Diptee v Williams
| Jurisdiction | Trinidad & Tobago |
| Judge | Narine, J. |
| Judgment Date | 24 July 1981 |
| Neutral Citation | TT 1981 HC 64 |
| Docket Number | No. 1162 of 1976 |
| Court | High Court (Trinidad and Tobago) |
| Date | 24 July 1981 |
High Court
Narine, J.
No. 1162 of 1976
Dr. F. Ramsahoye; with him B.P. Maharaj for the plaintiff.
C. Razack for the defendant.
Contract - Sale of land — Variation
Contract - Sale of land — Performance
This is a purchaser's action for specific performance.
On the 4th September, 1976, the plaintiff entered into a written agreement with the defendant acting through her agent Duval (Associates Limited) for the purchase of freehold property situate at and described as No. 12 Camaca Road, Valsayn, for the sum of $378,500. The plaintiff paid the sum of $30,000.00 as a deposit on account of the purchase price. The transaction was by the said agreement to be finalised on or before the 15th of November, 1976 by the payment of the balance of the purchase price and delivery of possession of the premises.
Time was explicitly made of the essence of the contract. The balance of the purchase price was not paid on the 15th of November. On the 16th the defendant informed Mr. Desmond Duval of Duval Associates Limited that the “contract was off.” On the 17th the defendant's solicitors, J.B. Wilson and Company wrote to the plaintiff informing that his client was treating the agreement as at an end.
On the 22nd of November, 1976, the plaintiff filed this action.
There is no dispute about the facts stated above. There is a denial and indeed very serious dispute about the facts pleaded in paragraph 4 of the statement of claim. The pleading as amended reads:
“On or about the 15th day of October, 1976, the defendant and the plaintiff orally agreed at the request of the defendant to vary the said agreement to the extent that the date of completion be extended to the 30th day of November, 1976, the agreement being evidenced by a letter dated the 15th of November, 1976, written by the agent.”
The defence (as amended) states in paragraph 3:
“Assuming but not admitting the oral agreement referred to in paragraph 4 of the statement of claim, the defendant says that the same is of no legal force and effect since it sought the variation of the agreement referred to in paragraph 1 thereof (agreement dated 4th September, 1976) and ought to be in writing, and the defendant will rely on the provisions of section 4(1) of the Conveyancing and Law of Property Ordinance, Chapter 27, No. 12.”
I think it will be correct to say that the main question of fact in this action is whether there was or was not the oral agreement in paragraph 4 of the statement of claim. The evidence of a finding in the affirmative. According to the defendant about one month after the contract of the 4 th September, she asked Duval to get a smaller house for her to buy. She did not remember if she did so at the meeting convened to discuss the question of the fixtures. She said, however, that in October she told Duval she was looking for a house and had not yet found a suitable place. Whether she had grievously asked Duval to find a place is not absolutely clear, although it does seem so. Desmond Duval's evidence is that, the question of “time” come up at a meeting he had convened to discuss a problem relating to certain fixtures in the house, about which the plaintiff and the defendant had different views; the defendant was having difficulty in finding other accommodation and she asked for an additional two weeks to accommodate herself. The plainftiff's evidence is to the same effect. So too, the evidence of the builder, Vincent Fortune.
On the other hand, the defendant while admitting the meeting set up by Duval to discuss the fixtures, denies that she asked for an extension of time.
I accept the evidence of Desmond Duval and of the plaintiff and of Fortune and find as a fact that at some date between the 4th and the 15th of October, 1976, at the defendant's request, time for the completion of the transaction was extended up to the end of November, 1976.
Having made this concession to the defendant, the plaintiff and no more until he received a letter dated the 17th November, from J. B. Wilson and Company, her solicitors, stating that the defendant was treating the agreement as at an end.
The request for and the agreement to extend the time were made orally.
The question is therefore, what is the effect of that agreement enlarging the time for performance?
Counsel for the defendant contends that the agreement of the 4th September being one for the sale of land is required to be evidenced in writing and that any variation thereof, to be enforceable, must also be in writing, or there be a sufficient memorandum or note thereof to satisfy section 4(1) of the Ordinance.
Section 4(1) of the Conveyancing and Law of Property Ordinance provides as follows:
“No action may be brought upon any contract for the sale or other disposition of land unless the agreement upon which this action is brought or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.”
Vezey v. Rashleigh [1904] 1 Ch. 634 , to which counsel referred is authority for saying that parol evidence is not admissible to prove a subsequent agreement to vary the terms of a contract in writing and by law required to be in writing although it can be admitted to prove recission of such a contract.
Morris v. Baron & Co. H.L . (1918) A.C. 1, in which the authorities were reviewed, is to the same effect. That was a case of sale of goods of value exceeding £10, evidenced in writing as required by section 4 of the Sale of Goods Act, 1893, and it was held that such a contract may be impliedly rescinded by a parol contract thought the subsequent oral agreement was unenforceable by reason of its non compliance with the statute, as there was a clear intention to rescind, distinguished from an intention to vary. At page 31 of the report, Lord Atkin in his opinion to the House made a clear distinction between cases where there is a variation and those cases where one party at the request of and for the convenience of the other forebears to perform the contract in some particular respect strictly according to its letter. This is what His Lordship is reported to have said:
“There is nothing in all this inconsistent with the well established rule that a contract which the law requires to be evidenced by writing cannot be varied by parole: Goss v. Lord Nugent; Stead v. Dawber; Noble v. Ward; Sanderson v. Graves. The foundation, I think, on which that rule rests is that after the agreed variation the contract of the parties is not the original contract which had been reduced in writing, but the contract as varied, that of this latter in its entirety there is no written evidence, and it therefore cannot in its entirety be enforced. There is a clear distinction, however, between “cases such as these and the cases like Ogle v. Lord Vane where one party at the request of and for the convenience of the other forebears to perform the contract in some particular respect strictly according to its letter. As, for instance, where one party, bound to deliver goods sold upon a certain day, at the request of and for the convenience of the other postpones the delivery to a later day.” In such a case a contract is not varied at all, but the mode; and manner of its performance is, for the reasons mentioned, altered.”
Hickman v. Haynes (1875) L.R,. 10 C.P. 598 is another case of sale of goods where the question of parol variation or otherwise was considered. The facts as appear in the headnote of the report will for present purposes, suffice. They are:
“By a written contract the plaintiff agreed to deliver, and the defendants to accept a certain quantity of iron, of a greater value than ten pounds, in the month of June. On the 2nd of June, and again in the middle of June, one of the defendants saw the plaintiffs and verbally requested him to allow the delivery of the iron to stand over, and the plaintiff verbally consented to his request. On the 1st of August plaintiff pressed the defendants to take delivery, and the defendants, some correspondence wrote on the 9th of August asking for further time. The plaintiff again waited, but without result. On the 20th of October the plaintiff brought this action for non-acceptance of the goods in accordance with the terms ofthe written contract.”
It was contended by the defendants that by reason of the arrangement to postpone the delivery and acceptance made before any breach of the contract, the plaintiff could not recover upon the original contract, there never having been readiness and willingness to deliver or any tender of delivery on the plaintiff's part under such contract; and that the plaintiff could not rely on any new or substituted contract at a later date, such contract being verbal only:
Held: that the true effect of what took place between the parties being that the plaintiff voluntarily withheld delivery at the request of the defendants, no new contract being substituted for the original written contract, the plaintiff was entitled to maintain his action.
One passage in the judgment of the court delivered by Lindley J. expresses more eloquently than any attempt on my part, the feelings which I entertain in the present case. It is to be found at page 603 of the report:
“The proposition that one party to a contract should thus discharge himself from his own obligations by inducing the other party to give him time for their performance, is, to say the least very startling, and if well founded will enable the defendant in this case to make use of the Statute of Frauds, not to prevent a fraud upon themselves, but to commit a fraud upon the plaintiff. It need hardly be said that there must be some very plain enactment or strong authority to force the court to countenance such a doctrine.” See also the case of Levey &...
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