#### Caroline J. Cammerer, Resp’t, *v.*Clemens Muller, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

1. Contract—Breach of promise to marry.

Where a married man induces a woman, ignorant of his being already married, to enter into a promise of marriage, she may recover damages for the breach.

2. Same—Defenses.

It was not a bar to such an action by the woman that, after she found out that the man was married, she refused to carry out the agreement, and that she postponed the proposed marriage until the man should produce a decree showing a divorce which he claimed to have procured in another state.

Appeal from judgment entered on verdict of a jury after trial •at circuit, and from an order denying motion for new trial.

*R. G. Ingersoll,*for app’lt; *D. Dougherty*and *E. H.*Lewis, for resp’t.

Van Brunt, P. J.

This action was brought to recover damages for breach of a contract of marriage. The record of the proceedings of the trial and the points of counsel submitted upon the argument of this appeal are exceedingly voluminous, but the only points presented upon this appeal are few in number and embraced within a very small compass. It will not, therefore, be necessary to rehearse in detail either the facts which the jury must have found to have been established by the evidence, or the evidence which it is claimed by the appellant, showed that some •of those facts at least did not exist.

But we shall briefly call attention to the points of law which are involved upon this appeal.

That some sort of a contract of marriage was entered into between the plaintiff and the defendant is not seriously questioned. But the nature of that contract, the circumstances under which it was entered into and the knowledge of the plaintiff in respect to the condition of the defendant are subjects in respect to which there has been a great conflict of testimony. But in our judgment the whole question turns upon what the plaintiff knew of the condition of defendant in respect to his ability to marry on the 17th of December, 1885, the day upon which this alleged contract was entered into.

It is claimed by defendant that at that time the plaintiff was aware that the defendant had a wife living, and that no marriage could take place between them until this difficulty had been removed either by the death of the wife or by the defendant procuring a divorce from her.

Now it is clear that if this was the fact then no contract which could be enforced in a court of law could possibly be entered into between the parties. If the plaintiff knew the fact that the defendant’s wife was living then she knew that he was incapable of fulfilling any contract of marriage which might be entered into.

It is claimed in addition that an action on contract will not lie ■for a breach by a married man of promise of marriage, and that *584the court erred in overruling the plaintiff’s objection that the respondent failed to establish the fact, that the defendant could have complied at any time with the alleged contract of the 17th December, 1885.

It seems to us that this claim is entirely without foundation. Such a rule would be offering a premium upon villainy. It cannot be that where a man induces a woman to enter into a promise of marriage, she knowing of no disability, that she cannot'"recover damages for the breach of such contract if it turns out that he is incapable of fulfilling it.

We are cited to the case of *Haviland*v. *Halstead,*34 N. Y., 643, but it expressly appeared in that case that the plaintiff knew of the condition of the defendant, and consequently a recovery could not be had. And our attention has been called to no case holding that because one party enters innocently into a contract,, and the other is incapacitated from fulfilling it, and has entered into the contract with fraudulent intent, the innocent party has no remedy. No such rule could, for a moment, find a lodgment in any court of law or of equity. As already said it would be giving a premium to a villain to enter into a contract of this kind and, if you please, apparently, consummate it, and then when called to respond, claim that he cannot be held because he never could have completed the contract.

It is alleged, however, that the evidence in this case shows by a preponderance of evidence that the plaintiff knew the fact that, defendant was a married man when she entered into this agreement, whatever it was, with him.

It is true that a number of witnesses have been examined who-have testified to facts, circumstances and conversations tending to establish this proposition. But the testimony of the plaintiff was explicit that she knew nothing of defendant’s disability until after the contract had been entered into, and supposed him to be a widower, and did not learn to the contrary until the succeeding January, when she wrote to the defendant under date of January 6,. 1886, as follows:

> “My dear Clement: Mrs. Bichter called upon me this morning and gave me startling revelations which to my sensitive-nature were more than painful It is her intention to go to New York and find out several points relative to you and explain to-your sons that she is in no way instrumental in the step you contemplate taking, marriage. Do come to Philadelphia at your earliest convenience, for I must have an understanding. Let me know when I can expect you.”

In reply to this fetter on the 8th of January, 1886, the defendant writes:

> “My beloved Linchen: Your lines of the 6th I received, and am much surprised that Mrs. Bichter takes so much interest in me. She can tell my sons nothing new. They are fully instructed with everything. I cannot go to Philadelphia before Thursday, but will find out in the interim what time I will arrive. Till then take good care of yourself, and remain in good spirits.”

It seems to us, as it undoubtedly seemed to the jury, that this. *585correspondence is conclusive proof that the defendant did not then even pretend, much less believe, that the plaintiff knew of the fact that he was a married man until she was so informed by Mrs. Bichter some time in January, 1886.

The plaintiff further testified, which is in entire harmony with this correspondence, that the defendant came to see her on the 15th January, and that he told her: “ Believe me. I am everything I represented myself to be; I am free to marry; to marry you before the whole world; that I have been married is true; it needs not Mrs. Bichter to come and tell you that; but I am divorced; divorced long before I ever knew you, and am free to marry.”

All the evidence upon this subject was submitted to the jury. This issue was presented by the learned court fairly and squarely to the jury for their determination, and to the satisfaction of the counsel for the defendant, for no exception is taken thereto, and the jury have found in favor of the plaintiff, that she did not know, at the time that this contract of marriage was entered into, that the defendant was a married man; and we think, as already stated, the preponderance of the evidence supports that view, notwithstanding the number of witnesses who were examined for the purpose of showing declarations in reference to the existence of a wife of the defendant in the hearing of the plaintiff, and also declarations by her showing such knowledge.

But it is claimed that the court erred in not dismissing the complaint upon the close of the plaintiff’s proof, because the evidence shows that the contract of the 17th of Decmber, 1885, was abandoned, and a new contract entered into, which fixed the date of the marriage for October, 1886; the performance of said agreement in and by that contract having been conditioned at the instance of the plaintiff upon the production by the defendant of papers showing that the defendant was divorced from his wife. That the plaintiff refused to enter into any pretended contract of marriage with the defendant until he exhibited papers showing a divorce, after she learned that he had a wife living, is amply established by the testimony.

It is sworn to by the plaintiff that at this interview, on the 15th of January, 1886, the defendant represented himself to have been divorced. She asked to see the papers, and that is the way in which the thing stood until August, 1886, she being willing upon the production of the papers showing that he had been legally divorced to fulfill the contract He not producing the papers at this time, they came to the lawyer’s office and then she learnt in reference to proposed proceedings in the Hew Jersey courts to obtain a divorce. She was willing that that divorce should be obtained, and it was at this time that the time for the fulfillment of the contract of marriage was first fixed, namely, in October, 1886. In connection with this interview, the defendant represented that his lawyer had failed to get the copy the papers; that he already had a decree of divorce, obtained Indiana, but that her father thought it better to get a decree in *586New Jersey, in which place the defendant’s wife was confined in *&*lunatic asylum.

The learned court refused to dismiss the complaint, upon this ground, because the evidence did not show an abandonment of the original contract of marriage; that there was a postponement of the marriage only until the defendant could produce these papers showing that he had been legally divorced.

It is clear from a consideration of this testimony, that that was an inference which might fairly be drawn from the facts which were then before the jury. The plaintiff had testified to the fact that the defendant represented himself all the time to be in a condition to comply with his contract of marriage, and that it was owing to the negligence of his lawyer that he had not got the papers showing that he had been divorced in Indiana.

It is true, the plaintiff knew about the commencement of these proceedings in Mew Jersey, but according to her evidence, if the Indiana papers had been produced she would have fulfilled her contract, and the jury might very well find from the evidence of the plaintiff that there never was an abandonment of the original contract of marriage, only a postponement of its completion until the unexpected impediment which had arisen should be removed.

Mow it is undoubtedly true that if the jury had found that the original contract was abandoned and a new one entered into, the new contract would be void under the principles already enunciated. But it cannot be that where the plaintiff has entered into a contract in good faith, which is perfectly valid, and an impediment arises which would have rendered the contract void if she had known it, because she consents to wait until that impediment is removed, she loses all her rights. So long as the original contract exists and has not been waived, so long does her right to vecover exist The subsequent transactions might very well be considered by the jury in mitigation of damages as was charged by the learned court at the request of the defendant But nowhere has the defendant in any way requested the court to submit to the jury any question in relation to the abandonment of the original contract

It is further urged that the court should have dismissed the complaint because the plaintiff upon finding that the defendant was married refused upon her part to carry out the contract, and that she acquiesced in the postponement of the marriage until a decree or papers showing a divorce were produced. It is said that in this state an offer to fulfill the marriage contract must be made by the plaintiff before she can recover; and the plaintiff in this action having refused to allow the defendant to commit bigamy by entering into what she knew would be an.absolutely void marriage with him cannot recover upon the contract made with him by her in good faith. The very instant that this defendant made the contract with the plaintiff, that contract was broken by him. He knew that it was impossible for him to carry it out. She had a right to claim that he should be in a condition to enter into a legal marriage with her; and as far as she was concerned it made no difference what his status might be, and unless she knew of *587the fact when she entered into the contract with him it became a contract by which he was bound to her either by its legal fulfilment or paying damages for its breach. If he induced the plaintiff by suppression of facts to enter into a contract with him which it would be impossible for him to fulfil, certainly he is not entitled to much sympathy when he is called upon to respond in damages for its breach.

The whole defense of the defendant in this case has been entirely disposed of by the verdict of the jury. On every question which could affect the right of the plaintiff to recover the jury found against him, and it is idle to discuss the testimony in respect to those proceedings which occurred subsequent to the entering into the promise in question in view of the fact that the defendant claimed from the court no special instructions in respect thereto except so far as they might be considered in mitigation of damages.

The main questions involved in this case were submitted by the court fairly to the jury entirely to the satisfaction of- the defendant, because no exceptions were taken to the charge, neither could there have been any.

The jury have considered the evidence, they have come to the ■concision that the plaintiff entered into this contract in good faith, in ignorance of the fact that the defendant had a wife living, and that whatever subsequently took place was simply a postponement of the completion of this contract until the impediment might be removed. She certainly was not compiled to wait forever, and it is not claimed on the part of the defendant that to this day he was ever in a condition to fulfil this contract.

Under these circumstances we see no reason to interfere with the finding of the jury, and the judgment and order should be affirmed, with costs.

Daniels and Lawrence, JJ., concur.