
    Hess, Respondent, vs. Zimmer, Appellant.
    
      January 11
    
    January 28, 1913.
    
    
      Breach of promise of marriage: Evidence: Instructions to jury: Special verdict: Form: Damages: Seduction.
    
    1. In an action for breach of promise of marriage, findings by the jury to the effect that defendant wilfully refused to marry the plaintiff and that he intended, to evade his promises to her, are held to be sustained by the evidence.
    2. An instruction to the jury in such case to the effect that defendant could not escape the consequences of bis refusal to marry, resulting in a breach of the contract, by a final half-hearted offer to consummate it, if it appeared that his bad faith and deceit had barred the possibility of a happy result of the marriage, is held, though somewhat obscuring the idea sought to be expressed, not to be erroneous nor- to have misled the jury.
    8. Refusal to submit a proposed question in a special verdict is not error where the questions which are submitted fully cover the issues.
    4. In an action for breach of promise of marriage, where it appeared that the defendant owned property of the value of $12,000 and that he had seduced the plaintiff through his promises of marriage, an award of $2,000 as damages was not excessive.
    Appeal from a judgment of the municipal court of .Outa-gamie county: Thomas H. RyaN, Judge.
    
      Affirmed.
    
    Plaintiff seeks to recover damages for the breach of a contract to marry her. The defendant is a divorced man. He lived with three of his four children on his farm in the town of Orand Chute. The other child lived with his divorced wife. Defendant at the time of trial, October, 1911, was about forty-five years of age. On May 18, 1908, the plaintiff, then about twenty-seven years of age, entered the employ of the defendant as housekeeper on his farm. She was a divorced woman and had one child dependent upon her. She remained in defendant’s employ until June 15, 1911. The evidence tends to show that she was a good housekeeper and that she satisfactorily performed her duties under the contract of employment.
    The evidence tends to show that in September, 1908, the defendant proposed marriage to the plaintiff and that she agreed to marry him after the expiration of one year from the time when the divorce from her husband had been granted to her. The marriage was postponed by the parties, but on December 29, 1910, February 15, 1911, was agreed upon as the date for the marriage. The plaintiff testified that the defendant seduced her under promise of marriage and at different times prior to June, 1911, he had sexual intercourse with her upon further promises that he would marry herj that the defendant set the time for the marriage for the spring and the fall of each year, without specifying a date; and that each spring or fall he failed to carry out such promises, alleging that he could not leave his work, that he was pressed to pay the alimony to his divorced wife, or that he could not take the time to go to Menominee, Michigan, where he desired the marriage to take place, because he did not wish to be married at Appleton, Wisconsin.
    It appears that the defendant’s divorced wife had written to one of her children suggesting that she would like to come back at Christmas in 1910. In January, 1911, this letter and another letter to the same effect were seen by the plaintiff. The plaintiff was unwilling to have defendant’s divorced wife come to defendant’s house and the defendant was willing to have her come for a visit. The marriage between the plaintiff and the defendant did not occur on February 15,. 1911. The plaintiff testified that the defendant postponed it, alleging that the weather was too stormy. The defendant testified that the marriage was not celebrated at that time because the plaintiff was not prepared. No specific date was thereafter agreed upon for the marriage. Plaintiff testified! that she was ready arid willing to consummate the marriage, but that the defendant refused. The defendant testified that he was ready and willing to marry the plaintiff up to the time of the trial. The plaintiff testified that the defendant insisted as a condition for marriage that she should .release any interest she might acquire in defendant’s property by reason of the marriage. The defendant testified that the plaintiff insisted upon an ante-nuptial contract under which she was to receive $15 per month from him.
    The plaintiff left the defendant’s house on June 15, 1911, and shortly thereafter the defendant’s divorced wife returned thereto.
    The jury returned the following verdict:
    “(1) Did the defendant offer or promise to marry the plaintiff and did plaintiff accept his offer ? A. (by the court). Yes.
    “(2) Did the plaintiff hold herself ready and willing to marry the defendant on the date agreed upon and from the date such promise was made until the 15th of June, 1911 ? A. Yes.
    “(3) Did the defendant, subsequent to their engagement to marry, refuse to marry the plaintiff unless she would sign off all of a wife’s rights to his property ? A. Yes.
    “(4) If you answer question numbered 2 ‘Yes,’ then answer this question: Was the plaintiff justified in believing that inasmuch as the defendant did not marry her between the malting of such promise and June 15, 1911, that he did not intend to marry her at all % A. Yes.
    “(5) Did the defendant, by reason of such promise to marry, debauch the plaintiff ? A. Yes.
    “(6) If you answer either question numbered 3 or 4' Wes,’ then answer this question: What sum will compensate the plaintiff for her injuries ? A. $2,000.”
    This is an appeal from the judgment'on the verdict awarding the plaintiff a recovery of the damages found by the jury.
    
      For the appellant there was a brief by Francis J. Rooney, attorney, and Frcmcis W. Grogan, of counsel, and oral argument by Mr. Rooney.
    
    
      M. 8. Gatlin and F. M. Wilcox, for the respondent.
   SiebecKee, J.

The appellant contends that the evidence shows without dispute that he was ready and willing to comply with the contract to marry respondent. The evidence adduced does not sustain this claim. The good faith of the appellant’s verbal professions of his readiness to carry out the contract, when he was informed by the respondent that she would not longer submit to his delays in the matter and when she left his house, was abundantly negatived by his conduct tending to show that he had throughout the whole period of the existence of his promises made unfounded excuses and raised pretended barriers to avoid its consummation. The facts and1 circumstances adduced in evidence permit of the inference that the appellant wilfully refused to become united in marriage with the plaintiff and that he intended to evade his promises to her. The jury’s findings to this effect are abundantly supported by the evidence, and this court cannot disturb them.

The court instructed the jury to the effect that the defendant could not escape the consequences of his refusal to marry, resulting in a breach of the contract, by a final half-hearted offer to consummate it, if it appeared that his bad faith and deceit had barred the possibility of a happy result of the marriage. It is contended that this instruction confused and misled the jury and that they were thereby led to understand that they would be justified in finding'that the defendant was guilty of a breach of the contract if they should find that his conduct was incompatible with any happy results if the marriage were in fact consummated. We cannot ascribe-such a result to this instruction. While the language used obscures somewhat the idea sought to be expressed, -it does not embody an erroneous direction to the jury, and we must presume that the jury understood’it correctly. When applied to the issues embraced in the question of the special verdict, there is nothing in the record to indicate that the jury were in any way misled by this instruction.

The appellant requested the court to submit to the jury the question: “Was the defendant at all times, from the time of promise to marry the plaintiff up to the time of the commencement of this action, willing to marry the plaintiff?” The verdict embraced this issue, as appears by questions numbered 3 and 4, and hence the refusal of the court to submit this question could in no way prejudice the appellant.

It is contended that the damages are excessive. The jury were justified to conclude that the defendant owned property of the value, of $12,000 and that he had seduced the plaintiff through his promises- of marriage. The record does not present such a case that this court can say that the amount found by the jury was excessive. Olson v. Solveson, 71 Wis. 663, 38 N. W. 329; Salchert v. Reinig, 135 Wis. 194, 115 N. W. 132.

By the Oowrt. — The judgment appealed from is affirmed.  