The following
joint judgment was delivered :KINGDON,
C.]., NIGERIA, PETRIDES, C.J.,
GOLD AND TURBETT, J.
This is an
appeal from a judgment of Mr.
Justice Goodman, Acting Judge,
sitting in the Divisional Court
at Kumasi \vhich was delivered
on 7th July, 1939, in which he
gave judgment for the Respondent
for the amount of £1,644 10s.
and costs to be taxed,
In this
action the Plaintiff-Respondent
sued the DefendantsAppellants
for the sum of £] ,790 10s.
which he alleged was due to him
by them as representing the
Adansi State for services
rendered under a Power of
Attorney and a Commission Note
both dated the 5th September,
1938. The Respondent also
claimed the said amount as upon
an account stated and also as
money had and received by the
Appellants to Respondent's use.
Formal pleadings were ordered
before the case came to trial.
In paragraph 4: of the Statement
of Claim are set out the most
material matters as far as this
appeal is concerned in relation
to the judgment which he
recovered in the lower Court and
therein the Respondent alleges
that the Appellants gave him a
Power of Attorney and a
Commission Note and under the
terms of these documents agreed
to pay him " 50 per cent of all
monies, that is to say all
arrears of rents and other
considerations ", which the
Respondent should obtain for the
Appellants' stool.
In regard to
this allegation of the
Respondent and the claim in tile
writ it will be sufficient for
the purposes of this judgment to
state that the Appellants denied
that they agreed or offered to
'pay the Respondent fiO per cent
of all arrears of rents that he
should recover on their behalf,
and that any agreement to pay
money in return for any services
to be rendered or expenses to be
incurred by the H.espondent were
contained in the Commission Note
whereby they agreed to pay him
(the Respondent) 50 per cent
only out of any consideration
which he secured for them in
respect of their gold
concessions and in terms of the
Power of Attorney. They denied
also that the sum of £1,790 10s.
was due to the Respondent on an
account stated.
Only a few of
the facts of this case appear to
have been briefly referred to by
the learned Acting Judge in the
Court below and it would be as
well to set out a summary of all
the facts prior to a
consideration of the legal
questions involved.
It would
appear that in the month of
June, 1938, Messrs. J. J.
Peele &
Company, Solicitors in Kumasi,
had examined the accounts
relating to some four
concessions in Ashanti of the
Offin River Gold Estates Limited
and had advised the Company that
they appeared not to have paid
their minimum dredging rent of
£20n per annum during the past
14 years. Peele & Company
advised the Company to pay these
rents, but they did not receive
instructions from the Company to
pay the rents until late in the
month of September of that year.
Meanwhile in
the month of August, a certain
Dr. Reindorf of Kumasi received
information from, it is alleged,
certain African and European
friends in London of the state
of affairs in regard to the
Concessions of the Offin River
Gold Estates Limited. Dr.
Reindorf consulted with the
Plaintiff-Respondent on this
matter and as a result of their
discussions it was decided to
get in touch with the Adansi
Chiefs who were the grantors of
these concessions. This was
eventually elected through the
Registrar of the Adansihene, one
Poku Sarkodie, and a meeting was
arranged with these Chiefs which
took place sometime during that
month at Fomena.
The position
in regard to rents which were
owing in respect of certain
unspecified concessions was
explained to the. Chiefs and it
was pointed out to them that
they were owed several thousand
pounds in respect of arrears of
rent. Dr. Reindorf offered his
services to the Chiefs for the
purpose of helping them to
recover these monies provided
that h~ received sufficient
remuneration to cover the
services of himself and his
friends, but he declined to give
any information in regard to
these concessions until the
Chiefs had agreed to his terms.
Various meetings were
subsequently held between Dr.
Reindorf, the Respondent and the
Chiefs in regard to these
concessions and eventually the
Chiefs agreed to appoint the
Respondent, on the suggestion of
Dr. Reindorf, as their
representative, -to conduct
negotiations with the Company.
The Respondent was to receive a
commission of 50 per cent out.
of an)' consideration either in
cash or in cash and shares which
he should secure for the Chiefs,
but he was to bear his own
expenses. _ The Respondent then
caused a Commission Note and a
Power of Attorney to be prepared
and these were subsequently
signed by the three
Defendants Appellants. It
should, we think, be observed
here that the second Appellant
had however shown a marked
disinclination to associate
himself with the first and third
Appellants in this agreement as
he was principally interested in
the Ashanti Goldfields
Corporations' min;:: at Obuasi.
The Respondent had however been
empowered to take action in
regard to a number of
concessions, including the
Obuasi Concession under the
Power of Attorney, and
eventually the second Appellant
executed the power under
pressure from his subchiefs. A
curious feature of this Power of
Attorney is the fact that the
Schedule (If Concessions
affected included several
concessions entirely outside
Ashanti and in which none of the
Appellants had any interest
whatsoever.
After the
documents, to which we have
referred, had been executed the
Respondent states that he
informed the Appellant Chiefs
that persons interested in the
concessions were willing to "
pay .at least £50,000 and to
give them shares in a Company
they were going to float up to
£100,000 ".
On or about
19th September, 1938, the Respondent served notices of re-entry
on various persons in connection
with the Offin River Concessions and also caused
publication of same to appear in
the Gazette. Finally, on
the receipt of advice, he served
Mr. Mead, in
whose favour amongst others a
Power of Attorney had
Hutton-Mills been executed by
the Company in respect of their
concessions, with
notices of re-entry on 29th
September. Mr. Mead had however
paid into the Treasury a sum of
£3,289, which was an
overpayment, in respect of these
arrears on the previous day. On
the advice
of the Respondent the Appellant
Chiefs did not accept the
payment and of these
monies and the Respondent
objected in writing to the
Treasury for
accepting payment of these
rents.
The
Respondent then proceeded to
England to negotiate with the "
Offin River "Company and after
several meetings with the
directors a short agreement was
drawn up empowering the
Respondent to retain the sum of
£489 (overpayment of rents) on
behalf of the Appellants and
himself provided that he took
all necessary steps to cancel
the notices of re-entry in
respect of their concessions
that he had previously served,
filed and published. The
Respondent returned to Ashanti
and gave an account of his
actions to the Appellant Chiefs.
He demanded from them 50 per
cent of the rents' which had
been paid in by the Company, and
the Appellants agreed to pay him
same. In the meantime the fourth
Defendant in the action had been
placed in charge of the Adansi
Stool Treasury and he refused to
sanction payment of this amount.
Advice was taken from the Law
Officers, and as a result of
their advice the Appellant
Chiefs refused also to pay.
Eventually the Respondent sued
the Appellants in the
Divisional Court and obtained
judgment. That judgment is now
the subject matter of the
present appeal.
At the outset
it may be as well to state that
no question arises under this
agreement that native customary
law governed this transaction
between the parties. Counsel for
the Respondent stated definitely
that no reliance was placed on
native law and that it is agreed
that the contract between the
parties is governed by English
law.
The principal
argument for the Appellants is
based on paragraph 4 (1), (2)
and (3) of the grounds of appeal
and we think it was admitted
that if the submissions of the
Appellants on these grounds
should succeed the judgment
given for the Respondent in the
Court below cannot stand. It is
necessary therefore to examine
closely these grounds and the
arguments which were addressed
to this Court in relation
thereto. These grounds are as
follows :-
4.
The
learned Judge misdirected
himself-
(1) In not
directing himself that any oral
agreement between the Appellants
and the Respondent relating to
the Concessions set forth in
Certificates of Validity Nos. 7,
8, 9 and 10 (hereinafter called
the Concessions) was rescinded
and l or superseded by a
Power of Attorney dated the 5th
day of September, 1938, whereby
the Respondent was appointed
Attorney to the Appellants upon
the terms therein set forth and.
at the remuneration in respect
of his services as such Attorney
set forth in a Commission Note
dated the 5th day of September,
1938
(2) In not
directing himself that a Power
of Attorney is to be strictly
construed.
(3) In not
directing himself that, upon a
true and proper construction,
the Power of Attorney aforesaid
did not relate to the recovery
of arrears of rent of the
Concessions and l or in
directing himself that the said
Power of Attorney and l or
Commission Note gave the
Respondent a right to fifty per
centum of all arrears of rent
paid by the Company to the
Appellants in respect of the
Concessions.
For a proper
understanding of these grounds
of appeal and of the arguments
which were addressed to this
Court thereon we think it is
essential to set out as briefly
as possible those portions of
the Commission Note and the
Power of Attorney around which
the discussions of learned
Counsel mainly revolved. The
material portion of the
Commission Note is as follows
:-:-
•• We the
undersigned Chiefs Elders and
Councillors .... hereby agree
and promise to pay Mr. Thomas
Hutton-Mills ..... an agreed
Commission of 50 per cent out of
any consideration either in cash
and l or cash and shares
which he shall secure for us in
respect of our Gold Concessions
and in terms of the Power of
Attorney executed by us in his
favour and dated 5th day of
September, 1938 ".
The relevant
paragraphs of the Power of
Attorney so far as this judgment
is concerned authorised the
Respondent to do the following
acts-
ParagraPh
1. To give
Notice of Re-entry to the
Treasurer of the Gold Coast and
the Grantees or Lessees in
respect to any of the
Concessions mentioned in the
Schedule hereto as our Attorney
may deem fit and proper.
ParagraPh
1a. To arrange
the sale or grant of options
over or assign or otherwise at
his discretion deal with the
said Concessions in the Schedule
hereto mentioned and our right
estate and interest thereunder
in all or any part of the lands
comprised in such Concessions
and the mines minerals products
rights privileges easements
liberties and advantages
belonging to us or otherwise to
deal with the said Concessions
and lands and rights and all or
any of them or any part of them
with full power to negotiate and
contract including power to
grant any option for the
purchase or acquisition of the
same to any Corporation Company
or persons for such period and
upon such terms as the said
Attorney in his discretion may
consider fit and proper subject
however to our said Attorney
communicating to us the purchase
price or consideration money for
any of the Concessions in the
Schedule hereto.
ParagraPh
2. To arrange the terms of
sale option or other dealing and in particular the
price or consideration and when the purchase or
dealing shall be completed
and when the property
shall be conveyed and the price or
consideration satisfied and
either with or without the
power of rescission of any
contract or other
dealing. ParagraPh
9. To do and procure all
such other things as may seem
expedient to the said Attorney
in the exercise of any or all of
the powers hereby conferred.
It was
submitted on behalf of the
Appellants in support of the
grounds which we have previously
cited that any oral agreement
was superseded by the Power of
Attorney and Commission Note and
that the terms of the agreement
are those as set out in these'
instruments.
In this
connection Counsel referred to
Halsbury, 2nd Edition, Volume 7
at page 321, in which the
following passage. occurs :-
. But when a
Contract has in fact been
completed and reduced to writing
the Court is not entitled to
consider antecedent acts or
correspondence, or to look at
words deleted before the
conclusion of the Contract, in
order to ascertain the mean\ng
of the Contract in writing
finally agreed upon."
Connsel also
referred to Leake on Contracts,
7th Edition, wherein it is
stated as follows :-
•. As a
general rule terms offered and
representations made during the
negotiation of a Contract, which
are not contained in the final
agreement, are excluded from the
Contract" .
Although the
question of the alleged oral
agreement arrived at between the
parties was contended for
seriously in the lower Court,
yet it does not appear to be the
basis of any strong argument for
the Respondent in this Court.
It was
further contended that the Power
of Attorney must be construed
strictly according to law and in
support of this contention
Counsel referred this Court to
In re Dowson and Jenks Contract
(1904) 2 Chancery, p.222, in
which case a Power of Attorney
authorised an agent to sell any
real or personal property then
or thereafter belonging to his
principal, and also to receive
and give a discharge for any
moneys then or thereafter owing
to his principal by virtue of
any security. It was held by the
Court that the Power did not
authorise the agent to sell
property held by the Principal
as mortgage under the
mortgagee's power of sale. A passage from
the judgment of Lord Justice
Vaughan Williams in that case is
of great interest and importance
as far as the decision of this
appeal is concerned and is as
follows :-
•• I think
that we must affirm Kekewich J's
decision in this case. It is a
case in which, in one sense, one
would be very glad to do
otherwise, because if one
looked at matters which really
one is not entitled to look as
one would know, as a fact, that
this Power of Attorney was
executed for the express purpose
of enabling the Attorney to do
that which this Court it about
to hold he has no authority to
do. But legal certainty is a
good thing, and generally you
cannot have good without having
the attendant evil. The law
says that these authorities must
be strictly construed according
to their terms, because the
rights of other persons may be
affected".
Counsel
further referred to the case of
Jonmenjoy Coondoo v :
Watson, 9 Appeal Cases, p.
561, in which case on a strict
construction of a Power of
Attorney it was held that a
Power of Attorney to sell does
not give a power to pledge. It
was further argued 'that the
general object of the Power of
Attorney was to empower the
Respondent to re-enter and
determine the Concessions and
then to dispose of them for such
consideration as he could obtain
and unless the Concessions were
determined there was no scope
for the exercise of any of the
other powers included in the
Power of Attorney.
Reference was
made to the power .. to arrange
the sale or grant of options" in
connection with the Concessions
in paragraph 1a and the
later direction to communicate
"the purchase price or
consideration money for any of
the Concessions". Attention was
also drawn to paragraph 2 in
which the Respondent was
empowered .• to arrange the
terms of sale option or other
dealing and in particular the
price or consideration". It was
submitted further that paragraph
9 did not permit the agent to do
anything outside the powers
which had been previously
expressly recited. Perry v:
Hall, 29 L.]. Chancery, p.
677, was cited in support and
this case decided that if there
is a Power of Attorney to do a
particular act followed by
general words those general
words are not to be extended
beyond ~hat is necessary for
doing the particular act for
which the power is given.
Nowhere in
the Power of Attorney was there
any mention of recovering
arrears of rent nor could
recovery of back rents be
conceivably considered as
necessarily incidental to a
power 01 re-entry.
As regards
the interpretation to be
accorded to the tern ..
consideration" in the Commission
Note, Counsel contended that it
could hardly be argued that the
words in .. cash " or ..
cash
and shares" could possibly be
said to include arrears of rent
and that the term "
consideration" must refer to
fresh monies in respect of new
concessions or leases. In
concluding his arguments 0 these
grounds of appeal Counsel
submitted in effect that the
power of Attorney must be
construed strictly, that the
power does not authorise the
collection of arrears of rent
nor does the Commission Note
refer to any such power nor is
it necessary to imply any fresh
term into the provisions of
either of these documents.
In replying
to the arguments advanced on
behalf of the Hutton -
Mills
Appellants, Counsel for the
Respondent submitted that in
order to enable
the Court to construe the Power
of Attorney, the Court. must look at all the
circumstances which led up to
the execution of the Power of
Attorney and the Commission
Note.
He stated
that the question of the arrears
of rent was chiefly in the minds
of the parties and that the
power to give notice of re-entry
to the Treasurer as well as
other persons affected in
paragraph 1 of the Power of
Attorney shows what was in the minds of the
Appellants. He contended that
the power relating to re-entry
was ambiguous because the
Treasurer is only concerned with the
payment of rents. Arrears of
rent must be a condition precedent to
the power of re-entry, but no
notice of re-entry was required by
law to be given to the
Treasurer.
If the Power
of Attorney provided that notice
should be given to the
Treasurer, it must have been for
a special reason, to wit, that
the Respondent was being
authorised to collect rents. The
power to collect rents must
therefore be implied in
paragraph 1 of the power.
Without the existence of arrears
of rents, it was impossible
under the law to give notice of
re-entry. In giving notice of
re-entry under paragraph 1, if
it seemed expedient to the
Respondent, he was also
authorised to collect any
arrears under paragraph 9 of the
power.
Counsel
submitted that it was clear that
the effect of paragraph 9 when
combined with paragraph 1 was to
give him power to collect
arrears.
In support of
the foregoing arguments, Counsel
referred to Norton on Deeds
(1906), 3rd Edition, at page 64;
Bank of New Zealand v.
Simpson, 1900 Appeal Cases,
page 182, and Kleinert v.
Abosso Gold Mining Company Ltd.
Gold Coast, Privy Council
Judgment, 1874-1928, page 17.
Counsel submitted in conclusion
on this aspect of the appeal
that the Respondent had express
power to collect arrears of
rents under the Power of
Attorney. but if it was~ held
that there was no express power
in paragraphs 1 and 9 of the
power to collect such arrears
then such power must be implied
because the Respondent by
accepting the power gave
impliedly an undertaking to his
principals to collect arrears of
rent.
Counsel
further contended that if the
Commission Note and Power of
Attorney were read together the
term " consideration" meant any
benefit or profit which might
accrue to the Appellants. All
the discussion between the
parties prior to the signing of
the contract centred round the
question of arrears of rent and
the Respondent could obtain no
remuneration under the agreement
unless he was able to obtain a
percentage on the
arrears of rent which had
accrued. '
Counsel
maintained also that the term "
consideration" was susceptible
of more than one meaning; it may
mean" any benefit accruing."
Rents in arrears for 14 years
would be a benefit, but there was an
ambiguity here and the Court
must look at the surrounding
circumstances. Counsel urged
that the construction placed on
this term by Counsel for the
Appellants was too narrow and
maintained that any benefit that
might be secured for the
grantors under the exercise of
any of the powers in the deed
would come under the term"
consideration." If the exercise
of the powers contained in
paragraph 1 or of any of the
other powers induced the payment
of the arrears by the Company
any such payment should come
within the term "consideration."
Counsel submitted that Jonmenjoy Coondoo v. Watson
was not in point with the
present case and that Perry
v. Holl was in favour of the
Respondent for in that case the
power of Attorney was construed
not only by the language of the
Power but by the acts and
subsequent conduct of the
parties.
In our view
it is quite clear that it was
necessary that the Respondent
should be given a Power of
Attorney to carryon any
negotiations with the
Concessionaires, but a Power of
Attorney was in no way essential
to enable him to take action on
the Appellants' behalf in regard
to the collection of arrears of
rent.
The
collection of rents as opposed
to the existence of arrears of
rent is a matter quite
independent of the Power of
Attorney. No express power was
required for the collection of
such arrears which could have
been effected by the donors of
the power themselves or by any
Solicitor acting under their
instructions ..
It seems to
us to be also clear in law that
a deed of the nature of the
Power of Attorney must be
construed strictly and it must
be very firmly established to
the Court that the power will
become inoperative and fail in
its object unless evidence is
admitted to explain the purpose
for which it was given.
We agree with
the Appellants' contention that
before the Court can imply a
term into a written contract,
the Court must be satisfied that
it is necessary for the proper
functioning of the contract that
a particular term must be
implied therein.
We do not
consider that Kleinert v.
Abosso Mines which relates
merely to the construction of
the particular contract under
consideration has any
application in the present case.
This contract
whose terms are to be derived
from both the Commission Note
and the Power of Attorney is in
its existing form quite clear as
to its purpose and there seems
to be no need whatever that any
particular term should be
implied therein in order to make
the agreement function properly.
Although it
is contended by Counsel for the
Respondent that the terms of
these documents are ambiguous
and that it is necessary to look
at all the circumstances
antecedent to the giving of this
Power, yet it seems to us that
the terms of these documents arc
plain and unambiguous and that
there is no need to call in aid
any extrinsic evidence for the
purpose of construing them and
giving
, them their
proper effect. The case of the
Bank of of New Zealand
v. Simpson
which was cited on behalf of
the Respondent is only an
authority in his favour if the
terms of the Power of Attorney
are really susceptible of more
than one meaning. Then a
question of fact would arise as
to what was really intended; In
the headnote to this case it is
clearly stated that words with a
fixed meaning in a written
contract cannot be explained by
oral evidence to mean something
different from what they
express.
We find it
impossible to agree with Counsel
for the Respondent that the
terms of this agreement as set
out in the documents under
discussion are susceptible of
any other than their plain
ordinary meaning.
It is patent
to us that the general object of
the Power of Attorney was to
give the Respondent power to
re-enter and determine
concessions and then to dispose
of them for such consideration
as he could obtain and to
perform all other acts
incidental to this main
principal object.
Counsel for
the Appellants has examined at
great length the various powers
given by. this deed and has
cited passages from Halsbury and
other authorities in support of
the negative construction which
he seeks to place upon it. .
It is
unnecessary for the purposes of
this judgment to refer to any of
these matters in detail because
we are satisfied that under no
reasonable and strict
construction of this Power could
it be contended with any success
that any power to collect
outstanding arrears of rents is
included therein.
We agree with
Appellants' Counsel's submission
that the collection of arrears
of rent does not come within the
scope of the Power of Attorney
as it is not a necessary
incidental to its main object.
It is quite
apparent from the evidence
adduced in the lower Court that
the Respondent's first acts
under the Power were the efforts
made by him to determine the
concessions by giving notice of
re-entry. His efforts in this
direction were frustrated only
by the payment of the arrears of
rent by the Company's Attorney
before he had had time to take
effective action.
In our
opinion the Respondent who was
responsible for the form of the
Power of Attorney, if, indeed,
not the drafting thereof, had
only in mind the termination of
these concessions and the almost
certain probability of making ~
very considerable sum of money
by either reselling these
concessions or reinstating the
original Concessionaires under a
very heavy penalty. It seems to
us that the Respondent's
objection to the receipt of
payment of these rents by the
Treasury and his advice to his
principals thereon all appears
to indicate that the Respondent
was little concerned about the
payment of rents as far as his
principals were concerned.
We are
exceedingly doubtful if
any question of the arrears of
rent would have arisen at all,
in so far as any claim thereto
would have been advanced by the
Respondent, if Mr: Mead, the
Company's newly
appointed Attorney, had not been
able to pay the arrears of rent
before service had been effected
on him.
We agree with
tile submission that if the
power to serve the Treasurer
with notice of re-entry was
expressly inserted by the
draftsman to give the Respondent
power to collect arrears of rent
that a most extraordinary method
was adopted to attain very
simple object.
It is
difficult to believe that if
the collection of arrears of
rent had been the avowed object
of this power-authority to
collect such arrears would not
have been expressly inserted or
declared in the deed in some
simple form of language.
The terms of
the Commission Note are set out
in the clearest language and as
we have pointed out before this
Note is to be interpreted
according to the terms of the
Power of Attorney. It is
impossible in our opinion to
read into the term "
consideration" any question of
arrears of rent.
The simple
and decisive nature of the
language used precludes any such
possible construction as has
been contended for by Counsel
for the Respondent.
In our view
on a strict construction of the
Power of Attorney the Respondent
was only empowered to determine
the concessions and dispose of
them when so determined and only
to do such other acts as were
incidental to those particular
powers. We consider that this
Court is bound by the decision
of the English Court of Appeal
in the matter of Dowson and
Jenks Contract in a case of this
nature and no attempt has been
made by Counsel for the
Respondent to distinguish the
decision in that case from the
case under review.
The
Respondent also claimed the
amount sued for on an account
stated. The Appellants for their
part contended that there was no
debt legally due under the
agreement in order to support a claim for an account stated and
that consequently the Respondent
had no claim in law to the
amount in dispute. Undoubtedly
the Appellants admitted their
liability in the first instance
and agreed to pay. It was
submitted however that any such
promise was induced by a
misrepresentation that the
amount was legally due to the
Respondent. At the most there
was a promise to pay under a
mistake of law and we cannot
agree with the contention of
Counsel for the Respondent that
the Appellants having agreed to
pay under a mistake of law they
cannot be relieved of their
obligation by such mistake of
law. In our opinion the decision
in the case of Gough v.
Findon, 155 English Reports,
p. 850, is very much in point in
the present case. In that case,
the executors promised to pay
certain monies which they
thought were legally due. In
fact they paid a certain
proportion of this money, but
afterwards discovered that the
money was not legally due and
refused to pay the balance. The
executors were sued and it was
held that the action was not
maintainable on an account
stated inasmuch as the promise
of the executors was
made on a supposed debt, which,
in fact, was not due. No attempt
was made by Counsel for the
Respondent to deal with the
decision or any of the other
authorities cited by Counsel for
the Appellants in regard to this
alternative claim. It is clear
from the evidence that the
Appellants were under the
impression that the money was
legally due to the Respondent
and that it must therefore be
paid. In our view the Respondent
failed to establish his right to
the payment of the amount in
dispute under this alternative
claim. No attempt was made to
argue that the Respondent was
entitled to claim the amount as
money had and received by the
Appellants to Respondent's use.
In our
opinion the only services which
have been so far performed by
the Respondent for the
Appellants in order to bring the
remuneration provisions of the
Commission Note into operation
in his favour is the obtaining
by the Respondent of the sum of
£489 from the directors of the Offin River Company. The
Appellants have agreed from the
commencement of the proceedings
in this case that he is entitled
to remuneration for those
services and the sum of £250 was
paid into Court to meet that
claim with a denial of any
further liability.
It is clear,
and it is not disputed, that
this sum of money was gained by
his efforts and he is entitled
to 50 per cent of this amount.
This appeal
has been argued at considerable
length by Counsel on both sides
and many matters of interest and
considerable importance have
been discussed in this Court
during the hearing of this
appeal, but these are matters
which it is now unnecessary for
us to consider for the purposes
of this judgment in view of the
decision which we have arrived
at on the main ground of appeal.
For these
reasons we consider that the
judgment in the Court below was
wrong and that the Respondent
was, strictly speaking, entitled
to judgment for the sum of £244
10s. only. In this connection
the Appellants had already paid
into the lower Court the sum of
£250, which was pleaded as
sufficient to satisfy the
Respondent's claim, and have, by
their Counsel in this Court,
expressed their willingness to
submit to judgment for £250. We
think that judgment should be
entered for the Respondent for
that amount instead of for
£1,644 10s.
The appeal is
accordingly allowed and it is
ordered that the judgment of the
Court below be varied by
judgment being entered for the
Respondent against the
Appellants jointly and severally
for £250. The order of the Court
below as to costs is set aside
and in lieu thereof it is
ordered that the Appellants
shall pay the Respondent's taxed
costs up to the date of the
payment into Court of the sum of
£250 and that the Respondent
shall pay the taxed costs
incurred by the Appellants in
the Court below subsequent to
that date.
The
Appellants are awarded costs in
this Court assessed at £98 185.
11d.
