concurring. — The action in the court below was for a breach of marriage contract between the parties herein, alleged to have been made on the seventeenth day of December, 1877, and the celebration thereof, to have been postponed at various times during the subsequent years, down to on or about the sixth day of April, 1885; that such contract was entered into by the appellant and respondent must, for the purposes of this appeal, be taken as true. The finding of the jury in any view of the case is conclusive upon that point. This court must assume that the appellant and respondent agreed to intermarry, and that the appellant violated the agreement as alleged in the complaint. There is no claim that the Circuit Court did not fairly submit that question to the jury; and that they found such to have been the fact by their finding for the respondent cannot be denied at this time. There are but two matters, therefore, which need be considered. The one is the matter of defense as a bar; the other, the matter of partial defense or mitigating circumstances. The appellant alleged in his answer the following new matter:—
“Defendant, for a further and separate answer and defense, alleges that on of about the eighteenth day of September, 1885, the plaintiff voluntarily abandoned said alleged marriage contract, and voluntarily and wholly released the defendant from all obligation she claimed against him under said pretended alleged contract before said date.
*295“And for a further and separate answer and defense, the defendant alleges that after the date of the pretended contract alleged in the complaint, the plaintiff became and was a woman of had reputation for chastity; and became and was reputed to be an unchaste woman; and so conducted herself in intercourse with men, as to establish for herself the reputation of a common or lewd woman, and was so reputed to be for more than five years before the commencement of this action.
“And for a further and separate answer and defense, the defendant alleges that after the date of the pretended contract alleged in the complaint, the plaintiff became and was a common prostitute, and continued to deport herself as such for more than five years before the commencement of this action, at and about buildings occupied, used, and controlled by her about the corner of B and First streets, in the city of Portland, Multnomah County, Oregon.
“And for a further and separate answer and defense, the defendant alleges that after the date of the pretended contract alleged in the complaint, the plaintiff committed the crime of adultery, and did have carnal sexual intercourse on or about the twenty-fifth day of April, 1885, at her residence near the corner of B and First streets, in the city of Portland, Multnomah County, Oregon, with a man whose name to this defendant is unknown, and as to whose identity he is unable to make any more particular statements.
“And the defendant, for a further and separate answer and defense, alleges that on or about the twenty-fifth day of December, 1884, at her place of residence near the corner of B and First streets, in the city of Portland, Multnomah County, Oregon, the plaintiff committed the crime of adultery, and did then and there have carnal sexual intercourse with a man whose name is to this defendant unknown, and to whose identity he is unable to make any more particular statements.
“And the defendant, for further and separate answer and defense, alleges that after the dates of the pretended contracts set out in the complaint, the plaintiff, at her place of dwelling near the corner of B and First streets, in the city of Portland, *296Oregon, did for more than five years next preceding the commencement of this action carry on the business of selling the use of her person in sexual intercourse with men for hire, and at divers and sundry times, and from time to time during said five years, did comnlit the crime of adultery in carrying on such business, and did have carnal sexual intercourse with divers and sundry and numerous men whose names are to this defendant unknown, which unlawful conduct of claimant came to defendant’s knowledge since December 17, 1877.”
No attempt was made to plead a partial defense. Proof was submitted upon the part of the appellant tending to show that the respondent was coarse in her manner and convei’sation, gross in her associations, and imprudent in her conduct and demeanor; that she rented her property, consisting of buildings situated near her own residence, to persons of questionable reputation; that her character for chastity and virtue was not good in the community where she was known; and that upon one occasion she made a vulgar and lewd inquiry of a male acquaintance whom she met upon the streets of Portland; but no proof was made tending directly to establish the charges of adultery and prostitution contained in the answer; nor does it appear that any evidence was offered by the appellant for the avowed purpose of mitigating the damages. All the proof upon- his part seems to have been offered in view of the defenses set forth in the answer, and which were controverted by the respondent. In that condition of the controversy the case was submitted to the jury. It is evident to my mind that the defenses referred to were not only unproven, but that the evidence offered, standing by itself, was inadmissible for that purpose. It cannot, certainly, be maintained that the defense, that the respondent, after the date of the alleged contract of marriage, became and was a woman of bad reputation for chastity, etc., could be established by proof that her reputation was bad in that respect, without showing that it became bad after the time alleged; nor that the defense, “that after the date of the pretended contract alleged in the complaint the plaintiff committed the crime of adultery, and did have carnal sexual intercourse on or about the 25th day of April, *2971885, at her residence, near the corner of B and First streets, in the city of Portland,” was established, by proving that she was a coarse woman, etc., as before mentioned; such proof may have been material evidence in the case — may have shown that the respondent was not entitled to damages beyond one cent— but, clearly, it did not make out the defense alleged, and for that purpose was wholly futile. There is a wide difference in proof tending to show that the plaintiff, since the making of the contract of marriage, had done acts that legally absolved the defendant from observing it, and proof that tended to show that the plaintiff was such a course, vulgar woman that she had not been damaged in consequence of a breach of the contract; but in the trial of this case, no such distinction seems to have been kept in view. In such a case, where a defendant has interposed a specific full defense, and offers evidence generally, which is objected to as irrelevant and immaterial, and which is insufficient to prove such defense, but is relevant to prove mitigating circumstances, he should declare the purpose for which he offers the evidence if he wants the benefit of it upon the latter ground, otherwise it would necessarily lead to confusion. The presiding judge at the trial usually announces in such cases that he will permit the evidence, though offered generally in the action, to be received in mitigation of damages, but he may not always be able to make the discrimination, nor the defendant’s counsel be willing to accept of such ruling. An exception to be tenable in such a case must be taken to the refusal to admit the evidence after the party producing it indicates the purpose for which it is offered. The mode here suggested is calculated to prevent the embarrassment to which the jury would be liable to be subjected if the evidence were admitted without specifying the object for which it is introduced, and the attention of the court will then be directed, in case of objection to its admission, to the particular point upon which it is called upon to rule. The appellant, in my opinion, should not be heard to complain when evidence, that is inadmissible to prove the defense alleged, is excluded upon that ground, although admissible in mitigation of damages, where it does not appear that he sought to have it admitted upon *298the latter ground. One of the questions in the case which has raised some doubts in the mind of the court, relates to the charge to the jury in regard to their taking into consideration the attempted defense, and failure to establish it, in the assessment of damages. The court, in its instructions, told the jury in substance that if the appellant made the charge against the respondent of general want of chastity and intercourse with other men, knowing that it was untrue, and having no reasonable grounds to believe that it was true, then the failure to prove the allegation ought to be taken by them, in aggravation of the charge, and in aggravation of damages which should be assessed. If, however, the appellant made the charge in good faith, believing that there were grounds for it, and the conduct of the respondent had been so imprudent as to furnish him grounds for it, and this conduct had come to his knowledge after he renewed the contract with her, and he repudiated the contract by reason of this conduct of hers, and of this belief that he entertained, then they should not allow that circumstance to weigh as much in the assessment of damages as if he had made the charge recklessly, wantonly, and maliciously; but that the jury should take the circumstances all into view and inquire, if they came to that question, how had he made the charge? Had it been reckless — a wanton, malicious charge — or had it been made iu good faith? The appellant’s counsel contend that the part of the instruction here referred to is erroneous, as it allowed the attempted defense, and failure to establish it, to weigh to some extent in the assessment of damages, even though the jury should find that the appellant made it in good faith. This seems to be the main ground of error in the case.
The Circuit Court evidently entertained the view that the failure to establish such a defense, if interposed in bad faith, knowing that it was untrue, etc., would aggravate the damages; that if interposed in good faith, under the belief that it was true, it would have less weight in the assessment of damages; but the court did not indicate how it would affect the subject in the latter case. The inference, however, is that the failure to prove such defense might be considered by the jury as a circumstance, *299in connection with the other circumstances referred to them by the court, to be taken into consideration in fixing the amount of damages, in event the respondent was found entitled to damages. Said counsel insist that if the defense is made in good faith, and upon probable cause, it is not to be considered by the jury in aggravation of damages at all. The instruction, however, does not include the hypothesis of there being probable cause for believing the defense to be true. The statement contained in the instruction is: “ If the appellant made the charge in good faith, believing that there were grounds for it, and the conduct of the respondent had been so imprudent as to furnish him grounds for it,” etc. And I think the supposition the court submitted contained a much broader statement than the facts in the case would justify. It would have required, it seems to me, a great amount of credulity upon the part of the jury to have believed that the charge was made in good faith. The appellant may have believed that the respondent was an unchaste woman; but there is nothing in the evidence to justify his allegation that she committed adultery at particular times and places, and his making such allegations without being able to produce any direct evidence of the fact, and making no attempt to prove specifically such charges, placed him in a very difficult position to claim that he made them in good faith. In view of the evidence, the jury were bound to conclude that those charges were false, and I am unable to discover how they could have found otherwise than that they were malicious. It was' not pretended, as I understand the case, that in making the charges he acted upon any information he had obtained concerning the facts alleged. I refer to the specific facts concerning the adultery charged in the answer. He seems to have “just fired at random.” Had there been probable 'cause for making the charges, the counsel’s position might have been tenable; but I am unable to discover that there was any, and the court did not submit that question to the jury in the instruction. We must take the instruction as we find it; also the charge made by the appellant against the respondent’s general want of chastity and intercourse with other men, and the evidence in the case in testing the correctness of the instruction. *300The case before us is one in which the defendant has attempted to justify his breach of promise of marriage by alleging against the plaintiff in his answer, that since the time of the making of the promise she became and was a common prostitute, and continued to deport herself as such for more than five years before the commencement of the action, in and about a particular place; that' she had been keeping a “whore-house,” in fact, and been an out and out strumpet, and at particular times and places had carnal intercourse with men, had committed adultery, and been engaged in the business of selling the use of her person in sexual intercourse with men for hire. He spread upon the records of the court, in strong and unmistakable terms, a damaging libel, ¿■and without proving its truth, attempted to shield himself from the entire consequences of his act, by claiming that he published it in good faith, believing it to be true. What could be evidence of good faith upon his part, less than proof that the allegations were true, or, at least, that there was a good foundation for believing them true? And if he believed them to be true, honestly ‘ entertained such a belief, how does that compensate the wrong he has done the respondent by declaring such scandalous matter perpetuating forever the evidence of it? Such an act ought, it seems to me, have some weight in the assessment of damages, even under the circumstances supposed by the court. Besides, it is perfectly evident that the appellant was not damaged by that qualification of the instruction. An alternative made to depend upon the jury, finding that the appellant acted in good faith under the circumstances, was wholly valueless.
Another important question in the case is the refusal of the court to give the following charge to the jury: “The court is asked by defendant to charge the jury that the defendant is entitled to set up the bad character of the plaintiff in defense to this action. Such defense the law allows to be made, and to be made available must be spread upon the records, that is, it must be pleaded. If the defendant sets up this defense in good faith, under circumstances which would warrant a cautious attorney in the belief and expectation that it can be established by testimony, and if on the trial evidence is produced of a character proper to *301be submitted to tbe jury in support of tbe defense, tbe jury shall not, either from sympathy with tbe plaintiff, in case you should find the weight of evidence in her favor, allow that circumstance to aggravate the damages. In other words, if in making this defense the defendant acts in good faith with probable cause, and with a reasonable expectation that he can establish it, he should not be punished even if he fail.”
"Which instructions the court refused as asked, but instructed the jury concerning those matters as set forth in the general charge, to which refusal counsel for appellant excepted.
This proposed instruction, as an abstract proposition of law, I am inclined to think is substantially correct. The grounds upon which the court refused it do not appear, but it is evident to my mind that the facts in the case, as I have before intimated, did not entitle the appellant to have it given. There were six defenses interposed. The first one, a voluntary abandonment by the respondent of the marriage contract, and release of the appellant from the obligation thereof. The next two of them were alleged facts, that after the date of the contract the respondent became and was a woman of bad reputation for chastity, etc., and that she became ánd was a common prostitute. The other three relate to specific acts of adultery and prostitution with which the appellant charged her. There is no pi’e-tense but that the defenses which claim that she abandoned the contract, or that she released the appellant from the obligation of it, were not fairly submitted to the jury; nor any evidence that she became or was, after the date of the contract, a woman of bad repute, or after such date became or was a prostitute. Testimony was given on the part of the appellant tending to show that the general reputation of the respondent for chastity and virtue since the date of the contract was bad, and an offer made to show that it was bad before that time; but there was nothing showing that it became bad after the date of the contract, as alleged in the answer. This may not seem important —the time her reputation became bad — and yet it is so as a defense to the action. The fact that a woman has a bad reputation for virtue does not entitle a man to violate a contract of *302marriage he has entered into with her if he knew what her reputation Avas when he made the contract, though the fact may be shown in mitigation of damages, where it is offered for that purpose. The appellant claimed that he was relieved from the ■obligation of the contract for the reasons set out in said two ■answers, and the evidence he offered was immaterial as a defense, unless in accordance with the allegations therein contained. He probably was not able to deny but that he knew what her reputation was, and had been, at the time of and prior to the contract of marriage, and hence, it was necessary to allege that it became bad after that date. But, conceding that the evidence offered tended to establish those two defenses, what was there in the testimony to prove the other three. Evidence of her bad reputation, and that she was a coarse, vulgar woman, would have no tendency to prove that she committed adultery at some particular time and place, “ or sold the use of her person.” It would be absurd to claim any such thing, and yet, as I understand, that is all there was in the case to establish said defenses. “Probable cause” is supported by evidence which inclines the mind to belief, it is not a mere suspicion. It is something that is proved, not fully, but has more evidence for than against it. What was there in this case to show that the respondent committed adultery on the 25th day of April, 1885, or the 25th day of December, 1884, or that she carried on the business of ■ selling the use of her person? Not anything that could be called proof, certainly. If she had been prosecuted for adultery, or for keeping a house of ill-fame, would any court have allowed the case to have gone to the jury on such pretended evidence as the appellant introduced in this case? It is idle to consider such a question. The New York courts, by an unbroken series of decisions from Southard v. Rexford, 6 Cowen, 254, down to the present time, have held, that 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 such justification, it is a circumstance which ought to aggravate the damages. This doctrine, counsel *303for the appellant claims, is subject to the qualification set out in the said instruction asked and refused, and I rather think he is right in that view; but I do not see how the distinction can be made in this case, for I do not think that three at least of the defenses were interposed with probable cause, or with a reasonable expectation that the appellant could establish them. To vilify and calumniate the respondent by vile charges which he must have known he could not maintain, ought not to be condoned by a plea that he did it innocently, and without intending harm. But he should make it appear, from evidence submitted upon his part, that he had reasonable grounds to suppose the charges could be established. I do not believe a party defendant, in such a case, should be prevented from setting up-what he believed the facts would authorize him to, and that he had reasonable grounds to suppose he would be able to prove, but when he acts upon conjecture only, and alleges matters injurious to the-credit and reputation of the plaintiff, upon a mere surmise that they might be true, he abuses the privilege the law confers upon him of making a defense, and, as said in Southard v. Rexford, supra, “ it would be a 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.” In my opinion, a defense which charges scandalous matter, and is not sustained, in order to avoid the imputation of malice, or, at least, wantonness, the law would presume, must be founded upon probable causes supported by proof, that distinctly or by necessary inference tends to establish its truth. Any less requirement would encourage an abuse of the privilege the law confers. No such proof having been submitted in this case, or facts shown from which it could legitimately be inferred, the assignment of error in regard to the charge of the court, and refusal to charge as requested, referred to herein, are not sustained.
The other grounds of error I do not regard as tenable. The petition for a rehearing should therefore be denied.