The petition for a new trial on the ground that the verdict is against the evidence must be granted, because the alleged contract, being between husband and wife, is not supported by any competent testimony. The husband was the only witness to the alleged contract, and under Gen. Laws R.I. cap. 244, § 37, the husband is not permitted to disclose any communication made to him by his wife during their marriage, except in trials for divorce. No exception was taken on this ground, but, since the statute is founded on seasons of public policy, it cannot be waived by the parties. Campbell v. Chace, 12 R.I. 333. Though the parties were not husband and wife at the time of the trial, the same reasons of policy would preclude a disclosure of the communication *Page 122 after the dissolution of the marriage as well as before, and such was the evident purpose of the statute.
The case is remitted to the Common Pleas Division, with direction to enter judgment for the defendant for costs.