Yassin v Agerton
| Jurisdiction | Caribbean States |
| Judge | Archer, J.,Wylie, J. |
| Judgment Date | 27 July 1959 |
| Court | Federal Supreme Court (West Indies) |
| Docket Number | Appellate Jurisdiction No. 15 of 1959 |
| Date | 27 July 1959 |
Federal Supreme Court (On appeal)
Archer, C.J., Wylie, J.A. and Lewis, J.A.
Appellate Jurisdiction No. 15 of 1959
Mr. A.S. Manraj, instructed by Mr. O.M. Valz, for the plaintiff-appellant.
Mr. S.D.S. Hardyal, instructed by Mr. C.M.L. John, for the defendant-respondent.
Contract - Sale of land — Performance
I have had the advantage of reading the judgment prepared by Mr. Justice Wylie and I am in full agreement with it.
The respondent was the owner of a lot of land known as lot 41 (or 34) situated at the corner of High and Harel Streets in the Werk-en-Rust Ward in the city of Georgetown, and of the buildings and erections standing thereon. On the 27 th May 1955, after negotiations which are referred to in more detail later in this judgment, she entered into a written agreement to sell to the appellant the eastern half of the property with the buildings and erections thereon, intending to retain the balance for herself. In pursuance of the terms of the agreement, the appellant entered on the land and did repairs to the building. The appellant subsequently discovered that one of the buildings he had purchased encroached on the western half of the property and called upon the respondent to convey to him so much of the land on the western side as accommodated that building or to grant him a long lease of it. The respondent, after at first agreeing, ultimately refused to comply with his demand contending that the appellant had agreed to buy only the eastern half of the property. The appellant brought an action for specific performance of the agreement and asked for rectification of the written instrument so as, to include so much of the western half of the promises as would enable him to enjoy the property he had purchased. In an oral judgment delivered at the trial on 10 th March 1959, the trial judge ordered specific performance of the written agreement but refused to order rectification of it. In setting out his, reasons for his judgment subsequently, the learned trial judge states that he, refused to order rectification on the ground that there had been no mutual mistake and that the parties were fully aware of what they were buying and selling. The appellant contends that the order made by the judge does not conform to his findings of fact and seeks from this Court a variation of the order providing for rectification of the contract. The respondent seeks variation of the order to provide for rescission of the contract.
It is logical, before considering whether specific performance should be ordered, to consider the claim of the respondent for rescission and the claim of the appellant for rectification. As both these claims are founded on an allegation of mistake, it is convenient to consider first exactly what the parties agreed to and secondly whether the written agreement (exhibit B) accurately records the details of this agreement.
The first question involves a review of the evidence and the inferences to be drawn therefrom. The trial judge has stated that he believed the plaintiff and accepted his evidence. He had the usual advantages in this respect and I do not see any reason why this court should disagree with this view of the trial judge. The question therefore involves a review of accepted evidence to consider what inferences should be drawn therefrom. There is no need to refer to, the various authorities which support the proposition that an appellate court is usually in as good a position as the court of first instance to consider what inferences should be drawn from accepted evidence and is therefore entitled, and indeed bound; to review the findings of the court below based on inferences to be drawn from the accepted evidence.
This evidence establishes that the appellant who is a merchant, was interested in the two buildings on the eastern part of the property because that corner is a business locality, that in April 1955, when the appellant first went to inspect the property the respondent's agent, said the respondent wanted. $10,000, for the two buildings and later the respondent herself told the appellant she was selling the two buildings and the land and retaining the other two buildings and the land on the western side. The respondent also confirmed that she wanted $10,000, for the two buildings and the land. On 27 th May 1955, the respondent's agent called on the appellant and took him back to the premises, when the respondent agreed to accept the appellant' s offer of $9,000. At that stage, it is abundantly clear that the respondent and the appellant had the intention of selling and buying the two buildings and the eastern part of the land on which these buildings stood and had verbally agreed to this sale and purchase for a price of $9,000.
The parties, then went into the respondent's house, when the agreement (exhibit B) was drawn up by the, appellant. Before he drew it up, however, he asked if the property was “properly divided” The respondent said “yes, the property is properly divided” and produced two certificates (exhibits A 1 and 2) purporting to be, certificates given by the town clerk of Georgetown under section 129 of the Georgetown Town Council Ordinance 1918, certifying that the provisions of that ordinance with respect to subdivision of lots would not be contravened by the passing of transport for either the eastern half or the western half of the respondent's property. According to the record of the appellant's evidence, which the trial judge accepted, this was the first reference to the eastern “half”. The only possible inference to be drawn from this evidence is that the respondent was representing to the appellant that the property, the subject of the sale, which the parties had twice inspected together, was correctly described as the “eastern half” of the respondent's properly and the sub-division was authorized by the certificates for the purposes of transport. And in consequence the appellant wrote out the agreement (exhibit B) describing the property that was agreed to be sold and purchased in the following terms:
“Property purchased:- East half of lot forty-one (41) of thirty-four (34) High and Harel Streets, in Werk-en-Rust Ward in the City of Georgetown, and county of Demerara, with all the buildings and erections thereon”,
Subsequently, when the appellant consulted a carpenter as to the erection of paling, it was found that the two buildings the appellant had agreed to purchase encroached on the western half of lot 41 and the appellant took the respondent to his solicitor where she was informed of the encroachment, expressed surprise and vein referred, to the two certificates (exhibits A 1 and 2). The solicitor pointed out that the certificates appertained only to division of land and not to the buildings and the plaintiff stated in his evidence that the defendant then consented to give a lease of the strip of land on which the two buildings rested. This is the evidence of the appellant which the trial judge states he accepted, although it is not clear whether the trial judge accepted the evidence that, before the solicitor, the defendant had agreed to the proposal for a lease. There is certainly no express finding to that effect. In view of the consequences that might follow if there had been such a finding amounting to a variation of the original agreement, one would have expected some reference in the reasons for judgment. As there is none, I assume, for the purposes of my judgment, that the trial judge made no finding in relation to this allegation.
In my judgment, this evidence establishes beyond any reasonable doubt that the parties negotiated for, and agreed to sell and purchase, the two buildings and the land on which they stood. This conclusion is confirmed by the admission of the respondent in cross-examination that she intended to sell the buildings and the land on which the buildings were. The evidence equally establishes that, due to the misrepresentation (presumably innocent) by the respondent that these buildings stood on the eastern half of lot 41, the land is correctly described in the agreement leads to an absurd result, because the agreement speaks of the “eastern half together with all the buildings and erections thereon.” There has not at any stage been any dispute between the parties as to the buildings sold and it is now common ground that those buildings encroach on the western half of the lot. Consequently, it is clear that this description of the buildings agreed to be sold could not be correct. As there has never been any dispute concerning the buildings and no suggestion whatever that the buildings were sold for removal, it is abundantly clear that there must be a misdescription of the land agreed to be sold. Otherwise the appellant could not enjoy the full benefit of all that he had bought. It is equally clear that that misdescription was caused, by the respondent's misrepresentation.
In these circumstances the respondent's claim for rescission must fail. The intention of a party to a contract is, in general, to be inferred from his conduct. The conduct of the respondent in the negotiations with the appellant shows a clear intention to sell the buildings and the land on which they stood. This was also the intention of the other party. The only common mistake in this case has been in describing the property sold. This is not so fundamental a mistake as would justify rescission, and in any case this mistake has been brought about solely as a result of misrepresentation on the part of the party asking for rescission. For these reasons the claim for rescission must fail. See Solle v. Butcher [1950] 1 K.B. 671, and especially the summary in the judgment of Denning, L.J. at p.692 et sequ. as to the conditions under which an order for rescission will be made on the ground of common mistake.
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