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Cases on Statute of Frauds, s. 4.
What is a sufficient note within Stat. of Frauds, s. 4.] The note or memorandum must be a memorandum of an agreement complete when the memorandum is made. Munday v. Asprey, 13 Ch. D. 855. "It must specify the terms ; for otherwise all the danger of perjury, which the statute intended to guard against, would be let in. Sugd. V. & P. 14th ed. 134. Thus, where an auctioneer's receipt for the deposit was set up as an agreement, it was rejected because it did not state the price to be paid for the estate ; Blagden v. Bradbear, 12 Ves. 466 ; but, had the receipt referred to the conditions of sale, so as to have entitled the court to look at them for the terms, it might have been enforced as an agreement. S. C. The agreement cannot be enforced, unless both the contracting parties are named in it. Williams v. Jordan, 6 Ch. D. 517;
Williams v. Byrnes, 1 Moo. P. C., N. S. 154 ; Williams v. Lake, 2 E. & E. 349 ; 29 L. J., Q. B. 1. Subject, terms, and names of the parties must appear. S. C. It is sufficient if the names appear by certain description ; thus, where the property was described belonging to the late A. B.," and the sale was stated to be by direction of the executors ; Hood v. Barrington, Ld., L. R., 6 Eq. 218; or, was stated to be sold“ by direction of the proprietor;” Sale v. Lambert, L. R., 18 Eq. 1 ; Rossiter v. Miller, 3 Ap. Ca. 1124, D. P. ; or, by a trustee selling under a trust for sale ; Catling v. King, 5 Ch. D. 660 ; or, it appears that the sale is by a company in possession ; Coinmins v. Scott, L. R., 20 Eq. 11; the confirmation of the auctioneer or vendor's solicitor" as agent for the vendors,” was held to satisfy this rule. See also Beer v. London & Paris Hotel, Id. 412. But, the term "vendor" without further description is insufficient. Potter v. Duffield, Id. 4; Thomas v. Brown, 1 Q. B. D. 714.
A general description of the property sold is sufficient : as “Mr. O.'s house;" Ogilvie v. Foljambe, 3 Mer. 53 ; “the property in Cable Street." Bleakley v. Smith, 11 Sim. 150. So, a memorandum, "The property duly sold to A. S., and deposit paid at close of sale," coupled with a receipt, “Pinxton, Mar. 29, 1880. Received of A. S. the sum of 211. as deposit on property purchased at 4201., at the Sun Inn, Pinxton, on the above date. C. Owner," was held sufficient. Shardlow v. Cotterell, 20 Ch. D. 90, C. A.
It is not necessary that the names or terms should appear in any single paper. The contract may be collected from several connected papers. Kennedy v. Lee, 3 Meriv. 441 ; Warner v. Willington, 3 Drew. 523 ; 25 L. J., Ch. 662; Ridgway v. Wharton, 6 H. L. C. 238; 27 L. J., Ch. 46 ; Nene Valley Drainage Commrs. v. Dunkley, 4 Ch. D. 1; Baumann v. James, L. R., 3 Ch. 508. So, if a letter, properly signed, does not contain the whole, agreement, yet if it actually refers to a writing that does, it will be sufficient, though the latter writing is not signed ; and oral evidence is admissible to identify the writing referred to. Allen v. Bennet, 3 Taunt. 169; see Clinan v. Cooke, 1 Sch. & Lef. 33, and Smith v. Surman, 9 B. & C. 561. Where a contract in writing exists which binds one party to the contract under the statute, any subsequent note, signed by the other, is sufficient to bind him, provided it either contains the terms, or refers to any other writing that contains them ; Dobell v. Hutchinson, 3 Ad. & E. 355 ; Rossiter v. Miller, supra; even though the subsequent note is written to request a rescission of the contract. Coupland v. Arrowsmith, 18 L. T., N. S. 755, July, 1868-Giff., V.-C. The connection ought to appear on the papers, and not by extrinsic oral evidence only. Boydell v. Drummond, ii East, 152; 1 Smith's Lead. Ca., 8th ed. 336, 337. But, this connection need not be by express or specific description of one paper in the other. Dart's V. & P., 5th el., 226; Long v. Millar, 4 C. P. D. 450, C. A. ; IVarner v. Willington and other cases, cited supra. Where a contract is sought to be gathered from several letters, the whole of the correspondence must be considered, and although two early letters appear to constitute a complete contract, the
later ones may be referred to to show that such contract was not within the contemplation of the parties. Hussey v. Horne Payne, 4 Ap. Ca. 311, D. P.; May v. Thomson, 20 Ch. D. 705, C. A. A letter, I agree to let tó A. the stables in G. for the same rent, and subject to the same conditions that I hold them myself,” accepted by writing signed by A., is not sufficient, as it does not state the duration of the term. Bayley v. Fitzmaurice, 8 E. & B. 664 ; 27 L. J., Q. B. 143 ; 9 H. L. C. 78. So, when it does not appear from the memorandum when the term is to begin. Marshall v. Berridge, 19 Ch. D. 233, C. A. There is no inference that the term begins on its date. S. C. Where the letter signed by the defendant contained terms, to some of which the plaintiff did not agree, it was held there was no agreement in writing between the parties. Š. C. So, the acceptance of an offer, signed by the purchaser, must be unconditional in order to bind him ; thus, where the vendors, in answer to an offer of purchase, wrote referring thereto “which offer we accept and now hand you two copies of conditions of sale," and enclosing agreement with special conditions, it was held that the acceptance was conditional only. Crossley v. Maycock, L. R., 18 Eq. 180 ; Smith v. Webster, 3 Ch. D. 49. Where the terms are to be settled by a third person; Stanley v. Dowdeswell, L. R., 10 C. P. 102 ; or, a formal contract is to be prepared and signed by the parties ; Chinnock v. Ms. of Ely, 4 D. J. & S. 638 ; Winn v. Bull, 7 Ch. Ď. 29; there is no agreement till that has been done. But, unless it clearly appear that the signature of a formal contract is a condition precedent to there being a binding bargain, the acceptance by letter will bind. Bonnewell v. Jenkins, 8 Ch. D. 70, Č. A.; Rossiter v. Miller, 3 Ap. Ca. 1124, D. P., reversing S. C. 5 Ch. D. 648 ; Levis v. Brass, 3 Q. B. D. 667, C. A. Whether there ie such a condition precedent is a question of construction. S. CC. And the intention to execute a formal instrument may be waived by the conduct of the parties. Metropolitan Ry. Co. v. Brogden, 2 Ap. Ca. 666, D. P. It seems notwithstanding the decisions in Hudson v. Buck, 7 Ch. D. 683; and Hussey v. Horne Payne, 8 Ch. D. 670, C. A. ; that a term in the contract that the title is to be approved by the vendee's solicitor is not a condition, but merely implies that the title is to be investigated. S. C. 4 Ap. Ca. 312, 322, per Ld. Cairns, C. A letter written by the defendant to his own agent containing the terms of the agreement is sufficient to bind him. Smith v. Watson, Bunb. 55 ; Gibson v. Holland, L. R., 1 C. P. 1. The property, if stated generally in the writing, may be identified by extrinsic evidence. Bleakley v. Smith, 11 Sim. 150; McMurray v. Spicer, L. R., 5 Eq. 527 ; Horseyv. Graham, L. R., 5 C. P. 9.
If an offer is made to buy within a certain time, the offer may be retracted before acceptance.
Routledge v. Grant, 4 Bing. 653; Head v. Diggon, 3 M. & Ry. 97. But, the offer remains open until the other party has received notice of retractation thereof. Stevenson v. McLean, 5 Q. B. D. 346. It is insufficient to post a letter of retractation which is not in the ordinary course of post received till after a letter accepting the offer has been posted. Byrne v. Van Tienhoven, 5 C. P. D. 344. Notice of sale to another person amounts to such retractation. Dickinson v. Dodds, 2 Ch. D. 463, C. A. If the offer be accepted, the vendor is bound from the time of posting the offer. Potter v. Sanders, 6 Hare, 1. So, an offer to sell, made and accepted by letter, binds both parties from the time the acceptance was posted. Adams v. Lindsell, 1 B. & A. 681; Household Insurance dc. Co. v. Grant, 4 Ex. D. 216 C. A. If the offer is refused by letter, but the refusal is withdrawn and the offer accepted in a subsequent letter, the vendor is not bound by his offer, though he had not expressly withdrawn his original offer. Hyde v. Wrench, 3 Beav. 334. When the offer is made by an agent of the vendor, and the acceptance is notified by letter to such agent, the principal is bound, though the agent has neglected to notify to him. Wright v. Bigg, 15 Beav.
Statute of Frauds, s. 4.-Signature of Note.
289 592. See further as to contracts by interchange of letters, post, Action for not accepting goods.
An agreement, good under the Stat. of Frauds, can, it seems, be wholly rescinded, but cannot be varied by a subsequent oral agreement; nor, does such agreement to vary, operate by way of rescission of the original agreement, vide ante, p. 28.
Signature of note.] With regard to the signing, it has been held that a printed name is sufficient, Saunderson v. Jackson, 2. B. & P. 238 (decided on sect. 17), if recognised by, or brought home to, the party, as having been printed' by his authority ; Schneider v. Norris, 2 M. & S. 288; and it is immaterial in what part of the agreement the name is signed. S. C. ; Johnson v. Dodgson 2 M. & W. 653 ; Knight v. Crockford, 1 Esp. 190 ; Cox's note to 1 P. Wms. 771. Thus, " A. B. agrees with J. R. B. to take the property situate, &c., for 2481.,” in J. R. B.'s writing, is sufficient signature by him as vendor. Bleakley v. Smith, 11 Sim. 150. So, “Messrs. E. bought of A. B." in the writing of Messrs. E.'s agent, binds them. Durrell v. Evans, 1 H. & C. 174 ; 31 L. J., Ex. 337, Ex. Ch.; and see other cases, cited post, sub tit. Action for not accepting goods. But, the mere drawing of an instrument with the name of the defendant put as one of the contracting parties by his agent, is not sufficient, if the instrument is evidently incomplete; as where it ends with “witness our hands,” without any further signature following. Hubert v. Treherne, 3 M. & Gr. 743. And, the signature must be introduced so as to govern every material and operative part of the instrument. Caton v. Caton, L. R., 2 H. L. 127. A minute of a contract entered in accordance with the Companies Act, 1862, s. 67, and signed by the chairman, is sufficient to bind the company. Jones v. Victoria Graving Dock Co., 2 Q. B. D. 314, C. A. A signing as witness has been held sufficient, if the party signing is cognisant of the contents of the instrument. Welford v. Beazeley, 3 Atk. 503 ; Harding v. Crethorn, 1 Esp. 57; Coles v. Trecothick, 9 Ves. 234. But, this doctrine was doubted in Gosbell v. Archer, 2 Ad. & E. 500, unless the person signing as a witness be a principal, or is expressly acting as agent of the principal. Nor, is it clear that the signature of a solicitor approving of a draft agreement is sufficient to bind his client. Thornbury v. Bevill, i Y. & C., C. C. 554. See Smith v. Webster, 3 Ch. D. 49, C. A. But, the signature of a draft proposed contract by the principal, preceded by the word “approved,” may amount to a sufficient signature. Metropolitan Ry. Co. v. Brogden, 2 Ap. Ca. 666, D. P. A letter from the purchaser's solicitor enclosing and referring to a draft conveyance which recites the agreement is insufficient. Munday v. Asprey, 13 Ch. D. 855.
Where a person cannot write, a signature by mark, if properly identified, is sufficient, and no inquiry can be made as to whether the person can write or not. Baker v. Dening, 8 Ad. & E. 94. Hence a signature by initials is sufficient. In re Blewitt, 5 P. D. 116. Sugden V. & P., 14th ed. 144; 2 Smith's L. Cases, 8th ed. 267.
The statute requires the agreement to be signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. It is good as against him though only signed by the party to be charged, and not by the other party. Seton v. Slade, 7 Ves. 275 ; Laythoarp v. Bryant, 2 N. C. 735 ; and the cases collected Sugd. V. & P., 14th ed. 129, (b). See also Saunderson v. Jackson, 2 B. & P. 238 (on sect. 17); and the important observations on this point in a note to Sweet v. Lee, 3 M. & Gr. 462. And, it is good although the agreement purported to be inter partes, and the party suing on it had orally accepted but had never signed it ; Liverpool Banking Co. v. Eccles, 4 H, & N. 139; 28 L. J., Ex. 122; Smith v. Neale, 2 C. B.,
N. S. 67 ; 26 L. J., C. P. 143 ; so, a proposal in writing signed by the party to be charged and accepted orally is sufficient. Reuss v. Picksley, L. R., 1 Ex. 342, Ex. Ch. Recognition of a previous signature is sufficient; thus, where a proposal signed by A. is made to B. and altered by B., if A. assent to the alteration he will be bound, and oral evidence is admissible as to the state of the document when he gave his assent, and thereby converted the proposal into an agreement. Stewart v. Eddowes, L. R., 9 C. P. 311 (on sect. 17).
With regard to the person authorised by the party to sign, it is settled that such person need not be authorised in writing. Coles v. Trecothick, 9 Ves. 250 ; Emmerson v. Heelis, 2 Taunt. 38. A subsequent recognition of the authority of the agent by the principal is sufficient. Maclean v. Dunn, 4 Bing. 722. A telegram sent by the defendant may be sufficient; the instructions for sending the telegram are a mandatory to the company or government officer to sign for the sender. Godwin v. Francis, L. R., 5 C. P. 295. The plaintiff's written order to buy land was in this case accepted by a telegram ; it was assumed that the original instructions for the telegram furnished by the defendant to the company, and the copy actually delivered by the company's servant to the plaintiff, were in evidence. S. C. See also Coupland v. Arrowsmith, 18 L. T., N. S. 755, ante, p. 287. The sender of a message is not liable for a mistake made by the telegraph clerk. Henkel v. Pape, L. R., 6 Ex. 7.
A sale by auction is within the Stat. of Frauds; Blagden v. Bradbear, 12 Ves. 466 ; and the auctioneer is for this purpose the agent for both vendor and vendee, and his writing down the name of the highest bidder in the auctioneer's book or catalogue, is sufficient signature; Emmerson v. Heelis, supra ; White v. Proctor, 4 Taunt. 209; but, this is not a sufficient memorandum if the conditions of sale are not attached to the book. Kenworthy v. Schofield, 2 B. & C. 945. If the highest bidder be agent for another, the writing of the auctioneer of the agent's name as purchaser binds the principal ; Id. 948, per Holroyd, J.; White v. Proctor, supra; in the latter case the principal was present though his agent bid. But, the agency ceases and does not apply to a sale by him after the auction. Mews v. Carr, 1 H. & N. 484 ; 26 L. J., Ex. 39. The agent must be a third person, and not one of the parties ; Wright v. Dannah, 2 Camp. 203 ; therefore, if the action is brought against the purchaser by the auctioneer himself, the signing of the defendant's name by the auctioneer is insufficient to satisfy the statute. Farebrother v. Simmons, 5 B. & A. 333 ; Sharman v. Brandt, L. R., 6 Q. B. 720, Ex. Ch. (on sect. 17). But, the signature by the auctioneer's clerk is sufficient in such action, where the clerk, as each lot was knocked down, named the purchaser aloud, and, on a sign of assent from him, made a note accordingly in a book. Bird v. Boulter, 4 B. & Ad. 443. Apart from such mark of assent, however, the clerk has no authority to sign for the purchaser. Peirce v. Corf, L. R., 9 Q. B. 210, 215, per Blackburn, J. Where the auctioneer's clerk signed the contract, “Witness T. N.,” without more; this was held not to be a signing by an agent of the vendor, though the deposit was paid over to the vendor's attorney, who wrote a letter to vendee's attorney advising the purchase to be relinquished; for such facts did not amount to a ratification of the agency of T. N. or of the contract, even supposing the signature as witness to be sufficient. Gosbel v. Archer, 2 Ad. & E. 500.
A bidding at an auction may be retracted before the hammer is down. Payne v. Cave, 3 T. R. 148 ; see Routledge v. Grant, 4 Bing. 653, 660. And it is very doubtful if the usual condition against retracting biddings could, in the case of an ordinary sale by auction, be enforced. Sugden, V. & P., 14th ed. 14 ; Jones v. Nanney, 13 Price, 99.
Enforcement of Oral Contract.
291 When an oral contract within Stat. of Frauds can be enforced.] The courts of equity were in the habit of granting specific performance of contracts falling within the provisions of the Stat. of Frauds, s. 4, where there has been a part performance of the contract, although there is no written note or memorandum of the agreement as required by the section ; see Alderson v. Maddison, 8 Ap. Ca. 420, 475, 476, per Ld. Selborne, C.; and under Cairns' Act (21 & 22 Vict. c. 27), those courts were in such cases further empowered to award damages for the breach of the contract so partially performed. By the J. Act, 1873, s. 24, ante, pp. 280, 281, all the Divisions of the High Court, constituted by that act, can exercise all the powers previously exercised by the Court of Chancery only. It will be convenient here briefly to point out what amounts to part performance within this rule, and the general rule is that the parties must, by reason of the act relied on, be in a position unequivocally different from that in which, according to their legal rights, they would have been if there were no contract. Dale v. Hamilton, 5 Hare, 381, per Wigram, V.-C. Thus, the fact of the purchaser being in possession of the vendor's land without liability to an action of trespass, shows unequivocally the existence of a contract between the parties. S. C. Hence, acceptance of possession is sufficient part performance of the purchaser against his vendor; Morphett v. Jones, 1 Swans. 172; Surcome v. Pinniger, 3 D. M. & G. 571 ; Ungley v. Ungléy, 5 Ch. D. 887, C. A.; and, similarly, delivery of possession by the vendor is sufficient as against his purchaser ; Buckmaster v. Harrop, 13 Ves. 456. See also Coles v. Pilkington, L. R., 19 Eq. 174. So, if a tenant in possession, in pursuance of the terms of an oral agreement for a lease, pay the increased rent to be reserved by the lease ; Nunn v. Fabian, L. R., 1 Ch. 35 ; or lay out money which, in the event of there being no such agreement, he could not recover back from his landlord. Mundy v. Jolliffe, 5 Myl. & Cr. 167. See also Williams v. Evans, L. R., 19 Eq. 547. In these cases the court will endeavour to find out what was the oral contract between the parties, and then to give it effect. Mundy v. Jolliffe, supra. So, where the parties have for a long time acted on the assumption of there being a contract. Blackford v. Kirkpatrick, 6 Beav. 232. See further the judgments in D. P. in Alderson v. Maddison, infra.
As has been often observed, however, the court will enforce, but cannot make contracts. Where, therefore, the contract is incomplete; Thynne, Ly. V. Glengall, El., 2 H. L. C. 131, 158 ; or, its terms are uncertain ; Reynolds v. Waring, You. 346 : Price v. Griffith, 1 D. M. & G. 80 ; the court cannot decree specific performance. It must not only appear what the terms of the agreement are, but the acts of part performance must be referable to that agreement alone. Price v. Salusbury, 32 Beav. 446, 459 ; affirm. by L. JJ., see Id. 461, n. And, an act which, though done in performance of a contract, admits of explanation without supposing a contract, will not in general take the case out of the statute, e.g., payment of the alleged purchase money. Dale v. Hamilton, supra. See also Alderson v. Maddison, 7 Q. B. D. 174, C. A. ; 8 Ap. Ca. 467, D. P.; and Humphreys v. Green, 10 Q. B. D. 148, C. A. It may be observed that where marriage is the consideration for an oral contract, the entering into the marriage is not a part performance for the purpose of specific performance. Caton v. Caton, L. R., 1 Ch. 137.
The specific performance of a written agreement with a subsequent oral variation, stands on the same footing as that of an original independent agreement. See Price v. Dyer, 17 Ves. 356, and Van v. Corpe, 3 Myl. & K. 269, 277. But, a plaintiff seeking to enforce a written contract, could not generally in equity, any more than he could at law (as to which ride ante, p. 15, et seq.), on the ground of fraud, surprise, or mistake, vary its terms by oral evidence; Price v. Dyer, supra; Townshend, Ms. of, v. Stangroom, 6 Ves 328;