Contract-Ambiguous term-Contradictory evidence as to meaning
Contract-Sale of undivided share in trees-Term 0/ contract that vendor civilly
liable [or execution of sale-Whether vendor bound to gel consent of co-
owners

Land Law-Partition-Trees attached (0 (he land

Plaintiff contracted to purchase defendants' shares in a plantation of
trees in Khartoum Province owned by defendants and their co-heirs in un-
divided shares. The contract of sale prov ided that plaintiff was to "stand

* Court: Fleming-Sandes J.

in the shoes" of defendant, in respect to the frees, and that defendants
would be "civilly responsible' for the execution of the sale in case anyone
should oppose it. One of the co-heirs disputed the sale; as a result the
Government permit to cut \\:.3S withdrawn. Plaintiff brought this action tu
compel defendants to see to the execution of the contract; in default to
pay damages for plaintiff's losses suffered in reliance on til'! sale.

Held: It would be unjust to construe the provision as a guarantee by
defendants to obtain permission of the co-heirs, and therefore defendants
have not breached the contract. Since the contract put plaintiff in de-
fendants' shoes as owner of undivided shares, his remedy is an action for
partition against the other co-heirs.

Action

April 26, 1941. Flerning-Sandes, J.: The plaintiff in this suit,
a purveyor of wood by profession, claims to have purchased from the
two defendants their undivided shares in a plantation of trees standing
on sagias 48 and 51, Gamoi'a South, on the west bank of the White
Nile.

The terms of the sale are contained in a written document dated
September 5, J 940, signed by the plaintiff and the first defendant,
acting. for himself and on behalf of the second defendant. This
document, after reciting the anticipated area of the shares and the
price agreed, proceeds as follows:

"Mohammed Ahmed Shcrfi is the one to stand in my shoes
with the heirs when he has seen all the trees and accepts them
in agreement with the heirs, my brothers, the sons of EI Sheikh
Mohammed Dafaalla, and Mohammed Ahmed Sherfi becomes
the person owning the right to dispose of the trees as stated
above. And he has the right to sell them for his personal
account to any person whomsoever he may wish, while there
exists for me the claim to the remainder of the sum that shall
be paid before completion of the felling of the whole Iorest and
its transportation from the place. And he has right, when the
river is down, to enter the forest with the heirs and to agree
with them as my own person to felling it. 1 am civilly responsible
for the execution of this sale in case anybody else will oppose
its execution. And Mohammed Ahmed Sherfi bas the right to
dispose of it as owners do in their property."

The plaintiff contends that the defendants have failed to carry
our their contract. It is in evidence that one of their co-heirs dispute.
the sale, and that as a result the permit to cut previously granted by

the Forestry Department had been withdrawn. In consequence,
matters, so far as the cutting of the wood is concerned, are at a
stand-still. The plaintiff relies for his argument on the penultimate
sentence of the eX.!_ract from the document quoted above Inwhich
the defendants say they are civilly responsible for the execution of
the sale in case anybody else will oppose its execution. He contends
that the defendants by this expression undertook to take such action
as was necessary to make the sale effective, including the obtaining
of the consent of their co-heirs to a partition of the plantation and to
the delivery to him of the quantity of wood representing their un-
divided shares. In default of so doing, he argues that the two defend-
ants are liable to compensate him for the loss he has suffered by
reason of his inability to fulfil certain commitments in respect of the
wood which he had assumed in reliance on their promises.

The defendants deny having committed any breach of the con-
tract and affirm the sale of their undivided shares to the plaintiff.
They contend moreover that they gave no undertaking to obtain the
consent of their other co-heirs to the sale and that the only liability
they assumed was that they would be responsible civilly for the
shortage, if any, by which their actual share in the wood fell short
of their share as provisionally assessed in the document.

It is in evidence that the meaning and scope of the expression
"civilly liable" was discussed by the parties immediately before the
agreement was signed. Their versions of the upshot of this conversa-
tion differ. In consequence, recourse must be had to the document
itself to determine by a fair construction of the words what was the
intention of the parties.

It is clear that both parties realized that they were dealing with
undivided shares. Not only are the shares specifically so described.
but the necessity of the purchasers agreeing with the other heirs in
respect of the felling is also clearly set out. The whole point at issue
is whether the defendants undertook to obtain the acquiescence of
those other heirs or not. Knowing the difficulties inseparable from
dealings with undivided shares it is strange that the parties did not
provide more clearly for the position which has now arisen.

It is not by any means an easy point and it is only after much
consideration that I have come to the conclusion that the plaintiff
has not sufficiently made out his case. It was obvious that the
difficulty, if any, which might arise would be over the question of