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Present: Fisher C.J. and Drieberg J.
COORAY v. COORAY.
489—D. G. Colombo, 22,999.
Breach of promise of marriage—Marriage settlement—Recital of agree-ment to marry—Valid promise—Ordinance No. 19 of 1907, s. 21..
A marriage settlement contained a -recital that a marriagebetween the .parties had been arranged and was shortly to besolemnized and that, in consideration of the said intended marriage,the present plaintiff and her pother had agreed to convey to thedefendant certain properties and that the transfer was to takeeffect after the solemnization of the marriage. The document wassigned by the plaintiff and her mother, and also the defendant.
Held, that there was a promise by the defendant to marry theplaintiff, within the meaning of the proviso to section 21 ofOrdinance No. 19 of 1907.
LAINTIFF sued the defendant to recover damages for breachof promise of marriage. The main question argued was
whether the document PI, which was in the form of a marriagesettlement, contained a valid promise to marry. It contained arecital that a marriage has been arranged between the parties andis shortly to be solemnized, and that in consideration of the saidmarriage the plaintiff and her mother had agreed to convey to thedefendant certain properties, and that the transfer was to take effect
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after the. solemnization of the said marriage. The document was '1928.signed by the plaintiff, her mother, and the defendant. The learned Coorayo.District Judge gave judgment for the plaintiff.Cooray
H. H. BarihoUmeusz (with Canakaraine and B. C. Fonseka), fordefendant, appellant.., ,•
Eayley, K.G. (with H. V. Perera), for plaintiff, respondent.
July 11, 1928. Fishes C.J.—
In this case the appellant.was sued by the respondent for breachof promise of marriage. There are three questions which we arecalled upon to consider in this case:—
Whether a promise of marriage was " made in writing ”
within the meaning of section 21 of Ordinance No. 19 of1907;
Whether the defendant was justified in refusing to perform
his promise by reason of misrepresentation as to agemade by or on behalf of the plaintiff; and
Whether the damages, namely, Bs. 5,000, are excessive.
As to (1) the answer to tips question depends upob what is theproper construction to be pnt on the words of the enactmentmentioned above., ^The construction of these words has beenconsidered on several occasions. In the case of Bding v. Veihecan,1which turned on the construction of section 21 of Ordinance No. 2of 1895, in which the words are exactly similar to the enactment nowapplicable, the plaintiff and defendant had verbally agreed to marryand the defendant wrote the following words :—“ I won’t tease youtill we get married. Shall we fix the happy day (D. V.) for the 8thof April, the day after Easter ? ” It was held that the letteramounted to a written promise and that the previous verbal agree-ment did not prevent the plaintiff from relying on the promise in theletter. In giving judgment Layard'CJ. said the letter “ containsan offer on the part of the defendanti n writing to marry plaintiffnaming a day, and that offer was duly accepted by the plaintiff.
The latter offer would be sufficient alone, if acoepted by the plaintiff,,to sue for a breach of promise of marriage.”
In the case of Jayasinghe v. Perera2 the plaintiff and the defendanthad agreed to marry, and the plaintiff at the request of her fatherwrote to the defendants.asking for a written promise of marriage. .
In reply to this letter the defendant wrote as follows:—“ I am notagreeable to what Papa says for this reason: that is, if I trustdarling, should not darling trust me ? …. If they have nofaith in my word, I cannot help it. If they don’t believe my .ward,
I am not to blame.”
1 (1903) 1 A. C. Reports 1.‘ (1907 9 N. L. R. 69.
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£928. It was held that this letter was. a "sufficient compliance with theJ re<luiremen^ of the proviso in section 21 ofthe Ordinance No. 2 of 1895,— notwithstanding that on the face of it the, letter would appear to°Co wayamount to a refusal on the part of the defendant to put his promise
into writing. Layard C.J. in giving judgment said that the letterreferred to “ read with the one to which it was in answer, and ofwhich there is secondary evidence,'sufficiently complies with therequirements of section 21 of Ordinance No. 2 of 1895.”
And Wendt J. in giving judgment said—
“ I think we may presume that the intention of the legislaturewas the same as actuated the passing of the Statute ofFrauds, requiring a written record as a condition precedent*to the enforcement of certain contracts.”
This decision seems to me to be as expans.ve a construction ofthe words of the enactment as it is possible to give.
In the case of Misi Nona v. Amolis1 the question'for decisionwas whether a notice of marriage to 'a Registrar amounted to apromise of marriage in writing. It was held that it did not, andLascelles C.J. in giving judgment, commenting on the decision inJaya8inghe v. Perera (supra), said;—
“ The decision in this case has not been accepted entirely withoutquestion ; but I think, if I may respectfully say so, thatthe decision arrived at is quite right. The letter addressedby the defendant to the plaintiff amounted to a repetitionin writing of a prior verbal promise. It was not the less apromise in writing to marry 'because a verbal promise hadalready been given. But I do not think that the principleon whioh that case was decided-can be carried any furtherwithout straining the language of the Ordinance to thebreaking point.”
Had the words of the enactment merely required evidence of apromise, no doubt the decision in Misi Nona v. Amolis (supra)would have been the other way, but in view of the fact that thenotice of marriage was a document addressed to a third party and astranger it would have been in the words of Lascelles C.J. “ strainingthe language of the Ordinance to the breaking point ” to hold thatit was a promise of marriage in writing.
In Abilinu Hamine v. Appuhamy- notice of marriage to a Registrarand a letter written by the defendant’s Proctor after the plaintiffhad made a claim for breach of promise were held not to constitutea written promise of marriage on the authority of Misi Nona v.
1 (1914) 17 N. L. R. 425.
8 (1920) 21 N. L. R. 442.
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This Court has therefore held that the words “ promise of marriagein writing ” do not mean a promise in so many words, and so toconstrue them with strict literal and verbal exactness would probablybe equivalent to precluding the bringing of any such actions andquite outride the intention of the enactment. According to thetrue construction of these words, it would appear that if from thelanguage used in any letter or document a promise to many; isnecessarily implied that amounts to a promise in writing within themeaning of the enactment, that is to say, the promise is embodiedin writing. The question is whether there is such writing in thiscase. In my opinion there is. The document PI is in the form ofa marriage settlement. It contains a recital “ that a marriagebetween the parties has been arranged and is shortly to be solem-nized ” and that in consideration of the said intended marriage theplaintiff and her mother had agreed to convey to the defendantcertain properties and that the transfer is to take effect “ after thesolemnization of the said intended marriage.” This document issigned by the plaintiff and her mother, and also by the defendant.Cases were cited to us in which recitals were constructed, havingTegard to the object and effect of the deeds in question, as covenants(see e.g., In re Weston, Davies v. Targari1). It is not necessary tosay that a covenant must be implied from the recitals in the documentreferred to (PI), but the language itself would, in my opinion, forma good foundation for and would bear such an implication, andI therefore think that it can and must be construed as embody-ing a promise to marry the plaintiff and that there is a promiseof marriage in writing within the . meaning of the proviso tosection 21.
As regards the 2nd question, there was considerable conflictingevidence and the criticisms on the evidence of the plaintiff’s motherappear to me to have been amply justified. Whether or not sherepresented to the defendant that the age of her daughter was 31 bysending him her horoscope, or a copy of the horoscope containingthat statement, she was quite prepared to make and did make in thewitness box a very obviously inaccurate statement as to her daughter’sage. I think it is quite probable that a copy of the horoscope wasin fact sent to the defendant, but I do not think it is necessary todecide this question, because in my opinion a perusal of all thecorrespondence since September 29,1926, when the defendant wrotethat he would not be able to be present on the day originally fixedfor the ceremony, taken with the evidence of the defendant himself,clearly shows that the matter of age was not regarded by him asvital and conclusive. ’ The evidence indicates that he was going tobenefit very considerably by the settlement and that had the
Fishes 0. J.
1 (1900) L. R. 2 Ch. 164.
Fisher C. J.
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plaintiff or her mother been willing to add to the property trans-ferred in. consideration of the marriage he would have gone throughwith it. In the result I am of opinion that the learned Judge’s ^finding that the defendant was not justified in his refusal to carryout his promise cannot be said to be wrong.
The sole remaining question is the question of the amount ofdamages. On the face of it they seem to me to be exoessive.Undoubtedly on the basis of the finding of the learned Judge thedefendant treated the plaintiff in a manner which calls for somedegree of exemplary damages. In my opinion the damages shouldbe Rs. 2,000, and I would order that judgment should be entered forthat amount with oosts in the Court below as ordered by the learnedJudge and in this Court.
Dbiebekg J.—I agree.
COORAY v. COORAY