SUPREME COURT CLAIM

Evening Star, Issue 21093, 4 May 1932, Page 9

SUPREME COURT CLAIM

PERFORMANCE OF AGREEMENT SOUGHT JUDGE SUGGESTS LOWER COURT PROCEEDINGS A claim for specific performance of an agreement to pay maintenance was I heard by His Honour Mr Justice Kennedy in the Supreme Court this morning. The plaintiff was Thomas D. Webster, and the defendant Frederick Voight. George W. Ferens, solicitor, gave evidence that Voight had certain mortgage interests, of which -witness gave details. The plaintiff produced the agreement drawn up between Voight and himself. Voight said ho had not a great deal of ready cash, but he had a good deal of money tied up. In reply to counsel, witness said Voight had given no security. Voight was about twelve months in arrears with his payments for the maintenance of the child. Richard B. Hamil, solicitor, deposed that he had written to Voight asking for security. The demand had been entirely ignored. Counsel said he had considered certain legal difficulties in this case. He intended addressing the court on the point whether damages might be an adequate remedy in place of specific performance, and whether the contract was sufficiently certain to make an order for specific performance. His Honour said that when a person came to the ocurt and asked for a specific performance of a contract, lie must prove his contract. He must show that what he asked was certain and unambiguous in its terms, but he could not come to the court and ask the court to make a contract. In this case there was no definition of the kind of security asked for. The court was being asked to settle what the parties had left unsettled. The court might enforce a contract if the contract were proved, but the court was not there to settle terms which the parties themselves had left unsettled. . The court could not make agreements for people. His Honour pointed out that provision for such a case was made under the Destitute Persons Act. He was puzzled to know why the court was asked in effect to make an agreement when a more complete remedy was available in the lower court, a remedy which could be obtained more quickly and with less expense. Counsel pointed out that the amount of security provided for under the Act was £2OO. In the lower court they could not have directly brought the action upon the contract itself. His Honour: No. You could have used the contract as evidence of paternity. Counsel said it was considered that they might be lucky if they got £IOO in the lower court. His Honour: One can only assume that the magistrates in this centre acting in the matter do what would be proper. In the course of further discussion His Honour said that if the contract were sufficiently certain and unambiguous performance would be ordered, but there was vagueness and uncertainty about the contract. There was the alternative method of proceeding under the Destitute Persons Act, which would give the protection of its penal provisions. ,It would be very much better for the plaintiff to have that remedy than to succeed in this action. In further reply to counsel, His HonoVir said that even if lie could he would not order more security than would be granted by the magistrate. His Honour said this was a claim for specific performance of an. agreement said to have been entered into by the plaintiff and the defendant. In proof of the agreement alleged there was produced a document called a memorandum of agreement containing certain terms. The parties did not appear, however, by that agreement to have settled certain terms, the enforcement of which the plaintiff claimed in this action. The plaintiff had asked for an order that the defendant give security and that the court order maintenance at a certain rate. In the agreement there was an express provision for what might happen should the defendant die before the birth of the child; but the parties themselves had not settled what maintenance was to be paid shoukli the defendant survive the date of the birth of the child, or what particular form of security should be given to secure the performance of payment of maintenance. The rule was that the court did not enforce specific performance of agreements unless the terms were certain and unambiguous, so that the obligations of the parties were clearly ascertained. In this case the obligations of the parties were not clearly ascertained. The court was, in effect, being asked to settle terms which the parties had not settled, or to make in this respect an agreement where the parties themselves had not reached agreement. The plaintiff had, however, if it were proper that the defendant should maintain the child, a complete and effective remedy under the Destitute Persons Act of 1910. That Act provided in a proper case for an order for maintenance of a child being made, and also for security, if necessary, being ordered by the magistrate. The plaintiff should, if he were advised that maintenance should be paid, proceed under that Act. The relief asked for was therefore for the reasons stated refused, and the action was dismissed.