Contract-s-Promise to marry-Breach: of-Written document providing damage, .
in event of breach

Contract-Illegality-Promise to pay an allowance in conlideratiols 0/ illicit
cohabitation-whether enforceable

Damages-Penalty-Liquidated damages-Test to be applied~Whether a yu-
son suing for breach of a promise to marry has to prove actual-iob

The defendant was sued on a document Signed by him in which he·
promised to marry the plaintiff wfthin a .certain date or pay her. £B.lOOO if
he fails to do so. In another-part of the document h~ promised to pay
the plaintiff a monthly allowance of £E.20. The defendant having failed
to carry out his promises. the plaintiff. brought the present action against him.                          

As regards his liability under' the document, the defendant _pleaded that
the signature was not his, but even if it Was his, it was obtained from
him at a time when he was not in a condition to uilderstand what he
was doing. He further pleaded that even if he was liable the £E.l000 Wu
too excessive im~ was therefore a penalty and shoUld· Dot be enforced
against him.

As regards the allowance, he said it was payable u". consideration of

        illicit cohabitation.                                                                         

Held:

(i) That on the evidence before 'it; the court was satisfied that the defendant's signature was genuine.                                       

(li) That although the £E.lOOO is large it i6 110t extravagant hDina  regard to the circumstances of the case.                  

(iii) That since the court was satisfied that the allo-.nCO Wu at Jeut
partly payable in consideration of future illicit cohabitation, it was an iUePI promise and cannot be enforced.                               

Action

May D, 1924. Bell J.: The Plaintiff's claim ,is based on a docu-
ment dated June 24, 1923, whereby the defendant undertook to mairy.
the plaintiff within two years from June 1, 1923, and·._.,roIniaed to,'
pay/her £E.l000 if he failed to carry out his undertaking. Pea(X)Ck tj .
who conducted the first part of this case, heard the evidence' of- botJl

, parties and named the following issues:

• Court: BeIU.

1. Did the defendant sign the agreement; or if he did sign it,
was he in such a condition as not to appreciate his action, and there-
fore relieved of liability?

2. Had the defendant knowledge of the agreement, and is he en-
titled now to repudiate his signature?

3. Is the £E.I000 inserted in the agreementto be regarded as a
penalty or as liquidated damages? If as a penalty is plaintiff under
obligation to prove damages sustained by breach and what damages
has she in fact sustained?

4. Has the plaintiff since the date of the agreement so conducted
herself as to justify the defendant in repudiating the agreement and any consequent liability?                                                                      

5. As to allowance, is there a consideration? If there is a con-
sideration, is the consideration immoral, rendering the agreement un-
enforceable?

6. Does an action between the parties lie before this court?

The defence is firstly that the defendant never signed the docu-
ment, or that, if he did sign it, he was not in a condition at the time
to understand what he was doing. Evidence of the due execution of
the document has been given and no evidence has been given on behalf
of the defendant to rebut it. On these points therefore the finding
must be in favour of the plaintiff.

The defendant next states that 'the sum of £E.I000 is a penalty,
payment of which cannot be enforced against him. Argument onthis
point has been directed to the English law on the subject of penalties
and liquidated damages. The question whether a sum mentioned in'
an agreement to be paid for a breach is to be treated as a penalty or
as liquidated damages is a question of law to be decided upon a con-
sideration of the whole document. The real intention of the parties
must be ascertained from the language they have used. Oral evidence
is not admissible except under the general rules, governing the admis-
sibility of oral evidence in the case of Written contracts.

A number of cases has been decided on this point. Where there
was only one event upon which the money was ,to become payable, or
where there were several events, but it was impossible to measure the
damages accurately, the sum has been decided I to be liquidated dam