PROPERTY DISPUTE

Evening Post, Volume CXII, Issue 149, 21 December 1926, Page 32

PROPERTY DISPUTE

ARGUMENT OVER SALE

POSITION OF AN INFANT,

Judgment was delivered by Mr. Justice MacGregor yesterday in a case in which C. 4 H. Bennett,1 sheepfarmor, of Marlborough, proceeded against J. C. Greensill, also a sheopfarmer, for specific performance of an alleged agreement for sale by defendant of his property at ©hingaroa. ,Tlio case was commenced at Blenheim, and completed at Wellington. It was alleged that the -defendant agreed to sell his property for £18,000 to the plaintiff, and his brother, Morris Bennott. The defendant later declined to complete the sale, and the plaintiff asked that tho defendant should be ordered to

specifically perform the contract, and to pay £1000 damages for tho profits on the property and stock. The defence was first that the contract was made with an infant and an adult, and the infant could not bind himself to take land, both parties being under the mistake that when the contract was made the infant could hold land. "It appears," said his Honour, "that Bennett Brothers are the present plaintiff and one Moriss Bennett, who is under the age of 21 years. On 27th July, 1926, the defendant declined to complete the sale. on the ground (inter alia.) that one of tho purchasers was' an infant. The infant purchaser Moriss Bennett, on 13th September, 1926, executed an instrument under his hand by which he purported to disaffirm" and repudiate the contract, and this instrument was therefore, forwarded to the defendant, who was at the same time called upon to perform .the contract with the Remaining purchaser, Hyla Bennett, who is the present plaintiff. "The first and main question to be determined is whether the plaintiff Hyla Bennett can himself maintain this. action in the absence of his brother, Moriss Bennett, who was one of the two persons who agreed to purchase _ the property in question. The general doctrine is quite clear that a contract to be specifically enforced must as a rule be mutual. In other words it must be such a contract as might at the time it was entered into have been enforced by either of the parties thereto against tho other of them. Whenever, there-j fore, tho. contract, is incapable of being enforced against one party, that party is equally incapable of enforcing it against.the other. One necessary result of this doctrine is that 'you cannot get specific performance against an infant!' "In the result it seems to .me that '■'this was a joint contract, and accordingly that Hyla Bennett cannot alone sue for a breach of it. That it is a joint contract clearly appears from the precise terms of the offer and acceptance,, and it is equally clear from the ovidence that it was the intention of both parties that the two brothers contracting should join in performing its obligations. I am quite unable therefore to see how one of these two jointcontractors can successfully sue the other party to the contract in respect of an alleged breach thereof. This point is, of course, fundamental, and goes to the root of the present proceedings. . ... '' What the plaintiff is now endeavouring to achieve by this action in the end appears to me to be> contrary to principle and without precedent." Judgment was entered for the defendant with costs, as on a claim for £1500, and' £15 15s per day for the second and third days of trial. ' At tho hearing, Mr. H. F. Johnson appeared for the plaintiff, and Mrj, R. Kennedy for the defendant.