The evidence of the engagement of marriage of the parties to this action is conclusive, and substantially undisputed. It rests in the offer of the defendant to the plaintiff, and in her acceptance of that offer, which was embodied in a written communication by the man to the parents of the woman, informing them of the engagement, and asking their sanction thereto, which was accordingly given. The breach of the contract is also satisfactorily proven. It does not stand, it is true, upon a verbal or written refusal to carry out the obligation which the defendant had assumed, but rather upon circumstances from which only a refusal may be derived. A perusal of *30the evidence, particularly the many letters written by the defendant to the plaintiff, shows that after June 4, 1883, if not prior thereto, the defendant had given up all purpose of marrying the plaintiff, though he nowhere, so far as I am able to find, in words so declared himself. If the defendant intended to carry out his contract at any time after this date, it was incumbent upon him to name the time for so doing. There is some evidence, chiefly by the defendant’s assertions in his letters, that he was afflicted slightly with malaria and some other trouble, but not to an extent which would unfit him for matrimony, or for the existence of which he could properly claim to be absolved from his agreement. When, in December, 1883, the plaintiff asked him, by letter, positively to fix the day for their wedding, it was the duty of defendant to so fix it, or give some reasonable excuse for failing to do so. Ill health would doubtless be a justification for the postponement of the marriage-day, where the contract, as in this case, has not settled the day, and a reasonable delay on account of slight ill-health would, of course, be permitted; but a delay, accompanied by written correspondence, and by actions which so completely ignore the existence of a contract of an engagement to marry, as is disclosed by the testimony, is tantamount to a refusal, and constitutes a sufficient breach to enable an action to be maintained therefor.
It is claimed by the learned counsel for the appellant that the learned judge committed an error prejudicial to his client by refusing to charge the jury that, if the defendant was not well, and it was a part of the arrangement that the marriage should not take place until he should recover Ins health, the plaintiff could not maintain her action without showing that defendant’s health was restored, and that he subsequently broke the engagement or previously 1 absolutely declined. There is no evidence in the case which,would justify the court in assenting to this proposition. Many of the defendant’s answers to the plaintiff’s letters asking him to fix a date for the marriage alluded to his condition of health, but not as a reason for not complying with her request.
It is further argued that it was error to instruct the jury that if they believed that the letter of November 4, 1883, which the defendant wrote to plaintiff, contained a dishonorable proposal, or a solicitation for her to become his mistress, instead of his wife, they might take that circumstance into consideration in determining the amount of damages, if they Avarded any. The exception to this portion of the charge is not well taken. There may, indeed, ■be two opinions entertained in respect to the purport of this extraordinary letter. Up to tfiat time, so far as I can find, not one word of vulgarity or suggestion of licentiousness appeared in any of the communications which the defendant had addressed to the plaintiff. It is difficult to conceive of a letter, containing much of what is in this letter, being written by a man to a woman whom he expected soon to marry; but whether, read in the light of attending circumstances, it was designed to convey, covertly, a suggestion of an illicit relation to take place between them, or was a mere 'piece of vulgarity, it was proper to leave its contents to the consideration of the jury.
There are many things in the case which show a revengeful or wanton spirit on the part of the defendant towards the plaintiff, conspicuously in the bill of particulars, filed in pursuance of the order of the court under the allegation in the answer, and the jury would have been justified in finding that the failure of the defendant to carry out the contract was done in such wanton disregard of the feelings of the plaintiff as -to justly them in giving exemplary damages. Yet it is manifest that they have confined their verdict to actual damages only, and those, too, based upon a rather economical application of the rule of damages in this class of cases. The verdict was only four and one-half per cent., for one year, on the estate of the defendant, as he admitted it to be. This cannot be deemed excessive, and affords some evidence that the jury was not influenced by any desire to punish the defendant for his failure to carry out the contract.
*31It is further argued that it was error for the trial judge to charge the jury that, if they found for the plaintiff, she was entitled to recover such damages as the jury might award; that they were permitted to exercise their discretion in regard to the amount of damages, provided only that their conduct was not marked by prejudice, passion, or corruption. This was not by any means the whole of the charge upon that branch of the case. This is the acquiescence of the judge to a proposition to charge the jury, coming after he had urged upon them that they were bound by the evidence in the case, and must not be influenced by any sympathy for the one party or hatred for the other. But, even if this part of tlie charge stood alone, it would not be such error as would justify us in reversing the judgment. This language is derived substantially from the case of Southard v. Rexford, 6 Cow 256, and is sustained by the case of Thorn v. Knapp, 42 N. Y. 474. The judgment appealed from should be affirmed, with costs.
Beady, J., concurs.