De Mattos v Gibson. [BEFORE THE LORDS JUSTICES. BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.]
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 1859 |
| Date | 27 May 1859 |
| Court | Obsolete Court (UK) |
English Reports Citation: 45 E.R. 108
BEFORE THE LORDS JUSTICES. BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.
S. C. 28 L. J. Ch. 165, 498; 5 Jur. (N. S.), 347, 555; 7 W. R. 100, 152, 403, 514. See Adamson v. Gill, 1868, 17 L. T. 465; Catt v. Tourle, 1869, L. R. 4 Ch. 657; Greenhill v. Isle of Wight Railway Company, 1871, 23 L. T. 888; Montague v. Flockton, 1873, L. R. 16 Eq. 200; Luker v. Dennis, 1877, 7 Ch. D. 236; Formby v. Barker [1903], 2 Ch. 553.
4DEG. &J. 274. FOWLER V. FOWLER Irnham v. Child (1 Bro. C. C. 93), says, " The difficulty of proving that there been a mistake in a deed is so great, that there is no instance of its prevailing gai a party insisting that there was no mistake." And Lord Eldon, in Imrqwis of Tmvnshetnd v. Stangroom (6 Ves. 334), after observing that Lord Thurlow seemed to say that the proof must satisfy the Court what was the concurrent intention of all the parties, adds, " And it must never be forgot to [274] what extent the Defendant, one of the parties, admits or denies the intention. Under all these circumstances, therefore, I cannot bring myself to the conclusion that the schedule is contrary to the concurrent intention of both the parties, and I must therefore decline to hazard the exercise of a jurisdiction by which I might be imposing a different agreement upon one of them, at least from that which he has deliberately executed. I might leave the case here, but I think it right to advert to two other points which have been pressed upon me as objections to reforming this deed. It is said, in answer to the Plaintiff's claim to have the deed rectified, you must not only prove that there has been a mistake, but you must also be able to shew clearly what ought to l)e the amended form of the deed. In this case it was apparently the object of the parties that all Mrs. Fowler's property at least should be taken into account on calculating the amount to which Robert Cook Fowler would be entitled; but some part of it (not a very large part) has been omitted. Is the schedule to be rectified, not merely by removing from it all the particulars which relate to Mr. Fowler's property, but by inserting this omitted part of Mrs. Fowler's property, as to which the mistake is more clear than as to the other? I asked for some explanation of the views of the Plaintiff's counsel upon this difficulty in the course of the argument, but received no satisfactory answer. The other paint which was urged by the Defendants seems to me to present a formidable obstacle to an application to rectify this deed, viz., that it is impossible to place the parties in the same position in which they stood at the time of its execution. On the 20th of [275] June 1843, the very day after the deed of arrangement was executed, Mrs. Fowler made a codicil to her will referring to the deed and making new arrangements and dispositions of her property, which were expressly founded upon it. The greatest injustice might, therefore, be done to Robert Cook Fowler by any alteration of the deed unless it could be clearly shewn that he, as well as his mother, distinctly understood that it was intended to be in the precise form to which it is proposed it should now be brought. There is only one other matter to he disposed of. The Defendant Robert Cook Fowler claims to have interest on the sum which may be found to be due to him under the covenant in the deed, to be reckoned from the period of twelve months after Mrs. Fowler's death. The Vice-Chancellor thought that he was not entitled to any interest until the decree. The right to interest from the earlier period has 1 een insisted upon, either from the rule adopted by the Court of Chancery in conformity with the 28th section of 3 & 4 Will. 4, c. 42, by which juries are allowed to give interest upon "all debts or sums certain, payable at a certain time or otherwise," or upon the general authority of the Court over the subject of interest. Upon the first ground I am clearly of opinion that the " sum of money which, upon au account to be taken, shall be found to be the amount which Robert Cook Fowler would have been entitled to under his mother's will and codicils " is not a debt, nor even a sum certain, till the amount of it is ascertained by taking the account, and consequently, by analogy to the Act of Parliament, that interest ought not to be allowed ; and if the right to interest is excluded, and it is to be referred to my judicial discretion, I see no reason, under all the circumstances, why I should give interest from an earlier period than that which has been [276] directed by the Vice-Chancellor. I think that the order made by His Honour must be affirmed in all respects. Appeal dismissed, with costs. -^, DE MATTOS V. GIBSON 4 BE 0. & J. 276. j*.'iaftt, i2.-,.i -','-.'- 1 ' [2783_ de mattos v. gibson. Before the Lords Justices. Dec. 17, 18, 1858. Btfore the Lord Chancellor Lord Chelmsford. May 6, 7, 9, 27, 1859. [S. C. 28 L. J. Ch. 165, 498; 5 Jur. (N. S.), 347, 555; 7 W. E. 100, 152, 403, 514. See Adanison v. Gill, 1868, 17 L. T. 465; Gait v. Tomie, 1869, L. R. 4 Ch. 657 ; Greenhillv. Me of flight Railway Company, 1871, 23 L. T. 888 ; Momtague v. Flockicm, 1873, L. R. 16 Eq. 200; Inker v. Dennis, 1877, 7 Ch. D. 236; Formby v. 5arfej' [1903], 2 Ch. 553.] Where property, either immoveable or moveable, is disposed of with notice of a prior contract entered into by the person disposing of it for its use in a particular manner, the person taking it with such notice may be restrained from using it otherwise. The Court will not affirmatively enforce a charter-party, but it is implied in such a contract, that if the charterer provides a cargo, the ship shall not be employed for any other purpose; and a mortgagee, with notice of a prior charter-party effected with the mortgagor, will be in general restrained from doing anything to prevent its performance. Where, however, the mortgagor in such case was unable to pub the ship into proper repair to make the voyage, or otherwise to perform the contract, and the charterer took no step for several months with respect to it: Held, that the mortgagee ought not to be further restrained from exercising the powers contained in his mortgage. This case first came on to be heard before the Lords Justices upon an appeal on the part of the Plaintiff from the refusal by Vice-Chancellor Wood, on the 25th of November L858, of a motion for an injunction to restrain the Defendant George Tallentire Gibson, and all persons claiming through or under him, from removing a vessel called the "Allerton" to Newcastle, or otherwise interfering to interrupt a voyage mentioned in the bill, or from selling, transferring or otherwise disposing of the vessel otherwise than subject to the burthen of a charter-party of the 23d of October 1857. The bill and the affidavits in support of the motion stated, that by a charter-party dated the 23d of October 1857, and made between Henry Trewitt Curry, one of the Defendants, described as the owner of the " Aller-[277]-ton," then in the port of Seldhis,, of the on&part, and the Plaintiff of the other*part, it was agreed that the " Allerton " should load a cargo of coal at one of the collieries in the river Tyne, and being so loaded should proceed to Suez and deliver the same. The freight to be paid at the rate of £60 per keel of 21 tons 4 cwt.; one-third by charterer's acceptance at three months, and one-third by like acceptance at six months from the sailing of the vessel from, her loading port, and the remainder on the right delivery of the cargo. That when the charter-party was entered into the Defendant Curry was acting as owner, and was in possession of the vessel under a contract for the purchase of her. That a considerable delay took place in the completion of the purchase, and that in consequence, thereof a corresponding delay was occasioned in the dispatch of the vessel from her port of lading. That on the 6th of January 1858, the Defendant Curry became the registered owner of the vessel, and that on the 12th of January 1858, he mortgaged her to the Defendant Gibson to secure a sum of £1500 and interest, and that the mortgage was registered on the 20th of the same month. That previously to and at the date of the mortgage the Defendant Gibson had full notice of the charter-party, and, in fact, advanced the sum intended to be secured by the mortgage in order to enable the Defendant Curry to perform the charter-party and earn the freight made payable thereby. That shortly afterwards the vessel was dispatched with a cargo of coal on her voyage to Suez, and that there-[278]-upon the Plaintiff' accepted bills drawn by Curry for £980, 8s., being the amount payable under the charter-party, which bills were discounted, and the amount of them was paid over to Gibson, or was under some arrangement with him, and by his direction applied to the discharge of part of the purchase-money of the vessel. That the vessel met with bad weather in the Channel, and being much damaged 4DEO. &J.379. DE MATTOS V. GIBSON 109 was obliged to put into Penzance for repairs, at which port she was when the bill was filed, in the hands of Mr. W. D. Matthews, a shipwright, who claimed a lien upon her for the value of the repairs. That Gibson threatened and intended to sell the vessel under his power of sale without reference to her engagement under the charter-party, and that with that view he sent instructions to Matthews to allow her to be removed out of dock and sent back to Newcastle-upon-Tyne as soon as the repairs were completed, which would be in a few days. The prayer of the bill was, that it might be declared that the charter-party of the 23cl of October 1857, ought to be specifically performed, and that the Defendant Curry might be decreed to perform it accordingly, the Plaintiff submitting to perform the same on his part...
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