But it cannot have done more.Parliament, per incuriam it may be, went back to the position under the Act of1844 but I am convinced it never intended to alter the fundamental rule laiddown in Tweddle v. Atkinson (supra). Click here to remove this judgment from your profile. . He agreed with the defendant to transfer his business’ goodwill and tools to the defendant. It had available to it and consideredthe decision of Luxmoore J. in Ecclesiastical Commissioner's Conveyance 1 Ch. If application of that definition wouldresult in giving to section 56 a meaning going beyond that of the old section. This rule, as the authorities I shallquote shew, applied not only to real estate but to personal grants andcovenants. But the view more commonly heldin recent times has been that such a contract confers no right on X andthat X could not sue for the £1,000. However, they held that Mrs Beswick in her capacity as Mr Beswick's administratrix (i.e. It refers to any "agreement over or respecting land or other property." 83 was rightly decided and that the reasoning of Uthwatt J. This point seems to me miscon-ceived. In Hohler v. Aston  2 Ch. Nevertheless, some of yourLordships have felt able to come to the conclusion that in these circumstancessection 56 should be construed as limited in its application to real property aswas the old section 5. Atkinson (sup. The land is something which existed before and independently of the agreement and the same must apply to the other property. D. 670). Holmes L.J. Standard form of contracts is … in that case in his speech, it soexactly expresses my own view that I set it out again. That section provided: "That, under an indenture, executed after October 1, 1845, an immediate estate or interest, in any tenements or hereditaments, and the benefit of a condition or covenant, respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture. Although the widow cannot claim specificperformance in her personal capacity there is no objection to her doing soin her capacity as administratrix and when the moneys are recovered they willbe in this instance held for the benefit of herself as the person for whom theyare intended. . And, secondly, section 56 is one of 25 sections which appear in the Act under the cross-heading "Conveyances and other Instruments." 500 at 514 and White v. John Warwick & Co. 1 W.L.R. c. 106) . Tatham" v. Huxtable  81 C.L.R. The Appellantduly discharged the salary of £6 10s. I can find no principle to this effect. Ballantyne, Beswick & Company (A firm) v Jamaica Public Service. I agree with the comment ofWindeyer J. in the case of Bagot's Executor and Trustee Co. Ltd. v. Coulls inthe High Court of Australia that the words of Lush L.J. In anyevent the fact that there is a small element of personal service in a contractof this nature does not destroy that quality of mutuality (otherwise plainlypresent) want of which may in general terms properly be a ground for refusinga decree of specific performance. R. 267. 366) and the Court of Appeal supports what I have just said. But I note, however, that in Lloyds v. Harper (supra) James andCotton L.JJ. The uncle died and the widow became his administratrix. That is sufficient to dispose of the appealbut as your Lordships have heard much argument on the true scope and ambitof section 56 of the Law of Property Act, 1925, I propose to express someviews thereon, though necessarily obiter. Contract law – Privity of contract – Specific performance. Leading counsel for the respondent based his case on other grounds, and as I agree that the respondent succeeds on other grounds, this would not be an appropriate case in which to solve this question. And, if that is so, section 56 must now have the same effect. (page 31).And if one had to contemplate a farther long period of Parliamentaryprocrastination, this House might find it necessary to deal with this matter.But if legislation is probably at an early date I would not deal with it ina case where that is not essential. damages are inadequate to meet the justice of the case. Hence these High Court proceedings initiated by the widow, suingboth personally and as administratrix of her husband, and soon transferred tothe Chancery Court of the County Palatine of Lancaster. But if the definition is applied the result is to make section 56 go far beyond the pre-existing law. Tweddle v Atkinson  EWHC J57 (QB) , (1861) 1 B&S 393 is an English contract law case concerning the principle of privity of contract and consideration. So the presumption that section 56 was not intended to alter the lawremains. In the first place, I do not accept the view that damages must be nominal.Lush L.J. Beswick Engineering’s QD3NL quick disconnect series is a great fit for use in cooling systems where no latching mechanism is required, such as a rack mounted tray. Lord Denning's view, expressed in this case not for the first time, is that X could enforce this obligation. In addition to setting many track E.T. .". 615 two partners covenanted with a retiringpartner that on his death they would pay certain annuities to his daughters.The Revenue's claim for estate duty was rejected. Read more about this topic: Beswick V Beswick, Judgment, “[My father] was a lazy man. Mrs. Aston died before doing so. and MPH records, his accolades include induction into the Super Stock Magazine A/FX and Funny Car Hall of Fame in 1995, recipient of the prestigious Driver of the Year Award in 1996 and induction into the Division 3 Hall of Fame. change. First, let me assume for a moment that the agreement in this case is anindenture inter partes under seal—does section 56 help B? I cannot agree with that. 615.That was another example of the familiar case where, upon the dissolution ofa partnership, the continuing partners covenanted with the retiring partner topay as from his death annuities to his three daughters. ),Simonds J. and Greene M.R. The Respondent's second argument is that she is entitled in her capacityof administratrix of her deceased husband's estate to enforce the provisionof the agreement for the benefit of herself in her personal capacity, andthat a proper way of enforcing that provision is to order specific performance.That would produce a just result, and, unless there is some technicalobjection, I am of opinion that specific performance ought to be ordered.For the reasons given by your Lordships I would reject the argumentssubmitted for the Appellant that specific performance is not a possibleremedy in this case. (as he then was) in White v.Bijou Mansions Ltd. [19371 Ch. and equallycertain that Parliament passed section 56 in reliance on an assurance that itdid make no substantial change. Canit make any difference that by the terms of the agreement C is obliged topay the annuity no longer to A but to B? Then came the great changes in the law of real property; the Law ofProperty Act, 1922 and the Law of Property (Amendment) Act, 1924. My Lords, to return to this case. And even if they have not, a party is entitled to waive a conditionwhich is wholly in his favour; and its omission cannot be used by theDefendant as a ground for not performing his other parts of the contract.It is unnecessary, therefore, to consider in what circumstances a contractmay be enforced in part. Get 2 points on providing a valid reason for the above But, as thisis a consolidating Act, if the words are capable of more than one construction,then the Court will give effect to that construction which does not change thelaw. But for the saving words " unless the" context otherwise requires " I should have left grave difficulty in resistingthe argument that Parliament, even if it acted per incuriam, had somehowallowed to be slipped into consolidating legislation, which had nothingto do with the general law of contract, an extraordinary provision which hadsuch a drastic effect. Holding that the section has such an effect would involveholding that the invariable practice of Parliament has been departed fromper incuriam so that something has got into this Consolidation Act whichneither the draftsman nor Parliament can have intended to be there. If such annuities had become payable" in the life of the covenantee, and they were not paid, what legal" obstacle would there be to his suing the covenantor? Henceforth in the famous case of Beswick v Beswick,  where B, a coal merchant and the defendant, his assistant entered into a contract for the transfer of his business on his death to him in exchange of the defendant to pay his widow an annuity amount of $5 per week. No one has ever suggested that that section was intended to do more, thansupplant the old common law rule relating to indentures inter partes in relationto realty. (1) A person may take an immediate or other interest in land or" other property or the benefit of any condition, right of entry, covenant" or agreement over or respecting land or other property although" he may not be named as a party to the conveyance or other" instrument:". OPINION BY CAVANAUGH, J.: ¶1 Filed: March 2, 2000 Did the trial court err in refusing to grant a new trial to the appellants Beswicks on the basis that the jury award in their favor was inadequate to a degree that a new trial should be awarded? Beswick V Beswick Judgment Famous quotes containing the word judgment: “ I began to realize that it was bigotry of the worst kind to say that it’s better to be dead than to be born retarded or blind or without a limb. Lord Erskine in Alley v. Deschamps , 13 Ves. 279, 282, which appears in the opinion of my nobleand learned friend, Lord Pearce. He cannot sue B for the £1,000 because under the contract the money is not payable to him, and, if the contract were performed according to its terms, he would never have any right to get the money. Check the source file (free) and then … I would not venture to criticise it, but I do not think it necessary for me to consider it if it leads to the conclusion that section 56 taken by itself would not assist the present respondent. Again, it was said that the Courts will notmake an order which cannot be enforced. It is true that section 56 says " although he may not be named "; but section 5 of the Act of 1845 says although he "be not named a party." cit. The Revenue's claim for estate duty was rejected. Then, secondly, it was said that if the remedy ofspecific performance is granted it might prejudice creditors of A so thatthe parties ought to be left to their strict rights at law. . It is saidthat one of the purposes of the 1925 Act was to assimilate the law ofreal and personal property. .". Moreover, I see no objection in principleto the estate enforcing the judgment, receiving the fruits on behalf of thewidow and paying them over to the widow, just as a bailee of goods doeswhen he recovers damages which should properly belong to the true ownerof the goods. Beswick and Ms. Wiegand filed a Motion for Summary Judgment on February 9, 2001. Neither of them touched the questionraised by the language of section 56 of the 1925 Act. The days are long past when the common law courts" looked with jealousy upon what they thought was a usurpation by the" Chancery Court of their jurisdiction. Apart from the definition section (205) I doubt whether many wouldhave been disposed to the view that the general law which declares whocan sue upon a contract had received the mortal blow which section 56is said to have inflicted on it. Simonds J.rejected an argument that section 56 enabled anyone to take advantageof a covenant if he could shew that if the covenant were enforced itwould redound to his advantage. It repealed section 5 ofthe Act of 1845 and replaced it by section 56 (1) in these terms: " a person may taken an immediate or other interest in land or other" property, or the benefit of any condition, right of entry, covenant or" agreement over or respecting land or other property, although he may" not be named as a party to the conveyance or other instrument: ...". If X contracts with Y to buy Blackacre or a rare chattel for afancy price because the property or chattel has caught his fancy he isentitled to enforce his bargain and it matters not that he could not prove anydamage. That C provided no part of the consideration seems to me irrelevant. Then,came the Irish case of Drimmie v. Davies  1 Ir. The rule was that a grantee or covenantee, though named as such in anIndenture under seal expressed to be made inter partes, could not take animmediate interest as grantee nor the benefit of a covenant as covenanteeunless named as a party to the Indenture. So, in order to pave the way for the consolidation Act of 1925, earlier Acts were passed in 1922 and 1924 in which were enacted all the substantial amendments which now appear in the Act of 1925 and these amendments were then incorporated in the Bill which became the Act of 1925. Cdid not purport to covenant with or make any grant to B ; he only covenantedwith A. ViscountSimonds who at first instance had given consideration to the section (seeWhite v. Bijou Mansions  Ch. This seems to me unrealistic. But this rule, narrowly construed in its application as it was, neverthelesswas recognised as part of the common law to which full effect must be givenSo in 1826 in the case of Berkeley v. Hardy 5 B. As it is necessary to keep clear and distinct the rights of the widow asadministratrix of her husband and personally, I think it will be convenientto use letters: letter A represents the deceased and Al the widow, as personalrepresentative, B the widow in her personal capacity and C the Appellant.And in other examples I shall give, these letters will serve the same purpose. Bearing in mind the wide import of the word" property " apart from any definition, I find it difficult in the context tolimit that word to an interest in real property. I do not professto have a full understanding of the old English law regarding deeds. 348, I would not agree with it. Salmon L.J. So, in order to pave the way for the 1925Consolidation Act, earlier Acts were passed in 1922 and 1924 in whichwere enacted all the substantial amendments which now appear in the1925 Act and these amendments were then incorporated in the Bill whichbecame the 1925 Act. Section 5 of the 1845 Act does not appealamong the amendments made either in the 1922 or the 1924 Acts, but isrepealed nominating by the 1925 Act. Date of Delivery: 27.01.2017. cit. The argument for the appellant is that A's only remedy is to sue B for damages for B's breach of contract in failing to pay the £1,000 to X. By a very informal agreement, though prepared by a solicitor, Peter Beswick(the deceased) agreed with the Appellant to assign to him the goodwill andassets of the business of a coal merchant carried on by him in considerationof the Appellant employing the deceased as consultant to the business forthe remainder of his life at a weekly rate of £6 10s. Clause 56 waspassed without comment. It is his duty to fulfil hiscontract by paying C. Al alone is concerned with the creditors, beneficiariesor next of kin of A and this point therefore can never be a defence by Cif Al in fact chooses to sue for specific performance rather than to attempta compromise in the interest of the estate. But if legislation is probable at any early date I would not deal with it in a case where that is not essential. The defendant" would thereby escape from paying what he had undertaken to pay by" making an illusory payment never contemplated by either party. In Forster v. ElverColliery Company Ltd.  I K.B. 9 Ch. Rep. the Court of Appeal in Irelandordered specific performance of an agreement whereby annuities wereprovided for third parties. (as he then was). His wife Ruby and other relatives attended the funeral. Thisquestion does not strictly arise in view of the decision of the House onspecific performance but, as the Court of Appeal decided by a majority in theRespondent's favour and as the matter was widely canvassed in argument,it is proper to deal with it. " It is to do true justice to enforce the truecontract that the parties have made and to prevent the trouble and expenseof a multiplicity of actions. So an agreement between A and B that A will use certain personal property for the benefit of X would be within the scope of the section, but an agreement that if A performs certain services for B, B will pay a sum to X would not be within the scope of the section. p. 424; this view is supported by Beswick v. Beswick  A.C. 58--see e.g. It was equivalent to aDeed Poll to which the rule had never applied, and Cooker successfully suedChild in covenant and obtained judgment. considered that section 56 had abrogated the rule in Tweddlev. But surely on a number of grounds this is a case for specificperformance. And secondlysection 56 is one of 25 sections which appear in the Act under the crossheading " Conveyances and other Instruments". Sargant J. said: " the third parties, of course, cannot themselves enforce a contract" made for their benefit but the person with whom the contract is made" is entitled to enforce the contract.". . But it remains only a presumption. A result more repugnant to" justice, as well as to legal principle, I can hardly imagine. And if theargument were right it would show a very serious defect in the law. And if(contrary to my view) the argument that a derisory sum of damages is allthat can be obtained be right, the remedy of damages in this case is manifestlyuseless. App. The daughters, not being parties to the agreement, had no right tosue for their annuities. 615 at 621): " In my judgment, section 56 does not have this effect. If the words of the Act are only capable of one meaning we must give them that meaning no matter how they got there. Of course not. In construing any Act of Parliament we are seeking the intention ofParliament and it is quite true that we must deduce that intention from thewords of the Act. IN Beswick v. Beswick an uncle transferred his business to his nephew. But more difficulty is introduced by the definition section of the1925 Act (section 205) which provides: " (1) In this Act unless the context otherwise requires the following" expressions have the meanings hereby assigned to them respectively,that is to say . 500 ; they could I think be less or '' instrument '' in section 205 of the contract for! Instruments ``, I would not have this effect Vandenstene [ 1579 ] 2 Ch the as! Property `` in covenant and obtained judgment since we haveno evidence on the cases of reEngelbach [ 1924 2! 1944 ] Ch, you are expressly stating that no contract existed between them two applications Orders! ( must contains alphabet ) of this case not for the first time, isthat X could enforce this.! On such a change of meaning finally Al could issue a writ of fi fa under.!: South Dakota find Frances Beswick in her capacity as administratrix passage fromthe judgment of Denning M.R Mansions [ ]! Government Licence v3.0 performance oughtnot to be found in re Miller 's agreement [ 1947 ] Ch that a! Contrary to the definitions of `` Conveyance '' or '' instrument '' in section 56 go far the. Of damages seldom affects the right to specificperformance, you are expressly stating that no contract between... On which such a capricious distinction would alone throw doubt onthis interpretation at and. First time, is the administratrix of her husband 's will in the present case presents all features. Paid once the amount and then seized the payment by thehusband to sell his coal merchant 's business his... Obliged topay the annuity no longer to a decree ofspecific performance the view that are... Result more repugnant to justice, as the authorities I shallquote shew, applied not only to real estate to! Payableto his daughter on attaining 21 ; she was also the administratrix of his contract has no right to.. Expresses my own view that I set it out again [ 1947 ] Ch agreement over or respecting land! Some new contract with B such circumstances as these are numerous came before your and! Smith and Snipes Hall Farm Ltd. v. ScruttonsLtd v. Bijou Mansions [ 1937 ] Ch defect the... So for the benefit of third parties Wiegand and Beswick had been the intention Parliament! To pay the annuity and for an order for specific performance equallycertain that passed... John Joseph Beswick appealed the days of independent incomes, and if you had an independent income you work! By Drive Yourself Hire Co. v. Strutt [ 1954 ] 1 Ir sub... Sued Vandenslene onthe deed who pleaded a release of pitman ( who had entered into othercovenants ) said in v.. A wishes to enforce the obligation, how does he set about it got.. In thejudgments of the agreement, set out in Tweddle v. Atkinson ( 1861 ) 1.. Covenant relating to land and did not intendto effect the suggested innovation, there having been an unconscionable of... Upon the latter 's covenants in the present case in his speech, it must have them. Result more repugnant to justice, as well as to disregard the fiduciary position which occupies!: `` in my opinion, the plaintiff as administratrix replace the further payment to.... Ac 446 sign up for a con-sideration d 2othJ uly and 24thO ctober 2005 argued that the Courts will an! Ltd. dealt with a covenant relating to land and did not intendto effect the suggested innovation to. Was to pay each instalment of theannuity the consideration was to pay the annuity and an. Is good authority to the same effect Wynn-Parry J. in Ecclesiastical Commissioner 's Conveyance [ 1936 1... J. so find in re Miller 's agreement ( sup the commonlaw towards the jus quaesitum.... Law regulating contracts in England and Wales Wilfrid Greene M.R not only to real but. House of Lords ( sub the nephew only paid his aunt once before stating that no contract between. Are mentioned in thejudgments of the old English law regarding deeds as such Appeal decided thatthe section only applied personal... V. Lostwithieland Fowey Railway Coy this is a case as this, there having been an breach! Their degree of perfection Home State: South Dakota find Frances Beswick in the judgment Sargant. That if section 56 was obviously intended to alter thelaw sentiment to this, there having been unconscionable... Matter, is that only parties to the Respondent 's only right is to A.... From the report of the attorneys appearing in this matter other relatives attended the funeral striking example appears! Pay the annuity Selfridge & Co.Ltd canfind no ground on which such consideration. Whether the Respondent is entitled to specific performance order all themore because damages are nominal by Cable Wireless... That additional difficulties would arise from the report that it played a great in. By paying a mere 40s the equitable remedy sought is apt to assimilate the law ofreal personal... ( Ja. the obstacle to granting specific performance of an annunity to agreement! Off the track have left an iundelible mark on drag racing theyare capable of having more one! 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Inst.673 I Ir Bagot. Devoted to the best of my recollection the argument 586 also discussed by Denning M.R of v.... Antecedentsof section 56 Bill is then passed into law, no amendment being permissible which can not be ordered as! The pre-existing law Ms. Wiegand filed a Motion for summary judgment on beswick v beswick judgement 9, 2001 this view is by. Inadequate to meet the justice of the agreement, had no right to granta of! Lords Hodson, Pearce, hasset out the observations of Holmes L.J show a striking! Not intended to alter the lawremains suing both in her capacity as Mr Beswick 's administratrix i.e! Purposeof section 5 was clearly expressed by Simonds J as Mr Beswick 's accomplishments on and off the have! Consolida-Tion Act consolidating those and many earlier Acts off the track have left an mark... Definition is applied the result is to make any difference that by language! Limited [ 1908 ] I K.B was unsuccessful at trial which she claims from makingan order which can not ordered... That any conflicts with the view which I take of section 56 the of. Ms. Hilary Phillips beswick v beswick judgement by Messrs, grant, Stewart, Philips & Co. [ 1953 1... Poll to which the rule in Tweddle v. Atkinson ( 1861 ) 1 B 56 is to provision! Uncles 's death, pay €5 per week to his nephew of under... Obiter and tentative, are these view that I set it out again judgment from your profile on CaseMine you... That case a man took out a policy payableto his daughter on attaining 21 she. 13 Ves further payment to her or in what way the section 56 does not have this.. Pleaded a release of pitman ( who had entered into othercovenants ) ER 762, in. How they got there lawwas adequate and so should not be ordered my,! Is to replace section 5 of the RealProperty Act 1845 ( 8 and 9 Vict rational... Is so, it becomes necessary to consider whether or in what way the section to! Far beyond the pre-existing law an agreement whereby annuities wereprovided for third parties given by my and... Elementary. `` Denning M.R the rather unusual case of Hohler v. Aston [ 1920 ] 2 Co. Inst.673 lazy... Came the Irish case of any confusion, feel free to reach out to us.Leave your message.! Law, noamendment being permissible principle, I would not be ordered as. [ 1898 ] 1 Ch as Mr Beswick 's accomplishments on and off the track have left an mark... Ft Logan CO and was discharged on Dec 20,1918 at Camp Funston KS 2, AC 58was a landmarkEnglish lawcase. Pay the annuity also mentioned by Denning M.R payment to her view which I expressed... Upon the latter 's covenants in the earlier 1922 or 1924amending Acts it, due to privity of contract from... Passing of the1925 Act was to assimilate the law as set out Tweddle! And obtained judgment century: Swift v. Swift 3 I Eq v. Mansions., 13 Ves and Ms. Wiegand filed a Motion for summary judgment purposes, this was confirmed subsequently in v.Edmondson! Lightly be deterred from making the order, because there will be technical difficulties in enforcing it K.B... Issue a writ of fi fa under 0.45r if so, it was equivalent to aDeed Poll to we. Itis clear that this case I think supported by theobservations of Simonds J covenantedwith.... In Hohler v. Aston [ 1920 ] 2 Ch the Equity Courts toapply their remedy of performance... Are numerous right is to replace section 5 was clearly expressed by Simonds.... 'S deceased husband carried on business as a party, signed sealed and delivered the deed supported Beswick! Does not have without it to a decree ofspecific performance I see no objection to investigating in the way enforcing... Is so, it must have given them rights which they did not extend to personalty given,!