COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4260, 14 November 1874, Page 2 (Supplement)

COURT OF APPEAL.

Friday, Novkmbek 13. (Before Sir G. A. Arnoy, Chief Justice ; Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gresson, and Mr. Justice Chapman.) rASSMOKE V. THE BANK 01? NEW SOUTH WALES. Mr. Travers appeared for the appellant, the Attorney-General and Mr. Garriek for the respondent. This was an appeal from the decision of His Honor Mr. Justice, Gresson, who allowed a demurrer to the declaration of the plaintiff in an action brought by Mr. Passmore against the Bank of New South Wales, to compel specific 'performance of a contract alleged to have been entered into with the Bank. The declaration in the case stated, that prior to the Gth of March, 1874, the plaintiff, by his agent, Mr. H. R. Russell, of Napier, was negotiating with the defendants, through their agent, Mr. W. S. Robinson, Manager of the Christchurch branch of the Bank, for the purchase from the defendants of two stations known as Arowhenua and Mount Pleasant, in the province of Canterbury. On the sth of March Mr. Robinson sent the following telegram to Mr. Russell :—"Christchurch, sth March.—Are you willing to purchase both stations, absolute price being what they may stand in our books on delivery, Passmore in fact taking our position with regard thereto in everything. If so, pay deposit, two thousand pounds, as agreed. Any sale made by broker would then be on Passmore's behalf, or yon might withdraw station from sale by paying broker's commission.—W. S. Roiiixson." To which Mr. Russell telegraphed the following reply :—" Waipu Kurau, Napier, tith March, 1874. To W. S. Robinson, banker, Christchurch. I agree to purchase Arowhemia and Mount Pleasant stations, price being what they stand in your books on delivery, taking Bank's position with regard thereto in everything. I shall remit you, first mail, my draft on Mr. Passmore for two thousand pounds, at sixty days on London, and shall forward therewith Passmore's authority to draw. Understood Mr. Hill was satisfied with this arrangement. Refer you to my bankers, Bank of New Zealand, Napier, if necessary. This two thousand pounds to be a deposit and Bank to hold property meantime, on account of Passmore and myself, till final settlement of price. Please withdraw Arowhenua from sale immediately. Presume you can telegraph broker if gone to Timarn. As to commission, shall leave you to settle that, on as moderate terms as possible, but hope it won't be heavy. I shall be glad to remunerate you, of course, for trouble of looking after tilings, if you will kindly undertake to do so till matter formally settled. Please send me, first mail, information about sheep and lambs on runs, and if necessary to sell off portion, and what probable price going. From there being so little run left presume considerable purchases made since your telegram of 17th December. Are purchasers entering into immediate occupation? Is it necessary to purchase more land now, and how much, probably?—H. R. Rcssell." On the 11th March, Mr. Russell delivered to the defendant's agent, at Napier, his draft on the plaiutiff for £2OOO, in accordance with the above agreement ; but, notwithstanding this, on the 26th of the same month the defendant sold Arowhenua, and returned the draft to Mr. Russell, thereby -repudiating the agreement of the Gth March. The plaintiff afterwards, within a reasonable time, offered to pay the £2OOO in cash, but the defendants refused to accept it, and an action was commenced to compel specific performance of the contract, the declaration praying that the defendants might be declared to be the trustees for the plaintiff of the said stations, and be compelled to carry out the agreement in its entirety. In the Court below the declaration was demurred to, and .upon argument the demurrer was allowed, leave being given to take the case into the •Court of Appeal. Mr. Travers, in opening the case for the appellant, said that so far as he could gather from the judgment of His Honor Mr. Justice Gresson the whole question would turn upon whether the language of the telegrams was sufficiently specific to constitute a contract. He would submit to the Court that the telegrams did constitute a contract between the parties. Both sides acted by agent, and no question would arise as to the power of the agents. The only question raised in the Court below was whether the. offer, taking the telegram as containing- an oirer luc sale outho outr side, was unconditionally accepted on the other. In looking at the telegrams they had to consider whether the fii-3t was really an offer of the stations, whether the subject matter and the price were ascertainable, and whether there were any conditions imposed, the acceptance of which became necessary to constitute a contract between the parties. He submitted that the essential part of the two telegrams did constitute a sufficient contract between the parties. He would assume for the purposes of his argument that the portion of the telegram from the defendant to the plaintiff which constituted the offer terminated at the word "agreed." "Are you willing to purchase both stations. ... If so, pay deposit of' two thousand pounds, as agreed." The remainder was merely matter explanatory of what would be the result in the event of a sale being made by the broker. Then, as to the acceptance of the offer, he took it that it ended at the word " everything" in the second telegram, because they had agreed that the deposit was to be £2OOO, and the plaintiff accepted the offer upon those terms. It might be contended, although no time was specified, that the actual payment of the £2OOO was a condition precedent to the contract binding the defendants, but he should contend that it was not so. The language of the telegram was this:—"Will you buy; if so, pay £2OOO deposit." The answer was—" Yes, I will buy on your term. 3;" but the subsequent portion of the telegram was in the nature of a proposition to vary the temw of the contract. The Court would observe that it echoed the language of the previous telegram. The offer was contained in the words—" Will you buy at a price?" "Yes, I will." " Then pay a deposit of £2OOO ; that is the deposit which we ask upon the transaction." But the mode of payment was left open. There was nothing to vitiate the contract in the offer to pay by draft instead of cash. That did not go to the contract itself; it went to the performance of the contract. If the contract said the money was to be paid by a certain time, in default of which the contract would cease, then the nonpayment of the money would defeat the contract. If the defendant had had any real objection to the acceptance of the draft it would have been an easy matter for him to have said —"No; I cannot accept your draft, the terms are a deposit of £2OOO cash." But it was not right of tho defendant to accept the draft for £2OOO on the 11th March, hold it till the 26th, and then turn round and repudiate the wholo transaction. The act of the plaintiff was simply a variation in the mode of payment, which did not affect the character of tho offer of tho one party or the acceptance of the other. . All tho facts showed that the defendant accepted the varied mode of payment proposed, in lieu of that which was mentioned in the offer; and he submitted that the judgment of the Court below Bhould be reversed. The Attorney-General contended that the •defendant's telegram could only bear one interpretation, namely, that the sale could oidy be effected upon payment of a cash deposit of £2OOO. It was clear that the payment of the .deposit was an essential part of tho contract. It wa<i not a mere collateral matter—-one of those non essentials tho non-acceptance of which would not affect tho contract—it was an express stipulation that tho£2ooo should be paid .down, and that stipulation not having been complied with there could bo no contract between the parties. Tho learned counsel quoted authorities in support, and argued tho law points ; at considerable length. Mr. Garriek followed on tho oamo side. The Chief Justice said tho Court were unanimously of opinion that the judgment of the Court below should be affirmed. The principle had been well ascertained, and laid down that where a contract was accepted—as in this case—the acceptance •of the terms must bo unqualified : the accepting party Must accept in its entirety the proposal made by tho proposing party, and must not suroratdd to those terms or vary them

in any particular. In this case Mr. Travers had very ingeniouslyargued that the terms stipulating for the payment of a deposit of £2OOO cash might be eliminated from the contract, and "not be regarded as an essential part of the contract itself; that the proposal was merely to sell the station, and ttiat the clause respecting the £2OOO in the telegram of the sth March had reference only to the mode of payment. It' was .material, no doubt, as to : the amount—that the £2OOO must be the amount—but as to the mode in which that £2OOO must be deposited, it left it open for consideration whether it might be in the shape of a bill or otherwise. It appeared to him that they must look at tho telegram from the point of view which the Attorney-General put before the Court, as being an entire contract in point of fact, because it must be accepted in its entirety in order to bind the defendant ; and if the Court did look at it as a whole, it was clear that the payment of a deposit of £2OOO, and the payment of that deposit in cash, was a necessary part of the contract. It could not bo supposed that tho vendors ever intended that they should be kept four months out of £2OOO as • part of their purchase money, and in the meantime hold the assets themselves, constituting themselves trustses for the plaintiff ; nor could it be supposed that they intended to leave themselves open to be constituted not merely trustees for Passmore, but for Russell, his agent. It seemed to the Court, therefore, that when the plaintiff superadded to the terms of the contract, in the manner in which the telegram of the Gth March did superadd, it amounted to an acceptance of the proposal of the defendant, so far as that proposal defined the property and the price at which the stations should be sold, but when he rejected and did not accept the condition that a deposit of £2OOO cash be made forthwith, , then there could be no contract binding upon the defendant. For these reasons the judgment of the Court below must be affirmed. Mr. Justice Johnston, Mr. Justice Richmond, and Mr. Justice Chapman concurred. The appeal was dismissed with costs, and leave given to Mr. Travers to amend the declaration. TAXIKO COSTS. Mr. Garriek requested the Court to pass a rule enabling parties to have costs taxed as between solicitor and client, by appointment through the Registrar in the first instance, without the necessity of applying for an order. The Court were unanimously of opinion that such a course was already open to, and was in fact the duty of the Registrar, without obtaining any order. The Court then adjourned till Monday, at twelve o'clock.