King v David Allen and Sons Billposting Ltd

• Jurisdiction: Ireland
• Judgment Date: 25 June 1915
• Date: 25 June 1915
• Docket Number: (1914. No. 10,617.)
• Court: Court of Appeal (Ireland)

DAVID ALLEN & SONS, BILLPOSTING, LIMITED,

and

KING

(1914. No. 10,617.)

Appeal.

Licence — Revocation — Assignment of Subject-matter to which attached — Refusal by Assignee to continue Licence — Breach of Contract by Licensor — Licensee's Right of Action against Licensor — Demise or Licence — Easement in Gross — Qualification to Doctrine of Tulk v. Moxhay.

‘Jones v. Flint’ 10 A. & E. 753, 759.

Ackroyd v. SmithENR 10 C. B. 164.

Bailey v. StephensENR 12 C. B. (N. S.), at p. 113.

Baily v. de CrespignyELR L. R. 4 Q. B. 180, at p. 185.

Baynes & Co. v. Lloyd & Sons.ELR [1895] 1 Q. B. 820, at p. 822.

Boffey v. Henderson 17 Q. B. 574.

Coleman v. FosterENR 1 H. & N. 37.

Coleman v. FosterENR 1 H. & N. 38.

Daly v. EdwardesUNKUNKUNK 82 L. T. R. 372; 83 L. T. R. 548. In the House of Lords, 85 L. T. R. 652, sub nom. Edwardes v. Barrington.

Edwardes v. BarringtonUNK 85 L. T. 650.

Edwardes v. BarringtonUNK 85 L. T. R. 652.

Fitzgerald v. FirbankELR [1897] 2 Ch. 96.

Formby v. BarkerELR [1903] 2 Ch. 539.

Frost v. KnightELR L. R. 7 Ex. 111, at p. 112.

Heap v. HartleyELR 42 Ch. D. 461.

Hill v. TupperENR 2. H. & C. 121.

Hill v. TupperUNKUNK 32 L. J. Ex. 219; 8 L. T. 793.

Holford v. Bailey 13 Q. B. 426.

Hurst v. Picture Theatres, Ltd.ELR [1915] 1 K. B. 1.

In re Johannesburg Hotel CompanyELR [1891] 1 Ch. 119.

In re Nisbet and Pott's ContractELR [1906] 1 Ch. 386.

Judge v. LoweUNKIR I. R. 7 C. L. 291.

Kerrison v. SmithELR [1897] 2 Q. B. 445.

London and South Western Railway Co. v. GommELR 20 Ch. D., at p. 583.

London County Council v. AllenELR [1914] 3 K. B. 642.

Malone v. Harris 11 Ir. Ch. R. 33.

McManus v. CookeELR 35 Ch. D., at p. 688.

Millbourn v. LyonsELR [1914] 1 Ch. 34.

Millbourn v. LyonsELR [1914] 2 Ch. 231.

Mounsey v. IsmayENR 3 H. & C. 486.

North Sydney Investment and Tramway Company, Limited v. Higgings and OthersELR [1899] A. C. 263.

Nuttall v. BracewellELR L. R. 2 Ex. 1.

Rangeley v. Midland Railway CompanyELR L. R. 3 Ch. 306.

Shrinks v. St. John ELR L. R. 2 C. P. 376.

Shuttleworth v. Le FlemingENR 19 C. B. (N. S.) 687, at p. 695.

Smart v. JonesENR 15 C. B. (N. S.) 717.

Smith v. Lambeth Assessment CommitteeELR 10 Q. B. D. 327.

Thomas v. SorrellENR Vaughan, 351.

Tulk v. MoxhayENR 2 Ph. 774.

Warr v. London County CouncilELR [1904] 1 K. B. 713.

Waugh v. London County Council 88.L.T. R. 689.

Welcome v. UptonENR 5 M. & W. 398; 6M. & W. 536.

Wilson v. TavenerELR [1901] 1 Ch. 576.

Wilson v. TavenerELR [1901] 1 Ch. 578.

Wood v. Lake Ib., p. 848, note.

Wood v. LeadbitterENR 13 M. & W. 838.

Appeal. For these reasons I am of opinion that the order of Boyd J. 1915. should be discharged. In re HAZLE Fox. Solicitor for the appellant : Seddall. Solicitors for the respondent : J. L. Seallan 85 Co. It. ST. J. C. DAVID ALLEN & SONS, BILLPOSTING, LIMITED, v. KING (1). (1914. No. 10,617.) Licence— Revocation— Assignment of Subject-matter to which attached—Refusal by Assignee to continue Licence—Breach of Contract by Licensor —Licensee's Right of Action against Licensor—Demise or Licence—Easement in Gross—Qualification to Doctrine of Tulk v. Moxhay. By an agreement, not under seal, entered into on the 1st July, 1913, between the defendant, described therein as " the licensor," and the plaintiffs, described as " the licensees," the defendant gave to the plaintiffs permission to affix posters and advertisements to one of the walls of a picture house proposed to be erected on his property by a company about to be formed, for a term of four years, from the 1st November, 1913, or the first day the picture house should be opened for business, at a rent of £12 per annum. The agreeÂment provided that the licensor should not, while the agreement remained in force, permit any other person to affix advertisements to the said walls, and would, if required by the licensees, take proceedings against any person who might, during the continuance of the licence, affix any advertisements to the said walls. An agreement for a lease of the site, dated the 29th August, 1913, and made between the defendant and a trustee for the Picture House Company, provided that the defendant should assign to the trustee for the company his interest under the agreement of the 1st July, and that the trustee should, as soon as the company should be registered, obtain the ratification by the company of the said agreement. On the 2nd September, 1913, the Picture House Company was registered, with articles of association containing a provision for carrying the agreement of the 29th August into effect ; and at a meeting of the directors on the 13th September, 1913, the agreement of the 29th August was ratified and adopted. On the same day the lease from the defendant to the Picture House Company was executed. It contained no reference to the agreement of the (1) Before O'BEIEN L.C. and RONAN and M.OLONY L.JJ. VOL. II.] KING'S BENCH DIVISION. 449 1st July. The Picture House Company having refused the permission granted Appeal. by that agreement, the licensees brought an action for damages for breach of 1915, contract against the licensor. ALLEN Held, by the Court of Appeal, affirming the decision of the King's Bench & SONS v. Division (ante, p. 213), that the agreement was for a licence to continue for four KING. years, and did not operate as a demise of any interest in land, and that as the defendant, by the execution of the lease to the Picture House Company, had put it out of his power to fulfil his obligations under the agreement, there was a breach of contract by him for which an action lay. Held, also, that there was no obligation on the Picture House Company to give effect to the agreement. An easement must be connected with a dominant tenement. There cannot be an easement in gross. The doctrine of Tulk v. 3foxhay, 2 Ph. 774, that an assignee of land, taking with notice of a restrictive covenant, is bound in equity by such covenant, does not apply if the covenantee is not in possession of or interested in land for the benefit of which the covenant was entered into. APPEAL by the defendant from the decision of the King's Bench Division, reported ante, p. 213, where the facts are fully set out. For the purposes of the present report they sufficiently appear in the head-note. The agreement of the 1st July, 1913, was in the following terms :— MEMORANDUM OF AGREEMENT made the 1st day of July, 1913, between William King, of Belcamp House, Raheny, Co. Dublin (herein called the Licensor), of the one part, and David Allen and Sons, Billposting, Limited (herein called the Licensees), of the other part, whereby it is agreed as follows : 1. The Licensor hereby gives the Licensees permission to affix bills, posters, and advertisements to the flank wall at side of picture house proposed to be erected at Royal Canal Bank and. Madras Place, Dublin, for a term of four years, from the 1st day of November, 1913, or the first day said picture house shall be opened for business, whichever shall first happen, thereafter terminable by either party giving to the other six months' notice in writing from any of the gale days hereinafter mentioned. 2. The Licensees will pay for such permission a rent at the rate of twelve pounds per annum, payable, so long as this licence remains in force, half-yearly on every 1st day of May and 1st day 450 THE IRISH REPORTS. [1915. Appeal. of November, the first payment of said rent to be made on the 1915. let day of May, 1914. ALLEN 3. The Licensor agrees to give the refusal of any other sites & SONS v. he may be desirous of letting for advertising purposes at reasonable KING. and proportionate terms to the Licensees. 4. The Licensor agrees not to terminate this agreement with the object of handing over said site to any other firm for advertising purposes. 5. The Licensor shall not, while this remains in force, license or permit any other person or persons to affix any billposting or advertisement to the said flank walls or any part thereof, and will, if required by the Licensees, take proceedings against any person or persons who may, during the continuance of this licence, affix any billposting or advertisement to said flank walls, the Licensees indemnifying the Licensor against any costs or expenses connected therewith. Provided always that the said posting of wall shall not extend to any point along the Royal Canal Bank measured 16 feet from the front wall of the said picture house to be erected at Madras Place, and shall not be erected in height to a greater extent than the eaves of the said picture house about to be built. The Solicitor-General (James O'Connor K.C.), Herbert Wilson K. C., and Lardner, for the appellants. Henry KC., Brunskill K.C., and J. Whitaker, for the respondents. The nature of the arguments sufficiently appears from the judgments. O'BRIEN L.C. As has been frequently said during the argument of this case, the first thing to do is to construe the document of the 1st July, 1913, and form upon it a conclusion as to what the parties intended. Did they intend in respect of the premises which are mentioned in it to create anything more than a licence ? or did. they intend to create an interest in the lands ? Once that question is solved, I do not think that the case presents any real difficulty. VOL. II.] KING'S BENCH DIVISION. 451 Although there may be some slight difficulties of construction, I am Appeal. satisfied that this document amounts to nothing more than a licence, 1915. and that it never was intended by the parties to it to be anythanythingALLEN & SONS else, although it may contain some words which possibly at first V. .IN KG sight create ambiguity. The parties are described as licensor and licensee, and in every O'Brien L.C. clause this description is followed. All that is granted is a perÂmission to affix bills, posters, and advertisements on the flank wall of a picture-house, which at the date of the agreement...