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

Stuart v. Josephson [1899] NSWSupC 3

breach of promise of marriage, nature of action

Supreme Court of New South Wales

Darley C.J., 11 September 1899

Source: Sydney Morning Herald , 12 September 1899, p. 7


(Before the Chief Justice and a jury of four.)


Stuart v. Josephson.

Mr. Moriarty, instructed by Mr. John Howarth, appeared for the plaintiff; and Mr. Gannon and Mr. Mocatta, instructed by Mrs. Carruthers and McDonald, for the defendant. This was an action by a Effie Louise Stuart against Arthur William Josephson to recover damages for alleged breach of promise of marriage. The case for the plaintiff was that at the end of 1891 or the beginning of 1892 she was living with her mother at the Glebe, and while attending a party or picnic given by Mr. Sydney Josephson she was introduced to the defendant. Mrs. Stuart, who was then in comfortable circumstances, subsequently gave a party, and this defendant also attended, and renewed his attentions to the plain tiff. Ultimately they became engaged as soon as his father, Mr. I. J. Josephson, who was in failing health, died, and he gave as a reason for fixing that period for the marriage that he was the only son at home and his father required constant attendance. Afterwards Mrs. Stuart, owing to the financial crisis, became impoverished in circumstances, and removed to William-street, Woolloomooloo. Defendant was a constant visitor upon the plaintiff, and made her a number of presents, including an engagement ring, and took her two places of amusement. Acting upon defendant's advice Mrs. Stuart sold her furniture, and with the proceeds bought an hotel business at Manly Beach. After remaining at Manly if for nine or ten months Mrs. Stuart failed to make the business pay, and defendant, with her consent, to plaintiff away to his father's house, in Macquarie-street, where she remained for several months. Upon the expiration of that time, according to the plaintiff's story, Mrs. Josephson insisted upon her leaving the house, and in September, 1894, without any explanation being offered, her boxes were packed up and sent away, and plaintiff was ordered to leave the house. On one occasion defendant behaved roughly towards her, and as she did not leave when ordered two detectives were sent for, and plaintiff was induced to return to her mother. Mrs. Stuart gave evidence that when her daughter came back after her visit to the Josephsons her spirits appeared to be crushed, and there were bruises on her shoulders. In cross-examination she positively denied that her daughter, with her consent, was taken by the defendant to his father's house to act in the capacity of companion to Mrs. Josephson had a salary of 15s per week. On the contrary, she thoroughly understood that she was to go to Mrs. Josephson as a guest, and in the circumstances of her position and the engagement existing between the plaintiff and defendant she was glad to accede to the defendant's request, and allowed her to go. Mr. Josephson, sen., died in May, 1897, but the defendant had not carried out his promise. Damages were laid at £2000. Several witnesses were called for plaintiff, who gave evidence as to the affectionate relations which, in their view, existed between plaintiff and defendant, and plaintiff, who stated her age to be 29, also went into the witness-box, and stated that shortly after she became acquainted with defendant he acted towards her as a lover, took her to the theatre and other places of amusement, and made her a the present of a ring and brooch, which, however, she had lost. He used to bring her flowers and lollies, and sometimes fish. On one occasion he brought her some pudding. When the defendant came to the hotel at Manly Beach to take her to his father's house she asked him whether he intended to marry her, and he replied in the affirmative, and added that the marriage would take place in about six weeks, or a little later. She remained at defendant's father's house from the 11th September, 1893, till February, 1894, and during four days of that time she worked at a fur factory, but she gave it up, as defendant objected to her working at a factory. She also swore that she went to Mr. Josephsons house simply as a guest, and when she offered a clean out her room Mrs. Josephsons said there were servants to do the work, and that she need not do anything until she got a situation. The plaintiff further stated that one morning the servants came up to take away her boxes, and when she asked for an explanation defendant caught her by the throat. He also threw her on the bedroom floor and afterwards tried to throw her downstairs, but Mrs. Josephson interfered, and said the defendant that he would be hanged if he did not mind. She also stated that Frank Josephson assaulted her and threw her against the wall. As she was unable to leave the house, having no means, she did not go then, but two men, whom she did not know, came into her bedroom and after some conversation Mrs. Josephson gave her 10s for a camper and she left. She afterwards heard that the men were detectives, but when they came into her room she asked them what the charge was. Afterwards she was laid up for several months, and for a portion of the time she believed she was delirious. She admitted that on one occasion Mrs. Josephson told her she would have to go as she could not stop there any longer. She had spoken to her before about getting work.

In cross-examination plaintiff said that she had no recollection of getting over the gate in Macquarie-street one night when she went out in opposition to Mrs. Josephson's or orders and was locked out. When defendant used to bring her home at night he would climb over the gate and then open it for her. About three years ago she met the defendant outside the Hotel Australia, and asked him for two ornaments of hers - Cupid and Psyche - which he had in his possession, and he told her to see him at the same place that evening. She went that evening, and upon a costing defendant, who was with a friend, he said, "Oh, you are too much bother," and went away. She denied that on the occasion referred to she asked him for money.

This closed the plaintiff's case, and Mr. Gannon moved for a nonsuit on the ground that the alleged promise had not been sufficiently corroborated in law.

His Honor refused the application, and said he thought it better the matter should go to the jury.

For the defence Francis J. Josephson said that he had been in the public service for 17½ years as agent for immigration, and since his retirement from that position he had lived on his means. He had held office as Mayor of Ashfield, and was at present an alderman of that borough. He remembered his mother telling him in the plaintiff's presence that he had engaged to her as companion at 15s per week. He knew nothing whatever about the servants packing up the plaintiff's box is, and there was no truth whatever in plaintiff's statement that he assaulted her on any occasion. He was always in the habit of going to his mother's house to lunch every day, and on one occasion when he went there he heard that plaintiff had left. He knew nothing of the circumstances connected with the plaintiff leaving the house until he was informed about it defendant also went into the box and said that after being introduced to the plaintiff he used occasionally to visit her mother's house at the Glebe, but he never acted towards plaintiff in any other capacity than that of a friend, and he had never made her any presents whatever except of a trivial nature such as lollies and perhaps fish. When the family went to Manly he out of kindness assisted them to get the hotel in order, but he never at that time or on any occasion promised to marry plaintiff or made any allusion to marriage; nor did he tell plaintiff or her mother that he would marry plaintiff when his father died. As a matter of fact, his father was a hale, hearty man at the time. He was garroted outside the Crown Law offices between 9.15 and 9.30 one night, and robbed of his watch and chain. He never recovered from that injury, and died two years and nine months afterwards. When the hotel business collapsed plaintiff said she wanted a job, and witness said he would ask his mother if she would engage her as a companion. He did so, and the result was that plaintiff was engaged as a companion at 15s per week. She was certainly not there as a guest. After she had remained there for some months, he and his mother gave her a week's notice, as she had become so abusive that they could not stand her in the house. She used to go out very often alone, and his mother complained about it. And word was left with the servants to knock her out if she did not return by a certain time. When witness got home he found that plaintiff had returned. He accused her of climbing over the gate, and she did not tonight. The first thing next morning plaintiff came to the door of his bed room and said she wanted to speak to witness, but he declined to have anything to do with her, and told her she had received a week's notice. Plaintiff then caught hold of him, and nearly threw him downstairs. All that he did was to keep her off, and he said the her, "You came here to get strong, and now you are too strong, and you had better go." For fear that she would create a disturbance he then sent for two detectives, and she was poured out of the house. Sometime subsequently, about half-past 9 p.m., she spoke to him outside the Hotel Australia, and catching hold of his arms said "give me half a sovereign;" and defendant replied that he would do nothing of the sort, as she had received quite sufficient assistance while she was at his mother's house. It was quite untrue that on that occasion he met her in the morning and made an appointment for the evening in order to return to her for some ornaments.

In cross-examination defendant said he had always found plaintiff a modest, well-conducted girl; but he denied that he ever climbed over the gate at night while in her company to let her into his mother's house at Macquarie-street.

At this stage the further hearing was adjourned till Wednesday next.

Darley C.J., 13 September 1899

Source: Sydney Morning Herald , 16 September 1899, p. 12


(Before the Chief Justice and a jury of four.)


Stuart v. Josephson.

Mr. Moriarty, instructed by Mr. John Howarth, instructed by Messrs. Howarth and Wood, appeared for the plaintiff; and Mr. Gannon and Mr. Mocatta, instructed by Mrs. Carruthers and McDonald, for the defendant. This was an action by a Effie Louise Stuart against Arthur William Josephson to recover damages for alleged breach of promise of marriage. The case was commenced on Monday last, when a considerable amount of evidence on both sides was given, and the hearing of evidence of behalf of the defendant was resumed. The defendant, upon being re-examined by Mr. Moriarty, said he was sure he had never made the plaintiff any presents. He was in America about 15 years ago, and brought back a number of advertising photographs, some of which he gave to plaintiff, but he did not call them presents. He did not give her any songs. He had a book of songs, but did not give it to her.

By Mr. Gannon: The photographs which Mr. Moriarty had shown to him he obtained in San Francisco when he was there, and they were of little value.

Joshua Percy Josephson, brother of the defendant, said he was a civil engineer and licensed surveyor. He was also an alderman of the borough of Marrickville. At one time he had been in the Harbours and Rivers Department, and left after 27½ years' service. In 1893 and 1894 he was in the habit of dining at his mother's house every day while in town, and as far as his observation permitted him to judge plaintiff was in the house as a kind of companion to his mother who was at the time 60 years of age. To servants were employed in the house, and the man was engaged for boating purposes.

Thomas Johnston, sergeant of police, said he remembered only in 1894 being called in with Constable Monson to Mr. Josephson's house in Macquarie-street. It was between 9 and 10 o'clock in the morning. They went to an upstairs room and found there the defendant, Mrs. Josephson and the plaintiff. Defendant stated that the plaintiff had assaulted him, that she had been paid whatever money was due to her, and they wished to dispense with her services. Witness told the plaintiff if that was so the best thing she could do was to go away quietly. Plaintiff seemed quite excited but she made no answer to what was said and left the room. She made no complaint about being badly treated.

The Chief Justice: When Mr. Josephson complained that she had assaulted him, did plaintiff say anything?

Witness: No, she did not say a word.

By Mr. Moriarty: He was not a friend of the defendant he was not asked by the plaintiff what the charge was. He did not tell the plaintiff he was going to arrest her.

At this stage Mr. Gannon asked for a short adjournment. He had shown a document to his learned friend, and they desired to have a consultation as to the course to be taken.

The application was granted, and an adjournment was permitted until 11 o'clock, when Mr. Gannon said that before he closed his case he asked leave to put the plaintiff into the box so that he might ask some questions upon a matter which had only come to defendant's knowledge since the trial had commenced. It was necessary to do that, otherwise he would be precluded hereafter from moving for a new trial on the ground of surprise, if such a course should become necessary.

His Honor: Have you any objection, Mr. Moriarty?

Mr. Moriarty: Yes, your Honor, unless what they allege is pleaded. I understand that the adjournment was for that specific purpose, and if the defendant will place a plea on the file justifying the questions, I will consent to their being put.

The Chief Justice: Do you consent to the plea going out on the file?

Mr. Moriarty: Certainly.

His Honor: I think that is the fairest course.

At the request of Mr. Moriarty his Honor saw him, and Mr. Gannon in private Chambers, and upon his Honor again taking his seat on the Bench the case was continued.

Harriet Wright, a married woman, examined by Mr. Gannon, said that about September, 1895, a gentleman came with plaintiff to her house, 38 Rapier-street, Newtown, and took a joint sitting and bedroom for 5s per week. The plaintiff brought her things at the same day.

Mr. Moriarty said his learned friend agreed with him that it would be a convenient time to object to the evidence, which was about to follow. He objected to the evidence on the ground that the breach of promise alleged was anterior to the time the witness was about to speak of.

His Honor said in his opinion the evidence might be given. It was true that this was an action for breach of contract, but it was one of a very peculiar nature, and if the breach complained of had been committed plaintiff was entitled to damages for the injury to her feelings. It was something more than an ordinary contract, and was in the nature of a tort. Evidence had been given by the plaintiff that in consequence of the conduct of the defendant she became very much depressed in spirits, that she was confined to her bed for several months, and that she was an invalid for several months after that. Her mother had also given evidence that the plaintiff was quite a changed person after the alleged breach of promise. Now, he understood that the evidence which Mr. Gannon proposed to give was for the purpose of showing that so far from these statements being true plaintiff's conduct had been such that her feelings could not have been outraged as she alleged, and that she had not suffered from the defendant acts, if he had been guilty of them.

Witness then continued her evidence and stated that the plaintiff remained in her house for about 10 or 12 months. For a portion of that period the gentleman referred to frequently and remained with the plaintiff in her room for a considerable time. Afterwards the gentlemen went up to the country, but he wrote to plaintiff while he was away and sent her remittances by postal order. About six months after plaintiff came to the house her mother also came there, and, as she said she had no home, witness allowed her to share her daughter's room without extra charge. When the gentlemen returned from the country he renewed his visits to plaintiff. Witness on various occasions told the plaintiff and her mother to go, as she was an honest woman, and would not have her house disgraced. Plaintiff did not appear to do any particular work, but on one occasion Mrs. Stuart had a job to nurse an invalid lady, and she also did some sewing. After plaintiff and her mother left witness's house she called upon the plaintiff at her new residence in Newtown and asked her for the amount which was owing for the room. The plaintiff, however, ordered her to leave, and threatened to throw her down stairs. Witness added that she knew nothing of the action until she sore at report of it in one of the papers on Monday afternoon, and she then, merely in the cause of justice, communicated with defendant's brother through the lawyers.

William Wright, son of the previous witness, also gave evidence, and Mr. Gannon had then stated that a owing to a communication made to him by his learned friend he was able to make the case shorter than it would be otherwise, and he therefore closed his evidence in reply.

Plaintiff was then recalled and examined by Mr. Moriarty. She said it was not true that she had lived with a man, whose name had been mentioned, at Mrs. Wright's house. She had never lived with any man. It was not true that the man referred to paid for the lodgings or send her any money. The money was sent to her from Cobar by her brother.

The Chief Justice: Did the gentlemen visit you?
Witness: Yes. Several gentlemen visited the house. I had to ask him into my room, which was a sitting-room as well as a bedroom. He came very seldom, and was away in the country most of the time.

When the sitting of the Court was resumed at 2 o'clock,

Mr. Moriarty said he had carefully considered what he ought to do in the case after the evidence which had been given, and he felt bound to withdraw from the case. Mr. Howarth, who instructed him, would also take the same course.

The Chief Justice: I think you have taken a proper course. Does the plaintiff asked for a nonsuit?

Mr. Moriarty: No, your Honor.

Plaintiff was then called forward.

The Chief Justice: Plaintiff, you understand the position you are now in. Your counsel and solicitor have withdrawn from your case in consequence of the evidence given to-day. What do you wish to do? You can apply for a nonsuit, and I apprehend that is the best course you can pursue. I see very well why your counsel withdrew from the case, and they have taken a very proper course in your behalf. Certain duties might devolved upon me at the close of the case which they no doubt foresaw.

Plaintiff subsequently agreed to a non-suit.

Plaintiff was accordingly non-suited.

Published by the Division of Law, Macquarie University