
    Mary Horner, Respondent, v. Henry Webendorfer, Appellant.
    Second Department,
    December 30, 1910.
    Breach of promise to marry — charge —evidence — letters of parties — self-serving declarations — costs — extra allowance.
    Where a defendant in an action for breach of promise to marry contends that his second promise to marry the plaintiff must be construed in the light of certain conditions annexed to his first promise to marry her, a charge that if the minds of the parties did not meet upon some proposition there was no contract of any sort and that if at the time of the alleged second promise one of the - parties understood the proposition in one.way and the other in another, so that there was a misunderstanding, there was no contract, is as favorable a charge as the defendant is entitled to.
    A letter written by the defendant to the plaintiff stating in substance that her chilly reception of him and her sour face remaining in his memory, etc., dis- - courftgcd him from continuing his suit for her affections, and that he does not want anything to do with a woman who welcomes a man only when it suits ■her, should not be construed as an unqualified refusal on his part to perform ■ the contract; and hence a letter from the plaintiff showing that she did not accede to this suggestion but desired to maintain their previously existing relations should not be excluded as a self-serving declaration.
    Moreover, such letter of the plaintiff should not be excluded upon the ground that it was written after the defendant’s breach of contract, where the only evidence establishing the breach is the defendant’s failure to appear at the date set for the marriage, which was subsequent to the writing of the letter, and the fact that he afterwards married another woman.
    Provision for extra allowance stricken out on the ground that the case was not difficult and extraordinary within the meaning of the statute.
    IIirschberu, P. J., dissented, in part.
    Appeal by the defendant, Henry Webendorfer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 2d day of July, 1910, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      George IF. Morgan [Henry H. Abbott and Lester G. Burdett with him on the brief], for the appellant.
    
      Charles Morschauser, for the respondent.
   Buke,'J. :

Plaintiff, a mature-woman forty-eight years of age, brings this action against defendant, aged sixty-one, to recover damages for breach of promise to marry. A jury, finding in her favor, assessed-the damages at -$7,0.00. From the judgment entered on the verdict and from an order denying a motion for a new trial this appeal is taken.

There was evidence from'which the jury were justified jin finding that on, tiie 12th of September, 1909, defendant asked plai.iitiff to marry him and that, surprised by the suddenness of tho proposal, she stated that she was unable at t-liat time to give him a definite answer. On the,succeeding day defendant wrote plaintiff a letter in' which he coupled with his proposal of marriage several commercial propositions.- Among these was one which, if accepted, might be construed as a proposal for a separation if tho parties did not “get along” together, and fixing various sums which should he paid to plaintiff in the event of separation, such sums varying according to the length of time that the parties might live together. By this'letter plaintiff was given, until the twenty-fifth of September to accept or reject his propositions, and the letter concluded with a statement that if accepted a contract Would be drawn embodying, its -terms. It may be that if this had been the only proposal-made and accepted, the contract to many would have been void as against public policy and unenforcible. It is conceded that plaintiff did not reply to this letter before September twenty-fifth, and that on the succeeding' day defendant éalled upon her at her sister’s home and they spent the-greater part of the day together.

Plaintiff’s evidence is to the effect that in the afternoon of that ■day defendant submitted another and unqualified proposal of marriage, which she then and -there accepted, such marriage to take place on November first. To some extent she is corroborated by her. sister.

The learned trial justice instructed the jury that in order to find-a verdict for the plaintiff they “ must find it established by the greater weight of the evidence that .the agreement that they made on the 26th of September was a mere, agreement to marry at the date they fixed, that it was not the agreement to marry upon the conditions and terms set forth in the letter of the defendant of Septeinber 13th.” And- tlie jury were further instructed that unless they found that to be established their verdict must be for the defendant.

Defendant contends that if there was any agreement entered into on September twenty-sixth it must be construed in the light of the letter of September thirteenth. Plaintiff testified that the letter was not referred to until an hour after their engagement, and that when it was spoken of she said, “ I did not want my engagement mixed up with business matters, it was time enough to settle that after we were married.”

At the request of the defendant the jury were further instructed that if the minds of the parties “ did not meet upon.some proposition then there is ho contract of any sort. If that is what you mean I will charge it. The jury is not to misunderstand that. It is not the instruction that if they did not agree to the proposition in the letten of September 13th there was no contract; it is simply this, that in order that there was a contract at all on the 26th of September their minds must have met and agreed upon the thing; that is to say, that if one understood the proposition in one way and another in another, a case of misunderstanding, then there was no agreement, no contract.” We think that this was as favorable a charge as the defendant was entitled to, and lie seems to have been satisfied, for no exception thereto was taken by him.

Subsequently to the making of the. contract to marry defendant seems to have become dissatisfied with the warmth of plaintiff’s expressions of affection, and on the twentieth of October he wrote her a letter, which she received two or three days later. On the twenty-fourth of October she wrote a reply to this lettér. The parties did not meet after this, and on the fourth of December defendant married a woman other than the plaintiff.

; When plaintiff’s letter of October twenty-fourth was offered in evidence, it was objected to upon the ground that it was after the breach of defendant’s contract, and was in the nature of a self-serving declaration. We do- not think that the objection was well taken. Defendant’s letter of October twentieth was as follows: “ The chilly reception you gave me Saturday, Octob 1, 1909, the sour face you left in my memory and the honest kiss you rejected then discourages me to continue my. suit to your affection. I can only conclude that you either do not care for-me or doii’tknow how. A woman who wellcoines a man whom she proposes to trust only when it suits her ,and not at all times I don’t want anything to do with.” We do not deem this to be an unqualified refusal on defendant’s part to perform his contract, although it contained a clear intimation that he was ready to cancel the same. Plaintiff was justified in showing that she did not accede, to this suggestion, and the: request contained in her letter. for a further interview clearly indicates a desire upon her part to maintain the previously existing relations between them.

Although the complaint alleges that the breach of the contract occurred on or about October twentieth, we think that the only conclusive evidence of the breach is found in defendant’s failure to appear upon the first of November,, .the date agreed upon for the marriage, and his subsequent marriage to another on the fourth of December. Therefore, the letter of October twenty-fourth was not subsequent to the breach.

On motion of plaintiff,, the-court granted an allowance in addition to costs. We do not think that this' case was.at all difficult or extraordinary within the meaning, of these words as used in the Code of. Civil Procedure (§ 3253). . .

The judgment should be modified by striking therefrom the amount of the extra allowances, and as so modified the judgment and the order denying the motion for a new trial should be affirmed, without costs.

Woodward, Thomas and .Carr, JJ., concurred ; Hirschberg, P. J., dissented .from the modification on the ground that the motion for an extra allowance was made in open court, and no opposition was made to it.

Judgment modified by striking therefrom the amount of the extra allowance, and as so modified the judgment and the order denying the motion for a new trial are affirmed, without costs. ■  