Walker (Orville Fitzroy) and Others (Executors of the will of Newton Eric Walker) v George Lawrence and another

• Jurisdiction: Jamaica
• Judgment Date: 03 November 2006
• Judgment citation (vLex): [2006] 11 JJC 0304
• Docket Number: CLAIM NO C. L. 1998/W-101
• Date: 03 November 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BROOKS, J

CLAIM NO C. L. 1998/W-101

BETWEEN

ORVILLE FITZROY WALKER

1 ^ST CLAIMANT

AND

ORVILLE FITZROY WALKER & MERLE YVONNE SHAW (Executors of the Will of Newton Eric Walker)

2 ^ND CLAIMANT

AND

GEORGE LAWRENCE

1 ^ST DEFENDANT

AND

GERDA LAWRENCE

2 ^ND DEFENDANT

^st

REAL PROPERTY - Sale - Enforceability of contract

1 Mr. George Lawrence has a classic case of vendor's remorse. In February 1990 he signed an agreement to sell a portion of land that he owned jointly with his wife. The purchasers were Messrs. Newton and Orville Walker. Mr. Lawrence's wife refused to sign the agreement. There was an extended delay and by November 1993 Mr. Lawrence no longer wanted to proceed with the agreement. Whether it was that he believed the price to be too low or because of his wife's stance is not known. He offered to return their money to the Walkers but they refused.

2 The Walkers sued Mr. Lawrence for specific performance or damages in lieu thereof. Mr. Newton Walker has since died. Newton's executors (one of whom is Orville) and Orville have continued the court action. They claim firstly, that Mr. Lawrence signed on behalf of his wife. In the alternative they claim that Mr. Lawrence falsely represented that his wife would sign the agreement. Mr. Lawrence, for his part, says firstly, that there was no contract because Mrs. Lawrence did not sign. Secondly, he denies ever making any representation concerning her signing.

3 The issues to be decided are:

1

Whether there is a concluded contract for the sale of the land, and, 2. Whether Mr. Lawrence made any statements to the purchasers which would make him liable for fraudulent misrepresentation and/or deceit.

4 In assessing each issue, further facts will be provided in order to assist the reasoning. At the outset however, I shall outline that the land in question comprises one-quarter acre, and is part of a two-acre (approximately) parcel of land comprised in a certificate of title registered at Volume 1170 Folio 287 of the Register Book of Titles. The land is situated at Huntley, in the parish of Saint Ann. Mr. and Mrs. Lawrence are described on the title as, "the proprietors of an estate as Joint Tenants in fee simple".

5 The sale document is said to have been signed in or about February, 1990. It contemplated that a surveyor would have ascertained the smaller parcel and that subdivision approval would have been secured.

6 For convenience, I shall refer to Mr. Orville Walker as 'Orville', and to his father as 'Newton'. I mean no disrespect by the reference.

7 Application to amend the particulars of claim

8 At the commencement of the trial, Mr. McBean for the Walkers, applied to amend the particulars of claim to add a claim for damages for deceit. Mr. Thomas, who is counsel on behalf of Mr. Lawrence, opposed the application stating that it would add a cause of action in circumstances where the limitation period had already run. In light of the recent (unreported) decision in The Jamaica Railway Corporation v. Mark Azan SCCA 115/05 (delivered 16/2/06) I am of the view that since the facts supporting the claimed cause of action were already pleaded, and that no additional facts would be pleaded, it is permissible to grant the application.

9 Whether there is a concluded contract for the sale of the land

10 The answer to this question would, at first blush, seem to be simple. Special Condition 4 of the sale agreement document stated:

"It is a condition precedent to the coming into effect of this Agreement that same shall first be signed by both Vendors and Purchasers."

11 Since Mrs. Lawrence has not signed, it would seem straightforward to conclude that there is no contract in place. However, in assessing this issue, there are two supplemental questions. The first is whether Mr. Lawrence signed on behalf of both vendors. The second is whether Mr. Lawrence's action constituted an act of partition of the legal interest in the land.

12 Did Mr. Lawrence sign on behalf of both vendors?

13 Orville has averred in the Statement of Claim that the "agreement was executed by...Mr. George Lawrence, on behalf of the vendors". This was, however, not supported by the evidence. Orville, in his witness statement, said that the Sale Agreement document was drafted by Mr. Lawrence's Attorney at Law, Mr. George Thompson. He said (at para. 8), "Mr. Thompson...assured us that he would have Mrs. Lawrence's signature at the appropriate time." At paragraph 12, Orville continued, "we were given the impression by Mr. Lawrence that his wife was a party to the agreement and was willing to and would execute the agreement for sale and that he and his wife would complete the sale transaction". The clear impression is that it was always intended that Mrs. Lawrence would sign on her own behalf. This was clear from the outset because the document has a provision for Mrs. Lawrence's signature. Mr. Lawrence did not sign at that location.

14 There are also letters in evidence from Mr. Thompson which address the point. One is addressed to Orville. It is dated 7 ^th August, 1991 and states in part: "Mrs. Gerda Lawrence the wife of George Lawrence has not yet signed the Documents but as soon as you have signed them I would ask Mr. Lawrence to get her to sign also".

15 On this evidence, it is clear that Mr. Lawrence did not sign, or purport to sign, on behalf of Mrs...