Page images
PDF
EPUB

added by the reader at the end of the cases enumeSale notes, rated in the note in page 68. The subject of Auctions, treated of in pages 112, 113, 114, et seq. leads to the consideration of the effect of Sale Notes, and Memorandums made by third persons, as Brokers or Agents. Unhappily, a clear line of doctrine upon this very important topic is not furnished by the cases. The Auctioneer, in respect to sales of goods, has been considered as the agent for both parties: but a memorandum or entry made by the clerk, or manager, of one of the parties, seems to have been regarded as standing on a different ground; and his putting down on paper the names of the principals, is held not to be done with the same extent of authority. At least, this has been so held in a case where the Clerk or Broker of the Seller made the entry, and the buyer was the party charged. See Symonds v. Ball, 8 T. R. 151. Still, however, in Rucker v. Cammeyer, 1 Esp. N. P. 107, where the Broker of the Seller made the entry, the Buyer was held by Lord Kenyon to be bound; and his Lordship applied to that case the principle of Simon v. Motivos, saying, that the Broker was to be considered as the Agent of both parties. In point of fact, the Broker had made tw o sale notes, one for the Seller, and one for the Buyer, and the Buyer had sent for and accepted his, but the Chief Justice decided the case independently of that circumstance. But in a case of Champion and others v. Blummer, just determined in C. B. vid. Bos. et Pull. 1st vol. N. R. it was held that such an entry by the Seller's Clerk, where the name of the purchaser was not entered, could not bind even the Seller, the Buyer not being bound. Which case it is impossible to reconcile with Rucker v. Cammeyer^

unless the communication between the Seller's Broker and the Buyer be supposed to have had weight with the Judge in that case, or the circumstance of the purchaser's name's not being put down by the Broker in the case determined in the Common Pleas, be regarded as one of the grounds of the decision.— To this last case, the doctrine laid down in Seton v. Slade, 7 Vez. jun. 275, viz. that the signature of the party charged, will bind him without any signing by the other party, is opposed; for it is impossible to think there can be any such distinction between sales of goods and lands to this purpose, as is suggested by the Reporter's note to the case of Champion v. Plummer. Indeed, since the cases of Wain v. Warlters, and Egerton v. Matthews, if any distinction is to prevail, it should seem that there is greater reason for holding the actual signing by both parties to be necessary to satisfy the exigency of the 4th section; of which 'sales of land' form one of the objects.— See the remarks in page 117, note 58.

In a late case of Stansfield v. Habergham, 10 Vez. jun. 281, may be read some useful comments, by which the form of the conveyance mentioned in the note in page 340, as suggested by the late Mr. J. Wilson, in Habergham v. Vincent, for carrying into effect the testator's intention, with respect to the limitations in his will, is censured and corrected.

The first part of the Reports by Messrs. Schoales and Letroy, of Cases determined in the Court of Chancery in Ireland, during the time of Lord Redesdaee, (a most valuable present to the Profession, and which I understand will be shortly published in London) has just been put into my hand, upon the perusal whereof it appears that many of the points treated of in this volume, either directly in th6 text, or incidentally in the notes, have received elucidation from the great knowledge and judgment of the An agree- present Lord Chancellor of Ireland. In the case of cerning"an Clinan Cooke, 1 Chan. Ca. in Ireland, 22, where A, land^must ^y public advertisement, offered land to be let for express the three lives or thirty-one years, and proposals having;

terms, or as- _ * 0

certain the been made by B, and accepted, an agreement was exreferenced ecuted between B and the agent of A, authorised evidence"^ to contract for him for making a lease of the lands, in admitted to which agreement the term for which the lease was to

prove the °

connexion of be made was not mentioned.—A was held not to be

twoinstru- . .

menu with- bound to perform this contract, there being no ev»ference.i **" dence in writing of the term to be demised. And as there was no reference in the agreement to the advertisement, parpl evidence was held not admissible to connect the one with the other so as to ascertain the term; such evidence being opposed by the provision of the Irish Statute of Frauds, 7 W. 3, c. 12, the clauses whereof are copied from the English Statute 29 Car. 2, c. 3.

But if there It was agreed by his Lordship, that if the agreeferencc, it ment had referred to the advertisement, parol evimittedTto"1 dence might have been admitted to show the identity show the i- 0f the advertisement. He adverted to the case of

dentityofthe

paper refer- Tawney v. Crowther, 3 Bro. 6. c. 318, wherein Lord Thurlow had considered a reference to the written agree ment as essentially necessary, whichmade them, in his view, one and the same thing, the parol evidence being no otherwise necessary, than to identify the thing produced. So far as that case was applicable to the case before him, his Lordship regarded it as an authority for requiring a clear reference to the existing instrument containing the terms; but the general grounds of the decision of Tawney v. Crowther, as also of Allan v. Bower, 3 Bro. C. c. 149, were questioned by his Lordship. See page 108, of this Volume.

In the same case of Clinan v. Cooke, above refer- Ofthedifferredto, (see the same Reports above-mentioned, page a^^under 138, et sen.) the reader will find some observations of which,tore

»' . spect to re

Lord Redesdale, very illustrative of the doctrine of Kef, the

/-> _ , . plaintiflfpres

Courtsof Lquity treated of in pages 81, 82 and 83, sing for perof this volume, in respect to the difference between thTMdefe'no% admitting parol evidence when offered by a plaintiff ^1^" j'nnf[ to support an application for compelling a specific Co.urt rf Kperformance, and when it comes on the part of a defendant, to show a variance between the agreement signed, and the one really intended to have been signed. The Statute, said his Lordship, does not say that a written agreement Shall bind, but that an unwritten agreement shall not bind. The equity to resist is left as it was before the Statute; it does not say that if a written agreement be signed, the same exception shall not hold to it that did before the Statute.

In page 153, et seq. of this Book, the Reader will whether find the question, whether payment of a part of the jJSSSiemljf purchase money is part-performance, considered up- ney is Part

... performance..

on the authorities; he will there observe, that the writer has concluded it to be settled that a payment of a substantial part of the purchase money is a partperformance, and as such takes the case out of the Statute of Frauds; he will perceive, however, that at the conclusion of that head a regret is expressed, that such case has not been considered as open to compensation and retribution, instead of being added to the number of exceptions to the Statute. In the above-mentioned important case of Clinan v. Cooke, Lord Redesdale has laid down a principle as appliesble to the doctrine of part-performance which has conducted him to the decided conclusion that payment of money is not part-performance. * Nothing,' his Lordship said, 'is to be considered as a part-performance which does not put the party into such a situation that it is a fraud upon him unless the agreement be performed; as for instance, where possession is taken the party becomes a trespasser if there be no agreement; in which case, for the purpose of defending himself against a charge which might otherwise be made against him, such evidence is admissisible; and if it be admissible for such purpose, there is no reason why it should not be admissible throughout. But payment of money is not part-performance, for it may be repaid, and then the parties will be just as they were before, especially if repaid with interest.' The reader will observe that this doctrine precisely corresponds with that which, in page 150 of this Work, is laid down, as furnished by the cases of Lacon v. Mertins, and Buckmaster v. Harrop, that to entitle a party to this equitable relief against the Statute on the ground of part-performance, he must appear to be in a predicament to receive a prejudice by the non-performance. In Buckmaster v. Harrop, 7 Vez. jun. 347, Sir William Grant observes, that if the vendor had let the vendee's lessee into possession, that would have been an act by which he might have received a prejudice; and there are a variety of cases to show that possession by the vendee, followed by an expenditure in improvements, places him in a situation to demand a specific performance of an unwritten agreement by reason of the prejudice he might receive by the non-execution thereof; but the line of reasoning

« PreviousContinue »