Wil;kinson against Lloyd
| Jurisdiction | England & Wales |
| Judgment Date | 01 March 1875 |
| Date | 01 March 1875 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 398
QUEEN'S BENCH
S. C. 14 L. J. Q. B. 165; 9 Jur. 328. Distinguished, Stray v. Russell, 1859, 1 El. & El. 900, 916. Discussed, London Founders Association v. Clarke, 1888, 20 Q. B. D. 580. Distinguished, Casey v. Bentley, [1902] 1 Ir. R. 391.
[27J wilkinson against lloyd. [Saturday, March 1st], 1845. Plaintiff agreed to purchase of defendant shares in a mining company established under a deed of settlement, and sent a form of transfer to defendant for his execution. The deed required that, on transfer of shares, the intended proprietor should be approved of by the directors. Defendant executed and returned the transfer, and sent also a certificate (according to the provisions of the deed) verifying defendant's title to the shares. Plaintiff, on receiving the transfer, paid for the shares; but, before such payment, the directors passed a resolution (unknown to plaintiff till after the payment) stating that defendant had commenced an action against the company, and that no transfer of shares standing in bis name should be allowed while such action was pending. The directors never objected to plaintiff as a proprietor; and the defendant denied their power to stay a transfer on the ground above stated. While the transfer was suspended, shares fell in the market, and plaintiff brought assumpsit for money had and received, to recover back the purchase money. Held, 1. That the action lay ; for that defendant, as vendor, was bound to obtain the assent of the directors, and do all that 7Q. B.2& WILKINSON V. LLOYD 399 was necessary to vest the shares in plaintiff. 2. That the fact of their having fallen in value was no objection to the plaintiff's rescinding the contract, since he had never had the shares at all, and therefore had received no part of the consideration for his purchase. 3. That, although defendant might be entitled to a return of the certificate and instrument of transfer, these were only collateral to the contract and subject matter of the sale; and restoration of them was not a condition precedent to the plaintiff's right of bringing this action. [S. C. 14 L. J. Q. B. 165; 9 Jur. 328. Distinguished, Stray v. Russell, 1859, 1 El. & El. 900, 916. Discussed, London Fminders Association v. Clarke, 1888, 20 Q. B. D. 580. Distinguished, Casey v. Bentley, [1902] 1 Ir. R. 391.] Assumpsit for money had and received, interest, and on an account stated. Plea: non assumpsit. Issue thereon. On the trial, before Wightmati J., at the Yorkshire Summer Assizes, 1843, it appeared that the action was brought to recover back the price of some shares in a company called the Durham Coal Company, which was established for the purpose of working certain coal mines, and was governed by a deed of settlement. The clauses material to the present case were the following. By No. 3, the capital was to consist of 500,0001., in 10,000 shares of 501. each. By No. 8, there were to be ten directors. No. 52 provided : "That the directors shall cause the name and place of residence of every present and future proprietor, and the number of shares belonging to him other, and the proper number of each share, to be entered in a book to be kept for that purpose, to be called the ' share register book.'" [28] No. 53. "That the directors, on receiving at either of the offices of the company notice in writing of a proprietor having changed his or her name or place of residence, or married, (being a female), or died, or become bankrupt, or insolvent, or lunatic, shall, if the proprietor respecting whom such notice for the time being shall have been received have changed his or her name or place of residence, cause his or her new name or place of residence to be entered in such book, and substituted for the former name or place of residence," &c.: (in the case of a female marrying, the husband's name and residence to be entered; in the case of death, bankruptcy, insolvency or lunacy, the name and residence of the executors, administrators, assignees, or committee). No. 54 provided for alteration in the register book, when the directors should receive, at the company's offices, notice in writing of any such husband, executor, administrator, assignee, or committee, having changed his name or place of residence. No. 55. " That the directors shall, when required so to do, cause to be delivered to every present and future proprietor, a certificate signed by three of the directors, stating the number of shares held by such proprietor in the capital of the company, and the specific number of every such share." No. 70. " That whenever any such notice as hereinafter in that behalf is mentioned, shall have been left at the office of the company, in regard to any husband of a female proprietor, who may be desirous of becoming a proprietor of any share or shares to which his wife was entitled at the time of his marriage with her, or of disposing of any such share or shares; or in regard to [29] any executor or administrator of a deceased proprietor, who may be desirous of becoming a proprietor, or who may have nominated some other person to become a proprietor of any share or shares to which bis or her testator or intestate was entitled at the time of his or her death, or who may be desirous of disposing of any such share or shares ; or in regard to the assignees of a bankrupt'or insolvent proprietor, or the committee of a lunatic proprietor, who may be desirous of disposing of any share or shares to which their said bankrupt, or insolvent, or lunatic, was entitled at the time of his or her bankruptcy, insolvency, or lunacy ; or in regard to any proprietor who may be desirous of disposing of any share or shares held by him or her in the capital of the company, the directors shall, without delay, proceed to take such notice into consideration, and under the hands of three of the directors, certify in writing to the person or persons giving the notice, their approbation or disapprobation of the proposed proprietor." No. 71. "That when and so often as any person who shall hereafter become a proprietor of any share or shares in the capital of the company, shall have executed such deed of covenant as hereinafter is mentioned, or shall, being already a proprietor 400 WILKINSON V. LLOYD 7 Q. B. 30. of any other share or shares, have certified to the directors by some writing under his or her hand his or her acceptance of such share or shares, Che directors shall cause such entry or other alteration to be made in the share register book, aa shall shew that uch person has become the proprietor of such share or shares ; and if the person who shall have so become the proprietor of such share or shares, and the person or persons (if any) who shall have nominated him or her to be the proprietor of such [30] share or shares, shall have assigned such share or shares...
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