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counsel took the first two grounds together and they were the only
ones that were seriously argued.
As a result of the arguments put forward, and in view of the
wording of art. XIX of the Letters Patent of the Governor and
5 Commander-in-Chief the court, in exercise of its powers under the
Appeals from Magistrates Ordinance (cap. 14), s.17, decided to call
further evidence and the instrument dated February 3rd, 1949
appointing Mr. Stoddart as the Governor's Deputy was produced.
That document, as far as it is material to this case, reads: "[A]nd
10 in that capacity to exercise, perform and execute . . . all powers and
authorities ... vested in the Governor."
This evidence forced learned counsel to adopt the somewhat
attractive, but to my mind quite fallacious, argument that the powers
conferred by the instrument were so wide and general that they did
15 not comply with art. XIX of the Letters Patent, which requires that
the powers and authorities to be exercised by the Governor's Deputy
shall be such "as shall in and by such instrument be specified and
limited, but no others." In my opinion all the grounds of appeal
fail and the appeal must stand dismissed.
20 Appeal dismissed.

BASMA v. WEEKES and THREE OTHERS

25 JUDICIAL CoMMITTEE OF THE PruvY CouNCIL (Lord Simonds, Lord
MacDermott, Lord Reid, Sir John Beaumont and Sir Lionel Leach):
May 3rd, 1950
(P.C. App. No. 45/1948)

30 [I] Agency-duties and liabilities of agent-liability in contract-agent

contracting in own name liable even if existence of principal dis-
closed: An agent who contracts in his own name does not cease to
be contractually bound because it is proved that the other party
knew when the contract was made that he was acting as agent for
another; but in such a case the other party is entitled to sue either the
35 agent or the principal at his election (page 42, lines 7-11; page 44,
lines 8-19).
[2] Agency-duties and liabilities of agent-liability in contract-evidence
admissible to show party signing memorandum contracted as agent
if memorandum not contradicted: Evidence is admissible to show
that a party named in an agreement or memorandum of sale was
40 acting as agent for an unnamed party, and this is so whether or Iilot
the agreement is one required to be evidenced in writing by the

34
 BASMA v. WEEKES, 1950-56 ALR S.L. 34
P.C.

Statute of Frauds, 1677; but if that party appears on the face of the
instrument to be contracting in a personal capacity only, such evi-
dence is not admissible to contradict the agreement (page 41, line
6-page 42, line 11).
[3] Agency-duties and liabilities of principal-liability in contract- 5
other contracting party may elect to sue either agent or disclosed
principal: See [1] above.
[4] Agency-rights of principal-rights against third party-when dis-
closed principal may sue third party-principal may sue on contract
though not named in memorandum in writing if agency relationship
known by third party: To statisfy the Statute of Frauds, 1677, a 10
memorandum of sale must name or identify two parties who are
contractually bound to ea<;h other, and the Statute does not cease to
be satisfied if it is proved that one of them was known by the other
when the contract was made to be acting as agent for a party
unnamed in the memorandum (page 43, line 32-page 44, line 8).
15
[5] Contract-form-note or memorandum in writing-identification of
parties-Statute of Frauds, 1677 satisfied if one party named known
by other to be contracting as agent: See [4] above.
[6] Contract-form-note or memorandum in writing-signature-evi-
dence admissible to show party signing memorandum contracted as
agent if memorandum not contradicted: See [2] above.
20

[7] Contract-specific performance-availability of decree-contract for

sale of land by several vendors-specific performance available against
vendors with enforceable interests-proportionate abatement in pur-
chase price in respect of vendor without interest: Where property is
sold by more than one vendor, one of whom has no enforceable 25
interest in the property, in the absence of any special circumstances
to prevent it a court may order specific performance of the convey-
ance of the interests of the vendors with enforceable interests in the
property and a proportionate abatement in the purchase price in
respect of the vendor without one (page 44, line 32-page 45, line 30).
30
[8] Documents-interpretation-admission of extrinsic evidence-admis-
sible if not inconsistent with written terms-may show party signing
memorandum contracted as agent if memorandum not contradicted:
See [2] above.
[9] Land Law-conveyancing-contract for sale of land by several ven-
dors-specific performance available against vendors with enforceable 35
interests-proportionate abatement in purchase price in respect of
vendor without interest: See [7] above.

The appellant brought an action against the respondents in the

Supreme Court for specific performance of an agreement of sale. 40
The first three respondents, one of whom was a woman married

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in Sierra Leone prior to the passing of the Imperial Statutes (Law

of Property) Adoption Ordinance, 1932, agreed to sell two houses to
an agent known by the respondents to be acting on the appellant's
behalf. The agreed purchase price was duly paid by the appellant's
agent. An agreement of sale was drawn up and signed by the first three
respondents which referred only to the appellant's agent and not to
the appellant himself. The first three respondents subsequently sold
the houses to the fourth respondent, who took with notice of the
agreement with the appellant, and the appellant was refunded the
10 agreed purchase price by the first three respondents. The appellant
instituted the present proceedings for specific performance of the
agreement of sale.
The Supreme Court (Wright, Ag.J.), having found that the
respondents had knowledge of the fact that the purchaser was acting
15 as agent of the appellant, and that therefore the agreement of sale
was a sufficient memorandum under the Statute of Frauds, 1677, gave
judgment for the appellant to the extent of the interests of the second
and third respondents with an abatement of one-third of the purchase
price in respect of the first respondent, who as a married woman
20 had no power to enter into the agreement of sale.
The appeal by the second, third and fourth respondents was
allowed by the West Mrican Court of Appeal on the ground that the
agreement of sale was not a sufficient memorandum within s.4 of the
Statute of Frauds.
25 On further appeal, the Judicial Committee of the Privy Council
also considered whether the agreement of sale was a sufficient
memorandum, and whether the appellant was entitled to have
specific performance of only a part of his contract.

30
Cases referred to:
(1) Att.-Gen. v. Day (1849), Ves. Sen. 219; 27 E.R. 992, followed.
(2) Calder v. Dobell (1871), L.R. 6 C.P. 486; 25 L.T. 129, dictum of
Kelly, C.B. applied.
35 (3) Filby v. Hounsell, [1896] 2 Ch. 737; (1896), 75 L.T. 270, explained.
(4) Hexter v. Pearce, [.1900] 1 Ch. 341; (1899), 82 L.T. 109, dictum of
Farwell, J. applied.
(5) Higgins v. Senior (1841), 8 M. & W. 834; 151 E.R. 1278, dicta of
40 Parke, B. applied.
(6) Horrocks v. Rigby (1878), 9 Ch.D. 180; 38 L.T. 782, followed.

36

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P.C.

(7) Lovesy v. Palmer, [1916] 2 Ch. 233; (1916), .114 L.T. 1033, approved.
(8) Lumley v. Ravenscroft, [1895] 1 Q.B. 683; (1895), 72 L.T. 382, not
followed.
(9) Price v. Griffith (1851), 1 De G.M. & G. 81; 42 E.R. 482, dis-
5
tinguished.
(10) Smith-Bird v. Blower, [1939] 2 All E.R. 406, doubted.
(11) Thomas v. Dering (1837), Keen 730; 48 E.R. 488, distinguished.

Legislation construed: 10
Statute of Frauds, 1677 (29 Car. Il, c.3), s.4:
". . . [N]o action shall be brought whereby to charge any executor
or administrator upon any special promise to answer damages out of
his own estate or whereby to charge the defendant upon any special
promise to answer for the debt default or miscarriages of another 15
person or to charge any person upon any agreement made . . . upon
any contract or sale of lands tenements or hereditaments . . . or
upon any agreement that is not to be performed within the space of
one year from the making thereof unless the agreement upon which
such action shall be brought or some memorandum or note thereof
shall be in writing and signed by the party to be charged there- 20
with . . . ."

R.O. Wilberforce (of the English bar) for the appellant;

O'Connor (of the English bar) for the respondents.
25
LORD REID, delivering the opinion of the Board:
This is an appeal from a judgment of the West Mrican Court of
appeal dated April 8th, 1948, which set aside a judgment of Wright,
Ag.J., in the Supreme Court of Sierra Leone dated May 24th, 1947.
The appellant, who was the plaintiff in the action, alleged that by an 30
agreement dated November 29th, 1946, the first, second and third
respondents agreed to sell to him two houses in Freetown for
£1,900, and that thereupon the sum of £633. 6s. 8d. was paid to
each of these respondents in full satisfaction of the purchase price.
The appellant further alleged that, by deed of conveyance dated 35
December 2nd, 1946, these respondents purported to convey the two
houses to the fourth respondent. The appellant's claim was to have
specific performance of his agreement with the first three respondents.
The defence was a denial of this agreement. At the opening of the
trial the respondents were allowed without objection to amend their 40
defence by adding the words "If at all there was such an agreement,

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which is not admitted, the alleged agreement does not comply with
the requirements of the Statute of Frauds." Evidence was then led
and the appellant's case closed. At that stage the respondents'
counsel, after having made an unsuccessful submission that there
5 was no evidence of the alleged agreement, sought to amend the
defence further by adding: "The defendant Gladys Muriel Weekes
and the defendant Ettie Spaine are married women." Objection
was taken but the amendment was allowed and the respondents"
evidence was then led.
10 The appellant's case was based on a document in the following
terms:
"Nos. 2 and 2A, Kissy Street, Freetown.
We, the undersigned, the owners of the above premises
hereby agree that we have today sold the above premises Nos.
15 2 and 2A, Kissy Street, Freetown, to Mr. C. B. Rogers-Wright,
of 27 Liverpool Street, Freetown, at the price of £1,900, which
he has completely paid in three separate sums of £633. 6s. 8d. to
each of us. We also hereby agree that we will execute the deed
of conveyance to the said premises whenever it is prepared and
20 that in the meantime Mr. Wright shall be in possession of the
said premises from the date hereof.
Dated this 29th day of November, 1946.
(Sgd.) Gladys Weekes.
(Sgd.) Henrietta Spaine.
25 (Sgd.) John Kabia Williams."
Their Lordships will refer to this document as the agreement of
November 29th. The respondents did not deny that they had signed
this document. They relied on three different defences: first, that
the property had already been sold by the first three respondents to
SO the fourth respondent before November 29th; secondly, that the
agreement of November 29th was not a sufficient memorandum to
enable the plaintiff to sue on the contract; and thirdly, that the first
respondent Mrs. Weekes had no power to enter into the contract and
that, as the contract could therefore not be performed in its entirety,
35 there could be no order for specific performance against the other
respondents.
The first of these defences is not now maintained. On this
matter Wright, Ag.J. did not accept the respondents' evidence: he
held that the agreement of November 29th had been made and
40 signed before the first three respondents agreed to sell the property to
the fourth respondent and that when this agreemnt was made the

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 BASMA v. WEEKES, 1950-56 ALR S.L. 34
P.C.

fourth respondent had notice of the earlier agreement to sell to the

appellant. These findings have not been challenged.
With regard to the second defence, it appears from the judgment
of Wright, Ag.J. that it was argued for the respondents that the only
agreement proved was an agreement between Mr. Rogers-Wright 5
and the first three respondents. Wright, Ag.J. rejected this argument
holding that oral evidence had sufficiently proved that Mr. Rogers-
Wright was acting as agent for the appellant and that there was
sufficient proof of a contract with the appellant.
The third defence was founded on the fact that before 1932 the 10
law of Sierra Leone with regard to the capacity of a married woman
was the same as the law was in England before the passing of the
Married Women's Property Act, 1882, and that the Imperial Statutes
(Law of Property) Adoption Ordinance, 1932 preserved any right
which a husband had acquired before that date. Wright, Ag.J. 15
found himself unable to deal with this defence because the evidence
was insufficient, and he therefore allowed further evidence to be
called. In fact no further evidence was called : it is not clear what
further submissions were made by the parties at that stage but in his
reasons for his final judgment Wright, Ag.J. said: 20
"Counsel for the plaintiff having agreed to accept judgment for
specific performance, the court therefore declares that the plaintiff
is entitled to specific performance of the agreement dated
November 29th, 1946 mentioned in the pleadings to the extent of
the interests of Mrs. Spaine and John Williams with an abate- 25
ment of one-third of the purchase price in respect of the interest
of Mrs. Weekes."
The argument before their Lordships proceeded on the footing that
the respondents, Mrs. W eekes, Mrs. Spaine and John Williams,
were tenants in common of the property in question, that Mrs. SO
W eekes who was married in 1931 had no power to enter into the
agreement of November 29th, but that Mrs. Spaine who was not
married until 1944 was under no such disability. It was admitted
that the sums paid to these three respondents by the appellant had
been repaid to him, and that if the appellant is to have specific 35
performance of the agreement to the extent of the interests of Mrs.
Spaine and John Williams he must pay the sum of £1,266. 18s. 4d.
It was not disputed that this sum should in that event be paid
to the fourth respondent who has taken a conveyance of the property
from the first three respondents with the concurrence of Mrs. W eekes' 40
husband and has paid to them the price of the property.

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The second, third and fourth respondents appealed to the West

African Court of Appeal. That court allowed the appeal on the
ground that the agreement of November 29th was not a sufficient
memorandum within the Statute of Frauds, 1677. Against that
5 decision the present appeal is taken.
The agreement of November 29th apparently satisfies the require-
ments of the Statute of Frauds. It names the vendors and the
purchaser; it specifies the subjects sold and the price; and it is signed
by the vendors, the parties to be charged. Further, it states that Mr.
10 Rogers-Wright, who is named as the purchaser, has paid the price and
is entitled to immediate possession. Mr. Rogers-Wright is a solicitor
and admittedly it was proved by oral evidence that he was acting
in this matter as agent for the appellant. But there is nothing in
the document to suggest that Mr. Rogers-Wright was acting other-
15 wise than as principal. The first question in this case is whether it
is relevant to enquire whether the vendors when they made the
agreement knew that Mr. Rogers-Wright was acting as agent for
the appellant, and whether, if such knowledge is proved, the fact
that the agreement does not identify the appellant as purchaser
20 makes it insufficient to satisfy the Statute of Frauds. Wright, Ag.J.
did not deal with this question-probably the point was not taken
before him-but the West African Court of Appeal held that the
vendors were aware that Mr. Rogers-Wright was purchasing as agent
for the appellant. There is evidence to support this finding and their
25 Lordships will assume that it is correct. After so holding, the
judgment of the Court of Appeal proceeds (12 W.A.C.A. at 314-315):
"It follows therefore that the memorandum to enable the
respondent (now the appellant) to sue on it must have contained
his name either as a principal or in some other way to identify
30 him. As it clearly fails to do so, we hold that the document . . .
was not a sufficient memorandum within the Statute of Frauds."
The authority on which the Court of Appeal rely is the judgment of
Luxmoore, L.J. in Smith-Bird v. Blower (10), and there is in that
judgment a passage which is directly applicable to the present case.
35 But before proceeding to examine that judgment their Lordships
must refer to certain earlier cases the authority of which has never
been doubted but which do not appear to have been cited to Lux-
moore, L.J. In Higgins v. Senior (5), there was an agreement in
writing for the sale of goods above the value of £10, which purported
40 on the face of it to be made by the defendant and was subscribed by
him; but the defendant sought to avoid liability by proving that he

40
 BASMA v. WEEKES, 1950-56 ALR S.L. 34
P.C.

made the agreement as agent for a third person and that this was
known at the time to the plaintiff. It was held that this did not
enable the defendant to escape liability. Parke, B., in delivering the
judgment of the court, stated the principle as follows (8 M. & W.
at 844; 151 E.R. at 1282) : 5
"There is no doubt that where such an agreement is made
it is competent to show that one or both of the contracting
parties were agents for other persons and acted as such agents in
making the contract, so as to give the benefit of the contract on
the one hand to and charge with liability on the other the 10
unnamed principals and this whether the agreement be or be
not required to be in writing by the Statute of Frauds; and this
evidence in no way contradicts the written agreement. It does
not deny that it is binding on those whom on the face of it
it purports to bind; but shows that it also binds another by reason 15
that the act of the agent in signing the agreement in pursuance
of his authority is in law the act of the principal.
But, on the other hand, to allow evidence to be given that
the party who appears on the face of the instrument to be
personally a contracting party is not such would be to allow 20
parole evidence to contradict the written agreement : which
cannot be done. And this view of the law accords with the
decisions, not merely as to bills of exchange signed by a person
without stating his agency on the face of the bill but as to other
written contracts, namely the cases of ]ones v. Littledale and 25
Magee v. Atkinson. It is true that the case of ]ones v. Little-
dale might be supported on the ground that the agent really
intended to contract as principal : but Lord Denman, in
delivering the judgment of the Court, lays down this as a
general proposition 'that if the agent contracts in such a form 30
as to make himself personally responsible, he cannot afterwards,
whether his principal were or were not known at the time of the
contract, relieve himself from that responsibility and this is also
laid down in Story on Agency, s.269.'"
In Calder v. Dobell (2), Cherry, a broker, contracted in his own 35
name to buy goods from the plaintiffs, having previously disclosed
to them that he was acting as agent for the defendant. It was held
unanimously by the Court of Common Pleas and in the Exchequer
Chamber that the plaintiffs were entitled to sue the defendants on
this contract. It was argued for the defendant that there is a 40
distinction between the case where one party is not aware when

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making the contract that the other is acting as an agent and the
case where he is aware of that fact but nevertheless the contract
is made by the agent in his own name and that the principal could
be sued in the former case but not in the latter. This argument was
.5 rejected. It was held that in this respect there is no distinction
between the two cases and the authority of Higgins v. Senior (5)
was fully recognised. Kelly, C.B. said (L.R. 6 C.P. at 499): "The
contract was made in the name of Cherry the agent but the case
shows that it was made on behalf of a principal who was named
10 at the time. I think the plaintiffs had a right to sue either the agent
or the principal at their election." [These words do not appear in
the report of the case at 25 L.T. 129.]
The circumstances in Smith-Bird v. Blower (10) were that the
defendant wished to sell two houses, that a certain Mr. Brown
15 who had been authorised by the plaintiffs to buy the houses was
introduced to the defendant and after some negotiations agreed
to buy the houses for £510, and that the document relied on as
a memorandum of this agreement contained nothing to indicate
that the plaintiffs were the purchasers or that Mr. Brown was
20 acting otherwise than on his own behalf. Luxmoore, L.J., having
held that there was an oral contract to sell the houses, said ([ 1939]
2 All E.R. at 407-408):
"The further question arises · whether there is a sufficient
memorandum of that contract to comply with the requirements
25 of the Statute. In this connection it is necessary to determine
whether the defendant was aware that Mr. Brown was acting
as agent only, and not as principal, for, if the defendant knew
that Mr. Brown was only an agent, the memorandum, in order
to comply with the statutory requirements, must either contain
30 the names of the plaintiffs as principals or otherwise identify
them, whereas if the defendant was not aware of the fact that
Mr. Brown was acting as agent for anyone, but considered
that Mr. Brown was contracting on his own behalf, the position
is different, and the plaintiffs as undisclosed principals can rely
35 on any sufficient memorandum in which Mr. Brown·s name
appears as principal, although there is no reference therein to
the plaintiffs."
The learned Lord Justice cited as authority for this proposition
the cases of Lovesy v. Palmer (7) and Filby v. Hounsell (3). In
'40 Lovesy v. Palmer, the plaintiff claimed a declaration that there was
a binding contract between the defendants and himself with regard

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P.C.

to the lease of a theatre. One question was whether there was any
memorandum of the alleged agreement sufficient to satisfy the Statute
of Frauds. The facts were complicated and a number of documents
were alleged to form together such a memorandum. In these
documents the plaintiff's solicitor was named but he only purported 5
to contract on behalf of unnamed "clients." Younger, J. (as he then
was) held that at no time could this solicitor have sued or been
sued on the contract. And there was no reference in the documents
to the plaintiff as a contracting party. So it was impossible to
identify from the documents any person who could sue the defen- 10
dants or be sued by them on the alleged contract, and Younger, J.
held, rightly in their Lordships' judgment, that there was no
memorandum sufficient to satisfy the Statute of Frauds. It had
been argued for the plaintiff that Filby v. Hounsell (3) decided
that it was enough that the solicitor purported to act on behalf of 15
"clients" and that the "clients" were identified by parole evidence.
With regard to this case Younger, J. said ([1916] 2 Ch. at 244; 114
L.T. at 1037):
"If it was in fact decided in Filby v. Hounsell that there could
within the Statute be a sufficient memorandum of an agreement 20
where the principal was not named and the agent was not
bound then I do not think that the decision can stand with the
other authorities such as Rossiter v. Miller and ]arrett v. Hunter
or with the Statute as I read it. But I think, when one looks
carefully at the case of Filby v. Hounsell, that Romer, J., really 25
gave the judgment he did because he assumed that the agent
was liable on the contract. I cannot myself see for reasons I
have given that the assumption was well founded, but if that
was the basis of the learned Judge's decision then the case
presents no further difficulty and is in entire harmony with all 30
the authorities."
Their Lordships agree .with this interpretation of the case of
Filby v. Hounsell (3) and they are unable to find either in that
case so interpreted or in the case of Lovesy v. Palmer (7) anything
to justify the distinction stated in the passage quoted from the judg- 35
ment in Smith-Bird v. Blower (10). Those cases decide that to satisfy
the Statute the agreement or memorandum must name or identify
two parties who are contractually bound to each other. They
do not decide that where two such parties are named or identified
the Statute ceases to be satisfied if it is proved that one of them 40
was known by the other when the contract was made to be acting

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as agent for a third party. No doubt that result would follow if

it were the law that an agent who contracts in his own name is not
contractually bound if the other party knew at the time that he
was acting as agent. If that were so, the agreement or memoran-
5 dum would on proof of such knowledge cease to contain the names
of two contracting parties and would therefore cease to satisfy
the Statute. But it is clear from Higgins v. Senior (5) and Calder
v. Dobell (2) that that is not the law. An agent who contracts
in his own name does not cease to be contractually bound because
lO it is proved that the other party knew when the contract was
made that he was acting as agent. So the agreement which is
made in his name does not cease in that event to contain the names
of contracting parties, and therefore does not cease to satisfy the
Statute. Their Lordships are satisfied that in the present case
15 the terms of the agreement of November 29th are such that Mr.
Rogers-Wright was contractually bound, and therefore the agree-
ment satisfies the Statute of Frauds. So Mr. Rogers-Wright could
have sued on the agreement, and if he could sue so can his
principal the appellant.
20 The other question in this appeal is whether the appellant is
entitled to have specific performance of a part of his contract. He
agreed to buy two houses which were owned by the first, second
and third respondents as tenants in common. He cannot enforce
this contract against the first respondent because she had no power
25 to make the contract. Can he enforce it against the second and
third respondents so as to require conveyance to him of the two
one-third shares which belonged to these respondents? Cases have
not infrequently arisen where a single vendor has been unable to
give a good title to all that he has contracted to sell. The general
30 rule in such a case has been stated by Lord St. Leonards in Sugden,
Law .of Vendors & Purchasers, 14th ed., at 317 (1862):
"[A] purchaser generally, although not universally, may take
what he can get, with compensation for what he cannot have."
Earlier on, he states (ibid., at 316) : "In regard to the limits
35 of the rule that a purchaser may elect to take the part to which
a title can be made at a proportionate price, it has not been
determined whether under any circumstances of deterioration
to the remaining property, the vendor could be exempted from
the obligation of conveying that part to which a title could be
40 made; but the proposition is untenable, that if there is a con-

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 BASMA v. WEEKES, 1950-56 ALR S.L. 34
P.C.

siderable part to which no title could be made, the vendor was

therefore exempted from the necessity of conveying any part."
In the present case there are three vendors. One cannot
convey her interest but there is nothing to prevent the conveyance
of the interests which belonged to the others. This type of case 5
is less common but one example is Horrocks v. Rigby (6), where two
persons agreed to sell a public house and it was found on investiga-
tion that one of them had no interest in it but that a moiety belonged
to the other. In an action by the purchaser against the latter
vendor for specific performance Fry, J. said (9 Ch.D. at 182; 38 L.T. 10
at 784):
"I think that where an agreement is entered into by A and B
with C and it afterwards appears that B has no interest in the
property A may nevertheless be compelled to convey his interest
to C. I should have come to that conclusion upon principle 15
for I do not see why a purchaser is to lose his right against a
vendor who can complete because from a circumstance of
which the purchaser had no knowledge he has no right against
persons who cannot complete. But I am very much fortified
in that conclusion in a passage in the judgment of Lord 20
Hardwicke in Attorney-General v. Day (1)."
This passage which is quoted by Fry, J. is:
"On the other hand, if on the death of one of the tenants in
common who contracted for a sale of the estate the purchaser
brings a bill against the survivor, desiring to take a moiety of 25
the estate only, the interest in the money being divided by the
interest in the estate, I should think (though I give no absolute
opinion as to that) in the case of a common person he might
have a conveyance of a moiety from the survivor, although the
contract cannot be executed against the heir of the other." (Ves. 30
Sen. at 224; 27 E.R. at 996).
Their Lordships would have no hesitation in following these
authorities but for the judgment of Lindley, L.J. in Lumley v.
Ravenscroft (8). In that case the two defendants who appear to
have been tenants in common had agreed through their agent to 35
grant a lease of certain premises to the plaintiff. The plaintiff
brought an action for specific performance or alternatively for
damages, and applied for an injunction to restrain the defendants
until after the trial of the action from leasing the premises to any
other person. It appeared that one of the defendants was an 40
infant. Day, J. granted an injunction but an appeal from this

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order was allowed. Lindley, L.J., in the leading judgment of the

Court of Appeal, said ([1895] 1 Q.B. at 684-685; 72 L.T. at 383):
"Specific performance is out of the question. You cannot get
specific performance against an infant : and upon the evidence
5 before us no case is made out for specific performance against
the other defendant either. This case is not within the exemp-
tion as to misrepresentation or misconduct stated .in Price v.
Griffith and Thomas v. Dering but comes within the general
rule that where a person is jointly interested in an estate with
10 another person and purports to deal with the entirety specific
performance will not be granted against him as to his share.
The plaintiff's only remedy is by way of damages."
Neither Horrocks v. Rigby (6) nor Att-Gen. v. Day (1) was
cited to the court; indeed Price v. Griffith (9) and Thomas v. Dering
15 (11) appear to have been the only authorities cited in argument, the
argument for the plaintiff as reported being very meagre. Both
Price v. Griffi~h and Thomas v. Dering were cases of an unus·ual
character. Price v. Griffith was discussed and explained by Farwell,
J. in Hexter v. Pearce (4). In Price v. Griffith, two tenants in common
20 were alleged to have agreed to grant a mineral lease. The plaintiff
failed to prove any agreement at all with one of them and, as
Farwell, J. points out, the case was really decided on the ground
that the agreement with the other was void for uncertainty. ·.But
Knight Bruce, L.J. said with regard to the claim of the plaintiff
25 to have specific performance against only one of the two tenants
in common (1 De G. M. & G. at 85; 42 E.R. at 484):
"If he (the tenant in common) intended to contract at all he
intended to contract for a lease of the whole colliery. Cases
may be conceived where a person who has contracted to convey
SO more than it is in his power to convey ought to be decreed to
convey what he can either with or without compensation to
the vendee for such part of the subject matter of the contract
as the vendor is unable to convey. But a lease of an undivided
moiety of a colliery is a very different thing from a lease of a
35 whole colliery."
That passage might be read as affording support for the general
rule stated by Lindley, L.J., but Farwell, J. read it in a narrower
sense. He said ([1900] 1 Ch. at 345; 82 L.T. at 110) with regard
to it:
40 "In a sense with great deference to the Lord Justice that is a
truism : but the meaning I think is that in that case the intention

46

L
 BASMA v. WEEKES, 1950-56 ALR S.L. 34
P.C.

of the lessor was to grant a lease of the entirety and nothing

else. There would have been a certain hardship in compelling
him to grant a lease of a moiety only when he did not intend
it having regard to the fact that it was a lease of mineral
property. I think that is all the Lord Justice "meant." 5
So interpreted, Price v. Oriffith (9) is not an authority for any
general rule. In Thomas v. Dering (11) there was only one vendor
and their lordships do not think it helpful to examine the case
closely as they have found nothing in it to throw light on the
position where there is more than one vendor and one of the 10
vendors cannot complete the contract. Their Lordships have
reached the conclusion that the weight which must otherwise be
given to a judgment of Lindley, L.J. is in this case . seriously
diminished by the circumstances to which they have adverted, and
that the decision in Lumley v. Ravenscroft (8) cannot be regarded 15
as having impaired the authority of Horrocks v. Rigby (6) or of the
opinion of Lord Hardwicke in Att.-Gen. v. Day (1). In the present
case there appear to be no special circumstances which would make
it wrong to grant speciRc performance and their Lordships hold
that the decision of Wright, Ag.J. was correct in principle. It was 20
not argued that the form of the order made by Wright, Ag.J. should
be altered in any way. ·
Their Lordships will humbly advise His Majesty that this
appeal should be allowed and the order of Wright, Ag.J. restored.
The respondents, other than the respondent Mrs. W eekes, will pay 25
the costs of this appeal and in the West African Court of Appeal.
Appeal allowed.

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35

40

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