RECTIFICATION OF AGREEMENT

Press, Volume LXXXIV, Issue 25606, 22 September 1948, Page 3

RECTIFICATION OF AGREEMENT

APPLICATION TO SUPREME COURT

Judgment for the defendant was given by Mr Justice Fleming in the Supreme Co.urt yesterday on a claim by John Williaip Leonard Hathaway, a dispatch clerk, for rectification of an agreement with Edna Mavis Hathaway, a rubber factory worker. Mr K. A. Gough appeared for the plaintiff and Mr G. C. Sandston for the defendant. . The statement of claim said that, before December 16, 1943, the plaintiff ana the defendant, who were then married, agreed to separate and the plaintiff agreed to pay the defendant £1 a week during the continuance of the marriage; on December 17, 1943, a written agreement was entered into whereby the plaintiff agreed to pay the defendant £1 a week during her life until her remarriage; and that if the marriage was dissolved the maintenance might be varied as the Court directed. The statement added that the marriage was dissolved on June 19, 1947, and asked that the written agreement be rectified by deleting the words "during her life until her marriage.” and substituting the words "during the continuance of the marriage.” Mr Gough said that Hathaway’s position was that he agreed to pay his wife £1 a week, but the period for which the agreement was binding was during the continuance of the marriage only, and not for any further period. After the marriage was dissolved, Hathaway refused to continue the payments as he regarded the agreement as discharged. The written agreement went further than the actual oral one between the parties. The plaintiff said he signed the agreement without reading it. His wife sought the separation. He did not. He took the divorce proceedings. Tjiere were no children of the marriage. He always understood the £1 a week would be paid

until they were divorced. Douglas Warren Russell, a solicitor, said that both parties started petitions for divorce and the wife agreed to withhold her petition if her costs were paid and the maintenance payments continued. Hathaway always made it clear he would not pay maintenance if the marriage was dissolved. The document was engrossed and signed by the wife and witness looked on himself only as an attesting witness. He was told that the terms had already been agreed to by the parties.

Case for Defence Mr Sandston said that the defendant denied that the payments were to be limited to the continuance of the marriage, but said they were to be paid until her remarriage. The plaintiff contended there was a mistake of fact in the written agreement, but the defendant said that, if there was a mistake, it was not mutual. She knew what it contained and it conveyed what she understood to be the terms of the agreement between her husband and* her. The plaintiff signed the agreement in the presence of his solicitor and must be taken to know what was in it. The plaintiff was trying to upset a written agreement by the power of evidence. The crux’ of the defence was that there was no mistake in the agreement. The defendant gave evidence on the lines of counsel’s statement. Evidence on the preparation of the written agreement was given by William Ross Lascelles, a solicitor, and Leslie James Pratt, a law His Honour said the plaintiff had failed to prove that any concluded agreement between him and his wife was made orally before the signed agreement. This signed agreement fairly set out the actual arrangements. The plaintiff had failed in his action. , . Judgment was given for the defendant, with costs against the plaintiff.