Howes J:

In this case the plaintiff seeks:

(1) to have an agreement dated 9 May 1930, construed generally, so far as the same is necessary, and in particular to have cll. 2(c), 3, 4, 5 and 7 thereof construed, and for declarations as to the rights and liabilities of the plaintiff and defendants thereunder;

(2) a declaration that the defendants are not entitled to have deducted sums of money for English income tax from the amounts paid by them to the plaintiff under cl 5 of the said agreement and an order for the refund of such deductions with interest thereon at 8 per centum per annum from the date of each deduction until payment;

(3) a declaration that the defendants' action in obtaining permission to group Certificate KL 243 with the other certificates pleaded in para. 12 above, constituted a breach of the said agreement of 9 May 1930;

(4) an account of the net profits under cl 3 of the said agreement of 9 May 1930;

(5) a declaration from what date profits shall be ascertained;

(6) further or other relief;

(7) costs.

With regard to para. 21 of the plaint, in which the meaning of the words "on account" was questioned; it has now been agreed that these words in cl 5 of the agreement, mean on account of the 15 of the net profits to which the plaintiff was to be entitled under cl 2(c) of the agreement. This point therefore need not be considered further.

I think the best course will be to deal separately with the various points raised; and not necessarily in the order set out in the plaint.

In my view the most important is the interpretation of cl 4, as if the defendants are right in their contention, the case would be at an end.

Clause 4 reads "The certificate of the Auditors of the Company as to the amount of the sum payable to Mr. Corbett and ascertainable as aforesaid shall be final and binding on both parties."

The defendants contend that the auditors' certificate is a condition precedent to payment; and that in its absence, the plaintiff has no right to sue.

Certificates were given by the company's auditors in respect of the working of the mine up to 30 September 1932, 31 March 1933, and 31 March 1934, respectively and in each certificate it was stated that no profits were payable to Mr. Corbett.

With the first of these certificates, the company's secretary, on 3 January 1933, wrote to Mr. Corbett's attorney in London (Mr Brittain), enclosing "as a friendly act" a copy of the statement of accounts received from the auditors, setting out details.

In the same letter, the secretary asked whether Mr. Corbett would agree to this statement in future being made up to 31 March, so as to coincide with the company's financial year, adding:

If you have no objection to this course we would hand you a statement for a further six months to 31 March next, together with our auditors' certificate, and provide you with similar documents each subsequent year up to 31 March.

In reply Mr. Brittain wrote on 5 January 1933:

I assume you would agree that Mr. Corbett is entitled to see that the expenditure charged in the account is such as is properly chargeable in accordance with cl 3 of the agreement and, subject to any comment Mr. Corbett may seek to make, I agree to the suggestion.

On 7 February 1933, the secretary wrote:

Although my directors do not admit such right under the agreement dated 9 May 1930, they are desirous of acceding, in a friendly spirit, to such request on behalf of Mr. Corbett for further details of the Ayer Itam Accounts -

a somewhat curious concession, seeing that, in their letter of 3 January 1933, as an inducement to agreeing to the alteration of the date of the statement, they had offered "to provide you with similar documents each subsequent year."

In other words, the company and the plaintiff mutually varied cl 4 of the agreement, by the company undertaking to furnish, in addition to the auditors' certificate, a statement of account showing the basis of the certificate.

Mr Simpson for