Budd v. Crea

6 N.J.L. 450

• Court: Supreme Court of New Jersey
• Decided: April 15, 1797
• Status: Published

Opinion

Kinsey, C. J.

Perhaps by mandamus.

A. Ogden, in reply. In all assumpsits or undertakings the law requires a consideration ; and the party, upon being sued upon his contract, is at liberty to go into the consideration upon which it stands. In a promise of marriage, the undertaking, which the law and which common sense require on the part of the woman, is, that she should be chaste and faithful, and demean herself with propriety subsequent to the engagement. If there is any failure in this respect, she has violated her duty, she has destroyed the consideration upon which the contract was founded, and the other party would sacrifice his prospects of happiness, and put, at least, in jeopardy his character in society, by uniting himself in marriage with a woman whose principles he had discovered to be corrupt, and whose behavior he had ascertained to be infamous.

As to part of the testimony being irrelevant to the issue, or legally objectionable, the court ought to have overruled only that which was inadmissible, and received the rest. The error of which we complain is, that we offered testh mony which we had a right to lay before the jury, and the court refused to admit it. It is no answer to this to say that we'offered other evidence which was properly rejected.

Kinsey, 0. J.,

delivered the opinion of the court. Two objections have been urged why this judgment should be reversed. 1. That the court below refused to admit the defendant to prove, that the plaintiff had offered to go to bed with another man; had undressed herself before him, and been guilty of lewd and indecent behavior; and 2. That they refused to state upon the bill of exceptions all the testimony that had been given in the case. •

With regard to the last exception, it has long been settled in this court, that every part of the evidence ought to be stated; and there can be no question but that it should always be done, for it may frequently be impossible for a court to determine upon the pertinency or legality of testimony, to know whether it was improperly admitted or erroneously overruled, unless they have a complete view of all that was before done in the case. But this error, however injurious to the party, however palpable in the law, is not a ground of exception in this way, and it must be dismissed from our consideration.

But with respect to the first exception, though I at first doubted whether the character of the plaintiff could be con■sidered as fairly involved in tho issue, yet more mature reflection lias satisfied me that no such doubtOought to exist, and that the evidence ought to havo been admitted, at least, in mitigation of damages. A promise of marriage is a valid and obligatory contract. But if a man, ignorant of the real character of a woman, enters into an engagement of this nature, and afterwards discovers her to be lewd and unchaste, it is a sufficient justification for him to refuse a compliance with it. See 3 Esp. N. P. Ca. 236, Foulkes v. Selway. The case is similar to that in which a man sells a horse possessed of some latent defect, known only to the seller, for the full value of a sound one; it is a fraud which vitiates the whole contract.

All promises of this kind are founded upon a presumption of chastity on the part of the woman. This is the consideration of the contract, and where that consideration is discovered to have failed, she has herself been guilty of the first breach, and I should be strongly inclined to think the contract dissolved. We are not, however, called upon in this case to carry the principle to this extent; hut we consider character to be so far in issue, that proof of lewd behavior goes to the action, at any rate in mitigation of damages, for a strumpet ought not to recover so much compensation for a violation of such a promise, as an innocent and modest woman. (Johnson v. Caulkins, 1 John. Ca. 116.)

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Though particular instances of lewdness may be given in evidence, yet general bad character between tho promise and the breach, cannot be giyen in evidence in mitigation of damages. 3 Mass. 139.