Bastiampillai v. Rasalingam.
1936Present: Abrahams CJ. and Fernando A.J.
BASTIAMPILLAI v. RASALINGAM128—D. C. Jaffna, 6,030Promissory note—Agreement by father to give a daughter in marriage—Illegality of consideration—Validity of note.
A promissory note granted in consideration of a promise by a fatherto give his daughter in marriage to the maker of the note is invalidfor illegality of consideration.
De Silva v. Juan Appu (29 N. L. R. 417) followed.
HE plaintiff sued the first defendant on a promissory note grantedby him to the second defendant and endorsed by the latter to the
plaintiff without consideration. The consideration for the note was apromise by the first defendant to marry the daughter of the seconddefendant. It was contended for the defendant that the note wasunenforceable as the consideration was illegal. The learned DistrictJudge gave judgment for the plaintiff following the decision in Fernandov. Fernando'.
V. Perera (with him G. E. Chitty), for the first defendant, appellant.—It is clear from the circumstances in which the promissory note suedupon was made that there was no consideration good and valid in Englishlaw. The English law must be applied in order to determine the questionof consideration—Ordinance No. 25 of 1927, section 27 (1). If there wasany consideration, it was the promise of the father to give his daughterin marriage to the defendant, a promise which is unenforceable as beingcontrary to public policy. It renders the consideration illegal. Amarriage brokage contract is illegal. (Herman v. Charlesworth *.)
N. Nadarajah, for plaintiff, respondent.—The promissory note wasinchoate till delivery was made to the payee. At the time of deliverythere was consideration. The first defendant entered into a writtenagreement with second defendant to marry his daughter. On the dayfollowing the first defendant met the daughter and exchanged rings.The daughter must be deemed to have adopted the contract, and thefather was acting only as an agent for her. When the first defendantrefused to marry, the daughter had a good claim for damages. At thatstage the promissory note was delivered to the second defendant. It issubmitted that their claim is lawful. The judgment in de Silva v.Juan Appu3 does not apply. It only states that certain contractsare contrary to public policy and does not cover the present case. Thecase that is on all fours with the present one is the case reported inFernando v. Fernando (supra). The second defendant as father andnatural guardian of his daughter was under a legal liability to maintainher. The first defendant agreed to marry her in his interest also.From this view also there is consideration. The second defendantagreed to give a dowry of Rs. 5,590 ; in return the first defendant grants 1
1 4 N.L. R. 285.* (1905) 2 K. B. 123.
J 29 N. L. B. 418.
90ABRAHAMS C.J.—Bastiampillai u. Rasalingam.
a note to be liable in the event of his refusing to fulfil the contract-(Shadewell v. Shadewell'). There is nothing illegal or improper in thewhole arrangement. ' The promise of Rs. 5,500 is good considerationfor the promissory note. From whichever point of view the matter islooked at, it is submitted, that there is valid consideration.
H. V. Perera, in reply.—The case of Fernando v. Fernando (supra) hasno application to the circumstances of the present case. The principlesfollowed in de Silva v. Juan Appu (supra) are applicable. In the formercase the father contracted as the agent of his daughter who subsequentlyadopted the contract and herself sued upon it. The promise to give adowry was not an unconditional offer which the defendant can be saidto have accepted. It was only the offer of a promise to give a dowry—mere collateral matter of inducement to the defendant to enter into thesubstantive agreement. The promise to give a dowry was only the offerof a promise which would become a binding promise by the acceptanceof the offer by the defendant, namely, by his marrying the daughter.[Abrahams C.J.—Even if the promise of a dowry formed part of theconsideration for the note and the promise to procure the marriageformed part, would the promises be separable ?]
They would uot. A promissory note for which the consideration iseven in part illegal would be a note given for an illegal considerationand unenforceable in law. The promise whereby the plaintiff undertookto procure the marriage of his daughter with the defendant is clearlyillegal.
Cur. adv. vult.
September 9, 1936. Abrahams C.J.—
The appellant in this case agreed with the second defendant-respondentthat he would marry the latter’s daughter. The second defendant-respondent at the same time agreed that he would give his daughter inmarriage to the appellant. For the purpose of securing the due fulfil-ment of this bargain, each party made out a promissory note agreeing topay to the other a sum of Rs. 1,000 alleging that each had received thisamount in full. Both these notes were deposited with a third party onthe understanding that the note of the party breaking his undertakingwould be handed over to the other party, who will receive back his ownnote. The appellant subsequently met the lady, and they exchangedrings presumably to symbolize their engagement. It is not denied bythe appellant that he did promise the lady that he would marry her, butshortly after their betrothal he refused to carry out his promise allegingthat he did not find her sufficiently attractive.
The appellant’s promissory note was then handed over to the seconddefendant-respondent, who endorsed it without consideration to theplaintiff-respondant who sued the appellant.
It was argued at the trial that the action could not be maintained asthe note was given in the first instance for an illegal consideration,namely, the promise by the father of the girl to give his daughter inmarriage to the maker of the note, and the case de Silva v. Juan Appu *,• 9 O. B. 159.* 29 N. L. K. 418.
ABRAHAMS CJ.-—Bastiampillai v. Rasalingam
w$s cited in support of this argument. The learned Judge, however,held that that case did not apply to the facts of this case which appearedJo him to resemble closely the facts in Fernando v. Fernando and hegave judgment for the plaintiff-respondent.
I have no hesitation in agreeing with the submission that this notewas given for an illegal consideration. The law relating to Bills ofExchange in this country is identical with that which obtains in Englandand in English law this consideration will certainly be held to be illegal. •Further, the case falls within the reasons for the decision in de Silva v.Juan Appu (supra) and does not seem to us to have any resemblance toFernando v. Fernando (supra), beyond the fact that there was a marriagecontract and that the father of the lady was a party to it. In that casethe lady herself sued on the ground that the father had entered into thecontract on her behalf and that she had adopted it. There is not a wispof evidence :n this case to show that the second defendant-respondent wasacting on behalf of his daughter or that the daughter in becoming enagagedto the appellant was adopting what the father had arranged.
It is, however, argued for the plaintiff-respondent that even if anagreement on the part of the father to give his daughter in marriage isillegal (and Counsel did not appear to dispute that proposition), neverthe-less it does not follow that the note was given for an illegal considerationbecause at the time that it was actually made out it was inchoate, anddid not in law become a promissory note until it was handed over to theperson for whom it was intended. The consideration for that note, itis argued, was a consideration that existed at the time that the note washanded over and this consideration was, in point of fact, damages dueto the lady for breach of a promise to marry her. It seems to me thatthe facts do not support this hypothesis, since, even assuming that thelady had a claim in damages, and I am certainly not going to give anopinion on that, the note was not given to discharge any claim for damageswhich she might have, because there was no agreement with her that ifthe appellant broke his promise to marry he would pay Rs. 1,000 or anysum at all by way of damages. It is then argued that in receiving the noteas he did, the father was a trustee for his daughter and thereforehad a right to do what he liked with the note in her interest. Thatargument adds nothing to the argument with which I have just dealt.There is not the slightest evidence that the lady knew anything whateverof the existence of this promissory note, and I would add that • if thesubmission of the plaintiff-respondent were accepted, it would mean oneof two things, namely, that the lady whether she liked it or not wouldhave to be content with Rs. 1,000 damages assuming that she desiredto bring, and could legally bring, an action for breach of promise ofmarriage, or that the appellant having paid the amount of the promissorynote would also be liable to pay damages to the lady.
Finally, it is said that as the father promised to give a dowry ofRs. 5,000 with his daughter, that is a legal consideration to support thevalidity of the appellant’s promissory note. That there was an agree-ment to give a dowry appears to have been admitted at the trial bythe appellant, but what were the exact conditions of that undertaking
1 i N. L. B. 285.
Vengadasalam Chetty v. Ana Fernando.
was not ascertained and we cannot go into it in default of any furtherevidence. But even if we were told that the promise to give a dowrywas clearly and categorically proved, it would not act as a sort of anti-septic to what we have held to be an illegal consideration, for if a note isgiven partly on good and partly on illegal consideration, the good con-sideration cannot prevail over the other, and it seems to me that inthis case the foundation of the appellant’s promise was the promise ofthe father to give his daughter in marriage and that the dowry thatwas promised was an additional inducement to the appellant to marrythe lady.
I would allow this appeal with costs in both Courts.
Fernando A.J.-—I agree.
BASTIAMPILLAI v. RASALINGAM