Re H.ex parte H., an Alleged Debtor

• Jurisdiction: Ireland
• Judgment Date: 07 August 1877
• Date: 07 August 1877
• Court: Chancery Division (Ireland)

Bankruptcy.

IN RE H., EX PARTE H., AN ALLEGED DEBTOR.

Valpy v. Oakeley 16 Q. B. 941.

Ex parte Broadhurst, in re Broadhurst 22 L. J. Bac. 21.

Phillimore v. BarryENR 1 Camp. 513.

Ex parte Sturt & Co., in re PearcyELR L. R. 13 Eq. 309.

Mertens v. AdcockENR 4 Esp. 251.

Hagedorn v. LaingENR 6 Taunt. 162.

Maclean v. DunnENR 4 Bing. 722.

Lamond v. Davall 9 Q. B. 1030.

Ex parte Sturt & Co.ELR L. R. 13 Eq. 311.

Ex parte Broadhurst, in re Broadhurst 22 L. J. Bac. 21.

Debtor's summons — Unliquidated demand —— Remedy against defaulting purchaser of good at auction — Statute of Frauds.

Vom. XL] EQUITY MIES. 449 TN RE H., Ex PARTE H., AN ALLEGED DEBTOR. Debtor's summons-Unliquidated demand---Bankruptcy Amendment Act, 1872, ss. 21 4 30-Remedy against defaulting purchaser of goods at auction-Statute of Frauds. Goods having been sold by auction without any express stipulation for re-sale, the vendee made default, and the vendor, treating the sale as annulled, re-sold the goods, and caused to be issued against the vendee a debtor's summons claiming the amount of loss incurred by the re-sale : upon motion to dismiss the debtor's summons :-Held, that a debtor's summons cannot be granted for any debt other than a liquidated sum, which the sum claimed was not, inasmuch as the loss sustained by the default of the vendee was one which, under the circumstances, should be ascertained by an action for damages for the loss on re-sale. Bankruptcy. 1877. July 31. August 7. MOTION to dismiss a debtor's summons. The facts are suffiÂÂÂ,ciently stated in the judgment. Mr. Carton, Q, C., with him Mr. Houston, in support of the ' motion. These are unliquidated damages, and cannot support a •debtor's summons. There is no express provision as to the nature of the debt ; but the 21st & 30th sections of the Bankruptcy Act, 1872, plainly show that what is contemplated is a liquidated sum, and not one sounding in damages. There is no contract here to satisfy the Statute of Frauds, the auctioneer's book not being signed, and no note signed by the alleged debtor ; there is no part payment, and no memorandum, unless the letter of the 16th of May, 1877, acknowledging the receipt of the letter of the same date, can be made one. M`Mullen &Co. should have rescinded the contract, re-sold the goods, and then brought an action for the difference of the price. The measure of damages would be, not the difference between the contract price and the value at the time of sale, but the difference between the contract price and the market price at the time of the refusal to accept the goods : Valpy Oakeley (1). Therefore this is not a liquidated demand, but one sounding in damages, and. cannot support an adjudication. In the 21st section (1) 16 Q. B. 941. 2 G 2 THE IRISH REPORTS. [I. R. there is for the first time introduced into bankruptcy statute law what had already been settled by decision, namely, that the debt must be a liquidated sum : Ex parte Broadhurst, in re BroadÂÂÂhurst (1). It would be absurd to hold that this debt is good to support a debtor's summons, but not to support an adjudication. Mr. Purcell, Q. C., contra.-An auctioneer may be the agent at the sale as well of the vendor as of the highest bidder or purchaser, though the latter be himself only an agent, so that the auctioneer's signature of the name of the vendee or of his agent will be binding wtihin the statute: Chitty on Contracts (9th ed.), 368. The signing of the vendee's name by the auctioneer is sufficient : Phillimore v. Barry (2). In the present case the alleged debtor's name is entered in the auctioneer's book. He employed the auctioneer as his agent, and authorised him...