1956-03-07 — Page 10

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$20 Nominal Damages For Gloria Three Candidates Were First To Vote

Franklin In Breach Of Promise

Claim: Judgment For Colonel

Judgment of $20 nominal damages with costs was awarded by judge W. T. Charles at the Kowloon District Court this morning to Miss Gloria Franklin against Cpl. David McComish, of Command Workshop, REME, for breach of promise.

Judge Charles dismissed another action brought by Miss Franklin against Lt-Col. Leslie Norman Morris, McComish's

A repudiation of a contract venture to agree, is probably

re-

is not in itself à breach of con-unique in the history of actions tract however: it only becomes of this kind. That

breach of contract if the other engagement of the parties neces party unequivocally elects to sarily means,. I think, that the accept

it as such by terminat- alleged grievances of the plain- ing the contract, an acceptance tiff have become unreal and that which gives to the accoptor a right

the plaintiff's damages should 10 damages for total therefore be nominal. I there- breach. Unless, and until such fore is the

plaintiff's damages an election is made, the re-against Corporal McComish at entitled to $20. That sur, I emphasise is by way of nominal damages-it is not by way of contemptuous damages,

Commanding Officer, for allegedly procuring or inducing pudiating party is McComish to refuse to carry out the promise of marriage. Judge Charles said he was satisfied that Col. Morris's acts were legally justified.

Miss Franklin was not prestní That if that were tie ense he In Court when judgment www.should not marry. that he fell delivered. Her parents, Mr and, that if he we lo marry the Mrs R. G. Franklin, were sitting plain tu front of the

14:

For breaeft vt promise, or 1 for a Aliation Order. This cannot be lodged until alter the shild is bazen.

The marriage would (10) Tu marry now.

In this en McComlah murt accent

retract his repudiation and then the contract continues in force without the other party having any right to damages for total

brench.

Action Against Col

1

1

Those rules, which are founded

turn now to the action Lieutenant Colonel on the principle that one party against cannot without the consent of Morris. The result of the au- the other

terminate

thorities, the latest of which is party centract, apply whether the re-

D.C. Thompson & Co., Ltd. v. pudiation is made verbally be Denkin 1952, Ch. 040. is, I fore or at the due date tor per-

think.

a plaintiff establishes that a notformance, or by netual failure to that a defendant has committed

perform the contract at the due

the fort of wrongfully procuring date, whether or not performance a breach of contract If he by that date is of the essence of establishes, but not otherwise. the contract (Hals. 3rd Ed. Vol. 8 p. 203-4, 205).

1 wife would have to Jive with her family, as he could support theņi, öz

This He can try to ablatis pre-

Dock as Judge degenerate a mutual halike one of two alternatives; Charles read his 17-page Judg. and a

of mutual 1 ment.

accordingly st celmmation, that would Be unfair for marry the plaintiff who WJA

ature RIF for them and an entitled really only tnfatuated with himassage for his wife. The outcome and that be

Was prepar4 K accept his obligation to the child. If there were one,

McCornish and Col. Morris were both represented by Mr Lastic Wright, instructed by Mr J. Sinck of Messrs Hastings.

Ini

The Judgment

For Baby's Sake

he

According to McComish had met the plaintiff a few days before his interview with her

Judgment. Judge Charles said,

In the first of these actiurus the plaintiff, Miss Gloria Frekin, suing by her father as next friend, clains damages rotmother and told her that he was exceeding $5,000

agatust 1Jeutenant-Colonel Morris for going to marry her and that allegedly procuring breaches of the platnu received that in

formation without comment,

of such efforts can be foreseen. (e) Nid to marry until about Dec. 55, In this case he must assess whether his bounty of 200, plus his savings ua result of going voluntarily an to restricted pay, will be sufficient to enable than to bridge the Kau ut he in 21 years of becomea entitled to full allowancer. (d) To marry in the UK.

and

In this case, the Franklins would have to apply through Naval chan nels fur an anticipated passage for their daughter We, in turn, could probably arrange for premature JUE for Cul McComish. They could then marry and live in the UK

The Order McCrnish wos unable to re-

contracts between her at Cor. The plaintif deposed that she poral McCunish to marry. 10 did not remember seeing the second of these actions the McCornish on the 6th May ond sume plcnilfi, suing in the like that the first she know

thint he call the order in which the manner, claims damages not did not intend to marry her was alternatives were put to him, exceeding $5,000 against Car when her mother told her so poral

McComish for alleged after the interview with him. breaches of contracts to my By consent both netlows have been heard together and I shel, therefore, deal with them in th one judgment.

The following in the sequence of relevant events. The plaintiff and Corporni MeComish, who at the time were aged 18 and 10

mul

I

yourg respectively. December 1954 on a transport which was bringing service per- satinel to this Colony. After their arrival in the Colony the young couple continued fu see each other and went out together, on a result of which the plaintiff, al lenst, became very attached Corporal McComish and. according to her, they agreed in the latter part of February 1955, to marry each other.

ཐཱནྟི ། »

but according to Muje Frankim they were put in the rder of waited for the plaintiff on the

(b) (1) (10), (c), (d) and (a), Be that as it may, McCornish

and that on (d) being read to evening of the 10th or 11th May McComish he said that he 'did and met her as she come out not wish to

marry, and that fron shorthand class, He he was then

fold that If he then told her that he was pre- were making his decision only pared to marry her for the sake on hearing the letter he was of the baby, and

and the plaintiff being havtlly

he should agreed to that, stating that she think over the matter over the thought that his attitude would week-end and that clavee (a) change when

the child WAS

was then read to him.

Returning barn

Thereafter the young couple,

the 4th June, Mrs Franklin together with the pluintima formed mother feed the problem of the would approaching marriage,

not the Officer an the following Mon-

day. She did

Dnes,

Informed Mother

Corporal McComish dented in evidence that any express agree-of his ment to that effect was made between them but he admitted that they had discussed marriage on several occasions. thnt he considered that an "understand -

MTS

-

to the evening of

McComish thot

his

Standen, at whose flat the

In this case, Corporal Mc- Comish sought out the plaintiff on the 10th or 11th May before the Inter had elected to accept his repudiations as a breach of the contract between them, and | they then renewed their mutual promise to

The results marry

were that Corporal McComish's repudiations were retracted by bis, and waived by the plain- liff, so that the repudiations did not become a breach of the original contract between them: that the contract was not ter minuted but was continued in force and the plaintiff did not acquire a right to damages for 1ts breach; and that a new con- truct to marry was not brought

into existence.

of June

Liability

that

Whatever

used

the

was

were

the following:---

(a) The existence of a contract between the plaint and a third party did a bremen of that contract by the letter. (b) An act or conduct, which may be by the use of written or spoken words, by the defendant whereby the third party was caused to commit the breach of contract. (s) An intention on the part of the defendant when doing the alive act to bri wbout the breach of contract. (d) Absence of logat fuüfention for the defendant doing, the castsative agt, which rendered that result lawful.

(e) The likelihood of the plaintif

having miltered damage from the breach of contract,

The Claim

The plaintiff's claim against Morris follows Colonel

that against Corporal McComish In that she has alleged two breaches of contract by the Intter, namely, about the and one or about May 0 and

crti one

or about Jane 0, und that both breaches of

one on от

Three candidates were the first to vote in the Hongkong and Kowloon poll. ing booths in today's Urban Council election. They are shown aboye; Mr Victor Mamak and Mr Jack. Grenham voted at the Hongkong station in Wardley Street, and Dr Raymond Lee was the first to arrive at the Kowloon polling station

--Staff Photographer.

Early Voting Indicates

Record Election Poll

Twice as many people cast votes at the Hongkong polling station in Wardley Strect during the first two and a half hours of today's Urban Council elections than during the first three and a half hours at last year's election.

duc

he had no choice but to post- he was not going to marry the McComish to state his inton-brought about that repudiation officer at the. Hongkong | his volo at 0.42

pone the mareloge until he came of age as $170 would be

plaintif

words

by Corporal

that they

three

10.05.

J.

X.III.

મ

AL

several

extra

As to the scent alleged on breach

Contruct it conceded righly, I think--by Mr Wright for Corporal Mc- contract were wrongfully brought Comish that if, at the interview about by the Colonel. The claim

By 10,30, more than 600 votes had been registered compared with 330 up to 11.30 a.m., a year ago. latter had in respect of the first alleged the gain repuslated the contract to breach of contract falls at

In Kowloon, polling. was not so brisk, and by 10 o'clock 62 votes was outset because, for reasons al- marry,

repudiation she accepted

had been recorded. by the plaintiff as a ready stated, there was only one Commanding tal breach by the Issue of the

contract in existence between Corporal McComish and the Indications least of which were the Gnancial the 8th June-there belag pre- fer damages therefore depends

were, Monday Writ on July 8.

however, a.m., one hour after polling had insufficient to cope with the plaintiff during the period from tha; by the time the vollng sta-commenced, was 200. From then steady arrival of voters. Work- Corporal McComish's liability May 3 until June 15, and ons closed at 8 o'clock tonight, onwards voters arrived in a men were immediately sent for her mother. sent the plaintif,

on what transpired at that in- only one breach of that con- a substantial poil would have steady column. Within the next and erected

tract occurred, namely as a re- been terview, and it is necessary to dated the 23rd interview of the 5th May had

recorded certainly the 15 minutes, By letter

70 voters added booths. largest so far in an Urban Coun- their votes, and at 9.30 consider the evidence ne to that Bult of Corporal McComish's re- May McCornish inlonned the taken place, Colonel Morris, and

pudiation of the contract on cil election. In some detail, plaintiff's mother of the result Corporal

altogether about 340 voters had

IN KOWLOON / McConish AL this

June The plaintiff's case

voted. enquiries und stated interview, the evidence as to

Deft Liablable

Before the election was against Colonel Morris

#ris therefore

the Kowloon polling that, while he was anxious to which

The Hon. Is conflicting in

T. L. Bowring, part,

stands

or falls according marry the plaintiff, he felt that McComish allegedly stated that actually

to to start, Mr J. Hurlbeit, pre- Director of Public Works, cast station at Yaumati Government whether or not he intentionally

G.III. and School, the first 16 case a vote polling

station, invited several Roman Catholic priest voted at this morning was Dr Raymond without legal Justification.

candidates to inspect the

H. S. Lee, On the 18th

a candidate of the June the plain. tion, I am satisfled

Since the evidence as to the ballot boxes. completely inadequate for him tiff

Messi's Philip

Ho Word reasonably

Hongkong form Club. capable of advice which Colonel Morris Au, J. C. M. Grenham, Chen by her solicitor required Wa

At 10 am, two hours after to support a wife and baby.

came to the poll half an hour McComish 10 reply

were understood within mening, and

god gave to Corporal McComish on Shui-sang and by the plaintiff and her mother the 6th and 6th-May,

Woo Pak-foo, polling had started, 500 had before the election started at On the

following evening three days that he intended to

to mean, that Corporal McComish tradicted, I am only justifled in

uncon- four candidates, inspreted and cast their votes and the num- Mrs Franklin

8 a.m. forwarded that continue with the marriage, fall-

ensured that the boxes were ber of voters increased to about letter, or a copy, to Lieutenant- | Ing

By 8.30 am. only nino people which

to marry the rejecting it I accept legal proceedings did not intend

the empty..

600 twenty minutes later. Of had cast their votes. General Sudgen, then Comman- would be instituted against hun plaintiff under any circums evidence of Mrs Franklin as to

this figure,

a little less than one- According to McComish,

Candidates greeted, and shook What is In March 1965 sexual Inter-der British Forces, Hongkong.

more

am the interview of the 9th May.

On the stroke of 8 o'clock, Mr third were non-Chinese, voters, hands with voters at the school COUFRO nerurred between the under cover of a letter in which there is no evidence to the con- satisfied that Corporal MeComish

Hurlbett announced that polling either at the time or immediate-

There was a small queue of courtyard. Helpers of the candi parties on one the only oc- she expressed similar views to trary, Be rang the solicitor's

was open. Mr Philip Au, the voters forming inside the Hong-dates distributed leaflets and casion and shortly afterwards those expressed

ly after knew the by McComish office three

times after receipt which had been placed upon the later interview I have not th Reform Club, Mr Grenham, Bum, and it was apparent that trance of the courtyard..

meaning

In weighing the evidence as to retiring Councillor representing kong polling station after 10pamphlets to voters at the en- the plaintiff suspected that she but in langunge which, to put of this letter and on cach OC- was pregnant—a suspicion which it milelly.

casion

informed that them by the plaintiff and he did bed the advantage of having Me Victor Mamak, Mr Broke the eight voting booths were At 10 am, 02 had voted was subsequently confirmed. The restraint.

the solicitor was out, but he nothing prior to the issue of the formed the Impression that A. Bernacchi and Mr Chan plaintiff's mother found out To that letter, a reply, dated

admitted that he did not write writ which corrected any mis- either witness has been lying. Shul-sang, were the first to about the plaintiff's suspicion 2nd June 1955 Wos

to him. On the ath July the understanding which may have so far as I have been able to cast their votes. and on the evening of the 3rd from General Sugden, stating Comish

wril in the action against Mc- existed as to his

judge from the demeanour of intentions. May 1933 Corporal McComish

And the was taken out and am therefore constrained to and

witnesses there

of this interview, attended at the flat of some

served upon him.

that Corporal McComish had, on and of the interview on the 14th neighbours of

SURE compel McComish to the plaintiff's

to marry the

or about the 0th May repudiated May, cach has endeavoured parents, and he was interviewed labuff but arrangements had

his contract and, as that repudia- truthfully to narrate the facta as by those neighbours in the pre- been made for him

tlon was accepted by the plain he or she believed them to have uft, he la llable in damages for existed. breach of the contract.

But, after taking into account The

question then arices those factors which cause

may cause a distorted registra tion of facts in the human mind,

ing" existed between them and that he had asked the plaintiff to noprouch her parents for their consent for the plaintiff and him to marry.

Interview In Flat

from the

lacking WLS

was no

in

received

power to

to be in-

he was

and

tances.

The Framework Such is the framework of the facts within which the plaintiff bares her claims.

sence of the plaintiff's parents. to men of the alternatives open The outcome of that interview to him, that the General had no

that Corporal McComish, power to grant the local over- The particulars of her claim, after consulting with the plain-scas tllowance until McComish as set out in the writ, allege On what baris should I access

was

Version Accepted

от

lift, agreed with her and her ottained the age of twenty-one that on or about the 9th May Ƒ damegering that question, it particularly when those facis had entered in off that the form of this action is influenced while under the

ris, the defentiont in the other 3 Alternatives

action.

of

after

Latest Polling

At 12.30 p.m., the total number of voles cast in Hongkong was 1,547, and in Kowloon, 238.

parents that the would marry years, and that "when McComish McComish refused to carry out In her, and that he would apply on decides what he intends to do, a contract to marry the plaintiff. is important to bear in mind an the following day for permission my staff will do their best to Into which he to do so from his commanding assist him in any way open to about the first week of February not to provide compensation to emotions, and sfice taking into

offeer, Lieutenant-Colonel Mor-them."

1955. rnd 熱 reliance upon either the plaintiff's parents or account the temperameats of the which the plaintiff allowed Me- the plaintiff's child but to the the witness box, I have reached general public to cast

witnesses as they appeared from

The first member of the Comish to reduce her, and that plaintiff herself. It is to be noted that the On 150 4th June, Mrs

□ vole DEE the 11th May the

Because of one factor which the conclusion that Colonel Mor-slipped his ballot paper in the pariler informed McComish entered into agreement to marry which was Franklin

a second contract | I think is the determining ris

ris' version of the two interviews, box at 8:02 a.m. and the first entered into on his occasion did of the receipt of this letter and to marry and that McComish factor, I do

propose to

of the 9th and 14th May China wemon voted at 8.14 no; p

as being which the morrlage was to take that he had seen Major Frank tract on, or about the 0th June tors

o'clock. Tho, frat European which I have considered

The woman cast her vote some six place, nor, it may be added, was in and had had the three al-1965.

.not

be

provide for any time within its contents, McComish replied | refused to carry out that con-mention the various other

facially

་

and weighed for and against sult is that the plaintiff's case minutes later. any such time discussed subse-ternatives rend to him. Appar The plaintiff's case against each of the parties on

that

against Colonel Morris depends quently between the partics, ently he stated what they were McComish is thus based on the question.

on whether or not the three ele-

SLOW START The plain Iff did not see or hear to Mrs Franklin as she asked breach of two distinct contracts I trust that I shall be credited menta have been established in from Corporal McComish for a him which he had accepted and to marry. It is to be noted that with having taken into account relation to one or more of the Polling was slow at the begin- week and on the 9th May her he replied either that he had a defence of infancy which was all the factors, which, as raised following acts by him:-

ning. For the first 15 minutes 30 mother went to his unit where accepted nene of them or he specially pleaded was abandoned by the evidence in this case,

(a) The advising of Corporal Voters had cast their votes and she saw both Colonel Morris and had

having regard to section 13 of the law pormits to be taken

McComish that he did not at 8.30 70 had voted. The Hon. Corporul McComish. The latter made no decision.

have to marry the plaintif mid Kwok Chon arrived about this The three alternatives were the Summary Jurisdictioni Or-Into account.

that he should not do so if he time and cast, his vote at 8.35 the mother ak this Interview Contained in

a letter from the dirante (Cap. 5) and nurtheri-

The Factor

Had no love or affection form. The approximate number of that he had decided, on the ad Colonel in charge of Administies thereon.

Colonel Morris

to iration, DOL

Land

(b) The concurring with Corporal persons Forces, Hongkong,

who had voted by 9 Untenable Claim

McComish, that the latter was marry the plain, and that he which had been passed down

nos i Bnancial position to had written to the mother to the chain of. command toThe claim for damages be

marry he were dependant entirely upon his army Day and allowance without the local overseas allowança,

Fold

vice

at

I cannot help but think thai the least said about these other factors the better it will be in that effect. A letter from Cor- Colonci Morris, and had been cause of 'Corporal McComish's the interests of the young poral McComish, addressed both read, cut to McComish on the refusals on the 7th and 8th May couple who have become in- to Mr and Mrs Franklin and 4th June by Majer Franklin in to perform his contract is, onvolved in this litigation. The dated the 7th May, was in fact the absence of Colonel Morris, the facts, untenable. It is cleat factor to which I have referred awaiting. Mrs Franklin on her The relevant paragraph was

that nt least arrival home.

marry at Da un during the interval between the that In

letter, McComishi axercised on MeComien Howaver specified time, that is, within a first day of heating of this coin, staled in substance, that he had his should be instructed to advise reasonable time had come to in December last, and the re

bum of the alternatives open to him. existence between the plaintiff sumption of hearing last month discursed his intended marriage There are fully with his commnuniling | Vira) Not to marry the girl at all, ond Corporal McComish, laurf; the plaintiff and Corporal officer, that he did not love the in this case he should be told that that the refusals referred to McComish have become re plaintiff and that his

the Tranklins may be in position were a repudiation by him of engaged festure which Mr Como launch a case in court einst manding meer had advised him

the contract

Wright sald, and with which I

"No persinston to marry should be contract; to the 3rd May a as the determining one that

her.

(a) The reading of the effernatives to Corpora MeComish on the Bih Juno In a different order to that eat out in the memoran- dum containing them, the

• alternative not to marry being rand barily instead of family,

*Difficult Question

often a dimcult one. The last of The question of causation a the three acts mentioned can, (Contd on-Page, S. Col. 6)

'On The Record'

Tomorrow

'John Dell's “On the Record": notes are held over until tomorrow owing to pressure of space.

SIDE

GLANCES

By Galbraith

1-21

"I've heard most of those jokes he's telling! Why don't you watch these two-they're really originally

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