J. C. 1866 PAGE V. COWASJEE Nova Scotian, which we have been required to settle forthwith, and we must request you will enable us to do so this day. We hereby undertake, on account of Captain Page and ourselves, to complete the bill of sale when tendered." To this letter the Defendant replied on the 13th of January: "In answer to your letter of yesterday's date, I beg to inform you that the Captain having failed to comply with his agreement, and having sold the vessel under circumstances which led to its subsequent destruction, and being now, as you are aware, unable to carry out the agreement, I decline to pay the balance of the purchase money, and shall look to you and the Captain for the repayment of my deposit, and the damages which have occurred to me by reason of your default." On the receipt of this letter, Messrs. Ledward & Co. wrote to the Defendant on the 14th of January in these terms: As in your letter of yesterday you decline to pay us the balance of the purchase money for the hull of the Nova Scotian and other articles purchased by you at public auction, we beg to give you notice that the same, after due publication, will be re-sold at your risk in terms of the conditions of sale." The ship was accordingly again put up to sale and sold for £500, and the Plaintiff brought his action to recover the difference between the original price and the sum realised upon the re-sale, together with the Auctioneers' commission, the balance claimed, after giving credit for the Defendant's deposit of £250, being £383. 11s. The libel of the Plaintiff (to which was annexed the memorandum signed on the part of the Defendant and the conditions therein referred to, which the Plaintiff prayed might be taken as part of the libel) alleged, that the Defendant agreed to purchase the hull of the ship Nova Scotian, as she then lay stranded on the beach, for the sum of £1,020, according to certain conditions thereunto annexed, and amongst them the stipulation that the purchaser should pay a deposit of 10 per cent. in part payment of the purchase money and should pay the remainder on the transfer deed being executed; but if the remainder of the purchase money should not be paid, interest at 10 per cent. should be paid by the Defendant until payment in full, but without prejudice to the right of the Plaintiff (in case the Defendant should fail or neglect to comply with the conditions) to treat the deposit money as forfeited, and to have the sale enforced or to have the vessel re-sold, at the option of the Plaintiff, in terms of the conditions of sale. The libel then alleged the payment by the Defendant of the deposit of £250, his failure to pay the remainder of the £1,020, and the re-sale of the vessel in terms of the conditions of sale, and claimed the deficiency of the re-sale, together with all costs and charges attending the same, as liquidated damages. not The Defendant's answer, in the only parts of it necessary to be noticed, consisted of-First, a denial that he purchased the vessel on the conditions in the libel mentioned, for that the vessel was put up for sale on entirely different conditions, to wit, the conditions appearing in the annexed document marked letter A. (being the catalogue and the conditions therein contained). Second, that although the Defendant was ready and frequently offered to pay the remainder of the purchase money, yet the Plaintiff would convey the vessel nor furnish the Defendant with the necessary documents for the preparation of a legal conveyance. Third, that the Plaintiff had not at the time of the sale, and has never since had, the necessary power, right, and authority to sell the vessel or make a good conveyance thereof. Fourth, that the Plaintiff had since resumed possession of the vessel and offered the same for sale; and the Defendant prayed that the Plaintiff's suit might be dismissed with costs and the Plaintiff be condemned in reconvention to repay the deposit of £250, and to pay damages to the amount of £1,000, for the loss of the profit and advantage which would have accrued to him from the vessel when repaired and floated, as well as from the loss of the tackle, implements, and other articles belonging to the vessel, and which had since become useless for that purpose. The case was tried in the District Court of Colombo, witnesses being examined on both sides, and the Judge of that Court ultimately decided all the issues in favour of the Plaintiff. He found that the Defendant purchased the vessel subject to the conditions annexed to the libel. That the Plaintiff had authority as Master to sell. That as the vessel was sold as a wreck, the Master was bound to forward her Register to the Collector of Customs for J. C. 1866 PAGE v. COWASJEE J. C. 1866 PAGE v. COWASJEE EDULJEE. transmission to the port of Registry, and that it was not necessary for the Defendant to have the certificate in order to enable him to prepare the bill of sale; and that the Plaintiff was justified by the terms of the contract of sale in resuming possession of the vessel and selling her, and he ordered judgment to be entered for the Plaintiff for £373. 1s., being the amount which he claimed, less £10. 10s. said to have been paid by him to Counsel, which the Judge thought he was not entitled to recover from the Defendant. Upon appeal by the Defendant from this judgment to the Supreme Court, it was set aside, and judgment ordered "to be entered for the Defendant with costs." It was stated at the Bar that there was no other record of this judgment than the one printed with the papers, and it was assumed on both sides that although it is in the general form just stated, it has the effect of entitling the Defendant to the return of his deposit and also to the damages of £1,000, which he prays by his answer. The ground upon which the Supreme Court decided the appeal in favour of the Defendant seems to have been, that the Plaintiff having founded his claim upon an agreement with conditions varying from those in the catalogue, in respect of their containing a clause of re-sale, and the Court being of opinion that upon the facts proved, the Defendant did not enter into an engagement containing any such condition; the Plaintiff having wrongfully repossessed himself of the vessel and re-sold her, had deprived himself of his right to recover the price from the Defendant. That this was the view of the case taken by the Court appears from the learned Chief Justice having adverted to the argument on behalf of the Plaintiff that the right of re-sale existed independently of the stipulations in the signed set of conditions of sale, which he showed not to be law by a reference to the case of Martindale v. Smith (1), and other cases referred to in Tudor's Leading Cases, p. 530. As the District Judge decided in favour of the Plaintiff, there was no occasion for him to consider whether the payment by the Defendant of the £250, in part of the purchase money, did not bind the parties to the contract of sale as completely as if there had been a written memorandum. But the Supreme Court did (1) 1 Q. B. 389. J. C. 1866 PAGE v. COWASJEE take that fact into their consideration, and with reference to it the Chief Justice said: "After the sale, the Defendant paid the deposit of 25 per cent. stipulated in the conditions which had been read out, and this payment satisfied the requisitions of the Ordinance No. VII., 1840, section 21, and the sale and purchase of the ship's EDULJEE, hull were thereby made valid and completed according to our Colonial laws, and unquestionably the sale and purchase were made and the deposit paid under the conditions of sale read at the auction, and not under those which the Plaintiff sets up." The Supreme Court, therefore, must have been of opinion, that there was a binding agreement for the sale of the vessel between the parties. If, therefore, the Plaintiff had correctly stated his claim in his libel, and had founded it (as he ought to have done) upon a sale according to the conditions read in the auction room, he would clearly have been entitled to judgment, unless any of the objections contained in the answer of the Defendant would have been available as a defence. Their Lordships agree with the Supreme Court in thinking, that there was no agreement substituted for the one commenced in the auction room and completed by the payment of the deposit, but they must express their dissent from the opinion expressed by the Chief Justice, that if the Defendant "knowingly signed conditions which imposed the new obligation on him of paying any loss arising from a re-sale, such fresh agreement would be insufficient to maintain an action, being entirely without consideration," as, under such circumstances, the relinquishment of the first agreement would undoubtedly amount to a sufficient consideration. Their Lordships do not doubt that the contract completed by the payment of the deposit might have been varied by the signature subsequently of a memorandum inconsistent with it. Their opinion is founded on the particular circumstances of this case the acceptance of the deposit under the terms of the conditions read out in the auction room, the silence of the seller on the subject of any changes in the conditions, and the above mentioned conversation at the time of the receipt of the deposit. If the Plaintiff had properly framed his libel, precisely the same defences might have been set up as are now contained in the Defendant's answer, and, therefore, in order to VOL. I. 3 L. J. C. 1866 PAGE V. COWASJEE prepare Taking these objections a little out of the order in which they are stated in the answer, the first to be considered will be, whether the Plaintiff had power, right, or authority to sell the vessel. Upon this issue there seems to be no reasonable doubt that the Plaintiff could convey a good title to a purchaser as against his owner. The vessel was lying stranded upon the beach, without the possibility of getting her off, except by the expenditure of a large sum of money. The Plaintiff, not trusting to his own judgment alone, procured surveys to be made, and, proceeding upon the advice of the surveyors, determined to sell the vessel; a course which, it is reasonable to believe, the owner would have pursued upon a view of all the circumstances if he had been upon the spot. But supposing the Plaintiff to have acted upon a mistaken view of the necessity of the case, the Defendant could not insist upon there being any implied warranty of title. The Plaintiff sold the vessel in the special character of Master, and not as owner, and acted upon a bonâ fide belief of his authority to sell. The vessel was advertised as a stranded vessel, and the Defendant had every opportunity of examining her, and ascertaining whether she had been brought into such a condition as to give the Master authority to sell her as a wreck. The next point to be considered in the Defendant's answer, is the allegation that the Plaintiff did not convey the vessel, nor furnish the Defendant with the necessary documents for the preparation of a legal conveyance. This relates to the refusal of the Plaintiff to deliver the certificate of Registry to the Defendant. According to the Ceylon Ordinance, No. V., 1852, the law to be administered in this case is the law of England. Now, by the 53rd section of the Merchant Shipping Act, 1854, where a Registered Ship is actually or constructively lost, the Register is to be sent to her port of Registry. The Defendant could not, therefore, be entitled to demand its delivery to him, and to refuse to execute the Bill of sale upon the non-delivery. The next part of the answer which requires attention is that in which the Defendant justifies his refusal to perform his contract |