Tesco v Constain - Thomson Reuters

(1883) L.R. 22 Ch. D. 441 Page 41883 WL 19585 (CA)(Cite as: (1883) LR 22 Ch. D. 441)From this judgment the Defendant appealed.The appeal came on to be heard on the 21st of November, 1882.Crossley, Q.C., and Laing, for the Appellant:--Where it is attempted to make out an agreement by letters it is incumbent onthe Plaintiff to shew distinctly that all the terms were defined, and that theywere all agreed to at one time by both parties. The Plaintiff has not shewn thisin the present case. The date of the commencement of the term had not beenmentioned before the telegram of the 25th of June, 1880, on which the Plaintiffrelies, was sent. The whole correspondence was only negociation: Marshall v.Berridge [FN3]; Hyde v. Wrench [FN4]. The subsequent letters which passed betweenthe solicitors shew conclusively that the parties did not consider themselvesbound by what had taken place. The whole correspondence must be looked at, forsubsequent letters often throw light upon the intention of the parties asexpressed in previous letters: Hussey v. Horne-Payne [FN5].FN3 19 Ch. D. 233.FN4 3 Beav. 334.FN5 4 App. Cas. 311.But even if there was a concluded agreement the Plaintiff cannot maintain thisaction. The lease was to be granted to a nominee of the Plaintiff or to a companyto be formed, but no nominee has been appointed and no company has been formed.The Plaintiff ought to have been in a position to aver that a company had beenformed and that they were ready to accept the lease.Higgins, Q.C., and Fellows, for the Plaintiff:--There was a concluded agreement when the telegram of the 25th of June, 1880,was sent. The term is sufficiently indicated. It is to be for twenty-one yearscommencing from Lady Day, 1880. The subsequent letters between the solicitorscould not *447 affect this agreement. They were imperfectly informed of what hadreally taken place.With respect to the objection that a company has not been already formed, weare ready and able to form one before the lease is granted. It is sufficient ifwe are ready to perform the contract when the lease is tendered. In an ordinarysuit for specific performance between vendor and purchaser it is sufficient ifthe vendor shews a good title when the inquiry as to title is made.JESSEL, M.R.:--This appeal from a decision of Mr. Justice Kay raises two points. The first iswhether, supposing there were a binding contract to grant a lease of the propertyin question, there could be a decree for specific performance of it to a nonexistingcompany, a point which, so far as I know, is entirely new. The otherquestion is whether there was any binding contract at all which could sustain theaction either for specific performance or damages.As to the first point, I think that such a decree could not be supported. Thecontract for which specific performance is sought was of this kind, it was togrant a lease to the nominees of the Plaintiff. The lease cannot be granted tillhe has appointed a nominee, and until the nominee has accepted the proposedlease. Such a contract is common enough in the case of building leases betweenthe freeholder and the builder. The nominee is generally the purchaser of thehouses and the lease is granted to him, but the contract can never be enforcedtill the nominee is appointed. In the present case the lease was to be granted toCopr. © West 2004 No Claim to Orig. Govt. Works