Year: 1872

IOWEhS VS.. w UHEATL1.@lniS Ouaota
County case was passed upon by the Su-
preme court few days since, and as it
excited considerable interest at the time Of
the trial here, we give the decision of the
Court, prefaced by the following comments
Of the Sacramento Record:


BREACH OF PROMISE.


The Supreme Court yesterday reversed
the judgment Of the Court below and grant
ed new trial in the case of Clarinda Pow
ers against John Wheatly The appeal
was from a judgment of the Ninth District
Court for Shasta county, for $3.50 dam
ages to the plaintiff, Clarinda Powers,
against the defendant and appellant, Wheat
ley, in an action for breach of promise to
marry. The plaintiff averred defendant
promised to marry her, and his subsequent
marriage to another woman. The defend
ant answered admitting the promise to
marry plaintiff and his subsequent marriage
as alleged, but plead that previous to such
marriage the plaintiff had expressly releas
ed him from his contract to marry her
(plaintif), and also that during the engage
ment between himself and plaintiff she
had contracted to marry another, to wit, one
w. II. Wilson. The grounds of the appeal
were based mainly on alleged erroneous
instructions, given by the Court to the jury
on the trial of the cause. The defendant,
in support OF his allegation that plaintiff
had engaged to marry Wilson, introduced
In evidence certain acts of familiarity be-
tween plaintiff and Wilson as tending to
prove an engagement between them. 1t
was contended by plaintiff that this constl-
tuted an attack upon her character for
chastity, and asked the Court to instruct
the Jury, that if the plaintiff failed to make
good such attack, they should assess aggra-
waited damages, aud the Court so instruct
ed. The appellant contended that the IN
struction should not have been given, as
plaintiffs character had not been attacked
and that if it had, the instruction did not
correctly state the law, inasmuch as it did
not leave to the jury to determine whether
an attack had been made wantonly, and
without expectation Of sustaining it. The
Supreme Court sustain appellants view Of
the question and accordingly grant him a
new trial. The Court did not determine
another question raised in the ca e, viz -
Whether the plea, that plaintiff had en-
gagged to marry another person than the
defendant, is a complete defense to her
action, or only pertains to the question of
damages. c. A. Garter and Henry Ed
gerton we're the attorneys for appellant,
and Beatty & benson for respondent.


BY TIE COURT.


33S0-Powers vs. Vile tlcy-This is an
action brought by the plaintiff to recover
damages for an alleged breach of promise
of marriage. Upon the trial the Court
instructed the jury as follows "The dam.
ages are peculiarly within the power of the
jury in cases of this kind, and if the de-
fendant has undertaken to rest his defense,
In whole or in part, on the bad character
or improper conduct of the plaintiff, and
failed in his proof, the jury may consider
this an aggravation of damages" None of
the defenses interposed in the answer of
the defendant set up want of chastity, or
any conduct on the part of the plaintiff un-
becoming chasto and vlrtuous woman.
1t is true that one Of the defenses is, that
pending the engagement, for the breach
of which the action is brought, and before
the alleged breach on the part of the de-
fendant, the plaintiff had engaged herself
to marry another person. While this was
attempted to be shown as fact, which, it
is claimed, released the defendant from his
aateeedent promise to marry the plaintiff,
there is nothing which fairly imports an
assault by the deierdant upon her charac-
ter for chastity. And we have seen moth
ing in the evidence adduecd y the defend
ant amounting to an attempt in that direc-
ton. Uuder this state of the pleadings
and evidence this instruction was not iusti-
fed. 1t set prominently before the minds
of the jury an element which was really
non-existent in the case, and left them at
liberty to make it an ingredient in the as
sessment of the damages. But were this
otherwise, it is not correct proposition of
law, that a defense of the character mention
ed, even if unsuceessfully attempted, ought
per Sc to aggrayate the damages There
ought to be something showing or tending
to show, that, in interposing such defense,
the defendant was aetuated by malice, or
wantonness, or rceklessness, and SO, that it
was not interposed in good faith. Other
wise the defendant might be punished for
even a bona fde effort to defend himself
upon grounds, which, if true, constituted a
good defense, and this merely because he
had in point of fact failed to establish it.
The case which probably goes farthest upon
this point in favor of the plaintiff is that of
Southland VS.. Rexford C. Cowen, 254),
where the jury were instructed, "that
where the defendant attempts to justify his
breach of promise of marriage by stating
upon the record as the cause of his deser-
tion of the plaintiff that she had repeatedly
had criminal intercourse with various per-
sons, and failed entirely in proving it, this
is circumstance which ought to aggravate
the damages" But the circumstances of
the case we're that the defense of unchasti-
ty had not only been spread upon the rec
ord, but at appeared from the testimony
"of the defendants o,cn witnesses, that the
plaintiffs character for chastity had not
been tarnished ecen by the breath of suspi-
cion." The jury were told in that case,
that if the defendant had "spread the de-
tense upon the record for tie purpose of