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SUPREME COURT. Wednesday, March 31st.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
ROBINSON PIANO CO. V. MADAME FLINT.
Argument was heard in the action brought by the Robinson Piano Company against Madame Flint, milliner and dressmaker of 17A Queen's Road Central, on the point of law as to whether certain letters constituted an agreement. The atatement of claim was to the effect that by an agreement which was contained in correspondence which passed between the parties the plaintiff agreed to let to the defendant and the defen- dant agreed to take from the plaintiffs the eastern portion of the store at 10 Des Voeux Road Central for four years and two months, commencing 1st. February 1909, at a rent of 8350 per month. The defendant had refused to carry out the agreement.
The defence denied the existence of any agreement to take the shop and further that there were other conditions to the intended agreement besides those expressed in the letters and the matter was only in a state of negotiation, The Hon Mr. H. E. Pollock, K.C., instructed by Mr Hett, of Messrs Bratton and Hett appeared for the plaintiffs, and Sir Henry Berkeley, K.C., instructed by Mr Steavenson, from the office of Messrs Deacon, Looker and Deacon, appeared for the defendants.
Mr. Pollock, after reading the statement of claim, referred to the special case. He quoted a letter written by defendant to Mr. W. V. Robinson on 29th December last in which she stated that she was willing to take a lease of the premises for three years with option to extend the same for another year if she found it convenient at a rental of $350 a month inclusive of taxes, the term to commence on 1st February, 1909. She also wrote that plaintiff would have to give an undertaking that the noise by his gramophones would have to be discon- tinued as it would be an annoyance to her in her business. His Lordship would see from that letter that there was an agreement to take the eastern portion of the premises. Plaintiff replied on the 30th December in which he wrote that he could not lease the premises for a shorter period than four years but he would be willing to allow her to sublet. Everything, continued Mr. Pollock, showed that the proposal was agreed to: the only thing outstanding was the question of width of the premises and the question of the term. Counsel, in conclusion, said there was a memorandum signed by the defendant agreeing to take the eastern portion. His Lordship-Is it an action for specific damages?
Mr. Pollock-Yes, my Lord.
THE HONGKONG WEEKLY PRESS AND
His Lordship-I am a little puzzled about this specific agreement. It seems to me it is a case where damages would meet it because you have the premises and of course can let them. I think the general principle of specific perfor-
mance is that if it is a matter which can be expressed in damages you must take your damages.
Mr. Pollock-It is for the Court to say. Sir Henry submitted there had been no con- cluded agreement. At the most there was a treaty from which the parties could withdraw. Before proceeding he wished to take the preli- minary objection that the plaintiffs had no right to bring the present action. The plaintiffs were the Robinson Piano Company, but the corres- pondence defendant had was with Mr. William Vaughan Robinson. If there were an agree- ment it was with Mr. Robinson personally or with him as agent for the Robinson Piano Com- pany; on the former the Robinson Piano Com- pany could not bring an action against the defen- dant. In the second case if he acted as agent the plaintiffs could not succeed unless they alleged in the statement of claim that he had the authority not only to enter into negotiations but also to procure a purchaser and sign a binding contract with that purchaser. The statement of claim did not contain any such allegations. There was no binding contract on the letters because où the letters the contract, if any, was made with Mr. William Vaughan Robinson. It did not follow that a
His Lordship-How can you negotiate with a man in a certain capacity and then say he has not that capacity ?
[April 3, 1909. general manager had the powers which Mr. | state them. The rights were these: First Robinson assumed. It did not follow that he the plaintiff must get his costs. Secondly, could bind his company in this way.
it was not a case for damages because he did not think the damages could be expressed at present, Therefore he thought it was a case for spécific performance, but not yet. Specific perfor- mance could only be when the conditions which were to be fulfilled by plaintiffs themselves hind been fulfilled. That was really carrying out the term of the contract. Those conditions might be very small but that is neither here nor there. There were certain things to be done by plain." tiffs and when those were done the plaintifits could have specific performance.
Of course there could be no judgment finally drawn up until then. Both parties could look about for a tenant and he was sure that each would help the other and directly there was a tenant the whole matter would come to an end.
Sir Henry-We are not doing that; we say that if there was a contract it was not made with the Robinson Piano Company but with Mr. Robinson. It is not a contract which the Court can order the specific performance thereof or give damages for the breach of the contract.
His Lordship-You cannot contend that the manager could not enter into a lease on behalf of the company, It may be that the lease when signed will be signed by the seal of the company
Sir Henry-This is an agreement to take a lease.
His Lordship-It is an agreement to take the premises, the terms to be embodied in a lease.
Sir Henry--These letters are only negotia- tions between the parties for a contract to be drawn up.
When Sir Henry referred to defendant's re- quest for an undertaking with respect to the gramaphones,
His Lordship remarked-She expected a good deal if she expected the gramaphones would not make a noise (laughter.)
Sir Henry-Yes. The whole probability is that this would not have been given.
Counsel proceeded to argue that there was no final contract because the draft lease was to
be prepared by the solicitors, and if there was no binding contract there was no breach.
His Lordship-I don't know how leases are to be drawn up if this is not a binding agree- ment. Nobody would be bound at all.
Sir Henry-It is not a contract. His Lordship-I am only talking in the abstract.
Sir Henry-They have not presented any lease to us to sign.
After further argument the hearing was adjourned.
The hoaring of argument in this action was continued.
His Lordship, in giving judgment, said he did not think he could accept the suggestion which had been made with regard to the terms of the letters by defendant. He had to look at the intention of the parties in the series of corres- pondence and it was clear to his mind that they had agreed after a series of written discussions as to what the principal terms were on which the lease was going to be taken out. Then came a final remark by defendant that if plaintiffs in- structed their solicitors to prepare a draft lease Messrs Deacon, Looker and Deacon would ap- prove of the same. The question he had to settle was: Is this an agreement subject or de- pendent upon terms to be approved by the solici- tors or does it simply mean that terms have been agreed to and that the agreement has to be drafted. He thought it was not an agreement subject and dependent upon certain terms which would ultimately be approved by solicitors, but that terms had been agreed to by the parties and that these were to be drafted by the solicitors. By that he meant that so far as the parties were concerned they had settled all they had to say and, if there was any question for the solicitors to see to, those matters must be settled between themselves, He was sorry that the case had come into Court because it did not admit of any very easy settlement either by way of specific performance or damages. The defendant, he was perfectly sure, would have been very astonished if she had not got the premises when she wanted them, but he supposed she changed her mind. But the law did not allow persons to change their mind, not even the opposite sex. When once the offer was accepted there was an end of the matter. Defendant seems to have stood upon what she thought were her legal rights and he could not blame the plaintiffs for doing the same. They had got a very good bargain and wanted to stick to it. Therefore he thought they were entitled to it. How they were to have it he did not know, but he had worked out a form of judgment which he thought would The fact was that the case itself contained elements of settlement. There were the empty premises which might probably be let and as soon as they were, there was an end of the damages. However, the parties had chosen to upon their rights, and therefore he must
meet the case.
stand
Mr. Pollock said there were two little points to be mentioned. First his clients were to have built the vestibule by the first of February this year and then the lease also was to have started from that date. Of course there could not be specific performance from the first of February. His Lordship-I do not see how I can help you any
further.
Mr. Pollock-Will the four years and two months mean from the new date?
His Lordship-Oh yes.
Sir Henry-If the plaintiffs are not in a position to give a lease for four years and two months no order should be made?
His Lordship--I do not follow that.
Sir Henry-I am informed that they are not in a position to give us a lease for four years and two months, because their own lease is not long enough.
His Lordship-Then it must be reduced.
Sir Henry-No, not at all. If they cannot give us what we agreed to the contract is at an end.
His Lordship-But they could then on February first.
After further discussion his Lordship pointed out that he could not help the reduction to the lease because the defendant had broken the contract.
Mr. Pollock suggested that there should be damages for the two months already expired, but his Lordship said he was not disposed to give damages. His Lordship made an order that the conditions of the lease should be fulfilled within a month, and added that if the parties did not carry out the terms of the judgment then they would see what would happen.
Thursday, April 1st.
IN BANKRUPTCY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIGGOTT.)
8. E. ALLANA'S AFFAIRS.
S. E. Allans ¡appeared for his public examination.
Debtor in reply to the Official Receiver, said he was the late proprietor of S. E. Allana and Company, drapers, IA D'Aguilar Street, which business he started in December 1906 when he bought it from S. M. Barohoo for about $15,000. It was less than $15,000 and more than $14,000. He could not remember the exact amount. It was paid in instalments of $400 a month and these he paid up till the time he filed his petition. He had no capital when he started except $1,000 worth of jewellry. He had no partners. He thought he made a profit in the first year. The only books he kept were a customers' ledger. He did not keep a cash book.
By the Court,:-Why not?--Because I had no partners.
Debtor said he had a banking account at the Yokohama Specie Bank 'which he opened in 1907. Prior to that he had an account at the International Bank which was closed. On November 7th he paid into the Yokohama Bank $3,000 which Moosa Vieira asked him to keep for him. Moosa handed him $8,000 to keep for him, $5,000 of which he placed in the Dutch Bank. This account was closed.
Rather an extraordinary thing to give you $8,000 to keep, wasn't it? Was there any agree- ment? No agreement
Were you to keep it as long as you pleased? No, until he wanted it,
Did you pay it back to him?—Yes.
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