Kirwan v Daniel
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1006
HIGH COURT OF CHANCERY
S. C. 16 L. J. Ch. 191; 11 Jur. 235.
[493] kirwan v. daniel. Feb. 26, 27, March 17, 1847. [S. C. 16 L. J. Ch. 191; 11 Jur. 235.] The Plaintiff being entitled to an annuity of 300, charged upon plantations in the West Indies, belonging to K., entered (as agent for K.) into an agreement with IX, by which D., in consideration of having the produce consigned to him until his SHAKE, 494. KIRWAN V. DANIEL 1007 advances were satisfied, was to ship supplies to the plantations, and honour bills drawn upon him D. by K. for the expenses of management, and also to pay the Plaintiff's annuity. The consignments were made, and D. paid the Plaintiff's annuity for one year, and then discontinued the payment, although he received subsequent consignments. The bill prayed that D. might be ordered to pay the annuity so long as he continued to receive the consignments. Held, on demurrer, that, without deciding whether the Plaintiff could (with reference to the decision in the case of Gfarrard v. Lord Lauderdale) sustain a suit to enforce the agreement as against D., D. could not, after the payment of the annuity which he had made under the contract, withhold from the Plaintiff the benefit of the contract for the further payment of the annuity. The bill, which was filed in December 1846 by Matthew Kirwan against Thomas and John Daniel, John Francis Kirwan, M. Hale and H. Smith, stated an indenture, dated in March 1841, made between the Plaintiff of the first part, John Francis Kirwan of the second part, and M. Hale and H. Smith of the third part, whereby, for certain considerations, and among others in consideration of an annuity of 300 to the Plaintiff for his life, and another annuity of 100 to Sarah Kirwan, commencing at the decease of the Plaintiff, for her life (which annuities John Francis Kirwan covenanted to pay), certain plantations in Montserrat were conveyed to M. Hale and H. Smith and their heirs, to the use and intent that the Plaintiff and Sarah Kirwan might receive and take out of the said plantations such several annuities as the same should become due; and subject to the said charges and certain other charges thereon, to the use of John Francis Kirwan, his heirs and assigns. The bill then stated that in October 1841 John Francis Kirwan, who had entered into possession of the plantations, was desirous of making an arrangement with some mercantile house in London for consigning to them the produce, such mercantile house undertaking to ship the supplies required from this country for the use of the plantations, to provide for the payment of a rent of 200 per annum, to which an estate called " Old Eoad," in the possession of John Francis Kirwan, was subject, [494] and also to provide for the payment of the said annuity to the Plaintiff: that the Plaintiff was empowered by John Francis Kirwan to enter into such arrangement and agreement, and that the Defendants, Thomas Daniel and John Daniel, carrying on business as merchants in London, under the firm of Thomas Daniel & Co., being desirous of becoming consignees of the produce of the plantations, and willing, in consideration thereof, to undertake to ship the necessary supplies for the same, and to provide for the payment of the rent of 200, and of the Plaintiff's annuity of 300, and also to honour the bills which might be drawn by John Francis Kirwan for the proper cultivation and management of the plantations, the following agreement was entered into between and by the Plaintiff, as such agent of the said John Francis Kirwan, duly authorised as aforesaid, "and also on his own behalf, in respect of his said annuity of 300, charged on the said plantations, comprised in the said indenture of March 1841," and N. & H. Mayo, another firm, West India brokers, who claimed some lien on the plantations and the Defendants, Daniel & Co.:- "London, 29th of October 1841.-It was agreed between John Francis Kirwan, Esq., of Montserrat, represented by his uncle, Matthew Kirwan, Esq., of Brighton, at present in London, and Messrs. N. & H. Mayo, and Messrs. Thomas Daniel & Co., of Mincing Lane, London, that Messrs. Daniel & Co. shall honour the bills drawn by Mr. J. F. Kirwan, of Montserrat, for the proper cultivation and maintenance of the three estates, viz., Farm, Waterwork and Old Eoad, in the said island ; and also that they should ship such supplies as may be required from this country for the said properties; and pay Mr. Matthew Kirwan quarterly, commencing from the 1st of October now last past, 75, in discharge of his annuity of 300 secured on the estates Farm and Waterwork, the [495] which produce of the said three estates to be sent to Daniel & Co. in repayment of such advances, and until the same are fully liquidated they, T. D. & Co., undertaking, should there be a surplus in their hands after the said liquidation, to pay over the said surplus to N. & H. Mayo, in part-payment of interest and principal of a claim they have by assignment from W. Jenkins against the estates Farm and Waterwork; but N. & H. Mayo are not precluded from hereafter taking 1008 KIRWAM V. DANIEL 5 HARE, 496. other steps for realizing their claim should they have reason to be dissatisfied with the working of the present scheme. Signed-Matthew Kirwan,' N. & H. Mayo, Thomas Daniel & Co." The bill stated that, in pursuance of the said agreement, the Defendant, John Francis Kirwan, had, from and since the date thereof, consigned and still continued to consign to the Defendants, Daniel & Co.-who had from time to time duly received -the produce of the plantations: that the Defendants, Daniel & Co., duly paid to the Plaintiff the four quarterly payments, which became due in respect of the said annuity of 300, to the 1st of October 1842; but that, since that date, they had not made any payment to the Plaintiff in respect thereof, with the exception of three sums, .making together 125 ; but the Plaintiff had in June 1845 received from John Francis Kirwan a sum of 105 in respect of the arrears of the annuity : that a large sum of money was then due to the Plaintiff in respect of such arrears, and the Defendants, Daniel & Co., had refused to pay such arrears, or to provide for the future payment of the said annuity to the Plaintiff. The bill charged that, according to the true construction of the agreement, Daniel & Co. were bound to pay the annuity to the Plaintiff so long as they should receive [496] the consignments of produce, without reference to the value or amount of such consignments; but which, however, the bill alleged were sufficient. The bill prayed an account of what was due to the Plaintiff for the arrears of the annuity, and that Daniel & Co. might be ordered to pay the same, and also to continue the payment of the annuity quarterly during such time as they should continue to receive the produce of the plantations. Messrs. Daniel & Co. demurred for want of equity. Mr. Eolt and Mr. Dickinson, for the demurrer. It is not competent to the Plaintiff to establish an interest in the agreement by alleging that it was made by him, not only as the agent of John Francis Kirwan, but also on his own behalf. The terms of the agreement, and the parties entitled to the benefit of it, must be found on the agreement itself, and to that agreement it appears that the Plaintiff is no party except in his character of agent. The Plaintiff has no interest in the agreement made between John Francis Kirwan and Daniel & Co.: Garrard v. Lord Lauderdale (3 Sim. 1), Walwyn v. Coutts (3 Sim. 14; S. C. 3 Mer. 707), Malcolm v. Scott (3 Hare, 39). The fact that the Plaintiff, being the agent of the transaction, had notice of the terms of the agreement, and might have expected or relied upon receiving the annuity, does not give him a right to sue upon the agreement: Garrard v. Lord Lauderdale, Acton v. Woodgate (2 Myl. & K. 492), Scott v. Porcher (3 Mer. 652). In the case of Fitzgerald v. Stewart (3 Sim. 333; S. C. 2 Euss. & Myl. 457) the bill charged [497] that the Defendants intended to apply the funds remitted to meet the Plaintiff's demand, in satisfaction of their claims upon a party who had been a receiver of the estates, and with whom they had had large mercantile transactions. That case does not establish the proposition that the mere payment of part of the claim of a creditor renders the party who makes the payment a trustee for the creditor of so much of the fund in his hand as shall be sufficient to satisfy the debt: Browne, v. Cavendish (1 Jones & La. 606). Mr. Romilly and Mr. Heathfield. The bill states that the agreement was made by the Plaintiff, on his own behalf, as well as on behalf of the other party; and that statement must, for the purposes of the demurrer, be taken as true: it must be taken as a fact, added to the written contract. Taking the contract, simply as expressed in the written agreement, still, after the payment of the annuity by Messrs. Daniel & Co. for a considerable time in pursuance of the contract, they could not hold the consignments, and refuse to perform the other part of their agreement, by continuing to make the payment: Fitzgerald v. Stewart, Burn v. Carvalho (4 Myl. & Cr. 690), Lilly v. Hays (5 Adol. & El. 548), Hutchinson v. Heyworth (9 Adol. & El. 375), Miln v. Walton (2 Y. & C. C. C. 354). They cited also Wilding v. Richards (1 Coll. 655). the vice-chancellor [Sir James Wigram] (after adverting to the opinion he had expressed on the case at the close of the argument). The facts of this case are these :-John Francis Kirwan was the owner of some plantations in Montserrat, [498] in the West Indies; he was the nephew of the Plaintiff, and the Plaintiff was his agent. The Plaintiff was entitled to an annuity of 300, payable out of the 5 HAKE, 499. KIRWAN V. DANIEL 1009 plantations in question. John Francis Kirwan was desirous of making arrangements with some one in this country to send out supplies to the...
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