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. 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.

S.

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. Ungley, 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. Cuton 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 vide 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;

except, perhaps, where the fraud consists in a refusal to accede to a promised variation on the faith of which the plaintiff entered into a written agreement. Pember v. Mathers, 1 Bro. C. C. 52, 54; Sugd. V. & P., 14th ed. 174.

On the ground that the statute is not to be made an instrument of fraud, the courts, following the old rules of equity, will enforce the contract where the absence of a written memorandum is caused by the fraud of the other party, or where the memorandum has been fraudulently drawn up so as not to express the real intention of the parties. See note to Pym v. Blackburn, 3 Ves. 38.

See further on this subject Sugden's V. & P., 14th ed., pp. 150, et seq., and Dart's V. & P., 4th ed., cap. xviii. s. 7.

An agent who has been employed to buy land, cannot retain the land himself and set up the absence of a written agreement between himself and his principal. Heard v. Pilley, L. R., 4 Ch. 548.

Performance of conditions precedent.] Where the defendant relies on the non-performance by the plaintiff of conditions precedent, he must plead the defence specially. Rules, 1883, O. xix., r. 15, ante, p. 283. The record, therefore, sufficiently indicates the proofs necessary at Nisi Prius. Certain conditions which were commonly found in most well-drawn conditions of sale, have by the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), ss. 1 & 2, been incorporated in all contracts of sale of land made after 31st Dec., 1874, unless the contrary is stipulated; such of these provisions as are likely to be useful at Nisi Prius, will be found below.

Proof of title.] If the title of the plaintiff is put in issue, he must prove it. In the absence of stipulation to the contrary, the vendor was formerly obliged to deduce a good title commencing not later than 60 years back, but the Vendor and Purchaser Act, 1874, s. (vide supra), has reduced this period to 40 years; in the cases, however, in which the period of 60 years was insufficient (as to which see Sugd. V. & P., 14th ed. 366, 367), earlier title than 40 years may now be required. Where abstracts of title are delivered, the refusal to complete the purchase is generally preceded by some communication between the parties, in which a specific objection has been pointed out, and the title thereby admitted to be in other respects unexceptionable. See Laythoarp v. Bryant, 1 N. C. 421, per Tindal, C. J. It is sufficient if the abstract show a good equitable title in the vendor, with power to get in the legal estate under the Trustee Act, without showing where the outstanding legal estate may be. Camberwell &c. Building Society v. Holloway, 13 Ch. D. 754. The defendant may insist upon any defect, whether legal or equitable, in the title deduced. Maberley v. Robins, 5 Taunt. 625; Elliot v. Edwards, 3 B. & P. 181; Jeakes v. White, 6 Exch. 873; 21 L. J., Ex. 265; Stevens v. Austen, 3 E. & E. 685; 30 L. J., Q. B. 212. Where the contract expressly provides that a good title shall be deduced, evidence that the purchaser knew of the existence of covenants which rendered the title unmarketable is inadmissble. Cato v. Thompson, 9 Q. B. D. 616, C. A. It is, however, otherwise where there there is no such express stipulation. See In re Gloag & Miller's Contract, 23 Ch. D. 320, 327, per Fry, J. A contract for "possession" means possession with a good title. Tilley v. Thomas, L. R., 3 Ch. 61. The vendor cannot require the vendee to make the title good by accepting it, and thereby avoiding a prior voluntary conveyance. Clarke v. Willott, L. R., 7 Ex. 313.

By the Vendor and Purchaser Act, 1874, s. 2, r. 2: "Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, acts of parliament, or statutory declarations 20 years old at the date of the

Proof of Title.

293 contract shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions." By rule 3: "The inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of documents of title, shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents." The recital in a deed 20 years old that the then vendor was seised in fee simple, is evidence thereof under rule 2, and unless disproved, dispenses with production of any earlier title. Bolton v. L. School Board,7 Ch. D.766. See also In re Marsh and Earl Granville, 24 Ch. D.11. The plaintiff is held to strict proof of his derivative title. Crosby v. Percy, 1 Camp. 30. In the sale of leaseholds more than 60 years old, in the absence of a condition to the contrary, the lease itself must be produced. Frend v. Buckley, L. R., 5 Q. B. 213, Ex. Ch. A contract for the sale of leasehold property is not satisfied by an underlease, unless the contract gives the purchaser notice that the property is held under a derivative lease. Camberwell &c. Building Society v. Holloway, 13 Ch. D. 754.

Unless there were a stipulation to the contrary, there was formerly, in every contract for the sale of a lease, an implied undertaking to make out the lessor's title to demise, as well as the title of the vendor to the lease; Souter v. Drake, 5 B. & Ad. 992; Hall v. Betty, 4 M. & Gr. 410; and see Stranks v. St. John, L. R., 2 C. P. 376. But, by the Vendor and Purchaser Act, 1874, s. 2, r. 1: "Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold ;" and now by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), ss. 3 (1), 13 (1), on a contract to sell and assign, or to grant a lease for a term of years to be derived out of a leasehold interest, the intended assignee or lessee has not the right to call for the title to the leasehold reversion. These provisions do not affect the decision that where, on the sale of leasehold property, one of the conditions of sale was "that the vendor should not be obliged to produce the lessor's title," the vendee, having discovered aliunde certain defects in the lessor's title, might insist on those defects. Shepherd v. Keatley, 1 C. M. & R. 117. See also Sellick v. Trevor, and Phillips v. Caldeleugh, post, p. 294. But, where the contract contained a similar clause, and the defendant agreed to sell to the plaintiff' the lease "as he held the same," it was held that the plaintiff could not raise any objection to the lessor's title. Spratt v. Jeffery, 10 B. & C. 249. So, where the condition was that the "lessor's title will not be shown and shall not be enquired into." Hume v. Bentley, 5 D. G. & S. 520; 21 L. J., Ch. 760. See also Best v. Hamand, 12 Ch. D. 1, C. A. It has, however, been held that, notwithstanding such a condition, the purchaser may raise any objection to the title which the vendor himself discloses. Smith v. Robinson, 13 Ch. D. 148. And, where the contract provided that it should form no objection to the title that the indenture was an underlease, and no requisition or inquiry should be made respecting the title, the purchaser was held to be at liberty to show aliunde that the lessor was mortgagor only, and had no power to grant the lease. Waddell v. Wolfe, L. R., 9 Q. B. 515. See also Harnett v. Baker, L. R., 20 Eq. 50. There is no implied contract for title on the sale of an agreement for a lease; for this is only a sale of the vendor's interest such as it is. Kintrea v. Preston, 1 H. & N. 357; 25 L. J., Ex. 287. So, on a sale of a patent right, there is no implied warranty of valid letters patent. Hall v. Conder, 2 C. B., N. S. 22; 26 L. J., C. P. 138; Smith v. Neale, 2 C. B., N. S. 67; 26 L. J., C. P. 143.

In a sale of leaseholds, where the licence of the lessor is, by the terms of the lease, required for an assignment, the vendor must obtain the required

licence. Winter v. Dumergue, 14 W. R. 281, 282, M. T. 1866, C. P.; Id. 699, Ex. Ch. But, where land is taken by a railway company, under their parliamentary powers, the necessity for such licence is taken away by the operation of the act. Slipper v. Tottenham, &c., Ry. Co., L. R., 4 Eq. 112. See also Bailey v. De Crespigny, L. R., 4 Q. B. 180.

If the vendor stipulate that he shall not be bound to produce title prior to the last conveyance, if he produce an earlier title bad on the face of the abstract, the vendee may reject it. Sellick v. Trevor, 11 M. & W. 722. So, if the vendor agree to sell a "freehold" residence, under a similar condition, and the title deed produced show that the property is encumbered with a condition or covenant, the vendee may reject it, as he bargained for an unencumbered freehold. Phillips v. Caldeleugh, L. R., 4 Q. B. 159.

Where the property consisted of several parcels sold by auction in distinct lots to one vendee, Ld. Kenyon is said to have held that the vendor, having made out a title to a single lot only, the whole contract might be rescinded, considering the purchase of the several lots as having been made with a view to a joint concern. Chambers v. Griffiths, 1 Esp. 150. But, where several lots are knocked down to a bidder at an auction, and his name is marked against them in the catalogue, a separate contract arises on each lot. Roots v. Dormer, Ld., 4 B. & Aď. 77. See the cases collected and discussed in Casamajor v. Strode, 2 Myl. & K. 706, 724; and Chambers v. Griffiths, supra, cannot be maintained as an authority, except where it can be shown that there was an agreement that the purchaser was not to take any of the lots unless he should obtain them all. In Dykes v. Blake, 4 N. C. 463, post, p. 299, the vendee was allowed to repudiate two lots, bought separately, because they were made the subject of one entire contract by a written agreement signed at the auction.

An alleged delivery of an "abstract" is not satisfied by proof of a delivery of the deeds themselves. Horne v. Wingfield, 3 M. & Gr. 33. But, an alleged delivery of a "full and sufficient abstract of title" is satisfied by a delivery of a full abstract of all the vendor's title deeds, and of the facts deducing the title to himself or a trustee for him (known as a perfect abstract), though they may not constitute a good title; Blackburn v. Smith, 2 Exch. 783; and, if any condition refer to the delivery of the abstract, this, in any question as to time, means the delivery of a perfect abstract. S. C.; Hobson v. Bell, 2 Beav. 17; Gray v. Fowler, L. R., 8 Ex. 249, 279, Ex. Ch. It is the duty of the purchaser to apply for the abstract, as well as of the vendor to deliver it. Guest v. Homfray, 5 Ves. 818.

When an abstract is delivered by the vendor, he must be able to verify it by the title deeds in his possession. Cornish v. Rowley, 1 Selw. N. P., 13th ed. 219; Berry v. Young, 2 Esp. 640, n. ; and the vendee may rescind the contract where the vendor can neither convey nor enforce a conveyance from other proper parties. Forrer v. Nash, 35 Beav. 167; Brewer v. Broadwood, 22 Ch. D. 105. As to the time within which the vendor must make out his title, vide infra. As to the vendor's right to rescind, on objection being taken to the title, vide post, p. 300.

Where the contract "is subject to the approval of the title by the vendee's solicitor," it cannot be enforced if he bona fide disapprove of the title. Hudson v. Buck, 7 Ch. D. 683. See also Hussey v. Horne Payne, 8 Ch. D. 670, C. A. ; 4 Ap. Ca. 311, D. P.

Where, without a stipulation in the contract to that effect, the purchaser takes possession before completion with knowledge that there are defects in the title which the vendor cannot remove, the purchaser waives his right to have those defects removed or to repudiate the contract. In re Gloag and Miller's Contract, 23 Ch. D. 320. Secus, where the defects are removable by the vendor. See S. C.