The Providence news. (Providence [R.I.]) 1891-1906, 1902-04-30

HNS~cN.NSSc~ceSN-NS~cN1TNs
The plaintiff testified at the trial be-
fore a jury that on Nov. "a. 1893 the de-
fendant promised to marry her on Nov.
d. 1899 She had spent the day with him
i'm Pawtucket and Providence. Late in
the evening of Nov. 2ith. the defendant
was arrested by the police for intoxica-
ton. locked up in the station house that
night and fined therefor In the. police
court on the following morning, and was
then taken home by his friends, placed In
bed with an attack of deiimium tremens,
followed by endo carditis.
ON Dec 28d. while the defendant was
still confined to his home, the plaintin
instituted an action against him Tor
breach OF promise of marriage rms ac-
tion was partially tried on May l6, 1900.
and on June 3. 1900 was discontinued by
the plaintiff ON July 13. 1900, the present
action was Instituted without communi-
cation of any kind between the PLAIN
tiff and defendant, meanwhile, and IN that
action the jury rendered the verdict just
set aside.
A PROPER INSTRUCTION.
Judge Boldgett writes the opinion of the
majority of the court and says: SeVeral
questions are presented on the record, ana
by the exceptions. but inasmuch as
exception We do not consider the other
questions raised The defendants thirn
request to instruct the jury was as fol-
lows: Third, unless the jury lind from
the evidence that the plaintn offered TO
marry the defendant. or requested the ue-
fendant to marry her, after the discon-
tinuance of her first action and before the
beginning OF the second they must find
verdict for the defendant: This request
was denied and the defendant duly e%-
cepted thereto.
1--WE are of the opinion that the instruc,
tion asked for by the defendans shou9, hnua
have been granted. The plaintn SHOWS
a promise OF marriage made on NOV; "a,
1899 TO be performed on Nov. q, 1879 Inc
jury have found specially that the deIehu-
ant was not physically able to marry on
Nov. 2s. 1899. This leaves the parties
with a subsisting contract OF marriage
between them. but without date hNed ior
I'm such ease the law construes the
obligation as one TO he performed Wlhln
q reasonable time upon request, uteNS
one of the parties has iucapacitated nm
self for the performance, as by marrying
another or has by positive ana uhepulEo-
cal acts or declarations rendered "A tenutr
or demand unnecessary. Ia the case al
bar it is not claimed that the plaintlt
ever made any such request or oIfer pe-
tween Nov. 2S. 1899, and Dec. y, 1879 whsn
she brought her first action against the
defendant
DEFENDANT JUSTIFIED.
so long as the action was pending tho
defendant was justified in assuming that
the plaintiff no longer desired e perform
anCc Of the promise. but preferred rather
damages for the breach Of IL. That ac-
tion was discontinued on june =. 1900. ana
the present action was begun on July IL,
1900
."rhe Jury have further specially found
that the plaintin did not offer TO marry
tho defendant or request the defendant To
marry her after the discontlnuance OF
her first action and before the bringinG
of tho present action. Indeed, from INC
failure of the plaintim to visit the de-
fendant at any time during his Illness. or
10 otherwise communicate with him, Wo
think that the defendant was entirely
Justified I'm concluding that she was no
longer willing 20 become his wife.
The court speedily dlSpOSeS OF pam
tins claim that she lost property valued
at $4,000. because 90 defendant failure
10 keep his promise 10 marry her There
is no proof. tho court says, that Corey
possessed property az weymouth Heights.
Mass. az plaintiff claims The court
holds 10 was the least Miss Clark could
have done. after she know Mr. Corey vas
sick. to again request him to NUM- his
contract. or at least remind him of IL
and her willingness to do her part
DISSENTING OPINION.
Judge Tininghast disscnts from TIE
opinion OF the majorityr lio sa|s the
practical question which Is presented for
the courts decision a. he understands IL
is whether man can make himself III
lust before his wedding day and sub
scauently. when sued for not fulhlliag
his promise OF marriage, be permitted 10
set M his physical disability thus vol
UNFAIRLY caused. IN defence OF the action.
Ills honor says: Il do not think he
can. TO allow such defence Is 10 pr
init one 10 take advantage Of his own
wrong. which the law will not do IL.
by making himself drunk. the defendant
rendered himself incompetent 10 perform
his promise on the day set. by reason OF
the effects OF his drunkenness, this was
no excuse for his failure go perform "
aa soon ns he recovered from such III
ness"
judge Tlnnghast also says. Under ihc
decision of the majority oi the court. 10"
plaintiff Will have the right to hereafter