Piper v. Kingsbury

[485] Tbe opinion of the court was delivered by Pierpoint, Cb. J. This is an action to recover damages for an alleged breach of a contract of marriage. The only questions .arise upon the charge of the court. The counsel preferred two requests to the court to charge, based upon the plaintiff’s testimony tending to show a settlement of the matters in controversy between the parties prior to the commencement of the suit. The court directed the jury to find specially in regard to the subject of those requests, and the matter was submitted to the jury under a charge that was not excepted to except in one particular, which is embraced in the last clause of the verdict' of the jury, so that no other question can be made, based upon such requests, except such as grows out of said last clause ; and the objection there is, that there was no evidence in the case that warranted the court in submitting the question to the jury that is answered by them in that clause. The jury had found specially that the plaintiff agreed to take and the defendant agreed to pay her three hundred dollars damages for the breach of said agreement by the defendant. They then find that the plaintiff agreed to take that sum only upon condition that the defendant should pay the same*without suit or further trouble. The defendant did not set up this agreement of settlement by way of- defence, but denied its existence, and testified in the case that no such agreement was ever entered into. The plaintiff testified that she told him that, to have no further trouble, she would take $300 ;"that defendant agreed to pay it in one year, but never paid anything; that she did not release him from his promise, but waited the year before commencing suit. We think upon the evidence the court was fully justified in submitting the question-to the jury, whether the plaintiff agreed to take the $300 only on condition that the defendant would pay the same without giving her further trouble either by suit or otherwise ; and the defendant, by denying the agreement, refusing to pay the money, and compelling her to bring suit, clearly violated the condition, and absolved the plaintiff from all obligation by reason of the agreement. We think there was no error in this branch of the case. It appears from the case, that “ the counsel for the defendant [486] claimed and argued to the jury, that they might and should consider in determining the question of damages, the consequences to plaintiff had she married the defendant, in view of the evidence as to his state of feeling towards her,” claiming that “ her loss was less than if she had entered into an unhappy marriage,” &c. The court was'not requested to charge on this subject, and it does not appear that the court alluded to it one way or the other, but left the argument of counsel to have its full weight with the jury; and the objection now seems to be, that the court did not commend the argument to the favorable consideration of the jury; but if the court had been asked to indorse this argument, we think it would have been warranted in declining. It would virtually have been saying that the plaintiff ought not to recover the damage actually sustained, because the defendant might have inflicted a greater. In other words, it would be offsetting the injury that he might have done, against that already inflicted. Judgment affirmed.