
    Mary Roe, Resp’t, v. John Doe, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    1. Breach op promise—Contract must be proved.
    Where plaintiff sues tor breach of contract of marriage, she must prove the contract by a preponderance of evidence, and although seduction is charged, the jury cannot be allowed by their verdict to punish defendant where no such contract is legally shown.
    2. Same.
    Where the acts towards and letters of plaintiff to defendant were of a character likely to result from an improper intimacy only, and where the letters, especially, were of a nature inconsistent with an engagement and nowhere contained any allusion to marriage, a verdict for plaintiff must be held as against evidence.
    Appeal from a judgment in favor of plaintiff entered upon a verdict for $3,000, and from an order denying a motion for a new trial on the minutes.
    The action was for damages for an alleged breach of contract of marriage.
    
      T. F. Bush, for app’lt; T. A. Bead, for resp’t.
   Learned, P. J.

No error of law was committed by the learned justice on the trial of this case. Mo exception was taken to the charge, and hardly an exception to the rulings.

But the verdict of the jury is contrary to evidence and must be set aside.

The action is for breach of contract of marriage. At the time of the alleged contract the plaintiff was a girl of nineteen, the defendant a few years older. There had been illicit connection between the parties for a considerable time; and the important question is whether there ever had been any contract of marriage. It is a case where the sympathy of the jury is likely to be excited, and where they may easily feel disposed to make the defendant pay for the illicit connection without carefully weighing the proof as to the existence of a contract It is quite natural that a jury may think it right that the defendant shquld cqmpensate the plaintiff for having yielded to. him, even though neither party contemplated marriage. But no right to recover can exist without proof of the alleged contract. And, as in all cases, it rests with the plaintiff to establish that contract by a preponderance of evidence.

The plaintiff testifies to a private conversation between plaintiff and defendant on Sunday night in March, 1888, in the bedroom in her house in which he asked her to marry him. She promised an answer on Wednesday, and then did give an affirmative answer. She testifies to other similar promises on his part.

All of this the defendant denies.

The parties are equally interested pecuniarily. The plaintiff more interested so far as reputation goes.

From April to December, 1888, the parties had illicit intercourse. During a part, at least, of that time the defendant visited frequently at plaintiff’s house; he occasionally went with her to entertainments as he had done previously; she rode with him; he gave her a few trifling presents. His visits became less frequent after August, 1888. The plaintiff claims that these evidences of defendant’s fondness for her corroborate her story.

Undoubtedly where the intercourse between a young man and a young woman is pure and moral, such facts as are above stated are evidence tending to show that there exists between them an intention of marrying. These indications of pleasure in the company of each other and of affection for each other are often the prelude to marriage and therefore give some evidence of the expectation of the parties that that will be the result.

But the force of such circumstances is greatly weakened when the parties are all the time indulging in illicit sexual intercourse. Such indulgence accounts for the frequent visits, and for the excursions and the going together to places of entertainment, and is abundant reason for presents far more valuable than were proved in this case.

There is testimony that a cousin of defendant and the defendant used to come together to visit at plaintiff’s house; that when this cousin and defendant were there in March, 1888, they began to divide company; ” that the boys would stay there all night; ” that plaintiff and defendant would spend the night in a room by themselves. “ The boys would stay there till our folks got up in the morning.” They would stay with us all night as often as twice a week.” Testimony like this taken in connection with the undisputed sexual intercourse of plaintiff and defendant greatly weakens the force of the alleged corroborating facts.

But there are still other matters to be considered. From October, 1888, to May, 1889, the plaintiff wrote defendant some dozen letters which are given in evidence. Five of these are long. There is a good deal of brightness in these letters, showing that the writer is not stupid or ignorant. From the letter of October, it appears that plaintiff had been, or thought she had been, pregnant; that she “read the doctor’s book, got the stuff, and took it, and saved you (defendant) from worrying or thinking anything about it.” She urges defendant to come and see her, and says: “Are you afraid I have got any disease; is that the reason you wont come.” “I ain’t been with anybody but you, and you know it.”

The plaintiff testifies that she thinks she became pregnant December 6, 1888. Thi's was the second time. On the 14th of that month she wrote a long letter to defendant urging him to come and see her, and stating that he said she had a disease, and denying this. Another letter in the same month is similar in character, telling him also in substance that she fears she is pregnant, but, if so, she will get something, and not bring him out. Letters of January and of February are to the same effect, indicating the progress of pregnancy, and the plaintiff’s desire to be relieved from it, and asking defendant to come and see her. In the letter she says: “I ain’t had no racket since I was with you. I got that way awful easy, but we both lay there almost asleep.” “I ain’t doing this to keep you from going with anybody else.” It is not difficult to understand the meaning of these sentences. It is incredible that she would have written thus to a man whom she was engaged to marry. A letter of March urges defendant to come, and says .she “ will get out of the trouble without bringing you out if I can.” A letter of April says: “I have g;ot to do something, or have the kid in August I never asked you to marry me, or won’t. * * You made me think you did (care for me) until you got me in trouble, and now you don’t care.” Another extract from, a May letter is: “You write and tell me what I had better do. You know what is up with me, and I went to Middletown and was examined. I am in trouble, 'and the doctor won’t operate till you say so.”

From one end to the other of these letters there is not a word and not a hint that the defendant had ever pi’omised to marry the plaintiff.

It is incredible that a girl knowing that she was pregnant," and claiming that the defendant was- the cause, asking his assistance and advice, should never have hinted at his promise of marriage if such promise had been made. All these letters are such as would be written by a girl to one who had caused her pregnancy undSr no promise whatever. If there had been any contract of marriage she would unquestionably have mentioned it. She would have based upon it the most urgent appeal that he should now fulfill the promise under which she had submitted to him. Instead of that she refers to defendant’s intimacy with other girls, saying in one letter that he had stayed with one girl three times through the week, and that “you must use her better than you have me.” That is not the language of a girl to an affianced lover. She does not pretend to any claim as a right to defendant’s society and attention. Only she asks him to continue his visits, since she had permitted him such favors.

We cannot read these letters, from which we have given but a few extracts, without seeing clearly in them a complete refutation under the plaintiff’s own hand of the claim set up in this action. The rest of the letters are of the same character with these extracts, so far as they show the nature of the intercourse between the parties.

We have nothing to say in justification of what the defendant has done. How great the wrong was to the plaintiff we do not know. Whether she was virtuous up to the time of her acquaintance with him it is not for us to determine.

In the case of such illicit connection, the shame and mortification always fall on the woman, and the man goes free, unless there was a promise of marriage. And the only question before us is whether the jury were justified in finding such promise.

For the reasons which are above outlined we are satisfied that the evidence did not support the verdict; and that the verdict was contrary to the weight of evidence.

The judgment and order must be reversed and a new trial granted upon the payment by the defendant to the plaintiff of the costs and disbursements of the trial and of the costs and disbursements of the appeal.

Landon, J., concurs; Mayham, J., not sitting.  