Martin v Vaughan
| Jurisdiction | Barbados |
| Judge | Douglas, C.J. |
| Judgment Date | 22 March 1971 |
| Neutral Citation | BB 1971 HC 2 |
| Docket Number | No. 236 of 1970 |
| Court | High Court (Barbados) |
| Date | 22 March 1971 |
High Court
Douglas C.J.
No. 236 of 1970
Mr. E. Mottley for the plaintiff instructed by Messrs. Fitzwilliam, Stone & Alcazar.
Mr. H. deB. Forde for the defendant instructed by Messrs. Hutchinson and Banfield.
Contract - Sale of Land — Specific Performance.
Facts: The plaintiff claimed as landlord possession of a parcel of land — The defendant pleaded that there was a building agreement for sale of the land to him and that a term of the agreement was that he should remain in possession up to completion of the sale — He counterclaimed for specific performance — Whether there was sufficient evidence of part performance on behalf of the defendant to make the contract enforceable against the plaintiff.
Held: That the receipt given to the defendant by the plaintiff provided sufficient memorandum to satisfy the statute of frauds — That the contract was enforceable.
The plaintiff in this suit claims as landlord possession of a parcel of land described in the pleadings and also seeks relief for arrears of rent and for mesne profits. The defendant denies that the plaintiff is entitled to possession, and pleads that there is a binding agreement for the sale to him of the land by the plaintiff, and that a term of the agreement was that the defendant should remain in possession up to completion of the sale. Further, the defendant alleges that he has paid various sums on account of the agreed purchase money and that he has been ready and willing to perform his obligations under the agreement. He counterclaims for –
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(i) specific performance of the agreement for sale;
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(ii) damages in lieu of or in addition to specific performance;
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(iii) alternatively, rescission of the said contract and repayment of the money paid an account of purchase money with interest at 8 per cent per annum from the respective times of paying the same;
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(iv) a declaration that he is entitled to a lien on the said premises for the said money paid on account together with interest thereon and any costs awarded in this action;
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(v) further and other relief; and
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(vi) costs.
In the defence to the counterclaim, it is pleaded on behalf of the plaintiff that there was an oral agreement to sell the land to the defendant in 1963, but it is denied that there was ever any agreement as to the amount of the purchase price. The plaintiff relies on s.2 of the Statute of Frauds, 1762 of Barbados and denies receiving any money from the defendant on account of purchase money. It is further pleaded for the plaintiff that time was made of the essence of the contract and that the defendant refused and/or neglected to perform his obligations under the agreement.
By way of rejoinder, the defendant pleads part performance, estoppel in relation to the plaintiff's relying on time being of the essence, acquiescence and laches. The evidence discloses that the defendant went into possession of the land on October 1, 1963 as a tenant at a rental of five dollars a month. It seems that there was discussion between the parties even prior to this that the defendant should purchase the land from the plaintiff, and it is not disputed that at some date early in 1964, there was an oral agreement between the parties to this effect.
There is conflict on the evidence in regard to the price. The plaintiff states that the price agreed was six thousand dollars, and she states that she later told him the price was seven thousand. The defendant on the other hand, maintained that the agreed price was five thousand dollars and that the plaintiff later sought to increase it.
Nothing further happened for some time because the plaintiff was not in a position to convey the land which had belonged to her sister and for which she now sought a waiver of the Crown's rights. This she obtained on October 25, 1966.
Early in 1967, the plaintiff received a note, obviously written on behalf of the defendant asking that he be given until April 14, 1967 to pay the purchase price. The purchase price was not in fact paid on April 14, and the plaintiff advertised the land for sale. It was at this point that this perfectly straightforward situation degenerated into chaos, largely through the actions of the plaintiff's solicitor, Mr. J.P. Browne, of the firm of Browne, Husbands and Co., solicitors. It must be pointed out that Mr. Browne had acted for the plaintiff in obtaining the waiver of the Crown's rights. He was aware that the parties had taken steps in 1964 to have a formal agreement prepared, that the defendant had paid the sum of thirty dollars on August 8, 1964 to Mr. H. A. Williams of counsel “in connection with an agreement to be drawn up in respect of land situate at Top Rock owned by Ruby Martin” to quote the words of the receipt. As it turned out, the agreement mentioned in this receipt was never drawn up and Mr. Browne took no steps to have any agreement between the parties executed.
On June 3, 1967, the defendant paid the sum of four hundred dollars to Mr. Browne's firm and received their official receipt for the money as being paid “on account of purchase price of land at Top Rock, Christ Church, from Ruby Martin.” There was some contretemps in regard to this four hundred dollars. Mr. Browne states that the four hundred dollars were repaid to Mr. Vaughan on July 1, 1967 in connection with the cancellation of the sale. Mr. Browne goes on to say, as indeed does the defendant, that the money was again paid in. The defendant says this happened two days after, and to that Mr. Browne says “If Vaughan says that he handed back the $400 two days after, I would not deny it … I am not prepared to doubt him.” There is no entry of this latter transaction in Mr. Browne's books, which on the evidence, leave a great deal to be desired.
On June 16, 1967 — prior to the refund of the four hundred dollars — Mr. Browne's firm received from Vernon Sylvester Payne the sum of one thousand dollars “being on account of purchase price of land at Top Rock, Christ Church; from Mrs. Ruby Martin” — the same land as that referred to in Mr. Vaughan's receipt — and issued an official receipt therefor. On June 27, 1967 Mr. Payne paid in a further one thousand five hundred dollars on account of purchase price of the said land.
On September 4, 1967 Mr. Browne wrote to the plaintiff in these terms –
“Dear Madam,
This letter is in relation to the parcel of land at Top Rock, Christ Church, which you agreed to sell Mr. V. S. Payne for $5,000.00, as you know he has already (sic) paid in $2,500.00 and has already signed the agreement. We have been awaiting you for quite some time to come in and sign the agreement. Will you come into this office by Friday 8/9/67 at 2 o'clock and do so as I cannot pass the papers on to the other solicitor until you have sign.
Yours faithfully,
Browne, Husbands and Co.,
per J. P. Browne.
The agreement for the sale of the land to Mr. Payne is dated September 8, 1967. On that same date, Mr. Browne wrote Mr. Rogers, the solicitor, as follows:
“We understand that you are working for Mr. Vernon Sylvester Payne of Bath Village, Christ Church who is buying a parcel of land containing 5,763 square feet at Bath Village, Christ Church from Miss Ruby Martin of Bullen's Land, Dalkeith, St. Michael.
Miss Martin is in possession of a conveyance which was obtained from the Crown. This really operated as a Waiver of Crown Rights in respect of one rood thirty perches. A mistake was made when this was signed by the Crown in that only 5,763 square feet of land, which is the subject matter of this letter, was in the possession of Miss Martin when she made the application as the rest of the parcel of the land had been sold by the former owner Mr. I. J. Welch to Dr. C. Bentham sometime before 1955. This was not revealed to me when we made our application to the Crown for Waiver of Crown Rights. We are wondering whether under the circumstances, you will accept the title as it is or whether you will prefer us to have another Waiver of Crown Rights executed by the Crown in favour of Miss Martin for 5,763 square feet of land as should have been done in the first place.
We are enclosing herein the agreement and Document of Title for the said land.”
Mr. Rogers in his evidence says that he regarded the title as defective and further states that he was not satisfied as to whether the parcel of land was properly identified as being a portion of the land mentioned in the Waiver. He pointed this out to Mr. Browne who conceded that a fresh waiver would have to be executed.
On October 21, 1967, Mr. Browne's firm as solicitors and agents for the plaintiff gave notice to the defendant to deliver up possession of the land on April 30, 1968. In regard to his firm's receiving money on account of the purchase of the plaintiff's land from both the defendant and Mr. Payne, Mr. Browne states in his evidence –
“Some time between June and July, 1967 Mrs. Martin said she was not selling land to Mr. Vaughan.
Mrs. Martin went to a barrister's office and was persuaded to carry on. She was sent to me by Mr. Williams. She told me she was carrying on the sale to Mr. Vaughan.
I received this on account of purchase price.
By this time Mr. Payne said he was through with his sale.”
On May 10, 1968, Mr. Browne addressed the following letter to the plaintiff –
“This is to confirm that Mr....
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