SUPREME COURT—IN BANKRUPTCY.

New Zealand Times, Volume XXXIII, Issue 5375, 19 June 1878, Page 3

SUPREME COURT—IN BANKRUPTCY.

1 Tuesday, June 18. (Before his Honor the Chief Justice.) Re W. H. Hatch.—Mr. OHivier applied for a discharge, which was granted. Re E. J. Long.—Mr. Buckley applied for a certificate of the complete execution of a deed of arrangement herein. Application granted.

IN BANCO. ; HANOI V. SUTTON.

The Chief Justice delivered judgment herein as follows ;—* This is a demurrer to a declaration in an action at the suit of one Wi Eangi Eaugi and his wife Eora Nonoi against the defendant, Frederick Button. The declaration states that one-Paora Nonoi was with other natives seized of certain land. known as Awa-o-te-Atua ; that it was agreed between him and the defendant that on condition that the defendant would reserve out- of .the said land 350-acres for the said Paora Nonoi, to be selected by him, he Paora Nonoi would convey his interest in the said land t 6 the defendant; and that the' said Paora Nonoi executed a conveyance of the said land to the defendant. That the said Paora Nonoi died about May Ist, 1873. That prior to-his, death the defendant refused to make the said reserve, _ or to allow Paora Nonoi ' to , select it, and sold and conveyed the land to another person for value, and without notice of the premises. It is also further stated that by order of the Native Lands Court, dated 4th September, 1876, the plaintiff. Bora Nonoi, was appointed to succeed the said Paora Nonoi in his estate of Awa-o-te-Atna. The declaration concludes with a claim to recover from the defendant £7060. To this declaration the defendant demurs on two grounds—l, That the declaration does not state that the alleged contract is in writing. 2. That the order of the Native Lands Court, alleged in the declaration, confers no right of suit on the alleged contract. Mr, Edwards, in arguing in support of the demutter, assumed that the action was an action for money. The Attorney-General, however, on behalf of the plaintiffs, contended that the declaration was not necessarily to be treated as an action, of that class, and that it was open to him, on behalf of the plaintiff, to treat the action either as an action for money or as an action for specific relief; and that if he failed In supporting the declaration as good in an action for money, it could bo supported _ as good in an action for specific relief. Wo think that the action cannot be treated as an action lor “ specific” or “ equitable" relief, but ja an action in which the plaintiff seeks pecuniary compensation for a wrong. In an action for specific ; relief the plaintiff must in his claim specify the relief he seeks; and even though the relief which in a particular case the Court would" finally decree might ho the payment of a sura of iponey, nevertheless the claim iu such a case must be specific, and not general, as in the case-of an action for money; and the decree to be claimed in the declaration would not be simply for the recovery of a specified sum ; but the'plaintiff should specifically claim from the Court a decree declaring his right, and for the ascertainment of the amount to bo paid. In this case, looking at the averments in the declaration and the claim, which is simply for the recovery of a specified sum, wo think that tile action is not for specific relief, but for money, and that the defendant is justified in so treating it. It was also contended by the Attorney-General that even if an action for money, the declaration, if not supportable as for a breach of an express contract, was so as for c.arnages for a fraud, or as for money due ■on an implied contract arising out of the executed consideration. It was contended that even if the. Statute of Frauds prevented the

plaintiffs succeeding on the express contract, nevertheless they could succeed on the ground of an implied contract,.or tho fraduleut conduct,of the defendant.. First, however, ityvas argued that inasmuch as there had been part performance of tbe contract, as the whole of the contract on Paora Nonoi’s side had been performed, therefore tho action could be maintained for damages for breach of the contract. But this is not so. - The recent case of Sanderson v. Graves, 44 L.J., Exch. 211 (following Cocking v. Ward, 15 L.J., C.P., 246), decides that where the contract relates to land, though it be performed oh the part of the plaintiff, ho cannot, unless the contract is in writing, recover from tho defendant in an action for money either tho consideration stipulated for or damages for the breach of the contract. In that case Baron Araphiett: concludes his judgment in the following terras —“ The plaintiffs also contended that the Statute of Frauds did not . apply to executed contracts, although executed on one side ouly, and 'there are,'some old dicta, and even’ decisions, that appear to bear out that view ; and had it been sustained Courts of Law would have certainly, made,a long stride towards.the equitable, doctrines ‘of,’part’performance." I think, however, that in the face of more modern decisions, such as Cockiug v. Ward, the older authorities bn this point must be considered al overruled. No doubt there is authority, for tho position that, where one has paid money or done work under a verbal contract not enforeable because not in writing as required by the Statute of Frauds, he may, according to the circumstances, recover such; money, as money paid or had and received, or recover payment for the work done on a quantum meruit. Seo Pulbrook v. Lawes 45; L.J. C.L. Division, page 181. But in such oases the action is not brought to enforce tho, contract, but is brought on the assumption that such a’ contract does not exist. The verbal agreement may;he given in evidence, for tho Statute of Frauds does not forbid that. This course, however, can only be taken where the facta give rise to a new and implied contract.. See per Bramwell B. in Sanderson v. Graves, supra, and in such a case the cause of action would be thanon-performance of the implied contract. Can it be' said that in the present case the plaintiffs ‘are relying on the non-per-formance bf .au implied contract? We think clearly not. They are, we think, evidently basing their claim on the non-performance of tho express contract. .It is for this reason unnecessary to consider whether the law would imply any contract on the part of the defendant from the facts stated in the declaration. Certainly tbe law would hot imply from the conveyance of the plaintiff’s interest in the land to the defendant a promise by the defendant to pay Paora -Nonoi' tha value of 350 acres of the land to be selected by him. In “Parsons, on Contracts,” vol. 3, p. 34 (note c.l, it is said that if there is a verbal contract for conveyance of land, and the land is, conveyed accordingly, the statute of frauds furnishes no defence to an action for the price; but that is not this case.- It was also contended that tho declaration could be supported as being one for damages for a fraud. But the fraud to bo collected from the averments iii the declaration is not legal but equitable fraud: it is not such fraud as has ever been recognised as founding a claim for damages recoverable in an action at law. There are certain recognised heads of fraud for which a remedy is furnished in an action for damages as fraudulent misrepresentation inducing, a contract. There are other heads of fraud the remedy for which can be ’obtained:only in an action for specific relief. The 'fraud appearing in this declaration is_ of the latter class. For these reasons we think that the declaration is bad as seeking to' obtain damages for the breach of a contract which, by the Statute of Frauds, must be in writing, and not averring that such contract vis in .writing. We also think that the declaration shows no cause of action in the plaintiffs. If the.declaration is for damages for a breach of a contract made with the deceased, his personal representatives would be the only proper, parties to sue ; so also if the action is on an implied contract with’ the deceased, ..If the .action were for damages for a fraud the case is the same. The heir or devisee may maintain an action on a covenant running with the land where the : damage has accrued after the death of the ancestor or testator, bat that is the only exception to tha rule that the personal representa- ’ lives are the proper persons to sue on a contract made with a deceased person. For these reasons wo think that the declaration is bad, and judgment must be for the defendant, with costs. . : ' Leave. to, appeal was given on the usual terms, plaintiff to ■ take ■ the necessary steps withinkmo month.. ”• ■ r- ■ : ’■ REOGER V. BURGESS. ' Mr. Edwards for the appellant; Mr. Travers for the respondent. - ’• v 1 - An appeal from the Eesident Magistrate l at Napier. It appeared that the defendant had, by the'direction of the plaintiff’s wife, entered the plaintiff’s house in' his absence and-taken from. it sundry chattels. The defendant had been summoned for wrongfully , taking and carrying away certain chattels, the property of the defendant, v The magistrate found a verdict for the defendant; but'in the case submitted to the Supreme Court it did not appear olearly what were the real grounds of his decision. ■ wv His Honor in giving - judgment . said;: I assume that . the magistrate’s decision , is this : • That the . acts done by: the plaintiff would have been tortuous if done without the instructions of the wife; that inasmuch as they were done ’under the instructions of the , wife, and inasmuch as the wife was. not .responsible simply because she was the wife—that therefore the defendant,- who acted under her in-, structions, was consequently not responsible. I understand that to be the only question raised. If it be so, I am of opinion that the magistrate’s conclusion as to the law is wrong, and that if there is no other ground of defence the plaintiff is entitled to recover.. Judgment must therefore be for the appellant upon the appeal, with costs, and the decision must be certified to the magistrate. What lam about, to say is no part of my judgment, but it appears to me that the case must be reheard in the Resident Magistrate’s Court if sufficient , evidence has not been taken to enable the magistrate to give a final decision. The decision as to payment of coats, is reversed, and I will certify my opinion as to the point of law. I cannot say that judgment is to be for the plaintiff, because the ease does not seem to have been concluded below. This case has, like many others, been sent up incomplete. Magistrates in such cases ought to take all the evidence when their decision on a point of law is to be appealed against, in order that a final judgment might be given on appeal, instead of the case being sent back to the magistrate. Appeal allowed. The Court then adjourned.