SPECIAL CASES.

No. LXII.

Special Case stated by an Arbitrator on questions of law under Section 19 of Arbitration Act, 1889.

The following special case is stated for the opinion of the court [in accordance with an order of Mr. Justice

dated the

day of

if such is the case], pursuant

to section 19 of the Arbitration Act, 1889.

1. A. B. and C. D. carried on business in

as coal

merchants and commission agents under the style or firm of up to the death of the said A. B. in

and

December, 1876.

2. After the death of the said A. B. the said C. D. and E. F. entered into partnership under articles of partnership dated the 23rd March, 1877, whereby it was provided that the partnership should be for a period of ten years, at the expiration of which period it might be renewed, and that the style of the firm should be the same as before, namely

and

3. Article 8 provided that "in case of the death of one of the partners a general account of the position shall be made, including all effects and securities of whatsoever nature that they possess, and the value of such effects and securities shall be estimated as at the date of such decease. Two appraisers shall be appointed to fix the value of the effects and securities, one by the surviving partner, the other by the personal representatives of the deceased, and if these two do not agree they must appoint a third person, whose decision shall be final."

4. Article 9 provided that "the portion decided upon as belonging to the representatives of the deceased partner cannot

A

be withdrawn from the business before three years from the date of the said decease, but during this time such representatives shall have a right to half of the share of the profits which would have belonged to the deceased partner."

5. The partnership created by the articles of the 23rd March, 1877, was continued and renewed, and expired upon the death intestate of the said C. D. on the 11th March, 1896, and on his death it was agreed between his widow and administratrix G. H. and the said E. F. that I, X. Y., should act as sole appraiser under Article 8, and it was subsequently agreed between them that I should act as sole arbitrator under provisions in that behalf contained in Article 10 of the partnership articles.

6. It was contended before me on behalf of the said G. H. that the business had a goodwill, and that in estimating the value of the effects and securities belonging to the partnership, I ought to set a value on the goodwill, and it was contended by the said E. F. that there was not any goodwill attached to the business, and that even if there was any such goodwill, it was not a subject which ought to be valued by me.

7. The said G. H. tendered evidence as to whether or not it was the custom of the trade to value goodwill as between the representatives of a deceased partner and a surviving partner, and also as to the terms of the original partnership between the said A. B. and C. D. and as to whether or not any payment in respect of goodwill was on the death of the said A. B. made to his personal representatives by the said C. D., which evidence I declined to receive.

THE QUESTIONS for the opinion of the Court are:

FIRST, whether under Article 8 I ought to consider the question of goodwill and set a value on the goodwill (if any) which I might consider to have been attached to the business at the death of the said C. D.

SECOND, whether or not in considering the question of goodwill I should appraise the value (if any) thereof on the footing that if it were sold the said E. F. would be at liberty to carry on a rival business, but without any right to solicit any person who was a customer of the old firm prior to the death of the

said C. D. to continue to deal with the said E. F. or not to deal with the purchaser, and whether or not I should appraise such value (if any) on the footing that if it were sold the said E. F. would not be entitled to carry on business under the name of and or on what other footing I should appraise

such value (if any).

THIRD, whether I should have received any evidence as to the said alleged custom or as to any and which of the matters mentioned above (a).

IN WITNESS, &c.

X. Y.

No. LXIII.

Award by an Umpire in the form of a Special Case under Section 7 of the Arbitration Act, 1889.

In the High Court of Justice.

Division.

In the matter of an arbitration between A. B. and the P. Improvements Company

and

[In the matter of the P. Improvements Act, 19 and the Lands Clauses Act, 1845,

and]

In the matter of the Arbitration Act, 1889.

Award in the form of a Special Case.

1. The P. Improvements Company (hereinafter called the company) under the P. Improvements Act, 19, and other Acts incorporated therewith (including the Lands Clauses Consolidation Act, 1845), were authorised for the purposes of widening and improving

connecting therewith

Street and

Street and Road, all in the town of P., to acquire and take a piece of land and buildings in the occupation of A. B.

2. The company on the

day of

gave notice

in writing to A. B. that they required to purchase and take the

(a) See the order thereon, Re David and Matthews [1899] 1 Ch. 378; 3 Seton, 2172.

said land and hereditaments therein described as [insert description taken from notice to treat] for the above-mentioned purpose and were willing to treat for the purchase of his interest in the said hereditaments and to pay any compensation properly due to him.

notice to the company that he was lessee of the said hereditaments for an unexpired term of

day of

A. B. gave

years from the

day of

as compensation for the value of

under a lease dated the and that he claimed £

the land and buildings so to be taken and for damages which he would sustain by reason of the execution of the works of

the company.

4. The company and A. B. did not agree as to the amount of purchase money and compensation to be paid to A. B., and thereupon a question of disputed compensation arose between the parties.

day of

5. The question of compensation was referred to R. S., of &c., an arbitrator appointed by the said A. B. by writing under his hand dated the and T. W., of &c., an arbitrator appointed by the company, by writing under their common seal dated the

day of

6. The said R. S. and T. W., before entering upon the reference by writing under their hands dated the -day of appointed me, J. L., of &c., to be the umpire in the said reference and afterwards disagreed and gave me notice of such disagreement.

7. I thereupon took upon myself the burden of the said. reference, and before entering upon such reference made and subscribed the declaration required by the Lands Clauses Consolidation Act, 1845, which declaration is annexed to this my award.

and made between

8. The Indenture of Lease under which A. B. claimed to be interested in the hereditaments was dated the day of of the one part and A. B. of the other part, whereby the said hereditaments described in the said notice to treat, with other hereditaments, were demised unto A. B. for the term of

years from the said

day

of together with full liberty to the said A. B., his executors, administrators, and assigns, to erect and build, or cause to be erected and built, on the ground demised such and so many messuages or dwelling-houses, buildings, or erections as he or they might think fit.

9. The said A. B. proposed to take down a certain building now standing upon the said piece of land and to erect thereon. new buildings in accordance with certain plans prepared for that purpose.

10. The said plans had been submitted to the Urban District Council, acting in and for the Urban District of P., and had been passed and approved by the said Council.

11. The said plans provided for a building which, if it had been erected on the said piece of land in accordance with the said plans, would have been in contravention of certain by-laws of the said Council regarding the distance of buildings from the centre of the roadway.

12. The said Council had found it impossible to conform to the said by-law in all cases of plans for new buildings in the town of P., and certain other plans had theretofore been passed by and buildings had been erected with the sanction of the said Council which did not comply with the requirements of the said by-laws.

13. Upon the hearing before me it was contended on behalf of the company that, in sanctioning and approving plans which if carried out would contravene the by-laws of the said Council, the Council was acting ultra vires, and that I was not entitled to take such plans, or the possibility of the erection of buildings in accordance with such plans, into my consideration in estimating the potential value of the said piece of land for building purposes. On behalf of A. B. it was contended that I was not entitled to go behind the sanction of the Council, inasmuch as such sanction gave to A. B. the right to erect his buildings in accordance with the approved plans, and that he was entitled to be compensated on the footing of this right having been defeated by the company taking his land, and I am desirous that the opinion of the Court shall be taken upon the point, and to that end I state my award in the form of a case.