
    Libbie E. Button, App’lt, v. Charles E. Hibbard, Resp’t.
    
      {Supreme Court, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    Breach of promise—Proof.
    A promise of marriage may be inferred from the conduct of the parties.
    Appeal from a judgment dismissing the complaint.
    
      Huston & Herrick, for app’lt; Barnum Bros., for resp’t.
   Mayham, P. J.

The first count of the plaintiff’s complaint alleged in substance that she was an unmarried female, and that the plaintiff and defendant, about the 24th day of June, 1891, made and entered into a mutual promise of marriage. The second count' alleged that the plaintiff, relying upon such contract, had remained single and unmarried, and was at all times ready and willing to perform the contract on her part. The third count alleged the breach of the contract on the part of the defendant by his marrying another woman on or about the 30th day of November, 1892. The fourth count alleged that, relying upon the defendant’s repeated promises of marriage, she yielded to, and was seduced by, the defendant, whereby she became pregnant, and sick with child, to which she gave birth on the 18th day of June, 1892, and for all of which she claimed damages. The answer, in substance, denies all the allegations of the complaint, except that of his marriage. The evidence upon the trial tends to show that for a considerable period of time the defendant paid marked attentions to the plaintiff, escorted her to church and prayer meetings, and on various occasions kissed and caressed her, and frequently told her that he hoped she would think enough of him to marry him, proposed to purchase for her her wedding dress, and received from her samples of dress/ goods, such as she thought suitable for a wedding garment, and carried it with him to town, with the avowed purpose of purchasing goods for her wedding dress, and, by his conduct towards her and conversations with her, evidenced ■emotions of affection and regard from which a jury might, within the rules of law governing this class of contracts, have found a mutual agreement of marriage. These acts of attention .and evidences of affection and regard occurred at the defendants, while while she was at work for him, and also at the house of the plaintiff’s, and also, quite often, when the defendant took her riding. It also appeared that the defendant had given plaintiff presents, and told her that when they were married they would go to Niagara.

On the cross-examination of the plaintiff, she testified that at the time of her seduction the plaintiff proposed illicit intercourse with her, and she objected. He told her it was all right. She replied that he might change his mind; he said he would not,— that he would marry her, if she would be seduced by him. Upon this testimony the learned trial judge, at the conclusion of the plaintiff’s evidence, dismissed the complaint, on the ground that the immoral consideration shown by this evidence would not support the promise. It is doubtless true that a promise of marriage, based wholly upon the consideration of illicit and adulterous intercourse, is void on account of the immorality of the consideration. Steinfeld v. Levy, 16 Abb. Pr. (N. S.) 26; Lewis v. Goetschius, 20 N. Y. Wkly. Dig. 140. But we think the learned judge fell into error in assuming that that transaction was the only evidence in the case from which a promise of marriage could have been legally found by the jury. The law is well settled that a contract of marriage may be found by a jury from the familiar and affectionate intercourse which may exist between marriageable persons of opposite sex. Constant and devoted attention to each other; fondness for each other’s society ; endearing epithets; caresses ; rides and walks with each other; presents; familiar talk upon the subject of intermarriage ; plans for enjoyment or of future life after marriage ; exchanges of presents; and an innumerable variety of acts and conduct towards each other,—evince an attachment and regard from which a jury are at liberty to presume a contract of marriage. In Homan v. Earle, 53 N. Y. 267, Church, C. J., in delivering the opinion of the court, while discussing the correctness of the charge of a trial judge to a jury in this class of cases, , says: “As matter of law, the learned judge was clearly right in holding that no form of language is necesssary to constitute contract of marriage. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state."

And at page 274 of the cáse the learned judge adds: “ What the parties intended by these acts and declarations—what is the correct translation of them—is for the jury, and not the court. It is a question of fact, and not of law.

This language of the learned judge is but a reiteration of a rule long settled in this class of cases. In the case at bar it was for the jury to interpret and construe the facts detailed by the evidence, and from that determine, outside of the immoral act upon which the learned judge dismissed the complaint, that the minds of the parties had met upon a mutual contract of marriage, as evidenced by their conduct and declarations. And it was, we think, error for the judge to take that question from them. The judgment must be reversed, and a new trial ordered costs to abide the event.

All concur.  