MERCER v. ANGLO-GUINEA PRODUCE COMPANY
1923
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
- Sir Philip Crampton Smyly
- C.J.
- Logan
- HALL
- J.J
Areas of Law
- Contract Law
- Commercial Law
- Civil Procedure
1923
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
Sir Philip Crampton Smyly, C.J., writing for the court, reviewed an appeal from the Divisional Court of Seccondee, which had dismissed a contractor’s claim for breach of a written agreement dated 7 April 1920. Under that agreement, the defendant company promised to employ the contractor to purchase cocoa or other produce and to supply funds (up to £1,500) and materials, with remuneration by commission and termination on one month’s notice. The contractor mortgaged his Seccondee property as security; the company never supplied money or work and later reconveyed the mortgage, citing market irregularity. Applying Turner v. Goldsmith, the court held the "from time to time" language permitted only reasonable latitude, not indefinite postponement; the company had to provide a fair opportunity to earn commission or terminate. The appeal was allowed and the matter remitted for assessment of damages. Hall, J., concurred; Logan, J., concurred with separate reasoning.
Smyly, C.J.-In this appeal the plaintiff claims from the defendants the sum of as damages for breach of an agreement in writing dated the 7 th April, I920. The proceedings at the trial were very short. The plaintiff put in the agreement which was marked "A". The defendant admitted that a mortgage was entered into under clause 6 of the agreement.
Counsel for plaintiff submitted that, under clause I of the agreement, there was an express agreement for employment, and following Turner v. Goldsmith (1891, I Q.B. 544) the defendants must be considered as having broken their contract.
Counsel, Mr. McKay, for the defendent submitted this contract still exists, and the defendants have taken no steps to terminate it. All that has been done towards the determination of the contract has been done by the plaintiff. The contract would still exist if nothing had been done by the plaintiff. By consent, copies of three letters were then put in and marked " B," dated respectively 17th and 18th of May, 1921, and the 1st July, 1921; also the indenture of mortgage dated 7th April, 1920, and marked "C."
The trial Judge then dismissed the case, with costs measured at five guineas to be paid by the plaintiff to the defendant:
Under exhibit " A " it was agreed as follows :-
(1) The company will employ the contractor to purchase for them at the prices named from time to time by the company or their agent in charge of their business in the Gold Coast or Ashanti the following products, namely, cocoa or other products.
(2) The company, or their agent in charge for the time being, shall supply the contractor with money from time to time not exceeding one thousand five hundred pounds, cocoa bags, etc., as the contractor may require for the business and all such things shall be the property of the company.
By clause (4) the contractor's remuneration was to be by commission.
By clause (5) the agreement may be determined at any time by either party giving to the other one mnth's notice in writing. By clause (6) the contractor to mortgage his property at Seccondee by way of security for the performance by him of this agreement.
By exhibit " B " we find the plaintiff on the 7 th May, 1921 writing, after setting out the above agreement, "I would ask you kindly to reconvey the deed mortgaged to you, as you have failed to carry out your part of the contact in terms of the agreement above referred to," etc.
The defendant on the 18th May, 1921, writes, after acknowledging the receipt o