Davis v. Slagle

• Citation: 27 Mo. 600
• Parties: DAVIS, Respondent, v. SLAGLE, Appellant.
• Decision Date: 31 January 1859
• Court: United States State Supreme Court of Missouri

27 Mo. 600

DAVIS, Respondent,

v.SLAGLE, Appellant.

Supreme Court of Missouri.

January Term, 1859.

1. A petition, in an action for breach of promise of marriage, alleging that about a certain specified date, “the defendant--in consideration that the plaintiff, then being sole and unmarried, at the request of the defendant, faithfully promised to marry the defendant--did then and there undertake and faithfully promise to marry the plaintiff; that, confiding in the said promise and undertaking of said defendant, plaintiff has remained and continued and still is sole and unmarried, and has always been, and still is, ready and willing to marry the defendant; that though a reasonable time has elapsed since said promise and undertaking for the defendant to marry plaintiff, and although requested so to do, he has wholly neglected and refused, and still does neglect and refuse,” etc., is good after verdict on motion in arrest of judgment.

2. Where a defendant, in an action for breach of promise of marriage, attempts in his answer to justify his non-compliance with his contract by charging that the character of the plaintiff for virtue is bad, the fact that this imputation is unwarrantably made is a circumstance that aggravates the damages; and the jury may take the same into consideration in estimating the damages.

Appeal from Livingston Circuit Court.

The following are the instructions referred to in the opinion of the court: “1. That if the jury believe from the evidence that plaintiff and defendant contracted to marry each other, and that defendant failed and refused to marry plaintiff, they must find for the plaintiff. 2. That the pleadings in this case admit that defendant refused and failed to marry plaintiff. 3. That in this case, if the jury believe there was a contract between plaintiff and defendant to intermarry, they must find for plaintiff. 5. That in assessing the damages the jury are not limited to the mere pecuniary damage which the plaintiff may have sustained, but may take into consideration the injury to her feelings, character and reputation, and may in this case find for the plaintiff such amount, not exceeding five thousand dollars, as they may believe from the facts and circumstances the case requires.”

Harris, for appellant.

I. The petition does not state facts sufficient to constitute a cause of action. An offer to perform the contract must be averred. That plaintiff was ready and willing, and requested defendant to marry her, is not sufficient. (2 Bibb, 341; 13 B. Mon. 465; 2 Saund. on Plead. & Ev. 348; Green v. Spencer, 3 Mo. 318.) The failure to aver and offer by plaintiff, and an appointment of time and place, is not cured by the verdict, but may be taken advantage of by motion in arrest, or an error or appeal. (Fible v. Caplinger, 13 B. Mon. 485; Mooney v. Kennett, 19 Mo. 551; 7 Barb. 581; 19 Barb. 186; 3 Seld. 464; 4 How. 155.) The first, second and third instructions are erroneous. The fifth instruction is erroneous. Injury to character is not a subject of damages in an action for breach of promise of marriage. Character is not involved in such an action. (Leckey v. Blosey, 24 Penn. 401.) If such damages can be recovered under any circumstances, it could only be when they are specially charged in the petition. (Bedell v. Powell, 13 Barr, 183.)

Davis, for respondent.

I. The character of the plaintiff was directly in issue on the trial. The instructions to take into consideration her character and reputation were properly given. (1 Greenl. Ev. §54; 1 Cow. & Hill's notes, 456; Chitty on Contr. 475; 6 Cow. 254; 13 Mo. 16.)

RICHARDSON, Judge, delivered the opinion of the court.

This was an action to recover damages for a breach of promise of marriage. The petition averred that about the 15th December, 1857, “the defendant, in consideration that the plaintiff, then being sole and unmarried, at the request of the defendant, faithfully promised to marry the defendant, did then and there undertake and faithfully promise to marry the plaintiff; that, confiding in the said promise and undertaking of said defendant, plaintiff has remained and continued and still is sole and unmarried, and has always been and still is ready and willing to marry the...