Philip v. Wettasiiighe.
1937Present: Soertsz J. and Fernando A. J.
PHILIP v. WETTASINGHE.316—D. C. Avissawella, 1,959.
Breach of promise of marriage—Undertaking not to marry anyone else—Wopromise to marry—Ordinance No. 19 of 190 7, s. 21.
Where the defendant wrote a letter in the following terms to theplaintiff :
“If ever I marry anybody, I assure you that it will be none otherthan yourself. If, by any mischance, I fail to do so, I will remain singleas I am.”—
Held, that the words used did not constitute a valid promise to marry.Beling v. Vethecan 11 A. C. R. 1) and Jayasinghe v. Perera (9 W. L.R. 62) distinguished.
HIS was an action brought by the plaintiff to recover a sum ofRs. 1,000 as damages for breach of promise of marriage. The
promise was contained in a letter written by the defendant the materialportion of which is set out in the head note.
The learned District Judge held that there was a sufficient promise inwriting within the terms of section 21 of Ordinance No. 2 of 1895.
A. L. Jayasuriya, for defendant, appellant.—The point is whether thereis a promise in writing in terms of section 21 (3) of the MarriageOrdinance, No. 19 of 1907.
Plaintiff relies on P 1 written by the defendant. It is submitted thatP 1 does not contain a promise to marry the plaintiff, and that thepromise contained in P 1—if there is a promise, at all—is a promise toremain single in the event of not being able to marry the plaintiff.
On the first submission—P 1, if read in its proper sense, is a statementof reasons showing why defendant is not in a position to give a promise.
On the second submission—the action is for a breach of promise tomarry plaintiff. An undertaking not to marry anyone else is no promiseto marry the plaintiff and in fact is an agreement in restraint of marriagewhich is void—vide Pollock on Contract (8th ed.), p. 367; and Lowe v.Peers
The learned District Judge has relied on the old cases, Beling v. Vethecan1and Jayasinghe v. Perera ’. In both these cases the letters clearly indicateda definite verbal promise and the subsequent letters were held to be
» (1768) 4 Burr. 2225 at p. 2230.* J A. C.R. 1.
» 9 N. L. B. 62.
FERNANDO AJ.—Philip v. Wettasinghe.
sufficient to establish the written promise necessary for maintaining theaction. In this case there has been no such promise and on the contraryreasons have been adduced why the promise could not and cannot begiven.
The learned District Judge is not right in interpreting the documentP 1 by the subsequent letter of demand sent (P 3). This is a documentafter action by plaintiff and written by a third party (the proctor) andcannot supplement P 1—vide Abilinu Hamy v. Appuhamy
Also strict compliance insisted on the necessity of a promise in writing—a notice written to the Registrar of Marriages has been held insufficient.(Misi Nona v. Amolis‘.)
M.J. Molligodde, for plaintiff, respondent.—It is submitted that P 1clearly contains a promise to marry. The letter actually uses the wordpromise.
[Soertsz J.—No doubt there is the word promise occurring in themiddle of the letter but later in its context does it imply a promise tomarry the plaintiff ?]
The letter states that defendant could not give a promise earlier andnow she proceeds to give the promise.
Even if it does not contain a promise in itself a prior promise can berelied upon by the plaintiff. The letter indicates that the parties wereon friendly terms and the defendant has not denied in her answer thatthere was an “ understanding ” which was subsequently released bymutual consent. The burden of proving such release was on the defend-ant, and she has failed to do so and the appeal must fail.
Cur. adv. vult.
January 25, 1937. Fernando A.J.—
The main question that arises on this appeal is whether the defendant,as set out in issue 1, made a valid promise to marry the plaintiff, andas the learned District Judge himself states in his judgment an actionfor recovery of damages for breach of promise of marriage can lie onlyif the promise shall have been made in writing.
The plaintiff relied on the letter P 1 written by the defendant, thematerial portion of which has been translated, apparently by the learnedDistrict Judge himself, as follows :—“If ever I marry anybody, I assureyou that it will be none other than yourself. If by any mischance Ifail to do so, I will remain single as I am. If I can join an order of Nuns,I will do so, ” and the learned District Judge thought that this portionof P 1 came closer to a written promise to marry, than the words whichoccurred in the correspondence between the parties in Beling v. Vethecan ’and Jayasinghe v. Perera
In Beling v. Vethecan, the material portion of the defendant’s letteris quoted by Layard C.J. as follows : “ I won’t tease you till we getmarried. Shall we fix the happy day for the 8th of April, the day afterEaster ? ” and the plaintiff in reply consented to marry the defendanton the 8th of April, and the Court held that the letter written by thedefendant contained an offer on the part of the defendant in writing tomarry the plaintiff, and that that offer was duly accepted by the plaintiff.
1 21 N. L. R. 442.* 1 A.c. R. U
* 17 N. L. R. 425.*9N.L. R. 62.
FERNANDO A.J.—Philip v. Wettasinghe.
The offer made by the defendant if accepted by the plaintiff, wouldalone be sufficient to enable the plaintiff to sue for a breach of promiseof marriage. In the same case, Layard C.J. was inclined to think thatthe contention for the defendant that the production of documentaryevidence showing that the defendant admitted a verbal promise, wouldnot be sufficient to entitle the plaintiff to bring an action on the originalverbal promise, as the Ordinance provides for the promise itself being inwriting, and not for the case in which a verbal promise is corroboratedby some other material documentary evidence, was correct in law.
The case of Jayasinghe v. Perera (supra) came before Layard C.J. andWendt J. a few months after Beling v. Vethecan (supra), and the facts inthat case are set out by Wendt J. as follows :—“The defendant who hadcourted the plaintiff asked her father’s consent to the marriage, and theyoung couple promised to marry each other. At the father’s suggestion,the defendant undertook to send him a formal written solicitation of theplaintiff’s hand. This he did not send, and in consequence the plaintiffat her father’s request wrote defendant a letter asking him to put hispromise in writing. In his answer, the defendant wrote, “I am notagreeable to what Papa says for this reason : that is, if I trust darling,should not darling trust me ? If they have no faith in my word I cannothelp it. If they don’t believe my word, I am not to blame.” Thisletter read in connection with the letter to which it was an answer, asWendt J. said, “ contains an unqualified admission under the hand ofthe defendant of the existence of his promise to marry the plaintiff, andin my opinion that is all the Ordinance requires.” Layard C.J. agreedwith the order ox Wendt J. affirming the judgment of the District Courtin favour of the plaintiff because he considered the construction placedon the defendant’s letter a reasonable* one, and because that letter readwith the one to which it was an answer, sufficiently complied with therequirements of section 21 of Ordinance No. 19 of 1907. It would appeartherefore, that Layard C.J. agreed with Wendt J. in holding that anunqualified admission under the hand of the defendant of the existenceof a promise by him to marry the plaintiff would be sufficient to enablethe plaintiff to maintain an action for breach of promise of marriage.
Now the learned District Judge thought that the words used in P 1came closer to a written promise to marry than the words used in eitherof the cases referred tc above. I regret that I cannot agree. Thewords used in Beling v. Vethecan clearly contain an offer by the defendantto marry the plaintiff on the date named, and if such an offer is acceptedby the person to whom the letter is written, that would be a clear promiseto marry. It may be that the offer is not expressed in the words, “ Ishall marry you, ” but the words themselves do contain a promise tomarry because the words are, “ Shall we fix the happy day for the 8th ofApril ? ” and it is clear from the letter that the happy day meant the dayon which the parties were to get married. In Jayasinghe v. Perera (supra)the Court did not hold that there was an express promise in writing, butonly that there was a writing in which an earlier verbal promise wasadmitted. The learned Judge here probably intended to emphasizethe words quoted by him, namely, “ If ever I marry anybody, I assureyou that it will be none other than yourself. If by any mischance I
Ameen v. Patimuttu.
fail to do so, I will remain single”, but these words clearly mean, “Iwill not marry anyone except you,” and do not contain any expresspromise to marry the plaintiff, nor is it possible to find anywhere in thelong letter P i any statement that either contains a promise to marrythe plaintiff or admits an earlier verbal promise to marry the plaintiff.
On the other hand, the defendant sets out reasons which preventedher from giving any promise to the plaintiff. “Had my beloved fatherbeen alive, I would have certainly given a definite word at once withoutany fear or doubt.” (The translation filed in Court appears to me tobe incorrect when it reads, “ would have given ”, whereas the originalshould more correctly be translated as, “ would give ”).“ I remind
you ”, the letter goeson, “ that I am in fear of knowingthat itis very
hard to escape frommy mother, did not givea definiteword.If God
likes this matter between we two, I hope that there will be Divine helpto change the mindsof the opponents. Whatour dutynow isto pray
only to God for thesuccess of our matter.”It seemsclear therefore,
that P 1 does not itself contain any promise by the defendant to marrythe plaintiff, nor is it possible to find in P 1 any admission of any earlierpromise by the defendant.
I would accordingly hold on the first issue against the plaintiff. Hisaction must therefore fail, and I would set aside the order of the learnedDistrict Judge, and enter decree dismissing plaintiff’s action with costshere and in the Court below.
Soertsz J.—I agree.
PHILIP v. WETTASINGHE