Barber v. Geer

<p>1. —Evidence—Admissibility of Mutilated Letter — Issue for Jury.</p> <p>Where a letter was not admissible in evidence without explanation because of mutilation and erasures therein, and plaintiff, who offered it, testified as to the erasures, and this testimony was contradicted by defendant, it was proper for the court to submit the issue thus raised to the jury.</p> <p>2. —Deposition—Authority of Officer to Take.</p> <p>The commission to take a deposition was addressed to “any notary public * * * in and for the county, city of New York, State of New York.” The officer who took the deposition signed his certificate “H. McW., Notary Public, Kings County, certificate filed in New York County,” using a seal marked “H. McW., N. P. Kings County,” and the caption of the certificate stated that he was “a notary public, duly commissioned, sworn and acting in and for the county of New York, State of New York.” Held, that it did not appear that the officer was not authorized to take the deposition, and that a motion to quash it was properly overruled.</p> <p>3. —Same—Return—Indorsements on Envelope.</p> <p>The officer taking a deposition inclosed it in an envelope, writing his name across the seal and indorsing on it the name of the witness, as required by article 2284, Revised Statutes, and this envelope he inclosed in another, without writing his name across the seal of the outer envelope, or indorsing the name of the witness thereon. Held in this opinion, Associate Justice Hunter dissenting, that there was a substantial compliance with the statute; but, upon ruling of the Supreme Court on certificate of dissent it is held that the return was insufficient, and that the deposition should have been suppressed.</p> <p>4. — Marriage Contract — Breach—Pleading—Written and Oral Promise.</p> <p>In an action for breach of a contract of marriage plaintiff’s petition alleged a contract made by correspondence, on the strength of which she came to Texas and met defendant, and that at divers times thereafter she and defendant discussed their relation to each other and their matrimonial engagement, and defendant at all times expressed much love and affection for her, and at all times expressed himself so as to assure her he would certainly carry into effect his agreement and would marry her, but finally refused to do so. Defendant requested a charge to the jury that if not contract by correspondence was shown, plaintiff could not recover, and assigned error to its refusal. Held in this opinion, Associate Justice Hunter dissenting, that the petition alleged both an agreement to marry by correspondence and by paroi; but upon the ruling of the Supreme Court upon certificate of dissent, it is held that the allegation of what transpired after plaintiff came to Texas did not set up any contract, and that it was error to refuse the requested charge.</p>