
    SABINA F. KERNS, Respondent v. JOHN B. . HAGENBUCHLE, Appellant.
    
      Promise of marriage, breach of—Damages, etc.
    
    This action was brought to recover damages for an alleged breach of a promise of marriage. The answer denies the promise and sets up in defence, that the defendant is now, and was at the time when the alleged promise was ma¡ie, a married man. The jury found a verdict in favor of plaintiff and assessed her damages at $5,000.
    
      Held, that the evidence sufficiently sustains the verdict, and the fact that defendant was a married man is no defence. In .actions of this kind, if a plaintiff knows that the defendant is married at the time of the promise, the promise is void because both parties know that the defendant is incapable of fulfilling the contract, but where it appears, as in this case, that the plaintiff was not aware of defendant’s marriage, this rule does not apply. When the defendant is under a disability known to him but unknown to the plaintiff, the right of the plaintiff to maintain the action is clear. As the defendant was unable to make his promise good, the plaintiff’s right of action accrued the moment she discovered the inability. She was not bound to tender performance on her part nor to request a performance on his part. The plaintiff engaged herself to the defendant on his implied agreement that he was legally capable of contracting-marriage, in consideration of which she has remained unmarried and has not sought other suitors. There is nothing in the case to warrant the belief that the jury were misled or influenced by passion or prejudice, and nothing to indicate that the verdict is excessive.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal from a judgment rendered in favor of the plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial.
    
      N. T. M. Melliss, attorney and of counsel, for appellant, argued :—
    
      I. In actions of this kind it is now well settled in this state that the plaintiff cannot recover if she knew or had reason to believe that the defendant was married. Haviland v. Halstead, 34 N. Y., 643; Cammerer v. Muller, 14 N. Y. Supplement, 511. The evidence of Mary Glenn shows that the plaintiff knew that the defendant was a married man. This witness is a disinterested one and is nowhere contradicted except by the plaintiff. The evidence of Mary Glenn was nevertheless entirely disregarded by the" jury. The defendant’s motion for a verdict should have been granted.
    II. It was error for the judge to reject the question put to the Avitness Mary Glenn to bring out that it was generally known in the factory where she and the plaintiff worked that the defendant Avas a married man. Greenleaf on Evidence, XIV. ed., § 101, notes a and c.
    III. The judge at trial term erred in excluding the letter offered in evidence by the defendant and marked defendant’s exhibit A ” for identification, written by the nurse, Mrs. Graham, who, it is shown by the testimony, attended the plaintiff at the time of her confinement and wrote said letter at plaintiff’s request to the defendant, plaintiff being unable to write herself by reason of her condition. This letter had a direct bearing on the defendant’s good faith and affects the question of damages. Greenleaf on Evidence, XIV. ed., § 101.
    IV. A fair construction of the evidence is that the plaintiff was the defendant’s mistress for a period of about three years, a relationship entered into voluntarily by the plaintiff. That she was treated with liberality and justice by the defendant during the whole period of their intimacy, including her confinement, and that he supported her and her child until a short time before the action was begun. The damages ($5,000) awarded by the jury are therefore excessive. The amount should be reduced and, in default of the plaintiff’s acceptance, a new trial should be granted.
    
      
      E. G. Duvall, Jr., attorney, and John R. Reid of counsel, for respondent, argued :—
    I. The jury having found that defendant had promised to marry defendant, under such • promise had seduced her, and not only refused but was powerless to keep such promise—he being a married man—determined the question of damages. They were strangers to both parties and, without passion or prejudice, rendered a very moderate verdict. In this case, the damages not being capable of measurement by any precise rule, they were properly left to the discretion of the jury—and this discretion was not abused. Southard v. Rexford, 6 Cow., 254; Welbar v. Johnson, 58 Mo., 609; Laurance v. Cooke, 56 Me., 187.
    II. In addition to considerations of sentiment and affection, the jury had the right, in determining the damages sustained by plaintiff, to take in view the money value or worldly advantages of the proposed marriage. To this end they properly considered the social position and estate of the defendant. Harrison v. Swift, 13 Allen, 144; Holloway v. Griffith, 32 Iowa, 409; Reed v. Clarke, 47 Cal., 194; Chellis v. Chapman, 26 St. Reporter, 953.
    III. The jury, in estimating the damages, properly took into account plaintiff’s seduction by defendant as tending to increase the mortification and distress suffered by her. Sherman v. Rawson, 102 Mass., 395.
    IV. The wrong to plaintiff was intensified by defendant’s outrageous attempt to class her with common prostitutes—insisting that she sold her chastity to him— and was properly considered by the- jury in awarding damages. The jury were satisfied, as their finding shows, that this disgraceful charge of defendant was the creature of his wicked invention; it added to plaintiff’s injury, and, in itself, warranted a larger verdict than that given by the jury. It was a case of exemplary damages. Thorn v. Knapp, 42 N. Y., 474.
    
      Y. The contract of marriage involved protection, respect and affection. Defendant violated it by seducing defendant. This demonstrated defendant’s bad motives and his wicked heart. His conduct was cruel and fiendish, and by his unrighteous defence he sought to increase plaintiff’s disgrace and ruin her character. It was, therefore, a surprise that the jury awarded such a moderate sum in damages. The verdict not being excessive, will not be disturbed. Sargent v. Beam, 42 Mich., 346.
   By the Court.—McAdam, J.

The action was brought by the plaintiff to récover damages for a breach of promise to marry. The answer denies the promise alleged and sets up in defence that the defendant is now, and was, at the time when the alleged promise was made, a married man. The purpose of this defence was to make void any promise of marriage to the plaintiff, in case there was evidence that a promise had been made. The jury found a verdict in favor of the plaintiff and assessed her damages at $5,000, and from this judgment the present appeal was taken. The evidence sufficiently sustains the verdict, and the fact that the defendant was a married man is no defence. In actions of this kind, if a plaintiff knows that the defendant is married, the promise is void, because both parties know that the defendant is incapable of carrying out the contract. Haviland v. Halstead, 34 N. Y., 643; Cammerer v. Muller, 14 N. Y. Supplement, 511.

But where it appears, as it did in this case, that the plaintiff was not aware of the defendant’s marriage, the rule has no application. Where the defendant is under a disability known to him, but unknown to the plaintiff, the right of the plaintiff to maintain an ^action is clear.

Thus, in Harrrison v. Cage, 1 Ld. Raym., 387, it was held that a pre-engagement by the defendant is no defence. Holt, C. J. said: Pre-contract is a disability, but it will not avoid the performance of jour promise, because it proceeds from your own act.” Nor is the fact that the defendant was married at the time of the promise necessarily a defence. Wild v. Harris, 2 C. B., 999; Milward v. Littleword, 1 E. L. & E., 408; S. C., 5 Exch., 775. The consideration was said to be that the plaintiff would remain unmarried. Pollock, C. B., said that the defendant impliedly promised that there was no impediment to his performing his promise.” This doctrine was also applied in Blattmacher v. Saal, 29 Barb., 22, which correctly states the law upon the subject. This case is referred to in an article published in the 11th American Law Reg., N. S., pp. 65, 71. The rule laid down in Haviland v. Halstead, 34 N. Y., 643, has no application, for in that case the plaintiff knew at the time that the defendant had a wife living of a former marriage ; that he had been divorced from such former wife for misconduct on his part, and she knew the cause of such divorce (see opinion of the court at p. 644), and was consequently chargeable with a knowledge of the law applicable. The fact here is the reverse, for the plaintiff had no knowledge of the defendant’s incapacity to contract.

As the defendant was unable to make his promise good, the plaintiff’s right of action accrued the moment she discovered the inability. She was not bound to tender performance on her part, or to request performance on his.” In Short v. Stone, 8 Q. B., 358, it appeared that subsequent to the promise to marry the plaintiff, the defendant had married another, it was held that this dispensed with any request on the part of the plaintiff. See also, Caines v. Smith, 15 M. & W., 189; Lovelock v. Franklyn, 11 Q. B., 378, and Crist v. Armour, 34 Barb., 378, 387. The plaintiff engaged herself to the defendant, on his implied agreement that he was legally capable of contracting marriage, in consideration of which she has remained unmarried, and has not sought other suitors. She has been intentionally wronged, but whether intentionally or not, the injury to her is the same.

The next question is, whether the damages were excessive.

Southerland in his work on damages (vol. 3, page 323), says : It is proper for the jury to consider the pecuniary as well as the social standing of the defendant, as tending to show the condition in life which the plaintiff would have secured by the marriage. In these cases the jury should take into consideration the rank and position of the parties, the estate of the defendant, and all the facts proven in the case. And the amount of damages, not being capable of measurement by any precise rule, is left for decision to the discretion of the jury on the circumstances of each particular case, subject to the power of the court to set aside the verdict when it appears that the jury has been misled or influenced by passion or prejudice."

In actions for breach of promise vindictive damages are allowed, for this action, though founded on contract, is regarded as being somewhat in the nature of a tort. Johnson v. Jenkins, 24 N. Y., 252; Thorn v. Knapp, 42 Ib., 474. In Campbell v. Arbuckle, 21 St. R., 412; S. C., 4 N. Y. Supplt., 29, aff'd 123 N. Y., 662, it was held not reversible error to charge the jury that if they found for the plaintiff, she was entitled to recover such damages as the jury might award; that they were permitted to exercise their discretion in regard to the amount of damages, provided only that their conduct was not marked by prejudice, passion or corruption.

There is nothing in the case to warrant the belief that the jury were misled or influenced by passion or prejudice, and nothing to indicate that the verdict is excessive. The exceptions taken are without merit.

It follows, therefore, that the judgment and order appealed from must be affirmed with costs.

Freedman, P. J., and Gildersleeve, J., concurred.  