¶1The plaintiff alleges in her declaration, that she and the defendant were engaged to be married to each other; that she was always ready on her part to fulfil the engagement; and that the contract was broken by the defendant. All these are material averments, as to which the burden of proof is upon her. The answer of the defendant admits that the promise was made, but in all other respects it is, in our judgment, a mere denial of her allegations. It is true that it contains several averments, which in form and expression appear to be affirmative in their nature, but which on examination will be found to be merely a circumstantial and detailed negative, as to two material elements of her case. He alleges in his answer, that, although he was ready and offered to fulfil his engagement, she insisted on new and unreasonable conditions, and refused to marry him if they were to live in the house which he had selected, and if his daughter was to live in the family with them. It does not appear-to us that this answer had any effect of shifting the burden of proof, or that it was in the nature of confession and avoidance. On the contrary it was mere denial. The readiness to fulfil the contract on her part which she avers, and was bound to prove, *331must be constant, unconditional and absolute. When he therefore says in his answer that her readiness to marry him was coupled with the condition that she was not to live in the house that he had provided, and that the daughter was not to live with her, he merely denies that she was ready to fulfil her promise according to the terms of her declaration. It was not enough therefore for her to prove that the promise was made, and that he did not fulfil it; for her offer to fulfil the engagement may have been accompanied with conditions that would justify his refusal. Apparently one of the most important controversies in the case was whether she did impose the conditions alleged in the answer. Upon this point the evidence conflicted, and the jury were erroneously instructed in substance that the burden of proof was on the defendant.
¶2The proof of the conversations of the parties previous to their engagement in 1866 was properly admitted, for the purpose for which the court allowed it; and it also had a bearing upon the subject of damages. The letter from Miss Doe, received after the engagement, was not only the subject of a conversation between the parties, but, as the defendant dictated an answer to it, it was virtually a part of the conversation, and was admissible for the purposes for which it was allowed.
¶3The letters from the two witnesses, Emma Carr and Susan F. Brown, were offered on the ground that in their spirit and general purport they were in conflict with the testimony given by those witnesses. They were competent and admissible for that purpose, whatever might be thought of their weight and importance.
¶4The error in the ruling as to the burden of proof however appears to us to render a new trial necessary, and upon that single point the
¶5 Exceptions are sustained.