Duncan v Tindall
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1853 |
| Date | 25 January 1853 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 1197
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
S. C. 22 L. J. C. P. 137; 17 Jur. 347.
[258] duncan v. tindall. Jan. 25, 1853. [S. C. 22 L. J. C. P. 137; 17 Jur. 347.] An action will not lie for the breach of an executory contract for the sale or transfer of a ship, unless the contract contains a recital of the certificate of registry, pursuant to the 8 & 9 Viet. c. 89, s. 34. This was an action of assumpsit for the non-completion of an agreement for the purchase of a ship. The first count of the declaration stated that the plaintiff, before and at the time of the making of the contract by the defendant thereinafter mentioned, was the legal owner of, and entitled to sell and transfer to the defendant, the ship or vessel thereinafter mentioned.: that thereupon, theretofore, to wit, on the 26th of June, 1852, in consideration that the plaintiff, at the request of the defendant, would agree with the defendant to sell and transfer to the defendant, and to concur in doing every act and thing on his part to sell and transfer to the defendant, a certain ship or vessel of the plaintiff called the " Midas," at and for a certain price then and there agreed upon between them, to wit, the sum of 27001., to be paid in manner then also agreed upon 1198 DUNCAN V. TINDALL -I3C.B.259. between them in that behalf, to wit, one half in cash, and one half by bills of exchange at six months, to wit, from the day and year aforesaid, he the defendant then promised the plaintiff that he would accept such sale and transfer of the said ship or vessel of and from the plaintiff, and pay for the same upon the terms aforesaid: that the plaintiff, trusting to the said promise of the defendant, had always thence hitherto been ready and willing to sell and transfer to the defendant, and to concur in doing everything on his part to sell and transfer to him, upon the terms aforesaid, the said ship or vessel, and had performed everything on his, the plaintiff's part, until he was so discharged as thereinafter mentioned ; and did afterwards, and within a reasonable time in that behalf, to wit, on, &c., make and execute to the defendant, upon [259] the said terms, a deed of "transfer of the said ship or vessel, according to the law and statute in that behalf, and did then tender and offer to deliver, and would then have delivered, the same, so executed as aforesaid, to the defendant, if the defendant would then have accepted the same and such transfer as aforesaid,-of all which premises the defendant then had due notice: Breach, that the defendant, had not at any time, although more than a reasonable time for his so doing had elapsed afterwards and before the commencement of the suit, accepted the said sale, transfer, or deed, so executed as aforesaid, nor in any manner paid the said price, or any part thereof, in money or bills, or otherwise; and then, and before any breach of the contract by the plaintiff, wholly discharged the plaintiff from doing any other or further act towards the completion of the said sale and transfer; and then declared that he, the defendant, never would complete the same, or fulfil his contract in that behalf, but had wholly neglected and refused so to do; whereby the plaintiff had not only lost and been deprived of all the benefit and advantage which he would otherwise have derived and acquired from the fulfilment by the defendant of his promise aforesaid, but had been put to great cost and charges, &c. There was also a count upon an account stated. Plea, amongst others, non assumpsit. The cause was tried before Jervis, C. J., at the last Summer Assizes at G-uildford. It appeared that the defendant had entered into a verbal contract with the plaintiff for the purchase of the ship " Midas," for 27001., to be paid for, one half in cash, and the residue by bills at six months ; and that there was no bill of sale or other agree ment in writing. : . On the part of the defendant* it was insisted that the plaintiff was precluded from recovering, by the ship registry act, 8 & 9 Viet. c. 89, s. 34, for want " of a bill of [260] sale, or other instrument in writing, containing a recital of the certificate of registry of such ship or vessel, or the principal contents thereof." A verdict was found for the plaintiff, damages 3001.; leave being reserved to the defendant to move to enter a verdict for him on the issue raised on non assumpsit, if the court should be of opinion that the objection was well founded. Shee, Serjt., in Michaelmas Term last, obtained a rule nisi accordingly. He referred to Hughes v. Morris, 2 De Gex, M'N. & G. 349, and M'Calmont v. EanJcin, 2 De Gex, M'N. & G. 403. Channell, Serjt., and Lush, now shewed cause. The question is, whether an executory contract for the sale of a ship is valid, in the absence of a bill of sale, or other instrument in writing, containing a recital.of the certificate of registry of the ship, or the principal contents thereof. The 8 & 9 Viet. c. 89, s. 34, does not apply to an executory contract. Upon the earliest ships' registry act, 26 G. 3, c. 60, s. 17, it was doubtful whether it extended to executory contracts. The 34 G. 3, c. 68, s. 14, which was passed to remove that doubt, expressly includes contracts or agreements to transfer. Under that statute, the present objection might1 avail. In the 6 G. 4, c. 110, however, which consolidated the law upon this subject, the words are different, -the alteration probably being occasioned by Biddell v. Leeder, 1 B. & C. 327, 2 D. & E. 449, and Mortimer v. Fleemmg, 4 B. & C. 120, 6 D. & R. 176. The 31st section of that act,-which is precisely the same as the 3 & 4 W. 4, c. 55, s. 31, and 8 & 9 Viet. c. 89, s. 34,-enacted, "that, when and so often as the property in any ship or vessel, or any part thereof, belonging to any of His Majesty's subjects, shall, after registry thereof, be sold to any other or others of His [261] Majesty's subjects, the same shall be transferred by bill of sale, or other instrument in writing, containing a recital of the certificate of registry of such ship or vessel, or the principal contents thereof, otherwise such transfer shall not be valid or effectual for any purpose what- 13CiB.262. DUNCAN V. TINDALL 1199 ever, in law or in equity." In Abbott on Shipping, 5th edit, (the last published in the noble author's life-time), p. 50, it is said : " Upon the subject of transfer of property, it seems fit to notice a distinction between this and the former statutes. A recital of the certificate of registry is not now made necessary to the validity of an executory contract or agreement for the transfer of property, as was expressly required by the 34 G. 3, c. 68, s. 14." In the case mainly relied on for the defendant, Hughes v. Morris, 2 De Gex, M-'N. & G-. 349, the bill was for,a specific performance of the contract; and it might well be that a court of equity would not enforce specific performance of a contract which would be in violation of the statute. The effect of a decree in favour of the plaintiff there would have been, to effect a transfer of the ship. Here, the plaintiff only claims damages for not...
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