dissenting. I am of opinion, that the plaintiff has not proved the contract, for the breach of which she claims damages. Where a contract is attempted to be proved by presumptive evidence, the question whether the facts proved establish its existence, is not purely a question of fact, and the verdict of the jury has not the authority usually given to verdicts on questions of fact.
The testimony of Russell, upon which the plaintiff mainly relies, is incomplete and unsatisfactory. The plaintiff had it in her power to complete it by producing that portion of the .correspondence of the defendant to which the witness refers ; qad as she has not done so, the presumption is, that the letters, if produced, would have been to her disadvantage.
On the 27th February, 1844, no contract existed ; and she shows no communication with the defendant after that time. It appears that the defendant married another person in the month of May following, and that a few weeks before this marriage the plaintiff came to New Orleans, and told the keeper of the house where she stayed that she had come to buy her wedding dresses. This witness also states, that she bespoke rooms in the house for the celebration of the marriage. All this occurred at a suspicious time, and I attach no weight to it. I believe the plaintiff was sincere, when she said that she would not many the ignorant old fool, unless he made over to her a certain sum of money ; and that, in fact, she would not marry him even then. There is nothing in the record to satisfy me that she ever changed her mind.
I am of opinion that the case should either be decided in favor of the defendant, or remanded.