Guggenheim v Rosenbaum (2)

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 26 June 1961
• Citation: 1961 (4) SA 21 (W)
• Court: Witwatersrand Local Division

Trollip, J.:

This is an action for damages for breach of promise. The D plaintiff alleges that on or about the 16th October, 1959, in New York, the parties agreed verbally to marry each other and that (by amendment granted at the opening of the trial) the agreement was confirmed or alternatively was concluded by the parties in Cape Town on or about the 12th February, 1960; and that in or about the first part of March, 1960, E and in Johannesburg, the defendant repudiated that agreement by refusing to marry the plaintiff. The plaintiff claimed originally £5,600 as damages which were increased by amendment to £7,185 at the commencement of the trial.

The first and main defence to the claim is a denial of the agreement and I turn immediately to the consideration of that, the major issue in this case.

F I start by giving a brief description of the main actors in this unhappy drama which has culminated in such bitter and protracted litigation in this Court.

The plaintiff was born in Berlin on the 25th August, 1917. Her father G died in 1933, her sister in 1934, and her mother was killed during the last war. She was, therefore, left with no relatives except some cousins whose whereabouts she was not aware of. She appears to have received a good education in Germany and was sent to Switzerland to 'university' to learn such subjects as art, dressmaking, etc. This university was probably some kind of finishing school. In 1938, while she was in H Switzerland, she met one Guggenheim. In 1939, at the age of 22 years, she emigrated to the United States and settled in New York. Guggenheim visited the U.S.A. in 1939, and eventually in 1940, he too decided to settle in New York where he met the plaintiff again. They were married in New York in February, 1942, and thereafter they continued to reside in New York as their permanent home. This marriage was obviously not a success because on the 14th September, 1943, she divorced him at Reno in the State of Nevada on the ground (according to the order of the Court) of 'extreme cruelty of a mental

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nature' by him towards her. She received no alimony from him.

Thereafter, she continued to live in New York. In the meantime she had gone to night school in New York to improve her English, her original language being German, and she attained a fair fluency therein. She also A apparently learnt book-keeping and secretarial work, and from time to time she took work of various kinds in New York.

In October, 1959, she was living on her own in a modest but, judging by the photographs handed in during the trial, a neat and well-kept apartment at Forest Hills, New York, which was furnished with her own furniture, ornaments and pictures, most of which she had received from B her parents in consequence of which they had much sentimental value for her as being, as she described it, a reminder of good times in the past. By October, 1959, she had been in New York for some 20 years. It was undoubtedly her permanent home. She had just taken on a new job as a model and book-keeper in an establishment selling furs at a salary of C $85 per week. On this salary she was able to keep and run a fairly large motor car (a Chevrolet convertible) and generally maintain herself comfortably.

She had no relatives in New York but she had friends, of whom the Kingsleys, also living in New York, were apparently the closest.

By now too, she was 43 years old but she obviously carried her age well D and must have appeared much younger and more personable than her true age would otherwise suggest. I am disposed to believe her when she says that she had received a few offers of marriage since her divorce in 1943 and that she refused them. Her refusal was not because she was against re-marrying as a result of her previous experience; on the contrary, she E was, according to her evidence, ready to re-marry if she met the right person; and probably, with time slipping beneath her feet, she was, at 43 years of age, becoming anxious about whether she would ever re-marry.

The defendant is a stockbroker carrying on business in Johannesburg. He too is of German extraction. His parents are still alive and live in F Chicago but his permanent home is in Johannesburg. His financial position was not canvassed in evidence but it was manifest from all the evidence that he is a man of some affluence. In October, 1959, he was about 45 years old. So far marriage had eluded him. His parents, especially his aged mother, and his relatives were concerned at his not G having married. They were urging him to do something about it; to 'give himself a chance' to find the right marriage partner. He had himself become tired of the loneliness of bachelorhood and this loneliness had recently become accentuated by an illness caused by appendicitis in 1957. He was clearly ready to marry.

The defendant had first met the plaintiff on a visit to New York in H 1954. They had then spent an evening together and she had also driven him out to see his relations, Mr. and Mrs. Steeg, at Connecticut. She had then met the Steegs. I do not think that there can be any doubt that on the occasion of this visit by the defendant to New York he became impressed and attracted by the plaintiff. As the defendant himself stated in his letter of the 26th November, 1959 (exh. 'M'), they both had more or less the same background and the same outlook on life. Consequently, in October, 1959, when he was again in New

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York on a short visit, he took the initiative in telephoning her shortly after his arrival.

The date of his arrival in New York must have been just prior to A Saturday, the 10th October, 1959, because he says that he was in New York for some 10 to 12 days and it can be inferred from his letter of the 26th October, 1959 (exh. 'C') that he departed from New York about the 23rd October, 1959. This confirms the plaintiff's evidence that he telephoned her on the Saturday before the Jewish Day of Atonement. That was Monday the 12th October, 1959, so the Saturday must have been the 10th October, 1959.

B The incidents that occurred during the defendant's short visit to New York constitute the origin and basis of this litigation. There is a dire conflict between their respective versions of almost every significant incident that occurred during that visit, and that conflict will have to be decided by reference to their credibility as witnesses C and on the balance of probabilities in the light of what happened not only during but after that critical period.

On the main incidents that occurred during the defendant's visit, the plaintiff's version in broad outline is that the defendant telephoned her on Saturday, the 10th October, 1959, in consequence of which they D met and dined together, not at the defendant's hotel which was the Barbizon Plaza, but at the Plaza Hotel, on Monday evening, October the 12th, 1959. They met every day thereafter. On the Wednesday, the 14th October, 1959, he proposed marriage to her. In doing so he explained that he felt lonely and he needed someone to look after him; this loneliness E and need had become more apparent as a result of his recent illness; that he had had a wide experience of women, including some unfortunate affairs, so he was in a good position to adjudge the right person for him to marry; and he had decided that it was she. He said that they had the same background and had much in common, including the same origin, and they spoke the same mother tongue.

F The plaintiff says that she hesitated and explained that getting married was a big step and that before accepting she wanted to get to know him better but that she would consider the proposal. The proposal was repeated when they met again.

The defendant suggested that they should spend the night together to G ascertain whether they were sexually compatible. She agreed. She says she was attracted by him physically and wanted to get to know him better. They spent Friday night, the 16th October, 1959, together and were intimate. And it was on that Friday night that she accepted his proposal. The following day he went to the American Express Company, presumably to ascertain what travel arrangements could be made for her H to come to South Africa, but this is not clear from the evidence.

He first wanted to get married in New York but that fell away because he was not sure what the effect of the New York law would be on the proprietary rights of the marriage. The question was also mooted whether or not she should accompany him when he left New York for the United Kingdom and the Continent, where he had business to do, and their getting married when they arrived back in South Africa; but that did not suit him either for various reasons. Eventually

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it was agreed that she should follow him to South Africa after he had arrived back in this country, where they would then get married; and that he would make provision in South Africa for her to be provided with the necessary ticket for her sea passage. The idea was that she should A follow him as soon as such arrangements could be made and that if possible she should arrive in South Africa before the end of the year so that they could spend the advent of the New Year together. According to her evidence the defendant felt and said that if she did follow him to South Africa that would be proof of her love for him.

B They saw much of one another in New York. They were happy together and were intimate on several occasions. Once they went to see the Steegs. She says that she was referred to by the defendant in the presence of the Steegs as the girl he was going to marry.

He spent the last night of his visit in New York in her apartment C because it was conveniently close to the airport. They were intimate again. The next morning she drove him to the airport. His plane, it appears, was delayed for about four hours...