The defendant, in his answer, alleged that, at the time of the alleged promise of marriage, "the plaintiff was a common prostitute, and still is so, and was then, and still is of a bad character, and was, and is an unchaste woman, and had, and has illicit intercourse with various persons." On the trial, the defendant did not attempt to prove any of these allegations; and the court, in the charge to the jury, among other things, charged as follows: "Where a defendant, in his answer, attempts to justify his breach of promise of marriage by stating therein, and thus placing upon the record, as the cause of his desertion of the plaintiff, that she has had criminal intercourse with various persons, and fails to prove it, the jury have a right to take this circumstance into consideration, in aggravation of the damages to which the plaintiff may be entitled." The only question we are called upon to consider, arises upon the exception to this charge.
In Southard v. Rexford (6 Cowen, 254), the action was for breach of promise of marriage. The defendant, with the general issue, gave notice that he would prove in his defence, that the plaintiff had, at various times, and with various persons, specifying them, committed fornication after the alleged promise. He attempted, at the trial, to prove this branch of his defence, but failed. On the question of damages, the judge charged: "That in cases of this kind, the damages are always in the discretion of the jury; and in fixing the amount, they have a right to take into consideration the nature of the defence set up by the defendant; that in his defence, he had attempted to excuse his abandonment of the plaintiff, on the ground that she was unchaste and had committed fornication with different individuals. But it appeared, from the testimony of his own witnesses, that her character in that respect had not been tarnished, even by the breath of suspicion; that with such a defence on the record, a verdict
for nominal or trifling damages might be worse for her reputation than a general verdict for defendant; that, if the defendant had won her affections and promised her marriage, and had not only deserted her without cause, but had also spread this defence upon the record, for the purpose of destroying her character, the jury would be justified in giving exemplary damages." The plaintiff recovered, and the Supreme Court held this charge to be correct. Judge SUTHERLAND, writing the opinion of the court, says: "Where the defendant attempts to justify his breach of promise of marriage, by stating upon the record, as the cause of his desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the damages. A verdict for nominal or trifling damages, under such circumstances, would be fatal to the character of the plaintiff; and it would be matter of regret, indeed, if a check upon a license of this description did not exist, in the power of the jury to take it into consideration in aggravation of damages." This case was decided in 1826, and, so far as I can discover, has never been questioned. In Parsons on Cont., 551, the author says: "If the defendant has undertaken to rest his defence, in whole, or in part, on the general bad character, or the criminal conduct of the plaintiff, and fail altogether in the proof, it has been distinctly held, that the jury may consider this in aggravation of damages," and he refers to the case of Southard v. Rexford
as his authority.
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The defendant, in his answer, alleged that, at the time of the alleged promise of marriage, "the plaintiff was a common prostitute, and still is so, and was then, and still is of a bad character, and was, and is an unchaste woman, and had, and has illicit intercourse with various persons." On the trial, the defendant did not attempt to prove any of these allegations; and the court, in the charge to the jury, among other things, charged as follows: "Where a defendant, in his answer, attempts to justify his breach of promise of marriage by stating therein, and thus placing upon the record, as the cause of his desertion of the plaintiff, that she has had criminal intercourse with various persons, and fails to prove it, the jury have a right to take this circumstance into consideration, in aggravation of the damages to which the plaintiff may be entitled." The only question we are called upon to consider, arises upon the exception to this charge.
In Southard v. Rexford (6 Cowen, 254), the action was for breach of promise of marriage. The defendant, with the general issue, gave notice that he would prove in his defence, that the plaintiff had, at various times, and with various persons, specifying them, committed fornication after the alleged promise. He attempted, at the trial, to prove this branch of his defence, but failed. On the question of damages, the judge charged: "That in cases of this kind, the damages are always in the discretion of the jury; and in fixing the amount, they have a right to take into consideration the nature of the defence set up by the defendant; that in his defence, he had attempted to excuse his abandonment of the plaintiff, on the ground that she was unchaste and had committed fornication with different individuals. But it appeared, from the testimony of his own witnesses, that her character in that respect had not been tarnished, even by the breath of suspicion; that with such a defence on the record, a verdict
for nominal or trifling damages might be worse for her reputation than a general verdict for defendant; that, if the defendant had won her affections and promised her marriage, and had not only deserted her without cause, but had also spread this defence upon the record, for the purpose of destroying her character, the jury would be justified in giving exemplary damages." The plaintiff recovered, and the Supreme Court held this charge to be correct. Judge SUTHERLAND, writing the opinion of the court, says: "Where the defendant attempts to justify his breach of promise of marriage, by stating upon the record, as the cause of his desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the damages. A verdict for nominal or trifling damages, under such circumstances, would be fatal to the character of the plaintiff; and it would be matter of regret, indeed, if a check upon a license of this description did not exist, in the power of the jury to take it into consideration in aggravation of damages." This case was decided in 1826, and, so far as I can discover, has never been questioned. In Parsons on Cont., 551, the author says: "If the defendant has undertaken to rest his defence, in whole, or in part, on the general bad character, or the criminal conduct of the plaintiff, and fail altogether in the proof, it has been distinctly held, that the jury may consider this in aggravation of damages," and he refers to the case of Southard v. Rexford
as his authority.
The case of Southard v. Rexford is also cited with approval by Judge INGRAHAM in Kniffin v. McConnell (30 N.Y., 285). That was an action to recover damages for breach of promise of marriage. The defendant, under a general denial, offered, in mitigation of damages, and was allowed to give, some evidence tending to show acts of improper and lewd conduct on the part of the plaintiff, for the purpose of proving criminal intercourse with other men. The presiding judge, among other things, charged the jury that, if the defendant had attempted to prove plaintiff guilty of misconduct with
other men, of which he knew she was not guilty, it aggravated the damages. Judge INGRAHAM, writing the opinion, recognizes and approves the rule laid down in Southard v. Rexford. But, while he holds that it is an aggravation of the damages to place such allegations upon the record, he reaches the conclusion that it is not an aggravation of the damages to offer proof of such allegations, when they are not spread upon the record in the answer. A majority of the court, however, differed with him, and held that it was an aggravation of the damages even to offer and attempt the proof of such allegations in mitigation of damages, without setting them up in the answer. It does not appear that any member of the court departed from the doctrine laid down inSouthard v. Rexford. That case must be regarded as an affirmance of that doctrine, as it cannot be perceived how the offer of the proof can be any more an aggravation of the damages than to put the same matter deliberately in the answer, forever to remain among the records of the court. Hence, if we rested entirely upon authority, we should be obliged to hold that the charge was right. But the charge can also be sustained upon principle and analogy. The general rule as to actions upon contracts is, that the plaintiff can only recover a compensation for the damages he has sustained by the breach of the defendant, and exemplary or punitory damages are not allowed. To this rule an action for breach of contract of marriage is an exception, and, so far as I can now call to mind, the only exception. As to the measure of damages, this action has always been classed with actions of torts; as libel, slander, seduction, criminal conversation, c. (Wells v. Padgett, 8 Barb., 323; Johnson
v. Jenkins, 24 N.Y., 252; Sedgwick on Damages, 368; Burns v.Buck, 1 Lansing, 268); and not without reason. It is the policy of the law to encourage matrimony, and society has an interest in contracts of marriage both before and after they are consummated. A man who enters into a contract of marriage with improper motives, and then ruthlessly and unjustifiably breaks it off, does a wrong to the
woman, and also, in a more remote sense, to society, and he needs to be punished in the interest of society, as well as the man who commits a tort under circumstances showing a bad heart. The rule of damages applicable to ordinary contracts would be wholly inadequate. So much depends in each case upon the circumstances surrounding it, and upon the conduct, standing and character of the parties. In all cases where vindictive damages are allowed, it is upon the theory that the defendant's conduct has been such that he deserves to be punished; and with the view of measuring out punishment to him, as well as compensation to the plaintiff, it is always competent to inquire into his motives and intentions; to show that the act complained of was done wantonly, insolently, maliciously or with a bad and wicked heart. In such actions it is not only proper to show the main transaction, but any facts bearing upon or relating to it, showing that it was done wantonly, maliciously and wickedly, with the view of enhancing the damages. It is upon this theory, that, in an action of slander, the plaintiff is permitted to prove the repetition of the slanderous words subsequent to the time alleged in the complaint, even down to the trial. This proof is allowed, not to sustain the action, and not for the purpose of recovering damages for the words thus repeated, but solely for the purpose of proving the malice which prompted the utterance of the words counted on, and thus bearing upon the damages to be allowed on account of them. And so if, instead of repeating the slanderous words orally, they are repeated by being set up as a justification or in mitigation in the answer, and thus placed upon the records of the court, and the defendant fails to prove them, for precisely the same reason and upon the same theory, the damages may be enhanced. So in an action for breach of promise of marriage, it is always competent, for the purpose of enhancing the damages, to prove the motives that actuated the defendant; that he entered into the contract and broke it with bad motives and a wicked heart; and it is competent for him to prove, in mitigation of damages, that his motives were not bad, and that his conduct
was neither cruel nor malicious. In the case of Johnson v.Jenkins (24 N.Y., 252), it was held competent, in mitigation of damages, for the defendant to prove that, when asked by the plaintiff why he had discontinued his visits to her, he declared that his affection and regard for her were undiminished, but that he could not marry her, because his parents were so violently opposed to the match. Judge ALLEN, writing the opinion of the court, says: "Every circumstance attending the breaking off of the engagement becomes a part of the res gestæ. The reasons which were operative and influential with the defendant are material, so far as they can be ascertained; and whether they are such as, tending to show a willingness to trifle with the contract and with the rights of the plaintiff, should enhance the damages, or, on the contrary, showing a motive consistent with any just appreciation of, and regard for his duties, should confine the damages within the limit of a just compensation, will always be for the jury to determine." "Had the defendant, by his declarations, shown a wicked mind in the transaction, it is evident that they very properly would have been submitted to the jury further to enhance the damages." Suppose he had told the plaintiff, at any time before the trial of the action, that he had discontinued his visits and broken the contract because she was a prostitute; could she not, upon the same principles, have proved this in enhancement of damages? No damages could be allowed for defaming her by the utterance of these words; but they could be proved as showing the mind with which the contract was broken, and as thus bearing upon the damages to be allowed for that. So if this language, instead of being uttered orally, is placed upon the record in the answer, for the same reason and upon precisely the same principle, if the defendant fails to prove it and it thus turns out to be untrue, it may be taken into consideration by the jury in aggravation of the damages. I therefore conclude, upon principle as well as upon authority, that the charge excepted to was free from error, and the judgment should be affirmed.