Vincent v Premo Enterprises (Voucher Sales) Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE WINN,LORD JUSTICE FENTON ATKINSON
Judgment Date21 March 1969
Judgment citation (vLex)[1969] EWCA Civ J0321-1
CourtCourt of Appeal (Civil Division)
Date21 March 1969
Between
Ronald Pittard Vincent And Una Martin Vincent
Plaintiffs Appellants
-and-
Premo Enterprises (Voucher Sales) Limited
Maurice Joseph Kutner And Francis Thomas Poile
Defendants Respondents

[1969] EWCA Civ J0321-1

Before

The Master of the Rolls (Lord Denning)

Lord Justice Winn and

Lord Justice Fenton Atkinson

In The Supreme Court of Judicature

Court of Appeal

Appeal by plaintiffs from judgment of Judge Pennant at Yeovil County Court on 23rd May, 1968.

Mr. W.J. MOWBRAY (instructed by Messrs. Badham Comins & Main, Agents for Messrs. Batten & Co., Yeovil) appeared on behalf of the Plaintiff Appellants.

Mr. K.H. ZUCKER (instructed by Messrs. Offenbach & Co.) appeared on behalf of the Defendant Respondents.

THE MASTER OF THE ROLLS
1

Mr. Vincent and his sister, Miss Vincent, are the freeholders of a house in Central Road, Yeovil. They let four rooms on the first floor to Darch & Willcox Ltd., who kept two of the rooms for themselves and sub-let the other two rooms to Premo Enterprises Ltd. The tenancy of Darch & Willcox was due to come to an end on the 25th March, 19&7; whereupon, of course, the sub-tenancy of the two rooms to Premo Enterprises would also come to an end at that date. But negotiations took place whereby the sub-tenants, Premo Enterprises, were to take a tenancy of the whole floor direct from the owners. The terms were set out in two letters. On the 18th January, 1967, Mr. Kutner, as Director of Premo Enterprises, wrote to the owners:

2

"I would be interested in your proposition to take over the entire floor if terms can be agreed and I would be prepared to offer a rental of $350 per annum exclusive on a five-year lease. In view of the situation of the premises I would also require some outside display and at the same time I- would also like to know whether the existing facia boards at the top of the building could be repainted to show our own name. If the offer is acceptable to your clients, perhaps you would be good enough to prepare the lease and send it to our solicitors, Messrs. Offenbach & Co."

3

On the 7th February the owners' solicitor replied:

4

"Our client is willing to grant to your Company a Lease of the entire first floor at a rental of $350 Per annum, exclusive of rates, on a five-year Lease ……….…. We are preparing the draft Lease which will commence on 25th March, 1967 and are forwarding it to your Solicitors for their attention".

5

They add:-"…….…. our client would expect two of the Directors to guarantee payment of rent and performance of the tenant's obligations under the Lease. We trust there is no difficulty about this."

6

Those letters show that the parties were in agreement that Premo Enterprises should take a tenancy of the whole of the first floor for five years from the 25th March, 1967, at $350 a year, subject, of course, to the lease being prepared and agreed.

7

On the 25th March, 1967, Darch & Willcox went out of the premises. They moved into a house just across the road. By some mischance, Mr. Willcox did not hand over the key to the landlord: nor did he hand it over to Premo Enterprises. He left Premo Enterprises in their two rooms (as he knew they were going to take over the whole floor). Premo Enterprises only had two girls there at the time. Mr. Willcox-took the key across the road with him, and he left a message with the girls that if anybody wanted the key, they could have it at any time. The girls did not ask for it, nor did anyone else, until some time later. It would look as if Premo Enterprises did not feel any urgent need for those other two rooms. A few weeks later one of the young ladles asked for the key and got it at once. There was no record of the date. No one could remember. But after hearing the evidence, the Judge found that it was the 1st May, 1967. So we may take it that by the 1st May, 1967, Premo Enterprises got the keys and took possession of the, extra two rooms. They had, of course, been in possession of the two rooms (of which they had previously been sub-tenants) all the time since the 25th March, 1967.

8

Although the lease was supposed to start from the 25th March, 1967 he solicitors had not got it ready by that time. They were not ready until about the middle of June 1967. By that time they had agreed all the terms and set them all down in writing. In particular, the lease was to start from the 25th March, 1967, and rent was payable from that time. Each solicitor had engrossed his part. Each sent his engrossment over to the other solicitor so as to get it executed by that solicitor's client. The tenant's solicitor had sent an engrossment of the lease tothe landlord's solicitor. The landlord's solicitor had sent an engrossment of the counterpart to the tenant's solicitor. The intention was that each side should execute and then return. The landlord's solicitor was to return the executed lease to the tenant's solicitor. The tenant's solicitor was to return the executed counterpart to the landlord's solicitor. Now we come to the point:-

9

The freeholders, Mr. Vincent and Miss Vincent, undoubtedly signed, sealed and delivered the lease and handed it to their own solicitors in the latter half of June 196?: and their own solicitors retained it.

10

Premo Enterprises signed and sealed the counterpart, but there is a question whether they "delivered" it at all, or as an "escrow". The facts are these:-

11

On the 15th June, 1967 the solicitor of Premo Enterprises wrote to the Director, Mr. Kutner;-

12

"I have pleasure in enclosing the counterpart Lease to which the Common Seal of the Company must be affixed in the presence of a Director and Secretary. In addition, the Lease must be signed by Mr. Poile and yourself in the presence of independent witness who must sign his or her name, address and occupation, all as indicated."

13

On receiving that letter, Mr. Kutner, the Director, telephoned to the solicitor and had this conversation which the Judge accepted:-

14

"I said to him" - to their own solicitor -that there had" been a mistake and that rent was not correct, as we had not taken possession on 25th March. I asked him what I should do about signing, and he said it is a small matter which he felt he could easily clear up with the other side. I then said I would sign the Lease provided he made sure that the date is agreed when we took vacant possession, and that we should not exchange it till he had. I said I would find out thedate for him and he could then arrange and let me know how much I would have to pay. I was not prepared to enter into the Lease if Landlord insisted that rent payable from 25th March. My Solicitor asked if I was going to send the rent to him. I said "No, I did not think I should pay rent for when I was not in possession."

15

After that conversation, Mr. Kutner told his fellow director, Mr. Poile, "The solicitor says that it is in order for us to sign the Lease. He will arrange for the date of possession to be put in. He feels that as it is a small amount it can easily be settled." Thereupon they both signed and sealed the counter-part lease. The company's seal was affixed with the usual formula:- "The common seal of Premo Enterprises (Voucher Sales) Limited was hereunto affixed in the presence of" a Director and Secretary. Each of the Directors executed it opposite the usual words:- "signed sealed and delivered by the said" - in the presence of a witness. All was done in common form. They then returned the document to their own solicitors with a letter saying:- "We thank you for your letter of 15th instant, and herewith return the Lease duly signed as requested."

16

So each part of this lease was in the hands of solicitors. Each engrossment had been sent to the solicitors for the other side. Each solicitor had got his client to "sign seal and deliver" it, but he had not returned it to the sender. The two parts were not exchanged. Then the trouble arose, because they could not discover when exactly the key was handed over. No one could remember. They could not agree on the date from which the rent should be paid. The freeholders wanted rent from the 25th March. Premo Enterprises were unwilling to pay until the date when the key was handed over. The dispute was never resolved, because Premo Enterprises decided to withdraw from the transaction altogether. They said that the documents had not been exchanged. So there was nothing binding on them. And they could repudiate the proposed lease. At that stage the solicitoron each side demanded the return of his engrossment. Each sent it back. The solicitor for the freeholders sent the lease to the solicitors for Premo Enterprises. It was complete, with the full description "signed sealed and delivered" by the freeholders. The solicitors for Premo Enterprises sent the counterpart to the solicitors for the freeholders. But it was sent back defaced. The company's seal had been torn off. The signatures had been obliterated, so that they could not be read at all. Some one had scratched through the names of the directors, the secretary and the witnesses, on the ground, I suppose, that they were not liable.

17

The freeholders claimed that the lease was binding on Premo Enterprises and sued for the rent from the 25th March, 1967. Premo Enterprises put in a defence saying first that they had not "delivered" the deed; and, second, that it was an "escrow", in the words that: "if the said counterpart was delivered by the Defendants or any of them (which is denied) it was delivered as an escrow to take effect only upon the fulfilment of the following condition, namely, upon the Plaintiffs agreeing that rent should only be due payable under the said lease from the date upon which the first Defendants had full vacant possession of the said premises and not from the date of the commencement of the term".

18

The landlords, of course, knew nothing of that condition until they received the defence a few weeks before...

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28 cases
  • Kingston v Ambrian Investment Company Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 July 1974
    ...on escrows has recently been stated in this Court in the cases of Beesly v. Hallwood Estates Ltd. 1961 1 Ch. 105, and Vincent v. Premo Enterprises (Voucher Sales) Ltd. 1969 2 Q.B. 609. When a party executes a deed of transfer as an escrow, it means that he executes it subject to a condition......
  • Bolton Metropolitan Borough Council v Torkington
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    • Court of Appeal (Civil Division)
    • 31 October 2003
    ...It plainly indicates that delivery by a corporation is required for the instrument which it has executed to be a deed. 40 In Vincent v Premo Enterprises Ltd [1969] 2 QB 609 a lease and counterpart were engrossed and the counterpart was sealed by the defendant tenant company. The company rai......
  • Governor and Company of The Bank of Scotland and Henry Butcher & Company and Others
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    • Court of Appeal (Civil Division)
    • 13 February 2003
    ...to persuade me to the contrary. 60 Mr Hurst referred us to the well-known summary of the law by Lord Denning MR in Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 606 at pp 619D-620E. The relevant principles are not in dispute. The only question is whether, on the facts, Mr Hurs......
  • Alan Estates Ltd v W.G. Stores Ltd
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    • Court of Appeal (Civil Division)
    • 1 July 1981
    ...the event to see whether or not the condition is fulfilled (see Beesly v. Hallwood Estates Ltd. (1961) Chancery 105, Vincent v. Premo Enterprises (Voucher Sales Ltd.) (1969) 2 Queen's Bench 609 and Kingston v. Ambrian Investment Co. (1975) 1 Weekly Law Reports 161at page 166 B-D). The di......
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2 firm's commentaries
  • Aren't they just contracts? The differences between deeds and agreements
    • Australia
    • Mondaq Australia
    • 29 June 2014
    ...to the other parties, even if the other parties have not yet executed the deed document: Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619 per Lord In terms of determining whether a document is a deed or an agreement, the courts have said that it depends on whether the ......
  • Execution of documents: proposed changes to Singapore law
    • Singapore
    • Mondaq Singapore
    • 8 June 2011
    ...Delivery means committing an act that shows an intention to be bound by the terms of the agreement (Vincent v Premo Enterprises Ltd [1969] 2 Q.B. 609) and does not necessarily mean that the document has to be physically handed over to any other The authority to act as an agent or an attorne......
5 books & journal articles
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    • Singapore Academy of Law Journal No. 2000, December 2000
    • 1 December 2000
    ...the deed as long as he has done some act evincing an intention to be bound: Vincent & Anor v Premo Enterprises (Voucher Sales) Ltd & Anor[1969] 2 QB 609, at 619 (per Lord Denning MR). 179 Supra, n 7 at para 16. 180 [1995] 2 SLR 733, at 744. 181 Supra, n 7 at para 19. 182 Supra, n 179 and th......
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    • Irwin Books The Law of Contracts. Third Edition Enforceability
    • 4 August 2020
    ...CA); Helm v Simcoe & Erie General Insurance Co (1979), 108 DLR (3d) 8 (Alta CA). 280 Vincent v Premo Enterprises (Voucher Sales) Ltd , [1969] 2 QB 609 (CA). 281 Xenos v Wickham , above note 274. 282 Molsons Bank , above note 278. 283 L Fuller, “Consideration and Form” (1941) Colum L Rev 799......
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