Buttrose J:

This was an action for specific performance alternatively, damages for breach of contract.

The plaintiff's case briefly was that on the 22nd February 1963 the defendant appointed one Nagalingam as his agent to sell his property at 81 King's Road, Singapore, at any time between the 22nd February and 3rd March, 1963 and that by a letter dated 23rd February, 1963 Nagalingam as such agent offered to sell the property to the plaintiff with vacant possession at $1 per square foot. On or about the same date the plaintiff orally accepted the offer but the defendant refused to be bound by it and to perform the contract while the plaintiff was at all material times ready and willing to perform his obligations thereunder.

The defendant's case was this:- He admitted appointing Nagalingam as his agent to sell 81 King's Road but he had no knowledge of Nagalingam's letter of 23rd February; that in offering vacant possession he was acting outside the scope of his authority and if the offer was accepted by the plaintiff the defendant was not bound thereby.

Nagalingam was unable to be called as a witness as he died on the 27th March, 1963.

The first and substantial issue for determination is whether or not a binding contract for the sale of the property with vacant possession was entered into by the parties on the 23rd February, 1963. The answer to this question depends on the construction and effect of two options which the defendant gave Nagalingam to sell his King's Road property. The circumstances under which these two options came to be given require examination.

The plaintiff said that on the 15th February, 1963, Nagalingam came to his office and showed him an option signed by the defendant in these terms:

D. Kuppusamy, 22 Hillside Drive, Singapore,

8th February 1963.

Option

Mr. I. Modr. Nagalingam,

Singapore.

I hereby give you option to sell my Freehold land known as No. 81 King's Road, Singapore (Lot 33-8) at the rate of dollar One ($1.00) per square foot. Vacant possession would be given to the lawyer within 60 days from date of paying the initial deposit to my lawyers.

This option shall hold good for 10 days from the date of this chit, 8th instant.

Sd: D. Kuppusamy,

Owner of Property.

There was some haggling over the price. The plaintiff offered 90 cents per square foot and subsequently raised it to 95 cents per square foot.

On the 18th February, 1963, Nagalingam wrote a letter to the plaintiff stating that the defendant would not sell at less than $1 a square foot. On the 20th February, 1963, he wrote another letter to the plaintiff stating that this option had expired on the 18th February, 1963, but that if the plaintiff instructed him he would get a new option for $1. On the 21st February, 1963, Nagalingam spoke to the plaintiff on the telephone and asked him if he had received his letter of the 20th February and told him that he would renew the option if the plaintiff would buy at $1 per square foot and the plaintiff said he would.

On the 23rd February, 1963, the plaintiff received a letter from Nagalingam enclosing the old option and a new one. The letter was as follows:

Modr. Lingam & Sons General Commission, House & Insurance Agents & Real Estate Brokers. 306 Room 6 Cecil Street, Singapore.

23rd February 1963.

Dear Kim Yam,

Re: 81 King's Road - Lot SS-8

I enclose herewith option received today for you to exercise it. The area is according to the grant. Vacant possession will be given within 60 days from the date of exercising the option. The amount payable to City Council for making road is $5,200. I also enclose the previous option for your information.

The Deeds will be produced to your lawyers on exercising the option. I strongly advise you to exercise the option. The land in the locality is going up daily.

Thanking you.

Yours faithfully, Sd: I. L. Modr. Nagalingam. Kim Yan Esq., M/s. Kim Contractors, 406 Dunearn Road, Singapore.

P.S. - The owner has made an Agreement with City