Horton v Horton (No 2)
Hutton v Hutton
Court of Appeal
Citations:  1 QB 215;  3 WLR 914;  3 All ER 649; (1961) 40 ATC 239;  TR 277; (1960) 104 SJ 955;  CLY 2728.
The parties were husband and wife. They made a separation agreement by deed. The deed stated that the husband agreed to pay the wife £30 (minus tax) a month. The reference to tax was accidental. The husband paid the full £30 without any deduction for tax for several months.
The wife then consulted a solicitor, who told her that there was an error in the deed. He noted that if the husband noticed it he might start paying her less money, and advised her that she could apply to the court for rectification of the deed.
Instead, the wife had the solicitor draw up a draft supplemental agreement on the back of the deed. The supplemental agreement bound the husband to pay £30 without any deduction for tax. It also stated that the original deed should be interpreted as if it always contained the modification. Both parties signed this supplemental agreement, but it was not under seal (and so did not itself constitute a deed).
The husband continued to pay the full £30. However, after the government made a claim against him for back-taxes on his payments, he stopped paying entirely. The wife sued him for breach of the deed, or in the alternative, for breach of contract under the supplemental agreement. The husband responded that the supplemental agreement was not a binding contract because the wife had not provided consideration for it.
- Had the wife provided consideration for the supplemental agreement?
The Court held in favour of the wife. The original deed did not reflect the parties’ original intentions. The wife was therefore entitled to apply to the court have it rectified. Her willingness to forego suing for rectification was good consideration for the supplemental agreement.
This Case is Authority For…
A promise not to sue or rely on a legal right is good consideration.