Kelly v. Renfro , 9 Ala. 325 ( 1846 )

GOLDTHWAITE, J.

1. The contract of marriage is so delicate in its nature, as to render impracticable any attempt to govern it by the same arbitrary rules which obtain with regard to other agreements. Even where there is a mutual engagement, and the day is set for concluding the marriage, it is evident circumstances may occur to make it entirely improper to proceed, or render it expedient to delay, the consummation, if not to terminate the engagement. It cannot then be permitted to either party to a contract of this description to say, the omission to marry upon a particular day is a breach of the engagement. It necessarily continues in force until the one or the other of the parties, by conduct, or by words, evinces that he or she is unwilling to proceed to the ordinary result. When this takes place, and not until then, does any right of action accrue to either party. We say either party, because by strict rule, the action is common to either sex, though in our own country, a jujjt regard to public morals, has long since confined the action alone to the female sufferer. It is said to be necessary to alledge in the declaration, a refusal to perform the contract, (Willard v. Stone, 7 Cowen, 22;) but this refusal is usually, and may always bo, inferred from the acts or declarations of the party. In the present case, it cannot be doubted, the lady was entirely warranted in considering the engagement as terminated so soon as the note of her suitor was communicated to her; but until she manifested her intention to consider it in that light, it cannot be construed into a refusal to marry. In our judgment, if the defendant afterwards, in good faith, proposed to proceed to consummate the contract with her, in a reasonable time, he can in no sense be said to have refused to marry the plaintiff. We do not wish to be understood as asserting the law will tolerate that a man may trifle with the affections and feelings of a virtuous female, and afterwards avoid the consequences of his inhumanity by a simulated offer to marry; but if the offer is made bona fide, and before the female has signified her determination to end the matter, such an offer is a full defence to a suit for a breach of the contract. This seems to be the result of the decision in Southard v. Rexford, 6 Cowen, 254.

2. But if the facts before the jury, in the present case, would have warranted the jury in pronouncing, that the lady considered the engagement as terminated, after the note sent to her father was communicated to her, and this was made known to the defendant, we think, notwithstanding that the subsequent offers, after the suit was commenced, to marry her, were proper evidence in mitigation of damages. The foundation of this action, is the loss of the benefit which the injured party might have derived from the union, if that had taken place, as well as compensation to her wounded feelings and character; and if the other party has honestly offered her all the advantages of his wealth and station in the proposal to make her his wife, we can perceive no reason why the jury could not consider it in mitigation of damages, especially as by this offer, he has done much to relieve her character, if that was impaired by his conduct, and has salved at least her wounded pride. In Baddely v. Matlock, 1 Holt, 151, the refusal to proceed with a marriage, because the party was accused by rumor of some misconduct, was considered proper in mitigation of damages; and certainly it is much stronger to show that the party has been offered all that she seeks compensation for.

From what we have said, it results that the court below erred, both in excluding the offers to marry before the commencement of the suit, as well as those made after.

3. It is scarcely necessary to add, that the charge requested was properly refused. No virtuous female could bé ex-expected to respond directly to the note which the defendant communicated to the plaintiff’s father, and no other inference ought to be drawn from her silence, than that the engagement was terminated, not merely postponed, by this act of the defendant, independent of any assent on her park

Judgment reversed and remanded.