Ellis v Colman, Bates and Husler
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 1858 |
| Date | 25 February 1858 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 790
ROLLS COURT
S. C. 27 L. J. Ch. 611; 4 Jur. (N. S.) 350; 6 W. R. 360.
[662] ellis . colman, bates and husler. Feb. 24, 25, 1858. [S. C. 27 L. J. Ch. 611; 4 Jur. (N. S.) 350; G W. K. 360.] A pleading is to be taken mostly strongly against the pleader, and where a bill contains general and specific allegations as to the same matter, the general allegation must be referred to the particular and specific one. Directors having entered into a contract, ultra vires, and which was not binding on the company, held, that it could be neither specifically performed, nor could the Court order them to make good their representations. The case came on upon two general demurrers to a bill, which stated in substance the following case:- In 1851 Messrs. Ellis and Husler entered into a contract with the Waterford and Kilkenny Railway Company, for the construction of about half of the line. The probable cost was about 140,000, but liable to be curtailed or varied. The company had then no pecuniary resources at their command to provide for the completion of their line, but an arrangement was then in progress, with the Public Works Loans Commissioners, for the loan of a sum of 40,000, of which it was provided in the con-[663]-tract with Ellis and Husler, that 26,000 should be applied towards payment of what might become due to them under their contract; and it was also provided that the excess over that sum should be paid them in 5 shares, issued under the powers conferred on the company by " The Waterford and Kilkenny Kailway Amendment Act, 1850," bearing a preferential dividend of 6 per centum per annum, on each of which shares 3 were to be considered as paid up. The bill stated :-" 8. That such of the preference shares as had been previously issued to the public had been so issued, with an intimation that no further call beyond the 3 per share was intended or would be made upon those shares, and that the following were the terms in which they were advertised by tht, Company:- " Waterford and Kilkenny Preference Shares. 40,000 of 5 each nominally, but only 3 in reality. " These shares are issued at 5 each, but no more than 3 will be called up, the Government Loan Commissioners objecting to advance 40,000 unless the shares were issued at 5 each. To close the capital account 160,000 are required and no more, which consists of 120,000 in the shape of 40,000 shares of 3 each, and 40,000 the amount of the loan." 2SBEAV. 664. ELLIS V. COLMAN 791 " 9. Pending the negotiations between the company and Ellis and Husler the liability of the latter to payment of calls on the preference shares was repeatedly discussed, which was met by positive and unqualified assertions, on the part of the board and its officers that no call would or could ever be made ; and as far as possible to satisfy the contractors that in any event no pay-[664]-ment of calls should ever be required from them, the managing director, the Defendant Bates, through whom the negotiations were principally if not altogether conducted, undertook to obtain a, positive engagement on the part of the ttirtttorx by deed, agreement or resolution, which should, as he said, set at rest all doubts. " 10. In the deed of contract, dated the 30th of May 1851, between the contractors and the company, ' at the request of the company's solicitor, who said he thought it would be better for all parties, no provision was introduced for exempting Messrs. Ellis and Husler from the payment of any future calls upon the preference shares to be taken by them in payment. It was nevertheless clearly understood at the time, by all parties to the said deed, that such was to be the arrangement, and it was upon this express understanding that Ellis and Husler executed the said deed.'" 11. Subsequently to the execution of the contract, the company alleged that the said Loan Commissioners had declined to make any advance to the company until a large specified portion of the said preference shares had been subscribed for, and " the directors proposed to Ellis and Husler that they should subscribe for 16,670 shares, but that such...
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