Nicholls v Walwyn

• Jurisdiction: Saint Kitts and Nevis
• Judge: Peterkin, J.A.
• Judgment Date: 31 March 1977
• Neutral Citation: KN 1977 CA 1
• Docket Number: No. 1 of 1977
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 31 March 1977

Court of Appeal

St. Bernard, C.J. (Ag.) Peterkin, J.Renwick, J.(Ag.)

No. 1 of 1977

Nicholls

and

Walwyn

Appearances:

Dr. W. Herbert for the plaintiff

D. Byron with him

Mr. F Kelsick for defendant

E. Walwyn with him.

Contract - Certainty.

Facts: Appeal against the dismissal of the appellant's claim for damages for breach of contract or in the alternative specific performance of the contract. Whether there was on the evidence an enforceable contract between the parties. Finding that there was no enforceable contract between the parties. That the agreement was not concluded because the expression “in accordance with a deed of mortgage to be given later” was too indefinite to be given any meaning by the court.

Peterkin, J.A.

1 This is an appeal against the judgment of Glasgow, J. in which he dismissed the plaintiff/appellant's claim for damages for breach of contract or, in the alternative, for specific performance of the contract, and in which he allowed the defendant/respondent's counterclaim and ordered the return of $50,000.00 paid on account of the purchase price. The grounds of appeal are:

• (1) That the learned judge erred in finding that no enforceable contract between the parties was concluded

• (2) That the learned trial judge erred in that he failed to find the terms of the letter of 16 July, 1974 were capable of being read into the agreement in order to determine the terms of the mortgage

• (3) That the learned trial judge should have found the statement made that on the 23rd of July 1974 by the defendant's solicitor said to the plaintiff “I will draw a mortgage in your favour” was proof that all material terns of the mortgage were settled.

• (4) That the finding of the judge was unreasonable having regard to the evidence.

• (5) That the judge erred in ruling that the $50,000.00 should be refunded.

2 The facts as found by the trial judge are as hereunder stated. The appellant is a hotelier and the owner of the property known as Pinney's Beach Hotel in Nevis. The respondent has been for the past 21 years the Managing Director of the Nevis Co-operative Banking Company Ltd. They were good friends. The appellant built the hotel partly with financial assistance obtained from the Co-operative Bank. The respondent was aware of the appellant's efforts to sell the hotel, arid on 16th July, 1974 while the appellant was in St. Kitts he received a telephone call from the respondent in Nevis asking him if he was willing to sell him the hotel. The appellant replied that he was willing to do so if the respondent was willing to buy it. The respondent then told the appellant that he wanted something urgent from him not later than the afternoon of 16th July, and that he wanted him to write down the amount of money he was asking, together with the interest, also, that he was asking for 60 days in which to make his first down payment. The appellant accordingly had a document typed in triplicate and sent two copies to the respondent.

3 The document reads:

“16th July, 1 974

Mr. Daniel R. Walwyn

Bath Village

Nevis.

Dear Sir,

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

Terms are as follows:

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

4 The appellant returned to Nevis on the afternoon of 17th July, 1974, and the respondent told him that he had received the two copies. On being asked by the appellant the reason for his urgency the respondent replied that his son was expecting some investors very soon and that if he got a sale for the hotel he would resell it.

5 On or about 17th September, 1974, the appellant went to the respondent and told him that the time for making the first down payment had expired. The respondent told the appellant that his son Eugene was out of the State, and that they could do nothing until he returned, but that he would get in touch with him.

6 On 12th October 1974, the appellant went to the respondent's home and informed him that a man had telephoned from Canada saying that he had heard that the hotel was for sale, and expressing a desire to invest in a hotel in Nevis. The appellant said that he told the man that the hotel was for sale and that the man had replied that he would be coming to Nevis in February, and had asked that a room be reserved for him. The respondent then asked the appellant if he had told the man how much he wanted for the hotel, and the appellant replied that he had told him that he wanted $550,000.00 Canadian currency. The respondent told the appellant that this was good, and that he should sell the hotel, whereupon the appellant said this,

“Mr. Walwyn, I am hard pressed for some money now. If you would take over the hotel from me for $800,000.00, pay the debt to the Nevis Cooperative Bank and the Bank of America, you can give me $50,000.00 on account. I will wait on you for the balance.”

7 The respondent then told the appellant that if he would come to the office of the Co-operative Bank on the Monday morning and sign an agreement he would let him have $50,00.00.

8 At about 9 a.m. on Monday 14th October, 1974 the appellant went to the Co-operative Bank and the Respondent gave him a form of agreement which he had previously prepared in typescript. The appellant read it and said to the respondent:–

“I notice you have left out where you are prepared to give me a mortgage for the money that you will be owing me.”

9 The respondent took the form of agreement from the appellant and looked at it. He agreed that what the appellant had said was correct, and he amended the form of agreement by adding at the end of the second para thereof these words:–,

“in accordance with a deed of mortgage to be given later.”

10 The respondent also amended the form of agreement by deleting the words “said item” occurring at the end of the fourth line of the second para and substituting therefor the word “‘condition.” He also amended a carbon copy of the form of agreement in the same way. The two forms of agreement were then signed by the appellant and the respondent in the presence of a Mr. Robert Clifton, the Secretary and Treasurer of the Co-operative Bank. The amendments referred to were initialled. The respondent gave the appellant one of the forms and kept the other. The respondent then gave the appellant a cheque for $50,000.00, and the appellant left. The form of agreement, amended as aforesaid, reads as follows:–

“This Agreement made the 14th day of October, 1974 between Wentworth Nicholls on the one part and Daniel Reynold Walwyn on the other part, sheweth that the said Wentworth Nicholls being owner....