and has proved unsuccessful. And it is clear that these endeavours are to be made by the defendant mero motu; no request by the plaintiff is necessary. The contract is absolute, and not merely conditional upon a request being made. We cannot sanction any of the subtle objections which have been made to the declaration. We agree with the plaintiff's counsel that here, as on general demurrer, the general averment of performance in the declaration is sufficient. As to the want of an averment that the plaintiff was ready and willing, I think that is covered by the general averment. Nor is there any necessity to aver the lapse of a reasonable time: the breach implies that. The plea would clearly have been bad on special demurrer, and would, I think, have been set aside by a Judge at chambers, as being tricky. But I think it also bad on general demurrer; for it tenders an issue totally different from that which would have been tried if there had been a simple denial of the breach in the words of the agreement. Judgment must therefore be for the plaintiff. COLERIDGE J. I am of the same opinion. There can be no doubt as to the meaning of the agreement. It contains three heads: first, the defendant is to pay the salary of 100% during the continuance of the service; secondly, if he does not require the service, he is to use his best endeavours to procure a situation; thirdly, if he fails to do that, he is to pay 100%. a year. We are not at liberty to say that this is not the meaning. would invert the meaning of the words, and make the payment of the 100% per annum the primary step. That is not the natural sense of the contract. Lord has pointed out, a situation with the salary might Mr. Bovill As my 1852. RUST V. NOTTIDGE. 1852. RUST v. be a much better thing than the salary without the situation. The using his best endeavours is clearly the NOTTIDGE. primary step; and that breach is therefore well assigned. Much of the argument for the defendant has therefore no application, it being clear that the second breach is good. I had more doubt as to the plea; but not a doubt sufficiently strong to induce me to differ from the rest of the Court. ERLE J. (a). I have no doubt that the plaintiff is entitled to judgment. This is not an alternative contract, but a series of contracts. It is clear that the 1007. a year without a situation might be less valuable than a situation of that amount, in which, besides that salary, he would get both instruction and employment: there was therefore abundant reason for wording the contract in these terms. The plea tenders an immaterial issue; it does not follow that, because the defendant was unable to procure a situation, he had used his best endeavours to do so. It might appear that no manufactory of the kind was going on, and yet that the defendant had repudiated all connection with the plaintiff. That state of facts would satisfy the averment in the plea, and yet Iwould not shew that the defendant had used his best endeavours to procure a situation. The plea therefore is wholly beside the legitimate issue. Judgment for plaintiff. (a) Wightman J. was absent. 111 1852. November 19th. CATCHPOLE against The AMBERGATE, NOTTING- Friday, CASE. The first count stated that heretofore, and at the time of the execution of the deed of trans Declaration in case against an incorporated railway company (under stat. 9 & 10 Vict. c. clvi., incorporating the Companies Clauses Consolidation Act, 1845,) stated that, before and at the time of the execution of the deed of transfer after mentioned, N. appeared by a book of defendants kept by defendants in pursuance of the provisions of The Company's Clauses Consolidation Act, 1845, called The Register of Shareholders, to be, and then was, lawful owner of 300 shares in the undertaking of defendants; that plaintiff bought the shares of N., and N., by a deed duly stamped, signed, sealed and delivered by him to plaintiff, transferred the shares to plaintiff, subject to the conditions on which N. held them at the time of the execution; that the deed was according to the form in Schedule B. to the last mentioned Act; and that plaintiff afterwards caused the same to be delivered to G., the secretary of defendants and their agent in that behalf, to be kept by them, in order that defendants might enter a memorial in The Register of Transfers, and endorse such entry on the deed of transfer; and might on demand deliver a new certificate to plaintiff as purchaser of the shares, according to the provisions of the last mentioned Act. Breach, that defendants did not, nor did G. nor any other person on defendants' behalf, enter any memorial &c., or indorse any entry &c., whereby plaintiff had been deprived of his right and title to appear in the books of defendants as holder and proprietor of the shares: whereby, and by reason of N. still appearing by The Register of Shareholders to be holder and proprietor of the shares, and of calls having been made by defendants, after the committing &c., upon persons so appearing by the last mentioned book to be holders and proprietors of the said shares, and (among others) upon N., and by reason of the failure of N. to pay the calls (plaintiff having received no notice of forfeiture), defendants, to wit by the directors of the Company, did, according to the provisions of the last mentioned Act, declare the shares forfeited; which forfeiture having been afterwards and according to the provisions of the last mentioned Act confirmed at a general meeting of the Company, and the shares so forfeited directed to be sold for the purposes in the last mentioned Act declared, and according to the provisions thereof, the shares so forfeited were afterwards sold by defendants, to wit by the said directors, by public auction: and plaintiff had thereby been deprived of his right to compel defendants to make such entry and indorsement as aforesaid, and to deliver to plaintiff such certificate, and had also been deprived of the shares and all benefit thereof, and all the dividends and other profits, which he might have derived therefrom, and also of the benefit of selling the shares at an increased premium, the shares having, since the committing &c., risen in value. 2d count, stating that plaintiff, at the time of the committing &c., was the lawful holder, and well entitled to, 300 shares in the undertaking of defendants; that defendants, without lawful cause, and in pretended exercise of the powers confirmed by the Company's Clauses Consolidation Act, 1845, wrongfully declared the shares forfeited, and afterwards confirmed such forfeiture, and afterwards sold the shares: whereby plaintiff had been deprived of the said shares and the benefit thereof, &c. (as in 1st count). Held, on special demurrer : That both counts disclosed a good cause of action, inasmuch as they shewed a wrongful act of omission by defendants in neglecting to register, and also wrongful acts of commission 1852. CATCHPOLE V. AMBERGATE, &c. Railway Company. by them in declaring and confirming the forfeiture, and selling the Held, also, that it was not necessary for plaintiff expressly to aver that a reason able time for registering the shares had elapsed. fer, and before the committing &c. of the grievances, thereinafter mentioned, one W. L. Nutter appeared, by a certain book of defendants kept by defendants in pursuance of the provisions of the "Company's Clauses Consolidation Act, 1845," and called the "Register of Shareholders," to be, and then was, the lawful holder and proprietor of divers, to wit 300, shares in the undertaking of defendants, of great value, to wit 20002., and was lawfully entitled to sell and transfer the same; and, being minded and desirous to sell and transfer the said shares to the plaintiff, heretofore, to wit on &c., agreed with plaintiff to sell and transfer the said shares to him, and then bargained and sold to plaintiff, and plaintiff then bought of N., the same shares, at and for a certain price or sum, to wit 377. 10s.: and thereupon, and in pursuance of the said agreement and bargain and sale, to wit on &c. last aforesaid, by a certain deed duly stamped as by law then required, and signed, sealed and delivered by N. and the plaintiff respectively, N., in consideration of the sum of 377. 10s. to him paid by plaintiff, did transfer the said shares to plaintiff, to hold the same to plaintiff, his executors, administrators and assigns, subject to the several conditions on which N. held the same at the time of the execution thereof: and by the said deed plaintiff did agree to take the said shares, subject to the same conditions. Averment, that in the deed the consideration for the transfer was truly stated, and that the deed was in all respects according to the form in Schedule B. to the last mentioned Act of Parliament annexed, or to the like effect. Averment that, after the execution of the deed of transfer in manner aforesaid, to wit on &c., plaintiff caused the same to be delivered to defendants, to wit to one G., then being the secretary of and appointed by de fendants, and their agent in that behalf, to be kept by them, and in order that defendants might enter a memorial in a certain book of defendants, kept by defendants in pursuance of the provisions of the last mentioned Act of Parliament, called the "Register of Transfers," and indorse such entry on the said deed of transfer, and might on demand deliver a new certificate to plaintiff as the purchaser of the said shares, according to the provisions of the last mentioned Act of Parliament: and it then became and was the duty of defendants, and they were then required, to wit by plaintiff, to make and indorse such entry as aforesaid. Breach that defendants did not, nor did the said G. as such secretary as aforesaid, or any other person on the defendants' behalf, enter any memorial in the said book of the defendants called the "Register of Transfers," or indorse any entry on the said deed of transfer, but have hitherto wholly neglected &c. Whereby plaintiff has been deprived of his right and title to appear in the books of defendants as the holder and proprietor of the said shares, and whereby, and by reason of the said N., after such delivery of the said deed of transfer and the committing of the said grievances, still appearing by the said book of defendants called "The Register of Shareholders" to be the holder and proprietor of the said shares, and of divers calls having been made by defendants after the committing of the said grievances upon divers persons so appearing by the last mentioned book to be the holders and proprietors of shares in the said undertaking, and amongst others the said N., and by reason of the failure of the said N. to pay the said calls so made upon him as aforesaid, plaintiff having received no such notice of forfeiture as in the last mentioned Act of ParE. & B. VOL. I. I 1852. CATCHPOLE V. AMBERGATE, &c. Railway Company. |