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with her brother-in-law's family; that defendant was an unmarried man of considerable property, 45 years old, who owned and conducted a drug store separated from the place where the plaintiff lived by an alley; that defendant lived in apartments over this drug store with his mother and sister; that, after they became acquainted, defendant paid considerable attention to her, going to social entertainments with her, and taking her riding in a buggy quite frequently evenings; that they became sexually intimate; and that this resulted in the pregnancy of plaintiff.

The claim of plaintiff was, and proof was offered tending to show: That some time after they became acquainted they began to keep company together in March, 1907. This continued until February, 1909, when, riding with her one evening, he first made a proposition of marriage, and asked her to think the matter over, and agreed to see her some evening during the week. He came to see her several times soon afterwards, each time talking with her relative to marriage, which finally resulted early in the month of April, 1909, in a mutual agreement to marry. That soon after their engagement defendant told her of his life, especially his relations with women, and how he regretted the fact, and said that it would be better for both to know each other's faults. That she then told him she had a secret she would tell him later. This she did within a few days, confessing that she had once gone astray, and had given birth to a child (the details of which confession are not material). That he had said this did not change his feelings towards her, but that he thought all the more of her for telling him. She testifies: That they discussed the matter of an engagement ring; that later she finally yielded to his persistent solicitation for sexual intercourse, in which he assured her that it was no sin because an engagement was as binding as marriage; that such relations continued for a time, and as a result in June she became pregnant. She informed him of this fact and requested an immediate marriage. He made

excuses that it was impossible because of the busy season, and finally took her to a doctor, who operated on her. She says that after her sickness the matter of the marriage was talked over, and it was determined that, when married, they would occupy the apartments over the drug store, which his mother and sister would vacate. She relates in detail what preparations she made relative to her wardrobe for the marriage, and also that he gave her some money to help buy it. The wedding was frequently postponed at the request of defendant. While buying some of her wedding things, she had told of her expected marriage, and had spoken of it to a few persons. Defendant came to her July 30, 1909, and accused her ofmaking the matter of their marriage public, and then said for that reason he would not marry her. She pleaded with him to no effect, begging him to keep his promise. She claims that as a result she became sick and under the care of a physician for several days. She wrote him a letter September 11, 1909, which he failed to produce upon the trial, although requested, in which she apologized for telling anything concerning the marriage; that she told it because she was so happy over it. He did not answer this letter. She met him for the last time on the Saturday following, and during the interview he said: "What do you want to settle this affair? What do you want me to do?" Her testimony is: "Tom, there is only one thing for you to do, and that is to keep your promise." He replied: "I will never marry you." And they parted.

Defendant denied that he ever promised to marry plaintiff, or that thereafter, under such promise, he succeeded in having carnal relations with her, but that such relations were mutual and freely entered into and encouraged by plaintiff. By his notice under his plea and by his testimony he admits these relations, and admits that conversations of a general character relating to marriage were had between them; that the parties never reached any agreement as to the time or place of marriage, and that there never was any definite contract of marriage between

them; that, after she related to him her lapse from virtue, he discontinued visiting her. He also admitted that he gave her money from time to time amounting to $30, but denied that it was for the purpose of purchasing a wedding outfit. He admitted that she notified him of her condition of pregnancy, and that afterwards he went to a doctor in the village of Hartford, and made an appointment for her; that the next night, June 29th, he took her to the doctor's office, driving her across from Watervliet with a horse and buggy. He paid the doctor $25. His testimony indicates clearly the purpose of the visit. He claims, however, that it was done at her request. A short time after this trip he met her in the alley back of his drug store, when she told him she was "all right except certain pains," and for these he gave her some medicine. He says that he saw her on August 15th in the alley, and went with her upstairs, where he accused her of telling that they were engaged to be married. This was his last conversation with her except a few words later about a letter. The result of this trial was a verdict and judgment against defendant. A motion for a new trial was made by him, and denied. He has brought the case to this court upon a writ of error for review, and asks a reversal. The errors relied upon and urged before this court will be considered.

Several of these assignments of error relate to rulings by the court upon the admission and rejection of testimony. Defendant objected to questions asked plaintiff on her direct examination as to her condition immediately after defendant left her on the night he told her he would not marry her, on the ground that it was not in his presence, and, if to show damages for injury to her feelings, not admissible because not covered by the declaration. The court permitted the witness to answer the question. The damages alleged in the declaration were in the general form. The plaintiff was testifying at the time as to her condition immediately after the defendant had broken the marriage agreement, and the testimony tended to show

her physical prostration, she being scarcely able to rise from her bed and admit her sister, and it was necessary for her to be helped into bed again; that she was unable to rise the next morning, and a doctor was called who attended her for three days, she being confined to her bed. The objection was without merit. This court has held that, under a declaration similar to this, plaintiff can recover as compensatory damages, among other things, for mental suffering and injury to health occasioned by the breach of the contract in a proper case. Goddard v.

Westcott, 82 Mich. 180, 188 (46 N. W. 242).

The next assignment of error is upon the ruling of the court in refusing on redirect examination to allow defendant to answer the question, "How did she come to build the house?" Plaintiff had testified that they were to be married late in the year, and would live in the apartments over the defendant's drug store, where his mother and sister then lived with him; and on cross-examination defendant had testified that his mother was building a house into which she moved in December. Defendant immediately was permitted to testify:

"My mother is about 75 years old. Her health is not very good. She is very feeble. She got from the ground to her rooms over my store by walking up a long flight of stairs."

The testimony was not excluded.

The next assignment of error is not supported by an exception to the ruling of the court, and requires no discussion.

Defendant introduced in evidence the deposition of a witness named Mast, taken before a justice of the peace at South Bend, Ind. This witness was a barber, who three years before lived in Watervliet, and was acquainted with plaintiff. His direct examination was very brief, and consisted simply of a few preliminary questions, and the statement that he had been carnally intimate with plaintiff. On cross-examination he could not give the time, place, or circumstances of the claimed occurrence, or

whether it was repeated, and remembered nothing at all except the claimed fact of intercourse. At the time of taking this deposition attorneys for both sides were present, and the attorney who represented plaintiff was called as a witness upon this trial, and was permitted, over the objection of defendant's counsel, to state the circumstances which occurred at this time, particularly the conduct of witness Mast and defendant, showing that he went out and had an interview with defendant for 15 or 20 minutes, and later, after he was sworn, defendant seated himself near the witness, which was objected to by counsel for plaintiff as improper, when defendant was told by his own counsel to change his seat; that Mast then whispered to defendant, who announced that before he testified Mast desired to speak with defendant's attorney, and before he testified they withdrew to the rear of the hallway where they remained for a considerable time before he returned to testify.

The record shows that upon the trial, immediately after this deposition was read in evidence, defendant was recalled as a witness in his own behalf, and upon his cros8examination he testified at length relative to the Mast deposition; that he went to Elkhart and brought Mast back with him to South Bend, according to a previous understanding, where he talked with the witness in the main room and where the testimony was to be taken and in the hall and with his attorney, during which conversations, which caused considerable delay, Mast asked defendant and his attorney if he could be prosecuted criminally if he testified against this woman; that defendant told him he thought not, but his attorney said that he might be prosecuted, and that is what he hesitated about-he did not wish to be punished for it afterwards. This witness Mast was not before the court, and the testimony objected to as to what occurred when the deposition was taken was permissible as bearing upon the credibility of the witness. New Jersey Express Co. v. Nichols, 33 N. J. Law, 434 (97 Am. Dec. 722).

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