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Colonial Cases

Fujiyama v Browne, 1926

[domestic contracts]

Fujiyama v Browne, 1926

Selected, edited and transcribed by Douglas Clark, barrister, Hong Kong




Sono Fujiyama

Albert William C. Browne

Before Sir Peter Grain, Judge

Date: 28 January 1926

Tycho Wing appeared for the Plaintiff

L.K. Kentwell appeared for the Defendant

Original report:  North China Herald 30 January 1926, p201

Sir Peter Grain:

The facts in this case are as follows:-  

From some time in 1916 to 1922, or early 1923, the plaintiff, a Japanese woman, Sono Fujiyama, and the defendant, Albert William C. Browne, lived together as man and wife without going through the ceremony of marriage. In the beginning Browne was a sergeant in the army, his regiment being quartered in Rangoon; later on, he went into the police force and recently obtained employment in Shanghai. The plaintiff did the house work and helped to support the household by her sewing. She also provided and took food to the defendant for certain periods when he was in hospital and in prison. Towards the latter part of the cohabitation the defendant handed over all his wages to the plaintiff for the support of the dual household.

Somewhere in 1923 the defendant left the plaintiff and later married a woman of his own race. On January 19, 1924, he signed the document which is as follows:--

"To Miss Sono Fujiyama.- The undersigned hereby promises to pay the sum of sixty-five dollars ($65) per month on the first day of each month commencing from February, 1924, during your whole life, being remuneration for good services rendered to him during years of cohabitation and also agrees to pay to the three persons the undermentioned debts he has incurred to you during the time at the rate of ten dollars ($10) each per month commencing from the said month and year, namely, to Mrs. Sums Yamamoto the sum of sixty five dollars ($65), Mrs. Lebarse, the sum of one hundred dollars ($100) and Miss Tsuya Fujiyama the sum of four hundred dollars ($400). Should you marry to anybody, the above payment to you except the said debts will be ceased. Dated this 19th day of January, 1924. Signed, sealed and delivered by Mr. Albert William Browne, No. 21n Seward Road, Shanghai. (Signed) Albert William Browne. In presence of M. Yano, Counsel for Miss Fujiyama."

An Unsealed Document

This document was signed but not sealed, although the document is inscribed "signed, sealed and delivered" and was witnessed by a Japanese lawyer. The defendant states that he signed it because the plaintiff threatened to make trouble with his employers and his wife and that he did not intend to abide by his promise. No questions were put to the plaintiff on this point and there is only the defendant's evidence in support. I am asked on behalf of the plaintiff either to make an order or issue a mandamus compelling the defendant to seal the document in question, or find that it is a valid contract without the necessity of being sealed.

With regard to the order for sealing, it has been urged on behalf of the plaintiff that I have power to do so under Section 14 of the Judicature Act, 1884:-  "Where any person neglects or refuses to comply with a judgment or order directing him to execute, etc., the Court may order .... that such contract shall be executed." Several cases have been quoted in support of the contention that I have the power to make that order, but I fear none of them apply to the facts in this matter.

In Sandiland, L R. 6 C. P. p. 411, it was held, on the evidence in his case, that the document had been sealed although there was no trace of the sealing.  ln this case we know as a fact that the document had not been sealed, as the Japanese lawyer has told us so definitely in his evidence before this Court.

In Howarth v Howarth, L. R. 68 and 95, it was a deed drawn up and ordered to be sealed by the Court.  The respondent in that case refused to obey the order to execute the deed which was a judgment and order of the Court. Consequently it came under Section 14 of the Judicatures Act 1884 "a person who refuses to comply with a judgment or order," etc and an order was made accordingly to excecute the deed.  In this case there is no judgment or order before the Court but merely a personal contract.

In National Provincial Bank of England v Jackson (1886) LR 38 Ch D p11 (A.A) it was held that there was no evidence that the deed had been sealed and therefore all the Court could do was adjudge the deed invalid.  In this case Sandiland was sconsidered, and it was stated that although in Sandiland there might have been sufficient evidence to find that the deed had been sealed in the case then before the Court there was not sufficient evidence to show that the deed had been sealed.

The same applies in this case, except it is stronger, as there is definite evidence that the deed was not sealed. Therefore I am unable to make ihe order asked for; nor have I power to issue a mandamus to compel the sealing of the document.

The Contract's Validity

The next question to consider, is whether this is a valid contract without being sealed.  To be a valid contract not under seal it must be supported by good consideration. I fear in this case that there is no consideration sufficient to support the contract. A part consideration, ie., something done by the promisees before promise, is not a real consideration. Except where the services are rendered at the request of the promisor and there is a definite or implied promise to pay for those services rendered.  In this case it is obvious that the services were rendered gratuitously by the plaintiff. In her evidence there is no suggestion (although it is pleaded) that there was a promise to pay. All she says is, "As he promised to marry me I did not mind working." And later she says that, when defendant left her, he said, "You need not be anxious; I will always look after you. If you are sick let me know and I will look after you." She says further, "When he gave me the letter (the document in question) he said that I was old and he wanted to marry someone else. But as I was old he would support me." There is no suggestion that a promise of payment was made before the document was drawn up.

Only a Moral Obligation

Although there was undoubtedly a moral obligation to support the promise to this woman, nevertheless a mere moral obligation to repay a benefit already received is not a valuable consideration. I therefore must come to the conclusion,
which I do with some regret, that there is no valuable consideration to support the contract and consequently the contract is invalid. The only part of this contract which is valid is the promise to pay certain debts. These debts the defendant has paid and so has performed the only part of the contract which he could be compelled to perform.

I say I have come to the conclusion with some regret because I cannot forbear saying that I consider the defendant has treated this woman harshly. She helped him when he was in trouble, worked for him and gave him the best years of her -life and then he callously casts her off because he wants to marry some one else, presumably a younger woman. I must in this case find for the defendant, but I shall make no order as to costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School