Joscelyne v Nissen

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE RUSSELL,LORD JUSTICE SACHS
Judgment Date19 Dec 1969
Judgment citation (vLex)[1969] EWCA Civ J1219-3
Docket NumberPlaint No. X 2417

[1969] EWCA Civ J1219-3

In The Supreme Court of Judicature

Court of Appeal

(On Appeal from His Honour Judge Granville-Smith, O.B.E. at Edmonton County Court)

Before:

Lord Justice Russell

Lord Justice Sachs and

Lord Justice Phillimore

Plaint No. X 2417
Before:
Laurence Henry Prince Joscblyne
(Plaintiff) (Respondent)
and
Margaret Ellen Nissen
(First Defendant)
and
Christopher Nissen
(Second Defendant) (Appellants)

MR KENNETH ZUCKER (instructed by Messrs Baylis Pearce McMillan & Mott) appeared on behalf of the Appellants.

MR RODNEY BAX, Q.C. AND MR DEREK WOOD (instructed by Messrs Craigen, Wilders & Sorrell) appeared on behalf of the Respondent.

1

LORD JUSTICE RUSSBLL: The judgment I am about to read is the judgment of the Court.

2

This is an unhappy dispute between father and daughter which has led to an investigation into differing expressions of judicial views upon whet is required before a contractual instrument may be rectified by the Court.

3

The father (with the mother) were living as tenants of a house called "Martindale" in Enfield. He carried on from there and from an office at the nearest railway station a car hire business both self-drive and chauffeur driven, the cars being garpged at "Martindale". He in 1960 was given notice to quit. The daughter and her husband lived in a house belonging to her husband also in Enfield. To help her parents in their difficulty the daughter bought "Martindale" with the help of a mortgage, let her husband's house furnished to pay off the mortgage installments, and moved to "Martindale". The father and mother lived in the ground floor, the daughter and son-in-law on the first floor. Each floor had its own kitchen and bathroom facilities. The daughter helped with the car hire business to some extent. In 1963 the mother was seriously ill with two strokes, returning from hospital in January, 1964, unable to look after herself. The father even with the aid of a home help had to devote much of his time to looking after her, his business was suffering as a result, and he felt that he could not really carry on. Because of this he and the daughter discussed a scheme by which she should take over the business, a scheme that culminated in the signing by them of an agreement on 18th June, 1964.

4

For the present purposes it is sufficient to say that it was found by the County Court judge that at an early stage it was made clear between them in conversation that if the business and its assets were, as proposed, made over to the daughter she should in return pay him a weekly pension tosupplement his old age pension and in addition pay the expenses in connection with "Martindale" attributable to the parents' part of the house, and that these expenses should include the gas, electricity and coal bills and also the cost of the necessary home help. It is not before this Court disputed that it was expressly agreed and intended that these particular items should be paid for by the daughter as such expenses and that they negotiated upon that footing: it is not disputed that father and daughter continued in this expressed accord thereafter and when they signed the agreement still intended that it should provide for such payment.

5

It is however argued for the daughter that the contract signed did not on its true construction provide for payment of these matters and that since there was here no complete concluded contract antecedent to the written agreement then in point of law the remedy of rectification is not available to the father.

6

The various steps leading to the signing of the agreement need not be detailed, since they do not touch on the particular matters. The agreement signed was in the following form. It was made between the father and the daughter and said: "Whereby it is agreed as follows: (1) Mrs Nissen" — that is, the daughter "shall be deemed to have taken over from Mr Joscelyne" — that is, the father — "the business of a car hire proprietor hitherto carried on by Mr Joscelyne under the etyleof Station Hire from "Martindale" Stanley Road Enfield aforesaid under the style of 'Station Cars' as from the 1st May 1963. (2) Mrs Nissen shall be deemed to have taken over all the assets and liabilities of the business of self drive and chauffeur driven car hire carried on under the style and from the premises aforesaid as from the said 1st May 1963. (3) Mrs Nissen shall indemnify Mr Joscelyne and His estate and effects from any claim or payment made in respect of the liabilities of the said business including all past or futureclaims in respect of income tax and or surtax arising in respect of the business. (4) In consideration of the transfer of the assets of the self drive and chauffeur driven portion of the said business Mrs Nissen shall pay by way of a pension to Mr Joscelyne (such pension to be payable for the life of Mr Joscelyne or the duration of the business) the sum of £3. 10s.0d. per week. (5) Mr Joscelyne shall be permitted to have the use of any of the cars of the business when not needed for business work and to carry out driving work for Mrs Nissen subject to payment to him of one fifth of the charge-made to each customer. (6) Mrs Nissen shall discharge all expenses in connection with the whole premises 'Martindale' Stanley Road Enfield aforesaid and shall indemnify Mr Joscelyne from and against any claim arising in respect of the same. (7) Mrs Nissen shall permit Mr Joseelyne during his life to have the uncontrolled right to reside at and occupy the ground floor of 'Martindale' Stanley Road Enfield aforesaid or such other property as may be agreed upon in writing free of all rent and outgoings of every kind in any event. (8) Mrs Nissen shall be entitled to at least three annual weeks holiday in each year. (9) Mr Joscelyre shall be entitled to at least three weeks annual holiday in each year. (10) Mrs Nissen hereby agrees with Mr Joscelyne that she will not at any time sell the whole or any part of the said business Mr Joscelyne receiving one half of the sale moneys or otherwise deal with the same or take in a partner without the consent of Mr Joscelyne which consent may be arbitrarily withhold by Mr Joscelyne without assigning any reason therefor."

7

For a time all went under the agreement, the daughter paying the gas and coal and electricity bills attributable to the ground floor and also the weekly cost of the home help, in addition to the pension of £3.10.0d, weekly, but of course taking the profits of the business. (There were separate gas meters for the two floors: but the ground floor electricitymeter carried the electricity for the garage while we were told the first floor electricity meter carried the current for the ground floor immersion heater.) Trouble then arose because of incursions on the ground floor of drivers and customers of the business. It was suggested that the parents move upstairs and the daughter and son-in-law downstairs, in variation of the agreement. The parents refused because of the mother's difficulty in movement. The father went away for holiday and on his return found that the mother and all their belongings had been moved upstairs behind his back. The fat was in the fire, proceedings started in the county court, and the status quo was restored as a result of interlocutory proceedings. However the daughter was no doubt then advised that the language of the agreement did not require her to pay for the items that we have mentioned and she stopped doing so, (As indicated, she necessarily continued to pay for the parents' immersion heater: the father necessarily paid for the garage electricity: though who was the gainer by this is not known).

8

The father to meet this new attitude amended his particulars of claim to raise this point either as a matter of construction or by way of rectification. The county court Judge decided against the father on construction but in his favour on rectification. A cross-appeal by the father on the question of construction was not pursued. The relevant facts on the question of rectification we have already stated.

9

For the daughter it is argued that the law says that the father cannot get rectification of the written instrument save to accord with a complete antecedent concluded oral contract with the daughter, and as was found by the judge there was none such here. For the father it is argued that if in the course of negotiation a firm accord has been expressly reached on a particular term of the proposed contract, and both parties continue minded that the contract should contain appropriatelanguage to embrace that term, it matters not that the accord was not part of a complete antecedent concluded oral contract.

10

The point of law has a curious judicial history, involving apparently the disappearance from professional sight of the case in the Court of Appeal of Lovell and Christmas Ltd. v. Wall, (1911) 104 Law Times, 85 and 27 T.L.R. 236 until its existence was recognised in the judgment of Lord Justice Denning in Rose v. Pirn (1953) 2 Queen's Bench, 450, apart from a passing reference at 107 Law Times, page 16, by Mr Justice Eve, who had been the trial judge in the Lovell v. Christmas case.

11

It is convenient to start with the case of Mackenzie v. Coulson (1869) 8 Equity, 368, a decision of Vice-Chancellor James. There a policy of insurance was in terms in accordance with the wishes of the assured and the insurers sought rectification based on an insurance slip which is not a contract: the facts are a little complicated but it would seem that the insurers sought to impute to the assured an intention (and mistake) based on knowledge of a junior clerk of an agent of the assured of the contents of the slip. He should has thought this a difficult proposition to sustain. In deciding against rectification the Vice-Chancellor used this language: "Courts of Equity do not rectify contracts; they may and do rectify instruments purporting...

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