| Ill. | Apr 15, 1863
delivered the opinion of the Court:
In all the counts of the declaration, the terms of the promise of marriage, when it was to be fulfilled and when the tender of marriage was made, and the refusal, are laid under a videlicit, and hence, the dates need not be proved as laid. Many mutual promises are expressly proved by the testimony of Heartt, who was present on several occasions when the whole subject was talked over between them, and the testimony leaves no doubt that the original engagement had been made some time before. The letters written by the defendant to the plaintiff are of a character to strongly indicate the existence of a mutual engagement between the parties, and hence, are corroborative of the testimony of Heartt. It is evident that no day for the marriage was ever fixed, but it was the expectation and intention of the parties that it should be consummated the following spring, after the defendant should return from the north, at which time he expected to have his house finished. This evidence would, then, sustain a verdict on either count of the declaration, hut is more especially applicable to the count to marry in a reasonable time. A question is made, however, as to plaintiff’s right to recover on the count on a promise to marry on request, that the evidence is insufficient to prove a request by the plaintiff and refusal by the defendant. Positive proof of such request and refusal is never required. This may he inferred from circumstances, and especially, from evidence showing a substantial refusal by the defendant. Pfor need such request be made by the plaintiff herself. It may he made by ■her father, or other friend, whose authority to do so may be inferred from the relations existing between the parties. In this case, an interview took place between the father of the plaintiff, and in her presence, and the defendant, in which her father told the defendant if he did not want Catharine (the plaintiff), he should not have Julia. Defendant said hut little. He said he liked Julia better than Catharine. From this, the jury might well infer an offer and refusal. Any female of the least sensibility would certainly consider this a sufficient refusal to marry her, to prevent her from renewing the offer, never so indirectly. In any civilized country she should have considered her offer to marry rejected, and herself discarded. Then we may well suppose that hate would begin to take the place of love. "We think the evidence sustained the declaration and warranted the verdict.
The case is overloaded with instructions, most of which were given, certainly covering all the law with which it was necessary to enlighten the jury. Eight long ones asked by the-defendant were qualified by explanatory words added by the judge, and three were refused altogether. These qualifications are all within the principles just stated, except that to the eighth instruction. There was proof showing that after she had been rejected by the defendant, the'plaintiff had used strong, if not indelicate language in reference to the defendant, and that she would not marry him now; and the court said that if these expressions were made after the defendant refused to marry her (if he did refuse), they ought not to prejudice the plaintiff’s rights, if any she had. ' In this we agree with the court below. We must have some regard for human infirmities. A discarded girl, when badgered on the subject, can hardly be expected to speak with the caution and circumspection which her lawyer would advise. While she was discarded by him, he had no right to question the sentiments she entertained towards him. After that, if he wished to place himself in a position to say that she would not fulfill her engagement with him, when he had broken his with her, he should have renewed his offer to marry her. If she had then refused to marry him, he might have said that she had not always been ready and willing to marry him; but we will not be understood as saying that even this would have defeated a right of action once complete. Of this we express no opinion now. The two first instructions refused have been fully answered by what has been already said. The third and last is based upon the principle, that unless the promise of marriage was made Iona fide on both sides, the plaintiff could not maintain an action upon it. This cannot be so. The defendant must be as much liable upon a promise made mala fide, as upon one made tona fide by him. The other principle embodied in the instruction has been already considered.
The judgment must be affirmed.
Judgment afivrmed.
Mr. Justice Walker concurred.
Mr. Justice Bbeese dissented.