Timmins v Moreland Street Property Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS |
| Judgment Date | 30 July 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0730-7 |
| Court | Court of Appeal |
| Date | 30 July 1957 |
[1957] EWCA Civ J0730-7
Lord Justice Jenkins.
Lord Justice Romer And
Lord Justice Sellers
In The Supreme Court of Judicature
Court of Appeal
Mr P. INGRESS BELL, Q.C. and Dr. W.G.H. COOK (instructed by Messrs Holt, Beever & Kinsey) appeared on behalf of the Appellant (Plaintiff).
Mr C.R.D. RICHMOUNT (instructed by Messrs Israel Joslin & Co.) appeared on behalf of the Respondents (Defendants).
: This is an appeal by the Plaintiff in the action, Mr Walter Henry Timmins, from a Judgment of Mr Justice Lloyd-Jacob dated 17th April, 1957, whereby he dismissed an action brought by the Plaintiff against the Defendants, Moreland Street Property Company Ltd., for breach of an agreement for the sale by the Plaintiff to the Defendants of certain warehouse property situated in Boundary Street, Shoreditch, and comprising Nos. 6, 8 and 41, Boundary Street.
The agreement sued upon was an oral agreement concluded between the Plaintiff, Mr Timmins, and a Mr Chait, a Director of, and acting as agent of, the Defendants. That agreement was concluded on the 20th July, 1955, and the only documents relied on as constituting written evidence of it consist of a cheque dated 20th July, 1955, drawn by Mr Chait for and on behalf of Moreland Street Property Company Ltd. - that is the Defendants -in favour of Messrs Holt, Beever & Kinsey, a firm of Solicitors, for the sum of £3,900, and a receipt signed by the Plaintiff, Mr Timmins, also dated 20th July, 1955, "Received of Moreland Street Property Company Ltd. the sum of £3,900 as a deposit for the purchase of 6, 8 and 41, Boundary Street, Shoreditch (freehold) which I agree to sell at £39,000".
The oral agreement between the parties was in fact for the purchase by the Defendants of the property in question for the price of £39,000, subject to and with the benefit of a lease dated 14th August, 1950. Mr Timmins was involved in the matter as the sole surviving trustee of the Will of a Mr James Keeves, deceased. He was, I understand, a Managing Clerk to the firm of Solicitors, Messrs Holt, Beever & Kinsey, in whose favour the cheque I have just mentioned was drawn, and the Keeves Trust was dealt with in the office of these Solicitors.
Two defences were raised to the claim, the first being to the effect that the Defendants had been induced to enter into the contract by wilful misrepresentation and concealment of material facts on the part of the Plaintiff, Mr Timmins. The alleged misrepresentation and concealment related to the position under the lease of the 14th August, 1950, in regard to rent. The second line of defence was to the effect that the Plaintiff could not succeed because there was no sufficient note or memorandum in writing of the contract signed by the party to be charged to satisfy the requirements of Section 40 of the Law of Property Act, 1925.
The learned Judge decided in the Plaintiff's favour on the issue of misrepresentation and concealment. He held, without any hesitation, as appears from his Judgment, that there was no misrepresentation or concealment, and that Mr Timmins had acted throughout with complete candour.
As to the second line of defence, based on Section 40 of the Law of Property Act, 1925, the learned Judge held that the cheque and the receipt to which I have referred could be read together for the purpose of constructing a memorandum under Section 40; but he held that, when read together, these two documents did not provide a sufficient memorandum, because the receipt simply described the property, 6, 8 and 41, Boundary Street, Shoreditch, without stating that it was subject to the lease of the 14th August, 1950, as in fact it was. The learned Judge on that part of the case accepted the argument of Mr Richmount for the Defendants.
The present position, in view of the learned Judge's decision, is that the Plaintiff appeals on the ground that the learned Judge ought to have held the memorandum relied on by the Plaintiff, consisting of the receipt and the cheque, to be a sufficient memorandum under the section, and his appeal has been argued before us by Mr Bell. On the other hand, Mr Richmount, for the successful Defendants, claims that in any event they ought to have been held entitled to succeed on the issue of misrepresentation and concealment, and, further, on the ground that (contrary to the learned Judge's view) the cheque and the receipt could not be connected together at all for the purposes of Section 40 of the Law of Property Act, 1925.
I should next deal — and I will endeavor not to do it at undue length — with the issue of misrepresentation. That arises in this way: By the lease of the 14th August, 1950, the property was demised to Crowned & Keeves Ltd., the lessees, for a term of 42 years from the 25th December, 1949, at the yearly rent of £1,714, to be increased as thereinafter mentioned. Then the lessees, by Clause 2, covenanted with the lessors upon a number of matters, the relevant provisions being those in sub-clauses (r) and (s). It appears that the premises had suffered considerable war damage, and sub-clauses (r) and (s) are concerned with that, (r) provides: "Subject to obtaining all necessary licences and consents the Company will take such steps as may be available to them to reinstate the buildings previously forming part of the demised premises which were damaged by enemy action and in respect of which it has been agreed with the War Damage Commission that a cost of works payment shall be made". I think, for present purposes, that is all I need refer to of sub-clause (r).
Then (s) provides: "The Company will pay the further rents according to the scale set out in the First Schedule hereto as and when any of the damaged floor space shall be made usable and available to the Company and should there be any doubt or dispute as to when such increased rent or rents shall become payable the decision of the surveyor for the lessors shall be final".
Then in the First Schedule a progressive rent is stated, increased by a specified amount as and when additional floor space should be brought into operation or made available by the repair of the damage. The effect of the figures was, as I understand it, that when the whole of the war damage had been made good, the rent would be, as a result of the successive increases to which I have referred, £3,000 per annum.
The lessees, Crowd en & Keeves Ltd., apparently did not take any steps to make good the war damage, and on the 22nd April, 1954, the Solicitors to the lessors, Messrs Holt, Beever & Kinsey, wrote to the lessees saying: "Our clients are becoming very dissatisfied with the position of this matter. It is now nearly four years since the new lease was granted in which your company covenanted to reinstate the premises which suffered war damage. We understand that you have obtained all necessary consents and we are instructed to enquire if you would agree to pay the maximum amount of rent reserved by the lease, namely £3,000 per annum from an early date to be agreed". Then there is a reference to a possible purchase of the freehold, with which I need not trouble.
Then after some further letters, there is one of the 28th July, 1954 again from Messrs Holt, Beever & Kinsey on behalf of the lessors to the lessees: "We do not know if you have heard of the death of Mr Percy Keeves at the beginning of this month. We have received communications from the Solicitors acting for his executors and they have expressed very strong dissatisfaction at the delay in the reinstatement of the war damage to your premises and suggest that proceedings should be taken to enforce the covenants contained in the lease, under which you hold the property. We should be glad to hear forthwith that you are now prepared to pay the maximum rent of £3,000 reserved by the lease as we are afraid that the matter cannot now be allowed to remain in its present unsatisfactory position".
Then on the 9th August, 1954 there was this reply from the lessees. It begins: "The question of the reinstatement of this building is still under consideration, but in this connection various difficulties have arisen". Then the difficulties are set out — I do not think I need go into them in detail — and the letter proceeds: "It is a matter of regret to our clients that in the circumstances they have not been able to comply with your requests, and in all the circumstances they feel that it would he reasonable that the maximum rent of £3,000 should commence to run at the 29th September next, notwithstanding the fact that they will not have the benefit of those parts of the building which have been destroyed. He are, therefore, instructed to say that they will be agreeable to the increased rental commencing at the date mentioned".
Then following that Messrs Holt, Beever & Kinsey wrote this on the 17th August to the lessees' Solicitors: "Referring to your letter of the 9th instant we have now received instructions to agree to the suggestion contained in your letter that the rent of £3,000 per annum should commence as from the 29th September. We enclose draft deed of variation accordingly for your approval, with copy for your use". Then there is a reference to the possible purchase of the freehold.
The parties appear to have been unable to agree as to the terms of the draft deed of variation referred to in that letter and no deed of variation was ever signed. Mr Richmount relies upon some later letters from the lessees, or their Solicitors, as suggesting the view that there was no arrangement binding upon the lessees for the payment of the ultimate maximum rent of £3,000, in the circumstances.
There was a letter on page 18, dated 30th September, 1954, where the lessees wrote to the Plaintiff: "We...
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