Foster-Sutton, P. The dispute between the parties in this case commenced with suit No 158 1947 in which the appellant sued the respondent for the return of £1,000, claimed to have been an advance made by the appellant in part payment of £4,400, the purchase price of four launches which the respondent had agree to sell to the appellant.
The appellant considered that the launches offered to him by the respondent were unsuitable for the purpose or which they were required, and having failed, after demand, to obtain repayment of the advance of £1,000 which he had made, he sued the respondent for its return.
At the trial of the case a settlement was reached between the parties, and at their request its terms were embodied in the judgment of the Court. The relevant terms of settlement read as follows:-
“Defendant hereby agrees to sell all the four launches the subject matter of the said action at the highest possible value obtainable by the defendant who shall be the sole judge of the highest possible value obtainable:-
“(a) That after sale of the said launches if the value obtained by the defendant exceeds £4,400, such excess shall be retained by the defendant.
“(b) If the value obtained for the launches is below £4,400, then the loss shall be borne by the plaintiff, credit being given for the sum of £.1,000 already paid by the plaintiff to the defendant.”
The judgment in that case is dated 24th October, 1947. On the 6th April, 1948, the respondent informed the appellant by letter of the highest offer he had received for the launches and the appellant replied by a letter written by his solicitors, saying that the sale of the launches “should be delayed for a while as the price was too low”
The respondent alleged that on the 1st day of May, 1948, his solicitors wrote a letter to the appellant’s solicitors informing them that unless the appellant would produce a purchaser with a higher offer than that already received by the respondent, he would proceed with the sale of the launches. That no reply was received to that letter, that on the 28th May, 1948, the respondent’s solicitors again wrote a letter to the appellant’s solicitors advising them that the respondent intended to proceed with the sale, and that no reply was received to the letter.
None of the correspondence to which I have referred was tendered in evidence at the trial. There has been a change of solicitors since the letters were written and appellant’s Counsel was unable to say if the letters of 1st and 28th May, 1948, had been received.
The respondent also alleged that he then instructed an auctioneer to proceed with the sale of the launches and that after due notice and advertisement the launches were sold on or about the 7th October, 1948, to the highest offered for £750, and that the net proceeds of the sale, after deducting auctioneer's commission, cost of advertising and other expenses, amounted to £672 5s. 0d.
The next step in this dispute was taken by the appellant who then instituted the present proceedings by a Civil Summons under which he claimed:-
“(1) For an order to set aside the settlement between the plaintiff and the defendant in suit No. 158 of 1947; and
“ (2) for the recovery of £1,000. being the amount deposited by the plaintiff with defendant for the purchase of launches from the Marine Department.”
The summons went on to say that the “defendant has failed to supply the launches of the quality required by the plaintiff”, and particulars of the claim are set out in ten paragraphs appended to the writ. The case came to trial before Ames, j., and the parties contented themselves with tendering in evidence the settlement and judgment to which I have already referred, and the case files in suits Nos. 157 and 158 of 1947, the former of which has no relevance to the matter we have to determine on this appeal.
After hearing argument by Counsel the learned trial judge held that the writ of summons and particulars of claim disclosed no cause of action on the first part of the claim, that is to say the claim that the settlement be set aside, and consequently the second part of the claim was res judicata. He accordingly gave judgment for the respondent-defendant dismissing the appellant-plaintiff's claim, and it is against that decision that the present appeal was brought.
On behalf of the appellant it has been submitted that the only point argued before the learned trial judge was the question of res judicata raised by paragraph ten of the Statement of Defence, that appellant’s Counsel had no opportunity of dealing with the case on any other footing because the trial judge delivered judgment dismissing the appellant’s claim without hearing further argument, that had he been permitted fully to present his case the appellant would have endeavoured to prove that the settlement in suit No. 158 of 1947, was entered into under a common mistake, both parties being under the belief, on the day of the settlement, that the market value of the launches in question was approximately £3,000. Appellant’s Counsel argued that he should have been allowed to amend his pleadings if they did not cover mutual mistake, and that in any event “Order 32, rule. 19 applies and the learned trial judge should not have gone beyond striking the case out
Counsel for the respondent submitted that only about 15 per cent of the argument in the Court below was directed to the question of res judicata, that every aspect of the appellant’s claim was dealt with by appellant’s Counsel, and that respondent’s Counsel was obviously endeavouring to ascertain precisely what the appellant’s claim was. He also argued that there was ample opportunity for the appellant’s Counsel to make an application for leave to amend his pleadings.. but he had not chosen to do so, that if mutual mistake was being relied upon it was appellant’s duty clearly to plead it, and there was no such averment in his pleadings.
I am in no doubt as to the correctness of respondent’s Counsel’s contention regarding the ground covered by the arguments in the Court below. A careful perusal of the record discloses quite clearly that a great deal more ground was covered than the question of the respondent’s plea of res judicata.. Defendant- respondent’s Counsel commenced by making an application to the Court asking that the issues be settled, on the footing that the particulars of claim were vague, and plaintiff-appellant's Counsel proceeded to argue in an endeavour to satisfy the Court that the claim with its particulars disclosed a good cause of action. It is true that appellant’s Counsel submitted that the respondent’s plea of res judicata should be settled first, but he also dealt with the question, inter alia, of mutual mistake at the time the settlement was agreed to.
I am also of opinion that the appellant’s writ and the particulars appended thereto cannot be said to contain an averment which would have entitled him to raise the issue that the parties were acting under a mutual mistake. Paragraphs one six of the particulars merely contain a narrative of events, paragraph seven contains an assertion that the sum of £675 is “ridicu1ously low and is grossly below what was in the contemplation of the parties when arranging the settlement”; paragraph eight contains an allegation of fraud against the respondent, not at the time the settlement was entered into, but at the time of the sale of launches, and paragraphs nine and ten refer to matters none of which could be said to have affected the validity of the settlement at the time it was made. It clearly emerges from appellant’s Counsel’s arguments in the Court below that the appellant was not in possession of any facts which could have supported his allegation of fraud, although his Counsel argued that there was fraud “in that defendant by his subsequent actions shows that he was not acting bona fide at the time of the settlement”..
The appellant’s Counsel did not apply for leave to amend, although he had every opportunity of doing so, but even had he done so, I am of opinion that the learned trial Judge would have been fully justified in refusing the application.
It seems to me that any amendment of his claim to enable the appellant to raise a case of mutual mistake implying good faith on the part of the respondent could not without injustice to him be allowed having regard to the allegations of fraud which clearly could not be successfully pursued.
Regarding the submission that the Court should have acted under Order 32, rule 19 and struck the case out instead of giving judgment for the respondent. It seems to have been lost to sight that the rule in question provides for the striking out of any pleading on the ground that it discloses no cause of action, and goes on to provide” and the Court may either give leave to amend such pleading, or may proceed to give judgment for the plaintiff or defendant, as the case may be, or may make such other order, and upon such terms and conditions as may seem just”. The rule enables the Court to take precisely the action it did.
It follows, therefore, that, in my view, the appellant has no good cause for complaint, and I am satisfied that the decision of the learned trial Judge in dismissing the claim and giving judgment for the defendant, on the ground that the Civil Summons and particulars of claim disclose no cause of action on the first part of the claim, was a correct one. That being so I would dismiss this appeal with costs.
de Comarmond, Ag. C.J. I concur. Coussey, J.A. I concur.
The appeal is dismissed with costs fixed at £17 17s. 0d.
Appeal dismissed.