To arrive at a correct conclusion as to the propriety and correctness of the decisions at the circuit, it will be profitable to recur to the nature of the action, and the principles which regulate the recovery of damages therein. Although, technically, it is denominated an action for a breach of contract, the action being founded on a contract of marriage, yet it is, actually, given to afford an indemnity to the misused party for the temporal loss which the party has sustained in not having the contract fulfilled. And this has always been held to embrace the injury to the feelings and affections, wounded pride and the loss of marriage. (Wells v. Padgett, 8 Barb., 323.) It is a well-settled rule, that the damages in actions of contract are to be limited to the consequence of the breach of contract alone, and that no regard is to be had to the motives which induced the violation of the agreement. (Sedg. on Dam., 208.) To this general rule there is one exception. in the case of a breach of promise of marriage. In this *Page 257 action, though in form ex contractu, yet, it being impossible, from the nature of the case, to fix any rule or measure of damages, the jury are allowed to take into their consideration all the circumstances, and, provided their conduct is not marked by prejudice, passion, or corruption, they are permitted to exercise an absolute discretion over the amount of compensation. (Sedg. on Dam., 210.)
In Southard v. Rexford (6 Cow., 254), WALWORTH, Circuit Judge, charged the jury "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;" and this charge was held unexceptionable by the court, which adds, "that there can be no well-settled rule by which the damages in every case are to be regulated. They rest in the sound discretion of the jury, under the circumstances of each particular case."
The question admitted under objection is not obnoxious to the criticism, made by the defendant's counsel, that it calls for the opinion of the witness. The plaintiff being entitled to recover damages for the injury to her feelings, expectations and wounded pride, as well as those occasioned by loss of the marriage, it was clearly competent for her to show how her feelings, affections and pride were affected by the breach of contract on the part of the defendant. It would have been competent for him to have shown, in mitigation of damages, that she regarded and treated his abandonment of her with levity, and was wholly unaffected by it; that she immediately formed another marriage engagement; and that her conduct was otherwise objectionable. I see no objection, therefore, to the plaintiff showing how she was affected and acted on the occasion of the defendant's misconduct. It was not laying the ground for any specific recovery for damages on account of the effect upon her feelings, but as an element for the further consideration of the jury. It was only showing a fact which naturally and obviously resulted from a breach of such a contract, when there was affection and sincerity on the part of the *Page 258 plaintiff. The testimony was, therefore, properly admitted. InJohnson v. Caulkins (1 John. C., 116), the Supreme Court of this State held that, with a view to the mitigation of damages in an action for breach of contract of marriage, it was competent for the defendant to show licentious conduct in the plaintiff, and her general character as to sobriety and virtue. In Willard v. Stone (7 Cow., 22), the Supreme Court held that evidence of the gross and indecent familiarity between the plaintiff and another person should have been received in mitigation of damages. The same rule was affirmed in Palmer v. Andrews (7 Wend., 142). It was the conduct of the plaintiff which it was held to be admissible in mitigation of damages. The rules governing this action are clearly laid down by SEDGWICK, J., inBoynton v. Kellogg (3 Mass., 189). They are, 1. That, if the plaintiff was of bad character at the time of the promise of marriage, and that was unknown to the defendant, the verdict ought to be in his favor; 2. If the plaintiff, after the promise, had prostituted her person to any other than the defendant, she clearly discharged the defendant; 3. That, if her conduct was improperly indelicate, although not criminal, before the promise, and it was unknown to the defendant, it ought to be considered in mitigation of damages; 4. That, if such was her conduct, after the promise, it was also proper for the consideration of the jury in mitigation of damages.
It will be observed that in all these cases the conduct of the plaintiff was admitted to mitigate the damages. And although it is true that the conduct of the defendant had been always admitted to aggravate the damages, it has never yet been allowed to mitigate or reduce them when the plaintiff would otherwise be entitled to recover. It is difficult to perceive on what principle such evidence is to be allowed. The conduct of the plaintiff in a case where the recovery for damages is allowable, may be availed of by the defendant to reduce or mitigate what the jury would otherwise be authorized to allow the plaintiff for the breach of contract on the part of the defendant. So, also, the improper conduct of the defendant, as *Page 259 in seducing the plaintiff under promise of marriage, may be given in evidence to aggravate the damages. It is not seen upon what principle the conduct of the defendant, or of those connected with him, or the influences which they may exercise over him, can be imputed to the plaintiff so that the effect shall be to mitigate or reduce what she would otherwise be entitled to recover. If this be so, why should not the conduct and acts of the plaintiff and those connected with her be given in evidence to aggravate or enhance the damages which she would otherwise recover? No reason is perceived, why if the one state of facts is to be admitted to reduce the damages, why the other should not be to enhance them. It is the misconduct on the part of the plaintiff, in respect to the same transaction tending to diminish the degree of injury, which, on the whole, is fairly to be attributed to the defendant. (2 Greenl. Ev., § 267.) It is urged that the case of Irving v. Greenwood (1 Car. P., 350), is an authority for the admission of the evidence embraced by the defendant's offer. That case is cited by Parsons (1 Pars. on Con., 553; Saund. Pl., 666; 1 Phil. Ev., 190, by Edwards), as authority for the position, that evidence that the parents of the defendant disapproved of the engagement has been received in mitigation of damages. The case is not very accurately reported, and a careful examination of it will show that the point ruled falls far short of the text above quoted. It was a case of breach of promise, and was tried at Nisi Prius before ABBOTT, Ch. J. It is stated that the defendant's counsel wished to show in mitigation of damages, that the father and other relatives of the defendant disapproved of the match. It is stated that ABBOTT, Ch. J., allowed evidence to be given of their disapproval and the reason they assigned for it, but in stating what actually occurred on the trial, it is said the Chief Justice allowed it to be proven, the father of the defendant being an incompetent witness, that he, the father, had expressed to the defendant his dislike to the match on account of the bad character of the plaintiff. That bad character consisted in the fact that she had had a child by, as it was alleged, another man. *Page 260
Now it is seen that the only point ruled was, that the defendant might in mitigation of damages give in evidence the opposition of the father to the match, when he assigned as a reason for such opposition the bad character of the plaintiff. This case stands solitary and alone in the books as an authority, that the damages may be mitigated otherwise than by the conduct of the plaintiff. In McKee v. Nelson (4 Cow., 355), EDWARDS, J., at the circuit, allowed the father of the defendant to prove that he and the mother of the defendant remonstrated with him against his marrying the plaintiff But the verdict having been for the plaintiff, the court did not pass on the objection taken by the plaintiff's counsel to the introduction of this testimony. It must be conceded that neither of these cases come up to the propositions of the defendant in this case. The offer in this case was to show that the defendant's mother was strenuously opposed to the defendant's marriage with the plaintiff. That she was in feeble health at that time, and had been for a long time. The plaintiff objected to the proof so offered, and it was excluded and the defendant excepted. The exception taken is to the exclusion of the whole proof so offered, and if any part was improper and illegal, the objection was properly sustained. It is not now contended that the state of the health of the defendant's mother could properly be shown in mitigation of the plaintiff's damages. It was therefore properly excluded, and the exception being to the exclusion of the whole offer, if any part was illegal and improper, the exception fails. But I prefer to put my opinion on the broader ground that the whole evidence was inadmissible. It never can be that the acts and conduct of third parties, produced it may be by the representations of the defendant, to enable him, more easily and with less hazard, to break his contract, can have any just or legitimate influence in reducing the damages which the plaintiff would otherwise be entitled to recover. It is the conduct of the parties to the record which is the subject of investigation, and the plaintiff can never be prejudiced by the acts and conduct of others with whom she has had no connection, and *Page 261 which was not influenced by anything which she had done. The sanction of such a rule would, in my judgment, be an intimation to parties that they might violate their contract almost with impunity.
The judgment should be affirmed.
WRIGHT and GOULD, Js., were also for affirmance.
Judgment reversed and new trial ordered.