Mason v Mcshane et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Glasgow, J.
• Judgment Date: 19 March 1973
• Neutral Citation: VG 1973 HC 1
• Docket Number: Civil Suit no. 70 of 1971
• Date: 19 March 1973

High Court

Glasgow, J.

Civil Suit no. 70 of 1971

Mason

and

Mcshane et al

Appearances:-

F.E. Kelsick and C. Wilkin for the plaintiff.

Mc.W Todman for the defendants.

Contract - Non Est Factum — Parole Evidence Rule — Whether the plaintiff was bound by written agreement.

Facts: The plaintiff and defendants agreed to jointly purchase 2 ¹/₂acres of land. In the oral agreement the plaintiff was told it was beach front property. The written agreement clearly indicated it was not. The plaintiff signed the document without reading it.

Held: The plaintiff could not adduce evidence to show that his intention was misstated in the document or that some essential feature of the transaction has been omitted. Further, his failure to read the document was immaterial. This limb of the plaintiff's submission failed but succeeded on the other ground of fraudulent misrepresentation. Plaintiff succeeded in action.

Glasgow, J.

1 The Plaintiff, a Citizen of the United States of America who resides in the Island of Tortola in the British Virgin Islands alleged in her statement of claim that by an oral agreement concluded in March, 1969, in pursuance of a treaty for a bargain carried on between the 1st January, 1969 and the 12th March, 1969 between herself and the defendants, who are husband and wife ordinarily resident in Tortola aforesaid, the defendants agreed to sell and the plaintiff agreed to purchase at the price of $10,000.00 U.S. a portion of land comprising half an acre situate at Dennis Estate, West End in the Island of Tortola aforesaid. The plaintiff alleged that by an agreement in writing dated the 28th August, 1969, and made between the plaintiff and the defendants the defendants formally agreed to sell and the plaintiff formally agreed to purchase the said portion of land. It was also alleged by the plaintiff that at the time of the said oral agreement between the plaintiff and the defendants the said half acre of land formed part of a plot of land comprising 2.51 acres held by Ellen Louise West by deed of conveyance, and that by Indenture No.174 of 1969 dated the 21st March, 1969, the said Ellen Louise West conveyed to the defendants in consideration of the sum of $24,000.00 U.S. the said 451 acres of land described are follows.

“ALL THAT piece or parcel of land situate at Dennis Estate, West End, in the Island of Tortola, containing by admeasurement 2.51 acres traversed by the new public road butted and bounded as follows that is to say:- On the East and South by lands of Robert Hugo Penn, On the West by the sea. On the North by lands of Samuel Leonard subject to a right of way reserved to the Vendor in Deed No.86 of 1963 Robert Hugo Penn to Ellen Louise West for full and free right of passage over and along a path situate near the sea or Western boundary of the land.”

2 The plaintiff alleged that at the time of the said oral agreement the defendants orally and falsely represented to the plaintiff that the said half acre of land which was the subject of the agreement between the plaintiff and the defendants was “beach front property” and that the cheques dated 12th March 1969 and 17th March, 1969, paid by the plaintiff to the defendants in consideration of the agreement of sale were indorsed by the first-named defendant acknowledging the said half acre of land to be “beach front property.” The plaintiff alleged that the said land is in fact on a hillside at an approximate distance of 750 feet from the beach and without any or any reasonably practicable access to the public highway which runs between the beach and the said land.

3 The plaintiff further alleged that at the time of the said oral agreement the defendants also orally and falsely represented to the plaintiff that the price which they had agreed to pay to the said Ellen Louise West for the said 2.51 acres of land was $45,000.00 U.S., whereas in fact the price which the defendants agreed to pay to the said Ellen Louise West for the said land was $24,000.00 U.S. According to the plaintiff, the defendants made the said representation, fraudulently, either well knowing that they were false or recklessly, not caring whether they were true or false.

4 The plaintiff alleged that by means of such false and/or fraudulently representations the defendants induced the plaintiff to buy the said land as aforesaid for the sum of $10,000.00 U.S. which sum the plaintiff paid by two cheques, one on the 12th March, 1969 and the other on the 17th March, 1969.

5 The plaintiff also alleged that in breach of the oral and written agreements between the plaintiff and the defendants by Indenture No.816 of 1969 dated 10th October, 1969 the defendants executed a mortgage of the said 2.51 acres of land including the half acre of land which the defendants agreed to sell to the plaintiff, to the Virgin Islands National Bank to secure a loan o£ $35,000.00 U.S., and that the said mortgage was discharged by Indenture No.538 of 1970 on the 16th June, 1970.

6 The plaintiff also alleged that by Indenture No.595 of 1970 dated 16 ^th June, 1970, the defendants in breach of the said agreement with the plaintiff executed a further mortgage of the said land described in Indenture No.174 of 1969 to the Virgin Islands National Bank to secure a loan of $25,000.00 U.S.

7 The plaintiff therefore claims:

1

Rescission of the said contract. 2. Return of the said purchase price of $10,000.00 U.S. with interest thereon. 3. Further or other relief. 4. Costs.

8 In paragraph 2 of their defence the defendants stated that by an oral agreement concluded in March, 1969 they agreed to sell and the plaintiff agreed to buy at the price of $10,000.00 U.S., approximately half an acre of land situate at Dennis Estate, Tortola, aforesaid, and that the said oral agreement was subsequently wholly reduced to writing by an agreement made the 28th August, 1969 between the defendants of the one part and the plaintiff of the other part and registered in the Record Office of the British Virgin Islands as Deed No.597 of 1969. The defendants stated that the land which formed the subject matter of the said agreement was described in the said agreement, and that the description of the said land in the said agreement makes reference to a map or plan thereof, which map or plan was seen and accepted by the plaintiff prior to the signing of the said agreement. The defendants contend that the plaintiff has affirmed the contract expressed in the said agreement. The defendants also state that since the making of the said agreement a period of two years has elapsed during which the plaintiff took no steps towards rescission of the contract, wherefore the plaintiff is barred from the relief of rescission and return of the purchase price or any part thereof.

9 The facts, as I find them, are as follows: The plaintiff first became acquainted with the female defendant in 1966. At that time the plaintiff was a spinster named Renee Fishback. The plaintiff and the female defendant were very good friends. Through the female defendant the plaintiff got to know the male defendant in 1966. The plaintiff...