Tesco v Constain - Thomson Reuters

(1883) L.R. 22 Ch. D. 441 Page 11883 WL 19585 (CA)(Cite as: (1883) LR 22 Ch. D. 441)*441 Williams v. BriscoCourt of AppealCAJessel, M.R., Cotton and Bowen, L. JJ.1882 Nov. 21Chancery DivisionKay, J.1882 Feb. 21Specific Performance--Condition Precedent--Agreement to grant Lease to Nomineeof Plaintiff--No Nominee appointed--Agreement by Letter--Statute of Frauds.A lessee wrote to his lessor offering to surrender his lease and to take afresh lease for twenty-one years to a nominee, or to a company which he intendedto form, at an increased rent, but otherwise on the same terms as the existinglease; and by a subsequent letter offered to instruct his solicitor to prepare adraft lease. The lessor telegraphed to him in reply to get the lease prepared.Afterwards correspondence took place between the solicitors as to the form of thelease, and the lessee's solicitor prepared a formal agreement. Differences havingarisen, the lessor refused to grant the lease, and the lessee brought an actionfor specific performance of the agreement to grant a lease and for damages. Nocompany had been formed and no nominee appointed by the Plaintiff before thetrial of the action:--Held, (reversing the decision of Kay, J.), that assuming that there was abinding agreement for a lease, the formation of a company or appointment of anominee was a condition precedent, and that the Plaintiff could not *442 maintainan action for specific performance of the contract, as he had not performed thecondition.But, held, also, on the construction of the correspondence, that there was nobinding agreement between the parties, and therefore the action entirely failed.THE Plaintiff, Griffith Williams, claimed by his statement of claim specificperformance of an agreement that the Plaintiff should surrender a certainindenture of lease to the Defendant, Wastel Brisco, and that the Defendant, inconsideration of an advanced rent of £80, should accept such surrender and granta fresh lease to the nominee or nominees of the Plaintiff at the said advancedrent but otherwise on the terms of the existing lease. The Plaintiff also askedin the alternative for damages for breach of the agreement.The Defendant put in a defence in which he stated that he was only tenant forlife of the premises, and denied that any agreement had ever been concluded; andpleaded the Statute of Frauds. He also denied that the Plaintiff was ever readyand willing to perform the agreement on his part.The Plaintiff was a timber merchant at Aberystwyth. The premises at which thebusiness was carried on were held under a lease granted on the 3rd of March,1876, by the Defendant's father for a term of twenty-one years at the rent of £50. The Plaintiff proposed to form a limited company for carrying on the businessand to surrender the old lease and procure a fresh lease to be granted to the newcompany.No formal agreement had been drawn up, but the Plaintiff sought to prove theagreement by a series of letters between the parties. The principal of these areas follows:--Copr. © West 2004 No Claim to Orig. Govt. Works