Button v. McCauley — 5 Abb. Pr. 29

Majority

p. 29

BUTTON against McCAULEY.

Court of Appeals ;

September Term, 1867.

Headnote

Evidence in Action foe Breach of Promise.—Mitigation of Damages.—Pleadings.—Objections to Evidence.

In an action for breach of promise of marriage, declarations of the defendant that he would make a good home for the plaintiff, made at the time, and as part of his conversations with the plaintiff which are relied on as establishing the promise of marriage, are admissible, in connection with the other conversation, as tending to prove the contract.

Under a general denial, in such an action, evidence that the plaintiff drank intoxicating liquors to excess, and sometimes got intoxicated, although not competent as a defense to the action, is competent and admissible in mitigation of damages. Any misconduct showing that the plaintiff would he an unfit companion in married life, may be given in evidence in mitigation.

Under the general issue, in such an action, the plaintiff, in offering evidence which is competent in mitigation of damages, is not bound to specify that he offers it for that purpose. If the evidence is competent for any purpose, and is rejected, it is error, although not competent for other purposes in the action.

If the intoxication of the plaintiff was connived at by the defendant, the burden of proof is upon the plaintiff to show such connivance.

Appeal from a judgment.

This action was brought by Alceste Button against Emanuel McCauley, to recover damages for an alleged breach of a promise of marriage. The defendant’s answer was a general denial of all the allegations of the complaint.

The cause was tried in 1881, at a circuit, in the seventh district.

The plaintiff was called as a witness in her own behalf, and her testimony tended to establish the fact of a contract of marriage between the parties. In testifying to such agreement, she stated conversations between them,

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in the course of which she said that he said he would make her a comfortable home. To this evidence the counsel for the defendant objected, as immaterial, irrelevant and incompetent. The objection being overruled, the witness proceeded to state that he promised to leave her well provided for; that he would build a house and fit it up nicely, and provide a team for her, &c.

Subsequently the defendant was examined as a witness in his own behalf, and besides testimony tending to contradict the contract of marriage, he offered to prove that the plaintiff, while she was living with him, drank intoxicating liquors to excess, and sometimes got intoxicated. This was a general offer, not made with reference, specially, either to a defense, or to mitigation of damages.

The court excluded this testimony, upon the objection of the plaintiff, and the defendant’s counsel excepted.

•The jury found a verdict for the .plaintiff for $500 damages, and the defendant’s motion for a new trial was denied, and on appeal from the judgment rendered upon the verdict, the judgment was affirmed by the general term in the seventh district. The decision of that court is reported in 38 Barb., 413 .

The defendant now appealed from the judgment to the court of appeals.

T. R. Strong, for the defendant, appellant.

—I. The proof of drinking and intoxication was competent. (1.) It would have established a full defense (Sedgw. on Dam., 369 ; Boddely v. Mortlock, 1 Holt, 151; Irving v. Greenwood, 1 Carr. & P., 350 ; Palmer v. Andrews, 7 Wend., 142 ; Foulkes v. Selway, 3 Esp., 236). (2.) The proof was proper in mitigation (Johnson v. Caulkins, 1 Johns. Cas., 116 ; Miller v. Stone, 7 Cow., 22 ; see, also, Sedgw. on Dam., 210, 369 ; Bennett v. Smith, 21 Barb., 447 , and cases there cited ; Leeds v. Cook, 4 Esp., 257). (3.) It is no answer to this that the fact was not alleged in the answer. (a.) Ho ground of objection was stated, and therefore the objection should have been disallowed (Jackson v. Hobby, 20 Johns., 357 ; Elwood v. Diefendorf, 5 Barb.,

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406 ; Camden v. Doremus, 3 How. U. S., 530 ; see, also, Mallory v. Perkins, 9 Bosw., 577 ; Ohio Ins. Co. v. Edmonstone, 5 Miller, 295). ip.) If the ground had been stated, an amendment might have been made. (4.) The doctrine of the cases as to such evidence extends to dissolute conduct (Webs., tit. Dissolute; Leeds v. Cook, 4 Esp., 256 ; 1 Holt N. P.). (5.) Mitigatory matter is not pleaded under the Code of Procedure ( 12 How. Pr., 343 ; 14 Id., 46 ; 24 Barb., 614 ; 33 Id., 283 ; 17 Id., 561).

II. The evidence of defendant’s promise to build a house, give plaintiff a comfortable home, &c., was improperly allowed.

W. F. Coggswell, for the plaintiff, respondent.

—I. The statements in reference to the defendant’s promises to make a good home for the plaintiff was competent and material, because it was a part of the conversation relating to the subject-matter of the action, and because it was a part of the inducement held out by the defendant which led the plaintiff to accept his proposition, and formed a part of the consideration of the contract.

II. The evidence of intoxication was not warranted by the pleadings, and therefore improper and irrelevant. (1.) It was not admissible under the general issue (Archbold’s N. P., 280-3 ; 7 Cow., 635 ; 14 Mass., 275 ; 7 Metc., 86 ; 6 Mass., 518 ; 3 Pick., 378 ; 1 Johns. Cas., 116 ; 2 Cow., 811 ; 3 Esp., 286; 3 Mass., 546 , 189; 4 Wend., 114 ; 21 Barb., 446 , and cases there cited). (2.) The general character of the party cannot be impeached by particular facts or circumstances (2 Phill. on Ev., Cow. & H. N., 952, and cases there cited ; 2 Greenl. on Ev., § 424, note 5, p. 421, note 1 ; 10 Serg. & R., 282 ).

—The declaration of defendant to the plaintiff that he would make a good home for her, was competent evidence, in connection with the other conversation had at the time. It tended to prove the contract of marriage alleged by the plaintiff. The same may be said of his declaration to her, that he would build a brick house, and fit it up nice, keep a carriage, &c.

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The defendant offered to prove that the plaintiff, while she was living with him, drank intoxicating liquors to excess, and sometimes got intoxicated. The plaintiff objected to this proof. The objection was sustained, and the defendant excepted. The case is very brief, and does not fully show the evidence that had been given.

When this proof was offered, the fair intendment from the case is, that the defendant, although unmarried, had a family with which he lived ; that the plaintiff lived with him, for a time, as housekeeper. That the courtship was had, and the promise of marriage was made, while she so lived with him. The plaintiff’s counsel insists that the evidence was not admissible under the answer. The answer was a general denial only. Under this answer it is clear that the evidence offered was not competent as a defense to the action (Code of Pro., § 149 ; McKyring v. Bull, 16 N. Y., 297 ). It was admissible under the answer, in mitigation of damages, if competent for that purpose (Travis v. Barger, 24 Barb., 614 , and cases cited). I think the evidence was competent in mitigation of damages (Palmer v. Andrews, 7 Wend., 142 ; Willard v. Stone, 7 Cow., 22 , and cases cited). In these cases the evidence related to unchaste and immodest conduct, and it'was held competent, either iñ bar or mitigation, according to the particular facts established.

The reasoning of the court shows that any misconduct' showing that the party complaining would' be an unfit companion in married life, may be given in evidence, in mitigation of damages. It requires no argument to prove that habits of intoxication render the party addicted to them thus unfit.

It is insisted by the plaintiff’s counsel, that the evidence being inadmissible under the pleadings as a defense, the counsel should have specified in his offer the purpose for which he proposed to introduce it. This position cannot be sustained. When there is an offer of evidence competent for any purpose in the cause, and the evidence is rejected, it is error, although not competent for other purposes in the action. In Travis v. Barger

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(supra), the ruling of the judge at circuit was sustained, upon the ground that it appeared that the evidence rejected was offered as a defense to the action, and that it was properly rejected as inadmissible, under the answer, for that purpose.

Under these circumstances, if the evidence is admissible for some other purpose, the counsel should specify such purpose. This is all that the case decides upon this point.

In the present case, the offer was general, and the ground of the rejection does not at all appear.

All that the case shows is, that competent evidence in mitigation of damages was offered and rejected, without anything showing the purpose of the offer or ground of rejection.

It is further insis'.ed that the defendant may have induced the plaintiff to. drink, or may have known of this habit, at the time of entering into the contract.

The answer to this is, that if such facts existed, it was incumbent upon the plaintiff to prove them. The defendant, in his offer, was not bound to negative them.

My conclusion is, that the judgment appealed from should be reversed and a new trial ordered.

All conckrred in reversing the judgment, except Parker and Hunt, JJ.