Facchini v Bryson

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SOMERVELL,LORD JUSTICE DENNING,LORD JUSTICE ROMER
Judgment Date07 Apr 1952
Judgment citation (vLex)[1952] EWCA Civ J0407-7

[1952] EWCA Civ J0407-7

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Before:

LORD JUSTICE SOMERVELL

LORD JUSTICE DENNING and

LORD JUSTICE ROMER.

FACCHINI
and
BRYSON

MR. R. E. MEGARRY (instructed by Messrs. Elwell & Binford Hole, agents for Mesars. A. N. & S. I. Levinson, West Hartlepool) appeared on behalf of the Appellant.

THE RESPONDENT did not appear and was not represented.

LORD JUSTICE SOMERVELL
1

This is an appeal from a decision of His Honour Judge Gamon, and it turns on the construction of an agreement. It involves one of those problems which parties sometimes set the Court when they use words in some of the paragraphs of the agreement indicating one relationship, and use words in other paragraphs of the agreement which would indicate another. The Court has to construe the agreement as a whole. The question is whether the document here is a lease or a licence to ocoupy the premises with which it deals. The learned Judge, who gave a reservedJudgment, appended a memorandum when he heard, no doubt, that there would be an appeal, in which he said there were no material facts in dispute, and the substantial issue was whether the agreement to which I shall shortly refer operated as a tenanoy agreement or merely as a licence. The learned County Court Judge held that it was a lease, and from that decision the landlord appeals. Mr. Megarry appeared for the owner, and the licensee or lessee was not represented; but Mr. Megarry drew our attention to any authorities which could have any possible application, and put the argument and issues clearly before us.

2

There were a number of cases, as I have said, referred to, and the learned Judge himself referred to an unreported decision of this Court, to one passage in which I will refer later. As a rule these agreements are in somewhat different terms and deal with different matters in different ways; and what one has to do is to construe the agreement which is before the Court. The agreement was made on the 7th August 1948, between Mr. Domenico Facchini and Mr. Bryson as employer and employee. The agreement recites "This agreement is made the 7th day of August, 1948, between Domenico Facchini of Front Street Wingate in the County of Durham Ice-cream manufacturer (hereinafter called 'the employer'), of the one part and George Bryson of Front Street Wingate aforesaid (hereinafter called 'the assistant'), of the other part, whereby it is agreed between the parties as follows: 1. The assistant will faithfully serve the employer in his business of an Ice-cream manufacturer confectioner and tobacconist and will during the continuance of this agreement give his whole time to the conduct of the business performing all such acts matters and things in about or relating thereto as the employer shall from time to time direct". Mr. Megarry referred to this as a service agreement, and that clause and a later clause I shall cometo deal with the service relationship. It would not on the face of it appear to be a complete setting out of the terms of the agreement, because it says nothing as to remuneration. "2. The employer will permit the assistant during the continuance of this agreement and by virtue of his appointment to occupy the dwelling house and premises situate and being in Front Street Wingate aforesaid but nothing in this agreement shall be construed to create a tenancy between the employer and the assistant". It is on those last few lines that Mr. Megarry in the main relies in supp ort of his argument that this should be treated as a licence. "3. The assistant will (a) Keep the interior and fixtures of the said premises in clean condition and in such condition to yield up the same at the end of the tenancy and make good any damage to the premises or the windows sanitary arrangements fittings or fixtures thereof caused by the wilful or neglectful act or omission of the assistant or any member of his family or household and that in...

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