Espy v. Jones, 37 Ala. 379

Espy v. Jones

37 Ala. 379 | Ala. | 1861

R. W. WALKER, J.

It. has been much questioned, whether, in an action to recover damages for the breach of a .promise of marriage, damages for seduction may be recovered. It has been, distinctly held in Kentucky and Pennsylvania, that in such action -seduction cannot be given in evidence in aggravation of the damages. — Weaver v. Bachert, 2 Barr, 80 ; Burks v. Shain, 2 Bibb, 341; see, also, Perkins v. Hersey, 1 R. I. 493. On the other hand, the rule adopted in Massachusetts, New York, and several other States, is, that where seduction has been practiced under -color of a promise-’-of marriage, the jury may consider it to aggravate- the damages in an action on the contract. — Paul v. Frazier, 3 Mass. 73; Whalen v. Layman, 2 Blackf. 194; King v. Kersey, 2 Carter, 402; Tubbs v. Vankleek, 12 Ill. 446; Wells v. Padgett, 8 Barb. 323; Green v. Spencer, 3 Miss. 318 ; Conn v. Wilson, 2 Overton, 233.

Mr. Parsons suggests, that damages for seduction should be excluded, where the plaintiff was in actual or constructive service, or lived in a State in which the statute law gave her an action for the seduction ; and not otherwise. 1 Parsons Contr. 503.

But we need not consider this question in the present case. It is very clear that, if seduction can ever be allowed to aggravate the damages, where the action is for breach of promise of marriage, it is only in those cases where the seduction follows the promise, and is effected by meaits-.pf it. We can conceive of no principle, upon which *383a seduction .before the promise of marriage, and which, therefore, could not have been a consequence of such promise, should be permitted to swell the. damages in an action on the contract. — Burks v. Shain, 2 Bibb, 343 ; Tubbs v. Vankleek, 12 Ill. 447. The court erred, in refusing to/ ° j give the first charge asked by the defendant.

[2.] The second charge given was erroneous. It affirms, in effect, that if there was a promise to many, and breach of that promise by the defendant, the jury must find for the plaintiff, without regard to any testimony which had been introduced tending to justify the breach.

As the judgment must be reversed for the errors already pointe-iiout, we need no.t go into a particular examination of the other questions presented by the record. It will be sufficient for the future conduct of the cause, if we lay down some general principles which govern actions of this sort.

[3.].. It is essential to the. validity of -a contract to marry, that the promises should be reciprocal. But, if a man makes an express offer or promise of marriage to a woman, the acceptance thereof by the latter, and the promise made by her in return,.may.,.so far as it is necessary to be proved, in order- to enable her to sustain an action against the man for a breach of his engagement, be established through the medium.of her conduct and -actions at the time, as well as by express words..- If a man offers to marry a womau, provided she will come from America to England, or any distant part, and marry him r-.and the .woman forthwith undertakes the journey, and is ready and-willing to marry at the place appointed, this is evidence of the acceptance of the offer, and of a reciprocal promise on her part, which will enable her to maintain an action for--a breach of promise of marriage. — Addison Contr. 677; Hutton v. Mansell, 6 Mod. 172; Daniel v. Bowles, 2 C. & P. 553; Wetmore v. Wells, 1 Ohio, 26; Wightman v. Coates, 15 Mass. 1.

[4.] The general rule, as to what will justify the breach of. a promise of marriage, cannot be better stated than in the words of Abbott, C. J., in Irving v. Greenwood, 1 C. & *384P. 350. “ If any man has been paying his addresses to lone that he supposes to be a modest person, and afterwards ¿discovers her to be a loose and immodest woman, he is jus.'tified in breaking any promise of marriage he may have made to her; but, to entitle a defendant to a verdict on that ground, the j ury must be satisfied that the plaintiff was a loose and immodest woman, and that the defendant broke his promise on that account; and they must also be satisfied that .the defendant did not know her character at the time of the promise; for, if a man knowingly promise to marry such a person, he is bound to do so.” See, also, Capeheart v. Carradine, 4 Strob. 42, 46; Leeds v. Cook, 4 Esp. 256 ; Palmer v. Andrews, 7 Wend. 144; Boynton v. Kellogg, 3 Mass. 188; Beach v. Merrick, 1 Carr. & K. 463.

.[5.] It-is to be inferred from what is said in Beach v. Merrick, 1 Carr & K., (supra,) that although a previous act of fornication by the plaintiff, which was known to the defendant when he made the .promise, will be no defense to the action, still it will go to lessen the damages. — See 1 Parsons Contr. 550, note (d). But this proposition is denied in Butler v. Eschleman (18 Ill. 44), which decides, that facts of conduct or character of the plaintiff, known to the defendant at the time of the promise, can neither be set up in bar of the action, nor in mitigation of damages.

However the .general rule may be on this subject, we are satisfied, that if the criminal misconduct of the plaintiff was not only known to the defendant when he made the promise, but had been encouraged and participated in by him, he will not be heard to urge such misconduct in mitigation of the damages. Accordingly, if the plaintiff committed fornication with the defendant, before the making of the promise, that fact cannot be set up in mitigation of the damages ; for that would be to permit a man to take advantage of his own fault. — See Butler v. Eschleman, supra Boynton v. Kellogg, 3 Mass. 189.

Judgment reversed, and cause remanded.