The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1894-12-28

time after the divorce in the
forepart 'of December, 1889, and
that thereafter such promise was
| renewed from time to time up to some
time in October, 1898. [ shall have
| occasion during my instructions to
you to say that one party or the other
claims certain things or that some
witness testifies to certain things, but
when l say this you must understand
that l do not pretend to say that such
| claims or testimony are true, for
whether they are or any of them are
| true and founded on facts, is a ques-
tion for you to determine from all the
evidence in the case.
1.-The first question for you to con-
slider in the orderly consideration of
this case is the question as to whether
or not the plaintiff and defendant
| mutually promised and agreed to
marry each other at any time after
the divorce of the plaintiff and before
the 10th day of November, 1898, when
defendant married Roma j. Allen, so
that the contract of marriage arose
| between the parties.
The burden of proof is upon the
plalntltf to satisfy you by fair pre-
pOnderance of the evidence, that the
as charged in the complaint entered
into contract of marriage, for such a
contract is denied by the defendant
and he denies that he at any time
mentioned in the complaint or prom
ised to marry the plaintiff or that she
promised to marry him.
1.-The question then arises, how
shall a marriage contract be found? /
instruct you that to prove contract
OF marriage an express contract need
not be proved. Such contract may
be proved either by positive or circum-
stantlal evidence, and when it is
proved by either mode unless the evil
dence diSclOSeS circumstances which
relieves the party from it's observance,
he will be held liable for it's breach, as
in the case of any other contract.
"A mutual engagement to marry
may be proved by a positive evidence,
or it may be inferred from circum-
stances proved, and among the cir
cumstances that may be considered
Tor such purpose are constant and de-
voted attention, gladly welcomed, re-
ciprOcal affection and the interchange
OF letters between the parties express
i've of earnest love, but in any event
to constitute contract of marriage
the minds of the parties must
| meet upon the proposition that they
marry each other. They must mu-
tually arrive at an understanding
that they will be married to each
other.
'"Then you will carefully examine
and weigh all the evidence and deter
mine whether or not the plaintiff and
defendant entered into marriage en-
gagement in substance as alleged in
the complaint. If you do not find the
existence of such contract by fair
| preponderance of the evidence in this
case, that is the end of the case and
| the verdict must be for the defendant;
but if you find by fair preponderance
of the evidence that the plaintiff and
| defendant entered into contract of
marriage in substance as alleged in
the complaint, then you will pass on
to the consideration of the other
question involved in the case.
'In considering circumstances of
intimacy and expressions of love be-
| tween the parties, as bearing on the
question of an engagement of mar
| rage, you may consider if the circum-
stances inevidence warrant it, whether
or not such intimacy and expressions
/
marry, or whether, they are the mere
ebullitions of illicit love and criminal
passion.
''The evidence in this case upon
which the plaintiff relies to establish
the marriage engagement alleged is
too voluminous to justify the court in
referring to it in detail. Your atten-
| tiOn has been called to it many times
/ hoc oil
in the able and exhaustive arguments
not fail to recall the testimony.
| ''The defendant married one RomaJ.
Allen on the 2Sth day of October, 1898,
and if at that time a valid engage
ment of marriage existed between the
| plaintiff and defendant obligatory on
| the parties, that marriage constituted
a breach Of such marriage contract,
| for which the plaintiff would be enti-
| tied to recover in this action.
| '"The plaintiff in her testimony
| claims and testifes that she and the
defendant entered into marriage en-
| gagement for the first time in the
month of December, 1889, after her
divorce. At that time the plaintiff
was at liberty to enter into marriage
engagement with the defendant, and
it would be competent for her to do so.
"The plaintiff also claims and testi-
| fies that though she had been an I'M
chaste woman prior to such engage
ment to marry the defendant, yet
| when she entered into such engage
ment she promised the defendant that
she would then and there reform her
life, and thereafter live a chaste and
| virtuous life, and be true to the de-
| PENDANT.
"The plaintiff also claims in her COM
plant and in her testimony, that af-
| ter her first engagement to the de-
fentant, he several times promised to
marry her, qualifying his original pro-
| mise as to time of fulfillment, but the
plaintiff presents her case upon the
| theory that the original engagement
of marriage was entered intos in the
month of December, 1889, and there
| after was several times in effect, and
on that claim and theory the case has
been tried. You will remember that
| the plaintiff testifes that the last
| time the defendant expressly renew
| ed his promise of marriage was on or
about the middle of October, 1898.
| 1oi ole n1o