Lord, J.
1. The first exception which we are called upon to consider is whether the court erred in refusing to admit testimony of the kindly relations between these parties in the year 1839, and during subsequent years up to the year 1875. The case finds that in 1839 neither of the parties was married, but that each was subsequently married to another person, and the evidence offered was that the plaintiff and the defendant, before their several marriages, had kindly feelings toward each other, and, during their married lives, the two families interchanged friendly visits. If there were nothing else to show that the presiding judge might properly in his discretion regard the evidence as too remote, the fact that the defendant by his answer admitted that he entered into a contract of marriage would of itself justify the rejection of evidence which could have no other bearing than to show a probability that the defendant would enter into a contract, which, upon the record, he admits that he did enter into. The evidence offered would have no tendency to prove any particular contract, either as to time or circumstances. It could only tend to prove a contract of some' kind, at some time subsequent to the relations. When such a contract is admitted, all the consequences follow. But, upon the rescission of such contract, the same evidence cannot be competent to prove a renewal.
The fact that the rejection of the evidence is sustained for these reasons is not to be regarded as an intimation that under any circumstances the relations in early life between a man and a woman, who have each been married to another, would have any tendency to prove a promise of marriage between them when they have both been widowed after a married life extending through more than thirty years.
Nor do we mean to have it understood that we do not regard as sound the proposition of the defendant’s counsel respecting the evidence offered and rejected, of. the relations of the parties during their married life: “ If the relations and calls were merely friendly and proper, they mean nothing in this respect;' and if they were anything else, they were contrary to law and public policy, and cannot be put in evidence.”
[183]*1832. The next exception taken by the plaintiff’s counsel is to this instruction: “ The resuming by a man and woman of a contract to marry which has been once entirely discharged or released must be proved by the same evidence, in kind and amount, required to prove an original and the same promise to marry, by and between the same parties.”
The criticism upon this ruling made by the plaintiff’s counsel is unreasonable. The suggestion that, by this ruling, if an original written contract of marriage had been rescinded by the parties, no other contract of marriage can be proved to exist between them, except by another writing, is wholly unfounded. The court had immediately before said to the jury: “ Evidence of an express promise of marriage is not necessary to prove a contract to marry. If the association and conduct of a man and woman, and the circumstances attending all their relations, are such as naturally and ordinarily accompany a mutual understanding relied upon by each that they are to be married each to the other, these facts are appropriate and competent evidence to prove a contract to marry by such persons.”
The case finds that the plaintiff, on January 25,1878, released the defendant from his promise of marriage to her, and that the defendant married Lucinda Taber on February 14, 1878; and the plaintiff’s claim was that, after the release which she gave on January 25, and before the defendant’s marriage on Febuary 14, he entered into a new contract of marriage with her; and it was to meet this phase of the case that the court was called upon to instruct the jury as to the evidence required to prove a new contract of marriage, and, instead of repeating the carefully prepared statement which he had just given to the jury of what was sufficient to prove a mutual engagement to marry, he in substance referred the jury to that previous instruction as being applicable as well to a new promise to marry after a previous promise had been released, as to an original contract. By that instruction, he had told the jury the kind and amount of evidence necessary to establish the existence of a contract; and there was no error in thus referring to Ms original instruction for the purpose of mstructing the jury as to the evidence necessary to establish a new contract. Whether, under the peculiar circumstances oí this case, in which it appeared m writing that the original con[184]*184tract of marriage between these parties was qualified by a priai engagement of marriage with Lucinda Taber, and that the plaintiff, on January 25, released the defendant from his promise to her, and stipulated not to bring a suit against him for marrying any other woman, and the defendant within three weeks married the woman to whom he was engaged to be married before his contract with the plaintiff, the presiding judge might not have expressed the rules applicable to such a case in more stringent terms, we have no occasion to inquire. Certainly, the excepting party has no cause for complaint.
3. The next exception is to the instructions which the court gave and refused to give in relation to the paper declared on in the second count,
There was another paper bearing date the same day, and presumed to be executed at the same time, and to be a part of the same transaction, which was signed by both the defendant and the plaintiff; and, inasmuch as it is clear that both papers relate to the same subject, and were executed at the same time, they are to be construed together. The court below was not called upon by either party to give construction to those instruments, nor, upon this bill of exceptions, are we. It is enough to say that the instructions were sufficiently favorable to the plaintiff.
The request of the plaintiff’s counsel for instruction on this paper was that, if a valuable consideration is shown, such consideration, with love and affection, would be a good and valid consideration in law. It will be observed that the counsel did not ask the court to instruct the jury as to what would constitute a valuable consideration sufficient to support a promise, and although now, in the argument of the cause, certain matters are suggested which it is contended would be a valuable consideration for the note, yet the attention of the court was not called to them at the trial, and the instruction which the court in fact gave was sufficiently favorable to the plaintiff. We do not understand the presiding judge to have used the phrase “ penalty,” in the instruction given in its strictly technical sense, but to have used it in its more popular signification of liquidated damages. Examining the two papers of September 4 as one instrument to be construed together, it is quite obvious that the treating it, as between the parties, as in any sense an independent promissory [185]*185note containing in itself all the elements of a contract, and nothing else, was sufficiently favorable to the plaintiff, and especially as the presiding judge stated a consideration which he instructed the jury was a sufficient consideration, and no other consideration was suggested to him, nor was he asked to rule whether any specific consideration would be valid, or whether there was any evidence to support any other consideration.
4. The next exception of the plaintiff is to the instructions which the court gave in relation to the series of papers dated January 25, 1878, which are called receipts or releases.
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Lord, J.
1. The first exception which we are called upon to consider is whether the court erred in refusing to admit testimony of the kindly relations between these parties in the year 1839, and during subsequent years up to the year 1875. The case finds that in 1839 neither of the parties was married, but that each was subsequently married to another person, and the evidence offered was that the plaintiff and the defendant, before their several marriages, had kindly feelings toward each other, and, during their married lives, the two families interchanged friendly visits. If there were nothing else to show that the presiding judge might properly in his discretion regard the evidence as too remote, the fact that the defendant by his answer admitted that he entered into a contract of marriage would of itself justify the rejection of evidence which could have no other bearing than to show a probability that the defendant would enter into a contract, which, upon the record, he admits that he did enter into. The evidence offered would have no tendency to prove any particular contract, either as to time or circumstances. It could only tend to prove a contract of some' kind, at some time subsequent to the relations. When such a contract is admitted, all the consequences follow. But, upon the rescission of such contract, the same evidence cannot be competent to prove a renewal.
The fact that the rejection of the evidence is sustained for these reasons is not to be regarded as an intimation that under any circumstances the relations in early life between a man and a woman, who have each been married to another, would have any tendency to prove a promise of marriage between them when they have both been widowed after a married life extending through more than thirty years.
Nor do we mean to have it understood that we do not regard as sound the proposition of the defendant’s counsel respecting the evidence offered and rejected, of. the relations of the parties during their married life: “ If the relations and calls were merely friendly and proper, they mean nothing in this respect;' and if they were anything else, they were contrary to law and public policy, and cannot be put in evidence.”
[183]*1832. The next exception taken by the plaintiff’s counsel is to this instruction: “ The resuming by a man and woman of a contract to marry which has been once entirely discharged or released must be proved by the same evidence, in kind and amount, required to prove an original and the same promise to marry, by and between the same parties.”
The criticism upon this ruling made by the plaintiff’s counsel is unreasonable. The suggestion that, by this ruling, if an original written contract of marriage had been rescinded by the parties, no other contract of marriage can be proved to exist between them, except by another writing, is wholly unfounded. The court had immediately before said to the jury: “ Evidence of an express promise of marriage is not necessary to prove a contract to marry. If the association and conduct of a man and woman, and the circumstances attending all their relations, are such as naturally and ordinarily accompany a mutual understanding relied upon by each that they are to be married each to the other, these facts are appropriate and competent evidence to prove a contract to marry by such persons.”
The case finds that the plaintiff, on January 25,1878, released the defendant from his promise of marriage to her, and that the defendant married Lucinda Taber on February 14, 1878; and the plaintiff’s claim was that, after the release which she gave on January 25, and before the defendant’s marriage on Febuary 14, he entered into a new contract of marriage with her; and it was to meet this phase of the case that the court was called upon to instruct the jury as to the evidence required to prove a new contract of marriage, and, instead of repeating the carefully prepared statement which he had just given to the jury of what was sufficient to prove a mutual engagement to marry, he in substance referred the jury to that previous instruction as being applicable as well to a new promise to marry after a previous promise had been released, as to an original contract. By that instruction, he had told the jury the kind and amount of evidence necessary to establish the existence of a contract; and there was no error in thus referring to Ms original instruction for the purpose of mstructing the jury as to the evidence necessary to establish a new contract. Whether, under the peculiar circumstances oí this case, in which it appeared m writing that the original con[184]*184tract of marriage between these parties was qualified by a priai engagement of marriage with Lucinda Taber, and that the plaintiff, on January 25, released the defendant from his promise to her, and stipulated not to bring a suit against him for marrying any other woman, and the defendant within three weeks married the woman to whom he was engaged to be married before his contract with the plaintiff, the presiding judge might not have expressed the rules applicable to such a case in more stringent terms, we have no occasion to inquire. Certainly, the excepting party has no cause for complaint.
3. The next exception is to the instructions which the court gave and refused to give in relation to the paper declared on in the second count,
There was another paper bearing date the same day, and presumed to be executed at the same time, and to be a part of the same transaction, which was signed by both the defendant and the plaintiff; and, inasmuch as it is clear that both papers relate to the same subject, and were executed at the same time, they are to be construed together. The court below was not called upon by either party to give construction to those instruments, nor, upon this bill of exceptions, are we. It is enough to say that the instructions were sufficiently favorable to the plaintiff.
The request of the plaintiff’s counsel for instruction on this paper was that, if a valuable consideration is shown, such consideration, with love and affection, would be a good and valid consideration in law. It will be observed that the counsel did not ask the court to instruct the jury as to what would constitute a valuable consideration sufficient to support a promise, and although now, in the argument of the cause, certain matters are suggested which it is contended would be a valuable consideration for the note, yet the attention of the court was not called to them at the trial, and the instruction which the court in fact gave was sufficiently favorable to the plaintiff. We do not understand the presiding judge to have used the phrase “ penalty,” in the instruction given in its strictly technical sense, but to have used it in its more popular signification of liquidated damages. Examining the two papers of September 4 as one instrument to be construed together, it is quite obvious that the treating it, as between the parties, as in any sense an independent promissory [185]*185note containing in itself all the elements of a contract, and nothing else, was sufficiently favorable to the plaintiff, and especially as the presiding judge stated a consideration which he instructed the jury was a sufficient consideration, and no other consideration was suggested to him, nor was he asked to rule whether any specific consideration would be valid, or whether there was any evidence to support any other consideration.
4. The next exception of the plaintiff is to the instructions which the court gave in relation to the series of papers dated January 25, 1878, which are called receipts or releases. These papers were written by a magistrate. The plaintiff and the defendant had “ a long and full conference concerning their affairs,” in the presence of this magistrate. After that conference was ended, and the defendant had left the presence of the magistrate, these papers were written by him, as the bill of exceptions finds, “ by the dictation of the plaintiff.” By this phrase we do not understand that the plaintiff enunciated the precise words which the magistrate wrote, but rather that she communicated to the magistrate the particular receipts, releases and agreements, which he reduced to writing in such form as he thought would express the intention of the parties. It is immaterial, however, in what sense the word “dictation” is understood, for the instruments are to be construed by the language used under the rules of law applicable to such instruments. Receipts not under seal, whether called receipts or releases, or by whatever other name called, are not subject to the same rigid rules of construction as the written agreements of parties, but are open to explanation, and may be shown by paroi to apply to subjects which are not expressed in them. In reference to these particular papers, the court instructed the jury what would be the natural and obvious meaning of the several phraseologies, and to this part of the instruction we do not understand any exception to be taken; and he instructed the jury further that they were not decisive evidence that all the preexisting relations and obligations between the plaintiff and defendant having reference to their marriage or mutual services were on that day settled and determined. This instruction was sufficiently favorable to the plaintiff.
A brief examination of the transactions of the two days, September 4,1873. and January 25,1878, will reveal a very striking [186]*186relation to each other and perhaps the idiosyncrasies of a single mind. On September 4, one of the papers executed was a mutual agreement between these two parties to take care of each other, and the services of each was the consideration for the services of the other, and no other consideration is referred to, and no other would be implied in law. There is, then, an engagement to marry each other, but it is qualified by the existing obstacle of a prior engagement upon the part of the defendant to marry another; and it is quite apparent that it was not deemed certain by the parties that this obstacle could be removed. In this view, the other paper becomes significant, which is a promise by the defendant to pay the plaintiff one thousand dollars on the day of his marriage. By the papers of January 25, 1878, it is evident that the same subjects were the matters of negotiation between the parties. The mutual contract by which each was to perform services to the other was settled and necessarily abandoned by the consent of the; plaintiff that the defendant might marry another. The qualified or conditional arrangement to marry, made on September 4, was not only in terms released by the plaintiff, but there was a stipulation by her that she would not “ interfere with his marrying to other parties by bringing suit or otherwise against him.” Construing the two papers of September 4 together, and construing together the papers of January 25, it will be seen that they relate to the same subject-matter, and that the plaintiff has no right to complain that the court referred to the jury the question whether, by the intent of the parties, the settlement of January 25 was a final settlement, release and discharge of all the agreements of September 4. There was evidence of “ a long and full conference of both the plaintiff and the defendant concerning their affairs,” in the presence of a magistrate, and these- papers were the result of that conference; and if, by the mutual understanding of the parties, that result was a full and perfect adjustment of all matters existing between them on that day, and an abrogation of all executory contracts between them, these papers were sufficient in form to express that conclusion; and if the presiding judge, instead of ruling as matter of law that this showed a final settlement, left the matter to the jury, who decided it rightly, the plaintiff has no cause of complaint.
[187]*1875. The plaintiff now objects that it was error to refuse her fifth request for instructions. It is difficult to understand how the plaintiff could be prejudiced by an instruction, as to the effect of a renewal of the defendant’s engagement to marry her, when the jury have found that there was in fact no such renewal. The request, however, was one which could not properly be given. If the parties to an executory contract mutually release each other from its performance, and subsequently enter into the same contract in form, it is the new contract which subsists between the parties, and the old one is as effectually discharged, released and abrogated as if the new one had not been entered into. As to the efféct of the renewal of the contract, the court had already given sufficient instructions.
6. The plaintiff also insists that" her fourth request for instructions should have been granted. Upon examining the bill of exceptions, we do not find that any evidence was offered upon the subject of the contract declared on in the third count, or that it was regarded by any one as a subsisting contract, or that any tender of performance was made under it, and, upon referring to the third count of the plaintiff’s declaration, we find that the paper is set out in it, and it is alleged that the latter clause of it was, on January 25, 1878, abrogated; and then it is alleged that such agreement to marry was renewed, and the marriage of the defendant to another person was alleged as the breach of that contract, and no other breach was alleged, although there is in general terms an allegation of willingness to perform every part of said agreement. It is obvious that this case was tried wholly and solely upon the breach of a contract to marry. We do not understand that any evidence was offered, under the declaration, upon the 'paper, except the fact of its execution as described; and its effect, under all the circumstances of the case, was left to be determined by the jury under the instructions of the court. But, without regard to the question, whether properly raised or not, it is enough to say that the agreement declared on and the agreement of January 25 are so utterly inconsistent with each other and their coexistence would be so subversive of morality and decency that the agreement of January 25 is necessarily in law an abrogation of the contract declared on.
Exceptions overruled.