| Me. | Jul 1, 1868
— Assumpsit for an alleged breach of promise of marriage.
Several questions are reserved by the defendant.
1. That the verbal promise proved is void by the statute of frauds, as it was not to be performed within a year. The testimony upon this point was, that the defendant said to the plaintiff that he was not able to marry her then, but promised to marry her within four years. It is obvious that this promise might have been performed within a year; and it does not appear that the parties understood that it was not to be performed within that time. It is well settled that such a promise need not be in writing. Linscott v. McIntire, 15 Maine, 201.
2. Exception is also taken to the instruction of the Judge that evidence of the defendant’s property was admissible to show, among other things, the injury to the plaintiff’s affections, or the mortification and pain resulting from the breach. It was competent for the plaintiff to show the pecuniary ability of the defendant to afford her a comfortable support, as one of the elements of the damage she had sustained by his failure to perform his contract. The instruction simply stated an inference which the jury had a right to draw from the evidence without such instruction ; the greater the defendant’s pecuniary ability, other things being equal, the stronger would naturally be her hopes of
3. The Judge instructed the jury that, in estimating the damages, they might take into consideration any unjust imputation upon the plaintiff’s character. This instruction is claimed to be erroneous. It is, also, suggested that there is no evidence upon which to predicate it. If there is not, the defendant could not have been damaged by it, and has no legal ground of complaint on account of it; but if there is such evidence the instruction was clearly correct.
The circumstances which attend a breach of promise of marriage may be given in evidence in aggravation of damages, whether they occurred before, at the time, or after the, breach. Baldy v. Stratton, 11 Penn., 316.
Seduction, produced under color of a promise of marriage, is admissible to aggravate the damages. Paul v. Frazier, 3 Mass., 73.
Evidence, showing the circumstances of contumely and aggravation which attend the refusal of a party to perform a contract of marriage, is admissible, though it may involve a slander, whether actionable or not. Chesley v. Chesley, 10 N. H.
In the exercise of their right to draw inferences from the 'facts proved, it was competent for the jury, in the case at bar, in estimating the damages, to consider the period of time that had elapsed pending the engagement, the intimacy of the parties, the frequency of the defendant’s visits, the time, place and circumstances of making such visits, and the imputations, if any, cast upon the plaintiff’s character, under these circumstances, by the defendant’s denial, on oath, that, notwithstanding all these considerations, he never promised or intended to marry her. The jury, by their vei'dict, discredited this part of the defendant’s testimony, and, doing so, they had a right to regard it as an attempt on the part of the defendant, in the most public and solemn manner,
4. The instruction complained of, that the defendant in case of a broach of his promise was bound to put the plaintiff in as good condition as if the contract had been performed, must be taken as referring to her pecuniary condition. Her loss of pecuniary support is one of the elements of damages. Evidence of the defendant’s pecuniary ability was properly introduced to show the probable character of such support. No inquiry was instituted into his habits or temper, and no evidence introduced to show whether the marriage would prove a fortunate or unfortunate one for the plaintiff, in other respects. The jury must be presumed to have understood this instruction to be applicable to the evidence upon the subject to which it related, and not to have indulged in vague speculations not warranted by the evidence. The instruction called for the judgment of the jury upon the question of the pecuniary value to the plaintiff of a matrimonial alliance with the defendant, and the jury must have so understood it. In this view of the case, the instruction was unobjectionable.
5. The defendant further objects that the plaintiff was permitted to testify that, while at the defendant’s mother’s, the latter said to her that, when she was gone, she should leave her husband in the plaintiff’s hands, feeling he would be in good hands, and that she should give the plaintiff her property. To this the plaintiff made no reply.
If the defendant is liable, it is in virtue of his own personal promise, which is to be proved by his acts and declarations and conduct toward the plaintiff. His parents could not bind him by any declarations they might make, or opinions they might express in his absence, and without his knowledge. They might wish to promote an alliance repugnant to his wishes and intentions. Their naked declarations, touching the relation between him and the plaintiff, made in his absence, make no part of the res gestee, and are not admissible to prove a promise by him.
Nor is this difficulty removed on the ground that the testimony is admissible to prove a promise by the plaintiff. She is a competent witness, and could testify to such prom- ' ise, if any was made by her, or to her demeanor toward him as a suitor. It is not competent for her to testify to the declarations of other competent witnesses, in order to lay the foundation for corroborating her testimony, by leaving the jury to infer a promise on her part from her silence when such declarations were made. In the cases cited by the plaintiff’s council, the promise of the woman was inferred from her presence when the offer was made, and the consent of her parents asked, without her making any objection,. her subsequent reception of the suitor’s visits, or her demeanor toward him, in his presence, as one betrothed. After a somewhat extended examination of the authorities, we have, not been able to find any case which authorizes the admission of the testimony complained of.
The exceptions upon this point must, therefore, be sustained ; and, as there must be another trial of the case, it is unnecessary to consider the motion to set aside the verdict, as against the weight of evidence, or for excessive damages.
Exceptions sustained, and a new trial granted.
See Russell v. Cowles, 15 Gray, 582, published since this opinion was announced. —Rep.