Henry Patrick Thompson & Ors & G.B Ollivant & Company Ltd [1923] SLCA 9 (29 January 1923)

99 IIENRY P A'l'lUCK 'l'HO~H>SOX and Others- Appellants . '11 . U. H. OLLL\XX'f & CO)!P ... \NY LTD.- - Respondents. Specific performnnce-.11 emorand nm under Stattttc of frauds­ Costs to be bomf- by administrators personally . The facts of this case are sufficiently set out in the judgment. Appeal from a judgment of Purcell, C.J., in the Supreme Court of the Colony of Sierra Leone. Saw yen· for the Appellants cites:­ Brown Probate Practire, pp. 175, 594. ·w .. ood v. Rendall (1901), 1 Ch., p. 230. Execution against Real Property Ordinance, 1906 (No. 30 of 1906). 1 Re ~furray, ;3;3 L .. J., Prob., p. 108. Registration o£ Instruments Ordinance, 1906 (:Xo. 23 o£ 1906), section 4.3 Doe d. l3enjamin Hornby v. Olen, 1 A. and E., pp. 49- 51. IJeake on Contract, 3rd Ed., p. 398. Green v. Kopke, 2,3 L.J. C.P., p. 297. llalton v . King. IIalsbury, IJaws o£ England, Yol. 7, p. 371, para. 767· p. 373, paras . 768 and 769. Ibid., \ol. 13, p. 323, para. 4!)2. Low v . Bouverie, 1891, 3 Ch., p. 83. ~fitters v . Drown, 32 L.J., Ex., p. 138. llalsbury, \ol. 13, p. 368, para . 515. I bid., Vol. 14, p. 147. Hall v . Franck, 18 L .. T., Ch, p. 362. Lee v. Sankey, 15 I .. H.., pp . 204, 211. K empson £or the Respondents cites:- In the goods o£ )!aguire (1884), 9 Proh. Dh·., p. 2~6. I n re Bagarcl (1S49), 1 Robert:<, p. 768. In re Ormonde, 1 IIaggard, p. 145. In re Elclerton, 4 Haggard, p. 210. In re Barker (1891), Proh., p. 2?>1. Chitty Contracts, 1~th Ed., pp. 88 and 105. 1 Now Cap. 61, Vol. I, p. 477. t Now Cap. 182, sec. 4, Vol. II, p. 1292. 29th January, 1923. THow-soN AND OTHERS SA WREY-COUh.:::>UX, J. 100 "· The (l llait.tills ) Re:.pondenb iu thi:. Appeal, obtained bef01e &0~1:,. _ the learn ell Uhi<>f J lbticc in the Court bl.'low a decree for specific performance of a certain contract made between them and the Appellants, who had been granted Letters o£ Administration in this Colony to deal with the property, the subject matter of that contract. The Appellants were three in number, and are named Smith, Johnson and 'l'homvson respecti;ely, and they had been autho­ rised by a power o£ attorney from certain executors in Lagos to take out the~e Letter:. of Administration in this Colony. It appears thai about a fortnight before the Letters of Administration were actually taken out in this Colony, Smith had anticipated matters by enteriJJg into negotiations with the Respo1Hlents with a view to achieving tl1e purpose for which he (Johnson) and 'l'hompson held those letters in this Colony, with the result that the property in question was (as alleged by the R('spon<h•nts) agreed to be sold for the sum of £1,150, and a receipt was gi>en by Smith for the part-payment, £;jQO, in the following form :- " Re premises at the corner of Rawdon and Westmore­ " land Streets. Estate of Bishop .T ohnson, deceased. " No. 19. " 1st May, 1918. " Received of ~I essrs . G. n. Ollivant and Company, "Ltd., the sum of five hundred pounds, nil shillings, nil " pence, being amount paid in advance on account of pur­ " chase money for the sale of the aboYe premises . Con­ " sideration money se>enteen hundred and fifty pounds " sterling. "W. F. SMITH, " for Executors . tt 1.5.18. " Stamp." .As I h:we indicated, the learned Chief Justice held (inter alia) that this rrcript constituted a sufficient memorandum under the Statute of Frauds, but :\fr. Raw~· err, for the Appellants, has ar~ued, with <'onsiderable ingenuity and apparent sincerity, that it is uo sn('h thing, and for two reasons, as I understood him, viz ., hecauo:;e it doe<:. not fully set out the consideration, and became .T ohnson and Thompson also did not sign it. The other point upon which ::llr. Sawyerr relied, as I gathered when he sumllled up his ~nbllli:ssions followitJg on his very lengthy arg uments, \YUS ihat Smith had no power lo negotiate-he had no status, or, as he put it, ~-as " a. strauger " at the time he gave the receipt . . As to the first point, )fr . Sawycrr contended that inaslll'uch as something had bceu ::mill ahout ~ollie mate .i.'ial which would tesuH hom the demolition o£ a certain bn ilding on the property to be acq uit·eJ, forming part 1f the consideration for the pur­ chaso, that faet also shoulll have been stated on the receipt. Even one of the Plain tift",; own witnesses, Dunlop, as he pointed out, had said, •· 1 think sumet hing was said about the materials "being included in addition to £1,750 as the consideration " fo1· the purchase "; and, indeed, it would certain ly appear that "somethill!! was said " en this point. But, as )fr. Kempson arg-ued-what iiays the Biatute of Fnwds ?-::md he quoted from Chitty as follows:- " 'l'he Statute of Frauds Joes not re11uire a formal con­ ,, had drawn up with tcehnical preeisiou. The require­ " ment is of either ' the agreement ' sued upon or ' some " ' memonmdum or note thereof 'written and signed oy the " party io be charged . .Any lllemorandum tmCler the hand " of the party made beforb ad ion brought which names, " or so describes as to identify, the contracting parties, " and which contains, either expressly or by reference to " other written papers, the terms of the agreeme nt, is " sufficient." The last words quoterl would seem at first sight to justify Mr. Sawyerr's contention, as there is certainly no mention in the receipt, either expressly or by reference to other written rapers, to this builllin:.r matc.ial n,; forming part of the con­ sideration. But in this ronnertion as in others I attach great weight to the e>idence of Smith, for the simple reason that the learn ed Chief .Justice as trial Judge was more than favourably impressed by this witness's demeanour, which I need hardly say is a matter of the very first importance in coming to one's judgment in any case. X ot 011ly has the learned C'hie£ Justice expressed hims~lf in this Court .:;everal times to that effect, but there is the ri'1g of truth about Smith's evidence, which, apart from any surh expression of opinion by the Chief J ustice, greatly impresses me. Smith ~ays , in hi'l examination in chie f by }lfr. Sawyerr, tl1at aft(Jr heinf! offered £1, 750 hy Hebron, he said he must ronsult with Johnson and Thompson, and that he went to .Toh11son, and thn.t .Tohnson told him he thoug ht £1 ,000 Tt!OMPSON AND OTH.ERS v. OLLIVANT & Co., LTo• SA.WR·l"­ COOKAOll, J • THOMPSON AND OTllEUS II. OLLIV .oL'iT &:; Co., LTD. S.o.WJIIIY· OooJtSO!<, J. 102 n fair price, and that the £1,750 was a good offer, but that Smith should ask for a portion of the building; that he (Smitl1) then said to .J ohn~ou that he JJlu,.;l al:;o go and eonsult Thompson, and that he went, ancl that Thompson also suggested £1,000 as a fair figure, and thought H10 oiler of £1,750 " very good "; that ne:s:t day he went and reported to Hebron that Johnson and 'l'hompson had agrecll lo tl10 .£1,750, but tl1at Johnson had "added a portion of the bu1lding materials"; thai 1Iebro11 then "aid, in effcc t, that if it was only n question of their wanting a portio11 of the hnilding mat<'J ials, they might 110l only have a portion, lmt could take the whole lot; that 1H' (Smith) then closed the bargain by taking the £500 and giving the receipt, as Johnson and Thompson had agreed. But he adds -very honestly "lie (John::;on) never authorised me. They did "not say I should sign the receipt on their behalf." I have set out this evidence, which is in no way materiall~· shnken in c·ross-examination, hec·ause if believed (and I have given the best of all reasons why it should be believed) it seems to me ~o dispose of two points-the only one in whieh there might, in my view, be some substance, viz., the defective­ ness of the receipt as a memorandum by reason of no reference being- made thereit1 to this building material, and also of the failure of .Johnson and Thompso11 to sign the receipt. It disposes of lhe first, because, in my clear view, that building material wns re!!·:m1cd as of so little value a11d impori­ UJH'<' that it was, "o to speak. thrown in. The sum of £1,000 being agrred by both .JohnsoJ1 mHl Thompson as a good price, bow is it to be ar_!.tued, after £1.7:)0 had been offered, that this addi­ tional rubble was any matHial part of the considPrntion? It also disposes of the second point simply because, despite the denial by .J olmson and Thompson that the~· authorised Smith to sign the receipt for them, they had in effect agreed that he should do so, and Smith f'ignecl in the perfectly well warranted belief that he had their authorit~· to conclude the bargain. Ticfore leaving this point I wi1'h lo add that the learned Chief .Justice was entirely justified in inferring from the fact that Thompson was not put into the witness box that Mr. Saw~'err ro\lld not risk obtaining further cYidence corro­ borating Rmith. H "\\as a perfectly fair nnd proper inference, and 1 was astounded at ~Ir. Rnwy<'rr's exphmation that l1ad the trial .Judge reqni1·ed Thompson's eviclem·e, it was competent to l1im to l1ave insisted on his going into the hox. ·who has ever heard of the ri!!ht of a ,Judge to order a witness into the bo:s: against Counsel's discretion? 103 The contl'llliun that Slllith was a stranger is, I think, dis­ poseu of by the learned Chief .) ustice in a passage towards the end o£ the judgment nppealetl against, especially by the \\'Ords thc1ein "on Lettert-< (or administration) being granted, " the administration will have relation buck." I have only to add that if it is necessary to discoTer a reason for the ~n<l<leu rolte fan on the part of Johnson (and Thompson and Smith, in so far n:s they were induced to follow him), it i~; to be found, I think, in the fact thai <l better offer had been made after the hargnin bnu been concln<led. There is evidence that a certain :Mr. <Jenei had offered £2,000, and I believe it. 1 do not believe that it was the result of any letter which Johnson wrote to the exeentors in IJngos, which letter was neTer shown to either f;mi th or .Johnson, as I conceive it would and should haTe been. For these reasons this appeal must be dismissed with costs, such costs to be borne, not by tl1e estate, hut personally and in equal shares by the administrators of the estate in this Colony. :McDOKNET.JJ.J, Acting J. I am satisfied that the crucial document in this case is, albeit not formally drawn up with technical precision, a sufficient memorandum identifying the parties and containing the terms of the deed to satisfy the Statute of Frauds. I am not impressed with the argument that the considera­ tion was not conectly set forth, owing to omission of reference to bui lding materials over and above the £1,7'50. One of the vendors asked £or a part of the materials, hut so little value did the purchasers attach to them that they said in effect " you can " have the whole of them." To l'Stimate them in these circum­ stances as essential part of the com:ioeration would seem to me unreasonable. :Much stress has been laid by the .Appellants on the non­ registration of the Power of Attorney, but it is clear from the cases of In re Ormonde, In re Blclerton and In 're Barker cited by Mr. Kempson, that such a formal document is a superfluous luxury; and in any case its non-registration was the omission o£ the Appellants themselves. The receipt was given on May 1st, the grant of adminis­ tration c~nn testamento annexo was dated 16th }fay. On 9th May the purcl1nsers' solicitor wrote exhibit " D " to Messrs. Tno::uPSo~ J. N I) OTHERS v. OLLlVANT & (.Ju., LTD. ~AWlllf!'• Coo••o~<, J, THOID'SON .C."D OTHERS ... 0LLIVANT & Co., LTD. MCDON~ELL, • Acting J. 104 'l'hompson, ,Johnson and Smith, asking £or the title deeds in order to enable him to engross the conYeyance; but it was not till 17th J \llle that was writte11 the letter (Exhibit " 0 ") asking for £2,200 instead o£ £1,750. I n th e bee o£ these dales l cannot agree that there was such a refusal by his colleag-Hcs to adopt and ratify the act o£ Smilh as to enable them to e:>('ape linbility for the conlract entered into by him on their behalf. 'l'hc appeal musl be di:;miss~d with costs to be borne per­ sonnlly nnd in c1pwl shares by the administrators o£ the estate in this Colony. P1TlWELL, C.J. I agree.