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Present: Dalton and Lyall Grant JJ.
SAMARASUNDERA v. 1’ERERA.
267—D. C. Nuwara Eliya, 985.
Breach of promise—Agreement to pay damages after breach —Legality—
Liabilitxj of public servant—Ordinance No. 2 of 1899.
A written agreement to pay a certain sum as damages lor breachof promise to marry, which was entered into after the breach, isnot illegal.
Such an agreement is not a written security within the meaningof the Public Servants’ (Liabilities) Ordinance.
PPEAL from a judgment of the District Judge of Nuwara
On September 20, 1926, the defendant, a public servant, promisedto marry S., and undertook to pay her Rs. 2,000 if he failed to keephis promise. In February, 1927, the defendant decided not tocarry out his agreement to many. He accordingly paid S.Rs. 300, and gave her a document (P 1) in which he promised “ topay S., her heirs-or successors ” Rs. 1,700 in instalments, cancellingthe former agreement. S. accepted it, foregoing thereby herright to sue defendant for breach of promise of marriage. Shortly. afterwards S. died, and the plaintiff, who was the administratrix of■ her estate, brought this action to recover from the defendant thebalance due on the document P 1.
The defendant pleaded in his answer that the promise containedin the document P 1 was illegal and void as against public policy.He further pleaded that, in any event, that on the death of S.
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no right of action survived .to her administratrix. Lastly he claimedthe protection of the Public Servants’ (Liabilities) Ordinance, No. 2of 1899.
The learned District Judge dismissed the plaintiff’s action withcosts. The plaintiff appealed.
Weerasooriya, for plaintiff, appellant.
Peri Svndaram, for defendant, respondent.
January 20, 1930. Dalton J.—
Plaintiff as administratrix of the estate of Sophana GertrudeSamarasundera sought to recover from the defendant a sum ofRs. 1,700 alleged to be due by defendant to the late S. G. Samara-sundera on an undertaking given by him to her in writing. Thewriting (P 1) which defendant admitted he signed is in thefollowing form: —
I, A. W. Perera, of Forest Department, Nuwara Eliya, promiseto pay Miss S. G. Samarasundera of Hall View, •Nuwara Eliya,her heirs or successors the sum of Rupees One thousand and Sevenhundred only (Rs. 1,700) in Ceylon currency by monthly instal-ments of Rupees Twenty only (Rs. 20).
This cancels my agreement of marriage of Twentieth September,One thousand Nine hundred and Twenty-sixth year (20.9.26).
The above amount she can only claim from me by monthlyinstalments of Rupees Twenty only (Rs. 20).
(Signed) A. W. Perera.
2. 27(6-cent stamp.)
(2) V. A. Thepanis.
In. his answer defendant set out that on September 20, 1926, lieagreed to marry Miss Samarasundera, and undertook to pay herRs. 2,000 if he did not keep his promise. In pursuance of tliisagreement, as lie had decided not to marry her, he gave her thisdocument P 1 of February 6, 1927. He pleads that it is of noforce or avail, as being “ illegal and against public .policy for want ofconsideration.” If it is valid and enforceable, he pleads no rightof action has survived to the plaintiff beyond a claim to Rs. 60being instalments alleged to be due to deceased up to the date ofher death. He further pleads that he was induced to enter into theagreement, presumably he means the agreement to many, becausethe deceased had falsely and faudulently represented to him thatshe was a “ virgo intacta.” Lastly he pleaded he was a publicservant protected by the provisions of Ordinance No. 2 of 1899.
Somoni-sttndera v.■ Parent
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The trial Judge has dismissed plaintiff's action for two reasons,first on the ground that the contract evidenced by P 1 is againstthe interests of public policy and morality, and secondly, even ifthe contract was enforceable by deceased, the present plaintiffcannot enforce it. In my opinion the Judge was wrong on boththese points.
The loose pleading in paragraph 7 of defendant's answer may betaken to be corrected by the third issue, which is in this form: “ Isthe plaintiff's claim illegal and against public policy ? " It seems tome, the learned Judge lias not fully appreciated what the documentP 1 purports to be. On September 20, 1926, defendant says hepromised to marry the deceased and gave notice of marriage to the.Registrar. In his evidence he says he understood at that time shewas a virgin. la December, 1926, he says he ascertained she wasnot a virgin, but that she was pregnant. In February, 1927, hedecided not to carry out his agreement to marry her, paid herRs. 800, and gave her the document P 1 promising to pay herRs. 1,700 in instalments, cancelling the former agreement. Shuaccepted it, foregoing thereby her right to sue him for breach ofpromise of marriage. I am quite unable to see how that under-taking on his part was illegal or against public policy. I presumeif the deceased had sued defendant for breach of contract, he wouldnot have pleaded that damages could not be recovered as it would becontrary to public policy to award them in such a case. He antici-pated any such possible action by agreeing to pay her and herheirs a sum of money in return for which deceased gave up her right.to sue for the breach.
Counsel ha6 argued that the agreement between the partiescome to on February 6 is tainted with illegality, because onSeptember 20 when the agreement to marry was given defendantpromised to pay deceased the sum of Rs. 2,000 in casebe failed to carry out his promise. This question has been fullydiscussed in De Silva v. Juan AppuJ where however the facts aredifferent from those here. He argues that the document P 1 isnothing but a subsequent security for the same payment. Withthat I am unable to agree, for the document is in my opinion nosecurity at all but merely a reduction into writing of the agreemententered into between the parties and as such evidence of the agree-ment. Further, it sets out that from that date defendant is freedfrom the carrying out of his promise to marry. Even if the agree-ment of September 20 in respect of the payment is contrary topublic policy, and 1 cannot see that it is, I have no doubt that theagreement entered into on February 6 is not illegal.
With regard to the right of the plaintiff to sue, the learned Judgeis apparently treating this as an action to recover damages forbreach. of promise, saying that deceased could not suffer any
» 20 N. L. R. 417.
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damage from such breach after her death, since they were personalto herself. But the action here is based upon the contract ofFebruary 7. when defendant undertook not only to pay her butalso “her heirs and successors.” It has been argued that even ifthose words were not there plain tiff still had a right of action, butthat question we need not decide. At that date defendant hadbeen fully aware for some time that the deceased wa.s pregnant.Who was. responsible for her condition it is on the evidence im-possible to say, but I do not think the evidence justifies all theremarks of the trial Judge about her character. The child, anine months child, was stillborn on March 7, and the mother diedon April 1. Upon the contract entered into by defendant heundertook not only to pay the deceased but also her heirs andsuccessors. Plaintiff therefore is entitled to bring this action.
Other 'issues the trial Judge has not dealt with, although hedoes go beyond them and hold that the agreement of'February (>was not a voluntary agreement, but one concluded “ under duress.”There is no evidence to support this conclusion; in fact it is directlycontrary to the evidence of defendant himself. He says, althoughdeceased threatened to sue him for breach of promise of marriageand also to report him to his superiors, he was persuaded to com-promise by one Thepanis, who seems to have been a friend ofhimself and deceased, and he was not forced to sign the document.
On the defence raised under the Public Servants’ (Liabilities)Ordinance (Ordinance No. 2 of 1899) the lower Court does notappear to have addressed itself to the issue raised on this point,and one might possibly gather from the evidence that it was notseriously pressed. Defendant, however, even if it has been provedthat lie is a public servant who can claim the protection of theOrdinance, has failed to satisfy me that the document P 1 is asecurity within the meaning of the Ordinance. It was at one timesuggested it was a promissory note, but this line of argument wasnot pursued, to a conclusion (see Peter v. Suriapperuma 1). Thelimits within which public servants are. protected are very carefullyprescribed by the Ordinance, and I can find nothing that protectssuch a person from an action brought to recover money due uponan agreement entered into by him to pay damages for breach ofan earlier contract entered into between the parties. That .is ineffect, so it seems to me, the agreement entered into on February 6,evidenced by this document.
Upon the facts and law here it seems to me that plaintiff isentitled to judgment for the amount claimed, subject to thecondition that it should be paid in instalments of Rs. 20 a month.On that basis, taking the time as two years and eleven monthsfrom the date of P 1. the sum of Rs. 700 is now due, the balance
i SO N. L. R. 318.
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1930 being paid each month hereafter. In the event of any default toSamara- PaJ any future instalment as it becomes due the whole remainingsundem v. sum will become due at once. Plaintiff is entitled to thelet era eos^s jjj iower Court, the trial Judge’s order dismissing heraction being set aside and judgment being entered for her as set outabove. She will also have her costs of this appeal.
Lyall Grant J.—I agree.