SHAW v. SHAW AND Another PDF

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Date and Time: Saturday, 17 April, 2021 10:30:00 PM MYT Job Number: 141691482

Document (1) 1. SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429, [1954] 2 Q.B. 429 Client/Matter: -None-

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Shaw v Shaw Overview

| [1954] 2 QB 429,

| [1954] 2 All ER 638,

| [1954] 3 WLR 265, 98 Sol Jo 509

SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429 [COURT OF APPEAL] Singleton, Denning and Morris L.JJ. 1954 June 25. 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. Beaman v. A. R. T. S. Ld. [1949] 1 K.B. 550; 65 T.L.R. 389; [1949] 1 All E.R. 465 applied.

Page 2 of 9 SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429 (4) That the damages should be assessed having regard to what the plaintiff would have been entitled to receive as a widow on intestacy.

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 not 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 told was still alive when he proposed to remarry, or that he was told when she eventually died. The plaintiff said that Shaw had told

Page 3 of 9 SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429

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 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 each 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."

[*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. Brooks3, 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-Mildmay4 it was said that the law would not enforce the promise.] In Fender v. St. John-Mildmay4 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. Harris6 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 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 E.R. 402. 5 The Times, March 31, 1954. 6 (1849) 7 C.B. 999. 7 (1850) 5 Exch. 775.

[*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. Harris8 and Millward v. Littlewood9 in Wilson v. Carnley10 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. Riley12 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

Page 4 of 9 SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429 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 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.

[*434] 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 14 (1929) 45 T.L.R. 613. 15 [1949] 1 K.B. 550; 65 T.L.R. 389; [1949] 1 All E.R. 465.

[*435]

Page 5 of 9 SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429

"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 said2: "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.R. 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. Driefontein 1 [1938] A.C. 1; 53 T.L.R. 885; [1937] 3 All E.R. 402. 2 [1938] A.C. 1, 38. 3 [1920] 2 Ch. 274, 303; 36 T.L.R. 481.

[*436] Consolidated Mines said4: 'I deny that any court can invent a new head of public policy.'" Lord Wright also said5: "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. Harris6 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 4 [1902] A.C. 484, 491; 18 T.L.R. 796.

Page 6 of 9 SHAW v. SHAW AND ANOTHER. [1953 S. 1833.] [1954] 2 Q.B. 429 5 [1938] A.C. 1, 42. 6 (1849) 7 C.B. 999. 7 (1850) 5 Exch. 775.

[*437] defendant8: "… the case of Wild v. Harris9 cannot be supported. A contract of this kind is contra bonos mores, and against public policy. The language of Lord Mansfield, in Holman v. Johnson10 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, said11: "...