SUPREME COURT.

Globe, Volume I, Issue 68, 19 August 1874, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS.

Tuesday. August 18. (Before His Honor Mr Justice Gresson.) His Honor sat in the Court Chambers at 11 a.m. PASSMORE V. BANK OF NEW SOUTH WALES. His Honor delivered judgment in this case as follows : This was a demurrer to a declaration for specific relief. The declaration states that for some time prior to the 6th March, 1874, the plaintiff by his agent, Henry Robert Russell, was negociating with the defendants through their agent, William Smoult Robison, manager of the Christchurch branch of the Bank of New South Wales, for the sale by the defendants to the plaintiff, and the purchase by the plaintiff from the defendant, of two stations, known as Arowhenua and Mount Pleasant, in the Province of Canterbury; comprising certain freehold land and other estates, and interests in land and certain sheep, stock, wool, and station plant ; and that on or about the 6th March aforesaid, by an agreement in writing, consisting of two telegrams, signed respectively by the said W. S, Robison and H. R. Russell as such agent as aforesaid, „the defendants agreed to Sell, and the plaintiff agreed to purchase, the said stations on the terms contained in the said telegrams which are therein set forth, the former of which is in the following terms :—“ Christchurch to Waipukurau—sth March, 1878. Address; H. R. Russell, Waipukurau. Are you willing to purchase both stations, absolute price being what they may stand in our books on delivery—Passmore, in fact, taking our position in regard thereto in everything. If so pay deposit £2OOO as agreed. Any sale made by broker would then be on Passmore’s behalf ; or you might withdraw station from sale by paying broker’s commission. W. S. Robison.” To this the answering telegram, so far as is material, was as follows “ Waipukurau, 6th March, 1874. To W. S. Robison, banker, Christchurch. I agree to purchase Arowhenua and Mount Pleasant stations, price being what they stand in your books on delivery, taking Bank's position with regard thereto in everything. 1 shall remit you first mad my draft on Mr Passmore for £2OOO at 60 days on Loudon, and shall forward therewith Passmore’s authority to draw. Understood Mr Hill was satisfied with this arrangement. Refer you to my bankers, Bank of New Zealand, Napier, if necessary. This £2OOO to be a deposit, and Bank to hold property meantime on account of Passmore and myself till final settlement of price. Please withdraw Arowhenua from sale immediately. * * * * H. R. Russell.” The question for determination is whether, by the said telegrams, a contract was established which the Court will specifically enforce. No point was made by counsel for the defendants, nor, as it would seem can now be made, upon the ground that negotiations were carried on by telegrams. (Godwin v Francis, 5 Law Rep. C.P., p. 295.) The case may therefore be considered as if the correspondence had been carried on by letter. The principles by which Courts of Equity are governed in decreeing specific performance of contracts constituted by correspondence between the parties, either directly or through their agents, are so clearly settled by authority, that the only difficulty is in applying the law to the facts of each case as it arises. In order to make a contract enforceable in equity, founded on the proposal of one party and the acceptance of the other, the acceptance or assent must be unequivocal and coextensive with the terms of the proposal, not qualifying them, nor adding to them any new matter. If such be the case the contract will he enforced, although a desire on the part of one of the parties may be gathered from the correspondence that the agreement should be put into more formal terms. [Kennedy v Lee, 8 Mer.. 441 ; Chinnock v Marchioness of Ely, 4 DcG. J. and S., 638 ; Skinner v McDoual, 2 De G. and S,, 265 ; Honey man v Marryat, 21 Beav., 14 ; Crossley v Maycock, 43 L. J. Ch., 379.] In this case I am opinion that the plaintiff’s agent, Mr Russell, in his telegram of 6th March, 1874, while agreeing to the purchase of the Arowhenua and Mount Pleasant stations at the price at which they were offered, inserts terms, as to the payment of the deposit, which are not included in Mr Robison’s offer of the sth of March, 1874. That offer was in these terras If so, pay deposit £2OOO as agreed.” There is nothing to show that these words do not bear their ordinary meaning, that £2OOO cash should be paid by way of deposit. Now to this part of the proposal the answer given by Mr Russell is—“ I shall remit you first mail my draft on Mr Passmore for £2OOO at 60 days on London, and shall forward therewith Passmore’s authority to draw. Refer you to my bankers, Bank of New Zealand, Napier, if necessary. This £2OOO to be a deposit, and Bank to hold property meantime on account of Passmore and myself till final settlement of price.” It is plain that this is a departure from the terms of the offer, and if there could bo any doubt upon the subject it would be cleared up by what Mr Russell adds in his telegram “ Understood Mr Hill was satisfied with this

arrangement.” There is nothing to show who Mr Hill was ; but even if Mr Hill’s authority to make contracts for the Bank had been stated, it would not have removed the objection arising from the importation of a new terra into the answering telegram. 1 think it must he taken therefore that Mr Russell’s acceptance of the offer contained in Mr JRobison’s telegram was not unconditional ; that there was not the mutual assent of both parties to the same terms necessary to make a contract; and, consequently, there was no contract, binding upon the parties. The demurrer must therefore be allowed. Demurrer allowed vvth costs. Leave to amend. UB CHARLES BIGGS. Mr A. Thompson applied for an order of adjudication and fixing of first meeting of creditors. His Honor made the order, fixing Wednesday, 26th August, at 11. RE JONATHAN KINGDON. Mr Garrick, for Mr Wynn Williams, applied for an order declaring that certain marcs mentioned in the affidavit of Richard Walton be sold for the benefit of the creditors, His Honor made an order as prayed. RE ARTHUR HUNTHR. Mr Slater, for Mr Nalder, applied for an order fixing date of final examination. His Honor made the order, fixing Thursday, 10th September, for the last examination of the bankrupt, RE JOHN HENRY, A LUNATIC PATIENT. Mr Joynt applied for an order directing that the personal estate of the said John Henry be sold, and the proceeds applied in payment of debts. His Honor made the order. MACASSEY V. WARD AND ANOTHER. This case, in which Mr Garrick applied for an order directing the Registrar to revise his taxation of the plaintiff’s disbursements herein, was postponed for a week. HENTY AND OTHERS V. HOLT. Mr Garrick applied for an order granting leave to plead and demur at the same time to plaintiff f s declaration, pursuant to rule 1. Reg. Gen. 1873. Order made, subject to production of the declaration.