United Kingdom House of Lords Decisions

This was an appeal from a decision of the First Division of the Court of Session. The action was brought in the following circumstances:—Mr Fowler, the appellant's father, had four daughters, and on the marriage of Anna with the respondent Mr Mackenzie of Ord, in 1825, he by the marriage-contract engaged to provide to her, and settle on her children, a sum equal at least to that which would be provided to any other of his daughters. In 1827 another daughter, named Isabella, was about to be married to Mr Mackenzie of Allan Grange, and it was the father's desire to give £4000 to this daughter, but he was reluctant to do so, because if he did so he would become bound to pay £4000 also to Mrs Mackenzie. Negotiations took place, and at last, to get rid of the difficulty, Mr Mackenzie the (respondent) wrote a confidential letter, of date 8th December 1827, to Mr Fowler, saying that he and his spouse would be content to receive £2000, “and therefore leave to your own generosity and honourable feelings to put us on an equal footing if your fortune should admit of it. But we grant this letter to you in strict confidence, the import of which not to be disclosed, or any improper use made of it, and on the faith of which we hereby agree to bind ourselves and heirs to enter upon an agreement to this effect on stamp.” Nothing more was heard of the letter. The marriage of Isabella then took place, and she received £4000 at Mr Fowler's death in 1842. Mr Mackenzie claimed and received also £4000, the existence of the confidential letter not being known to the appellant, the heir of Mr Fowler. The confidential letter was never discovered till 1870, whereupon the appellant demanded repayment of £2000 as having been paid in essential error, and in ignorance of the confidential letter. An action accordingly was raised for reduction of the deeds under which the provisions had been paid to the respondent, and for repetition of the balance. The respondent stated as a defence that the letter was not binding, and never had been acted on; that the action was excluded by delay and acquiescence; that the payments were made in implement of natural and honourable obligation; and that the sums were bona fide received and consumed by the defender. The Lord Ordinary ( Gifford) found in favour of the pursuer, and held that the respondent was bound to repay the sum of £2000, and 5 per cent. interest. On reclaiming note, however, the First Division, on 15th March 1872, recalled this interlocutor, holding that there was no evidence that Mr Fowler ever acted on the confidential letter and treated it as an obligation, and therefore dismissed the action. The present appeal was then brought.

Counsel for the appellant contended that the judgment of the Lord Ordinary was right, and that the First Division was wrong, and that the confidential letter was as binding as any deed could have been.

Counsel for the respondent were not called upon.

At giving judgment—