| La. | Apr 15, 1850
Lead Opinion
The judgment of the court was pronounced by
The plaintiff claims from the defendant $20,000 damages for a breach of promise of marriage. The defendant admits that he corresponded with the plaintiff upon- the subject of marriage, but that he desisted, and had a right to desist from his addresses, before any reciprocal engagement was made, because he found her character to be such as to render her unfit to become his wife and the step-mother of his children; that by unchaste and unladylike conduct she had fallen into disrepute.
The jury found a verdict for $1000 in favor of the plaintiff. An unsuccessful motion was made for a new trial, and the defendant has appealed.
Our attention will first be directed to the question, whether such an action can be maintained under our laws and jurisprudence. In its consideration it is not improper to notice bi-iefly the history of the law on this subject.
The usage of sponsatia or promises of marriage among the Romans was of very ancient origin. It was observed among the people of Latium. It is spoken of in the Theodosian Code, in Justinian’s, in the decree of Gratian, &c. See Merlin Repertoire, verbo Fiangailles. Pothier’s Pandects, book 23, title 1. If the promise was not fulfilled, an action was permitted. Judex quam ob rem data acceptare non esset uxor qucerebat. Si nihil justa3 causte videbatur litem pecunia sestimabat; quanti que interfuerat earn uxorem accipi aut dari, eum qui spoponduat aut qui stipulatus erat condemnabat. Ib. art. 1, See also Mackeldy, Droit Romain, 263. In his Treatise on Marriage, Pothier says that the usage of Fiancailles existed among the Greeks, and, as it would seem, among the Ancient Hebrews. Under the Spanish law we find that the ecclesiastical tribunals would take cognisance of a breach of promise, and punish the party until he consented to fulfil the promise. Partida 4, tit. 1, law vii. Ca los que prometen que casaran uno con otro, tenudos son de lo cumplir ; fueras ende si alguno dellos pusiessó ante si escusacion alguna derecha, a tal que decriesse valer. E si tat escusa non ouiesse, puedenlo apremiar per sentencia, di Santa Eglesia, fasta que lo campla.
In France, a reciproca] promise of marriage is considered as producing a reciprocal obligation to contract a marriage. But if one of the two fiances refuses to accomplish the promise, neither the ecclesiastical nor lay tribunals can constrain a specific performance. The obligation resolves itself into damages, upon which a civil tribunal can alone decide. And these damages are assessed with
The district judge was of opinion that a promise of marriage ought not to be placed beyond the pale of legal obligations. Although he could discover no warrant for the action in express legislation, he found it in the 21st article of the code, which declares that in civil matters Where there is no express law, the judge is bound to proceed, and decide according to equity, on the broad principle of justice embodied in the art. 2294, and in the example of other civilised nations. "We are not prepared to say that we should not have concurred with the decision of the district judge, even if there were no other reasons for maintaining it than those which he gave. But our legislation has not left this matter in doubt. The article 1928 C. C. speaks expressly of a promise of marriage. It is there treated as a contract, and a measure of damages for its breach is given.
We also concur with the district judge in the opinion that it is not necessary, for the validity of such a promise, that it should be in writing. The code prescribes that every matrimonial agreement must be made by an act before a notary and two witnesses, and that the practice of marriage agreement under private signature is abrogated. Art. 2308. We consider this as applying not to promises of marriage, but to what is called, in common parlance, a marriage contract: a contract by which the future husband and wife regulate their conjugal association in relation to property. This is obvious from the first article of the chapter in which the provision just cited is found. The promise of marriage is left, we conceive, as to the matter of form and proof, upon the footing of an ordinary agreement. Such was the case in the Roman law. Sufficit modus consensu ad constituenda sponsatia. Hinc in sponsalibus nihil interest atrum testatio interponatur, an aliquis sine scriptura spondeat. Pothier, Pandects, lib. xxiii, tit. 1, de Sponsalibus. Mackelday, Droit Remain, 302. In France, says Merlin, promises of marriage differ from marriage in this: that they may be made in the form common to all synallagmatic contracts; while the marriage can only be contracted in the presence of the proper public officers. Verbo Fiancailles, § vii. It seems that in some part of France there was formerly a statute requiring such promises to be in writing. We know of no provision of our law controlling the forms of such an agreement.
As regards the proof of the agreement, the jury was satisfied that it was made; and we think the evidence justified them in that conclusion. The repeated offers of marriage made by the defendant are conclusively shown by several letters addresed by him to the plaintiff. It is true, that an agreement to many, like any other, requires for its existence the mutual consent of the parties. There must be a promise by the one and an acceptance of that promise by the other. But it is not indispensable that the proof of acceptance should be direct. The jury had a right to infer the plaintiff’s acceptance from circum
There is no doubt that if the defendant had proved the matters set up in his answer it would have legally excused his breach of promise. What was said by a great lawgiver of ancient times is equally true in our day. In the language of Solon, “marriage shoujd be regarded as an honorable fellowship and society in order to raise subjects to the State; to make the married pair live agreeably and harmoniously together, and to give continual testimony of mutual love and tenderness to each other.” Such results could not be expected from a marriage with a woman of unchaste character; and on no principle of public policy or justice, could a man be held to a promise made to such a person. We would even go further and say, that a man who had promised marriage, should be excused from his promise if he could show that the general reputation of the other party was bad, even without proving that such general reputation was well founded ; especially if he made the promise in ignorance of that reputation.
Butin the present case the defence is not made out to that extent. Although a few persons appear to have thought unfavorably of the plaintiff, there is a great deal of testimony the other way. There was also testimony going to weaken the effect of what was said by some of the defendant’s witnesses; and it is particularly to be observed that the defendant was aware of the disparaging rumors which had been circulated about the plaintiff, and declared them unfounded. In a letter pressing his suit, he expresses a fear that she might be influenced by • rumours circulated about himself, and urges her not to regard them. “ I hope you will not listen to such advisers; you know that you have been slandered, and it only served to strengthen my affection for you. You know how to sympathise with me.”
We consider the plaintiff’s character as distinctly put at issue before the jury, and great diligence appears to have been used by the defendant to collect evidence. The testimony in this cause is extremely voluminous; it has received our careful perusal; and we do not feel authorised, after considering it minutely, to disturb the verdict, which vindicates the plaintiff’s reputation.
It is proper to observe that there were numerous exceptions to the admission of evidence, and also to the charge of the judge. Some of the former were well taken ; and there are portions of the charge which are not .free from objection. But if we were to strike from the record all the evidence unduly received, there would be still enough to sustain the verdict; and we do not think there is any reasonable ground to suppose -that the cause, if remanded, would terminate more fiivorably to the defendant.
Under the evidence, we are not prepared to say that the amount allowed by the jury is excessive.
In conclusion, we may take occasion to observe, that this is the first time we or our predecessors have been called .upon to consider an action of this kind. It is a fact creditable to our people; and we hope that such actions may not become frequent. While we are bound, under our jurisprudence and code, to recognise the right of action, we are constrained to say that a female of refined sensibility could scarcely bring herself to such a suit; and that the appeals which are usually made to juries in such cases, on the score of the wounded affections of the woman, can have little foundation in truth. Such suits are notunfrequently the mere instruments of extortion; courts and juries should, therefore, cautiously restrict relief to cases of real injustice.
Judgment affirmed, with costs.
Dissenting Opinion
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.