Knowlman v Bluett - Nov 10
Statute of Frauds, s.4 - Agreement not to be performed within a
year - contract to pay for Support of Illegitimate Children - Amendment
of Claim.
Declaration that before the making of the promise
thereinafter alleged, the defendant seduced the plaintiff and she
became the mother by him of six illegitimate children, and that 'in
consideration of the premises, and that the plaintiff would at the
request of the defendant take and continue to take the sole charge
of the children and supply them with such things as should be necessary
for their use and educate them, the defendant promised the plaintiff
that he would pay her an annuity or sum of 300l. a year for
and during a term which has not expired, the said annuity to be paid
in four equal quarterly payments:' that all conditions, &c, were
fulfilled, yet the defendant had discontinued the quarterly payments,
and two years were in arrears. The defendant (amongst other pleas)
denied the promise and the breach.
Issue.
At the trial before Kelly, C.B., at the Devon Summer Assizes, 1873,
a verbal promise by the defendant to pay 300l. a year by quarterly
payments so long as the plaintiff should maintain and educate the
children, was proved. The ages of the children at the date of the
promise ranged from fourteen to seven years. It was objected on the
part of the defendant that the promise was one not to be performed
within a year, and should have been in writing to satisfy the Statute
of Frauds, s.4. The learned judge ruled upon this point in favour
of the plaintiff. The declaration only claimed 600l., but it
turned out that the extra half year of the annuity was in arrears
at the time of action brought, and the learned judge amended the declaration
by altering 600l. to 750l., and directed a verdict for
the plaintiff for that sum, with leave to move to enter a verdict
for the defendant or to reduce the damages.
Cole, Q.C. (Arthur Charles with him), moved accordingly, and contended:
1st. that the promise should have been in writing; and 2ndly, that
there was no power to amend the claim in the declaration at the trial.
The Court refused the rule. They held that the contract was one which
at any time the plaintiff or the defendant might have put an end to
by a notice. The plaintiff might have notified that she would no longer
continue to support and maintain the children, or the defendant that
he would discontinue paying the annuity. Such a promise need not be
in writing under the Statute of Frauds, s.4 and arrears which had
become due before any such notice had been given were recoverable.
Further, they were of opinion that under s.222 of the Common Law procedure
Act, 1852, the amount of the claim might be amended.
Attorneys: Wedlake & Letts, for Edmonds & Son, Plymouth
