Tesco v Constain - Thomson Reuters

(1883) L.R. 22 Ch. D. 441 Page 31883 WL 19585 (CA)(Cite as: (1883) LR 22 Ch. D. 441)after reading the correspondence down to and including the telegram of the 25thof June, 1880, said:--Looking at all that correspondence I can have no reasonable doubt the partieswere then at one, and had agreed to a lease of twenty-one years from Lady Daymentioned in the letter of the 18th of February, at a rent of £80 for thepremises comprised in the existing lease. It seems to me that that is the resultof this correspondence; and that a telegram may be taken to be an acceptance inwriting, is decided by the case of Godwin v. Francis [FN1].FN1 Law Rep. 5 C. P. 295.But I must not stop there, following not only what Lord Cairns expressed, butwhat he actually did in the case of Hussey v. Horne-Payne [FN2]. I must lookthrough the rest of the correspondence to see whether or not these terms, which Iconsider, were concluded at that point, were afterwards in any way modified, orthe agreement which I think up to that point is established, was put an end to.The correspondence goes on thus: [His Lordship then considered the subsequentcorrespondence between the solicitors of the parties, and continued:--] Examiningthe correspondence in order to make out what the real meaning of it is, I cannotavoid coming to the conclusion that there was a definite contract between theparties, that each of them thoroughly agreed that a lease should be accepted andgranted; that the former lease was to be surrendered, and the new lease was to be*445 for twenty-one years from Lady Day, 1880, subject to the agreed rent andupon the terms in all other respects of the former lease, but to be granted to acompany which was to be formed, Mr. Williams guaranteeing payment of rent andperformance of covenants, in fact, joining in the lease for the purpose of givingthe guarantee.FN2 4 App. Cas. 311.Now that being so, I cannot come to any conclusion that this attempt to havethe contract put into a more formal shape in any way destroyed the contract thathad been entered into. Therefore I hold that there was a contract sufficientlyclear and definite to enable this Court to decree specific performance.But several other objections have been raised. Although it is proved thecompany was on the eve of formation, it has not been formed, and at this momentthere is no such company. That is an objection very well worth considering, butthe Court has ample power to prevent the Defendant being injured by that state ofthings, because I am at liberty to put the Plaintiff on an undertaking that thecompany which was contemplated, and to which Mr. Brisco agreed to grant thelease, shall be completely formed in a definite time; and if it is not, I retainthe power of dismissing this action with costs. I am told that an undertakingwill be given, and that the company will be completely and properly formed withina month from this time; and on that undertaking I think I am bound to overrulethat objection, and not consider it as an obstacle to my granting specificperformance.[His Lordship then considered the objections which had been made on the groundthat the terms of the new lease did not sufficiently appear in the letters, andexpressed his opinion that taking the whole of the correspondence together theterms of the new lease could be clearly made out. His Lordship then continued:--]Therefore, upon the whole, I think I am bound to declare that in this casethere is on the correspondence a contract by Mr. Brisco to grant a lease of thepremises comprised in the then existing lease for twenty-one years commencingfrom Lady Day, 1880; that existing lease to be surrendered, and the rent to be£80 a year instead of £50; the lease to be granted to the *446 company within amonth from this date, and within that time the Plaintiff to guarantee the paymentof rent and performance of covenants.(C. M.)Copr. © West 2004 No Claim to Orig. Govt. Works