This is an action for breach of a contract to marry. The plaintiff was the widowed keeper of a boarding house. Both parties testified. The defendant denied that any promise had existed. The plaintiff testified to happenings and statements of the defendant which would support the inference that the parties had entered into an engager ment for marriage, but she gave no testimony of words of *118request for marriage or of any direct promise in words to marry. She testified that he had asked her to meet him at the registry of deaths, births and marriages for the purpose of taking out a declaration of intention of marriage, but had failed to appear there although she awaited him there from nine to eleven o’clock on the day appointed. He later had talked of marriage with her but had never thereafter set a definite date. There was evidence from other witnesses, friends of the plaintiff, that the defendant had said that he intended to marry the plaintiff, and that he had driven an automobile a considerable distance while embracing the plaintiff with one arm. Evidence was admitted that several months before the bringing of this action the plaintiff had sued the defendant for food and lodging furnished to him, and had received judgment for part of her claim. In that action she had testified that a promise of marriage had existed and that her claim had not earlier been pressed on that account. The defendant had asserted that the food was furnished gratuitously. The finding of the trial judge in the present case was as follows: “I find no express promise of marriage, but I do find that the association and conduct of the parties and the attending circumstances were such as naturally and ordinarily accompany a mutual understanding relied upon by each that they are to be married each to the other”; and he found for the plaintiff with damages in a stated amount. He stated that he instructed himself, as requested by the defendant, in substance that he must dismiss from his mind the meals for which recovery had been had in the earlier case and that the damages for breach of promise of marriage were “the money value or worldly advantage of the marriage which would have given the plaintiff a permanent home, the wound and injury to her affections, whatever modification [sí'c] or distress of mind the plaintiff suffered resulting from the defendant’s refusal to perform his promise, and in this connection the length of time during which the engagement subsisted” (which might have been found to be thirteen years). He refused the defendant’s request *119to instruct that the plaintiff was not entitled to recover on all the evidence; that the statute of limitations barred recovery; and that “The plaintiff having collected by virtue of the other suit $750 and costs against this defendant for meals furnished by the plaintiff to the defendant, which the defendant claims were gratuitously furnished, and the plaintiff having elected to bring suit for such board and lodging, the plaintiff has recovered all the money damages that she is entitled to recover.” The defence of the statute of limitations was waived. Motions for new trial and for judgment for the defendant were filed. The latter was based upon the finding that there was no express promise of marriage and the contention that no action lay upon an implied promise to marry. The case is before us upon the defendant’s appeal from a decision of the Appellate Division for the Northern District which ordered the report dismissed.
We think the proper interpretation to be given the finding of the trial judge to be, that, although no words of proposal, acceptance and promise were ever spoken, there was an actual meeting of the minds of the plaintiff and defendant in agreement and that a contract for marriage between them existed, recognized and relied upon by both as fully as if expressed in words. No other conclusion is reconcilable both with his language, and with his finding for the plaintiff and his assessment of damages. So interpreted, no variance in proof, and no error in the finding appear. He found, as we think (and as there must be in law to permit recovery), an express contract of marriage, — express not in words but in clearly apprehended agreement of mind by the parties upon terms intended to bind both. The judge did not find that from acts of gallantry, years of association, and statements of intent to marry a contractual obligation to marry was created as matter of law;- but, from evidence of such events, he inferred the existence of a mutual agreement to marry, underlying them but not arising out of them, created, instead, by a wordless request and acquiescing promise. In so doing he *120was not in error at law. We need cite only the decisions in Kelley v. Riley, 106 Mass. 339, and Dean v. Skiff, 128 Mass. 174.
The judge was right, also, in refusing to rule in accordance with the requests which were denied. The plaintiff, by recovering what was found to be due her arising out of the defendant’s failure to perform his promise to pay for food and lodging furnished him at his request, in no way precluded herself from recovering damages arising out of his failure to perform bis promise to marry her. The gist of the actions is absolutely different. The measure of damages is not the same. The contention that an item entering into damages in the one action possibly might form part of damages recoverable in another and, therefore, that the second action is barred by the first, does not deserve serious discussion here. The judge ruled that the amount recovered in the first suit furnished no element of damage in this. This was sufficiently favorable to the defendant. Smith v. Hall, 69 Conn. 651, cited by the defendant does not sustain him.
Order of Appellate Division affirmed.