(108 A.)

by the Fair Grounds and a great number of [against the first count; and that the allegatrolley cars were being operated there by the tion is not successfully aided by the addition said defendant. * **That the said defend- of the phrase "carelessly and negligently failant owned at that place on the said right of ed to have any watchman at said crossing of way double metal tracks for the operation of said public highway or give any other suitits said trolley cars and was in the habit of using its western track for trolley cars going able warning of its approach." Lofland's in a southerly direction and its easterly track Brickyard Crossing Cases, 5 Boyce, 150, 91 for trolley cars going in a northerly direction. Atl. 285. That there should be set out in the That then and there the said defendant had a count, in the way indicated by the Brickyard long line of trolley cars standing on its said Cases, an allegation of duty to give due warnwesterly track obstructing the view of the auto-ing, followed by an averment of the breach mobile driver of the plaintiff, who was approach- thereof, with sufficient particularity to ining said crossing from a westerly direction, but form the defendant of the kind of warning it said line of trolley cars were broken and opened for a short space at the point where the public failed to give. road crossed the said right of way of the deCounsel for plaintiff stated that the third fendant. That the said plaintiff approaching, count was drawn with full knowledge of the from the west, said crossing in his said automo- Lofland's Brickyard Crossing Cases, supra. bile and using due care and caution on his part He conceded that it is necessary, before aland on the part of the driver of his said auto-leging a breach, to allege a duty, but he inmobile came to and entered upon the crossing sisted that the count is sufficient and not of the said right of way by and on the public highway. That then and there the defendant open to the objection urged against it. negligently and carelessly operated one of its said trolley cars moving the said trolley car in a southerly direction on the said easterly or north-bound track and thereby said trolley car because of defendant's negligence in moving said trolley car southward on the north-bound track ran into, collided with, threw over and destroy-the third count. ed the said automobile of the said plaintiff and the third count. threw out him, the said plaintiff, on the ground,"

etc.

It was contended for the defendant that the allegation, italicized above, does not state

HEISEL, J. [1, 2] We sustain the demurrer to the first count, but we think the third count comes within the ruling in Padley v. Director General of Railroads, 7 Boyce, 108 Atl. 34, and we overrule the demurrer to

(7 Boyce, 524)

SCHILLING v. OSTEN.

Jan. 16, 1920.)

a cause of action; for a trolley company has (Superior Court of Delaware. New Castle. a right to run its cars in any direction on its own right of way, and the running of a car in a southerly direction on a track which 1. BREACH OF MARRIAGE PROMISE 34-VER

is at other times used for cars running in a northerly direction is not of itself an act of negligence. The plaintiff apparently realized this fact; for in the second count there is this fact; for in the second count there is added to said allegation the phrase, "and carelessly and negligently failed to sound its gong or to give any other suitable warning of its approach."

Counsel for plaintiff contended that the moving of the cars in the wrong direction upmoving of the cars in the wrong direction upon the track, behind a blanket of other cars, as alleged in the count, constituted an act of negligence, sufficient to support the cause of action.

DICT FOR PLAINTIFF AFTER ADMISSION OF
CONTRACT AND BREACH.

In an action for breach of promise to mary, the contract of marriage and the breach thereof having been admitted by defendant, the jury should return verdict in favor of plaintiff.

2. BREACH OF MARRIAGE PROMISE 26-ELE

MENTS OF DAMAGE OPEN FOR CONSIDERATION.

In fixing the amount of damages to plaintiff suing for breach of marriage promise, the jury may consider injury to health, mental suffering, or distress of mind occasioned by defendant's failure, loss of time, expense incurred in preparation for marriage, and such loss in plaintiff's business of teaching music

The corresponding allegation in the third and languages, if any, as resulted from defendcount is: ant's failure to marry her, and from the evidence find such an amount as will reasonably compensate her.

"That then and there the defendant operated one of its said trolley cars moving the said trolley car in a southerly direction on the said easterly or north-bound track and carelessly and negligently failed to have any watchman at said crossing of said public highway or to give any other suitable warning of its approach and thereby said trolley car because of defendant's said negligence ran into," etc.

Counsel for defendant argued that the allegation in the third count is insufficient to support an action for the reason urged

3. BREACH OF MARRIAGE PROMISE 21-CONSIDERATION OF MOTIVES OF DEFENDANT IN DETERMINING DAMAGES.

In actions for breach of marriage promise, it is competent in ascertaining damages for the jury to consider the motives that actuated defendant; if he made the contract and broke it with a bad motive that may be considered; while it is competent for defendant to show in mitigation that his motives were not bad, and his conduct neither cruel nor malicious,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The plaintiff introduced evidence to show that the defendant, after he had gained plaintiff's confidence and affection, made a proposal of marriage to her, which she accepted; that immediately thereafter he began making proposals to her that she live with him as his wife, even without the prospect of an immediate marriage; that the plaintiff refused such proposals; that defendant thereupon requested her to release him from their engagement, which request she also refused; that the defendant thereupon ceased communicating with her and afterwards married another woman; that as a result of defendant's conduct, she underwent great mental suffering, was broken in health and suffered money damage, her financial loss being due to the fact that after she accepted defendant's proposal of marriage she prepared her trousseau and refused pupils in music and languages, of which she was a teacher, and to the further fact that after the defendant had broken the contract of marriage, and as a result thereof, she was so broken in health as to be unable to continue her work as a teacher.

The defendant admitted the contract of marriage and the breach thereof, and introduced evidence solely in mitigation of damages, contending that he endeavored to obtain a license in the city of New York to marry the plaintiff; that said license was refused because he was unable to produce a divorce decree which he had obtained in Germany, and that he was advised by counsel that the law in other states was similar; that thereafter the conduct of plaintiff was such as to cause defendant to believe that she no longer cared for him; that plaintiff attempted to injure defendant in the estimation of his employers; and that plaintiff's alleged broken health and mental suffering were due partly to her temperament and inherent infirmity, and partly to an automobile accident in which she was injured after her engagement to the defendant had been broken by him.

Plaintiff's Prayers.

That the jury be instructed to return a Verdict for the plaintiff.

That in an action for a breach of promise of marriage, damages cannot be measured by a known standard, as in commercial cases, but the amount is peculiarly a question for the jury. That if in this case your verdict entitled to recover such amount, as will should be for the plaintiff, she would be compensate her for the benefits lost or detriments suffered because of the breach, and the distress, mortifications, mental sufshe has undergone in consequence thereof; fering and injury to her affections which and in estimating the plaintiff's damages it is proper to consider her anxiety of mind produced by the breach, loss of time and expenses incurred in preparation for the marriage, her loss of employment in consequence of the engagement, her loss of health in consequence of the breach of the engagement, her inability to pursue her musical occupation by reason of defendant's actions, and defendant's conduct and treatment of plaintiff in his whole intercourse with her. 9 Corpus Juris, 371, 372.

That if in the opinion of the jury, the evidence shows that defendant intended under the guise of honorable propositions of marriage or negotiations looking in that direction, to furnish for himself an opportunity to debauch said plaintiff and in pursuance of such intention did at various times attempt to seduce said plaintiff from the path of virtue, and with the same motive made her a contract of marriage which he then intended to violate and did violate, and this may be considered by you in aggravation of damages, and in such case you may find for the plaintiff such damages as in your sound discretion, from a fair consideration of all the evidence, you may deem proper. Kaufman v. Fye, 99 Tenn. 145, 42 S. W. 25.

Defendant's Prayers.

If the jury believe that defendant endeavored to obtain a license to marry the plaintiff in the city of New York, and that said license was refused because he was unable to produce his divorce decree, and that he was advised by counsel that the law in other states was similar, and that he endeavored to obtain his divorce decree, in order to carry out his agreement with plaintiff, the same should be considered by the jury in mitigation of damages.

That the defendant's attempt to secure a license to marry plaintiff, her evident and expressed lack of affection for him, her attempts to injure defendant in the estimation of his employers and the general character and temperament of plaintiff should be considered by the jury in mitigation of damages.

(108 A.)

[3] In actions of breach of promise of marriage, it is also competent for the purpose of ascertaining the damages for you to consider the motives that actuated the defendant in entering into and breaking the contract. If he entered into the contract and broke it with a bad motive and a wicked heart, you may consider that in reaching your conclusion. On the other hand, it is

If the jury should believe that the alleged broken health and mental suffering was largely due to plaintiff's temperament and inherent infirmity, the same should be considered by them in mitigation of damages. Kelley v. Highfield, 15 Or. 277, 14 Pac. 744. That the marriage state ought not to be lightly entered into. It involves the profoundest interests of human life, transmitting its complex influences direct to posterity. also competent for the defendant to show The marriage engagement should be viewed as a period of probation, so to speak, for both parties, their opportunities for finding one another out, and if that probation results in developing incompatibility of tastes and temperament, coldness, suspicion and incurable repugnance of one to the other, though all this may impute no vice to either, nor afford matter for judicial demonstration, duty requires that the match be broken off. Goddard v. Westcott, 82 Mich. 188, 46 N. W. 242.

HEISEL, J., charging the jury:

This is an action brought by the plaintiff, Anna Schilling, against the defendant, William H. Osten, for the recovery of damages for injuries alleged to have been suffered

in mitigation of damages that his motives' in entering into and breaking the engagement were not bad, and that his conduct was neither cruel nor malicious, and that the plaintiff was not in fact injured and suffered only nominal damages.

[4] You are the sole judges of the credibility of the witnesses and the weight of their evidence, and it is from the evidence under the law as we have announced it, you are to ascertain the amount of the verdict in this case. Verdict for plaintiff.

by her, by reason of his failure to carry F. B. NORMAN CO. v. E. I. DU PONT DE out a promise or agreement to marry her.

NEMOURS & CO.

She claims that on the tenth day of March, 1917, after an acquaintance of about two (Court of Chancery of Delaware.

years the defendant proposed marriage to

1920.)

Jan. 17,

CEPTED OFFER TO SURRENDER DOES NOT TER-
MINATE LEASE.

her and she accepted his proposal; that 1. LANDLORD AND TENANT 109(4)-UNACsaid agreement to marry was to have been carried into effect, and said marriage solemnized during the months of April or May, 1917, or as soon thereafter as possible, and that defendant subsequently refused to carry out his said agreement.

The defendant admits the promise to marry the plaintiff, as claimed by her, and also admits his failure to carry such promise into execution, but denies that the plaintiff suffered any material injury thereby, and adduced evidence to show the circumstances under which the engagement was broken for the purpose of reducing the amount of damages.

An offer by lessee to release a lessor from further obligation and to surrender the lease, which was not accepted, does not terminate the lease.

2. LANDLORD AND TENANT 109(4)-REPLY

OF LESSOR A REJECTION OF OFFER TO SURREN-
DER LEASE.

Where lessor replied to lessee's offer to surrender the lease by oral negotiations concerning the agreed improvements and by letter stating a hope that the premises would soon be ready for lessee, lessee was justified in treating the reply as a rejection of the offer to surrender.

CANNOT ACCEPT OFFER OF SURRENDER WHICH
HE HAD PREVIOUSLY REJECTED.

render the lease by continued negotiations to
After a lessor has rejected an offer to sur-
induce the lessee to take the premises, he can-
not escape liability under the lease by there-
after accepting the offer.

[1, 2] The contract of marriage and the breach thereof having been admitted by the 3. LANDLORD AND TENANT 109(4)-LESSOR defendant, you should find a verdict in favor of the plaintiff. In fixing the amount of damages she is entitled to receive, you may take into consideration any injury to her health, her mental suffering, or distress of mind, if any, occasioned by the failure to carry out the engagement; any loss of time and expense incurred in preparation for the marriage and such loss in her business of teaching music and languages, if any, as resulted from his failure to marry her; and from the evidence find such an amount, as will in your judgment, reasonably compensate her for such loss as she may have thus sustained.

4. LANDLORD AND TENANT 109(1) — FAIL

URE TO MAKE ANSWER TO OFFER OF LESSOR
TO CANCEL DOES NOT ESTABLISH ACQUIES-
CENCE BY LESSEE.

The failure of lessee to make any answer to an offer by lessor to cancel the lease does not of itself show acquiescence or abandonment, especially where it did not appear that lessee knew that the obstacles to making the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Suit by F. B. Norman Company against E. I. Du Pont de Nemours & Co. for specific per-fendant. formance of a contract to lease real estate.

On final hearing. Decree entered for com- THE CHANCELLOR. By lease dated plainant. January 28, 1912, the defendant leased to the

(108 A.)

complainant a lot of land and building on [lease. To hold otherwise would imply deceit West Eleventh Street, in Wilmington, for by the writer of the letter. The letter referfive years at a money rent. The lessor agreed red not to a new proposition, but to the old to make certain repairs and improvements one, and thereafter neither party could say, theretofore agreed on, consisting of structur- as against the other, that the lessor had been al changes to adapt the building to the uses effectively discharged from its obligation to of the business of the complainant, and if the lessee. Consequently the lessee thereaftthey were not completed by February 1 the er had a right to expect that the building occupancy under the lease would begin upon would as soon as practicable be put in conditheir completion. There was delay in getting tion for its occupancy under the lease. from the Building Inspector a permit for the improvements, and the permit could not have been obtained by the defendant until Juné 21. Thereafter there was no reason why the defendant could not have made the contemplated changes in the building, though the cost of doing so would have been greater than the earlier estimate thereof.

[1] The lessor claims to have been released by the lessee from all obligations under the lease by a letter of the latter dated March 13, 1919, in which it was stated that the uncertainties as to the lessor being in a position to give possession had made it necessary for the lessee "to make other arrangements," and the lessor was in terms "released from any further obligations" to the lessee, followed by an offer by the lessee to return its copy of the lease "upon request by letter."

[2] Obviously if accepted, or if the lessor had so acted as that its acceptance could reasonably have been implied, this letter was sufficient to relieve the lessor of a further duty to perform the contract. On the other hand, it is not clear that the lessee then had a right to terminate the lease against the wishes of the lessor. But it is unimportant to consider this point, because after the letter of March 13 had been received by the defendant, there were conferences between the parties as to the continuance of the relationship created by the lease, and by letter dated April 1, Daniel Cauffiel, acting for the lessor, and in confirmation of such prior conversations, expressed regret that the building was not in readiness to come up to the expectation of the lessee,

For the lessee it was explained that because of delays of the lessor as to the improvements after the making of the lease the lessee desired to acquire the use of other premises, and endeavored by the letter of March 13 to obtain a release from its obligation to the defendant, but having no reply thereto gave up the effort to get other quarters, and reverted to the lease. Confirmation of this is found in the letter of the defendant of April 1 referring to conversations.

[3] From April 1 to May 16 F. B. Norman, for the complainant, made at various times inquiries of the defendant, showing a desire and intention to carry out the lease, but as the permit was not obtainable until June 21 the improvements were not made. Cauffiel, for the defendant, sent the complainant an enigmatical letter dated May 16 referring to the delay as to the permit, and saying in substance that the defendant company would continue to use the building, until a permit be obtained, and when obtained would give the complainant company the "refusal" of the building, and asked for a return of the lease. What was the effect of this letter on the rights of the complainant? None. The offer of the complainant to abandon its rights under the lease had been rejected by the defendant, and the parties had thereafter, and at least to May 16, acted as if each intended to perform. By the letter of May 16 the lessor tried to accept a proposition which did not exist, the one made having been previously declined by the defendant. The defendant could not in that way take away the rights of the lessee. Without necessarily relinquishing its advantage Mr. Norman suggested to Cauffiel that the defendant use the building of the complainant on Shipley Street, because in the letter of May 16 Cauffiel had stated as a There was nothing in the prior conversa- reason for desiring to cancel the lease that tions which justified any special interpreta- the defendant company wanted to continue to tion to this letter, for those conversations re-use part of the demised property. The suglated to no other transaction between the parties than the lease, the lessee inquiring as to when the changes would be made and the lessor explaining delays. At this time the lessee desired to go on with the lease, and up to this time nothing had been said or done by the lessor to the contrary, or to indicate that the letter of March 13 had been adopted by it as a finality in terminating the lease.

and said:

"However, we are going to rush this through and hope to be able to advise you at an early date that you may occupy it," meaning occupy

the leased building.

It is very clear, then, that the lessee was justified in interpreting the letter of April 1 as a rejection of its effort to terminate the

gestion of Norman was a new element in the dealings, but it has no significance or evidential value to show an abandonment by the complainant of its rights under the lease.

After June 21 the Building Inspector was empowered to give the permit and this was known by the defendant company. From early in June to July 10 Mr. Norman was out of the city, and there is no evidence that he, or any officer of the complainant company, knew that the Building Inspector had authority to grant the permit. No reply was made