COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5657, 17 May 1879, Page 3

COURT OF APPEAL.

Thursday, May 15. (Before their Honors the Chief Justice, Judges Johnston, Richmond, Gillies, and Williams) TROUIBECK V. RICHARDSON AND ANOTHER. Mr. Macassey, for the defendants, argued that tho case was to be governed by several well recognised general principles. Ist. That the language of tho dead should be construed in its ordinary and natural sense, and from this point of view a right to purchase within two years could not reasonably be extended beyond that term. 2nd. A right of purchase such as that claimed in the present instance was always strictly interpreted even as between persons who were living and capable of acting for themselves. Lord Ranelagh v. Welton (3t Xi.J. Chan. 227); and Weston v. Collins (ib. 353). 3rd. The stipulation involved here was of an exceptional and peculiar nature, and could not by mere legal implication be taken to have been imported into a mere co-partner-ship at will. That was shown by the requirement of a notice involving nine months delay, which would prevent the partnership assets being realised. The stipulation was, moreover, opposed to the rights of ordinary co-partners, which entitled them to insist upon a sale and realisation. The case of Essex v. Essex, 20 Beav., 412, was distinguishable upon the ground that the Master of the Rolls based his decision upon the existence of an express parol agreement to go ou upon the old terms. . This was borne out by what fell from Vice-Chan-cellor Bacon in Hogg v. Hogg (35 Law Times, N.S., 792). The case of King v. Chiicfc (17 Beav., 325) was distinguishable on the same ground. Booth v. Parks (1 Molloy, 465) sanctioned a general principle, which was not disputed. The case of Woods v. Lamb (35 L.J., Eq., N.s. 309), decided by Vice Chancellor Wood, was strongly relied upon by the defendant; as well as Clark v. Leach (1 De G.J. and S., 409;, decided by Lord Westbury. There were strong reasons for holding the plaintiff strictly to time in such a case as the present, as the value of the co-partner-ship property might undergo extraordinary fluctuations during the course of a very short interval of time. The cases collected in Woodfall’s Landlord and Tenant, 176-9, showed that where a tenancy was continued beyond the limits of a period originally stipulated for, the terms of the old agreement were only inoor' porated or adopted so far as they were applicable to the new condition of things. Here the right of pre-emption was not one of the terms of co-partnership—as something which might result from a dissolution within a prescribed period. As for the other question it was contended that upon the true construction of the deed £IO,OOO was the least that was payable. The second notice was not within nine lunar months (Woolryoh on Time, 45 eteeq); but while not operating as a notice to purchase it was still effectual as a withdrawal of the first offer. The Attorney-General replied, and the Court took time to consider its judgment. Friday, May 16. (Before their Honors the Chief Justice, Mr. Justice Richmond, and Mr. Justice Gillies.) PROUDFOOT (APPELLANT) AND THE OTAGO HARBOR BOARD (RESPONDENT). This was an appeal from a decision pronounced by Mr. Justice Johnston and Mr. Justice Williams at Dunedin, in the case of the Otago Harbor Hoard v. Proudfoot, granting a decree to enforce the performance of aa agreement for a lease of part of the Board’s land endowment for a term of twenty-one years, at rentals amounting to over £3OOO a year. The decision went against Mr. Proudfoot in the Supreme Court, and he now appealed against that decision.

Mr. Macassey and Mr. J. E. Denniston were for the appellant, and the AttorneyGeneral (Mr. Stout) and Mr. Smith for the respondent. So far as could bo gathered the material facts of the case were these; The Otago Harbor Board was possessed (among others) of the lands in question, with power to lease, &0., derived under Ordinances of the Provincial Council of Otago. At an auction sale the appellant was declared the purchaser of a twenty-one years lease at the rentals already stated. He signed the conditions of sale in due form. The auctioneer acting for the Board (Mr. Pym) was not appointed under its common seal, and the person who actually signed the contract on behalf of the Board was another auctioneer-(Mr. Hepburn), who was deputed by Mr. Pym. The auction sale took place, and the contract was signed by Proudfoot on the 19th June, 187 S. Under the conditions of sale Proudfoot was bound to pay a half year's rent in advance immediately after the sale ; and in the event of the conditions not being complied with, the agreement for sale was to be cancelled and become absolutely void. After the 19th June and before the 4 th July several applications by letter were made to Mr. Proudfoot for payment of the half-year's rent, but no notice was taken of them, and the rent was not, in fact, paid. . On the 4th July the Board affixed its seal to a memorandum at the foot of the conditions of sale purporting to ratify what had been previously done. The appellant, by his plea, alleged that before this ratification he had repudiated the contract, and given notice

thereof to the Board. This, under the direction of the Judge at the trial, was found against the appellant ; but there was another finding, to the effect that nothing had been done under the contract on either side. The Court below had held that the appellant was bound to perform the contract, and hence the present appeal. Mr. Macassey contended that the two fundamental questions were—(l) Was there a binding agreement at common law, and (2) Was there a sufficient memorandum of it to satisfy the Statute of Frauds ? There were also certain collateral questions at stake. 1. Even supposing the Court might be able to eke out a contract, yet unless it was entirely free from doubt or question, specific relief would not be granted, but the parties would be left to have recourse to another remedy for recovery of damages by action at law. 2, If a contract was not concluded until the memorandum of ratification was affixed and sealed, was the Board bound to give notice of the act of ratification to the appellant 1 3. If so bound, was it necessary for the Board to allege the fact in its declaration ? Upon the question, whether there ever was any binding agreement between the two parties counsel referred to,Central Board of Education (Nelson) v. Boborts, 1 N.Z. Jurist, N.s., 117; Fishmongers Company v. Robertson, 5 M. and G., 131; Copper Miners Company v. Fox, 16 Q.B. 229; and Mayor of Kidderminster v. Hardwicke, L.R. 9, Exch. 13. It was urged that until the seal of the Harbor Beard was affixed the Beard was not in any way bound, and in consequence the appellant was not committed either. Before the act of ratification there was no mutuality, and when it was performed it was out of the power of the Board to give the plaintiff what he had stipulated for, while he had forfeited his rights under the so-called contract by nonpayment of the half-year’s rent in advance. The term was to commence on Ist July, while the ratification was on the 4th. Cooke v, Oxley, 3 Term, Rep. 653, was also referred to, as well as Dickenson v, Dodds (UR, 2 Ch. Div.), which was strongly relied upon as showing that a formal withdrawal by the appellant prior to the ratification of the 4th July was not necessary. The neglect or refusal of the appellant to pay the rent put it out of his power to enforce specific performance against the Board, and was a sufficient intimation that he did not intend to abide by the contract. It was further contended that when thu Board determined to hold the plaintiff to his bargain and bind him by the ratification, it should have been communicated to him, and the fact alleged in the declaration. “ Pollock on Contracts,” 8; ‘‘Fry’s Specific Performance,” 7580 ; Wolverhampton N. W. Co. v. Hawkesford (28 L.J., C. P. 242). The cases of Hudson v. Temple, (30 L.J., Eq. N.s. 231), and Smy tides v. Brodie, decided by Mr. Justice Chapman in 1368, were quoted as authorities to show that time was of the essence of such a contract as the present. It was finally urged that the findings on the issue?, and the facts connected with the making of the alleged contract raised doubts of a character which precluded the Court from granting specific relief. The parties should be left to their remedy at law. Mr. Denniston followed, and contended that the Board had no power to sell by auction; that the agreement was for a lease commencing in futuro . and therefore not sanctioned by the Provincial Ordinance ; that the Board could not ratify the alleged contract ou the 4th July after it had become impossible to fulfil its engagemeut for the Ist of the month. Mr. Denniston cited and argued upon Story ou “Agency,” sec. 239 (N. 2) ; Bird v. Brown, 7 Exch, 876 ; and the Solicitor-General v. Corporation of Dunedin, 1 iV. Z, Jurist, N.S. 1. The Court adjourned until this (Saturday) morning at 10 30.