set forth, that the court may judge of the diligence. Brady v. Malone, 4 Iowa, 146; Widner v. Hunt, Ib., 355; Adams v. Peck, Ib., 551. Appellant next insists that there was error in allowing certain interrogatories to be propounded and answered. The record, fails to show what answers were given to these interrogatories; and under the ruling made in Mays v. Deaver, 1 Iowa, 216, it becomes unnecessary to inquire into the correctness or incorrectness of the questions themselves. The material inquiry is not, whether an improper question was asked, but was improper and illegal testimony received by the answer. Until the answer is disclosed, this cannot be known. [161] The defendant asked the court to instruct the jury as follows, which instruction was refused as asked, but given with the qualification as shown by the words inclosed in brackets: “ That in determining the question as to whether or not there was a promise by defendant to marry plaintiff, they must not take into consideration any declarations made by, or conduct of, the plaintiff, not in the presence of defendant, (unless they amount to admissions of an engagement between them); that the evidence of plaintiff’s declarations, and her conduct, not in the presence of defendant, were only admitted to show, in the discretion of the jury, a promise or assent on her part, and should be considered by the jury for this purpose alone ; and that they are not to be considered at all, unless they first find that there was a promise made by defendant to marry plaintiff'.” It is somewhat difficult to perceive the precise object or purpose of the qualification, as it is termed, added by the court. The objection to it, if any, is, that it might possibly tend to mislead the jury ; and if so, it occurs to us that it w-ould, in this respect, be to the plaintiff’s, and not to the defendant’s, prejudice. A contract of this kind, like all others, must be reciprocal and mutually obligatory upon the parties. To maintain the action, plaintiff is required to prove the defendant’s promise. Not necessarily an express promise, it is true; for it maybe shown, also, by the unequivocal conduct of the parties, and by a general, yet definite and reciprocal understanding between them, their friends and relations, evinced and corroborated by their actions, that a marriage was to take place. Chitty on Con., 536; Daniel v. Bowles, 3 C. & P., 553 ; 1 Blackstone Com., 433. Where the defendant’s promise is pnce shown, then it may be proved that plaintiff demeaned herself as if she concurred in, and approved ofj his promise, and thus establish the promise on her part; and this, whether the defendant is present or not at the time of such conduct. Southard v. Rexford, 6 Cow., 254; Wightman v. Coats, 15 Mass., 1; Chitty on Con., supra. [162] This instruction recognizes these rules, and under one construction, might reasonably mean, that after his promise was proved, her concurrence in, and approval thereof, could bé shown by no declarations or conduct of hers, unless they amounted to admissions of an engagement between them. If it was thus understood, then it was manifest to the plaintiff’s prejudice, for after proof of his promise, her'conduct and declarations might be proved, though they might not amount to an admission of an engagement. If, on the other hand, it be claimed that the true construction is, that in determining whether he had promised, the jury could not consider any conduct or declarations of hers, unless they amounted to admissions of an engagement between them, and that if they did amount to such an admission, they could be received to prove his promise — we say, if this is the claim, then it may be answered that other instructions clearly show that this was not the intention, and that it is not probable that the jury so understood it. In the first place, the latter part of the instruction itself negatives such a construction; for the jury are given to understand that her declarations, though amounting to such an admission, are not to be received except for the purpose of proving her promise, and they are not to be considered, unless there was a promise made by defendant. Not only so, but the jury are elsewhere told that the promise of defendant to marry plaintiff, being shown by direct or circumstantial evidence, then the demeanor and deportment of plaintiff may be given in evidence to prove her promise; and that a promise may be inferred from defendant’s visits, and his declarations that he promised to marry her. From these and other instructions, we think it reasonably manifest that the jury could not have understood the instruction complained of, as appellant insists they did. The fair deduction from all that was said to them is, that they were first to find that defendant made the promise, and that if they did not find this promise proved, that was an end of the case ; but that if they found this fact, her conduct, declarations and deportment might be considered, [163] for the purpose of ascertaining whether she concurred in, or reciprocated liis promise, but not for the purpose of proving the promise of defendant. Other errors are assigned, but not argued. The foregoing considerations cover the substance of the case, and the judgment is therefore affirmed.