High Court of Ireland Decisions

Browne v. Waltons Piano & Musical Instruments Galleries (Publications Department) Ltd. [2003] IEHC 126 (9 December 2003)

 


THE HIGH COURT

2001 No 10813p

BETWEEN

ORLA BROWNE

Plaintiff

and

WALTONS PIANO & MUSICAL INSTRUMENTS GALLERIES (PUBLICATIONS DEPARTMENT) LIMITED

Defendant

JUDGMENT of Mr Justice Kelly delivered on the 9^th day of December, 2003.

The Proceedings

The well known singer and composer Delia Murphy (the deceased) died in February, 1971. The plaintiff is her daughter and her legal personal representative. She brings these proceedings in that latter capacity.

The proceedings were commenced by the issue of a plenary summons on the 29^th June, 2001. The statement of claim was delivered on the 31^st October, 2001. It falls into three parts.

The first part alleges that pursuant to an agreement in writing of the 1^st February, 1939 made between the deceased and the defendant the deceased assigned to the defendant the copyright for all countries in each of thirteen musical compositions which are set out in the first schedule to the statement of claim. These include such well known songs as "The Spinning Wheel", "The Moonshiner" and "Coortin' in the Kitchen". It is contended that the full copyright for all countries in each of these works including the title, words and music thereof were assigned to the defendant. The consideration for that assignment was inter alia the payment of 50% of all royalties received for inter alia gramophone records and synchronisation rights.

The second part of the statement of claim concerns an agreement in writing made between the deceased and the defendant of the 17^th July, 1950. By this agreement it is alleged that the deceased assigned to the defendant the full copyright for all countries in each of nine musical compositions which are set out in the second schedule to the statement of claim. These include such well known songs as "The Connemara Cradle Song" and "If You Will Marry Me". Again the consideration for this assignment was the payment of royalties on the same terms as those the governing the 1939 agreement.

The third part of the statement of claim reads as follows

"The plaintiff is not aware whether agreements in similar terms to the agreements (of 1939 and 1950) were made between the deceased and the defendant in respect of the musical compositions set out in the third schedule hereto, but the defendants have collected royalties in respect thereof without accounting to the plaintiff therefor".

The third schedule to the statement of claim sets out the titles of sixty three musical works including well known songs such as "Let Him Go Let Him Tarry", "Thank You Ma'am says Dan" and "Down by the Glenside".

The statement of claim goes on to allege that pursuant to "the aforesaid agreements" any monies received by the defendant in respect of royalties concerning the works mentioned were held by the defendant as to 50% thereof in trust for the deceased.

Paragraph 9 of the statement of claim reads as follows

"The plaintiff understands that from time to time on an extremely rare basis if any, during the lifetime of the deceased monies were remitted by the defendant to the deceased pursuant to the said agreement. However, since the death of the deceased no monies had been remitted to the plaintiff as the legal representative of the deceased and such monies have either been retained by the defendant or have been received by the defendant and converted to its own use".

Paragraph 10 of the statement of claim reads

"Further, the plaintiff suspects that prior to the death of the composer, royalties were received by the defendant and the same are being retained by the defendant or have been converted by the defendant to its own use".

Two further alternative pleas are contained in the statement of claim. At paragraph 11 there is an allegation that the defendant fraudulently converted the said monies to its own use in the full knowledge that it had no right or title to them thereby committing what is described as a fraudulent breach of trust.

The further alternative plea which is set forth at paragraph 12 of the statement of claim asserts that the defendant has wrongfully held itself out as being entitled to receive royalties in respect of the sixty three musical compositions set out in the third schedule and has as a result received monies from exploiters of those compositions. It is contended that the defendant had no lawful claim to those monies and that they were had and received by the defendant to the use of the deceased and/or the plaintiff and as such were held in trust by the defendant for the plaintiff. Insofar as the defendant has not retained the monies it is alleged that it has been guilty of a fraudulent breach of trust and fraudulent conversion of the monies in question to its own use.

The reliefs sought in the statement of claim are an order requiring the defendants to remit to the plaintiff all monies held by it in trust for her as the legal representative of the deceased together with damages for conversion and/or breach of trust and/or breach of contract together with an order for the taking of all necessary accounts and inquiries.

The defence was delivered on the 8^th July, 2002. It pleads that the plaintiff's claim is statute barred and laches. It acknowledges executing the agreements of February, 1939 and July, 1950. It denies that the deceased or her estate have the alleged or any copyright in the scheduled works and in particular but not limited to "The Spinning Wheel". It denies any liability to collect royalties on behalf of the deceased in respect of all or any of the sixty three musical compositions set out in the third schedule to the statement of claim. It denies any entitlement on the part of the estate of the deceased to maintain any claims in respect of those musical compositions together with a denial of liability to account in respect of those sixty three songs. It furthermore denies that the agreements of 1939 and/or 1950 give rise to the alleged or any rights on the part of the plaintiff or the deceased in respect of the sixty three compositions set out in the third schedule.

The defendant says that to the extent that monies were not remitted to the plaintiff since the death of the deceased that arises from the failure on the part of the beneficiaries or executors of the estate of the deceased to extract a grant of representation and to seek an appropriate account.

The defence also points to the speculative character of the plaintiff's claim now made in excess of thirty years since the death of the deceased and denies the wrongful activities including fraudulent conversion or fraudulent breach of trust.

In the course of an affidavit which was sworn for the purposes of seeking an order for discovery the plaintiff altered her position concerning the works described in the third schedule. They were reduced from sixty three to forty two. This corrected schedule was apparently drawn from two sources. The first was a document intituled "List of works for Delia Murphy" produced by an entity called the Irish Music Rights Organisation in which the defendant is alleged to have been identified as having an interest in these songs. These account for thirty seven of the songs. The remaining five were recordings made under the Glenside record label which was one allegedly associated with the defendant.

The Present Application

The defendant seeks to have the plaintiff's claim dismissed because of what is described as unreasonable, prejudicial and inexcusable delay on the part of the plaintiff. Alternatively an order is sought striking out as disclosing no cause of action so much of the plaintiff's claim as relates to the allegation of conversion, fraudulent conversion or fraudulent breach of trust for the period prior to or subsequent to the death of the deceased.

The Evidence in this Application

Two affidavits were sworn in support of the application and one in reply.

The principal grounding affidavit is sworn by Mr Walsh, the solicitor for the defendant. A good deal of the matter contained in this affidavit is argument rather than fact but I summarise it for the sake of completeness.

He points out that the claim is brought on behalf of the estate of the deceased despite the fact that she died in February, 1971 and that the grant of representation to her estate was extracted in March, 1972. He says that the claim is brought not merely for the period subsequent to the appointment of the plaintiff as legal personal representative, but also in relation to the entirety of the term of the contracts stretching back to 1939 and 1950 respectively. He contends that no explanation has been provided by the plaintiff as to why it has taken thirty years to take any steps to make a claim against the defendant. He also points out that the claim of fraudulent conversion extends to a period prior to the death of the deceased and is not limited in any fashion.

He calls attention to the serious allegation of fraudulent conversion and the plaintiff's plea of an "understanding" that on an extremely rare basis monies were remitted to the deceased during her lifetime and the plaintiff's "suspicion" that prior to the death of the deceased monies were converted by the defendant to its own use. He said that it is on the basis of this "understanding" and "suspicion" that it is asserted that the defendant fraudulently converted the money to its own use "in the full knowledge that it had no right or title to same thereby committing a fraudulent breach of trust".

He exhibits a notice seeking particulars dated the 14^th March, 2002 which sought details of the alleged fraudulent conversion and also asked the plaintiff to identify the period, prior to the death of the deceased, during which it is alleged that monies were retained or converted by the defendant.

He exhibits the replies of the 26^th April, 2002 which contented themselves with reiterating what was stated in the statement of claim and stating that information would be furnished once discovery had been made. He points out that there is no indication as to the basis upon which this assertion of fraudulent conversion has been made and comments that if it were true, it would seem astonishing that it would have taken in excess of a quarter of a century for the plaintiff to make the first complaint.

Mr Walsh then points out the contrast between the position taken in the pleadings in the case and the first contact between the plaintiff's solicitors and the defendant prior to action. He exhibits a letter of the 24^th September, 1999 whereby the plaintiff's solicitors wrote to the defendant stating that they understood that there may have been some publishing agreements or arrangement with the defendant during the lifetime of the deceased which continued after her death and sought certain information concerning those arrangements. Five species of documents were sought. They were a copy of any publishing agreements between the deceased and the defendant, a statement of account in relation to any such material and royalties due, details of any exploitation that the defendant was aware of that had occurred in relation to the deceased's material, copies of any agreements that exist in relation to the exploitation by any third party of the deceased's material and any other details, documentation or information that the defendant had in respect of the deceased's material which could be of assistance to the plaintiff in her investigation into the exploitation of same on behalf of the estate.

This letter was the first contact which the defendant had with the estate of the deceased in over twenty five years.

Copies of the agreements were furnished to the plaintiff's solicitor along with a statement of account due for the period 1994 to 1999 and other information requested.

Mr Walsh states that it is his belief that it is quite inappropriate for the plaintiff to make an allegation of fraud which is not merely outside her own personal knowledge, (as she was not even aware of the agreements until information was furnished by the defendant), but that to make an allegation of fraudulent conversion of royalties during the deceased's life is unsupported by any proper factual averment in the pleadings. He goes on to point out that in the ordinary course the administration of an estate is deemed to be completed within a period of twenty years. Over twenty five years have elapsed since the extraction of the grant. He says that no information is forthcoming which would allow the court to form any view as to whether the action is in fact properly brought.

He then asserts that within the defendant the people who dealt with the deceased were two in number. One was Mr Martin Walton who is described as a person well known in the arts world who enjoyed a personal relationship with the people with whom he dealt. He died in 1980 at the age of eighty one years. His successor Patrick Walton in now seventy seven years of age and retired from the business approximately ten years ago. The business is currently run by his son Niall.

Patrick Walton, it is said, would find it extremely difficult to give evidence in this matter based on a recollection of events. This is due in large part to the fact that it was his father Martin (deceased) who dealt with the composers and songwriters and put in place the various copyright agreements. Neither Patrick Walton nor his son Niall have any personal knowledge of the matters which took place between the deceased and Martin Walton. The nature of the relationship was a personal one between Martin Walton and a number of composers and songwriters and there was a high level of informality likely to have existed in their dealings. If a claim had been made by the estate with reasonable dispatch Mr Martin Walton and to a lesser degree his son Patrick would have been in a position to resolve any queries and to assist the defendant in dealing with the issues which have arisen. Patrick Walton was in his prime when the deceased died and would have been in a much better position to assist in the defence of any litigation during the 1970s and 1980s when he had the responsibility for running the business. The allegations made by the plaintiff, it is said, refer back to a period during which the late Martin Walton was the person principally responsible for dealing with the affairs of composers and the present case puts the defendant in a position of very great disadvantage given the death of Martin and the advanced age and comparatively little input of Patrick Walton.

Issue is taken with the fact that the plaintiff's claim is alleged to be virtually unlimited as to time and articulates a claim of fraud against the defendant based on nothing more than a "suspicion". Indeed it is said the nature of the suspicion is not described but if there is any foundation in fact it might have been expected, it is said, that the claim would have been made some time after the plaintiff became personal representative of the estate of the deceased. It is said that the plaintiff has reversed the normal order of things in that she has not set out clearly how the claim of fraud arises but rather bases her claim not on any particular assertion of fact with a view to placing the onus on the defendant to disprove the allegation.

It is pointed out in Mr Walsh's affidavit that it was only after the defendant had shown a willingness to pay over monies to cover a six year period that the plaintiff showed any enthusiasm for bringing proceedings. It is also said that there is no basis whatsoever for the making of any complaint relevant to the period prior to the taking out of the grant of representation. Subsequent to the taking out of the grant it is said that it is quite possible that monies may have been collected but in the absence of a person identifying themselves as a personal representative such amounts quite possibly were not paid over. The amounts involved however were quite modest. The current rate of royalty is in or about £600 per year.

The second affidavit sworn in support of the motion is that of Niall Walton. He is the managing director of the Walton group of companies which includes the defendant. He points out that he is the third generation of the Walton family involved in the business of the Walton companies. Those companies have been involved in the music industry for a period in excess of eighty years.

He reiterates that the person who dealt with the deceased was his late grandfather Martin who enjoyed a personal relationship with a number of well known composers and songwriters including the deceased.

The first that Niall Walton knew of any claim against the defendant by the estate of the deceased was when he received the letter of the 24^th September, 1999. He set about assembling the information sought in that letter and on the 13^th October, 1999 wrote to the plaintiff's solicitors explaining to them that most of the information and detail regarding the matter went back a very long way and he was trying to see exactly what information was still available. In his response he pointed out that his grandfather was deceased and his father was seventy four years at the time and he sought their forbearance to enable him to assemble the information. He spoke with his father who had little or no recollection of the arrangements entered into between the deceased and Mr Martin Walton.

On the 1^st February, 2000 he instructed his solicitors to write to the plaintiff enclosing a cheque in the sum of £5,000 on account of royalties due to the estate of the deceased as a gesture of goodwill and advising that he had applied to the relevant authorities for details of any royalties that might be due.

He was surprised by the aggressive attitude adopted by the plaintiff's solicitors in instituting proceedings since it was clear that every effort was being made to try and assemble the requested information as soon as was practically possible.

He expresses the particular distress of the Walton family by the allegations of fraud which were subsequently included in the plaintiff's statement of claim. On behalf of the defendant he emphasised that neither he, his father or his late grandfather would ever be a party to knowingly defrauding an artist of any royalties due regardless of how modest the amounts involved. Any claim for royalties made within a reasonable period of time would have been fairly dealt with by him or his predecessors.

He then goes on to point out that this is the first occasion that any artist or composer or the estate of such a person has made an allegation of this nature against Waltons. He believes that it was unwarranted for the plaintiff to make an allegation of this nature particularly before she was in receipt of all of the facts. Although the grant of probate was extracted in 1972 no contact was made with the defendant until September, 1999. So, a period of in excess of twenty five years elapsed between representation being raised and any complaint being received.

Finally he points out that since the matter was brought to his attention and having reviewed what documents were available he is satisfied that the amount of royalties involved are quite modest. During the 1970s the rate of royalty was in the region of £500 per annum increasing up to approximately £750 per annum during the 1980s. In more recent times the rate would have increased due to better computerised recording systems. He has directed that the higher level of recent payments be paid to the deceased's estate. He also points out that the plaintiff initially claimed ownership of a number of compositions which were not attributed to the deceased but acknowledges that some effort has now been made by the plaintiff's legal representative to correct the position in relation to a number of these.

The replying affidavit to the motion is sworn by the plaintiff. She says that she disagrees with many of the comments made in the affidavits sworn in support of the motion. Her decision not to deal with these matters should not be understood as an admission or an acceptance of them.

She acknowledges that she is attempting to recover arrears of royalties going back as far as 1939 and she accepts that this is most unusual. In attempting to explain why proceedings to recover such royalties were not instituted earlier she says that she cannot speak for her late mother. She does not know what, if any, steps the deceased took in order to ensure that she received from the defendant all of the royalties to which she was entitled. She never discussed the matter with the deceased and the papers which she has seen are not of any assistance on the subject.

She avers that she had no knowledge of the deceased's involvement with the defendants until after 1998. She says that when going through the deceased's papers shortly after her death in 1971 she came across documents emanating from the Performing Rights Society and made contact with them. She did not find any documents which led her to believe that the defendant had been remitting royalties to the deceased or that they should be remitting such to the plaintiff as the Executrix of the deceased.

In October, 1998 she says she attended a performance of the Beauty Queen of Linnane by Martin McDonagh which was produced by the Druid Theatre Company in New York. She recognised a recording of one of her mother's compositions namely the Spinning Wheel which was played twice during the production. When she returned to Dublin she contacted IMRO and asked whether that organisation was responsible for ensuring that royalties were paid for the playing of the Spinning Wheel. The information that she received was that this was a matter for the publishers and following further discussion she was advised that Waltons were often the publishers of music of that vintage. She was told that she should contact a solicitor to look into the matter.

She did so thus giving rise to the correspondence to which I have referred.

Towards the end of the affidavit she says that the defendant did not contact her to arrange for the disbursement of the monies which they had collected nor did she become aware of any correspondence from the defendant addressed to her mother after she died. She says it would not have been unduly difficult for the defendant to trace the deceased when she was alive or to ascertain her Executrix. She doubted if any effort was made to do so. She says the defendant was happy to receive monies to which they knew they had no entitlement and to retain them notwithstanding the fact that they had no right to do so. She believes that it would be unconscionable to allow them to rely on the passage of time alone in order to resist having to pay the monies over to her.

Notwithstanding the factual averments concerning the death of Mr Martin Walton and the age of Mr Patrick Walton she says that she does not believe that these facts establish that the defendant is prejudiced in meeting the claim which she is making in the proceedings. She says that the defendant's records ought to show what agreements were made with the deceased in relation to the exploitation of her composition, what monies were received in that connection and what monies were remitted. She cannot see how the defendant is prejudiced in relation to this claim.

The Legal Position on Delay

The law which is applicable to this aspect of the application is set forth in the decision of the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 IR. That case was principally concerned with delays which had taken place in the conduct of proceedings which had been instituted within the normal limitation period. Insofar as it is suggested that a different test is applicable to cases where delay occurs between events complained of and the commencement of proceedings I propose not to decide that issue but to adopt the same approach which I did in Kelly v O'Leary [2001] 2 IR 526. In that case I applied the Primor test rather than the O'Domhnaill v Merrick [1981] IR 151 and Toal v Duignan (No 1) [1991] ILRM 135 test. The Primor test is the more demanding of the defendant and the more favourable to the plaintiff. Thus, if there is any difference in principle between these two approaches of the Supreme Court, I am, for the purposes of this application, applying the one which is more favourable to the plaintiff and demanding of the defendant.

In the Primor decision Hamilton C.J. summarised the principles of law relevant to the jurisdiction to dismiss such as I am asked to exercise here. He said

"(a) The courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the parties seeking a dismissal of proceedings for want of prosecution on the ground of delay and the prosecution thereof that the delay was inordinate and inexcusable;

(c) even when the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:

(i) the implied constitutional principles of basic fairness of procedures

(ii) whether the delay and consequent prejudice and the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action

(iii) any delay on the part of the defendant - because litigation is a two-party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of a particular case

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business".

I will not turn to examine each of the three claims in the statement of claim by reference to these principles.

The Agreement of the 1^st February, 1939

On any view the commencement of proceedings in June, 2001 seeking to enforce an agreement made in February, 1939 between the defendant and the deceased who died in 1971, constitutes inordinate delay.

It is significant that there is no suggestion that the deceased herself sought to enforce this agreement during her lifetime. Thirty years elapsed between her death and the commencement of these proceedings by the plaintiff. In my view the evidence placed before the court by the plaintiff in her replying affidavit to this motion does not amount to an excuse for the inordinate delay.

My finding that the delay in respect of this claim is inordinate and not excusable does not end the matter however. I must now exercise a judgment on whether in my discretion on the facts the balance of justice is in favour of or against the case proceeding. In this regard I take account in particular of the matters identified by Hamilton C.J. at paragraph (d) of the summary of legal principles which I have already quoted.

I note that in its defence the defendant acknowledges executing the agreement of the 1^st February, 1939. There is therefore no issue as to the existence of that contract. I also note from the affidavits which have been sworn that since the first letter written by the plaintiff's solicitor in September, 1999 records insofar as they continue to exist were assembled by the defendant with a view to calculating whatever royalties are due under this agreement. Indeed it is right that I should record that the defendant behaved in an entirely honourable way by making a payment of £5,000 on account of royalties and as a gesture of goodwill in February, 2000.

Given that the agreement of 1939 is admitted and that there are still records which would enable a calculation of the appropriate royalty to be made I am satisfied that the plaintiff is entitled to continue with her proceedings in respect of this agreement but only insofar as she seeks to have an account taken of royalties due. The defendant makes it clear that it is quite willing to pay any royalties which may be calculated as being due and indeed has already done so in part at least.

Any other claim which the plaintiff makes seeking damages for conversion or breach of trust or breach of contract should not proceed to trial in my view having regard to the prejudice to the defendant in attempting to deal with such claims by reference in particular to the death of Mr Martin Walton and the position concerning Mr Patrick Walton which is outlined in the affidavit.

I note that there is no claim for damages for fraud in the prayer to the statement of claim although there is an assertion of fraudulent conversion contained in the body of the statement of claim. I will have more to say about this claim later in this judgment. However insofar as the plaintiff may be attempting to seek redress in respect of fraud concerning the 1939 agreement I am quite satisfied that that claim should not be allowed stand. It would be grossly prejudicial to the defendant to have to deal with such a claim at this remove in time and in the absence of the two members of the Walton family already identified.

The Agreement of the 17^th July, 1950

All of the findings which I have made concerning the agreement of 1939 apply with equal force to this agreement.

The delay in litigating concerning it is in my view inordinate and has not been excused by the explanation given in the plaintiff's replying affidavit.

The agreement is admitted by the defendant and again it has indicated its willingness to pay whatever royalties are due on foot of it. In my view the only part of the plaintiff's claim which should be allowed to proceed to trial is that which seeks an account of the royalties due on foot of this agreement. All other claims fall to be dealt with in the same way as I have dealt with those arising under the 1939 agreement.

The Third Claim

The findings which I have made in respect or inordinate delay and the lack of any excuse for such delay apply with equal force to this third part of the statement of claim.

This part of the plaintiff's claim is quite extraordinary. The statement of claim makes it clear that she has no knowledge of any agreement having been entered into in respect of the musical works set forth in the third schedule of the statement of claim as subsequently amended. She says that she suspects that prior to the death of the deceased royalties were received by the defendant and not paid to the deceased in respect of these works. In effect the plaintiff appears to be asking the court to infer at this remove in time that an agreement similar to that which was executed concerning the other works equally apply to these works. The plaintiff clearly cannot give evidence of any such agreement and speculates as to its existence. How could the defendant possibly deal with these speculations given the death of the late Mr Martin Walton who would have dealt directly with the deceased?

In my view, bearing in mind the considerations dealt with at (d) of the quotation from the judgment of Hamilton C.J. in the Primor case there could be no question of allowing any part of this claim to proceed to trial. To permit this part of the claim to proceed to trial would be to permit of an exercise which as I said in Kelly v O'Leary "would be far removed from the form of forensic enquiry which is envisaged in the notion of a fair trial in accordance with the law of this state".

This claim will be struck out in its entirety.

The Plea of Fraud

The defendant was understandably distressed to find an allegation of fraud being made against it. It takes the view that this course was unwarranted on the part of the plaintiff particularly before she was in receipt of all of the facts.

It is well established in law that if a plea of fraud is to be made full particulars of it must be given. I am not satisfied that such was done in the present case either in the statement of claim or in the subsequent particulars which were delivered. Indeed I find it difficult to see how a plea of fraud could ever have been made in relation to the third part of the statement of claim where the plaintiff is not herself even aware of the existence of a contract governing the works in question and pleads her case on the basis of suspicion and speculation.

Insofar as it may be asserted that the fraud which is pleaded is that known as equitable fraud it should be pointed out that that involves no degree of moral blame or turpitude. It may be said that this was the species of fraud which was being relied upon with a view to avoiding the Statute of Limitations 1957. Even that species of equitable fraud however in my view ought not to have been pleaded in the context of a claim which was being mooted on the basis of suspicion.

These considerations further underscore the necessity to strike out the plaintiff's claim particularly in respect of the third claim having regard to the possible damage to the defendant's reputation that the making of such an assertion entails.

Conclusion

In my view the entire of the plaintiff's claim should be struck out save for the taking of an account in respect of the two specified agreements.