Palmer v. Andrews, 7 Wend. 142

Palmer v. Andrews

7 Wend. 142 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The judge misdirected the jury in instructing them that the plaintiff was entitled to recover exemplary damages or nothing; that is, if the defendant was not entirely discharged from his promise of marriage by the reprehensible conduct of the plaintiff, he could not claim a mitigation of damages on the ground of such conduct. The rule in such case is clearly, and, as I apprehend, correctly stated, in Boynton v. Kellogg, 3 Mass. R. 189: The judge who tried the cause ruled, 1st. That if the plaintiff was of bad character at the time of the promise of marriage, and that was unknown to the defendant, the verdict ought to be in his favor ; 2d. If the plaintiff after the promise, had prostituted her person to any other person but the defendant, she clearly discharged the defendant; 3d. That if her conduct was improperly indelicate, although not criminal, before the promise, and it was unknown to the defendant, it ought to be considered in *144mitigation of damages; 4th. That if such was her conduct after the promise, it was also proper for the consideration of the jury, in mitigation of damages. Now, although in this case the jury may not have believed that the plaintiff had criminal connexion with the witness Peck, either before or after the promise, and therefore were unwilling to find á verdict for the defendant ; still, if they hád not been controlled by the positive instructions of the judge, they would undoubtedly have taken into consideration her grossly indecent conduct with the witness, in mitigation of damages. If the jury believed the witness, who testified that he had frequently been in bed with the plaintiff, I think the verdict should have been for the defendaht. Although he did not state in terms that he had criminal intercourse with the plaintiff, yet such was the fair conclusion from his testimony. The jury may have been unwilling, upon this testimony, considering the youth of the plaintiff, between 17 and 18 years of age, to give a verdict for the defendant ; but they certainly ought to have taken her conduct into consideration, in mitigation of the damages. This they were directed not to do by the judge. That this evidence was admissible in mitigation, was expressly decided in Willard v. Hone, 7 Cowen, 22 ; and there the improper conduct proved, was after the defendant’s breach of promise, and after all intercourse between the parties had ceased.

The promise was sufficiently proved. A new trial must be granted, for the misdirection of the judge, the costs to abide the event.