cerning these facts is not sufficient and that the fact itself must be proved. 83

§ 1883. Married parties.-The defendant may show that he was married at the time of the alleged promise and that plaintiff knew it, or he may prove that the plaintiff was married.85 But both of these contentions may be rebutted and the plaintiff may show that she had no knowledge that the defendant was a married man,86 or she may show that she had a divorce and was unmarried.87

§ 1884. Immoral or illegal promises.-A promise of marriage in consideration of illicit intercourse, or upon one of the parties procuring a divorce is not good as against public policy.88 So, where the statute makes marriage within a certain degree of relationship illegal, this relationship may be offered as a defense.89

§ 1885. Impotency and ill-health.-If the plaintiff is impotent or unable to have intercourse, this may be shown as a defense, in a proper case. In an action for breach of promise of marriage it may be proved that the woman was unable to have sexual intercourse and although she promised to submit to a surgical operation and did not, it may nevertheless be offered as a complete defense.90 Evidence of poor health may be used as a defense unless these facts were concealed from the plaintiff and defendant knew of them at the time of making the contract. If the plaintiff has a venereal disease, unknown to

87 Eve v. Rogers, 12 Ind. App. 623, 40 N. E. 25; Smith v. Hall, 69 Conn. 651, 38 Atl. 386.

89 Hanks v. Naglee, 54 Cal. 51, 35 Am. R. 67; Noice v. Brown, 38 N. J. L. 228; Burke v. Shaver, 92 Va. 345, 23 S. E. 749; Eve v. Rogers, 12 Ind. App. 623, 40 N. E. 25; Hanks v. Naglee, 54 Cal. 51, 35 Am. R. 67. 89 Albretz v. Albretz, 78 Wis. 72, 47

Drennan v. Douglas, 102 Ill. 341, N. W. 95, 10 L. R. A. 584; Reed v. 40 Am. R. 595. Reed, 49 Ohio St. 654, 32 N. E. 750.

Kelley v. Riley, 106 Mass. 339, 8 Am. R. 336; Kerns v. Hagenbuchle, 42 N. Y. St. 210, 17 N. Y. S. 367; Coover v. Davenport, 1 Heisk. (48 Tenn.) 368, 2 Am. R. 706.

90

"Gring v. Lercn, 112 Pa. St. 244, 3 Atl. 841, 56 Am. R. 314; see also, Gulick v. Gulick, 41 N. J. L. 13; note in 40 Am. St. 172.

" Trammell v. Vaughan, 158 Mo.

the defendant at the time of entering into the contract, or if such a disease reappears in the defendant, after the promise, when he had in good faith believed that he had been cured, this fact may be shown as a defense.92

§ 1886. Damages.-The damages recoverable for breach of promise to marry are such as will compensate plaintiff for the benefits lost by the breach, and for the mental suffering; and the jury may consider all the proper circumstances in evidence attending the breach. Generally damages must be proved in a case of breach of contract; but proof of specific damages is not always necessary. 95 Bad faith or attentions for the purpose of deceiving the plaintiff can be shown in aggravation of damages but not as a defense.96

§ 1887. Financial condition of plaintiff.-The plaintiff may show that she has no property and no means of support.97 She may show her mental suffering caused by the breach of promise, and any sickness or suffering therefrom, which would affect her earning capacity.98

The length of time of the engagement is an element to be shown in fixing the damages," and the plaintiff may show the expenses incurred in preparation for the marriage 100 and the loss of time and employment in preparing for the marriage.101

§ 1888. Financial condition of defendant.-In order to fix the damages, evidence may be introduced which shows the financial condition of the defendant and his social position, and what rights and privileges the plaintiff would have acquired pecuniarily and socially by such marriage.102 The earning capacity of the defendant may be shown to help in determining the damages,103 and also his social position,104 but evidence is not admissible to show the wealth of a relative from whom he may inherit an estate.1 Reputation of defendant for wealth may be shown to help in fixing the damages,108 and specific evidence thereof may also be used.107 The defendant in rebuttal may show his real wealth at the time of the breach, for those are the con

* Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936; Olmstead v. Hay, 112 Iowa 349, 83 N. W. 1056.

105

105 Totten v. Read, 16 Daly (N. Y.) 282, 10 N. Y. S. 318; Miller v. Rosier, 31 Mich. 475; Clark V. Hodges, 65 Vt. 273, 26 Atl. 726,

100 Yale v. Curtiss, 151 N. Y. 598, holds that "a decree settling the 45 N. E. 1125.

11 Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308, 11 L. R. A. 784.

Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308, 11 L. R. A. 784; Tamke v. Vangsnes, 72 Minn. 236, 75 N. W. 217; Kennedy v. Rodgers, 2 Kans. App. 764, 44 Pac. 47; Allen v. Baker, 86 N. Car. 91, 41 Am. R. 444; Reed v. Clark, 47 Cal. 194; Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936; Lawrence v. Cooke, 56 Me. 187, 96 Am. R. 443; Clark v. Hodges, 65 Vt. 273, 26 Atl. 726.

108 Rime v. Rater, 108 Iowa 61, 78 N. W. 835.

Dent v. Pickins, 34 W. Va. 240, 12 S. E. 698, 26 Am. St. 921; Bennett v. Beam, 42 Mich. 346, 4 N. W. 8. 36 Am. R. 442; Johnson v. Travis, 33 Minn. 231, 22 N. W. 624.

share of defendant in the estate of his deceased father, whose death occurred previous to the breach, was admissible as tending to show defendant's pecuniary ability at the time of the breach, although the decree was not rendered until afterward.

106 Birum v. Johnson, 87 Minn. 362, 92 N. W. 1;.Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. R. 442; Rime v. Rater, 108 Iowa 61, 78 N. W. 835; Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308, 11 L. R. A. 784; Stratton v. Dole, 45 Neb. 472, 63 N. W. 875.

107 Smith v. Compton, 67 N. J. L. 548, 52 Atl. 386; Dent v. Pickins, 34 W. Va. 240, 12 S. E. 698, 26 Am. St. 921; Holloway v. Griffith, 32 Iowa 409, 7 Am. R. 208.

§ 1893. Mitigation of damages.-Unchastity of the plaintiff may be shown not only as a defense but in mitigation of damages, if the defendant was ignorant of such fact at the time of the contract;126 but, it has been held, that the defendant cannot show plaintiff's illicit intercourse with himself, either before or after the promise, for the purpose of reducing damages. 127 Loud or immoral conduct after the breach, with others, may be shown to reduce damages, as a woman guilty of such conduct could not be greatly humiliated or injured by such breach.128 Illicit relations with another during time of engagement may not only be offered as a defense, but in mitigation of damages. 129 Coarse and immodest conduct of plaintiff may be shown for this same purpose.' 130 But bad character of relatives of either plaintiff or defendant cannot for any purpose be shown.1 The defendant may show in mitigation of damages that the plaintiff did not care for him in the proper manner,' 132 and she cannot prove her declarations after the breach to dispute this fact,133 although he may use her declarations after the breach to show that she did not care for him.134 Where no undue familiarity is shown, evidence that she had other suitors is not admissible.1 135 Evidence of an offer to marry plaintiff after the breach, may be shown136 in a proper case. The poor

128 Clark v. Reese, 26 Tex. Civ. App. 619, 64 S. W. 783; Kelley v. Highfield, 15 Ore. 277, 14 Pac. 744; Clement v. Brown, 57 Minn. 314, 59 N. W. 198; Goddard v. Westcott, 82 Mich. 180, 46 N. W. 242.

127

Boynton v. Kellogg, 3 Mass. 189. 128 Willard v. Stone, 7 Cow. (N. Y.) 22, 17 Am. Dec. 496; Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925; Button v. McCauley, 38 Barb. (N. Y.) 413, holds that drunkenness of the plaintiff may be shown in mitigation of damages.

120 Clark v. Reese, 26 Tex. Civ. App. 619, 64 S. W. 783; Sheahan v. Barry, 27 Mich. 217.

130 Albertz v. Albertz, 78 Wis. 72, 74 N. W. 95, 10 L. R. A. 584; Stratton v. Dole, 45 Neb. 472, 63 N. W. 875.

131 Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Spell

131

ing v. Parks, 104 Tenn. 351, 58 S. W. 126.

132 Robinson v. Craver, 88 Iowa 381, 55 N. W. 492; Hook v. George, 100 Mass. 331.

133 Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. R. 442; Edwards v. Edwards, 93 Iowa 127, 61 N. W. 413.

134 Robinson v. Craver, 88 Iowa 381, 55 N. W. 492; Healey v. O'Sullivan, 6 Allen (Mass.) 114.

135 Roper v. Clay, 18 Mo. 383, 59 Am. R. 314; Albertz v. Albertz, 78 Wis. 72, 47 N. W. 95, 10 L. R. A. 584. 136 Kelly v. Renfro, 9 Ala. (U. S.) 325, 44 Am. Dec. 441; contra: Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. R. 442; not as a defense: Kurtz v. Frank, 76 Ind. 594, 40 Am. R. 275; Southard v. Rexford, 6 Cow. (N. Y.) 255.

health of either party, in the absence of fraud or misrepresentations, may be shown in mitigation of damages. 187 It has also been held that the defendant may show the fact, if he was ignorant of it at the time of entering the contract, that certain members of plaintiff's family are insane, in mitigation of damages. 138

Walker v. Johnson, 6 Ind. App. 600, 33 N. E. 267, plaintiff's illhealth; Mabin v. Webster, 129 Ind. 430, 28 N. E. 863, 28 Am. St. 199, defendant's ill-health; Sanders v. Cole

man, 97 Va. 690, 34 S. E. 621, 47 L. R. A. 581.

138 Lohner v. Coldwell, 15 Tex. Civ. App. 444, 39 S. W. 591; but see, Baker v. Cartwright, 10 C. B. N. S. 124, 7 Jur. N. S. 1247.