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Decisions of the Superior Courts of New South Wales, 1788-1899

Tranter v. Callaghan [1889] NSWSupC 3

breach of promise of marriage

Supreme Court of New South Wales

Darley C.J., 13 June 1889

Source: Sydney Morning Herald, 14 June 1889, p. 3

No. 1 Jury Court. - (Before his Honor the Chief Justice and a jury of four.)

TRANTER V. CALLAGHAN (PART HEARD).

Mr. Field, instructed by Mr. A. Ashdown, appeared for the plaintiff, and Mr. O'Mara, instructed by Mr. F.J. McCarthy, for the defendant. The plaintiff, and Louisa Maria Tranter, sued William Callaghan to recover £2000 for an alleged breach of promise of marriage when the parties both resided at Sydney. Defendant filed a number of pleas in reply, setting out, among other things, that after the alleged promise, having ascertained certain damaging facts which he believed to be true in reference to the plaintiff's character, he refused to marry her; that the promise was rescinded by mutual consent; and that plaintiff had received and accepted the sum of £200 in satisfaction and discharge of her claim.

The evidence was resumed, and Mr. Field re-examined the plaintiff on the points in regard to which she had been questioned by Mr. O'Mara. The latter counsel, by permission of his Honor, then examined plaintiff as to certain statements contained in a letter written by her to a Mrs. Wilson, of Rockhampton.

Plaintiff was the only witness called in support of her case, and Mr. O'Mara then asked what letters the plaintiff intended to rely upon as containing the promise of marriage.

The Chief Justice said there was a letter of the 19th July, 1881, in which defendant said, "You need not think I am going to be married to anyone else. It is only a question of time."

Mr. O'Mara submitted that there was not sufficient evidence to go to the jury.

His Honor said he could not take the case from the jury.

Defendant then proceeded to call evidence in reply.

Constable Charles Mallard gave evidence that he remembered, in February, 1886, the defendant, who kept the National Hotel, in George-street, sending for him; when he reached the hotel he found the plaintiff under the influence of liquor, and defendant told her presence, that he wanted to give her in charge for destroying his property; plaintiff, who was on the landing, said, "Wait for five minutes until I change my things;" shortly afterwards she appeared at the door of her room in an almost nude state, and said to the constable, "You cannot take me now, can you?"; witness then left, but before doing so he noticed that a quantity of crockery had been smashed in the dining-room.

Defendant, after giving evidence as to the plaintiff being engaged in his service at Rockhampton in March, 1878, was examined at great length by Mr. O'Mara as to the terms upon which he lived with the plaintiff, her occupation and recompense at the various hotels in Sydney of which defendant had been the licensee, and the various instances of misconduct of which he alleged the plaintiff had been guilty. He swore positively that while the plaintiff was engaged in Sydney as barmaid or housekeeper she received a regular salary. He stated that he never authorised her to pass under his name, though he heard she had done so, and he said that he had dismissed her from his service on several occasions, but had taken her back upon receiving promises of reform. When they visited England plaintiff took charge of his daughter, and upon reaching London he gave her £100. Plaintiff subsequently informed him that she had divided the money among her relatives as they were very poor, and she then begged him to pay her passage back to Sydney, giving as a reason that if she remained at home she would only a few pounds per week, which would not be sufficient to keep her in clothing. Defendant then gave her £40, and told her she could get her passage or do what she liked; but as plaintiff pleaded that she was a stranger in London he obtained a passage for her in the Austral, which was to sail a month after the date of his intended departure. Defendant then proceeded to give details as to the alleged in intemperate habits of the plaintiff, and her misconduct in other respects.

The evidence was not concluded when the Court rose.

Darley C.J., 14 June 1889

Source: Sydney Morning Herald, 15 June 1889, p. 13

No. 1 Jury Court. - (Before his Honor the Chief Justice and a jury of four.)

TRANTER V. CALLAGHAN (PART HEARD).

Mr. Field, instructed by Mr. A. Ashdown, appeared for the plaintiff, and Mr. O'Mara, instructed by Mr. F.J. McCarthy, for the defendant. The plaintiff, Louisa Maria Tranter, sued William Callaghan to recover £2000 for an alleged breach of promise of marriage when the parties both resided at Sydney. Defendant filed a number of pleas in reply, setting out, among other things, that after the alleged promise, having ascertained to certain damaging facts which he believed to be true in reference to the plaintiff's character, he refused to marry her; that the price was rescinded by mutual consent; and the plaintiff had received and accepted the sum of £200 in satisfaction and discharge of her claim.

The evidence was resumed, and defendant was cross-examined and re-examined at considerable length, mainly as to the relations which existed between him and the plaintiff before he dismissed were.

Police-Sergeant Carbery was then called, and stated that he remembered some time in 1887, between 4 and 6 p.m., being sent for by the barman of the International Hotel, to remove the plaintiff, who, he said, had been in the employment of the defendant; the plaintiff was drunk, and he noticed that the bar was a complete wreck, the glasses and some bottles being broken; he persuaded plaintiff to leave, and she went out by the back way.

Eliza Johnstone, formerly carrying on business at the Sydney and Melbourne Coffee Palace Hotel, stated that, at the end of May or the beginning of June, 1887, plaintiff came to the hotel at night with a man, and took No. 1 bedroom, and they remained there all night; she saw the man coming out of the room in the morning; it was not Mr. Callaghan, whom she knew at that time, but a person who was a stranger to her; in the morning plaintiff came to her and requested to have another bedroom, as her husband, she said, had gone to sea, and she was given No. 5 on the same landing; the person whom she described as her husband did not appear again; plaintiff came to her house in Sussex-street, and asked her to come to the court and give evidence in regard to her visit to the Sydney and Melbourne Coffee Palace Hotel; witness replied that if she did give evidence it would be against her.

Charles William Prouse, formerly landlord of the Pier Hotel, Manly, said that he knew the plaintiff; she had stopped at the hotel on several occasions as a lodger, and on several occasions he had seen her very drunk; after she returned from England he detected her in an act of immorality with a gentleman who was at the hotel.

James Madin, waiter, said that he knew defendant; witness was proprietor of the Steam Packet Hotel from 1878 to 1883; during a portion of that time plaintiff was in his service as barmaid, and he engaged her on the recommendation of defendant; that, he believed, was in May, 1881, and the plaintiff received £1 per week and lived on the premises; about three months after she entered his service he noticed that she had given way to intemperance, and for the remaining two months during which she was in his employ she was frequently drunk, and an [sic] on several occasions was incapacitated for two or three days; he noticed that champagne was missing which the returns furnished by plaintiff did not account for; at the end of two months, having detected her in an immoral act, he dismissed her.

Other witnesses were called, who gave evidence as to plaintiff's conduct at the National Hotel, and the manner in which she conducted a boarding-house in Crown-street.

The case not being concluded at 4 o'clock, was adjourned till Monday.

Darley C.J., 17 June 1889

Source: Sydney Morning Herald, 18 June 1889, p. 4

No. 1 Jury Court. - (Before his Honor the Chief Justice and a jury of four.)

TRANTER V. CALLAGHAN (PART HEARD).

 

Mr. Field, instructed by Mr. A. Ashdown, appeared for the plaintiff, and Mr. O'Mara, instructed by Mr. F.J. McCarthy, for the defendant. The plaintiff, Louisa Maria Tranter, sued William Callaghan to recover £2000 for alleged breach of promise of marriage when the parties both resided at Sydney. Defendant filed a number of pleas in reply, setting out, among other things, that after the alleged promise, having ascertained certain damaging facts which he believed to be true in reference to the plaintiff's character, he refused to marry her; that the promise was rescinded by mutual consent; and that plaintiff had received and accepted the sum of £200 in satisfaction and discharge of her claim.

The evidence on behalf of the defendant was resumed.

Counsel having addressed the jury,

James William Coller, waiter at the Grand Hotel, stated that he knew defendant, and was in his service at the National Hotel from 1885 to 1887; at that time plaintiff was engaged there as housekeeper; witness served in the public bar, and plaintiff had no right in the bar; he had seen the plaintiff under the influence of liquor and acting violently towards defendant; that was within the hearing of customers; he had heard her use bad and abusive language while in that condition, and remembered that on one occasion she smashed the glass door of the dining-room with her umbrella.

James Press, barman at the National Hotel, and who was in Mr. Callaghan's employment when he had that Hotel, said that Mr. Tranter was then housekeeper there; he had seen her under the influence of liquor, and had heard her use bad language.

In cross-examination, witness said that when plaintiff was sober any person might live with her, but when she was drunk nobody could do so.

This closed the defendant's case.

Plaintiff was called in reply, and swore positively that the evidence of the witness Nadin as to her immoral conduct at the Steam Packet Hotel was untrue; up to 1882 she was never unfaithful to defendant.

In reply to a question by his Honor, witness stated that the captain of the Austral, on the voyage out, did not speak to her about her conduct. In answer to Mr. O'Mara, witness denied the main evidence given by other witnesses as to her conduct.

Eliza Stevens, boardinghouse-keeper, with whom plaintiff had lived at Stanmore, stated that she was a quiet, good woman at the time she remained with her; she did not often go out at night alone, and had only one visitor while she lived with witness; she never told her husband that visitors had come to see Miss Tranter, and she could not remember visitors coming to the house to see her had been refused admittance; plaintiff was not earning any money was she remained with witness.

Matilda Ward said that she was in the habit of visiting plaintiff and defendant in 1884, and at that time she thought they were married; plaintiff always behaved well in her presence, and she never saw her immodest at any time.

His Honor, in summing up, said he could not refrain from saying that he thought it was to be deeply regretted that the time of the jury and the time of the Court, which ought to be occupied in considering much more important matters than those place before them in the present case, had been taken up for nearly four days in trying a case between two parties, one of whom - the defendant - admitted himself to be at any rate up to 1888 a man of disreputable character. The other - the plaintiff - if one-half of the evidence given was true, was one of the most abandoned of her sex. And yet they had been sitting there hour after hour and day after day listening to the unfolding of the history of the infamous lives, that was presuming the evidence to be true. That was the way in which the principle Court of the Supreme Court of the colony had been occupied for four days. If one-half of the evidence was true, then he thought the jury were not likely to her very much sympathy either with the plaintiff or the defendant. But they were before the Court, and being there it was the duty of the jury to see that justice was done between them. It was equally their duty and his to see that there two persons who were before them received justice, no matter what the characters might be, however little sympathy they might have with them, and no matter what they might think of them. The complaint of the plaintiff was that she entered into a contract of marriage with the defendant, and that the defendant had broken his contract. If that was proved and a justification was shown for the breach, then beyond all question, the plaintiff would be entitled to damages. The contract was admitted by the defendant, and, according to the evidence, it appeared to have been entered into some six or eight months after the death of defendant's first wife, which would be somewhere about the middle of 1879. In the year 1881 the contract was admitted to be in existence, and in a letter dated 19th July of that year and written by defendant to plaintiff, defendant said: "Do not believe I shall marry anybody else; it is only a question of time." In 1882 there was also, in the defendant's own showing, evidence that the contract had been in existence for years, but defendant said that having discovered this woman in an act of criminal intercourse in his own room with a person who was stopping at defendant's hotel he told her that the contract of marriage was at an end between them. It was said by counsel, on behalf of the plaintiff, that even admitting for the sake of argument that defendant's evidence was true, still a reasonable time had elapsed between the making of the contract in 1879 and June, 1882, that there was abundant time between those dates to carry out the contract, and that there was no obstacle to its being carried out. That was all very true; but where was there any evidence of any breach of the contract? No doubt a reasonable time had elapsed, but something more was required. He must be a refusal to marry. Well, it was his duty to tell the [jury], after looking over his notes, that there was no evidence of a breach of the contract, though there was evidence that a reasonable time had elapsed after the promise. The fulfilment might have been postponed by agreement between the parties, but there was no refusal to marry up to June, 1882. They might therefore start from that. Now, one of the first pleas was that there was no agreement. Well, it was admitted that there was, and they might for that reason dismiss that plea from consideration. Another plea was that after the alleged agreement defendant discovered plaintiff to be a woman of immoral and immodest character and of intemperate habits. If that was true that was a justification for his refusal to marry her, because any man who, having entered into a contract to marry a woman, afterwards discovered that she was immoral and immodest and of intemperate habits, was entitled to break off the marriage. That was no breach. The question for the consideration was whether between June, 1882, and September, 1882, plaintiff was guilty of the conduct alleged against her. They had the evidence of the defendant on the point and plaintiff denied it, and they had to say which evidence they believed. That was in 1882, and defendant said that from that moment he told her she was no longer his intended wife. There were some letters written after that, and though they were in loving terms it was for the jury to say whether there was anything written in them which would be written by a man to a woman whom he intended to make his wife, or was anything more than what a man would write his mistress. He did not think any observation touching marriage would be found in any letter since 1882, and there was no letter except that of 19th July, 1881, in which marriage was mentioned. So far as he understood plaintiff's case, there was no allusion to marriage except upon the date he had mentioned.

Mr. Field: There is inferentially, your Honor, but not expressly.

His Honor said that at any rate the jury would have the letters before them, and it was for them to save whether inferentially there was in other letters any allusion to marriage. Defendant said that from June, 1882, when he put an end to the contract, plaintiff's whole conduct showed that she understood and acquiesced in the intended marriage being broken off. Defendant said that in 1884 he took plaintiff to England, but that before they went there was an agreement he was to give plaintiff £100 upon condition that she destroyed his letters, and she was to remain in England. As far as the plea was concerned, he agreed with the learned counsel for the plaintiff that it was not proved. It was proved that he gave her £100, and though he gave her £120 after that, it was not shown that that was part of the consideration mentioned in defendant's plea. They were therefore driven to the pleas of immoral conduct and the alleged rescission of the contract. Defendant said that from 1882 up to 1888 the whole conduct of this woman showed that there was a rescission of the contract, that she acquiesced in his treatment of her, and that no consideration was attached to the relations which existed between them. His Honor then proceeded to refer to the main points of the evidence on both sides, and said that if they believed defendant's evidence as to what occurred in Crown-street they could scarcely fail to come to the conclusion that all promise of marriage was over between him and plaintiff. The latter, however, said that she kept the place reputably, and if the jury believed her story it was evident that she pressed defendant to marry her while she lived in Crown-street, and even up to the time when she was living in Upton-street. If they believed plaintiff on this point, and also came to the conclusion that she was not an immoral woman, or a woman of intemperate habits, then the question would resolve itself into one of the damages. Of course the jury, though there were 10 or 11 witnesses against plaintiff, had an absolute right to say that they did not believe them. They might say that though this woman had made one mistake in her life they believed her to be a truthful, temperate, and modest woman; and, further, that up to a short time of defendant's marriage she pressed him to fulfil his promise, but that he broke it by his marriage with someone else.

The jury retired at 5 minutes to 3 o'clock, and at 4.15 p.m. returned with a verdict for the plaintiff with damages £200.

Mr. O'Mara applied for a stay of execution.

His Honor: On what ground?

Mr. O'Mara: In order that we may take further proceedings in Banco.

His Honor: On what ground will you move?

Mr. O'Mara: On the ground that the verdict is against evidence and the weight of evidence.

His Honor: I do not think the verdict is likely to be disturbed on that ground. There is evidence both ways, and there is no point of law that I am aware of. I cannot stay in execution.

Published by the Division of Law, Macquarie University