Shaw v. Shaw | 2 QB 429 | June 25, 1954


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Shaw v. Shaw

2 Q.B. 429 (C.A. 1954)


June 25, 1954.

Husband and Wife — Marriage-Breach of promise — Promise by married man — Ceremony of marriage — Woman unaware of previous marriage — Implied warranty — Public policy — Death of man intestate] — Measure of damages — Accrual of causes of action — Fraud — Law Reform (Miscellaneous Provisions) Act, 1934 (24 & 25 Geo. 5, c. 41), s. 1 — Limitation Act, 1939 (2 & 3 Geo. 6, c. 21), ss. 2 (1), 26 (b).

Damages — Law Reform Act, 1934. Death — Personal action — Effect on. Limitation of action. Contra bonos mores.

In 1937, S., a married man, representing himself as being a widower, went through a form of marriage with the plaintiff. In 1950 his legal wife died, and in 1952 he himself died intestate. After S. died the plaintiff became aware for the first time that she had not been legally married to him and she brought an action against the administrators, a son and a daughter of the deceased, claiming damages for breach of promise of marriage by the deceased:

Held, (1) that there was a continuing breach of the implied warranty given with the promise of marriage that S. was in a position to marry. There was also a breach of the promise to marry, for that promise could have been implemented in 1950 when the legal wife died.

[430] (2) That the claim was not excluded on grounds of public policy, because the plaintiff did not know that S. was already married.

Wild v. Harris (1849) 7 C.B. 999 and Millward v. Littlewood (1850) 5 Exch. 775 applied.

(3) That the claim was not barred by the Limitation Act, 1939, because the relevant breach of warranty took place when S. died, and the claim for breach of promise to marry did not accrue until 1950. Further, the action was based upon fraud within section 26 (b) of the Act of 1939.

Beamanv. A. R. T. S. Ld. [1949J 1 KB. 550; 65 T.L.R. 389; [1949] 1 All E.R. 465 applied.

(4) That the damages should be assessed having regard to what the plaintiff would have been entitled to receive as . . . a widow on in testacy.

APPEAL from Pilcher J.

In 1937 the plaintiff, then Mrs. Moseley, a widow, met Percy John Shaw, farmer, and later in that year he proposed marriage to her, having described himself to her as a widower. She accepted him and on December 10, 1938, they went through a form of marriage at the Cannock registry office.

For 14 years Percy Shaw and the plaintiff lived as husband and wife at Cannock, during which time the plaintiff advanced to Shaw in varying sums about £250 to buy stock, to assist him in acquiring land, and to pay for agricultural machinery. All those advances were money which she had saved before the marriage.

On February 11, 1952, Percy Shaw died intestate. At the funeral the plaintiff was treated as the widow by the deceased's son, Wilfrid Shaw, and shortly, after she began to deal with the estate, believing that she was the widow. The estate was then worth about £1,500 and had been built up with the assistance of the plaintiff. The plaintiff asked Wilfrid Shaw whether he would act with her as joint administrator, and he agreed subject to certain conditions. On March 10, 1952, the plaintiff received a letter from the solicitors acting for Wilfrid Shaw asking for a copy of the will of the deceased, if any will had been left. Then for the first time the question was raised whether the plaintiff was in fact the widow. On April 15, 1952, the solicitors for Wilfrid Shaw wrote to the plaintiff: In view of the matters raised . . . you will no doubt delay distribution of any assets which may be in your hands until the question has been cleared up. We have written to our client, asking him to bring in his mother's death certificate and, if possible, her marriage certificate, and we will pass these on to you when they are to hand"

[431] Soon afterwards, the death certificate of Mrs. Cecilia Shaw was produced by one of the daughters of Percy Shaw, a Mrs. Gibson, the second defendant. This certificate showed that the first Mrs. Shaw died on July 5, 1950, and that the information as to her death was given to the registrar by R Gibson, son-in-law, of 21, Upper Kent Street, Leicester. Cecilia Shaw was described in the certificate as the widow of Percy John Shaw. There was no evidence when Shaw parted from his wife. His daughter, who became Mrs. Gibson, lived with her mother in Leicester and the son, Wilfrid, the first defendant, lived not far from his father.

Wilfrid Shaw and Mrs. Gibson took out letters of administration to the estate of their father and brought an action in the county court claiming damages in respect of clothing formerly belonging to their father, which the plaintiff had given away, believing that she was his widow. That action was dismissed with costs.

The plaintiff then brought an action against the administrators claiming damages for breach by the deceased of promise" to marry, and alleging in substance that when he made a promise of marriage he impliedly warranted that he was in a position to marry her. The defendants by their defence admitted that Percy Shaw was already married when he proposed to marry the plaintiff and that he never did in fact marry her, but they said that she knew that he was married and, further, that there was no breach of promise and that the plaintiff had not suffered damage. Finally, they alleged that the claim was not brought until more than six years had elapsed since the cause of action arose, and that it was, accordingly, barred by section 2 of the Limitation Act, 1939[1] The plaintiff by her reply alleged fraud.

At the trial no evidence was called on the part of the defendants, and the plaintiff was able to give very little information as to the deceased Mrs. Shaw. There was no evidence when she and Percy John Shaw separated, or when they had last seen each other; nor could it be shown whether Shaw knew that she was still alive when he proposed to remarry, or that he was told when she eventually died. The plaintiff said that Shaw had told [432] her that he was a widower and that his first wife" was buried in " the Potteries." Pilcher J. gave judgment for the defendants, holding that the alleged promise was unenforceable, being contrary to public policy since at the time of the promise Shaw had a wife living.

The plaintiff appealed.

W. A. Allardice for the plaintiff. The claim for damages for breach of promise of marriage survives against the estate of Percy John Shaw by virtue of the Law Reform (Miscellaneous Provisions) Act, 1934, s. 1.[2] It is not barred on grounds of public policy, for, although the court would lean against enforcing a promise at the suit of a party to an illegality (see Pearce v. Brooks[3], public policy can have no application if the plaintiff did not know of the illegality. The plaintiff here did not know until after Shaw had died that he had been legally married to Cecilia Shaw at the time when he had purported to marry her.

[DENNING L.J. In Fender v. St. John-Mildmay[4] it was said that the law would not enforce the promise.]

In Fender v. St. John-Mildmay[4] the promisee knew at the time when the promise was made that the legal wife was alive. Public policy comes in to bar a promise by a married man because of the tendency to immorality and because a man might be incited to murder his wife in order to marry the woman he had promised to marry. It is the promise which is contrary to public policy, not the enforcement of it. [Reference was made to Modestou v. Yiannopoulos.[5]] In no case has it ever been said that public policy is involved if the promisee is innocent of the illegality; if the defence of public policy had been relevant in this type of case it would presumably have been raised in Wild v. Harris[6] and Millward v. Littlewood.[7] The textbooks draw a clear distinction between the position where the promisee is a party to the illegality and cases where the promisee is unaware that the promisor is not [433] in a position to marry: Cheshire on Contracts, 3rd ed., p. 291, and Chitty on Contracts, 20th ed., pp. 475-6. The comments on Wild v. Harris[8] and Millward v. Littlewood[9] in Wilson v. Carnley[10] are obiter; the authority of those cases is not impeached. The same principle is stated and applied in the United States of America: see Cover v. Davenport,[11] Kelly v. Riley[12] and Paddock v. Robinson.[13]

The position might be different if it could be shown that Shaw was also unaware that his legal wife was alive at the material date, but there is no clear evidence as to this. His statements that she was dead and was buried in the Potteries were, at best, recklessly indifferent, and if he did not know what had become of his wife he ought to have made reasonable inquiries before going through a ceremony of marriage with the plaintiff. Nor is there any clear evidence as to the state of knowledge of the son, Wilfrid Shaw; but it is, perhaps, significant that when the question arose he was able to find out speedily that his mother had been alive at the material date and to produce her death certificate.

The promise given by Shaw was a promise to marry the plaintiff within a reasonable time; that time did not arrive until he was in a position to marry. It could, however, have been fulfilled when Cecilia Shaw died in 1950. The breach, therefore, did not occur until then, and it is not barred by the Limitation Act, 1939. Alternatively, Shaw was in breach of an implied warranty that he was in a position to marry the plaintiff. That was a continuing warranty and time did not begin to run against the plaintiff until Shaw died.

In the present case the plaintiff is entitled by way of damages to what she would have received if she had been, as she thought she was, Shaw's widow. The fact that she had been maintained by Shaw during their joint married life is irrelevant. She helped him to build up the farm, and he was much more successful after the marriage than before. That success was to some extent attributable to her efforts.

R.E. Chapman for the administrators of Percy John Shaw. Wilfrid Shaw was not called to give evidence because what he could say would not have been admissible evidence as to the state of his father's knowledge. There is no significance in the speedy [434] discovery of his mother's death certificate. It was discovered at Somerset House, after he had consented to act as joint administrator with the plaintiff, in the course of the ordinary inquiries as administrator.

This was a contract entered into under a mistake of fact on both sides. The alleged warranty was innocently misrepresented by Shaw, for there is no evidence that he was aware that his legal wife was alive at the material time, and the court will not assume that fraud was committed in the absence of such evidence. In the cases cited the promisor was, on the evidence, acting fraudulently and with knowledge of the impediment to marriage.

The claim is statute-barred because the promise was one to marry on a fixed future date: The breach of that promise occurred when the promisor was unable to marry on that date. The warranty also must have been in relation to the actual contract; Shaw promised and warranted that he was free to marry on that date. The cause of action arose then. Pilcher J. did not find fraud, and therefore section 26 (b) of the Limitation Act, 1939, does not apply.

Damages are limited to those matters which may be said to have been in the contemplation of the parties at the time when the contract was entered into. The cause of action was the breach of the promise to marry, and, even if the plaintiff's claim is admitted, only special damages due to the breach would, by virtue of section 1 (2) (b) of the Act of 1934, be admissible: see Riley v. Brown.[14]

[DENNING L.J. There is a clear distinction between this case and one where no "marriage" has taken place. In the latter only special damages can be obtained, but here there is a continuing warranty that the promisor was free to marry throughout the period of the "marriage." Section 1 (2) (b) is dealing with the position where the promisee dies and her executors are claiming damages. In such a case the damages are restricted to the damage to her estate.]

[SINGLETON L.J. There is nothing to say that if the promisor dies the damage claimed by the living promisee is limited to special damages.]

W. A. Allardice in reply. If it be shown that the breach occurred in 1938, then it is submitted that there was concealed fraud and the claim is preserved by section 26 (b) of the Limitation Act, 1939. That was mentioned in Beaman v. A. R. T. S. Ld.[15] [435] "Fraud," in section 26 (b), is used in a broad sense and will include the results of unthinking or reckless conduct.

[DENNING L.J. It is not necessary to prove that there was moral turpitude; it is sufficient for the plaintiff to show that the essential knowledge was kept from her.]

SINGLETON L.J. stated the facts and continued: The main argument of Mr. Allardice, on behalf of the plaintiff is that the judge was wrong in deciding that she could have no right of action on the ground that the enforcement of the contract to marry would be against public policy.

In Fender v. St. John-Mildmay[1] it was decided that:

"A promise made by one spouse, after a decree nisi for the dissolution of the marriage has been pronounced, to marry a third person after the decree has been made absolute is not void as being against public policy, and an action for damages for breach of the promise is maintainable by the third person."

Several of the speeches in the House of Lords in that case deal with the question of public policy. Lord Wright said[2]:

"I must first attempt to explain what I think to be the modern law in regard to the duty of the court concerning rules based on public policy. It is important to realize what is meant by public policy in this connexion. In one sense every rule of law, either common law or equity, which has been laid down by the courts, in that course of judicial legislation which has evolved the law of this country, has been based on considerations of public interest or policy. In that sense Sir George Jessel M.E. referred to the paramount public policy that people should fulfil their contracts. But public policy in the narrower sense means that there are considerations of public interest which require the courts to depart from their primary function of enforcing contracts, and exceptionally to refuse to enforce them. Public policy in this sense is disabling. It is important to determine first of all on what principles a judge should exercise this peculiar and exceptional jurisdiction when a question of public policy is raised. What is, I think now clear is that public policy is not a branch of law to be extended as Lord Blanesburgh, then Younger L.J., said in In re Wallace.[3] To the same effect Lord Halsbury in Janson v. [436] Driefontein Consolidated Mines[4]: 'I deny that any court can invent a new head of public policy.' Lord Wright also said[5]: The law will not enforce an immoral promise, such as a promise between a man and a. woman to live together without being married or to pay a sum of money or to give some other consideration in return for immoral association. But nothing of the sort was suggested in this case. On the contrary, the promise, if carried out, would have regularized an immoral association."

The second passage bears on what may be regarded as the alternative submission by the plaintiff. The plaintiff's case is that Shaw's promise to marry her involved a warranty that he was in a position so to do; as he did not do so, she claims that she is entitled to damages. Alternatively, Mr. Allardice submitted that when Cecilia Shaw died in 1950 Shaw then could have married the plaintiff, and have regularized what might be spoken of as an immoral association. She believed until April, 1952, some two months after Shaw died, that she was legitimately married to him.

The authorities which have been cited to the court show a great difference between the case in which there is an effort to enforce a marriage when both parties know that the promisor is not able to go through a lawful form of marriage and a case in which that fact is known only to one of them.

That is made clear by Wild v. Harris[6] and Millward v. Littlewood.[7] The headnote of the latter reads:

"A declaration alleged, that, in consideration that the plaintiff, at the defendant's request, promised to marry him, he promised the plaintiff to marry her. Averments: that the plaintiff hath continued and still is unmarried, and, until the discovery of the defendant's marriage, was ready and willing to marry him; that, after the defendant's promise, the plaintiff discovered that the defendant, at the time of his promise, was, and still is, married, and that the plaintiff had not, at the time of the defendant's promise, any notice of the defendant's then marriage."

It was held, "on motion in arrest of judgment that the declaration was good; and that the plaintiff's remaining unmarried was a sufficient consideration to support the defendant's promise." The verdict of the jury in favour of the plaintiff with £200 damages stood.

In that case it was submitted by counsel on behalf of the [437] defendant[8]:

" . . . the case of Wild v. Harris[9] cannot be supported. A contract of this kind is contra bonos mores, and against public policy. The language of Lord Mansfield, in Holman v. Johnson[10] with reference to immoral and illegal contracts, applies here. Besides, at the time of the promise, the defendant could not perform it, and, therefore, the promise is void."

Pollock C.B. in the first judgment, said:[11]

"There ought to be no rule. The case of Wild v. Harris[12] does not in substance differ from this. Therefore, as there is the judgment of a court of co-ordinate jurisdiction upon the express point, I feel myself bound by it, and must leave the parties to question that decision in a Court of Error. I own, however, that I am disposed to differ from the authorities which have been referred to. I think it is inconsistent with that affection which ought to subsist between married persons, that a man should, while his wife is alive, promise to marry another woman after his wife's death. Nothing but the judgment of the highest tribunal will compel me to think, that, by the law of the land, such a promise is good."

Alderson B. said:[13]

"It is unnecessary to decide whether a promise by a man to marry a woman after his wife's death is good, because here it is found as a fact that the plaintiff had no knowledge that the defendant was married. In my opinion the difficulty arises in respect of the promise alleged being a promise to marry within an indefinite time. What was decided by the recent case in the Court of Common Pleas, I think, was rightly decided."

Parke B. said[14]:

"I entirely concur in what was said by the Court of Common Pleas in Wild v. Harris.[15] The promise by the defendant to marry the plaintiff implies, on his part, that he is then capable of marrying, and he has broken that promise at the time of making it. The consideration to support the promise is, that the plaintiff, at the request of the defendant, engaged to marry him within a reasonable time, and therefore she remained unmarried; and that is a sufficient consideration to bind the defendant."

If Parke B. had thought that there was anything in the point raised that the contract was against public policy he would have said so.

[438] Counsel for the defendants told us that he did not raise the question of public policy. It appeared from the authorities cited by counsel for the plaintiff that such a question might be raised, and Pilcher J. gave judgment upon it. The two authorities which I have just mentioned, Wild v. Harris[15] and Millward v. Littlewood,[16] show that neither the Court of the Exchequer in 1850 nor the Court of Common Pleas in 1849 thought it necessary for the court to raise any such question in a case in which the plaintiff did not know that the defendant was married, and did not know that his promise might be contrary to public policy. I believe that to be right. I do not consider that it is the duty of the court to make such a point on the facts of this case. If ever there was a case in which the plaintiff ought to be entitled to succeed, it is the present case, for Shaw persuaded her to marry him, pretended that he was a widower when he was not, and having gone through a form of marriage with her, acquired all her savings from her for use in his affairs, and he did not, in fact, marry her. If he knew that his wife died in 1950 he might then have married the plaintiff. No evidence was given on behalf of the defendants, and I do not know the circumstances in which Shaw had parted from his wife, nor whether he heard of her or from her, or whether he knew when she died. It was his duty to make inquiries before he went through a form of marriage with the plaintiff, and if he did know that his wife was alive after that time, and that she died in 1950, he ought to have gone through a form of marriage then, even if it might have led to inquiry with a possible risk of a prosecution for bigamy. If he had married the plaintiff after his wife's death, when he died she would have been his widow, and she would have had the rights of a widow on his intestacy. She thought that she was his widow, and she walked with his son at the funeral. Thereafter the son and the daughter, the defendants, denied that the plaintiff was the widow, stating that their mother was alive at the time when the plaintiff went through the ceremony of marriage, and that the plaintiff had no right to anything, and that everything passed to the defendants and their brothers and sisters.

Mr. Chapman, on behalf of the defendants, raises two questions. One is that the cause of action accrued in 1938, that the Limitation Act, 1939, runs from that time, and, consequently, an action cannot be brought after six years have elapsed since 1938. There are several answers to that submission. First, there [439] was a continuing warranty running with the promise to marry, a promise which Shaw never fulfilled. That warranty was the basis of the relationship, as the plaintiff said in her evidence. She would not have gone through a form of marriage with Shaw unless she had thought that he was a widower; she would not have lived with him as his wife, nor would she have given him her savings. He promised to marry her when he was not in a position so to do; he broke his warranty; and it follows from that, as I think, that the damage which she sustained did not arise, or accrue, until after Shaw's death. When his death occurred his son and his daughter raised the question, and it was found that she had none of the rights of a wife, and it was then that the damage accrued. Secondly, section 26 (b) of the Limitation Act, 1939, covers this point. There was here something in the nature of a concealed fraud, and the case is well within that which was said by the Court of Appeal in Beaman v. A. R. T. S. Ld.[17]

Mr. Chapman also raises the question that even if there should be a right of action, it can only be in respect of the special damage alleged and proved, and he cited in support of that proposition the judgment of Roche J. in Riley v. Brown.[18] I do not think that that judgment helps in the present case, for it seems to me that the Law Reform (Miscellaneous Provisions) Act, 1934, has altered the position by the words in section 1 (1):

"Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. . . . "

There was on the death of Shaw, a cause of action subsisting against him, and that cause of action survives against his estate. Mr. Chapman referred the court to subsection (2) (b) of that section, which, to my mind, does not touch the position which arises. I do not think that that submission is of help to the defendants.

In my view the plaintiff is entitled to damages for breach of promise. The advances which she made to Percy Shaw, believing that she was married to him, were claimed as special damages, but in my opinion the right way to assess the damages to which she is entitled is to consider that if Shaw had fulfilled his promise, as he might have done, the plaintiff would have been his widow. If she had been, she would have had the rights of a widow.

Pilcher J. was asked at the end of the hearing to make a provisional assessment of the damages. He had said:

"I should [440] have liked, if I had felt that I was entitled to do so consistently with my duty, to have determined this case in her favour, but for the reasons which I have given, and. which I do not propose to elaborate further, I have come to the conclusion that this action must fail and there must be judgment for the defendants.”

He added that he did not think that it was a case in which the damages should be large, and he said:

"I think the woman appears to have had a happy life, believing herself to be married for 14 years, and in her maturer years she now finds that in point of fact she is once again, and always has been, a widow. In the circumstances I think that having been maintained by the deceased man throughout those 14 years, if she gets back £250 that would be all to which she is entitled."

That provisional assessment of the damages was made without hearing argument upon the matter, and I do not think that sufficient attention was paid to all the circumstances. Pilcher J. said that the plaintiff had been maintained by Shaw for all those years. During those years she was working on the farm and keeping the house, and helping him; as the judge said, Shaw was more prosperous at the end of his life than he was at the time when he went through the form of marriage with the plaintiff. She had helped him; she had let him have her money; she might have got something more than £1,000 if she had been his widow, and, for my part, I think that a fair assessment of the damages to which the plaintiff is entitled is the sum of £1,000. I would allow the appeal accordingly and direct that judgment be entered for the plaintiff for the sum of £1,000 damages.

DENNING L.J. Every man who proposes marriage to a woman impliedly warrants that he is in a position to marry her, and that he is not himself a married man; and he reaffirms that warranty when he afterwards goes through a form of marriage with her whether in church or in a registry office. To take the familiar words of the banns of marriage, he warrants that there is no "cause or just impediment" why he should not marry her. Every day of their married life he continues the warranty; he warrants that their marriage was valid and that there was no impediment to it. In the present case the law imports that Percy Shaw gave such a warranty to the plaintiff. On the faith of it, she went through a form of marriage with him, she lived with him as his wife for 14 years, she put her money into the farm and did all the work of a, farmer's wife, and when he died she followed his coffin to [441] the grave as his widow. His estate was worth £1,500 or more, which she had helped to make; and yet the administrators now turn round and say that she was never his wife because he was already married, and that his real wife did not die until 1950. In my judgment Shaw broke his warranty at every point. He broke it when he proposed marriage; he broke it when he married the plaintiff; and he broke it throughout their married life. The breach continued all the time. The most important breach of all was at the moment of his death, because when he died she was not his widow, as she thought she was. She was in law a stranger. That is the breach for which, in my judgment, damages can be recovered.

But what is the proper measure of damages? If she had been his widow when he died intestate, as she thought she was, she would have received the widow's £1,000 and life interest in half of the remainder of the estate. Those are the direct damages which she has suffered by this breach of warranty, and which, in my judgment, she is entitled to recover. It is said that an implied warranty is not alleged in the pleadings, but all the material facts are alleged, and in these days, so long as those facts are alleged, that is sufficient for the court to proceed to judgment without putting any, particular legal label upon the cause of action.

The same result can be reached, however, by considering this as being a claim for breach of promise of marriage. Clearly Shaw did promise to marry the plaintiff, and after his own wife had died in 1950, he was in a position to marry her and could have implemented his promise, but he did not do so. It would not lie in his mouth to say that a reasonable time had expired, because it was all due to him that the marriage had not taken place before. He ought to have married her in 1950 when he was free to do so, and there was a breach of the promise at that time for which like damages could be recovered. Although it is true that damages in an action for breach of promise, after the death of the man, are limited to special damages, I regard the damages which I have mentioned as being special damages within that rule.

The Limitation Act, 1939, is, in my judgment, no answer to the breach of warranty, because the breach took place on his death in 1952. It is also no answer to the breach of promise to marry, because that breach took place in 1950. In any case, as my Lord h as said, the plaintiff can rely on section 26 (b) and [442] the decision of this court in Beaman v. A. R. T. S. Ld.[19] That case shows that the word "fraud" in the statute is not used in the sense of moral turpitude, and that section 26 (b) avails a plaintiff in circumstances such as have arisen here when knowledge has been kept from her by the conduct of the deceased man.

If the plaintiff had known that Shaw was a married man the case would be altogether different. Then, of course, no court would allow such a contract to be enforced, but as she was quite unaware of the position the case falls within Wild v. Harris[20]and Millward v. Littlewood,[21] and it is interesting to notice that there are cases in the United States on exactly the same lines. [Bee the cases cited in argument.] I agree with my Lord that the appeal should be allowed, and that damages of £1,000 should be awarded.

MORRIS L.J. I also agree. Until Percy John Shaw died the events in the joint lives of Percy John Shaw and the plaintiff were the same as they would have been if the marriage ceremony which took place had been valid. If the ceremony had been a valid marriage, on the death of Percy John Shaw, in the events which have' happened, the plaintiff would have been entitled to at least £1,000 out of his estate. Pilcher J. did not have full evidence before him, but he said that, for all he knew, Shaw and his lawful wife might have been parted for 10 or 15 years, and he said that Shaw might have had grounds for supposing that his wife was dead when he represented himself to the plaintiff as being a widower. He said that that matter remained unascertainable, and added that it was possible that Shaw had honestly believed that he was a widower, though, of course, on insufficient grounds. Even approaching the case on that footing, I agree that the plaintiff is entitled to succeed. It seems to me that, in conformity with what was said by Parke B. in Millward v. Littlewood,[21] to which reference has been made, the promise which was entered into by Shaw carried with it a promise and an implication that he was capable of marrying. That promise, the warranty that he so entered into, was broken. The substantial damages arising out of the breach of that promise on his part arose in reality after his death, but throughout the intervening period between the ceremony and that date the plaintiff continued her life in the constant belief that she was lawfully married, and lived in the belief that· she was the legal [443] wife of Percy John Shaw. She was confident III that belief, which was a belief wholly induced by him. The very least that can be said against him is that he omitted to make inquiries or to get verification; he allowed her to go on in the confident belief, and it was his reckless assurance on so important a matter that caused her to be in complete ignorance of the true position.

Having regard to those circumstances, and in view of the principles which were laid down by the Court of Appeal in Beaman v. A. R. T. S. Ld.,[22] I think the result follows that under section 26 of the Limitation Act, 1939, the period of limitation did not in the present case begin to run until the plaintiff had discovered the falsity of the belief which was induced in her by the late Percy John Shaw. I consider, therefore, that the plaintiff was entitled to succeed, and to succeed for the amount which Singleton L.J. has mentioned.

Appeal allowed with costs. Judgment for the plaintiff for £1,000.

Solicitors: Sharpe, Pritchard & Co. for Dallow & Fallow, Wolverhampton; Peacock &; Goddard for J.C.H. Bowdler &amp Sons, Shrewsbury.

E. D.


[1] Limitation Act, 1939, s. 2: (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say: (a) actions founded on a simple contract or on tort."

S. 26: "'Where… (a) the action is based upon the fraud of the defendant . . . or of any person through whom he claims . . . or, (b) the right of action is concealed by the fraud of any such person the period of limitation shall not begin to run until the plaintiff has discovered the fraud . . . or could with reasonable diligence have discovered it."

[2] Law Reform (Miscellaneous Provisions) Act, 1934, s. 1: "(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or  vested in him shall survive against, . . . his estate. (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:—  . . . (b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry."

[3] (1866) L.R. 1 Exch. 213.

[4] [1938] A.C. 1; 53 T.L.R. 885; [1937] 3 All KR. 402.

[5] The Times, March 31, 1954.

[6] (1849) 7 C.B. 999.

[7] (1850) 5 Exch. 775.

[8] 7 C.B. 999.

[9] 5 Exch. 775.

[10] [1908] 1 K.B. 729; 24 T.L.R. 277.

[11] (1870) 2 Am.Rep. (Tennessee) 706.

[12] (1871) 8 Am.Rep. (Massachusetts) 336.

[13] (1871) 14 Am.Rep. (Illinois) 112.

[14] (1929) 45 T.L.R. 613.

[15] [1949] 1 KB 550; 65 T.L.R. 389; [1949] 1 All E.R. 455


[1] [1938] A.C. 1; 53 T.L.R. 885; [1937] 3 All E.R. 402.

[2] [1938] A.C. 1, 88.

[3] [1920] 2 Ch. 274, 303; 36 T.L.R. 431.

[4] [1902] A.C. 484, 491; 18 T.LR.

[5] [1938] A.C. 1, 42.

[6] (1849) 7 C.B. 999.

[7] (1350) 5 Exch. 775.

[8] 5 Exch. 775, 776.

[9] 7 C.B. 999.

[10] (1775) 1 Cowp. 341, 343.

[11] 5 Exch. 775, 777.

[12] 7 C.B. 999.

[13] 5 Exch. 775, 777.

[14] Ibid. 778.

[15] 7 C.P. 999.

[16] 5 Exch. 775 

[17] [1949] 1 K .B. 550; 65 T.L.R. 389; [1949] 1 All E.R.

[18] (1929) 45 T.L.R. 613.

[19] [1949] 1 K.B. 550.

[20] 7 C.B. 999.

[21] 5 Exch . 775.

[22] [1949] 1 K.B. 550.


Case Information

June 23, 2013


Denning, L.J.

2 QB 429

Queen's Bench Division

Author Stats

H2O Case Admin.

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