Ward v Byham [1956] 2 All ER 318 (1) PDF

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Date and Time: Thursday, 4 March, 2021 10:51:00 AM MYT Job Number: 138022574

Document (1) 1. Ward v Byham [1956] 2 All ER 318 Client/Matter: -NoneSearch Terms: ward v byham Search Type: Natural Language Narrowed by: Content Type UK Cases

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Ward v Byham Overview

| [1956] 2 All ER 318,

| [1956] 1 WLR 496, 100 Sol Jo 341

Ward v Byham [1956] 2 All ER 318 COURT OF APPEAL DENNING, MORRIS AND PARKER LJJ 16 JANUARY 1956 Contract — Consideration — Performance of statutory duty — Undertaking by father of illegitimate child to pay towards maintenance by mother — Condition that child should be well looked after and happy — Condition fulfilled by mother. After the unmarried parents of a child had separated, the mother became housekeeper to a man who was ready to let the child live with them, and she wrote asking the father to let her have the child and to pay her the £1 a week he was paying a neighbour to maintain it. She received a lett er from the father in reply saying “I am prepared to let you have [the child] and pay you up to £1 a week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you”. It was agreed that she should have the child who went to live with her. She received the £1 a week until seven months later when she married the man for whom she was acting as housekeeper, when the father stopped t he payments. In an action brought by the mother for the £1 a week based on the father's undertaking, Held – Notwithstanding the mother's statutory duty to maintain the child the mother's looking after the child in accordance with the agreement with the father was sufficient consideration for his promise to pay, and the father was liable to make the payments under the agreement. Hicks v Gregory ((1849), 8 C B 378) applied; dictum of Parke, B, in Crowhurst v Laverack ((1852), 8 Exch at p 213) not followed. Appeal dismissed. Notes As to promises which do not amount to consideration in law, see 8 Halsbury's Laws (3rd Edn) 117, para 203; and for cases on the subject, see 12 Digest (Repl) 235–237, 1762–1777. Cases referred to in judgment Crowhurst v Laverack (1852), 8 Exch 208, 22 LJEx 57, 20 LTOS 102, 17 JP 249, 155 ER 1322, 3 Digest 386, 247. Hicks v Gregory (1849), 8 CB 378, 19 LJCP 81, 14 LTOS 202, 137 ER 556, 3 Digest 386, 245. Appeal The father appealed against an order made by His Honour Judge Shove sitting at Lincoln and Horncastle County Court on 15 November 1955, for the payment of a sum of £30 damages in respect of a breach of an agreement to pay £1 weekly towards the maintenance by the mother of his illegitimate child. The father contended that there was

Page 2 of 3 Ward v Byham [1956] 2 All ER 318 no consideration for his promise to pay the weekly sum. G D Lane for the father.H A Skinner for the mother. DENNING LJ. This is a claim for the sum of £1 a week in respect of the maintenance of a bastard child. The father and mother lived together unmarried for four or five years, from 1949 until May, 1954, and a little girl was born of that union on 28 October 1950. Whilst the father and mother were living together, the father went out to work and maintained the household; but in May, 1954, the father turned the mother out. He put the child into the care of a neighbour and paid the neighbour £1 a week. The mother meanwhile found work as a housekeeper to a man who was ready to let the child come too. The mother wanted the child with her, and she wrote a letter to the father asking for the child, and £1 a week for her maintenance, which was the sum which the father had been paying the neighbour. We have not got a copy of the letter which the mother wrote, but we have the father's reply, which is the basis of this action. It is dated 27 July 1954, and says: “Mildred, I am prepared to let you have [the child] and pay you up to £1 per week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you. She is well and happy and looking much stronger than ever before. If you decide what to do let me know as soon as possible.”

On receiving that letter the mother went to see the father, and it was agreed that she could have the child. She took the child with her, and the child has lived with the mother ever since. In February, 1955, some seven months later, the mother married the man to whom she had been acting as housekeeper, and a few weeks later the father himself married. The father kept up the payments of £1 a week until the mother married, but after that he stopped. I look on the father's letter as dealing with two things. One is the handing over of the child to the mother. The father agrees to let the mother have the child, provided the child herself wishes to come and provided also the mother satisfies the father that she will be well looked after and happy. The other thing is the future maintenance of the child. The father promises to pay the mother up to £1 per week so long as the mother looks after the child. The mother now brings this action, claiming that the father should pay her £1 per week, even though she herself has married. The only point taken before us in answer to the claim is that it is said that there was no consideration for the promise by the father to pay £1 a week, because, when she looked after the child, the mother was onlydoing that which she was legally bound to do, and that is no consideration in law. In support of this proposition, reliance was placed on a statement by Parke, B, in the course of argument in Crowhurst v Laverack ((1852), 8 Exch208 at p 213).

Legislation referred to

By statute the mother of an illegitimate child is bound to maintain it, whereas the father is under no such obligation (see s 42 of the National Assistance Act, 1948). If she is a single woman the mother can apply to the magistrates for an affiliation order against the father, and it might be thought that consideration could be found in this case by holding that the mother must be taken to have agreed not to bring affiliation proceedings against the father. In her evidence the mother said, however, that she never at any time had any intention of bringing affiliation proceedings. It is now too late for her to bring them, because she has married and is no longer a single woman a . a

See Stacey v Lintell, (1879), 4 QBD 291

Page 3 of 3 Ward v Byham [1956] 2 All ER 318 I approach the case, therefore, on the footing that, in looking after the child, the mother is only doing what she is legally bound to do. Even so, I think that there was sufficient consideration to support the promise. I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given. Take this very case. It is as much a benefit for the father to have the child looked after by the mother as by a neighbour. If he gets the benefit for which he stipulated, he ought to honour his promise, and he ought not to avoid it by saying that the other was herself under a duty to maintain the child. I regard the father's promise in this case as what is sometimes called a unilateral contract, a promise in return for an act, a promise by the father to pay £1 a week in return for the mother's looking after the child. Once the mother embarked on the task of looking after the child, there was a binding contract. So long as she looked after the child, she would be entitled to £1 a week. The case seems to me to be within the decision of Hicks v Gregory ((1849), 8 C B 378) on which the judge relied. I would dismiss the appeal.

F A Amies Esq, Barrister.

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