
    ANNA B. CRANDALL, Respondent, v. WILLIAM G. G. QUIN, Appellant.
    
      Decided February 2, 1885.
    
      Breach of promise to marry.—Evidence, when incompetent.—Acts, conduct and declarations of defendant as affecting damages.
    
    The defendant, in an action for breach of promise to marry, had married a lady other than the plaintiff, and when he was on the stand as a witness, he was asked, ‘‘And your wife had how large a fortune ?”—Held, that the question was improperly allowed. It did not fall within the rules which allow facts not relevant in themselves to be received in evidence, and was not competent evidence as to defendant’s financial condition.
    Tt is competent to prove, on behalf of defendant, his acts and conduct, and even declarations, after the breach and down to and on the trial, in mitigation of damages, where, under the facts of the particular case, they would have a tendency to limit the damages.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendant, from judgment entered on verdict of jury.
    
      The action was for damages from the breach of a promise to marry.
    The facts are sufficiently stated in the opinion.
    
      Thomas Brennan, attorney and of counsel for appellant,
    on the points decided, argued:—I. It was error to overrule the defendant’s objection and to admit the testimony in relation to the “fortune or income” of defendant’s wife, (a,) The action was not to recover property, but damages for a breach of promise, and whether defendant was rich or poor could make no difference ; as if plaintiff proved a cause of action she would be entitled to recover, regardless of whether defendant was a man of means or not. It would be error to admit the testimony in an ordinary action for the breach of a contract, and it was error to admit it in this action (Dain v. Wyckoff, 3 Sel. 193 ; Kniffen v. McConnell, 30 N. Y. 285). (b.) In any aspect in which the evidence may be looked at it was objectionable. The property of the defendant’s wife was not an issue in the case. The testimony admitted had a tendency to and did prejudice the jury against the defendant in favor of giving larger damages than they otherwise would have given, and the objection to its admission should have been sustained.
    II. The third request to charge the jury should have been charged. The defendant had the legal right to have all his actions and conduct, up to the time of and including his defense and trial, submitted to the jury in mitigation of damages, and the court erred in refusing to charge the request, as well as in the qualified charge as made. The court’s qualified charge confined the jury to a time before the breach, and took away from them the consideration of any subject, act or conduct of the defendant at the time of or since the breach. This clearly was error (Thorn v. Knapp, 42 N. Y. 481; Johnson v. Jenkins, 24 Ib. 254).
    
      James M. Smith, attorney and of counsel for respondent,
    on the points decided, argued :—The question as to his wife’s fortune put to defendant on his cross-examination was proper in various aspects. The plaintiff had a right to show all the facts and circumstances that would entitle her to large damages, whether compensatory or vindictive; that his motive for deserting her was untruthfully stated; that he was actuated by sordid motives; and that it was a base action on his part.
    The third request the court charged as requested, with the obvious and proper qualification made by the court.
   By the Court.

Sedgwick, Ch. J.

The defendant, after his promise to marry the plaintiff, married another lady. When he was upon the stand as a witness, plaintiff’s counsel asked him. “And your wife had how large a fortune ? ” Against objection, the question was allowed upon two grounds ; first, as showing or tending to show a motive for the defendant’s breach of promise, and second, as tending to show the social and financial condition of the contracting parties. The fact asked for, evidently, was not circumstantial evidence as to the occurrence of the breach, or as to the social condition of the parties, apart from its tending to show such pecuniary condition of defendant, as would result from his wife having a fortune.

Facts not relevant in themselves, are sometimes received in evidence, when the testimony given by opposing parties as to the existence of a material fact, is contradictory. Thus the credibility of the differing witnesses enters into the conflict, as a circumstance. Motive may be shown, as impelling the parties to do or not to do, the thing in dispute.

In this case, the fortune of the wife had nothing to do with the promise, and was not necessary to determine the character of any contradictory testimony as to the breach; for the fact of the defendant’s marriage was conclusive proof of that. As tending to show the financial condition of the defendant, apart from the consideration that his wife’s means would not increase his own property, it was inadmissible, under the case of Kniffen v. McConnell (30 N. Y. 289), which declares that evidence as to the defendant’s property “should be confined to general reputation as to the circumstances of the defendant.” There were several exceptions to the court’s refusals to charge that certain acts and declarations of the defendant which the requests assumed occurred after the breach, and were considerate or respectful to the plaintiff, might be taken by the jury in mitigation and reduction of damages, or in estimating the damages, by way of compensation. As there must be a new trial, it will not be necessary to consider these exceptions in detail. The court charged that the actions and declarations of the kind alluded to, that occurred before the breach, might be considered by the jury in assessing the damages. Practically, the limitation by thé court did not injure the defendant, for the testimony did not disclose that anything was said or done by the defendant after the breach which would have affected the plaintiff’s damages. It may for the purposes of a new trial, be well to say, that attention should be given to the opinion in Thorn v. Knapp (42 N. Y. 474), to the effect “that the jury in such cases, were entitled, when they found the contract of marriage made and broken, to take into consideration all the facts and circumstances of the case, and the conduct of both parties to each other, and particularly the conduct of the defendant in his whole intercourse with and treatment of the plaintiff, in connection with the making and breach of the contract, and afterwards up to and including the defense and trial of the action.” This was said in respect of a charge, that the defendant’s conduct up to and on the trial, might be considered in aggravation of damages. Kniffen v. McConnell, that has been already cited, had a like reference. Additional considerations have to be entertained as respects the mitigation of damages by the acts and declarations of the defendant, which do not pertain to any act or declaration given in evidence by the plaintiff to increase the damages. Whatever, of course, determines what the injury was or will be, cr tends to show what compensation should be given, or what if any, should be exemplary damages, is relevant, if it appear to .the jury, up to the time of the assessment of damages.' If, as matter of fact, any thing done by the defendant would tend to show that the damages should not be so great, as from the other facts in the case it might seem to the jury that they should bé, it should be allowed in evidence. The point would be to determine that it had such a tendency, under the facts of the particular case. This is to be applied to declarations. It is difficult to imagine, that the declarations of defendant, not part of the res gestee, are competent in his own favor, or that it would have any tendency to limit the damages. There may possibly be such a case. It is not necessary to ascertain, if it could be ascertained, that the facts on the new trial will or will not permit the declarations of the defendant after the breach, to be given in evidence, by himself, as pertinent to the matter of damages.

Judgment reversed, new trial ordered, with costs to abide the event.

Tbttax, J., concurred.  