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November 20.Wbndt J.
Present : Sir Charles Peter Layard, Kt., Chief Justice, andMr. Justice Wendt.
JAYESINHE v. PERERA.D. C., Oalle, 6,132.
Breach, of promise of marriage—Promise in writing—Sufficiency of writing■—Ordinance' No. 2 of 189S, 'section 21.
The plaintiff and the defendant had promised to marry each otherand the plaintiff, at the request of her father, wrote to the defen-dant asking for a written- promise of marriage. In reply to thisletter the defendant wrote as follows: —“I am not agreeable to whatpapa says, for this reason: that is, if I trust darling, should not dar-ling trust me? … . If they have no faith in my word, I cannot help-it. If they don’t believe my word, I am not ^o blame. ”
In an action by the plaintiff for breach of promise of marriage.—Held, that this letter was a sufficient complaince with the require-ments of section 21 of Ordinance No. 2 of 1895, which enacts that" no action shall lie for the recovery of damages for breach of pro-mise of marriage unless such promise of marriage shall have beenmade in writing; " and that the plaintiff was entitled to maintainthe action. –
PPEAL by the defendant from a judgment of the DistrictJudge of Galle awarding the plaintiff Rs. 5,000 damages for
breach of promise of marriage.
Dornhorst, K.C., and Sampayo, K.C. (H. J. C. Pereira withthem), for defendant, appellant.
Walter Pereira, K.C. (Bawa with him), for plaintiff, respondent.
Cur. adv. vult.
20th November, 1903. Wendt J.—
This is an action for damages for breach of defendant’s promiseto marry the plaintiff, and the question is whether the promise hasbeen made in writing, so as to satisfy the requirement of section 21 ofOrdinance No. 2 of 1895. This section, up to the ^nd of the firstproviso, . is a substantial re-anctment- of section 30 of OrdinanceNo. 6 of 1847, which abolished actions to compel marriage, but by thatfirst proviso saved the right to recover damages. The second pro-viso, upon which the present case turns, is an advance upon ,the lawas declared in 1847, and it restricts the applicability of the remedyin damages by enacting that “ no action shall lie for the recovery ofdamages for breach of promise of marriage unless such promise ofmarriage shall have been made in writing.” There is nothing in thepreamble or other part of the Ordinance expressly declaratory of the
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object of the Legislature in inserting this proviso, "but seeing thatmarriage (and consequently the promise of marriage) is not an insti-tution which the law views with disfavour, but rather the contrary,I think we may presume that the intention of the Legislature wasthe same as actuated the passing of the Statute of Frauds, requiringa written record as a condition precedent to the enforcement of cer-tain contracts. " Its object,” said Kindersley, V.C. in Barktoorthv. Young (1) "was to prevent the mischief arising from resort-ing to oral evidence to prove the existence of the terms of analleged verbal agreement in certain specified cases, and amongst therest an agreement made in consideration of marriage, it having beenfound that in actions and suits to enforce such agreements they were,in the language of the preamble, commonly endeavoured to be' up-held by perjury and subornation of perjury. Now, it is obviousthat there can be no ground to apprehend any such mischief in anycase in which you have, under the hand of a party sought to becharged, a written statement of the agreement which he entered intoand of all its terms; and for this purpose, as it appears to me. it cansignify nothing what is the nature or character of the documentcontaining such statement, provided it be signed by the partysought to be charged.” And Lord Hardwicke, in Welford v. Beazely (2)said: " The meaning of the Statute is to reduce contracts toa certainty, in order to avoid perjury on the one hand, and fraud onthe other, and therefore, both in this Court and the Court of CommonLaw, where an agreement has been reduced to such a certainty, andthe substance of the Statute has been complied with in the materialpart, the forms have never been insisted upon.” These statementsof the law not only bear upon the intention of the Legislature, butare also useful guides in ascertaining whether the letters put inevidence establish the promise of marriage.
The circumstances under which those letters were written arefound by the District Judge and stated in his judgment. It is onlynecessary here to say that the defendant, who had long courted hiscousin, the plaintiif, asked her father’s consent to the marriage andthe young couple promised to marry each other. At the father’ssuggestion tbp defendant undertook to send him a formal writtensolicitation of the plaintiff’s hand. This he did not send, and in con-sequence the plaintiff at her father’s request wrote defendant a letterasking him to put his promise in writing. This letter, defendant says,he destroyed along with plaintiff’s other letters. But his auswer(letter D) has been produced. With the exception of the last thirteenwords, which are in English, this letter was in Sinhalese, and a trans-lation has been put in and is not disputed. In it the defendant
ft) 26 L. J. eh. 153.(2) 3 Atb. 503.
November 20.Wendt J.
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1803. meets the request for a written record of his verbal promise in thisNovember 20. way; he says he is not agreeable to plaintiff’s father’s suggestion,Wmror J. for the reason that if he (defendant) trusts the plaintiff she shouldin turn trust him: if plaintiff’s parents have no faith in his word, hecannot help it; if they don’t believe his word, he is not to blame.The District Judge has disbelieved the defendant’s story that thereference here is to his promise to lend plaintiff’s father some money,and not only the letters themselves but the paral testimony provesthat story to be false. The District Judge believes plaintiff’sevidence that the allusion is to defendant’s promise of marriage.So read in connection with the letter to which it was an answer, theletter contains an unqualified admission under the hand of the defen-dant of the existence of his promise to marry the plaintiff, and in myopinion that is all the Ordinance requires.
In the case of Beling v. Vetheean (1), the parties had verballypromised to marry each other some considerable time beforethe date of the letters there relied upon. The defendant thenwrote to the plaintiff, referring to the time when they should bemarried and asking plaintiff, “ Shall we fix the happy day for the 8thof April?” Plaintiff wrote back consenting to marry defendant onthat day, and this Court held that defendant’s letter sufficiently com-.plied with the requirements of the Ordinance. It will be observedthat there too the defendant’s original contract was not in writing.Unlike contracts which the Statute of Frauds requires to be in writ-ing—such, for instance, as contracts for the sale of goods, in whichthe commodity; the price, &c., may vary—a contract to marry admits-of very little, if it admits of any, variation. “ In consideration ofyour promising to marry me, I promise to marry you,” is its ultimatelegal form. If this is to be unequivocally gathered from the writing,
I think it is sufficient. And it is to be so gathered in this case.
I think the District Judge’s decree should be affirmed, and theappeal dismissed with costs.
Layard C.J.—I agree with my brother in affirming the judg-ment of the District Judge, because I consider the construction placedby him on document D is a reasonable one, and that letter read withthe one to which it was an answer, and of which there is secondaryevidence, sufficiently complies with the requirements of section 21of Ordinance No. 2 of 1895. 1
(1) S. C. Min. 26th May, 1903.
JAYESINHE v. PERERA