Nicholls v Walwyn

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 29 November 1976
• Neutral Citation: KN 1976 HC 5
• Docket Number: No. 24 of 1976
• Date: 29 November 1976

High Court

Glasgow, J.

No. 24 of 1976

Nicholls

and

Walwyn

Appearances:

C.F. Henville with him D. Byron for plaintiff

F.E. Kelsick with him E. Walwyn for defendant

Contract - Formation.

Facts: The plaintiff sought damages for breach of contract against the defendant. The plaintiff alleged that there was a contract partly oral and partly in writing between the parties relating to the purchase by the defendant of the plaintiff's hotel. The defendant had signed the agreement. Whether there was an enforceable contract between the parties.

Held: That there was no enforceable contract between the parties since the expression in the agreement “in accordance with a deed of mortgage to be given later” was too vague to be given any definite meaning.

Glasgow, J.

1 The Plaintiff's claim against the Defendant is for damages for breach of contract partly oral and partly in writing allegedly made between the Plaintiff and the Defendant in or about October 1974, relating to the purchase by the Defendant of the Plaintiff's hotel. Alternatively, the Plaintiff claims specific performance of the said contract. The Defendant admits in his Statement of Defence that he signed a purported agreement in his private capacity dealing with a proposal for the purchase of the Plaintiff's hotel and dated 14 ^th October 1974, but the Defendant denies that the said agreement contained all the material terms relative to the transaction. The Defendant denies that any provisions for a mortgage were ever agreed upon between himself and the Plaintiff at any time. The Defendant also admits paying to the Plaintiff a sum of $50,000.00 on account of a purchase price of $800,000 under the said purported agreement of 14 ^th October 1974 but denies taking possession of the Plaintiff's Hotel with or without the Plaintiff's permission or at all, and also denies that the payment of $50,000.00 entitled him to take possession of the Plaintiff's hotel. The Defendant counterclaims against the Plaintiff for (1) a declaration that the purported agreement of 14 ^th October 1974 be rescinded and/or declared a nullity and/or declared void for uncertainty, and (2) the return of $50,000.00 paid on account of the purchase price.

2 The facts, as I find them, are as follows: The Plaintiff is a hotelier and owner of the property known as Pinney's Beach Hotel situate in the Island of Nevis (hereinafter sometimes referred to as the hotel) and the Defendant is and has been for the past twenty-one years, the Managing Director of they Nevis Co-operative Banking Company Limited (hereinafter sometimes referred to as the Co-operative Bank).

3 The Plaintiff built the hotel with financial assistance obtained asking mainly from the Bank of America and the Co-operative Bank. The money which the Plaintiff borrowed from the Bank of America was secured by a mortgage on the hotel, but the only thing which the Co-operative Bank held by way of security for the considerable sums of money it made available to the Plaintiff was an insurance policy on the Plaintiff's life. When the hotel was opened in 1968 it had only eleven rooms. The Plaintiff gradually increased the number of rooms. At the time of the hearing of the action the hotel boasted 36 rooms.

4 On the 30 ^th July 1973 the Plaintiff entered into an agency agreement with one Marie Cantwell of the United States of America, whereby the Plaintiff granted to Mrs. Cantwell for a period of six months from the date of the agency agreement the exclusive right in the United States of America to sell the hotel for a purchase price of $400,000.00 United States currency, of which one-third was to be paid at the date of settlement, “with the balance to be paid interest only at the rate of eight per cent (8%) per year and the principal to be paid in full within five (5) years”. Mrs. Cantwell's agency agreement was extended for a further period of three months, but she was unable to sell the hotel.

5 The Defendant was aware of the Plaintiff's efforts to sell the hotel. Prior to the death of the Defendant's wife in September 1971 the Defendant and his wife had meals at the hotel on several occasions. They paid for those meals. The Defendant's wife went to Jamaica for medical treatment. During her absence, the Defendant had his midday meals at the hotel. When the Defendant's wife died, the Defendant asked the Plaintiff what it would cost him to continue having his midday meals at the hotel. The Plaintiff replied, “Mr. Walwyn, I would not charge you because the relationship between us is very good. You've been very helpful to me”. That was an understatement. It was the Defendant who, as Managing Director of the Co-operative Bank, had made available to the Plaintiff the considerable sums of money already referred to. The Plaintiff also showed his gratitude by ministering to the Defendant on a few occasions when the Defendant was ill. The Defendant was, at all times material to this action, over 80 years of age. It is true that the Plaintiff and the Defendant were good friends.

6 On the 16 ^th July 1974 the Plaintiff was in St. Kitts at the Seaside Hotel when he received a telephone call from the Defendant who was in Nevis. The Defendant wanted to know if the Plaintiff was willing to sell the hotel, and the Plaintiff told the Defendant that he was willing to do so if the Defendant was willing to buy it. The Defendant asked the Plaintiff when he was coming back to Nevis. The Plaintiff told the Defendant that he would be returning to Nevis on the afternoon of the following day. The Defendant then told the Plaintiff that he wanted something urgent from him not later than the afternoon of the 16 ^th July 1974. The Defendant said to the Plaintiff; “I want you to write down the amount of money that you are asking, together with the interest. I am asking you for sixty days in which I would make my first down payment. Make two copies, sign one and send both copies to me. When you come to Nevis I will have your copy signed to deliver to you”. The Plaintiff accordingly had a document typed in triplicate by his daughter, Dolores Nicholls. He sent two copies of the said document to the hotel, addressed to the Defendant. The said document reads as follows:

7 “16th July, 1974

8 Mr. Daniel R. Walwyn,

9 Bath Village,

10 Nevis

11 Dear Sir,

12 I beg to inform you that I have decided to sell you the Pinneys Beach Hotel with its least, fixtures, furnishings, therein for the sum of $850,000.00 E.C.C. (Eight hundred and fifty thousand dollars, East Caribbean Currency)

13 Terms are as follows:

• (i) The sum of $300,000.00 (Three hundred thousand dollars to be paid within 60 days from 16 ^th July 1974

• (ii) The balance of $550,000.00 to be paid in 5 years at a yearly instalment of $100,000.00.

• (iii) Quarterly interest at the rate of 8 ¹/₂% until full payment.

• (iv) Mortgage on property “Pinneys Beach Hotel” would be drawn up in the interest of both parties concerned

  With best of luck for the future.

I remain

Yours respectfully

(Sgd.) W. Nicholls”.

14 The Plaintiff returned to Nevis on the afternoon of the 17 ^th July 1974 and went to the Defendant, who acknowledged receipt of the two copies of the said document. The Defendant also told the Plaintiff that he had delivered the copies to his son, Mr. Eugene Walwyn. The Defendant promised to put, them into proper shape and to return a signed copy to made the Plaintiff. The Plaintiff asked the Defendant why he was dealing with the matter with such urgency. The Defendant told the Plaintiff that his son was expecting some investors very soon and that if he got sate for the hotel he would resell it. On or about the 17 ^th September, 1974 the Plaintiff went to the Defendant and told him that the time for making the first down payment had expired. The Defendant informed the Plaintiff that his son Eugene was out of the State and that they could not do anything until he returned because he was putting up a portion of the money. The Defendant promised to call the Plaintiff as soon as he got in touch with his said son.

15 On the 12 ^th October 1974 the Plaintiff went to the Defendant's home. The Plaintiff told the Defendant that a man had just telephoned him from Canada saying that he heard that the hotel was for sale and expressing a desire to invest in a hotel in Nevis. The Plaintiff said that when he told the man that the hotel was for sale the man requested that a room in the hotel be reserved for him for February when he would be coming. The Defendant asked the Plaintiff if he told the man how much he wanted for the hotel. The Plaintiff said that he told the man that he wanted $550,000.00 Canadian currency. The Defendant told the Plaintiff that that was good and that he should sell the hotel. The Plaintiff then said to the Defendant: “Mr. Walwyn, I am hard pressed for some money now. If you would take over the hotel from me for $800,000, pay the debt to the Nevis Co-operative Bank and the Bank of America, you can give me $50,000 on account. I will wait on you for the balance”. The Defendant told the Plaintiff that the Co-operative Bank was not open on that day, which was a Saturday, but that if the...