114 / 736
objected that as the landlords were claiming
possession they were not at the same time en
titled to relief on the footing that the lease still
subsisted.
Held,
(1) That the injunctions claimed,
were in the nature of an alternative claim; (2)
that accordingly the landlords had not made an
unequivocal demand for possession operating as a
final election to terminate the lease; and (3) that
it would be open to them to proceed at the trial
on the basis that the lease still subsisted, and so
the objection failed.
(Calabar Properties v Seagull Autos [1968] 1
All E.R. 1).
Failure to Embody Intentions in Contract :
A five-year contract at a set price per month
for the disposal of offal from the defendant's
chicken processing plant contained a clause that
if the defendant were to change management or
ownership in any way during the five years "the
new management or owner must honour this
agreement to expiration or reimburse [the plain
tiff] to full amount" of certain machines and
equipment which he had installed at the defen
dant's plant. After a sale of shares of the de
fendant and a change of management, the plain
tiff was notified of a purported cancellation of
the agreement under the clause. The plaintiff
sued for specific performance.
Held,
(1) that the new owners being strangers
to the contract, had no rights or obligations under
it in their own name and could not purport to
cancel or otherwise interfere with it; nor could
they revoke the contract through their control of
the defendant; (2) that the clause could not be
given the effect of empowering the defendant to
terminate the agreement umlaterally simply by
changing management; an excepting or terminat
ing clause must be perfectly clear, effective and
precise; (3) that judging by parol evidence and
the prior drafts of the agreement, the parties had
not agreed upon the function of the clause and the
draftsman had failed to give effect to the con
flicting intentions of either, wih he result that
the clause was completely unenforceable and not
susceptible of amendment; and (4) that, since the
contract thus contained no termination clause
short of the five-year provision, the plaintiff was
entitled to specific performance.
(Marquest Industries v Willows Poultry Farms
[1967] 63 D.L.R. (2d) 753, British Columbia
Supreme Court).
Interest on Overpaid Stamp Duty :
By a majority of three to two the House of
Lords held that where company A sells property
to associated company B in return for shares,
the "consideration for the transfer" is the shares
and nothing else, even though it was part of the
arrangement that the shares would be renounced
in favour of a third party who would pay for
them in cash. The Commissioners held that, ex
emption did not apply, but Pennycuick, J. held
that it did. The Court of Appeal held that it did
not apply. In this case the tax payers got back
their duty and, as a result of the passing of
Section 51 of the Finance Act 1965, they also
got interest at 5 per cent, from the date of the
Court of Appeal decision to the date of repay
ment.
Section 42 of the Finance Act 1938 is similar
to the provisions of Section 19 of the Irish
Finance Act 1952.
(Shop and Store Developments Limited v In
land Revenue Commissioners) (1967) 2 All. R.E.
42; (1967) 1 A.C. 472).
Reintroduction of new evidence on re-examina
tion :
If a witness is cross-examined on a statement
by him which is alledged to be inconsistent with
his evidence, an earlier statement consistent with
his evidence in chief can be put to him in re-
examination.
(Flanagan v Fahy (1918) 1 I.R. 361 and
Gilly
v Posho
(1939) 2 All E.R. 196 distinguish);
[Amhed v Brumfit (1967) 112 SJ. 32, C.A.].
New Evidence received after Retirement of Jury :
After a jury had retired to consider their ver
dict on a charge of shopbreaking and larceny they
returned with a request to see a car which had
been referred to in evidence. The Commissioner
permitted this although he refused to permit any
evidence of the ownership of the car. The jury
then convicted.
Held,
allowing the defendants
appeal that the view infringed the rule that no
evidence may be admitted after the retirement of
the jury and accordingly the conviction was
squashed.
(R v Laurence [1968] 118 New L. J. 85).
Publication of matter likely to affect Criminal
Trial :
A Divisional Court of the High Court in Eng
land considering the Race Relations Act 1965
(c 73) considered the following :—
1. The gravity of a contempt relating to pending
proceedings depends on the likely prejudice
to a fair trial and the culpability of the con-
temner,
94