Oldalképek
PDF
ePub

Action on Sale of Real Property.

285

ACTION ON SALE OF REAL PROPERTY.

Vendor against Vendee.

In an action by the vendor of real property on the purchaser's default in completing the contract, the plaintiff may be called upon by the defence to prove the contract; the performance by himself of all conditions precedent; and the defendant's default.

Proof of the Contract-Stat. of Frauds.] By the Stat. of Frauds, 29 Car. 2, c. 3, s. 4, no action shall be brought, whereby to charge any person [upon any agreement made] upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such an action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. defence under this statute must now be pleaded specially. Rules, 1883, O. xix., r. 20, ante, p. 284. When it is so pleaded it will be necessary to prove a contract in writing.

A

The words in brackets occur in a preceding part of the clause, and seem to belong to this part also. See Sugd. V. & P., 14th ed., 123. A contract by deed seems not to be within the statute, and therefore requires no signature, vide ante, p. 129.

What is an interest in land within Stat. Frauds, s. 4.] A question often arises as to what is an "interest in or concerning" land, &c., within this section. Where crops sold are of grass or growing fruit, and the terms of the sale imply the grant of an interest in the land, and not of a mere easement or right of entry, then the contract is within sect. 4. Crosby v. Wadsworth, 6 East, 602; Jones v. Flint, 10 Ad. & E. 753; Rodwell v. Phillips, 9 M. & W. 501. But, if the crops be not natural, as grass, but industrial, as wheat, and are fit to cut when sold, the sale is not an interest in land within sect. 4, though it may be within sect. 17; and it is immaterial whether the cutting is to be by the buyer or seller. Evans v. Roberts, 5 B. & C. 829; Parker v. Staniland, 11 East, 362. Where timber is sold as such, to be cut by either the seller or the buyer, it has been held to be the sale of a chattel. Smith v. Surman, 9 B. & C. 561; Marshall v. Green, 1 Q. B. D. 35. See further Washbourn v. Burrows, 1 Exch. 115, and 1 Wms. Saund. 277 c, (ƒ).

Where the contract relates to an interest in land, any collateral contract, such as to provide additional furniture, cannot be enforced if the agreement be not in writing. Mechelen v. Wallace, 7 Ad. & E. 49; Vaughan v. Hancock, 3 C. B. 766. So, on an oral contract to give up a house and fixtures for a certain sum, payment of the sum agreed cannot be enforced, although the house has been given up pursuant to the agreement. Kelly v. Webster, 12 C. B. 283; 21 L. J., C. P. 163. But, where there was an agreement between landlord and tenant that the landlord, at the expiration of the tenancy, would take at a valuation the fixtures, which the tenant had power to remove during his term, this was held not within the statute. Hallen v. Runder, 1 C. M. & R. 266; Lee v. Gaskell, 1 Q. B. D. 700. An agreement to take furnished lodgings is within sect. 4. Inman v. Stamp, 1 Stark. 12; Edge v. Strafford, 1 C. & J. 391. In those cases the contract, if carried out, would have amounted to a demise, and the occupier could have maintained trespass or ejectment; but if the contract is merely for board and lodging as an innate of the house, although the inmate is to have a separate room,

such contract is not within sect. 4. Wright v. Stavert, 2 E. & E. 721; 29 L. J., Q. B. 161. Nor, it would seem, is a contract to take as lodger, and not as under-tenant, certain defined rooms within sect. 4. See Allan v. Liverpool, L. R., 9 Q. B. 191, 192, and other cases cited post, sub. tit. Actions for Illegal Distress. Nor is an agreement to build a house, though it implies a licence to go on the land. Id., per Crompton, J. See also Wells v. Kingstonupon-Hull, L. R., 10 C. P. 402. A grant of a right to shoot over land and take away part of the game killed is within sect. 4. Webber v. Lee, 9 Q. B. D. 315, C. A. So is a contract to retire from a milk-walk in favour of the defendant, and to give up the premises occupied by the plaintiffs and stock to him. Smart v. Harding, 15 C. B. 652; 24 L. J., C. P. 76. So, on an oral agreement to give up a brickyard and bricks on it to the plaintiff at a valuation, defendant undertaking to pay to the landlord the rent then due, though plaintiff has taken possession and paid for the bricks, he cannot sue defendant for not paying the landlord: the contract and consideration being entire. Hodgson v. Johnson, E. B. & E. 685; 28 L. J., Q. B. 88; Sanderson v. Graves, L. R., 10 Ex. 234. For although the plaintiff's part of the agreement be performed, it cannot be enforced against the defendant if not in writing. Cocking v. Ward, 1 C. B. 858. See, however, Pulbrook v. Lawes, 1 Q. B. D. 284. And an agreement as to land, if entirely performed on both sides, may be given in evidence, though not in writing, for a collateral purpose: thus, under an oral agreement that plaintiff should pay 371. for defendant's interest in premises, defendant to return 101. if plaintiff were refused a licence to use the premises as a slaughter-house, the plaintiff had possession of the premises and paid the defendant the 371.; it was held that the plaintiff could recover the 10%. on the licence being refused. Green v. Saddington, 7 E. & B. 503.

A contract relating to the expenses of investigating the title to land is not within this section. Jeakes v. White, 6 Exch. 873. Nor, is it clear that an agreement relating to an easement on land is within it; such contract, however, if it professes to grant an easement, must be by deed. See Sugd. V. & P., 14th ed., 123, and post, tit. Trespass to land-Defence of licence. A share in a mine actually in work was held to be within sect. 4. Boyce v. Green, Batty, 608, Ir. Q. B. But in Watson v. Spratley, 10 Exch. 222; 24 L. J., Ex. 53, an oral sale of shares in an unincorporated mine company in Cornwall, formed on the "cost-book" principle, was held good. Accord. Powell v. Jessop, 18 C. B. 336; 25 L. J., C. P. 199. These decisions are founded on the principle that a shareholder has an interest, not in the land, but in the adventure and profits thereof. If he be a co-tenant, in law or equity, of the land, the case would be different. The same principle applies to all joint-stock companies possessing land, in which, even although unincorporated, the shareholders have no direct interest in the land necessarily occupied for carrying on the business, but only a right to the profits of the business itself, as has been frequently decided under the Mortmain Act; Myers v. Perigal, 2 D. M. & G. 599; 22 L. J., Ch. 431; Edwards v. Hall, 6 D. M. & G. 74; 25 L. J., Ch. 82; Attree v. Hawe, 9 Ch. D. 337, C. A. ; and in appeal cases from the revising barristers; Bulmer v. Norris, 9 C. B., N. S. 19; 30 L. J., C. P. 25; Bennett v. Blain, 15 C. B., N. S. 578; 33 L. J., C. P. 63; Freeman v. Gainsford, 18 C. B., N. S. 185; 34 L. J., C. P. 95; Robinson v. Ainge, L. R., 4 C. P. 429. A contract by the defendant to get for the plaintiff a lease of land, in which the defendant has no interest, is within the section. Horsey v. Graham, L. R., 5 C. P. 9. A collateral agreement to do something not relating to land, in consideration that one of the parties shall sign a contract relating to land, is not within the section. Morgan v. Griffith, L. R., 6 Ex. 70; Erskine v. Adeane, L. R., 8 Ch. 756; Mann v. Nunn, 43 L. J., C. P. 241; Angell v. Duke, L. R., 10 Q. B. 174.

Cases on Statute of Frauds, s. 4.

287

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; Commins 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.

66 as

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. Ś. 755, July, 1868-Giff., V.-C. The connection ought to appear on the papers, and not by extrinsic oral evidence only. Boydell v. Drummond, 11 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 ed., 226; Long v. Millar, 4 C. P. D. 450, C. A.; Warner 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

66

[ocr errors]

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 to 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. S. 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. D. 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, C. A.; Rossiter v. Miller, 3 Ap. Ca. 1124, D. P., reversing S. C. 5 Ch. D. 648; Lewis v. Brass, 3 Q. B. D. 667, C. A. Whether there is 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; Horsey v. 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 &c. 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, 1 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.

See

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). 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. 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.,

And,

VOL. I.

U

« ElőzőTovább »