Scottish Court of Session Decisions

This was an appeal from the Sheriff of Lanarkshire ( Gillespie Dickson) in an action of damages for breach of promise of marriage, in which the pursuer and defender were respectively the daughter of a moulder, Shotts, and a miner, Stane, Cambusnethan. Damages were laid at £60. The promise of marriage was said to have been made in August 1872, and the banns were put in in order that the marriage might be celebrated on 25th April 1873. The defender afterwards, according to the pursuer's averments, postponed the marriage first to the 29th April, and then to the 9th May of that year; and thereafter refused to fulfil his promise at all. The breach of promise was denied by the defender, who further alleged against the pursuer the birth of an illegitimate child by another man, but intimated his willingness still to marry her. The pursuer, however, refused at that stage to accept the offer, holding that his previous conduct had amounted to a breach of promise, and urging that it was not an encouraging circumstance on which to enter into marriage.

After proof, the Sheriff-Substitute ( Spens) pronounced the following interlocutor and note:—

“ Hamilton, 23 d March 1874.—Having heard parties' procurators and made avizandum with the proof and process: Finds in fact that pursuer and defender became engaged to be married, and that pursuer shortly after last New Year left her situation at Muir's Hotel to make preparation therefor: Finds that it is not denied by defender that at the time of said engagement he was aware that pursuer had some two or three years previously given birth to an illegitimate child: Finds that defender gave pursuer £10 for the purchase of dresses for the marriage: Finds the pursuer has not proved that she was put to farther or greater expense in said preparation than would be covered by the said sum admittedly received from defender: Finds that said marriage was fixed to take place on the 25th April, and that defender gave orders for the proclamation of banns on 6th, 13th, and 20th April: Finds that said proposed marriage was put off by defender, as alleged, for a brother's convenience, till the 29th April: Finds the defender again put off the marriage till the 9th of May, giving as reason for so doing that his brother wanted a suit of clothes and his folk wanted a quiet affair: Finds that on or about Wednesday 30th April defender passed pursuer without recognition: Finds that pursuer, knowing where he had gone, went to meet him again and ask an explanation: Finds she met him and the explanation given by defender for his so doing was that ‘it was some nonsense of his folk’: Finds, however, at this interview he arranged to come to pursuer's father's house that night: Finds he came accompanied by the witness Stewart: Finds dresses of pursuer's were then exhibited, and it was understood that the marriage was to proceed on the 9th of May: Finds he called on the 2d of May, but nothing was said as to the marriage: Finds defender never came back to pursuer's father's house, and so it was presumed that he did not intend the marriage to take place on said 9th May: Finds, farther, that his whole course of conduct for three weeks or a month prior to the 9th of May last was calculated to make her absolve defender from his engagement to her, and presumably he so intended: Finds in law that defender has committed a breach of promise of marriage, and is liable in damages therefor, and, under reference to subjoined note, assesses these at £20, for which sum decerns against the defender, &c.

Note.—It is admitted that pursuer will not

Page: 76↓

now marry defender, as she considers the course of conduct pursued towards her by him would be a very bad start for married life; and the Sheriff-Substitute agrees with her. It is a jury question whether there has been a breach of promise of marriage, and the Sheriff-Substitute, without going into greater detail than the findings in fact in the preceding interlocutor, is of opinion that there has.

As to damages, defender admittedly paid pursuer £10 to expend in preparation for the marriage. She has got the articles bought therewith, or money (if any) over for her own use and behoof, and the Sheriff-Substitute in assessing damages has given credit to defender to some extent therefor. Pursuer has not proved the expenditure of funds of her own, or indeed any other expenditure that would not easily be covered by the £10.

Defender is a collier, and wages, though high at present, are fluctuating. In the whole circumstances, the Sheriff-Substitute thinks £20 a fair award for solatium and damages. The Sheriff-Substitute is not prepared to hold that the fact of pursuer having had an illegitimate child makes any difference in the question of damage, there being no doubt that defender was fully aware of this, and there being no repudiation of the engagement on that account.

The Sheriff-Substitute may add, that he can see no good reason why parties in breach of promise of marriage cases should not be made competent witnesses. They are competent witnesses in England, and he desiderates any good reason for the distinction of law between the two countries in this respect.”

An appeal was taken to the Sheriff-Depute ( Gillespie Dickson), who reversed the judgment of the Sheriff-Substitute, and pronounced the following interlocutor and note:—

“ Glasgow, 23 d June 1874.—Having heard parties' procurators on the defender's appeal, and considered the record and proof, adheres to the interlocutor appealed against in so far as it finds that the pursuer and defender were engaged to be married: Quoad ultra, under reference to the observations in the note, recalls the said interlocutor: Finds that after the marriage between the parties had been fixed for 25th April, it was at the defender's request put off to the 29th, and again till some day in May: Finds it not proved that it was fixed for 9th May: Finds that the pursuer being disappointed at the marriage not having gone on on 9th May, caused her agent to write the defender on the 10th the letter quoted in article 18th of the condescendence, charging him with having broken his promise, and threatening legal proceedings within three days; and finds that the present action was raised on the 14th of the said month: Finds it not proved that prior to the raising of the action the defender had broken or resolved to break his said promise: Therefore sustains the defences and assoilzies the defender: For the reasons stated in the note, finds neither party entitled to expenses, and decerns.

Note.—There is a good deal of difficulty in this case, as it cannot be disputed that the defender's conduct towards the pursuer was at least equivocal, although it is thought not to be proved that he had resolved to break his engagement.

In judging of this a good deal of the evidence must be put aside as hearsay—such as, that ‘people said they did not believe it would go on,’ what the pursuer is said to have told her mother about the marriage having been put off to 9th May, and about the defender having passed her without recognition, and arranged to come to see her, and what Murdoch Currie says he ‘understood,’ and was ‘told by his sister.’

The pursuer's case is supported by the fact that the marriage was twice put off—by there appearing to have been something said about 9th May as the day for it, and by the defender not having visited pursuer for the week before that day, and not having come forward upon it to marry her.

On the other hand, it is not proved that he ever refused directly or indirectly to keep his engagement. Up to near the end of April his visits and attentions were quite satisfactory in frequency and warmth. His having the marriage put off twice indicated some abatement in his anxiety for it; but his intention to keep his promise seems to have continued unaltered and unsuspected till at all events 30th April, when it is said that he passed her without recognition—an important fact of which there is no evidence whatever but hearsay of the pursuer's statement. Whatever happened then, he was in her father's house on 2d May with his friend Stewart. The father's evidence does not show that he then actually fixed the 9th for the marriage, but only that he said it would be certain to come off in May; and Stewart corroborates this, as he does not remember hearing that that day was fixed, although the defender said to him it would come off on the Friday eight days (which was the 9th May). The evidence of this witness and of Forrest shows that the pursuer was hesitating in consequence (according to Forrest) of something he had heard about the pursuer, but that his mind was not at all made up to break the engagement.

The conduct of the pursuer and her family, however, is conclusive that the 9th of May was not fixed for the ceremony; for they seem to have made no preparation for it then, by asking a clergyman to attend, or a bridesmaid to assist, or having any friends invited, or entertainment provided for the occasion.

It is not even said that any of the family actually expected the defender on that day, and unquestionably nothing was arranged about the hour, a very important matter in such affairs. Farther, there was no communication between the pursuer or her family and the defender between the 2d and the 9th as to his intentions regarding the latter day, or as to their expectation of his coming forward then.

Accordingly, the Sheriff holds it not proved that 9th May was fixed by both parties for the marriage.

That being so, the conduct of the pursuer and her father, on the following day is of great importance. Instead of taking some kind and friendly means, such as a right-minded woman and her family would have used to her betrothed, to obtain an explanation of his conduct and ascertain his intentions, her father gets a law agent to write him a letter in terms the reverse of becoming or conciliatory, charging him with breaking his promise, demanding ‘ample satisfaction and reparation,’ under a threat that if that was not done in

Page: 77↓

three days, his intentions to raise legal proceedings would be carried out.

To a man of any spirit such a letter was a personal insult. It showed also that the pursuer could have had no real attachment for him, and it was a rash and hasty attempt to force matters to a crisis, which was not warranted by the defender's delay, for only a few days at the most, in coming up to the pursuer's expectations.

If the defender had hesitated at all before about the marriage, the receipt of the letter must have made him resolve finally not to go on with it; for there was little prospect of domestic happiness for him with a wife who could treat him so.

He answered by a letter, on the 15th of May, which the Sheriff-Substitute finds was written with the intention of getting her to release him from his promise.

The Sheriff is not prepared to find that as a specific fact, but he thinks there is considerable ground for suspecting it.

But on that footing the letter must be read as provoked by the agent's accusation and threat, and by the pursuer's conduct in connection with it.

On the whole case, therefore, the Sheriff considers that if the defender finally resolved to break off the marriage (which is not clear), he did not do so till after receipt of the letter referred to, and that the receipt of that letter was a sufficient justification for his doing so.

Costs have not been allowed to him, although successful in the action, because his conduct was equivocal, if not also suspicious.”

Against this decision the pursuer appealed to the Second Division of the Court of Session.

The pleas in law for the pursuer were as follows:—“(1) The defender having promised marriage to the pursuer, and the day having been fixed therefor, was bound to have fulfilled the engagement. (2) The defender, without good cause, having postponed the marriage and fixed another day, was bound then to have fulfilled his engagement. (3) But, still without good cause, having again postponed the marriage, and, on the third day fixed, having failed altogether to make arrangements for the marriage then, and having failed on the said last day fixed even to attend or offer explanation, the defender deliberately and wilfully committed a breach of his promise, and warranted the present action, and entitles the pursuer to decree as craved. (4) The letter of the defender, after the action was raised, intimating that if the pursuer wished the promise fulfilled she must accompany him abroad, is a mere evasion and device, and cannot, after the conduct and behaviour above explained, be set against the defender's obvious design to get quit of his promise.”

The defender pleaded—“(1) The defender, not having committed any breach of promise to marry the pursuer, is not liable in damages. (2) The defender being, and all along having been, ready and willing to fulfil his promise to marry the pursuer, this action was uncalled for. (3) In the whole circumstances, the defender is entitled to absolvitor with costs.”

At advising—