Green v. Spencer

• Decision Date: 30 April 1834
• Citation: 3 Mo. 318
• Parties: GREEN v. SPENCER.
• Court: Missouri Supreme Court

3 Mo. 318

GREEN

v.SPENCER.

Supreme Court of Missouri.

April Term, 1834.

ERROR FROM THE HOWARD CIRCUIT COURT.

WASH, J.

Spencer, the defendant in error, brought her action in the Circuit Court against Green, the plaintiff in error, for a breach of marriage contract, and got a verdict and judgment for $5,000; to reverse which judgment Green now prosecutes his writ of error in this court. The evidence given on the trial in the Circuit Court, as preserved in the bill of exceptions, is, in substance, that the plaintiff in error, after having been a suitor of the defendant for a year or more, entered into a contract with her to marry her in May, 1832, upon a day fixed; that a short time after the contract was entered into, the plaintiff proposed to the defendant, and she agreed to put off the marriage until some time about the 10th of September following; that when September came, the plaintiff proposed to the defendant and to her father, a farther postponement, which was agreed to, and the plaintiff then promised to marry the defendant in a month or so. “That afterwards, some time in October, the plaintiff and defendant were sitting together at her father's house, and were asked by her father why they did not get married; that the plaintiff replied that he was ready and willing to anything, and the defendant replied that she was ready to marry, and stated that she had made preparations for the occasion and was as ready to marry as she ever would be. That during the time of the engagement to marry, the plaintiff seduced and got the defendant with child. That the child was born on the 27th of June, 1833, and the plaintiff admitted himself to be the father of it. That the general character of the defendant for chastity and virtue, prior to the time of her seduction by the plaintiff, was good. The deposition of one Oldham was also read in evidence to show that the plaintiff, preceding the contract to marry, had maneuvered to get the contract broken by the defendant through the influence of her father, and that the plaintiff never intended to comply with his contract. This is all the evidence it seems material to state in disposing of the questions which have been raised by the counsel for the plaintiff in error. Upon this state of facts the counsel for Green moved the Circuit Court to instruct the jury: First. That to enable the plaintiff to recover in this action the jury must find that the agreement proved was for a marriage on a particular day; or if by the ageement no time was specified when the marriage was to take place, an offer to marry by the plaintiff must be proved. Second. That no evidence of an offer to marry by the plaintiff has been given in this case. Third. That the jury cannot in this case take into consideration the seduction of the plaintiff by the defendant for any purpose. Fourth. That the seduction and getting with child the plaintiff by the defendant is an injury to the father of which the plaintiff cannot legally complain.

The first and fourth instructions prayed for were given by the court; the second and third were refused, and the opinion of the court in refusing them was excepted to. The errors assigned and relied on are: First. That the court below permitted evidence of seduction to go to the jury. Second. That the court permitted the deposition of Oldham to be read to the jury. Third. That the court permitted evidence of general character of the plaintiff below to go to the jury. Fourth. That the court refused to give the second instruction asked by the defendant below to the jury. Fifth. That the court erred in refusing the third instruction asked by the defendant below.

The first and fifth errors assigned may be considered together; they amount to the same thing, and present to the consideration of this court, for the first time, a question of deep interest to the community, as well as to the parties in the cause. The counsel on both sides have argued it with zeal and ability.

For the plaintiff in error it is insisted that the law is clearly settled that seduction cannot be given in evidence to aggravate the damages for a breach of marriage contract. Various authorities have been cited and commented on and enforced with an eloquence and ingenuity worthy of a better cause. Such as are accessible have been examined. In 2 Bibb, 341, Burks v. Shain, the seduction took place before the promise to marry, and might have been the cause of the promise; but could not have been the consequence (as is aptly observed in that case). It appeared, moreover, in that case “that the father had brought suit for the seduction and the consequent expenses and loss of service.” 2 Philips, 159, in treating of the evidence in an action of trespass for seduction, lays it down that “evidence of the defendant having given the daughter a promise of marriage before he seduced her, is not admissible.” The breach of such an engagement may be made the subject of another distinct action; and it is an injury to the daughter, not to the parent.” The counsel for the plaintiff insists that the true converse of any proposition that is true is itself true; and then contend that evidence of seduction...