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Cite as: [1874] UKHL 485, 11 ScotLR 485

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SCOTTISH_SLR_House_of_Lords

Page: 485↓

House of Lords.

Friday, April 17. 1874.

(Before Lord Chancellor Cairns, Lords Chelmsford and Selborne.)

11 SLR 485

Fowler

v.

Mackenzie.

(Ante, vol ix., p. 379.)

Subject_Marriage-Contract — Agreement — Condictio indebiti.
Facts:

By antenuptial contract of marriage between A and the daughter
Page: 486↓
of B, in 1825, B bound himself to provide for A “a sum equal at least to that which he has already provided or may hereafter provide to any one of his other daughters.” In 1827 another daughter of B being about to be married, B was desirous to settle £4000 upon her, but was hampered by the marriage-contract provision to A and his wife. B applied to A to assist him, and A wrote a confidential letter to B, saying that he and his wife were content to receive £2000, and would leave the rest to B's honour. The import of the letter was not to be disclosed, and no improper use to be made of it. The letter further set forth that A and his wife were ready to enter upon an agreement on stamp to the effect expressed in the letter. No further use was made of the letter. B died in 1842, and in 1843, his son, C, paid £4000 to A under his marriage-contract. In 1870 C discovered A's letter, and brought an action against him for reduction of the deeds under which the provisions were paid, and for repetition of part of the amount. Held (affirming judgment) that the letter in question did not afford ground for reduction, and defender assoilzied.

Headnote:

This was an appeal from a decision of the First Division of the Court of Session. The action was brought in the following circumstances:—Mr Fowler, the appellant's father, had four daughters, and on the marriage of Anna with the respondent Mr Mackenzie of Ord, in 1825, he by the marriage-contract engaged to provide to her, and settle on her children, a sum equal at least to that which would be provided to any other of his daughters. In 1827 another daughter, named Isabella, was about to be married to Mr Mackenzie of Allan Grange, and it was the father's desire to give £4000 to this daughter, but he was reluctant to do so, because if he did so he would become bound to pay £4000 also to Mrs Mackenzie. Negotiations took place, and at last, to get rid of the difficulty, Mr Mackenzie the (respondent) wrote a confidential letter, of date 8th December 1827, to Mr Fowler, saying that he and his spouse would be content to receive £2000, “and therefore leave to your own generosity and honourable feelings to put us on an equal footing if your fortune should admit of it. But we grant this letter to you in strict confidence, the import of which not to be disclosed, or any improper use made of it, and on the faith of which we hereby agree to bind ourselves and heirs to enter upon an agreement to this effect on stamp.” Nothing more was heard of the letter. The marriage of Isabella then took place, and she received £4000 at Mr Fowler's death in 1842. Mr Mackenzie claimed and received also £4000, the existence of the confidential letter not being known to the appellant, the heir of Mr Fowler. The confidential letter was never discovered till 1870, whereupon the appellant demanded repayment of £2000 as having been paid in essential error, and in ignorance of the confidential letter. An action accordingly was raised for reduction of the deeds under which the provisions had been paid to the respondent, and for repetition of the balance. The respondent stated as a defence that the letter was not binding, and never had been acted on; that the action was excluded by delay and acquiescence; that the payments were made in implement of natural and honourable obligation; and that the sums were bona fide received and consumed by the defender. The Lord Ordinary ( Gifford) found in favour of the pursuer, and held that the respondent was bound to repay the sum of £2000, and 5 per cent. interest. On reclaiming note, however, the First Division, on 15th March 1872, recalled this interlocutor, holding that there was no evidence that Mr Fowler ever acted on the confidential letter and treated it as an obligation, and therefore dismissed the action. The present appeal was then brought.

Counsel for the appellant contended that the judgment of the Lord Ordinary was right, and that the First Division was wrong, and that the confidential letter was as binding as any deed could have been.

Counsel for the respondent were not called upon.

At giving judgment—

Judgment:

Lord Selborne said that notwithstanding the full and able arguments of the learned counsel for the appellant, he thought those arguments ought not to prevail, but this was not from any want of ability or zeal on their part. The periods of time in this case were very remarkable. The letter on which the action was founded was dated in 1828, being forty-three years before the date of the action. The payment by mistake was in 1842, about twenty-eight years before the action. Yet those periods, long as they were, did not in point of law operate as any bar to the action, if otherwise the facts could be established. The burden of proof clearly rested on the appellant, and ought to be strictly enforced. The whole merits of the appellant's case consisted in his finding in his father's repositories a confidential letter, dated in 1828, which he never knew of before. But on attending to the facts under which that letter was given, and looking at the words of the letter itself, he thought that it was nothing else than a mere instrument of negotiation which had never been carried out to a final completion, and therefore had never come into operation. It bore on its face strong internal evidence of this. All that it was meant to do was to put into Mr Fowler's power, if he found it necessary, to get a formal deed executed, which would bind not only Mr and Mrs Mackenzie of Ord, but their children, and restrict the rights under their marriage settlement. At that time it was evidently supposed that such a deed could be prepared and executed having such an effect, but the matter never went further than this letter. No subsequent formal contract was drawn up and executed, and from the evidence it appeared that though a draft deed had been prepared, it never got the length of being tendered to the respondent. The whole fabric of the letter thus fell to the ground. It was said the law of Scotland did not allow parole evidence to be admitted to explain these circumstances, but no authority was produced, and none was likely to be forthcoming to the effect that these circumstances could not be inquired into. They did not tend to modify the construction of the letter, and had nothing to do with construction, but they tended to show that it would be a fraud to insist on the letter being acted on when the circumstances under which it could be acted on had entirely ceased. He (Lord Selborne) therefore entirely agreed with the unanimous judgment of the Court of Session, and moved that the appeal be dismissed, with costs.

Lord Chelmsford and the Lord Chancellor concurred.

Page: 487↓

Affirmed with costs.

Counsel:

Counsel for Appellant— Mr Pearson, Q.C., and Mr Mackintosh. Agents— Tods, Murray, & Jamieson, W.S.

Counsel for Respondents—Lord Advocate ( Gordon), Sir J. B. Karslake, Q.C., and Mr Balfour. Agents— Adam & Sang, W.S.
1874