Kang Hwee Gee J:

The Parties

[1] The plaintiff is a limited company. The 1st defendant is the administrator of the estate of the late Saw Cheng Chor. The 2nd defendant is the executor of the estate of the late Saw Eng Cheong.

The Conduct Of This Case

[2] The hearing of this suit was commenced before His Lordship Justice Ong See Seng on 11 February 1993 wherein it was agreed between the parties that the issue of whether there was a concluded contract be first determined, leaving the other issues, if necessary, to be decided later.

[3] His Lordship then left on retirement, having completed hearing only the case for the plaintiff. When the trial resumed before me the parties agreed that it be continued by me from where it had been left with due reliance on the recorded notes of evidence.

The Facts

[4] The following facts are not in dispute.

[5] Saw Cheng Chor and Saw Eng Cheong were brothers and they were the registered co-proprietors of a piece of land held under State Lease No 680 Lot 5020, Mukim of Lumut, (hereinafter referred to as Lot 5020) comprising of an area of some 6 acres, the subject matter of plaintiff's claim. The said land adjoins the land the plaintiff is presently occupying. It has a sea frontage and a jetty.

[6] The plaintiff was desirous of acquiring it for the purpose of their business expansion.

[7] Sometime in the middle of 1978 Saw Eng Cheong had offered to sell the said land to the plaintiff company at the price of RM50,000 per acre. The offer was communicated through the plaintiff's managing director, Teh Liang Teik (PW3). The sale however, did not materialise although it had progressed to a stage where a sales and purchase agreement had been prepared.

[8] Sometime towards the end of 1978 Saw Cheng Chor called the plaintiff's managing director and offered to sell to the plaintiff the same piece of land for the price of RM350,000 together with three other lots in the same area comprising of a total of some 14 acres for the additional sum of RM120,000 (RM470,000 for all the 4 lots). The proposed sale also failed to materialise.

[9] On 12 January 1979 Teh Liang Teik received a telex (exh P7) from M/s. Ngan & Tan, solicitors acting for Saw Eng Cheong and Saw Eng Chor, offering to sell the said land (Lot 5020) to the plaintiff for the sum of RM350,000. It read as follows:

1. We confirm our clients Saw Eng Cheong and Saw Cheng Chor's offer to sell you State Lease No 680 Lot 5020 Mukim Lumut in area 6 acres. Upon the following conditions:

(1) Total price is RM350,000 payable within one month as follows:

(a) RM250,000 cash

(b) RM100,000 shares in Dindings Soya and Feedmill Sdn Bhd.

2. Permanent right of way of 66 feet width parallel to sea frontage to be granted to Ban Joo Seng Chan Sdn Bhd.

Confirm if you accept this offer on or before 15 January 1979.

[10] The plaintiff did not reply to the telex immediately. But on 15 January 1979, the plaintiff's managing director Teh Liang Teik accompanied by another director of the company Lee Soon Lee (PW1) and the plaintiff's solicitor, Tang Khai Kit (PW2) went to meet Saw Cheng Chor at his office at Ban Joo Seng Chan Sdn Bhd at Sitiawan.

[11] At this meeting they discussed the sale of the 3 other lots offered earlier to the plaintiff. Saw Cheng Chor agreed to sell the 3 lots (which were registered in the name of Ban Joo Seng Chan of which both the Saws were partners) together with lot 5020 to the plaintiff for the additional price of RM120,000 making a total of RM470,000 for all the 4 lots.

[12] It was then decided that the plaintiff's solicitor, Tang Khai Kit and Saw Eng Chee (DW1), who is Saw Cheng Chor's son should proceed to the office of M/s Ngan & Tan which was situated across the road to draw up a formal agreement incorporating the terms and conditions which they had agreed upon.

[13] At the office of Ngan & Tan a letter of offer (exh P8) was prepared by one Chen Hong Eng, the solicitor acting for Saw Cheng Chor for the sale of the 3 lots together with Lot 5020 at the agreed pr