debtor is to be excused from paying the whole debt, provided If the contract be with several persons, it should be expressly stipulated that each shall be severally as well as jointly bound to perform the contract; for if there be no express stipulation to that effect, the contract will be considered as only joint; and in case of death of one, there will be no remedy at law against his personal representative; and though the estate of a deceased partner or principal is chargeable in equity, that remedy is not so perfect or speedy as at law; and if the contract were joint only, relief will not in all cases be afforded in equity against the estate of a deceased surety. This distinction is so important, that where the parties have intended that a security shall be joint and several, but by mistake has been only joint, a Court of Equity will compel a surety to sign a joint and several security, according to the original intention. (v) So if the debt or contract be of considerable importance, it may be advisable to obtain several warrants of attorney for security in a large penalty, so as certainly to exceed the principal debt and a great arrear of interest and expenses, (x) so as to enable the (q) 4 Car. & P. 295; and see 4 Bing. 280. (r) Sugd. V. & P. & ed. 359 to $70. (s) 1 Salk. 113; but see 3 Campb. 426, 1 Marsh. R. 514. (t) 4 Taunt. 334; 1 Marsh. 514; 8 B. & Cres. 575; Sugd. V. & P. 362. (v) Rawstone v. Parr, 3 Rass. Rep. 424. 299. CHAP. III. I. RIGHTS ΤΟ PERsonalty. CHAP. III. ΤΟ creditor to issue several executions at the same time into different counties against different descriptions of property, which might PERSONALTY. otherwise be taken by several creditors pending the loss of time when waiting the return of a partial levy upon one writ before any further execution could issue. 10. Precautions by sureties by bond. (c) So as our English law (which in that respect is defective, and not so just as the Scotch law,) rarely allows interest on unpaid debts, unless expressly stipulated for, care should be observed to provide for interest from stipulated periods, and even upon sums that the complainant might have to pay in the shape of damages. (y) A stipulation as to interest is particularly advisable in contracts, whether by auction or private, for the sale of property; (≈) and a vendor who desires to avoid being required to carry evidence of his title beyond a certain time or deed, must so expressly stipulate in the particulars and conditions of sale; and when he sells only part of his estate, and wishes to avoid covenanting to produce his title deeds when required, he must also stipulate accordingly, or otherwise he may be compelled so to covenant. (a) In cases of liens, the law, in the absence of express stipulation, does not in general allow the party holding it to sell the thing deposited, although it may be of a perishable nature; (b) in cases therefore of such a deposit, an express written power of sale should be provided. From persons who are traders, if there be the remotest chance of bankruptcy, it is advisable to obtain an unqualified bill of exchange or promissory note for a sum certain, as a collateral security for the performance of the contract, though no way relating to the payment of money; because in the event of bankruptcy, the holder may prove or claim for the amount upon such bill or note, when the unliquidated damages for the breach of the contract could not be so proved; and this precaution should always be observed by sureties before they enter into their engagement. Sureties for the fidelity of clerks, or any party in any situation, besides taking the best security they can obtain from the person for whose conduct they become responsible, should also stipulate in their bond or guarantee not only for a power to determine it, but also that the master or principal shall at certain times exact from the clerk due statements of account, and (y) 9 Bar. & Cres. 580; 6 Bing. 380; 1 B. & Adolp. 577. (2) 1 Sim. & Stu. 122; Harrington v. Hoggart, 1 Bar, & Adelp. 577. (a) Farn v. Ayers, 2 Sim. & Stu. 535. (b) Holt's C. N. P. 383. (c) See post, guarantees not under seal, where several or joint. I. RIGHTS ΤΟ shall himself carefully examine the same, and give notice of the CHAP. III. least default or irregularity on the part of the clerk, and that otherwise the surety shall not be liable. (d) A surety by bond, PERSONALTY. unless he have a counter-bond to indemnify him, and which it is advisable to obtain, upon paying the principal obligee, is merely a simple contract creditor of the debtor; though, if there were a mortgage, he might, upon paying, obtain an assignment thereof as his own security. (e) He would not be discharged from liability in equity by the creditors taking a warrant of attorney, payable by instalments, if no additional time be given, or he were privy to the arrangement. (f) As between several sureties by the same bond, if one pay more than his just share, he has in general a right to contribution from the co-sureties; (g) but not so where sureties are bound by separate instruments for equal portions of a debt due from the same principal, and the suretyship of each is a separate and distinct transaction. (h) tracts. If a contract be too uncertain in its terms to collect its certain 11. Necessary meaning, and the statute of frauds preclude the admissibility of certainty in conparol evidence to clear up the difficulty, (i) or the parol evidence will not supply the defect, then neither at law nor in equity can effect be given to it; (k) and though an agreement referring to a plan may be rendered perfect, if the identity of the plan intended to be referred to can be established; (h) yet if the latter be uncertain, even a court of equity will not decree specific performance. (k) how reformed in If there have been a mistake in drawing up a formal written 12. Mistakes in contract, it is advisable in general for the party prejudiced by contracts, and the error to apply to a Court of Equity to reform the instru- equity or aided ment, and which will, in proper cases, be enforced; (4) and this at law. has been effected, although the party applying to the court was in the profession of the law, and himself drew the contract, it appearing clear that it was framed so as to admit of a construction inconsistent with the true agreement of the parties; (m) and even a surety may be compelled to give a joint and several promissory note according to the agreement of the parties, where by mistake a mere joint note had been given. (n) And where trustees have by mistake of facts agreed to sell an estate at a sum greatly under the real value, a Court of Equity will CHAP. III. ΤΟ not assist the purchaser upon a bill for specific performance, but will leave him to get what damages he can by action at PERSONALTY. law. (0) But a Court of Equity will reform a deed only where the intention of the parties has been mistaken by the drawer, and will not correct an error in an instrument occasioned by the ignorance of the parties in a matter of law. (p) Sometimes also the consequence of a mistake in drawing up a written contract may be aided even at law; as where a material word appeared to have been omitted in a lease by mistake, and other words therein could not have their proper effect unless the omitted word were introduced, it was held that such lease must be construed as if that word were inserted, although the particular passage where it ought to stand conveyed a sufficiently distinct meaning without it. (9) But if there be no patent ambiguity on the face of the instrument, nor improper conduct amounting to such fraud as to invalidate the contract, and the terms of the instrument be clear, though contrary to the real intention of the parties, no parol evidence is at law or in equity admissible to controul or contradict the written terms in any suit upon it; (r) and therefore the only course is to file a bill at the earliest instant to have the written contract reformed. (s) 2. Particular contracts. So a conveyance which passes too much may be rectified, and the excess deducted; and it should seem that an issue may be directed with a view to correcting a mistake in a deed.(t) And where a deed affects by its recitals to carry an agreement into execution, and goes beyond such agreement, the Court will rectify it.(u) But a bill to rectify a conveyance alleged to have passed by mistake, and that more was included in a previous agreement, was dismissed, the conveyance reciting a more extended agreement, and the parties being dead, and the agent of the grantor having acknowledged the extended agreement, and the agent of the grantee, who could have given a personal account of the transaction, not having been examined by the plaintiff. (x) And in general great caution is observed by a Court of Equity in cutting down the effect of a formal conveyance. (y) It would be beyond the present undertaking to consider every contract in particular, and we have therefore only stated general rules. However, contracts of sale and of guarantee are of such general importance, that we will notice at least a few of the points respecting them. CHAP. III. I. RIGHTS ΤΟ PERSONALTY. 1. Precautions in contracts of With respect to contracts of sale of " any goods, wares or merchandize, for the price of ten pounds sterling," the statute against frauds, 29 Car. 2 chap. 3, (≈) requires that "if the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in sales. part of payment, or that some note or memorandum in writing of the bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized;" and that provision has been extended to all contracts for the sale of goods, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured, or provided, or fit or ready for delivery; or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but the memorandum need not be stamped. (a) When the contract is in writing, and there is a warranty, it is advisable to make it part of the written stipulation. Although this clause in the statute against frauds does not require an agreement formally drawn up, but only a note or memorandum of the bargain, yet the term bargain here is equivalent to the word agreement in the fourth section of the act, (b) and, therefore, the note or memorandum must at least state the price for which the goods were sold, and the court will not allow the defect to be supplied by receiving evidence of a quantum valebat. (c) The real purchaser may, in general, be sued, although his agent were debited. (d) A contract of sale of specific goods, complete at the time when paid for, immediately vests the property in the purchaser, and he may take the possession and is responsible for death or loss. (e) But when the contract might be satisfied by delivery of the stipulated quantity out of a larger bulk, and the purchased article has not been set apart, or when the vendor is to make an article for the purchaser and it is not finished, no property has vested in the purchaser, although he may have advanced the full price to the vendor, unless it has been expressly stipulated otherwise. (f) If the property has passed to the vendor then he may not only take it, but he might support detinue or trover for withholding it. (g) (s) See decisions on the act, Chit. Col. Stat. tit. Frauds, p. 377 to 383. (a) 9 Geo. 4, c. 14, s. 7, 8. (b) Egerton v. Matthews, 6 East, 307. (c) 5 Bar. & C. 583; 8 D. & R. 343; 9 B. & Cres. 561, 569, 570. (d) 9 B. & Cres. 78, 449. (e) Shep. Touch, 225; Long on Per sonal Property, 147, 148; 6 Bar. & Ald. (f) Id. ibid.; 1 Taunt. 318; 2 Campb. (g) Id.; Fitz. N. B. 138; Willes, 120; 1 Dyer, 24, n. (b.) |