Mayson v Clouet

JurisdictionUK Non-devolved
Judgment Date1924
Date1924
CourtPrivy Council
[PRIVY COUNCIL.] MAYSON APPELLANT; AND CLOUET AND ANOTHER RESPONDENTS. ON APPEAL FROM THE SUPREME COURT OF THE STRAITS SETTLEMENTS, SINGAPORE. 1924 May 30. LORD DUNEDIN, LORD PHILLIMORE, and LORD CARSON.

Vendor and Purchaser - Purchaser failing to pay Balance of Price - Rescission by Vendor - Claim to recover Instalments of Price - Construction of Contract.

A contract for the sale of land provided that a deposit should be paid immediately, that two instalments of cash, being 10 per cent. of the rest of the agreed price, should be paid at certain dates, and that the balance of the price should be paid within ten days of the production of a certificate that certain buildings upon the land were completed; if the purchaser failed to comply with the conditions of the contract his deposit might be forfeited and the land resold. The purchaser paid the deposit and the two instalments, but failed to pay the balance of the price at the stipulated time. The vendor rescinded the contract. In an action claiming a return of the instalments paid:—

Held, that the rights of the parties depended upon the contract; and that, although the purchaser was in default, the instalments were recoverable, since the contract distinguished between the deposit and the instalments and provided for a forfeiture of the deposit only.

Howe v. Smith (1884) 27 Ch. D. 89 approved and applied.

Dictum of Bankes L.J. in Harrison v. Holland [1922] 1 K. B. 211, 213 disapproved.

Judgment of the Supreme Court reversed.

APPEAL (No. 147 of 1923) from a judgment of the Supreme Court of the Straits Settlements, Settlement of Singapore, dated December 14, 1922, affirming a judgment of Shaw C.J.

The action was brought by the Official Assignee, for whom the present appellant was substituted, against the respondents to recover $50,000 paid to the respondents on account of the purchase price for certain land agreed to be sold to one Sim Choon Kee, deceased, less a sum due to the respondents for interest.

The facts of the case, including the material terms of the contract of sale, appear from the judgment of the Judicial Committee.

The action was heard by Shaw C.J. and was dismissed; upon appeal the judgment of the learned Chief Justice was affirmed. The grounds of the decisions are stated in the present judgment.

1924. May 8, 9. Luxmoore K.C. and A. Underhill for the appellant. Upon the purchaser failing to pay the balance of the price when due the vendor could elect either to treat the contract as rescinded or as subsisting: Johnstone v. Milling.F1 By the letter of December they elected to rescind. Having done so they are not entitled to retain the instalments. It is conceded that the deposit is not recoverable: Palmer v. TempleF2; Ex parte Barrell.F3 But the instalments were not part of the deposit, and those decisions have no application. The rights of the parties depend upon the contract: Howe v. SmithF4; it provides that on default by the purchaser the deposit may be retained, but makes no similar provision as to the instalments. There is no decision which decides that a purchaser in default cannot recover an instalment of the price paid by him. Two dicta were relied on in support of that view, but they are erroneous; the first was by Cozens-Hardy J. in Cornwall v. HensonF5, and the second by Bankes L.J. in Harrison v. Holland.F6 The first dictum was founded upon Whincup v. HughesF7, but that was a case of impossibility of performance, not of rescission; the dictum does not seem to have been approved upon appeal.F8

Upjohn K.C. and Harman for the respondents. The purchaser having repudiated the contract by not paying the balance of price cannot recover the instalments. His only right is to apply for relief from a forfeiture, as in Steedman v. Drinkle.F9 Even if the vendor rescinded, the contract cannot be treated as if it had not existed; the payment of instalments was provided for the purpose of the building operations. The correspondence shows that the vendors did not elect finally to rescind. The observations of Cozens-Hardy J. in Cornwall v. HensonF10 cannot be regarded as obiter; his judgment was affirmed on appealF11 without disapproval of the observations, which were followed in effect by Bankes L.J. in Harrison v. Holland.F12

Luxmoore K.C. replied.

May 30. The judgment of their Lordships was delivered by

LORD DUNEDIN. On September 11, 1919, the respondents, who were owners of a piece of ground in...

To continue reading

Request your trial
81 cases
4 books & journal articles
  • Restitution
    • Singapore
    • Singapore Academy of Law Annual Review No. 2007, December 2007
    • 1 décembre 2007
    ...on the facts in Energy Shipping Co Ltd v UDL Shipping (Singapore) Pte Ltd[1995] 3 SLR 25 (CA) at [36]—[40]. See also Mayson v Clouet[1924] 1 AC 980 (PC Singapore)). 20.7 Perhaps more interesting is the observation that in appropriate cases, the loss suffered by the party in breach could be ......
  • Restitution and Disgorgement
    • Canada
    • Irwin Books The Law of Contracts. Third Edition Remedies
    • 4 août 2020
    ...82 Workers Trust & Merchant Bank Ltd v Dojap Investments Ltd , [1993] AC 573 (PC). 83 [1939] 1 KB 724 [ Dies ]. See also Mason v Clouet , [1924] AC 980 (PC). Restitution and Disgorgement 1161 £270,000 on a contract for the supply of a large quantity of rif‌les and ammunition. The purchaser ......
  • BERJAYA TIMES SQUARE REVISITED
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 décembre 2020
    ...they had sustained no damage by the plaintiff's breaches. That the matter is not quite clear may be inferred in dicta in Mayson v Clouet [1924] AC 980, 987 and in Dies v British and International Mining and Finance Ltd [1939] 1 KB 724. It is at least certain that if the party who rightfully......
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2005, December 2005
    • 1 décembre 2005
    ...the victim in a position better than they would have been had there been no breach at all. 9.113 Certainly, following Mayson v Clouet[1924] AC 980 (an appeal to the Privy Council from the Supreme Court of the Straits Settlements, Singapore), the question as to whether a deposit should be vi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT