1859. BARKER v. ALLAN. letter he referred to the deed of settlement as the basis of his claim, to have sent at the same time a copy of the guarantee he alludes to, together with a statement of the precise amount which he intended to claim under it. While upon this subject, the directors have only to repeat that any communings, or agreement previous to the date of the deed of settlement, regarding the emoluments of any director, are overruled by the terms of the deed itself, which alone settles the terms of the engagement; and if the agreement alluded to be dated posterior to the said deed of settlement, the directors in that case cannot at all recognise it, it being ultra vires either of Mr. Barker or Mr. Preston to make such agreement to the effect of binding the board, or the shareholders, in a manner not sanctioned by the deed of settlement. The board, however, being most desirous to come to an amicable termination of the misunderstanding which appears to prevail, are willing to accept Mr. Barker's resignation and to pay him the proportion of salary due and applicable to the time of his services, or say, in round numbers, 1507, and at the same time the members of the board will jointly relieve him of his shares and guarantee him against all calls thereon. The directors, being desirous that this matter should be definitely settled, request Mr. Barker will reply to the offer by next board day, the 4th of September: unless the terms of arrangement now proposed are accepted by that date the directors are to be no longer bound by them. 66 (Signed) Thomas Allan, Chairman.” The plaintiff answered this letter by the next board day, and as to the offer he writes (September 2nd, 1856): “I do not wish to make any further difficulty, but to come to an amicable arrangement. I accept your offer, though I should be insincere were I to say I think it liberal, or indeed a fair compensation. It may be arranged as speedily as you can wish, and, in fact, I accept the offer as one to be at once carried out, and on receiving the guarantee as to the shares, in which I presume your chairman, Mr. Cridland, concurs, and advice that the sum fixed is paid in to my account at Sir J. W. Lubbock's, Mansion House Street, my resignation shall be at once forwarded.” On the 4th of September, 1856, a meeting of the directors of both Companies was held, at which all the defendants except Burgoyne were present, when the plaintiff's letter of the 2nd of September was read and a resolution passed thereon, as stated in the following letter of the secretary, by whom the same was forwarded to the plaintiff. "Hull and London Fire and Life Insurance Office. "Dear Sir, "69, King William Street, London. "I beg leave to forward you an extract from the board minutes of yesterday: The board, having heard Mr. Barker's letter read, accept his resignation, and request the secretary to get the guarantee prepared by the solicitors, and to take other steps to carry out the negotiation.' "I am, Sir, Yours truly, 1859. BARKER v. ALLAN. "Dear Sir, "R. M. Buncombe, Secretary." "3 Oct. 1856. "I am requested to inform you that at a board meeting of yesterday the consideration of your agreement was adjourned until to-morrow. "I am, Dear Sir, "Yours truly, "H. R. B. Barker, Esq. "R. Buncombe, Secretary." "Hull." At an extraordinary board meeting of the Companies held on the 23rd of October, 1856, at which the defendants were present, the following resolution was passed: VOL. V.-N. S. F EXCH. 1859. BARKER v. ALLAN. "In consequence of the proceedings of the previous ordinary boards in dealing with the resignation of Mr. Barker and Mr. Buncombe, as also the solicitors of the Company, being considered under the deed as irregular: At this extraordinary board, duly called as per circular of the 16th instant; 1st. It was resolved that Mr. Barker's resignation be accepted, and that the terms of arrangement with him be referred to the solicitors of the Company." The defendants never carried out the terms offered to the plaintiff by the resolution of the 28th of August, nor did they ever tender to him a transfer of his shares, or inform him unto whose names they required the shares to be transferred. The plaintiff has not tendered to the defendants any guarantee for their execution, nor tendered his resignation, otherwise than as aforesaid; but in a prospectus prepared by the defendants subsequently to July, 1856, but not published, his name is omitted as a director. In April, 1857, an order was made by the Court of Chancery for winding up the Company, under the Joint Stock Companies Winding-up Acts, 1848 and 1849, and on the 17th of March, 1858, the plaintiff was compelled to pay the sum of 250%. in respect of calls on his shares made by the official manager. The Court to have power to draw inferences of fact. The question for the opinion of the Court is, whether the plaintiff is entitled to recover in this action, and if so, for what amount. The verdict to stand for such sum as the Court shall direct. Joseph Brown, who appeared for the plaintiff (a), having stated the case, the Court called on Dowdeswell, for the defendant Burgoyne.-There was (a) In Michaelmas Term, November 9 & 14. Before Pollock, C. B. Watson, B., and Channell, B. no binding contract between the parties. First, the terms of the proposed agreement were never settled, inasmuch as the stipulations of the guarantee remained to be discussed. Secondly, the acceptance by the plaintiff of the defendants' proposal, was not simply in the terms of the proposal, but a new term was added. The acceptance was not unconditional, for the plaintiff said, "I presume your chairman, Mr. Cridland, concurs." [Pollock, C. B.-Could not the defendants have said, we are not in a position to offer you Mr. Cridland's guarantee, therefore the negotiation is at an end? If so, the defendants were justified in saying that there was no contract.] In Smith on Contracts, by Malcolm, p. 80, it is said, "The parties to the contract must mutually assent to the same things." "The assent to the contract must be to the precise terms offered. Where one party proposes a certain bargain, and the other agrees, subject to some modification or condition, there is no mutuality of contract until there has been an assent to it as modified; otherwise it would not be obligatory on both parties, and would be therefore void." Routledge v. Grant (a) is referred to. The cases of Jordan v. Norton (b), Cheveley v. Fuller (c) and Hutchison v. Bowker (d) shew that if by the acceptance any new term is added, however minute the variation may be from the terms of the original offer, it will not make a good contract. [Pollock, C. B.-Conceding that the Board might have answered, "We have received your note purporting to be an acceptance of our offer, but we are not in a position to offer Mr. Cridland's guarantee,” they did not say so. They say, "we accept your resignation." Channell, B.-They seem to have agreed to the additional term engrafted by the plaintiff on the original 1859. BARKER v. ALLAN. 1859. BARKER v. ALLAN. EXCHEQUER REPORTS. proposal.] In Duke v. Andrews (a), the defendant having applied in writing for railway shares, the allotment was notified to him by a letter headed "not transferable." The Court held that the words must have some meaning, and that, therefore, there was no contract. That decision was approved of in the Court of Exchequer Chamber in Chaplin v. Clarke (b). The words "to be at once carried out" make the acceptance vary from the original proposal. The defendants' offer would have been satisfied, if carried out in a reasonable time. Duncan v. Topham (c) turned on the difference between a contract to be performed "directly," and one to be performed in a reasonable time. [Channell, B.-The question really is, whether the new term in the plaintiff's letter of the 2nd of September was afterwards assented to by the defendants? We are all agreed that there was no binding contract at that time.] Thirdly: the terms of the guarantee remained to be settled and put in writing. That shews that the contract was not complete. In Ridgway v. Wharton (d) it was held that the act of sending a paper containing the terms of an agreement to a solicitor, to have the matter reduced into form, affords generally cogent evidence that the parties do not intend to bind themselves till the matter is reduced into form. [Bramwell, B.—I was counsel in that case from the commencement, and I doubt if it can properly be cited as an authority for that position. It shews merely that all the circumstances must be considered in order to determine whether what has taken place is an agreement, or a mere proposal for an agreement.] In Boyd v. Hind (e) Pollock, C. B. said, "it may perhaps be taken as a general principle, that (a) 2 Exch. 290. (d) 6 H. L. 238. (e) 25 L. J., N. S. Exch. 246. |