« EelmineJätka »
Contract Construction Damages Penalty or liquidated Damages-Agreement for Payment of an unvarying Sum as liquidated Damages on the Breach of several Conditions of varying Importance.
- Plaintiffs' appeal from a judgment of Atkin, J. without a jury. The plaintiffs sued to recover £374, which they claimed as liquidated damages for breach of contract. By an agreement in writing, dated the 2nd Jan. 1913, the plaintiff company agreed with the defendant to sell for nine months their motor-cars to the defendant for sale by him in London and district. By clause 6 the defendant undertook (inter alia) not to sell any car or parts thereof at a price below the advertised retail list price, and agreed that on breach of this undertaking he would pay the plaintiffs £250 for every such breach, "such sum being the agreed damages which the manufacturer will sustain." There other clauses by which the defendant undertook not to sell to the trade or to exhibit the cars, and to pay £250 for a breach. It was admitted that the defendant had sold certain cars at a price below that of the advertised retail price list. At the date of the trial the case of Dunlop Pneumatic Tyre Company v. New Garage and Motor Company Limited, reported in the House of Lords (1915) A. C. 79), had been heard in the Court of Appeal, but not in the House of Lords. Atkin, J., following the decision of that case in the Court of Appeal, held that the £250 was a penalty and not liquidated damages. The House of Lords in the Dunlop case subsequently held that where a single sum is agreed to be paid as liquidated damages on the breach of a number of stipulations of varying importance, and the damage is the same in kind for every possible breach and is incapable of being precisely ascertained, the stipulated sum, if it is a fair pre-estimate of the probable damage and not unconscionable, is to be regarded as liquidated damages and nɔt as a penalty. The plaintiffs appealed, and contended that the present case came within the decision of the Dunlop case. Held (Bankes, L.J. dissenting), that the agreed sum was a penalty and not liquidated damages, for the damage was not the same in kind under the different clauses and the sum payable not a fair pre estimate of the probable damage resulting from the breaches within the meaning of the decision in Dunlop Pneumatic Tyre Company v. New Garage and Motor Company Limited (sup.). Appeal dismissed.
[Ford Motor Company (England) Limited v. Armstrong. Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. Feb. 24 and 25.Counsel for the appellants, Disturnal, K.C. and Doughty; for the respondent, Morton Smith. Solicitors: O. S. Hickson, for March, Pearson, and Akenhead, Manchester; John Hands.] Employer and Workman-Injury by Accident-CompensationIndustrial Disease "-Lead Poisoning and its SequelaRefusal by certifying Surgeon to give Certificate of Disablement -Appeal to Melical Referee-Finality of his Decision-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), ss. 1, 8, Regulation 14, Forms 3, 13, 15.
The applicant claimed compensation from the respondents under the Workmen's Compensation Act 1906 in respect of an industrial disease-namely, lead poisoning and its sequelawhich he alleged was caused by his employment with the respondents and from which he stated he became ill on the 22nd May 1913. On the 30th Jan. 1914 the applicant applied to the certifying surgeon for his district for a certificate of disablement under sect. 8 (1) (i.) of the Act. The certifying surgeon refused to give a certificate on the ground that he was not satisfied that the applicant was suffering from the industrial disease complained of so as to be disabled from earning full wages at the work at which he was employed. On the 9th March 1914 the applicant appealed under sect. 8 (1) (f) to the medical referee, who allowed the appeal against the refusal of the certifying surgeon. On the 22nd April 1914 the medical referee,on the request of the applicant, gave an amended certificate, fixing the date of the accident as the 24th May 1913. The case came on to be heard before an arbitrator appointed under sched. 2 (3), who stated a special case for the decision of the County Court judge, whereby the following questions were raised: First, whether the certificate of the medical referee was conclusive and binding on the respondents as to the applicant suffering from lead poisoning on and before the 22nd April 1914; secondly, whether the fact that the certificate omitted to state in terms that the applicant was disabled by the disease from earning full wages at the work at which he was employed invalidated the certificate. The special case came on to be heard before the deputy judge, who decided both questions in favour of the applicant. The employers appealed.
Held, that the decision of the medical referee in a case like the present was conclusive in every respect and could not be disputed, and took the place of the certificate of the certifying surgeon; and that the decision of the medical referee both that
the applicant was suffering from an industrial disease at the date when he went before the certifying surgeon and what was the date of the disablement were matters concerning which there could be no question, and which for all purposes were final and binding. Mapp v. Straker and Son (7 B.W. C. C. 18) applied. Appeal dismissed.
[Chuter v. J. J. Ford and Sons Limited. Ct. of App.: Lord Cozens-Hardy, M.R., Swinfen Eady and Phillimore, L.JJ. Jan. 29.-Counsel: Ellis Hill; W. D. Mathias, for Stephen Low. Solicitors: Watson, Sons, and Room; Sidney Smith and Son.] Employer and Workman-Injury by Accident-CompensationIndustrial Disease"-Lead Poisoning and its SequelaRecovery from Disease – Opinion to that Effect by Medical Referee -Medical Referee sitting as Medical Assessor-Workmen's Compensation Act 1906 (6 Edw 7, c. 58), ss. 1, 8, Regulation 16.
On the 9th Sept. 1914 the applicant claimed compensation in respect of disablement by an "industrial disease"-namely, lead poisoning and its sequela -under sect. 8 of the Workmen's Compensation Act 1906. The date of disablement was alleged to be the 15th July 1914, and it was stated that the applicant was suffering from total incapacity for work, the duration of which could not then be estimated. On the 18th Aug. 1914 the applicant was certified to be suffering from the industrial disease complained of. The respondents alleged that the incapacity for work had ceased on the 2nd Sept. 1914. An adjournment of the hearing of the case was requested by the applicant on the ground that the medical assessor sitting with the County Court judge would not be an unprejudiced assessor, inasmuch as he had already as medical referee intimated that on the 2nd Sept. 1914 the applicant had recovered from the industrial disease complained of. The The County Court judge refused the adjournment. applicant declined, therefore, to submit the case to the court. Thereupon the County Court judge struck out the applicant's case. The applicant appealed.
Held, that it was neither right nor fair to the medical assessor, the County Court judge, or the applicant that the medical assessor should sit to give his assistance as such upon the same question as that on which he had already expressed his opinion as medical referee. Appeal allowed.
[Wallis v. Andrew G. Soutter and Co. Limited. Ct. of App.: Lord Cozens-Hardy, M.R., Swinfen Eady and Phillimore, L.JJ. Jan. 27.-Counsel: George Elliott, K.C. and Daniel Warde; Harold Morris. Solicitors: Walter H. Cowl; Barlow, Barlow, and Lyde]
Licensed Premises-Increase of Licence Duty-Rent of Premises— Apportionment of increased Duty between Lessor and LesseeFinance Act 1912 (2 & 3 Geo. 5, c. 8), s. 2.
Appeal by the defendants from a decision of the Divisional Court (Ridley and Rowlatt JJ.) reported 110 L. T. Rep. 768; (1914) 2 K. B.178. The plaintiffs, who were lessees of licensed premises, brought an action against the executors of the lessor to recover the sum of £46 108. 9d. in the following circumstances: The house in question was a "free" house, and was let to the plaintiffs in 1907 for a term of fourteen years at an annual rental of £390, the licence duty at the time of the granting of the lease being £45 per annum. By the Finance Act 1910 the licence duty was increased from £45 to £166-a difference of £121. By the Finance Act 1912, s. 2, it was provided that the lessee of a "free" house should be entitled to recover in the County Court, or to deduct from his rent, "so much of any increase of duty payable in respect of the licence might be agreed to be or be found to be proportionate to payable in respect of the any increased rent premises being let as licensed premises." The plaintiffs claimed that the sum sued for in the action represented the amount which they were entitled to recover under the section, and it was contended on their behalf that what must be taken into account in ordeɩ to arrive at the proportionate deduction was the difference between the rent as fixed at the date of the lease and the rent the premises would fetch if the licence was taken away, this last figure being £240. On behalf of the defendants it was contended that what must be compared was the difference between the rent reserved by the lease and the annual value of the premises, which might be larger than the rent payable under the lease, and it was suggested that if the licence of the house was taken away and the premises were changed into a shop, the result would be that the annual value of the premises would be greater than the sum paid under the lease, in which case the plaintiffs would consequently not be entitled to recover anything. Divisional Court held, affirming the decision of the learned County Court judge, that, in calculating the amount which the plaintiffs were entitled to recover as the sum proportionate to any increased rent or premium payable in respect of the premises being let as licensed premises, comparison must be made between the rent of the premises when licensed and the
rent which could be obtained for them unlicensed, and that no regard must be had to any increased rent which might be obtained by the employment of the site upon which the premises stood for other purposes. The defendants appealed. Held, that the word "premises" included both the buildings and the bowling alley, and that the comparison of the rent reserved by the lease for the licensed premises with the rent obtainable for the premises unlicensed must be a comparison of the same premises-that is, the premises as they were when let under the lease for the same term of years and with the same covenants and conditions except in so far as they were inapplicable to unlicensed premises. Appeal dismissed.
[Procter and another v. Tarry and another. Ct of App.: Lord Reading, C.J., Swinfen Eady, L.J., and Bray, J. Feb. 11 and 24.-Counsel: for the appellants, Disney; for the respondents, Wootten. Solicitors: for the appellants, Warren, Murton, and Miller, agents for Lamb and Stringer, Kettering; for the respondents, Rawle, Johnstone, and Co., agents for Wright, Hassall, and Co., Leamington.]
Practice-Remedies for the Recovery of Money-Time to make Payment-Personal Estate-Deposit by Way of Security-Mortgage -"Mortgagee in Possession"-Courts (Emergency Powers) Act 1914 (4 & 5 Geo. 5, c. 78), s. 1, sub-s. 1 (b), s. 2, sub-s. 2.
In July 1913 the plaintiff deposited certain debentures with the defendant company as security for a loan made to him by them. The memorandum of deposit which accompanied the debentures contained an authority to the defendant company to sell and dispose of the security in case the loan with interest was not paid at maturity or should the market price of the security fall below 5 per cent. in excess of the amount owing. The defendant company were likewise to be at liberty to call in the whole or any part of the loan on the 30th Jan. 1914, or any subsequent date by giving sixty days' notice by post to the plaintiff. The debentures were transferred into the names of two of the directors of the defendant company, who received interest on them and applied it towards the satisfaction of the interest due upon the loan. In Nov. 1914 the defendant company gave notice to the plaintiff calling in the loan. The plaintiff then obtained an ex parte interim injunction restraining the defendant company from taking or entering into possession of or realising the debentures without the leave of the court under the Courts (Emergency Powers) Act 1914, sect. 1, sub-sect. 1 (b), of which Act provides that no person shall realise any security (except by way of sale by a mortgagee in possession) except upon application to the court and after notice, as provided by the rules under the Act. The interim injunction was discharged by Coleridge, J. The plaintiff appealed. In support of the appeal it was contended that, while it could rot be disputed that the memorandum of deposit in the present case was a mortgage and that the defendant company were "mortgagees in possession" within the meaning of the Act of 1914, yet that the exception in sect. 1, sub-sect. 1 (b), of that Act only applied to a mortgagee in possession of real estate. Further, that the exception only applied to a mortagee who had obtained possession adversely to the mortgagor.
Held, that mortgage and mortgagees in possession of personal estate were common; that there ought not to be given to the words" mortgagee in possession" any but its well-recognised meaning; and that there was no such thing as two classes of mortgagees in possession one of whom had obtained possession adversely to the mortgagor and the other with the consent of the mortgagor. Appeal dismissed.
[Ziman v. Komata Reefe Gold Mining Company Limited. Ct. of App Lord Cozens-Hardy, M.R., Phillimore, L.J, and Joyce, J. March 1.-Counsel: Compston, KC, G. W. H. Jones, and Albert Crew; D.M. Hogg. Solicitors: Ballantyne, Clifford, and Hett; Greenip, Snell, and Co.]
Water Supply-Laying Water Main under Land belonging to Railway Company-Obligation to acquire Easement-Public Health Act 1875 (38 & 39 Vict. c. 55), s. 16-Metropolitan Water Board (Various Powers) Act 1907 (7 Edw. 7, c. clxxiv.), s8. 61, 96. Defendants' appeal from a decision of Shearman, J. reported (111 L. T. Rep. 627; (1914) 3 K. B. 787). The Metropolitan Water Board (Various Powers) Act 1907 by sect. 61 provides that "it shall be lawful for the board to exercise at any place or places within their limits of supply the like powers with respect to the laying of mains and pipes as are exercisable by local authorities under the provisions of the Public Health Act 1875 with respect to the laying of mains and pipes within the respective districts for the purpose of water supply." The Public Health Act 1875, s. 16, provides that "any local authority may carry a after giving reasonable notice in writing to the owner or occupier into, through, or under any lands whatscever within their district." The Metropolitan Water Board (Various Powers) Act 1907, s. 96 (6), provides
that "notwithstanding anything contained in this Act or any Act incorporated wholly or partly therewith, the board shall not, without the consent in writing of the railway companies under their common seal, purchase or acquire any of the lands or property of the railway companies, but the board may acquire and the railway companies shall, if required, grant to the board an easement or right of constructing and maintaining works on, through, in, under, over, or along such lands and property.' Shearman, J. held that there was nothing in sect. 96 (6) of the Metropolitan Water Board (Various Powers) Act 1907 which prevented the board from laying a main under a portion of the L., B., and S. C. Railway Company's railway without acquiring an easement from the railway company. The defendants appealed. On the hearing of the appeal the plaintiffs were not called upon to argue.
Held, that the decision of Shearman, J. was right. Appeal dismissed.
[Metropolitan Water Board v. London, Brighton, and South Coast Railway Company. Ct. of App.: Swinfen Eady and Bankes, L.JJ, and Bray, J. March 3.-Counsel for the defendants, Ryde, K.C. and Hartree; for the plaintiffs, Clavell Salter, K.C. and Courthope-Munro, K.C. Solicitors: P. Vivian Rose; Walter Moon.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Insurance-Company-Winding-up Order-Loss after-Claim for total Loss-Marine or Fire-Assurance Companies Act 1909 (9 Edw 7, c. 49), ss. 1 (b), 17, 28, sub-s. 3, sched. 6. This was a summons in the liquidation of an insurance company to reverse the decision of the liquidator rejecting a proof by the applicants for the total loss of their s'eamer by fire. In April 1912 the applicants insured a steamer for twelve months with the company, and in June a winding up order was made against the company, and a fortnight later the steamer was totally destroyed by fire. The policy of insurance covered risk of loss by fire and general average and salvage charges resulting from fire, the company not purporting to carry on the business of marine insurance. The applicants contended that their policy was not such a policy as was affected by the provisions of the Assurance Companies Act 1909. By ect. 1 of the Assurance Companies Act 1909 the Act was made applicable (inter alia) to fire insurance businessthat was to say, the issue of or the undertaking of liability under policies of insurance against loss by or incidental to fire; and by sect. 17, where an assurance company was being wound-up, the value of a policy required to be valued in such winding-up was to be estimated in the manner provided by the sixth schedule to the Act, under which a proportionate part of the current premium could be proved for only in the liquidation. Sect. 28, sub-sect. 3, provided that the Act should not apply to any insurance business not falling within the classes of insurance specified in sect. 1, which did not include marine insurance, and that a policy should not be deemed a policy of fire insurance by reason of only that loss by fire is one of the various risks covered by the policy. The question was whether this, although a ship insurance, was a fire insurance policy within sect. 1 of the Act, in which case the proof must be limited to the amount ascertainable in accordance with sched. 6, or whether it was such a marine insurance as was excluded by sect. 28, sub-sect. 3. By sect. 28, sub-sect. 2, the Act was not to apply to members of Lloyd's who complied with the requirements in the eighth schedule, which stated that "non-marine' business did not include any insurance of "vessels of any description."
Held, that this policy was a fire policy within sect. 1 of the Act, and that it was not excluded from the operation of the Act by sect. 28, sub-sect. 3, and the reference to general average and salvage charges in the policy was not sufficient to exclude the operation of the Act; further, the provisions in sect. 28, sub-sect. 2, and the eighth schedule as to members of Lloyd's were not terms of the Act itself, and did not assist in the construction of the main provisions of the Act. Sect. 28, sub-sect. 3, did not exclude policies by reference to the "subject-matter" of the insurance, but by reference to the nature of the risk, and did not exclude marine policies limited to fire risks as defined by sect. 1 (b).
[Re United London and Scottish Insurance Company Limited; Newport Navigation Company's Claim. Ch. Div.: Astbury, J. Feb. 17 and 23.-Counsel: F. D. MacKinnon, K.C. and L. F. C. Darby, Leslie Scott, K.C. and H. E. Wright. Solicitors: Parker, Garrett, and Co.; Wrensted, Hind, and Roberts.]
Mortgage Mere Expectancy - Personal Obligation-Specific Property-Bankruptcy-Effect of Discharge-Liability provable in Bankruptcy-Immediate Interest-Bankruptcy Act 1883 (46&47 Vict. c. 52), ss. 30, 37.
H. L. in 1905, while his mother F. L. was alive, assigned by way of mortgage to an insurance society (to secure £800 and
interest, which he covenanted to pay) the share and interest to which as one of the next of kin of his mother or otherwise he might become entitled upon her death of and in her personal estate, with power for the society in his name to demand, sue for, and recover the mortgaged premises. In May 1908 he made a similar assignment by way of mortgage to A. to secure £1500 and interest, which he covenanted to pay, but subject to the mortgage of 1905, and H. L. thereby appointed A. his attorney for all purposes connected with these presents. In Aug. 1908 H. L. was adjudicated a bankrupt. Neither of the mortgagees proved in the bankruptcy. In Oct. 1910 H. L. obtained his discharge. In May 1911 H. L., in consideration of £260, assigned to a syndicate the same premises (so far as he lawfully could) absolutely, but as regards one moiety in trust for himself. F. L. died intestate in Feb. 1914, and thereupon H. L. became entitled to a share of her estate. H. L. in March 1914 assigned the premises contained in the deed of May 1911 to the syndicate by way of further assurance, and in April 1914 A. executed a deed in the name of H. L. assigning the premises to himself, subject to the mortgage of 1905, and to the proviso for redemption in the mortgage of 1908. The syndicate claimed the share of H. L. in the estate of his mother on the ground that the mortgages of 1905 and 1908 being of mere expectancies only operated as covenants to assign the premises after the death of the mother, and that the rights of the mortgagees under those covenants were provable in the bankruptcy of H. L., and that by his discharge he became released from those obligations.
Held, that as the mortgages of 1905 and 1908 to the insurance society and to A. were of a definite expectancy, and as they were ones which the court would specifically enforce, they created an immediate actual interest in the property assigned and therefore were unaffected by the bankruptcy of H. L., and were valid and effectual mortgages which took priority of the assignment to the syndicate.
[Re Lind; Industrials Finance Syndicate Limited v. Lind. Ch. Div.: Warrington, J. Feb. 16, 17, and 23.-Counsel: Hughes, K.C. and R. E. Moore; Coldridge, K.C. and F. Luxmoore; Tomlin, K.C. and Attwater; Whinney. Solicitors: Nye, Moreton, and Clowes; Hicks, Arnold, and Mozley; Hartcup and Davis; Walker, Martineau, and Co.]
Trade Mark-Infringement-Old Mark-Common descriptive Words-" Gripe Water"-Passing off-Application to remove"Bona fide Description "-" Registration under this Act"-Distinctive Words become descriptive-Trade Marks Registration Act 1875 (38 & 39 Vict. c. 91), s. 10-Trade Marks Act 1905 (5 Edw, 7, c. 15), ss. 6, 9 (5), 11, 39, 41, 42, 44.
In 1876 W. W., of whom the plaintiff company were the successors, registered a trade mark for remedies as alleged invented by him in 1850 for children's ailments, "Gripe Water in capital block letters with a waving line border or embellishment, the application for registration being supported by a statutory declaration by W. W. that he had used the mark for twenty five years before the 1st Jan. 1876. The remedy had been extensively brought to the notice of the wholesale trade by circulars and advertisements of the plaintiffs with the trade mark, and manufactured and sold in bottles to wholesale houses by the plaintiffs, who did not employ travellers, and their predecessors, under the words "W.'s celebrated Gripe Water," which were also used on labels and leaflets with the bottles. The defendants were selling a remedy, not of the plaintiff company's manufacture, under the name "Gripe Water," alleging that the words "Gripe Water" were common descriptive words long in use, and that the registration of the trade mark was invalid and the use of the words as meaning the Gripe Water of the plaintiffs only calculated to deceive. The plaintiffs alleged that the words had become distinctive, and on the 22nd May 1914 brought an action for infringement of trade mark and passing off. The defendants applied to strike the trade mark Gripe Water" off the register of trade marks. There was evidence that in authoritative works in use by chemists and druggists there were contained many formulæ for preparations of gripe water, and that chemists, when asked for "Gripe Water" in pennyworths by members of the poorer classes, supplied a mixture of the chemists' own preparation, nor was there evidence of a case of actual deception.
Held, that, although the remedy had been long well known, the plaintiffs had failed to establish by sufficient evidence that the expression "Gripe Water," which was one of a class of appellations made up of the name of a complaint and the word "water," had acquired the secondary meaning to the public and trade of their remedy only, and the action for passing off failed. Held, also, that the trade mark was a "word mark" viz., "Gripe Water"-and rot a device combining words in common use with a decorative embellishment, and the abstraction from it of those words was an infringement. The defendants, having regard to the words of sect. 42 of the Trade
Marks Act 1905, were not protected by the provisions of sect. 44, which was inserted in consequence of the wider range of registrable trade marks introduced by sect. 9 (5), and the fact that the words had ceased to be distinctive since their original registration did not entitle the applicants to have the mark removed from the register.
[W. Woodward Limited v. Boulton Macro Limited. Ch. Div.: Eve, J. Feb. 25.-Counsel: A. J. Walter, K.C., T. H. Maugham, K.C., and L. B. Sebastian; Kerly, K.C. and Ricardo; AustenCartmell. Solicitors: McKenna and Co.; Hicks, Arnold, and Mezley; Solicitor to the Board of Trade.]
Will-Made by Dutch Subject in Holland-Subsequent Acquisition of English Domicil-Effect on Will.
K. by her will, dated the 12th Nov. 1868, made in the Dutch language and executed at Utrecht before a notary and two witnesses in accordance with Dutch law, confirmed the gift of certain chattels made to her intended husband G., and appointed him her heir "with reservation only of the legitimate portion or the lawful share coming to her relations in a direct line in so far as they may exist at her death and may be competent and able to inherit from her," and, in the event of her intended husband not being the sole heir of her estate, she appointed him executor with the right of possession of all her effects, movable and immovable, forming her estate during one year after her decease. On the 19th Nov. 1868 the testatrix married G. At that date both were domiciled in Holland, but later they became domiciled in England and G. became a naturalised British subject. K. died in 1903 leaving her husband and several children surviving. Probate of her will was granted to G., who died in 1914. It appeared in evidence that, according to the law of Holland, K.'s will was not revoked by her subsequent marriage, and that under the existing circumstances K. could only have disposed of one fourth share of her property in favour of G, the remaining three-fourths going as their legitimate portions to her children. This summons raised the question who were the persons entitled to share in K.'s estate, and in what proportions.
Held, that the gift was a gift of the whole of the testatrix's property to her husband G, though at the same time recognising the possible right of other persons to a legitimate portion according to the law of Holland. That portion having been swept away by the change of domicil, the result was that the area of the property over which the will took effect was enlarged, and the whole of the estate, instead of one fourth share only, was given to G.
[Re Groos; Groos v. Groos. Ch. Div.: Sargant, J. Feb. 23.Counsel: A. J. Spencer; W. R. Bisschop¡; C. E. Cree. Solicitor : A. W. J. Groos.]
Will-Tenant for Life of Chattels and Remainderman Executors of the Will-Death of Tenant for Life-Chattels not forthcoming -Claim by Remainderman in the Administration for the Chattels or their Value.
Claim by the remainderman in a action for administration of the estate of a deceased tenant for life framed in damages or compensation for lost articles of jewellery bequeathed in strict legal limitations by the will of the mother of the tenant for life to her daughter with remainder in the event of her dying childless, which event happened, to her son, the claimant in these proceedings. One of the articles claimed was a diamond necklace of considerable value, which the evidence showed had been broken up by the tenant for life and only parts of which were forthcoming. The question was whether the estate of the tenant for life was liable to make this good to the remainderman.
Held, that the tenant for life was a trustee or quasi trustee for the remainderman to the extent of the latter's interest and her estate was accordingly liable.
[Re Swan; Witham v. Swan. Ch. Div. Sargant, J. Feb. 18, 19, and 24.-Counsel: Mark Romer, K.C. and W. F. Swords; Alexander Grant, K.C. and Cyril Hartree. Solicitors: and Page and Scorer, for Burton, Scorers, and White, Witham; Roskell, Munster, and Weld.]
KING'S BENCH DIVISION. Bank-Account opened abroad-Demand on London Branch not sufficient to sustain Action-Bank's Liability limited to particular Branch.
The plaintiffs, a firm of foreign bankers carrying on business in England, had an account with the Berlin branch of the defendant bank, and at the date of the outbreak of war between England and Germany there was a balance standing to their credit of 5947 marks 5pf. On the 1st Dec. 1914 the plaintiffs wrote to the London branch of the bank requesting the payment of this amount. The money was not paid, and the plaintiffs thereupon brought this action to recover it. It was contended for the
plaintiffs that the relations between the bank and its customer are the ordinary relations between a debtor and creditor-namely, that a debtor must seek out the creditor and pay him-with the additional liability imposed on the bank to honour cheques drawn by the customer. There was no obligation imposed on the customer either to present himself at the branch at which the account was kept, or even to demand payment from that particular branch. The money was due from the bank in England, and the letter of the 1st Dec. was a sufficient demand. For the defendants it was contended that the bank's obligation was to pay on demand only, and the demand must be made at the branch where the account was kept. The bank only contracts to pay at a certain branch, and a demand at that branch is a condition precedent to the bank's liability to pay.
Held, that the bank's liability to pay was limited to the place where the account was opened, locality being an essential part of the duty owed by the bank to its customer. The general rule that it was the duty of a debtor to seek out his creditor could not apply in the case of a bank with several branches, and there was no obligation on a bank with branches in different countries to pay in one country a debt due to a customer on current account at a branch in another country. It followed that, there having been no demand on the Berlin branch, there had been no dishonouring by the bank of the obligation to pay. The action therefore failed. Leader, Plunkett, and Leader v. Direction der Disconto-Gesellschaft (31 Times L Rep. 83) distinguished.
[George Clare and Co. v. Dresdner Bank. K. B. Div.: Rowlatt, J. March, 2.-Counsel: D. Hogg; C. W. Lilley. Solicitors: Clifford Turner and Hopton; Herbert Smith, Goss, King, and Co.
London Building Act 1894 (57 & 58 Vict. c. ccxiii.), s. 5, subεs 29, 31, and ss. 88, 90, 96, 97, 98—Building Owner-Party Wall-Notice-Sufficiency-Dangerous Structure-Expenses of pulling down and rebuilding.
One H. was the freeholder of 36 and 37, Hatton garden. As to No. 37 he entered into a building agreement (not amounting to a demise) dated the 20th May 1912 with plaintiffs, who were to erect certain new buildings on the site and, when these buildings were finished, to receive a ninetynine years lease from H. commencing on the 25th March 1912. As to No. 36, H. leased these premises to the defendant, who had, by an agreement dated the 20th Sept. 1911, granted a yearly tenancy to one R. at the annual rent of £300 with an option of purchasing the rest of the leaseholder's interest. The plaintiffs on the 26th March 1912 gave the defendant and R. a party-wall notice to the effect that after two months from the service they intended, in relation to the party wall between No. 36 and No. 37, "to pull down and rebuild such party structure if on survey it be found so far defective or out of repair as to make such operation necessary or desirable and to perform all other necessary works incidental thereto," and appointed their surveyor. On the 3rd April 1912 the defendant notice of the appointment of his surveyor, and the surveyors on the 30th April 1912 appointed an umpire. On the 20th May 1912, the building agreement being then signed, plaintiffs began removing the roof of No. 37 and exposed the party wall, which was found perished and out of plumb. On the 7th June 1912 the defendant's surveyor protested against anything being done affecting the wall or its stability until a joint award of the surveyors had been obtained, and on the 9th June 1912 the plaintiffs' surveyor submitted a draft award. On the 14th June 1912 the district surveyor condemned the party wall as a dangerous structure and served the requisite notices, and on the 1st July 1912 an order was made, addressed to the owners of Nos. 36 and 37, requiring them "to take down the party wall next to No. 36, Hatton-garden, where the brick work thereof is out of plumb, cracked, loose, and otherwise defective." The plaintiffs, as the defendant would do nothing, pulled down the whole party wall; but when erecting an improved No. 37 they built a higher and thicker party wall and without any award of surveyors. This new work on and in connection with the new party wall was completed on the 24th Feb. 1913. On the 11th March 1913 an account of the expense of pulling down and rebuilding was sent by the plaintiffs to R. with a claim for half the expenses. R. denied liability, and on the 28th March 1913 the account was sent to the defendant, who also denied liability. The plaintiffs claimed the expenses under the party-wall provisions of the London Building Act 1894 except in so far as the defendant was relieved from them under sect. 90 by the fact that the party wall was dangerous. In the alternative they claimed contribution under the common law in that they had occurred expense in carrying out work which the defendant was also legally liable to execute, entitling them to a moiety of the expense as money paid at the defendant's implied request. Plaintiff's also contended that the
expenses of rebuilding were consequent on the pulling down, and claimed the expense of such part of the wall as in height and thickness represented the old wall.
Held, (1) that no owner is bound to accept or act on a notice from a person not an "owner" when the notice was given on the chance that he may become an owner before the notice expires. (2) That the party-wall notice in question was not sufficiently clear and intelligible: (Hobbs, Hart, and Co. v. Grover, 79 L. T. Rep. 454; (1899) 1 Ch. 11). (3) That a notice to an adjoining owner under the London Building Act 1894 (57 & 58 Vict. c. ccxiii.), s. 96, must be delivered within one month to the owner it is sought to render liable, not to one who is not proceeded against. (4) That the requirement of sect. 96 as to time is a condition precedent and not merely directory. (5) That the exception in the London Building Act 1894 (57 & 58 Vict. c. ccxiii.), s. 90, as to dangerous party structures only extends to work ordered to be done to the party wall under Part 9 of that Act, and does not give the building owner a discretion as to rebuilding and recovery of expenses without regard to the restrictions of Part 8 of that Act. Plaintiffs entitled to recover the due proportion of expenses properly incurred in pulling down the party wall as money paid at the implied request of the defendant.
[Spiers and Son Limited v. Troup, K. B. Div.: Scrutton, J. Feb. 22-Counsel: Hudson, K.C. and G. A. Scott; English Harrison, K.C. and Dyer. Solicitors: C. T. Price; Letts Brothers.]
Sale of Goods-Contract for Sale of Confectionery for ExportOutbreak of War before Delivery-Illegality of PerformanceRight to cancel-Proclamations, Aug. 5 and 10, 1914.
By a proclamation of the 5th Aug. 1914 the export from the United Kingdom of (inter alia) "provisions and victual of all sorts which may be used as food for men" was prohibited, and by a further proclamation of the 10th Aug. 1914 this prohibition was defined as including (inter alia) "sugar" and fectionery of all kinds." The plaintiffs were a firm of confectionery manufacturers at Belfast, and the defendants, who were exporters, ordered from them confectionery to be delivered f.o.b. London during the months of Aug. and Sept. 1914 for export. The defendants, on their orders for the goods, stated the names of the ports to which they were to be exported, and the plaintiffs, in the usual course of business, packed the goods in cases and marked them in accordance with the orders. As there is an import duty on sugar, a corresponding drawback is allowed on the export of confectionery and other goods containing sugar. appeared from the evidence that the Belfast Customs authorities paid this drawback to the plaintiffs, accepting them as the exporters. The plaintiffs, therefore, in quoting prices to the defendants for export, took into consideration the fact that they would receive this drawback. On the 10th Aug., when the proclamation prohibiting the export of confectionery was published, the plaintiffs had only delivered a portion of the goods ordered; they thereupon wrote refusing to deliver any further consignments and declaring the contract cancelled. In an action brought by the plaintiffs to recover the price of the goods already delivered, the defendants counterclaimed for damages for their loss of profit consequent on the non-delivery of the remaining consignments. It was contended for the plaintiffs that, as the goods were for export only, they would have been committing an offence in performing their contract, the proclamation having absolutely prohibited the export of this class of goods. For the defendants it was contended that the proclamation only imposed an embargo on the export of the goods, and did not discharge the plaintiffs from the performance of their contract to deliver. The question of illegality did not arise unless the defendants actually exported the goods.
Held, that the contract having been made with the view of export only, and the proclamation having absolutely prohibited the export of this class of goods, the further performance of the contract became illegal, and the plaintiffs were entitled to cancel.
[Andrew Millar and Co. Limited v. Taylor and Co. Limited. K. B. Div.: Rowlatt, J. Feb. 26 and 27.-Counsel: Maddocks; Austin Farleigh. Solicitors: Harold Mayhew and Darling; G. T. B. S. Thurnell.]
Trading with the Enemy-Plaintiff an Ex-partner of Alien Enemy -Partnership dissolved on Eve of War and Assignment of Part Assets of Firm to Plaintiff-Right to recover Part Assets so assigned-Payment refused on Suspicion of enuring for Benefit of Enemy-4 & 5 Geo. 5, c. 87, s. 7.
Plaintiff, a British subject, and one S., a German subject, carried on business in partnership with a head office in Cologne. Plaintiff had found all the capital. On the 3rd Aug. 1914 plaintiff and S. agreed as follows: "We beg to state that from this day the firm of Harold Wilson and Scholz has been made
over entirely to our senior partner, Mr. Harold Wilson, of 16, Watling-street, London, E.C., to whom alone all accounts are payable. Mr. Harold Wilson is therefore alone entitled to collect all debts owing to Harold Wilson and Scholz and to give receipt for these; he will also pay all accounts which are still owing by Harold Wilson and Scholz. The style of the business is from this day changed to Harold Wilson, London." Plaintiff alleged that the partnership was dissolved as from that date. It was not contested that under the above agreement plaintiff acquired a title to sue for all debts owing in England to the late firm. Plaintiff sued defendants as holder in due course of a bill of exchange dated the 15th June 1914 for £240 and interest and £147 148. 9d., balance of goods sold and delivered. The defence raised was that defendants had reasonable grounds for suspecting that plaintiff's claim was made as owner of a business still carried on in Cologne on behalf of an alien enemy and that payment of the sum claimed would amount to trading with the enemy.
Held, the assignment was good and payment of the amount claimed would not offend against 4 & 5 Geo. 5, c. 87, s. 7.
[Wilson v. Ragosine and Co. Limited. K. B. Div.: Scrutton, J. Feb. 24.-Counsel: R. A. Wright; Pollock, K.C. and T. T. Paine. Solicitors: Gasquet, Metcalfe, and Walton; Linklater, Addison, and Brown]
PROBATE, DIVORCE, AND ADMIRALTY DIVISION.
Divorce-Petition by Wife-Alleged Cruelty and Adultery-Denial by Respondent on Oath of the specific Charges of Adultery— Cross-examination-Question put as to Adultery not alleged in Petition-Inadmissible—Evidence (Further Amendment) Act 1869 (32 & 33 Vict. c. 68), s. 3.
G. C. B. filed a petition for divorce,alleging that her husband, H. R. B., had been guilty of cruelty and adultery. The adultery was alleged to have taken place on or about the 3rd July 1910," on or about the 7th June 1914," and "in or about June 1914." In examination-in-chief the respondent only denied the specific acts of adultery which were alleged in the petition. Counsel for the petitioner in the course of his crossexamination asked: "Had you committed adultery by that time-in July 1909 ?" Counsel for the respondent objected on the grounds that the witness had not made any general denial of adultery; that there was no general charge of adultery in the petition, and that such a question could not be put.by virtue of sect. 3 of the Evidence (Further Amendment) Act 1869, which runs : The parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding; provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery unless such witness shall have already given evidence in disproof of his or her alleged adultery." During the argument the cases of Lewis v. Lewis (106 L. T. Rep. 191), Hall v. Hall (25 Times L. Rep. 524), Ruck v. Ruck and Croft (104 L. T. Rep. 462), and Brown v. Brown and Paget (30 L. T. Rep. 767) were referred to.
Held (approving of the dictum in Allen v. Allen and Bell (70 L. T. Rep. 783), that the question was inadmissible.
[Brown v. Brown. P. Div.: Sir S. T. Evans, P. March 2.Counsel: Barnard, K.C. and Bayford; Marshall Hall, K.C. and Willis. Solicitors: Indermaur and Brown; A. Neal and Son.]
COURT OF CRIMINAL APPEAL.
Criminal Law-Larceny as Servant-Charge of stealing ChequesDistinction between Larceny of Cheques and Misappropriation of Proceeds-Failure to direct Jury-Larceny Act 1861 (24 & 25 Vict. c 96), s. 67.
Appeal against conviction at Folkestone Borough Sessions for larceny as a servant of three cheques. The appellant was the manager of the Folkestone Pleasure Garden Company. According to a custom which was well known to the company, he was in the habit of paying debts owing by the company by cheques on his own private account, reimbursing himself by paying in to such account cheques drawn by or in favour of the company. For the appellant it was contended that the course adopted by the appellant was well known to the company, and arose in consequence of the difficulty in obtaining signatures of the directors late at night and that no offence had been committed.
Held, that on the direction given to the jury they might have thought that, if satisfied as to misappropriation (if any), they must necessarily find the appellant guilty of larceny; that the question whether there was a conversion of the
cheques depended on the practice followed by the appellant with the knowledge of the directors; that the summing up contained no reference to this question, and no specific direction as to the particular offence charged; and that the conviction must be quashed.
[Rex v. Hampton. Ct. Crim. App.: Lord Reading, C.J., Avory and Rowlatt, JJ. March 1.-Counsel: for the appellant, Frank Newbolt, K.C. and Rowand Harker, instructed by W. J. Wenham; for the Crown, Hume Williams, K.C. and Theobald Mathew, instructed by the Director of Public Prosecutions.]
Williams' Bankruptcy Practice. Eleventh Edition. Stevens and Sons Limited, 119 and 120, Chancery-lane; Sweet and Maxwell Limited, 3, Chancery-lane. Price 30s.
Archbold on Lunacy and Mental Deficiency Fifth Edition. Butterworth and Co, Bell-yard, Temple Bar; Shaw and Sons, 7 and 8, Fetter-lane, E.C. Price 36s. net.
Butterworths' Twentieth Century Statutes 1914. Butterworth and Co., Bell-yard, Temple Bar. Price 15s. net.
Butterworths Yearly Digest of Reported Cases 1914. Butterworth and Co., Bell-yard, Temple Bar. Price 159.
Newspaper Press Directory 1915. C. Mitchell and Co. Limited, 1 and 2, Snow-hill, E.C.
Chitty's Annual Statutes 1914. 3, Chancery-lane; Stevens and Chancery-lane. Price 15s.
Sweet and Maxwell Limited, Sons Limited, 119 and 120,
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