I am unable to concur in the foregoing opinion.
The jury found that the defendant promised to marry the plaintiff, as alleged in the declaration, and the evidence submitted abundantly supports this finding.
In reply to a request by the defendant for a special finding, the jury found that he was not physically able to marry on November 28, 1899, which was the day which had been finally agreed upon by the parties for the wedding to take place.
The jury further found, specially, however, at the defendant's request, that from November 28, 1899, to July 12, 1900, the latter date being the last day before the suing out of the writ in this case, the defendant was physically able to marry; and also that the plaintiff's willingness and readiness to marry the defendant did not cease upon the beginning of her prior action against him.
The evidence shows that the only reason why the defendant was physically unable to marry on the said 28th day of November, 1899, was that he was ill from the effects of having been drunk on the 24th day of November, 1899. And the practical question which is presented for our decision, as I understand it, is whether a man can make himself ill just before his wedding-day, and subsequently, when sued for not fulfilling his promise of marriage, be permitted to set up his physical disability, thus voluntarily caused, in defence of the action. I do not think he can. To allow such a defence is to permit one to take advantage of his own wrong, which the law will not do. If, by making himself drunk, the defendant rendered himself incompetent to perform his promise on the day set, by reason of the effects of his drunkenness, this was no excuse for his failure to perform it as soon as he recovered from such illness. And, according to the finding *Page 144 of the jury, he was only physically incompetent to perform it for one day. But, conceding that the evidence shows that he was disabled for a longer time than this, it was clearly his duty, in my judgment, being in default as aforesaid, to have been ready and willing, and to have offered to fulfill his contract with the plaintiff immediately upon recovering from his illness. And I do not think that, under the circumstances, the plaintiff was called upon to go to the defendant, after such a default and before bringing her action, and say "I am ready to marry you now, please marry me," or in some other way to have offered to perform her part of the agreement.
In Kelley v. Brennan, 18 R.I. 42, this court said: "It may be true that in cases in which the promise to marry is general, that is, in which no time or place of marriage is fixed in the promise or in which the promise is to marry within a reasonable time, or upon request, and in which, also, the defendant had not married another, it is necessary for the plaintiff to aver and prove an offer of marriage and a refusal by the defendant, since in such cases it may not be possible for the plaintiff otherwise to show that the defendant is in default. . . . But in the note last cited it is said that if, after an engagement to marry and the lapse of a reasonable time, or the time agreed upon between the parties, the gentleman omits to offer to marry, it is generally considered a refusal to marry, and the language of the court in Seymour v. Gartside, 2 Dowl. Ry. 55, is quoted that it can hardly be expected that a lady should say to a gentleman `I am ready to marry you, pray marry me.'"
The case at bar, as it seems to me, practically comes within the rule as thus stated. The time for the marriage had been agreed upon, and the defendant had failed and refused, in effect, to perform his promise and thereby rendered himself liable to be sued for the breach thereof. In any event, his duty was to have offered to marry the plaintiff as soon as he recovered from his temporary illness, which he did not do.
Under the decision of the majority of the court, the plaintiff will have the right to hereafter request the defendant to *Page 145 marry her in pursuance of his promise aforesaid; and in case he shall refuse, she can again commence an action against him, based upon said original promise and his final refusal to perform it. And it seems to me that it is unnecessary and unjust under the circumstances to compel her thus to humiliate herself and then proceed, as she would doubtless be compelled to, to another long and tedious trial to secure her rights.
The truth of the case is, as I read the testimony, that the defendant changed his mind, sometime in the early fall of 1899, and did not from the time of such change intend to marry the plaintiff at all. And it requires no great stretch of the imagination to infer that he purposely disabled himself, just before the day finally fixed upon for the wedding, in order to have an excuse for not fulfilling his agreement. If this were not so, the most natural thing in the world for him to have done, upon recovering from his temporary disability, would have been to have gone to the plaintiff and offered to fulfill his promise. But he never went near her after the day finally fixed for the wedding, and never even sent her any message by way of excuse or otherwise.
A former time than the 28th day of November, 1899, had been fixed upon for the marriage, but it was postponed until fall, upon a flimsy excuse which the defendant made. There is much other testimony, coming from the defendant himself, which very strongly tends to show that for some time before the final fixing of the wedding-day the defendant was losing his affection for the plaintiff and was seeking in some way to evade the performance of his promise. It also appears, inferentially, at least, that his mother and other near relatives were strongly opposed to the marriage and influenced him against it.
Again, the granting of a new trial being a matter which rests in the sound judicial discretion of the court, it follows that a party is not necessarily entitled thereto because of errors committed during the jury trial. Goodell v. Fairbrother,12 R.I. 233; Collier v. Jenks, 19 R.I. 493. If the court can see that substantial justice has been done, and that in all *Page 146 probability a new trial would not produce a different result, it should not put the parties to the expense and trouble of such a trial.
In the case at bar the plaintiff could safely rely upon the defendant's letters alone to prove her case, in so far as the marriage engagement is concerned. In his testimony on the witness-stand, also, he did not in effect deny the engagement, or that the time for the marriage was fixed as aforesaid. He gave the plaintiff an engagement ring, and put it on her finger; he furnished her with several hundred dollars with which to procure her wedding outfit; he gave her valuable presents; he introduced her to a friend as "the future Mrs. Corey;" he told her brother, during the early summer of 1899, that he should be his brother-in-law before the leaves fell; and in many other ways, by speech and conduct, he recognized the plaintiff as his betrothed. And in view of this state of facts it would seem like putting an unnecessary burden upon her to be again called upon to prove her right to compensation for his neglect and refusal to fulfill his marriage engagement.
To sum up my views as to the law question involved, then, I will say that, treating the defendant's conduct hereinbefore referred to as amounting to an absolute refusal on his part to marry the plaintiff, as I feel fully warranted in treating it under the evidence, there was no occasion for the plaintiff to either offer to marry the defendant, or to request him to marry her, before bringing this action for damages.
After a long and very full trial of the case, the jury found a verdict in favor of the plaintiff and assessed her damages at $5,000, and I fail to see any sufficient reason for disturbing their finding.