Supreme Court Judgments

Southland Times, Issue 19550, 3 May 1905, Page 4

Supreme Court Judgments

At tho courthouse yesterday the Registrar (Mr J. R- Colyer) read judgments by Mr Justice Williams in two cases which were heard at tho last sittings of the court in Invercargill.

D. McRAE v. JAS. SHIRLEY

In this case tho plaintiff sued for specific performance of an agreement to sell certain property at Wyndham. His Honour found that there was an agreement entered into in October, 1897, between the plaintiff and the defendant, that the plaintiff should lease tho property in question to the defendant for three years from tho Ist October of that .year, with the right to purchase at the end of the term for £BO, the defendant to pay annually Is rental. ' There, was an understanding, not expressed in the agreement, that the plaintiff should spend some money on (the property. In the event of the leasee being unable to complete the purchase at the end of the three years, another three years’ lease might bo entered into at the option of the lessee, at a rental of 5s per week, with the right of purchase at any time during the currency of the lense, on giving three months’ notice to the lessor, for £BO. The plaintiff alleged that before the expiration of the : first term of three years he exercised his right to purchase by giving notice of his intention to purchase. In casco where there was an. option to purchase, where one party was bound and tftlo other was not, the court had to exercise its discretion as to specific performance with great care, and view somewhat narrowly tho conduct of the party claiming the benefit of his unilateral right to make the contract absolute. In such a contract any delay in the party in whose favour the contract was binding was looked upon with special strictness, and the burden of proof of the existence of a 'binding contract lay strongly on tho party in whose favour the option was given. The plaintiff had to sftow that during the first term of his lease he notified the defendant of his Intention to purchase, in such away as to constitute a contract binding on

hfcmself as well as the defendant. There must bo such an expression of Intention by- tho intending purchaser as would clearly indicate to the vendor that the purchaser was then and there exercising his right to purchase. He did not think that this had been proved in the present case. His Honour reviewed tho evidence at considerable length, and decided that the plaintiff had failed to establish his right to specific performance. Judgment wpis given for defendant, costs on lowest sualo, witnesses' expenses and disbursements to bo fixed by the Registrar,—Mr

W. Macolister for plamtlH ; Mr F, V.Raymond for defendant. ■ JAS. ROBSON v. ADAM McWILLIAM. This was an appeal from the decision of Mr McEnuis, S.M., written arguments having been submitted to his Honour in' lieu of viva voce argument. The appellant Robson was plaintill below, and was non-suited. Robson, os. assignee of a written contract made between McWilliam and the firm of 'Templeton and Shirley, sued McWilliam for damages for breach of tllio contract. Templeton and, Shirley were not parties to tho action, and there was no assignment of the contract from them to Robson other than a verbal assignment. The foundation of Robson's case was that’ the document made between McWilliam and Templeton and Shirley was am agreement the breach of which by McWilliam would give to Templeton and Shirley or their permitted assignee an action at law for damages. Tho agreement, on which tho action would be, was not an agreement for the solo of goods within the meaning of the Sale of Goods Act, as the flax to be _cut was a natural product of the soil, and Templeton and Shirley would be entitled to tho second ■ year’s growth of it. The question was : Can a contract, tho breach of which! gives one, contracting party the right to recover damages in an action at lawi against tho other, be assigned so as to give the assignee a similar right without making like assignor a party to tho action ? Tho answer was that apart from some statutory provision tho action must bo brought in the name of the assignor, tho original party to tho contract. His Honour briefly discussed tho law in support of this answer, and held that the plaintiff was properly nonsuited. It might be that if the agreement had been by deed it would have amounted to a lease. It was unnecessary to discuss that question, as it was not by deed, and for tfimt reason, if for none other, it . was not a lense. If the agreement had been a valid lease, then in order to enable an assignee of tho original lessee to sue tho lessor, the assignment by the terms of sec. 35 of tho Property Law Consolidation Act must have been by deed. The instrument was an by McWilliam to allow Templeton and Shirley, in consideration of a royalty, to enter on his land end cut flax, and contained a consent by McWilliam to the license' being assigned to any person of good repute. This consent, however, did not itself enable tho assignee to sue in his own name, or put him in any better position than on assignee of any other contract. If it had been shown that Templeton and Shirley had been discharged from tho contract with the consent of McWilliam and Robson had been substituted, to the contract,, with like consent, then no doubt Robson could 1 sue. This, however, had not been shown. His Honour thought also that the magistrate was Justified in non-suit-ing on the ground that' the agreement was not, stamped, notwithstanding the Objection' being waived by the respondent. Appeal dismissed, with costs £6 6s—Mr Raymond for appellant ; Mr W. Stout for respondent.