
    Roush, Appellant, vs. Battin, Respondent.
    
      November 19
    
    December 23, 1947.
    
    
      For the appellant the cause was submitted on the brief of Thors on, Seymour & Korf of Ellchorn.
    For the respondent there was a brief by Godfrey, Pfeil & Godfrey of Elkhorn, and oral argument by Thomas■ G. God-frey.
    
   Rectoe, J.

The defendant’s answer admitted that on August 31, 1935, he and the plaintiff entered into an agreement to marry within a reasonable time thereafter. He based his defense -upon a mutual rescission of the agreement and other matter not relevant to this discussion. The trial court entered judgment for the defendant at the conclusion of plaintiff’s testimony upon the ground that a part of the consideration for the defendant’s promise consisted of illicit cohabitation between the parties, and that the contract was therefore void.

The trial court did not make findings of fact and conclusions of law. • In an action tried by the court a dismissal at the conclusion of plaintiff’s testimony is a determination on the merits and should be accompanied by findings and conclusions. Yahr v. Joint School District No. 2 (1898), 99 Wis. 281, 74 N. W. 779. However, the remarks of the trial court contained in the record are sufficient to apprize us of its views upon the essential facts, and it is therefore unnecessary to return the case for further proceedings because of the omission. United Parcel Service v. Public Service Comm. (1942) 240 Wis. 603, 4 N. W. (2d) 138, 5 N. W. (2d) 635.

The case turns on the question whether at the time of the proposal it was contemplated that plaintiff should continue her illegal cohabitation with defendant as a consideration for his promise to marry her. If it was, the agreement to marry was invalid. Estate of Fox (1922), 178 Wis. 369, 190 N. W. 90; 8 Am. Jur., Breach of Promise of Marriage, p. 850; 6 Williston, Contracts, p. 4940. There is no question but that illicit cohabitation continued after the promise to marry.

‘ We are of the opinion that the facts do not sustain the trial court’s conclusion that the contract to marry was accompanied by an agreement to continue the unlawful cohabitation. It is clear that before her divorce plaintiff cohabited with defendant upon the strength of his statement that after the divorce he would consider marriage to her. However, at the time of the proposal the plaintiff had obtained1 her divorce and the record is devoid of any evidence bearing upon an agreement to continue cohabitation. The fact that the parties continued their unlawful relationship after they entered into the contract does not establish that it formed a part of the consideration for the contract.

Defendant also contends that the judgment should be, affirmed upon the ground that the parties mutually rescinded the contract. This claim is based upon a letter addressed by plaintiff to her sister in November, 1939, in which she stated that the defendant,seemed to be indifferent to marriage; that it might be best for her and the defendant to go their separate ways; and that she had advised him she would leave his home if he so desired. It is contended that this evidences an offer to release defendant from his contract, upon which he acted, thereby terminating the agreement. Kellett v. Robie (1898), 99 Wis. 303, 74 N. W. 781. The plaintiff denied making the offer, but assuming that she did, it was not limited to a specified time and consequently should have been accepted within a reasonable time. 13 C. J., Contracts, p. 297. The evidence shows that until 1941 defendant planned to marry plaintiff and mentioned it to her at frequent intervals. Such conduct is not consistént with acceptance of the offer of release within a reasonable time. Of course, we have only the plaintiff’s evidence before us. Upon a retrial it may be established by other testimony that the offer was made and that it was accepted within a reasonable time.

By the Court. — Judgment reversed, and cause remanded for a new trial.

Fowler, J., took no part.  