Parkes against Smith
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1850 |
| Date | 28 May 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 470
QUEEN'S BENCH.
S. C. 19 L. J. Q. B. 405; 14 Jur. 761. Considered and applied, Commings v. Heard, 1869, L. R. 4 Q. B. 675.
[297] parkes against smith. Tuesday, May 28th, 1850. Declaration in covenant stated that, on a dissolution of partnership between plaintiff, defendant and another, defendant, by a certain indenture, covenanted that he and the other party last mentioned would pay plaintiff, as the outgoing partner, 68001. by instalments] but five instalments, amounting to 48001., parcel of the 68001., (b) Eeported by C. Blackburn, Esq. Q B.M& PARKES V. SMITH 471 were made subject to reduction, in a specified ratio, if the profits which tbe partnership had derived from connections of the plaintiff should fall short of a certain amount. Non-payment of the 48001., as well as of the other instalments, amounting to 20001., was assigned as a breach. Plea: as to the 48001. (setting out the deed on oyer), that, by a further covenant, it was agreed that, if any difference should arise touching the sums to be deducted, it should be referred to J. P., an arbitrator, to award what amount, not exceeding 48001., should be deducted : that such difference did arise, and thereupon plaintiff, defendant and the other parties submitted themselves to refer, and did refer, the said difference to J. P., who awarded that 48001., being the whole amount of the said five instalments, should be deducted from the 68001.: and that defendant, before the commeneement of this action, in pursuance of the said award, claimed to deduct, and did deduct, the said 48001. "from the said five instalments;" whereby the said 68001., before the commencement of the suit, was reduced to 20001., to be paid to plaintiff pursuant to the indenture. Held, on demurrer, that the matter alleged was not merely an estoppel, but that the plea was a good plea in bar. A covenant by indenture, that any differences which may thereafter arise between the parties touching the matters of the indenture shall be, and they are thereby, referred to an arbitrator named, constitutes a submission which may be acted upon and made a rule of Court, under stat. 9 & 10 W. 3, c. 15, when such differences arise. Although the covenant to abide the award be expressly subjected to the proviso, " so as" the award be made, &c. within a given time, with power to the arbitrator to enlarge the time, but " so as " the enlargement shall not extend beyond a day named, yet, if the submission can, by the agreement, be made a rule of Court, a Judge may, before the expiration of the limited period, or of such enlargement, extend the time for making the award to a day later than the last day named in the submission. [S. C. 19 L. J. Q. B. 405; 14 Jur. 761. Considered and applied, Commings v. Heard, 1869, L. R. 4 Q. B. 675.] Covenant. The declaration stated an indenture, made 23d December, 1846, between defendant of the first part, Charles Austin Brookfield of the second part, William Withara of the third part, and plaintiff of the fourth part; whereby, after reciting that plaintiff, defendant and Brookfield lately carried on the business of attorneys in partnership, that a dissolution of the partnership had been agreed upon as regarded the plaintiff, and it had also been agreed that defendant and Brookfield should make certain payments to plaintiff in respect of his capital invested in the copartnership, and his share in tbe past profits and in the goodwill, &c., and as compensation to him for attention (until a day [298] named) to the business, thereafter to be carried on by defendant and Brookfield, the amount of which pay men ta had been fixed at 21251. and 57501.; that defendant and Brookfield had admitted Witham into partnership: that, after some disputes on the payment to be made to plaintiff, it had been arranged and agreed that 88001. (subject, as to 68001. thereof, to contingent redaction as after mentioned) should be paid and secured to plaintiff as follows: viz. 20001. to be secured to him as in the indenture was mentioned (a), and defendant, Brookfield and Witham to secure by their joint and several covenant the payment to plaintiff of 68001., residue of the 88001. (subject as above), by seven instalments, which were specified : and reciting also a further agreement that an account should be taken of the profits accruing to defendant, Brookfield and Witham, between 1st September, 1845, and 31st December, 1846, from such portion of the business as should have arisen from the clients or connexion of plaintiff, and that, if such profits should fall short of 26661. 13s. 4d., there should be deducted, from the last five instalments of the said 68001., a sum after the rate of 41. for every 11., by which the amount of such profits should, during that period, fall short of 26661. 13s. 4d., but so that the deduction should not exceed 48001. in the whole: defendant covenanted and agreed with plaintiff, his executors, &c., that defendant, Brookfield and Witham, or some or one of them, or their or some or one of their heirs, executors, &c., should pay to plaintiff, his executors, &c., the said 68001. by seven instalments, as follows: 10001. (a) By a joint and several covenant of Smith and Brookfield, which was inserted in the deed. 472 PARKES V. SMITH IS J, B. 299. on 1st January, 1849 ; 10001. on 1st January in each [299] successive year till 1854, inclusive, and 8001. on 1st January, 1855 (snbject as above); and also should, in the mean time, pay to plaintiff, his executors, &c. interest at 5 per cent., to be computed from 1st January, 1846, on the said 68001., or so much thereof as should from time to time remain payable and unpaid, as follows: one year's interest on 1st January, 1847, and, thereafter, equal half-yearly payments on, &c.: proviso, that, if the clear net profits whieh should have arisen between the said 1st September, 1845, and 31st December, 1846, both inclusive, from the business of the clients or conuexians of the plaintiff, should not amount to 26661. 13s. 4d., there should be deducted from the five last instalments of the said principal sum of 68001. the sum of 41. for every 11. by which...
To continue reading
Request your trial
-
Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd
...v Luckyfield Shipping Corp SA [2004] Lloyd's Rep 348 (refd) Oakland Metal Co Ld v D Benaim & Co Ld [1953] 2 QB 261 (refd) Parkes v Smith (1850) 15 QB 297; 117 ER 470 (refd) Petro-Canada v Alberta Gas Ethylene Co (1991) 121 AR 199 (refd) Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [198......
- Re Elkinson and Doyle's Arbitration (No. 1)