Totten v. Read — 16 Daly (N.Y.) 282

Majority

p. 282

Clara Totten, Respondent, against Cassius H. Read, Appellant.

(Decided June 2d, 1890.)

Headnote

Although, in an action for breach of promise of marriage, evidence showing defendant’s financial condition is material, testimony by plaintiff to declarations by defendant that he was the only heir of his uncle, who would leave a large estate to him, and that she heard that he was a very rich man, is not admissible.

Appeal from a judgment of this court entered on the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinions.

Lsek Oowen, for appellant.

A. W. Tenney, for respondent.

This is an action for breach of promise to marry. The first ground upon which the distin

p. 283

guished counsel for appellant asks to reverse the judgment in plaintiff’s favor is that the weight of evidence to support the second promise upon which she now relies is strongly in favor of defendant. But I cannot subscribe to this view. It is true that this agreement of September 22d, 1884, rests substantially on the testimony of plaintiff herself. But if her personal motive for so testifying is very obvious, that of the witnesses who contradict her is equally apparent. The latter consist of defendant and persons closely affiliated to him. Plaintiff’s ground for recovery on this second cause of action is that the new promise made on September'22d constituted the consideration for the release of the then existing claim. The form of release would seem to bear out this contention. The consideration therein named is “ one dollar and other valuable consideration.” It is not at all likely that plaintiff, after making a demand based upon such serious grounds as she alleged for her first cause of action, would without some strong motive surrender all her rights. Unless she relied upon such new promise it is difficult to discover what the consideration moving to her was. Counsel for appellant contends that it was the SI,200 paid to her mother. But Mrs. Cocks also had a suit pending against defendant with others, growing out of the general facts set up in plaintiff’s suit, and such payment was the consideration for a general release from the mother, executed simultaneously with plaintiff’s release. This money was paid with considerable ceremony, after having been formally counted by the notary in her presence, to Mrs. Cocks personally. It is argued that such payment must have in reality enured to plaintiff’s benefit and been in effect a consideration for her release, because Mrs. Cocks’ claim was groundless in law. Nevertheless Mrs. Cocks had brought a suit for it which she discontinued; and whether or not she could have been successful is immaterial, if defendant chose to pay her something to have the litigation dropped. It is alleged that Mrs. Cocks had spent considerable money in prosecuting such suit, and would not consent to its discontinuance without being compensated for her actual outlay.

p. 284

Certainly there is nothing grossly improbable, in the jury’s finding that a new engagement was entered into on September 22d, 1884, at which time all old scores between all parties were wiped out.

The trial judge did not err in the admission of the declarations of the witness Peshall. It appears that he was defendant’s confidential friend and general go-between in his relations with plaintiff, arranging iiiterviews and carrying messages and letters back and forth. There is no go,od reason why the ordinary principle of agency on this subject should not apply.

Objection was also made to testimony tending to show defendant’s financial circumstances. It is well settled that evidence of this.charaóter is material in actions for breach of. promise, as it tends to show what the plaintiff has lost in the way of maintenance, support, and position by defendant’s' refusal to fulfill the engagement(Kniffen v. McConnell, 30 N. Y. 285 ; .Lawrence v. Cook, 56 Me, 187 ; Miller v. Rosier,. 31 Mich. 475 ; Bennett v. Beam, 42 Mich. 346 ; Watson v. Watson, 53 Mich. 168 ; Kelley v. Riley, 106 Mass. 339 ).

Nevertheless, the plaintiff was allowed to testify as to alleged declarations of defendant, to the effect that he was the only heir of his uncle, who would leave a large estate to him. This evidence was clearly immaterial, and we cannot say that it did not materially increase the amount of the verdict rendered.

In Miller v. Rosier (supra) one of the reasons for reversal was that plaintiff had been allowed to show the value of a farm owned by defendant’s father. The ground upon which this evidence had been allowed was that .the defendant had made statements to plaintiff that his property was invested in the farm. But even under such circumstances, which rendered the argument for the admissibility of the evidence a much stronger one than can be advanced in the case at bar, the Supreme Court of Michigan held, Judge Cooley writing the opinion, that this evidence “only went to show the father’s circumstances, which were wholly immaterial to the

p. 285

case on trial.” Evidence of the pecuniary resources of an uncle to whose estate the defendant is not shown to have added anything, and who is, moreover, legally entitled to devise and bequeath his estate to any person other than defendant, is even more irrelevant; and its reception was substantial error.

We think it was also erroneous, under the pretense of proving defendant’s general reputation for wealth, to allow plaintiff’s answer to stand—“ I heard that he was a very rich man.” I cannot see that this tends to establish general reputation. She may have “ heard ’’ it only once from a single person. This should have been stricken out on defendant’s motion; as the record stands it is the baldest “ hearsay.”

In my opinion declarations of the defendant himself as to specific property, real and personal -he owned or had purchased, would be admissible. They would come in under the general rule admitting a party’s own statements against him which tend to prove a material fact. I do not understand that the intimation in Kniffen v. McConnell (supra at page 288), that evidence of this kind might be objectionable, was intended to apply to a case where it was confined to defendant’s admissions.

Nevertheless for the errors above pointed out a new trial must be had. The irrelevant evidence was obviously introduced solely to increase the damages, and the verdict is sufficiently large to make it seem probable that it was an influential factor in the result.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Bookstaveb, J.—As the judgment in this action must be reversed on the grounds hereinafter stated and a new trial had, I prefer to express no opinion on the reasonableness of plaintiff’s position or whether or not it is sustained by the weight of evidence ; nor do I desire to express any opinion as to the motives which may have induced her to execute the release of the first cause of action set up in the complaint. Neither am I clear that the witness Pes'hall was the agent of

p. 286

the defendant in such a sense as to allow his declarations to be received in evidence. The testimony on all these points may be greatly varied on another trial and I consider it premature to discuss it now.

But I fully concur with the learned Chief Judge that it was error to allow plaintiff’s evidence of defendant’s declarations that he was the only heir of his uncle who would leave him a large estate, for the reasons stated in his opinion. I also concur with him and for the reasons he states, that it was error not to strike out plaintiff’s reply to a question that “ I [plaintiff meaning] heard that he was a very rich man.’’ And on these grounds I concur in the opinion that the judgment should be reversed and a new trial had, with costs to abide the event.

Judgment reversed and new trial ordered, with costs to. abide event.

Cases cited

Kniffen v. McConnell 30 N. Y. 285 N.Y. p. 284