Scottish Court of Session Decisions

This was an action brought by Mary Scott Liddell, Airlie Place, Dundee, against Alexander Dugald Findlay, Glasgow, and another, trustees of the deceased Robert Easton, Ann Street, Hillhead, Glasgow, acting under his trust-disposition and settlement dated the 28th September 1900.

The following account of the nature of the action and of the facts as disclosed by proof is taken from the opinion of the Lord Ordinary ( Lord Pearson) “In this action the pursuer, who is a teacher, claims payment of £5000 from the testamentary trustees of the deceased Robert Easton, who was a retired draper of independent means and resided in Glasgow.

“The claim is made on two alternative grounds—(1) on breach of promise of marriage on the part of the deceased, and (2) on an alleged undertaking by him to make reparation in the event of the marriage not taking place.

The parties met in Crieff in the summer of 1899, he being about forty-nine years of age and she about thirty-three. It appears that he then made a proposal to marry her, and after an acquaintanceship and correspondence they became engaged to each other in February 1900. Her parents' consent having been obtained, he gave her an engagement ring on 7th April and the wedding was fixed for 2nd October following.

The correspondence which followed shows mutual regard and affection. But it also shows on his part an increasing liability to states of nervousness and mental depression, clearing away no doubt when they met, but recurring at intervals when they were parted. The inference which she drew was (naturally enough, as I think) that her company did him good, and that these states of mind would disappear when they were married. At first he looked hopefully in the same direction. But as the fits of depression grew upon him, and as the marriage day approached nearer, his outlook changed; and the reason for this is plain. Thirteen years before, on 14th September 1887, he had entered Saughton Asylum as a voluntary patient, and a few days afterwards he was certified for detention in that asylum, on the ground of depression, delusions, and suicidal tendency. He was under detention for seven months, until 1st May 1888, when he was discharged as relieved.

This event in his history had not been disclosed to the pursuer. He had come near disclosing it, as in one letter he had referred to a breakdown in his health thirteen years before, and had expressed his intention of telling her about it when they met. The pursuer, however, says he never did so, but on the contrary passed it off; and whatever may be said as to her being put upon her inquiry, I take it that the first time she really became aware of what he had passed through was on receipt of his letter to her father of 17th September 1900 after mentioned.

There can be no doubt that what Mr Easton was suffering from in the summer and autumn of 1900 was a recurrence of his former malady, and that as the months went by he himself recognised more and more distinctly that it was so. This feeling culminated in his letter of 17th September to the pursuer's father, in which he described his deepening state of depression and discloses the fact of his seven months' detention in Saughton Asylum in 1887–8. In view of his mental state he says—‘It would be unwise and sinful to allow our marriage to proceed on October 2nd, and better for Mary and I that it should be postponed in the meantime. I know it is terrible to ask this now, but I am in such a state that I scarcely know what to say. If I had a prolonged stay in the country this depression might wear away, and I might get better and be my old self.’ He adds—‘It's a heart-breaking confession to make, but I must do it before it is too late. I may yet get better and become strong, but I am in such a plight that I cannot rest until I have unburdened my mind to you. I shall make every reparation to Mary, even though it should take all the days of a long life to do.’

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The letter closes with a request that the pursuer's father should come and see Mr Easton; and this he did on the following day, 18th September. Our knowledge of what took place at that interview depends on the evidence of Mr Liddell. That it did not amount to a final breaking-off of the engagement is, I think, clear, and it certainly was not so accepted at the time, nor so acted on afterwards, by either the pursuer or her father. The pursuer on record does not go further than to say that Mr Easton at that interview ‘evinced an anxiety to break off the proposed marriage,’ and her father in his evidence sums it up thus—‘(Q) Did you come away convinced that as far as he was concerned he meant to break off the engagement?—(A) It appeared to me he was anxious to break it off.’ Except as emphasising this anxiety, I do not think that the account of the interview really carried the matter beyond the point at which it was left by the letter of 17th September.

The subsequent facts may be briefly stated. Mr Easton, who had for some years been a patient of Dr David Smith of Glasgow, called on 21st September on Dr Smith's son, Mr D. W. Smith, solicitor, and gave instructions as to making over some North British Railway stock to his niece, Miss Sloan, under certain conditions. On 26th September he again called and gave instructions for a trust-disposition and settlement, providing for his relatives, but not containing any provision in favour of the pursuer These deeds were executed on 28th September, and on the 29th Mr Easton entered Saughton Asylum as a voluntary patient. His mental condition there was unsatisfactory from the first, and after about a fortnight the asylum authorities formed the opinion that he was certifiable for detention. After examination he was so certified by Dr Harvey Littlejohn on 12th October, and by Dr Dowden on 18th October, and on 20th October the necessary warrant for his detention was issued by the Sheriff. His condition gradually grew worse. After six months' confinement he developed distinct suicidal tendencies, and on 13th January 1903 he died in the asylum of gangrene of the leg, apparently the result of injuries received in an attempt at suicide ten days previously.”

The pursuer, inter alia, pleaded—“(1) The said Robert Easton having promised and engaged to marry the pursuer, and having wrongfully failed to implement said promise and engagement, and the pursuer having suffered in consequence thereof, the pursuer is entitled to damages.”

On 30th January 1906 Lord Pearson assoilzied the defenders from the conclusions of the action.

Opinion.—[ After the narrative quoted above his Lordship proceeded]—“If I am right in my view of the facts, it follows that this is not in fact a case of breach of promise of marriage. The truth of the case is that the promise was not broken, but that its fulfilment was postponed from 2nd October owing to a supervening cause for which neither party was responsible, and which, though it might not have prevented a valid marriage, rendered Mr Easton incapable, while it lasted, of the due fulfilment of the duties of the married state. I assume—and I decide the case on the assumption—that he was capable of matrimonial consent down to 2nd October, and probably for some time after—that is to say, that such a marriage could not have been declared null for want of consent. Further, I assent to the proposition that there may be circumstances in which the indefinite postponement of the execution of a contract will amount to a breach of it. But I hold that here the postponement was not without good and sufficient cause, and that it was indefinite as to time only because it was impossible to assign a date beforehand for Mr Easton's recovery. If the postponement from 2nd October was justifiable in the interest of both parties, as the medical evidence clearly shows that it was, and if there was no date betwixt that and Mr Easton's death at which the marriage could in reason have taken place, then there was no breach of contract.

But assuming that there was a breach of contract, I cannot assimilate this to an ordinary mercantile contract, where any breach infers liability for at least nominal damages. As the pursuer recognises in her first plea-in-law, the issue here is whether Mr Easton wrongfully failed to implement his promise and engagement, and I am clearly of opinion that he did not. In the common-sense aspect of such a case I am sure that everyone, while sympathising deeply with the pursuer for what has happened, would say that she had a very fortunate escape. The medical testimony makes it plain that the engagement had caused, and that marriage would have caused, a serious disturbance of his mental balance. It practically negatives the pursuer's very natural expectation that marriage might have done him good, and leaves as the more probable alternative that she would have been the widow of a suicide and possibly the mother of his children, or else (if he had been better guarded) that she would have been tied for life to an inmate of Saughton Asylum.

It is said that according to the general law one who persists in the breach of a personal contract and elects not to perform it is liable in damages. The pursuer relies mainly, in this part of the case, on the decision in Hall v. Wright (1858), Ellis, Bl., & Ellis, 746, 27 L.J. (Q.B.) 345, 29 L.J. (Q.B.) 43, where a man was held not entitled to resile from a contract to marry although after the promise he had become afflicted with a dangerous disease, by reason whereof he became incapable of marrying without risk to his life. This conclusion was reached in the Exchequer Chamber by a bare majority. The minority held that a promise of marriage is subject to an implied condition that the parties continue in sufficient health to perform the duties of the married state without danger to life — following Pothier (Marriage 2, 1, 61). The decision in Hall v. Wright has been questioned by Lord

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Fraser (i., 491), by Sir Frederick Pollock (Contracts, 5th edit. 405), and in several American decisions of authority. I must say that my judgment goes with the opinions of the minority in the case of Hall; and a sufficient foundation for their view seems to be afforded by the exceptional nature of the contract to marry, as being at once the most highly personal of contracts, and also the one in which the public welfare is most deeply involved. It may even be that the criterion of danger to life may itself admit of being extended so as to include cases involving serious risk to bodily or mental health; but in the present case no such extension is needed, having regard to the medical evidence and to the presence of a distinct suicidal tendency as part of the malady.

In either view, therefore, I hold that the first ground of action fails.

… [ His Lordship then dealt with the second ground of action, namely, an agreement to make reparation, which he held was not proved.] …

“The result is that in my opinion the defenders are entitled to absolvitor.”

The pursuer reclaimed, and argued—The evidence showed that the engagement to marry had been broken by Easton without Miss Liddell's consent, and had not merely been postponed, and that there was a probability at the time of the breach of his fully recovering. Where a man broke his engagement on the ground of illness, which did not make it permanently impossible that the marriage should take place, and the woman did not consent to the breach, he was liable in damages, even though the result of marriage might be injurious or even fatal to him—Addison on Contracts (10th ed.), p. 136 and 1176; Hall v. Wright, 1858, El., Bl. & El. 746 and 765, 27 L.J., Q.B. 345, 29 L.J., Q.B. 43, which had been followed in Baker v. Cartwright, 1861, 30 L.J., C.P. 364, and approved in Boast v. Firth, 1868, L.R. 4 C.P. 1, and was referred to in Hick v. Raymond & Reid, [1893] AC 22. The American cases of Allen ( cit. infra) and Shackleford ( cit. infra) were cases where the cause of the breach was permanent, and in these Hall v. Wright had been questioned only because it had been misunderstood, for there the Judges in the majority decided the case on the view that there was a breach, and that the breach (as distinguished from postponement) was not justifiable, as the ground for it was not a permanent one. Reference was also made to Atchinson v. Baker, 1796, Perkes' Add. Cases, 103. [Counsel also argued that there was a case of special damage, relying on Walker v. Milne, June 10, 1823, 2 S. 379; Dobie v. Lauder's Trustees, June 24, 1873, 11 Macph. 749, 10 S.L.R. 524; and Hamilton v. Lochrane, January 27, 1899, 1 F. 478, 36 S.L.R. 339.]

Argued for the defenders (respondents) — There was no breach. The letter of 17th September merely postponed the marriage, and pursuer did not suggest that postponement was not right and proper. Subsequently, till Easton's death, there was no period when the marriage could have taken place. There might be cases where protracted delay was equivalent to breach— e.g., Currie v. Guthrie, November 17, 1874, 12 S.L.R. 75—but that was unreasonable delay, and there was no such case here. (2) If there was a breach it was justifiable in the circumstances. The pursuer must show not merely that Easton failed to perform the contract, but that he wrongfully failed. Hall v. Wright decided merely a question of pleading, but if and in so far as it decided anything more, it was wrongly decided and that by a bare majority, and the decision not being binding on this Court ought not to be followed. Illness had been held to be an excuse for non-performance in Robinson v. Davison, 1871, L.R. 6 Ex. 269. This was inconsistent with Hall v. Wright, which had never been approved except in Baker (cit. supra) v. Boast (cit. supra), the latter, however, being distinguished from it. Hall was binding on the Courts which decided these cases, which consequently did not add to its authority. In Hick v. Raymond ( cit. supra) it was incidentally referred to on another matter and was not approved. Moreover, it had been disapproved — Fraser on Husband and Wife, vol. i., p. 491; Pollock on Principles of Contract, 7th ed., pp. 425–6; Allen v. Baker, 1882, 41 Am. Rep. 444; and Shackleford v. Hamilton, 1892, 40 Am. State Reports 166. [On the question of special damage, Allan v. Gilchrist, March 10, 1875, 2 R. 587, 12 S.L.R. 380, was quoted.]