Grant v Williams
| Jurisdiction | Jamaica |
| Judge | Kerr, J.A.,Carberry, J.A.,White, J.A. |
| Judgment Date | 25 June 1987 |
| Neutral Citation | JM 1987 CA 103 |
| Docket Number | Civil Appeal No. 20 of 1985 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 June 1987 |
Court of Appeal
Kerr, J.A.; Carberry, J.A.; White, J.A.
Civil Appeal No. 20 of 1985
Dennis Goffe and Norman Davis for the appellant.
John Vassel for the respondent.
Contract - Breach of contract — Agent told by the plaintiff to seek offers for the purchase of property — The agent procured the defendant as a prospective buyer and signed on the plaintiff's behalf the documents authorizing the transfer of property stating that the agent did not have the power of attorney — Plaintiff claimed specific performance of the contract — Exchange Control Act — Illegality concerning the consent needed for the formation of the contract is no defence — The contract is enforceable — Appeal dismissed.
The respondent as prospective purchaser on May 11, 1981 signed an agreement for sale of No. 48 Chestervale Avenue, Kingston 20 in the parish of St. Andrew. The appellant was the owner and she was described in the agreement as the vendor of “1 Central Road, Kingston 13 in the Parish of St. Andrew.” The agreement was signed by Eric Frater (Attorney-at-Law) as agent for her. The purchase price was $33,500.00 and the deposit was acknowledged thereon was $3,500.00. The 31st day of August, 1981 was stated as the date for completion and there was the usual “special condition” that the contract was subject to the purchaser obtaining a mortgage within the time stipulated for completion. The respondent duly obtained a mortgage commitment from the Victoria Mutual Building Society and was ready, willing and able to complete. He was put in possession in August 1981.
Unable to obtain a transfer because of a dispute between the appellant and Frater as to Frater's authority to enter into the transaction. by Writ dated 3rd August, 1982, he brought an action for breach of contract praying, inter alia, for an order for specific performance. In the pleaded defence the appellant denied that Frater was her agent for the purpose of selling the premises, the subject of the action, or that he was ever authorised to enter into any agreement for the sale of the said premises.
Now despite the address of the appellant in the agreement for sale, she was in fact at all material times resident in the United States of America. It is not clear whether or not the plaintiff was aware of this. Downer, J., generously permitted an amendment to the defence to raise for the first time the question whether or not the contract was illegal as being in breach of certain provisions of the Exchange Control Act. In the end the learned judge, however, held in effect (i) that Frater had the necessary authority as agent for the appellant to enter into a binding contract and to sign the agreement for sale, and (ii) that the contract was valid and enforceable as the prohibitory provisions of the Exchange Control Act were concerned with performance and not with the formation of the contract.
He gave judgment for the respondent with the following consequential Orders:
“1. That there be judgment for the plaintiff against the defendant for specific performance of the contract of sale of land, the subject of this suit.
2. That the Registrar of Titles is directed to substitute the plaintiff's name for that of the defendant on the Register Book of Titles and on the duplicate certificate of Titles issued in respect of the said land, upon terms that the plaintiff, within six (6) weeks of the date hereof, pay into Court the purchase money and incidental costs of the transaction, less the deposit which had been paid to Mr. Eric Frater.
3. Mr. Eric Frater to pay the said deposit of $3,500.00 into Court within four (4) weeks of the date hereof.
4. Myers, Fletcher & Gordon to have carriage of sale and the defendant's costs of the transfer to be paid from the sum of $3,500.00 paid to Mr. E. Frater. If the said sum is insufficient to cover these costs, the shortfall is to be made up from the purchase money paid into Court on application to the Registrar of the Supreme Court.
5. That upon being satisfied that these Orders have been complied with, the Registrar of the Supreme Court shall inform the Registrar of Titles that the plaintiffs name be substituted on the Register Book of Titles as aforesaid.
6. That the Registrar of the Supreme Court inform the Bank of Jamaica of the payment into Court of the purchase money as aforesaid for the defendant pursuant to the Exchange Control Act.”
On appeal, the attorney for the appellant challenged the learned trial judge's decision on the two questions set out above.
Now the respondent in evidence said that when he learnt that Frater was no longer retained in the matter he wrote to one Mrs. Fernandes, Attorney of the firm of Myers, Fletcher & Gordon, who were then the attorneys for the appellant, and was informed that Frater had no authority to sell and that the purchase price was $40,000.00 later he received a letter from the same firm that the purchase price was now $42,500.00 since he has been in occupation he has spent $1,200.00 to $1,400.00 “to make the place habitable.” He exhibited a written notice to quit dated 12th March, 1982 for expiry on 30th April, 1982, given on behalf of the appellant and the reason stated therein was that the premises were sold and the purchaser wanted vacant possession.
Frater as witness for the plaintiff gave evidence tending to prove he had the necessary authority to sell. He said that in March or April, 1981 the appellant had consulted and retained him in three matters, two of which related to 48 Chestervale, namely (1) to collect rent from the tenants, and (2) to sell the premises and to act as Attorney-at-Law having the carriage of the sale. He exhibited a letter to him drafted and signed by the respondent and which was left at his office. The operative part of which reads:
“Re: 48 Chestervale Ave. Pembroke Hall, Kingston 20
Dear Mr. Frater,
Please accept this letter as your authority to represent me as Attorney in the sale of the above property at a sale price of $35,000.00 or within this immediate price range.
You are further authorised ( sic) to collect the outstanding rent arrears of $700.00 covering January 1 through May 1, 1981 and future rentals of $140.00 per month which is due on the first (1st) of each month from Mr. E. Marshall.
Monies collected should be used to pay the mortgage and your fee which you have agreed to be 10% of the monthly rentals collected.
In addition I have agreed for you to take such steps you deem necessary to recover any outstanding balances.”
In this regard Mr. Frater also gave supplementary evidence of conversations with the appellant, that she instructed him that from the purchase money he should pay off an outstanding mortgage with the Insurance Company of the West Indies (I.C.W.I). He exhibited a copy of her letter to the Company, advising that he was representing her as attorney in the sale of the premises, and that the Certificate of Title should be forward to him. He said that she had asked Bailey, the estate agent, and she had been advised to sell for $30,000.00. She gave him a draft agreement signed only by a prospective purchaser and he was authorised to sign it on her behalf. The price therein was $30,000.00. She however, wanted $35,000.00. He advised that if she wanted a better price she should repair before selling and that $33,500.00 as is, was a better price as in a sale by him there would be no finder's fees on commission. On the basis of these instructions he advertised in the Gleaner and wrote the Insurance Company to send him the title. He got a reply from Myers, Fletcher & Gordon about the title. He then felt he had the necessary authority to sell the premises. Many of the offers in response to his advertisement were below $30,000.00. Respondent was the first to look at the premises. The price was agreed upon. The respondent's prospective mortgagee, Victoria Mutual Building Society, approved of the sale. In one of his regular telephone conversation with the appellant he advised her of the proposed sale, and of the “special condition”, she agreed and told him to sign on her behalf. He did so and received the deposit. In late August or early September when she wanted him to render an account, he told her it would be better to wait until the sale is completed.
Then followed a letter dated September 25, 1981, to him from the appellant's New York Attorneys, Fenwick, Stone, Davis and West, which in its operative part reads:
“Re: 48 Chestervale ( sic) Avenue, Pembroke Hall, Kingston 29
Dear Mr. Frater:
At the request of Barbara Grant Parry, we have been instructed to inquire into the status of the above-mentioned property.
It is our understanding that you are in the process of attempting to sell the above property for Mrs. Parry and have entered into an Agreement for Sale with a prospective buyer. Please be advised that before proceeding any further in the proposed sale, Mrs. Parry would like to receive a copy of all documents relating to the sale along with a complete breakdown of all fees and taxes arising from the sale of the property (i.e. Legal fees, Transfer Tax, Stamp Duty, Registration Fees, Transfer Fees, etc.).
We also wish to notify you that Mrs. Parry has never given you the Power of Attorney to sign documents on her behalf or to transfer property without her final signature and approval. Mrs. Parry has simply authorised you to act as her agent in locating a buyer for the property mentioned and for drafting all necessary documents accompanying any sale thereof. Please understand that all Agreements must be signed by Mrs. Parry before they will be binding on any of the parties.
If you have any questions or wish further clarification please contact me. Thanking you in advance for your anticipated cooperation.”
Frater's reply dated 16th October, 1981 informed that Myers, Fletcher and Gordon, Manton and...
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