Lovesy v Palmer
| Jurisdiction | England & Wales |
| Date | 1916 |
| Year | 1916 |
| Court | Chancery Division |
Vendor and Purchaser - Contract - Specific Performance - Lease - Name of proposed Lessee - Contract by Agent - Agent not liable as one of Contracting Parties - Right of Principal to sue -
Where a contract to which s. 4 of the Statute of Frauds applies has been made by an agent in such terms that the agent is not himself liable as one of the contracting parties, the principal can sue on it only if his name appears in the memorandum of the contract or his identity from the description of him therein appearing cannot fairly be disputed.
Rossiter v. Miller (
Filby v. Hounsell [
WITNESS ACTION.
This was an action by Charles Warren Lovesy against George Palmer and Harold Fitch Kemp claiming by their writ a declaration that there was a binding contract between the defendants and the plaintiff to grant to a company then being formed by the plaintiff a lease of the Coronet Theatre, Notting Hill Gate, in the county of London, in the terms of certain agreed heads of lease and draft lease, and for specific performance of the said contract.
The defendants were trustees for the debenture-holders of Saunders Theatres, Limited, and as such held a lease of the theatre which they were desirous of selling or leasing.
A preliminary interview with reference to a grant of a lease by the defendants took place between W. H. Chantrey (the defendants' receiver), the plaintiff, and Hugh V. Harraway, the plaintiff's solicitor. This was followed by interviews between the defendants and Harraway, who had full authority to act on behalf of the plaintiff. At an interview on November 29, 1915, the matter was fully discussed and terms of a proposed lease agreed in outline, and the defendants then handed the matter over to their solicitors, Messrs. Oldfields.
Messrs. Oldfields then prepared and sent to Harraway a document headed “Memorandum of proposed heads of lease by the trustees for debenture-holders to Mr. Lovesy.” Harraway returned these heads with various alterations, and amongst others he struck out the name of the plaintiff as lessee and substituted the word “company.” A second edition of these heads passed between the solicitors, and then a third edition, and ultimately this third edition was agreed by correspondence with certain alterations. The heading of this third edition was “Coronet Theatre. Memorandum of proposed heads of lease by the trustees for debenture-holders,” and the first clause was as follows:– “(1.) The lease to be granted to a company to be formed, the trustees to be satisfied that sufficient working capital will be available.” A draft of the proposed lease was then prepared by the defendants' solicitors and passed backwards and forwards between them and Harraway and was ultimately agreed or approved. This draft lease was expressed to be made between the defendants of the one part and “whose registered offices are at (hereinafter called ‘the lessee’) of the other part.”
Except in the first edition of the heads of lease as originally drawn and in the letter from Messrs. Oldfields to Harraway dated November 29, 1915, enclosing the same, the plaintiff's name was not mentioned in the correspondence between Oldfields and Harraway or in the heads of the proposed lease. The letters referred generally to Harraway's “clients” in the plural, though on some occasions the expression used was “client.”
The defendants ultimately refused to grant a lease on various grounds, and this action was brought.
The plaintiff relied on, as constituting a concluded contract, the third edition of the heads of the proposed lease with the letters agreeing the same, and, alternatively, the draft lease and the letters referring thereto, and alleged that Harraway was the plaintiff's agent. The defendants in their defence denied that there ever was any concluded contract, and also relied on the Statute of Frauds. The plaintiff by his reply relied on, as additional memoranda under the Statute of Frauds, certain letters and documents which had passed between the defendants and their solicitors in which the plaintiff's name was mentioned.
Harraway had on February 26, 1916, registered a company called C. T., Limited, and the plaintiff put forward that company as the company to take the lease.
The evidence showed that Harraway was throughout the matter corresponding with various persons with a view to their taking up shares in the company when formed; but he and the plaintiff were both called as witnesses and stated that the plaintiff was throughout the transaction Harraway's only client. This evidence was objected to by the defendants, but was admitted de bene esse.
Clauson, K.C., and Wilfrid M. Hunt, for the plaintiff. It is submitted that there was a concluded contract on two occasions – (1.) when the third edition of the heads of the proposed lease was agreed and (2.) when the draft lease was agreed — and that these documents with the letters referring thereto are a sufficient memorandum within the Statute of Frauds. Harraway's name appears in the documents, and parol evidence is admissible to show who the principal was: Filby v. Hounsell.F1
H. Terrell, K.C., and Fairfax Luxmoore, for the defendants. It is submitted that there never was at any time a concluded contract between the parties. It is clear on the correspondence that there was not a concluded contract on November 29, 1915, because negotiations continued after that date. Where on the correspondence you find a concluded agreement but the parties continue to negotiate, the agreement is treated as negotiation only, and there is no concluded contract: Hussey v. Horne-Payne.F2 The correspondence leaves it quite open who were the parties to the alleged contract. Nowhere in the correspondence, except in the letter of December 2, 1915, or in the documents relied on, is the plaintiff's name mentioned.
[Clauson, K.C., referred to Barkworth v. Young.F3]
Further, there is no contract or memorandum sufficient to satisfy the Statute of Frauds. To succeed the plaintiff must be able to point to a document signed by the defendants or their duly authorized agents, and there is no such document. This is not a case in which specific performance could be decreed. The Court could not require the plaintiff to form a company to take a lease of the theatre. The equitable jurisdiction of specific performance is limited to cases where there is mutuality: Fry on Specific Performance, 5th ed. p. 231.
[YOUNGER J. There need not be mutuality of remedy although no doubt there must be mutuality of obligation.]
In any event the plaintiff cannot obtain specific performance in this case. Filby v. HounsellF4, on which the plaintiff relies as supporting his contention that parol evidence is admissible to prove that the plaintiff was Harraway's principal, is distinguishable. There the Court found as a fact that a contract had been entered into by Jolly as agent for an undisclosed principal. What was there dealt with was the offer. From that point of view it was a case of an undisclosed principal. The only question which had there to be considered was the offer. The acceptance might have been verbal.
[YOUNGER J. Mr. Beddall in that case seems to...
To continue reading
Request your trial
-
Davies v Sweet
...Lordships agree with this interpretation of Filby v. Honnsell, and they are unable to find either in that case so interpreted or in Lovesy v. Palmer anything to justify the distinction stated in the passage quoted from the Judgment in Smith-Bird v. Blower. Those cases decide that to satisfy......
-
Dumford Trading AG v OAO Atlantrybflot
...be dealing with this by way of summary disposal. The analysis is not made any easier by the requirements of the Statute of Frauds: see Lovesy v. Palmer [1916] 2 Ch 233, referred to in Shogun at para 158. 38 In truth, the boundaries of the doctrines of misnomer, of the use of matrix or extr......
-
Shogun Finance Ltd v Hudson
...could not intervene to claim that he was the true party to the contract when this was not consistent with the terms of the memorandum: Lovesy v Palmer [1916] 2 Ch 233; Basma v Weekes [1950] AC 441. 159 In the field of agency, an undisclosed principal will not be permitted to claim to be par......
-
Keena v Promontoria (Aran Ltd) and Others
...rendered herself liable as a contracting party. Her right to sue and be sued derived from her execution of the receipt or memorandum per Lovesy v Palmer [1916] 2 Ch. 233, which is authority for the proposition stated in the headnote that “ the principal can sue on it [the contract] only if......