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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ward v Byham [1956] EWCA Civ 1 (16 January 1956) URL: https://www.bailii.org/ew/cases/EWCA/Civ/1956/1.html Cite as: [1956] EWCA Civ 1, [1956] WLR 496, [1956] 2 All ER 318, [1956] 1 WLR 496 |
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COURT OF APPEAL.
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B e f o r e :
LORD JUSTICE MORRIS
and
LORD JUSTICE PARKER
____________________
MILDRED ![]() | |
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- ![]() ![]() |
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CHARLES HENRY ![]() |
____________________
Room 392 Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London W.C.2).
appeared for the Appellant (Defendant).
MR. H. A. SKINNER, instructed by Messrs. Andrew Race, Hill & Mason (Lincoln),
appeared for the Respondent (plaintiff).
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
LORD JUSTICE DENNING: We need not trouble you, Mr. Skinner.
"Mildred, I am prepared to let you have Carol and pay you up to £1 per week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you. She is well and happy and looking much stronger than ever before. If you decide what to do let me know as soon as possible".
The mother now brings this action, claiming that the father should pay her £l per week, even though she herself has married. The only point taken before us in answer to the claim is that it is said that there was no consideration for the premise by the father to pay £1 a week: because the mother, when she looked after the child, was only doing that which she was legally bound to do, and that is no consideration in law. In support of this proposition, reliance was placed on a statement thrown out by Baron Parke in the course of argument in Crowhurst v.
Laverack (reported in 8 Exchequer, page 208) at page 213.
I approach the case therefore on the footing that the mother, in looking after the child, is only doing what she is legally bound to do. Even so, I think that there was sufficient consideration to support the promise. I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given. Take this very
case. It is as much a benefit for the father to have the child looked after by the mother as by a neighbour. If he gets the benefit for which he stipulated,, he ought to honour his promise; and he ought not to avoid it by saying that the mother was herself under a duty to maintain the child.
I regard the father's promise in this case as what Is sometimes called a unilateral contract, a promise in return for an act, a promise by the father to pay £1 a week in return for the mother's looking after the child. Once the mother embarked on the task of looking after the child, there was a binding contract. So long as she looked after the child, she would be entitled to £1 a week. The case seems to me to be within the decision of Hicks & Gregory (reported in 8 Common Bench Reports at page 379 (1849) 8 CB 378 ) on which the judge relied. I would dismiss the appeal.
LORD JUSTICE PARKER: I have come to the same conclusion. I think that the letter of the 27th July, 1954, clearly expresses good consideration for the bargain, and for myself I am content to adopt the very careful judgment of the learned county court judge.
(Appeal dismissed with costs).