
    Sarah S. Chellis, Resp’t, v. John B. Chapman, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    1. Breach op promise—Evidence op dependant’s wealth.
    Evidence of the defendant’s general reputation as to wealth at the time of an alleged agreement of marriage is admissible upon the trial of an action for breach of promise to marry. (Earl and Peckham, JJ.', dissent.)
    2. Same.
    The home offered, the freedom from the personal exertions for daily support,' the social position accompanying the marriage, are all facts which have their proper bearing upon the question of marriage.
    3. Same—Exemplary damages.
    It is the province of the jury to determine upon the proof of the facts and of the surrounding circumstances what damages should be awarded.
    4. Same.
    If the conduct of the defendant in violating his promise is characterized by a disregard of the plaintiff’s feelings, or reputation; if he has placed her or induced her to place herself in a false position, or to forego temporal advantages; if the breach of his promise is unjustifiable; if he spreads upon the record matters in defense of the action which are scandalous and tend to reflect discredit upon the plaintiff or to stain her reputation; then these are all circumstances which may be considered by the jury and may be availed of by them to enhance the damages.
    5. Same.
    The judge charged the jury that “ in fixing the amount of damages the plaintiff is entitled at least to such damages as would place her in as good pecuniary condition as she would have'been if the contract had been fulfilled.” Hold, that though it was a careless use of language, it could not have prejudiced defendant’s case.
    
      Appeal from, judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered on a verdict.
    
      Watson M. Rogers, for app’lt; Hannibal Smith, for resp’t.
    
      
       Affirming 26 N. Y. State Rep., 953.
    
   Gray, J.

The plaintiff has recovered a verdict for as damages for the breach by defendant of his promise to marry her. The proofs abundantly justified the jury in finding as they did ; but the defendant insists that the trial judge erred in his rulings upon the evidence and in his charge. He does not raise any question about the fact of his agreement to marry the plaintiff, and, indeed, he could not well do so; as it was established out of his own mouth. But he thinks his case was prejudiced by the admission of certain evidence and by the way in which the trial judge submitted the question of the damages to the consideration of the jury, and that he should, therefore, have a new trial. The general term, in affirming the judgment, have passed upon various points raised by the appellant and we might well remit the case without further expression of opinion. But some of the questions still insisted upon seem to deserve further consideration from us.

Evidence of the defendant’s general reputation as to wealth, at the time of the agreement of marriage, was admitted against 'the objection to its competency upon the subject of damages in such an action. The exception to its admission presents an interesting-question and one which may be deemed not altogether free from difficulty. Such evidence, on first consideration, seems to conflict with the general rule that in actions for a breach of contract evidence as to the defendant’s wealth is inadmissible. The plaintiff, in such actions, is entitled to recover-only those damages which he may prove that he has suffered in consequence of the defendant’s failure to perform on his part. The defendant’s solvency, or insolvency, have nothing to do with the issue and furnish no measure for the computation of damages. And this rule of exclusion as to such evidence has been also applied to cases where damages are sought to be recovered for seduction, or for criminal conversation. James v. Biddington, 6 Car. & P., 589; Dain v. Wycoff 3 Seld., 191.

Baron Alderson, in James v. Biddington, an action by a husband for criminal conversation with his wife, assigned as the reason for holding such evidence to be improper that “ the plaintiff is entitled to as much damages as a jury think is a compensation for the injury he has sustained, and the amount of the defendant’s property is not a question in the case.” Judge Gardiner, in Dcdn v. Wycoff, an action by a father for the seduction of his daughter, reasoned, upon the exclusion of proof of what defendant was worth, that the jury should not be allowed “ to go beyond the issue between the parties litigating, and after indemnifying the plaintiff for the injury sustained by him, proceed as conservators of the public morals to punish the defendant in a private action for an offense against society.” The principle underlying the exclusion of this kind of evidence, in the latter class of cases, is that vindictive, or punitive damages would be improper ; as the recovery in them should be confined to what the jury may deem to be a sufficient compensation for the injury sustained by the plaintiff. But the present action in quite other in its nature, and constitutes an exception to that general rule upon the subject of damages for violation of contract obligations which has been assented to by the judges of the courts in this country and in England. It is apparent that, in such an action as this, there can be no hard and fast rule of damages, and that they must be left to the discretion of the jury. Of course, that discretion is not so absolute as to be independent of a consideration of the evidence. It is one which is to be exercised with regard to all the circumstances of the particular case and, as it has frequently been said, where the verdict has not been influenced by prejudice, passion or corruption, the verdict will not be disturbed by the court. That the amount of the suitor’s pecuniary means is a factor of some importance in the case of a demand of marriage, cannot fairly be denied. It is a circumstance which very frequently must have its particular influence upon the mind of the woman, in determining the question of consent or of refusal; and, as I think, in a proper case, very naturally and properly so. The ability of the man to support her in comfort and the station in life which marriage with him holds forth, are matters which may be weighed in connection with an agreement to marry.

In the case at bar the plaintiff was forty-seven years of age and the defendant seventy-four. Six years previously he had sought her acquaintance, unsolicited by her, and with matrimonial views on his part. He had visited her more or less frequently and had twice proposed marriage before their engagement in 1886. She was and had been supporting herself as a teacher and superintendent in city schools. He had never been married and had lived in the country as a farmer. He was possessed of pecuniary means, considerable in amount in the general estimation of his neighbors and not inconsiderable if we take his own estimate. Though pretending to some cultivation of mind, which, among other ways, if we may judge from this record, he seemed to delight in displaying by a versification of the homely though not very inspiring, or romantic, topics and events of his farm life and surroundings, he yet was seemingly lacking in those outward graces of the person which are not infrequently deemed a substitute for more solid possessions. Mor does he seem to have had recourse to the adventitious aids of the wardrobe to adorn his exterior person and thereby to compensate for personal shortcomings. I think that the jury should be made aware of all the circumstances which, in this case and in every such case, might be supposed to have presented themselves to the mind of the plaintiff when asked to ■change her position by a marriage. Of these circumstances, the .home offered, which for i'ts comforts and ease would depend upon the more or less ample pecuniary means of the defendant; the freedom from the personal exertions for daily support; the social position accompanying the marriage; all these are facts which have their proper bearing upon the question of marriage. The wealth and the reputation for wealth of a man are matters which, as this world is constituted, often aid in determining his social position, notwithstanding he may have other and more intelligible rights to it, and despite objectionable characteristics or traits. Where, therefore, the defendant has demandéd an engagement of marriage, it seems proper enough that the jury should know what possible reinforcement his suit may have had and what were the inducements offered by his social standing and surroundings.

In the case of James v. Biddington, supra, Baron Alderson, while holding it improper to give evidence óf the amount of defendant’s property in an- action for criminal conversation, said: “In a case of a breach of promise of marriage, the amount of the ■defendant’s property is very material, as showing what would have been the station of the plaintiff in society if the defendant had not broken his promise.” And see Berry v. Da Costa, L. R., 1 Com. Pleas, 331; Wood v. Hurd, 2 Bing., N. C., 166. It has been so held in this court, and in the courts of other states, to some of whose decisions the respondent’s brief has directed our attention. Kniffen v. McConnell, 30 N. Y., 285; Lawrence v. Cooke, 56 Me., 187; Bennett v. Beam, 42 Mich., 346; Allen v. Baker, 86 N. C., 91. In Mayne on Damages, Wood’s Ed., § 677, upon the strength of the English authorities I -have cited, the same rule is given. I apprehend, however,-that the difficulty in the question before us of the evidence is not so much in adducing proof as to defendant’s pecuniary means as in the mode of their proof. But assuming, as I think we are bound to do under the authorities, that the amount of defendant’s property is material in such an action, then evidence of the reputation which he enjoys for wealth is unobjectionable. Reputation is the common knowledge of the community, and if it is exaggerated or incorrect, the defendant has the opportunity to correct it, and of giving the exact facts upon the trial. The admission of the evidence is not to establish an ability to pay; but to show the social standing which defendant’s means did, or might, command. '

In Kniffen v. McConnell, 30 N. Y., at p. 289, which was an action for a breach of promise of marriage, Judge Ingraham, delivering the opinion for the court, held that “ It may be objectionable to particularize the defendant’s property, and such evidence should be confined to general reputation as to the circumstances of the -defendant. To that extent I think it admissible.”

The learned judge does not reason upon the rule, but I am not aware that this decision has ever been questioned, and I do not think it well can be.

In Kerfoot v. Marsden, 2 Foster & Finlason’s Nisi Prius Reports, 160, an action for breach of promise of marriage in 1860, Wilde, B., ruled: “You may ask in a general way as to defendant’s property, but you cannot go into particular items as to his property.” ,

I think we must conclude upon authority, as well as upon the. reason of the thing, that evidence of the reputation of the defendant as to wealth is admissible in these cases. The belief of the plaintiff must have been influenced by the opinions or beliefs of the members of the community in which the defendant resided. She could not be presumed to have personal cognizance of a matter which is so peculiarly one within the individual’s exclusive knowledge, and what credence she gave to general report was not without justification. She had some right to rely upon it.

The action is intended as an indemnity for the temporal loss which the plaintiff has sustained, and that embraces the mortification to the feelings; the wounded pride; and all the disappointments from the failure of the marriage, as well in the losses it has occasioned, as in the blow to the affections.

The appellant insists upon the error of the trial judge in submitting to the jury the question of exemplary damages. But we think, in such a case, that it is the province of the jury to determine upon the proof of the facts and of the surrounding circumstances what damages should be awarded. If the conduct of the defendant in violating his promise is characterized by a disregard of the plaintiff’s feelings, or reputation; if he has placed her, or induced her to place herself, in a false position, or to forego temporal advantages; if the breach of his promise is unjustifiable; if he spreads upon the records matters in defense of the action which are scandalous, and tend to reflect discredit upon the plaintiff, or to stain her reputation; then these are all circumstances which maybe considered by the jury and may be availed of by them to enhance the damages. Here the trial judge did not say in his charge that this was a case for the infliction of punitive damages. He instructed the jury, in substance, that if the plaintiff was entitled to damages they should certainly give compensatory damages, and that in the exercise of a discretion based on the proofs and circumstances of the case they might award exemplary or punitive damages. Upon this subject of when such damages might be awarded he read at length from the opinions of this court in Thorn v. Knapp, 42 N. Y., 474, and Johnson v. Jenkins, 24 id., 252, for the purpose of showing the rule to be applied. It is clear that he left it to them to arrive at a decision upon the propriety of giving exemplary damages from a consideration of the defendant’s motives and conduct.

How, there was evidence in the case upon which a verdict might well include exemplary damages. The wedding day was agreed upon; the usual preparations were made by the plaintiff, and relatives and guests were bidden to the ceremony. But the defendant did not" appear. He alleged physical ailments in excuse of not fulfilling his marital engagement; but there was evidence that he was evading it and shamming illness. He admits that he had no fault to find with her; She had resigned her position to marry him. He denied requesting her to do so; but his attempt at denial is weakened by his subsequent admission that he expected her to do it Then, in his pleading, he charges the plaintiff with having no affection for him, but with entertaining a purpose to procure money from him, on the pretense of his promise to marry her and his breach thereof. These were elements in the case which might properly enter into the decision of the jury as to the amount of damages.

The appellant alleges another error in the charge when the trial judge instructed the jury “in fixing the amount of damages the plaintiff is entitled at least to such damages as would place her in as good pecuniary condition as she would have been if the contract had been fulfilled.” This was, of course, a careless use of language; but it could not have prejudiced the defendant’s case. It was very plain from all the charge, in what preceded as in what immediately followed the sentence picked out for objection, that the trial judge intended to and did instruct the jury that they should compensate the plaintiff for what she had lost and was deprived of by the failure of the marriage. They might affix to the marriage with the defendant that pecuniary value which, in their judgment, upon the circumstances of the case, it would have to the plaintiff. The jury could not reasonably have understood the judge otherwise. It may often occur in a charge to the jury that particular words or expressions used, when taken by themselves, will be objectionable or seem to be erroneous; but they should not be considered independently of contextual phrases. If, when read in connection with the rest of the charge, the sense of language used is made clear and its meaning explained and the instruction is not uncertain as to the subject matter, the result of the trial should not be disturbed for mere inaccuracies, or carelessness in speech!

There is no occasion for a further discussion of any questions, and the judgment and order appealed from should be affirmed, with costs.

All concur, except Earl and Peckham, JJ., who dissent, on the ground that it was error to receive proof of defendant’s wealth by reputation.  