GRIFFYDAM HISTORY

Leicester Chronicle – January 29th 1859

PEGG’S GREEN COLLIERY

VICE CHANCELLORS COURT, MONDAY JANUARY 24TH

---------

PRICE v BOSTOCK

This case has occupied the court during several days.

The object of this Bill was to set aside an assignment of thirty shares, in the Pegg’s Green Colliery, which is situated on the borders of Leicestershire, and abutting on Derbyshire, and consisting of ninety shares, such assignment being made by the defendants, Cowlishaw and Everard, to the other defendants, Messrs. Walker and Worswick, and to restrain the defendant Bostock from selling fifteen shares to Messrs. Walker and Worswick, the Plaintiffs Kidger and Price and the other defendants being the owners of the remaining shares. The circumstances of the case, by reason of what had taken place in various ways, in correspondence and otherwise, were extremely intricate, but the chief question was, whether the transaction now impeached was within the terms of the 12th clause of the partnership articles. That clause prescribed in substance that any partner in the collieries who should be desirous of withdrawing there from should first make an offer of his shares to members of his family, and, supposing they refused to purchase, then to the other partners, at a valuation, such acceptances, offers, and refusals to be in writing; and in such case other partners did not agree to purchase, then to be sold to some respectable party, who, previous to their admission as partners, should execute proper instruments to bind themselves to the performance of the articles. Cowlishaw and Everard were members of one family, the plaintiffs, Price and Kidger, of another, and the two Bostocks (John Bostock being alleged to have sold fifteen shares to Kidger), of another. In June 1856, Cowlishaw and Everard acted under the 12th clause of the articles. These offers met with various results. Price wrote, Bostock answered verbally, and Kidger offered £800; and, so on the 14th of October, 1856, the contract to sell to Messrs. Walker and Worswick took place, and this bill was filed to set aside the sale on the ground that Messrs. Cowlishaw and Everard could not sell until they had a written refusal from the parties to whom they were first bound to offer.This, the defendants contested they were not bound to give; not having made the offer, the remainder of what had to be done rested with whom the shares were offered; it was a question of legal right.

A large mass of evidence was read on both sides and Mr. Bailey was heard in reply.

The Vice-Chancellor Kindersley, after stating the facts, said that this being a mining partnership each partner might have parted with his interest without the concurrence of the others, and the clause in question was introduced to restrain the exercise of that right. The intention appeared to have been to give a right of pre-emption to the members of the family; but whether that was carried out by the terms of the 12th clause might well be doubted (His honour and the clause). A great many questions not anticipated might arise on an instrument like this, though prepared, probably, with legal assistance. The interests of these families did not seem coincident, tightly or wrongly was immaterial; the result being that the Cowlishaws wished to retire, but did not make separate offers, as the plaintiffs contended they should have done, of their interests. The plaintiffs contended that the sale was invalid by reason of a separate offer not having been made, but his Honour thought that such contention could not prevail, but the objection lay as between the members of the family, and as between the partners generally; that each ought to have known that such offer was made. All the Cowlishaw family were simultaneously withdrawing, and when notice of that came to the other partners that must be taken as notice of such simultaneous act; and, indeed, Price and Kidger regarded it as having been done in concert, for in one instance accounts were asked for, as appeared in the correspondence, and there was no allegation of the necessity of a separate refusal in the bill, but at the bar it was raised for the first time. It was said that the offer ought to have been made o the members in the aggregate, although sent to each; there was, however, no ground for this contention, for each knew the right for accepting, &c., depended upon the others . The contention was referred to in the bill, but not in the prayer, so little was it though of. Now came the material part of the case- namely, that there should be no contract with strangers until there had been distinct refusal in writing from the members of the firm, and therefore anyone, by holding his tongue, could prevent the parting of shares with others. That was a most unlikely intention of the deed, and no one with candour or honesty would probably say that he understood it. If a rigid construction imposed it on members of the family, it did not impose it as regarded the firm generally, and certainly not as to strangers. There was no mention of the refusal referring to a member of the firm, and it appeared to his Honour there had been a valid offer to the members of the family; the next step to be taken was by the party to whom the offer was made, and if he was silent it was not the law that he could, after a reasonable time, object to a sale to a stranger. In reply to an offer there was no right to call for an account, but the delay in rejoining Mr. price must have the benefit of; but the right to an account was denied, and the partnership articles warranted no such requirement Mr. Price by his conduct justified the Cowlishaws in assuming that there could be no sale to a stranger until he had refused in writing, and was, in fact, refusing to give an answer in writing, and now filing a bill on that foundation. With regards to Mr. Kidger, he offered £800, and asked verbally what would be given him “to stand ward” but his subsequent silence stood on the same ground as Mr. Price’s, and neither made any communication for months after the contract, and were therefore not entitled to come for the assistance of the Court, and, as far as related to the Cowlishaws, the bill must be dismissed with costs. Bostock, having attempted to sell without making an offer, had abandoned that, but the bill must be dismissed against him without costs, but that abandonment did not rescind the whole. The question of the costs of certain affidavits was reserved.

It was only approximately 12 months later that Pegg’s Green Colliery closed.