Dale v Hamilton
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1847 |
| Date | 26 June 1847 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 945
HIGH COURT OF CHANCERY
S. C. 5 Hare, 369; 16 L. J. Ch. 126; 11 Jur. (O. S.), 163; 16 L. J. Ch. 397; 11 Jur. (O. S.) 574. See Maddison v. Alderson, 1883, 8 App. Cas. 479; M'Manus v. Cooke, 1887, 35 Ch. D. 692; Gray v. Smith, 1889, 43 Ch. D. 211; In re De Nicols [1900], 2 Ch. 410.
a PR 2*7. DALE V. HAMILTON 945 dale v. hamilton. June 11, 23, 26, 1847. [S. C. 5 Hare, 369 ; 16 L. J. Ch. 126; 11 Jur. (0. S.), 163 ; 16 L. J. Ch. 397 ; 11 Jur. (O. S.) 574. See Maddison v. Aklerson, 1883, 8 App. Gas. 479 ; M'Manus v. Cooke, 1887, 35 Ch. D. 692; Gray v. Smith, 1889, 43 Ch. D. 211 ; In re De Nicols [1900], 2 Ch. 410.] A. andB., for whom land had been purchased by C., with a view to its being resold in building lots, on the land being conveyed to them, signed a paper writing purporting to be a memorandum of an agreement between them relative to the land, by which it was agreed " that they should each advance half the purchase money and receive interest on the same at five per cent., and that they were to have each one-third interest in the purchase and to reserve one-third of the profits arising therefrom for C., in lieu of his commission for purchasing, selling, surveying, valuing, and laying out the land in lots, or any other services that might be required of him; but that it was clearly and distinctly understood that C. should have no power or authority whatsoever over the land, and that he should not be entitled to receive any compensation therefrom until the whole was sold and paid for." The land having afterwards greatly increased in value, A. and B. refused to recognize C.'s interest in the speculation, and offered him a money compensation for his services. Whereupon C., who had objected from the first to the clause in the memorandum which excluded him from all control, as inconsistent with the original terms for which he had verbally stipulated, filed his bill for an immediate sale of the land. And the Court, being of opinion that the Defendants, by repudiating the trust as to C.'s share, had devolved upon the Court the discretion which they had by the memorandum reserved exclusively to themselves as to the time of sale, declared C. entitled to one-third, and referred it to the Master to inquire whether it would be for the benefit of all parties that the land should be sold. On the 16th of October 1843 certain pieces of land, which had been purchased by the Plaintiff, who was a surveyor and land agent, then residing at Birkenhead in the county of Chester, for Robert M'Adam, a merchant in Liverpool, were conveyed to M'Adam and the Defendant Hamilton and their heirs, as tenants in common. Shortly after which the following memorandum was made and signed by those two parties :- [267J " Memorandum of an agreement between Robert M'Adam and Robert Hamilton, made the 27th of October 1843, relative to a lot of land in Prices Street, Lord Street, and Camden Street, Birkenhead, say, . s. (I " 25,400 square yards, purchased from Thomas Forsyth and his trustees at 4s. 9d. per square yard, . . . 6044 7 6 " 480 square yards purchased from J. Nillier, at 8s. 6d. per square yard, ...... 204 0 0 6248 7 6 "That the said Robert M'Adam and R. Hamilton shall advance each one-half of the purchase-money, and that they shall receive interest on the same at the rate of 5 per cent, per annum, which interest is to be made up half-yearly, and calculated the same as banker's accounts: that the said R. M'Adam and R. Hamilton are to have each one-third interest in the said purchase, and that they are to reserve one-third of the profits arising therefrom for T. A. Dale in lieu of his commission for purchasing, selling, surveying, valuing, laying out in lots, or any other services that may be required of him; but it is clearly and distinctly understood that said T. A. Dale shall have no power or authority whatsoever over the said land, and that he shall not be entitled to receive any compensation whatsoever therefrom until the whole is sold and paid for, and all outlay and expenses incurred thereon are deducted therefrom. "R. M'ADAM. "R. hamilton. "Liverpool, 27th October 1843." 946 DALE V. HAMILTON PR 298. In the month of December 1844, and before any part of the land was resold, M'Adam died, having, by his [268] will, devised and bequeathed all his real and personal estate to six persons, and appointed two others his executors. After his death, the land having greatly increased in value, his devisees and Hamilton refused to recognise the Plaintiffs interest in it, and were proceeding to make a partition of it between them ; whereupon the Plaintiff filed this bill, stating, that in and previously to the year 1843, he had acquired great knowledge and experience in the management of purchases and sales of land, and that early in that year a proposal was made to him by Eobert M'Adam, that they should enter into a joint speculation for the purchase of land at Birkenhead, with a view to its being resold in lots for building, M'Adam furnishing the capital and the Plaintiff the skill and labour, first in making the purchases, and afterwards in laying out and preparing the land for sale and effecting the resales: the conveyances of the land, when purchased, to be taken in the name of M'Adam alone, and the profit and loss to be divided in the proportions of one-third to the Plaintiff and two-thirds to M'Adam, who was to be paid back his advances with interest at 4 per cent, out of the proceeds of the resales, before any division of profits was made. That the Plaintiff, having acceded to the proposal, purchased the lands in question on the faith of that agreement. But that M'Adam having, before the purchases were completed, assigned one-half of his interest in the speculation to the Defendant Hamilton, the conveyances were made to M'Adam and Hamilton jointly, as above stated. The bill set forth several letters written by the Plaintiff to M'Adam, after the purchase, reminding him of the terms of the agreement, between them, and requesting him to sign a written memorandum thereof, which he neglected to do. The bill, however, stated that the memorandum of the 27th of October 1843 was shortly after its execution shewn [269] by M'Adam to the Plaintiff, who thereupon objected to the clause which excluded him from any authority or control over tha land, as being inconsistent with the terms of the agreement between them. And he insisted by his bill that the effect of the memorandum, as a declaration of trust in his favour, ought not to be prejudiced by that clause; but that, if the Court should be of opinion that no effect could be given to his right otherwise than subject to such clause, he was willing to be bound by it. The bill prayed that the land might be sold, and the joint speculation wound up and adjusted; and that the monies to arise from the sale might be applied and distributed in conformity with the terms of the agreement, the Plaintiff offering to render all such services in and about and preparatory to the sale as he had agreed to do; and that the Defendants, Hamilton and the devisees of M'Adam, might be restrained from proceeding to a partition. The letters referred to in the bill were produced from the custody of the Defendants the executors, and also the draft of a memorandum of the terms of the agreement as now insisted upon, which had been enclosed in one of the letters for M'Adam's signature. The Defendant Hamilton, in his answer, admitted that, upon the assignment to him by M'Adam of a moiety of his interest, the latter had stated to him that he had agreed to give the Plaintiff, by way of remuneration and in lieu of all commission and other recompence, a clear third part of the profit which should be ultimately realised, charging 5 per cent, interest on the outlay, to be calculated half-yearly on banker's accounts, such remuneration to depend entirely upon and to be payable only out of such ultimate profit. The other Defendants, [270] who were strangers to all that had passed previously to M'Adam's death, ignored all the material statements of the bill, except as appeared from the letters and other documents in their possession ; and both they and Hamilton insisted on the Statute of Frauds in bar of the Plaintiff's remedy under the alleged agreement, and claimed to be entitled to hold and retain the land in question for their own use and benefit, to the absolute exclusion of the Plaintiff from all share and interest therein. With respect to the memorandum of the 27th of October 1843, the Defendants,, the devisees, submitted that it was not .a declaration of trust in favour of the Plaintiff, but merely an agreement between M'Adam and Hamilton, liable at any time to be revoked or altered by them or their representatives ; while the Defendant Hamilton stated that, conceiving himself bound by the terms of that document, he had intended strictly to fulfil them if the Plaintiff would have performed the services stipulated on a PH. 271. DALE V. HAMILTON 947 his part instead of seeking to prejudice the speculation by a forced and hasty sale. But all the Defendants insisted that the Plaintiff had, by removing his residence from Birkenhead to Cheltenham, incapacitated himself for the due performance of those services, adding that they had offered him XI000 for the services he had already rendered, and that they were willing to pay him a just and reasonable compensation for such as he might still perform. At the hearing of the cause, before Vice-Chancellor Wigram, His Honour, entertaining (as it would appear from the report of his judgment), (5 Hare, 369), some doubt whether he could give the Plaintiff as effectual relief upon the memorandum of October 1843, considered as a recogni-[271]-tion of a pre-existing-right in the Plaintiff, as he could under the alleged agreement, if established; but being of opinion, after an elaborate review of the authorities, that the agreement was of such a...
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