dnrnf II Cam i^rljionl Hibrary Cornell University Library KD 1603.F94 1903 A treatise on the specific oerformanceo 3 1924 022 490 159 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022490159 SPECIFIC PERFORMANCE OF CONTRACTS. FOURTH EDITION. A TREATISE SPECIFIC PERFORMANCE OF CONTRACTS. BY THE RIGHT HON. SIR EDWARD FRY , SOMETIME ONE OF THE LORDS JUSTICES OF APPEAL. — » FOURTH EDITION WILLIAM DONALDSON RAWLINS, OF Lincoln's inn, one of his majesty's counsel, and sometime fellow of TRINITY COLLEGE, CAMBBIDGB. " Not -what thou and I have promised to each other, but what the balance of our forces can make us perform to e9,ch other, that, in so sinful a world as ours, is the thing to be counted on." Cabltle, " French Eevolution," Vol. II., Book I., chap. 7. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, OHANCEET LANE, Sato |pM&Iis|OT. 1903 LONDON : PBINTBD BT 0. F. EOWOETH, QEEAT NEW STKEBT, PETTEE LANE, E.O. PREFACE TO THE FOUETH EDITION. Foe this Edition the Editor alone is responsible, and he is not unconscious of the responsibility. During the period — more than a decade — which has elapsed since the publication of the third Edition, the stream of decisions upon questions falling within the purview of this treatise has been copious and constant ; and the flow shows no sign of slackening. In particular, the topic of Wilful Default, under the common condition of sale relating to delayed completion, has been the subject of much judicial discussion ; there have been numerous decisions on questions of Doubtful Title ; and the potentialities and limits of the Court's jurisdiction on a vendor and purchaser summons have been amply illustrated by reported cases. Also, it has been thought advisable to take notice, in the chapter on Damages, of the rule in Flureau v. ThornMll and modern applications of that rule ; and the scope of the first chapter of Part IV. — now intituled " Of the Proceedings up to and including Judgment " — has been in some measure extended, in vi PREFACE TO THE FOURTH EDITION. the direction indicated by the altered title of the chapter. The combined effect of the foregoing causes has been to add not inconsiderably to the text and notes, the number of newly-cited cases being upwards of three hundred. Further, the legislation of the last ten years — notably the Voluntary Conveyances Act, 1893, and the Married Women's Property Act of the same year, and in some degree the Trustee Act, 1893, the Merchant Shipping Act, 1894, and the Land Transfer Act, 1897 — has necessitated modifications of the text. The Editor has, however, been solicitous to interfere as little as possible with the Author's language, and to preserve the general structure and arrangement of the work, with which practitioners have been for many years familiar. It ought, perhaps, to be mentioned that in this Edition the Index has been thoroughly overhauled, and to a large extent re-cast ; also that the Table of Contents has been shortened by omitting the detailed analysis of topics, which is in substance embodied in the Index. W. D. R. Lincoln's Inn, February, 1903. ( vii ) PEEFACE TO THE THIED EDITION. The Second Edition of this book was by myself and Mr. Wniiam Donaldson Eawlins, of Lincoln's Inn, Barrister- at-law, M.A., and late Fellow of Trinity OoUege, Cambridge. The extent and importance of his assistance may be learned from the Preface to the Second Edition. In the present Edition I have been assisted by my son. All the important decisions which have been pronounced on the subjects discussed since the Second Edition have, it is hoped, been referred to. In some matters relative to the former practice of the Court of Chancery I have thought it reasonable, having regard to the lapse of time since the Judicature Acts came into operation, to be more brief than in the Second Edition. Thus the old practice in regard to references of title and the question as to parol varia- tion being set up by the plaintiff are more briefly treated than before. In respect to the following matters, some considerable changes or additions have been introduced : the origin and early history of the jurisdiction in specific performance ; the case of Bolton Partners v. Lambert (treated of in an additional note) ; the contracts of married women, especially under the Act of 1882. \_A passage which foUoived here has been incorporated with the text of the fourth edition, and is accordingly omitted. — W. D. i?.] I was never more conscious than now of the defects of this book ; and I believe that I could now write a better treatise on the subject. But for such a labour I have neither time nor inclination. E. F. January, 1892. ( ix ) PREFACE TO THE SECOND EDITION. Moke than twenty years have passed away since I fixst wrote and published the following treatise : and in that space of time great changes have been effected in the law — and a great volume of decisions bearing on the subject of this essay has been pronounced. I must expect a severer criticism for this second edition than that with which the first edition was received : but I am sure that the kindness which I have always received from the members of my profession will not fail me now. There is one notion often expressed with regard to works written or revised by authors on the Bench which seems to me in part at least erroneous — the notion, I mean, that they possess a quasi-judicial authority. It is hardly enough remembered how different are the circumstances under which a book is written and a judgment pronounced, or how much the weight and value of the latter are due to the discussions at the bar which precede the judgment. I have revised or re-written or written the following parts of the present volume, viz. : — Pakt I. — The whole. „ II. — The whole, except part of Chapter II. „ III.— The whole, except Chapter XXV. v.— Chapter V. „ VI. — The whole, except Chapter IX. The Xlth Chapter of Part III. (that on the Statute of Frauds) was originally revised for me by another hand and may retain some traces of a difference of style : and in other parts I received some assistance from my former pupil and friend, the late Mr. H. W. May. By far the greater part of X PREFACE TO THE SECOND EDITION. this work of revision and re-writing was done by me before leaving the bar. These parts of the work have been subse- quently revised and brought down to date by the labours of Mr. Eawlias. The revision of the other parts of the volume, namely : — Part II.— Part of Chapter II. „ III.— Chapter XXV. „ IV.— The whole. „ V. — The whole, except Chapter V. „ VI.— Chapter IX. has been undertaken by Mr. Rawlins alone. He has consulted me on various points which have arisen, especially on the general arrangement of some of the chapters ; but the whole merit of this work is his. To him also is due the entirely new Index, which wiU, I hope and believe, be found a valuable part of the book. My thanks are due to Professor Holland, of Oxford, for kind assistance, the nature of which will be learned from the additional note at the end of the volume. E. F. Lincoln's Inn, May, 1881. ( xi ) PEEFAOE TO THE FIE8T EDITION. The following pages contain an attempt to inquii-e into the principles which govern Courts of Equity in the Specific Per- formance of Contracts. I offer this little book to the members of my profession, with somewhat of hope, because I know the indulgence with which they are wont to accept the results of honest labour spent on professional subjects : but with much more of diffidence, because I am not ignorant of the difiiculties of the subject on which I have written, or the shortcomings of my own performance. The scope and object of my essay will be sufficiently learned from the Table of Contents. It will at once be seen that they are essentially different from those of the admirable works of Lord St. Leonards and Mr. Dart on the Law of Vendors and Purchasers. Those treatises discuss the contract of sale of real estate and all the relations thence arising, so that the doctrine of specific performance is treated of only as one mode in which that contract is enforced : whilst the present work is designed to elucidate the principles of specific performance in general, and the contract of sale only so far as it requires attention as one of the contracts which the Court enforces. If the object of those learned treatises had not been thus distinct from that of the following pages, I should never have thought of committing them to the press. The coDJiection of the different branches of Law is, like the connection of the sciences, so close as often to embarrass the writer who attempts to treat of one subject by itself. I have found this difficulty continually recurring, as I have been engaged in composing this book, because it is by no means easy to decide how much of the Law on many questions ought to find place in a treatise on the principles and practice of the Comets in specific performance, and how much ought to be referred to a XU PEEFACE TO THE FIRST EDITION. discussion of the particular species of contract to which the point may relate. I have endeavoured on each occasion to solve this question with a view to the practical utility of the following pages, and to what I suppose a lawyer would reasonably expect to find in a treatise bearing the title of this volume. Several important decisions on the subject of specific per- formance have appeared during the progress of these pages through the press, which I have found it impracticable to embody in the text : some of these cases have been referred to in the notes, and others only in the Table of Addenda, to which the reader is referred. My friend Mr. J. P. Green, of the Middle Temple, has obligingly read the proof-sheets of this book : I gratefully acknowledge his kindness in so doing. E. F. 5, New Sqttaee, Lincoln's Inn, 24«A May, 1858. ( xiii ) TABLE OF CONTENTS. — ♦ — PAOK Preface to the Fotjeth Edition v Peeface to the Third Edition vii Preface to the Second Edition ix Preface to the First Edition xi Table of Oases xvii PART I.— Of the Jurisdiction. CHAP. PAQE I. Of the Origin and General Character of the Jurisdiction 1 II. Of the Extent of the Jurisdiction 19 III. Of Contracts with a Penal or other like Sum . . 58 PART II.— Parties to the Action. I. Of the General Rule 68 II. Of a Stranger to the Contract 79 III. Of the Death of a Party to the Contract 84 IV. Of an Assignment of the Contract or of the Property 90 V. Of the Liability of Companies for the Contracts OF their Promoters 101 VI. Of Agency 108 XIV TABLE OF CONTENTS, PART III— Of the Defences to the Action, CHAP. PAGE I. Of the Inoapacitt to Contbaot 115 II. Of the NoN-coNCLrsioN of the Contbact 118 in. Of the Incompleteness of the Conteact 142 IV. Of the Uncertainty of the Contract 164 V. Op the Want of Fairness in the Conteact 1 70 VI. Of the Hardship of the Contract 183 VII. Of Inadeqitact of the Consideeation 193 VIII. Of Want of Mttttjality in the Contract 203 IX. Op the iLLEaAlITT OP THE CoNTEACT 212 X. Of THE Contract being ultra vires 217 XI. Of the Statute of Frauds and therein or Part Performance 222 XII. Op the Formalities required in Contracts by Cor- porations 281 XIII. Op Misrepresentation 286 XIV. Of Fraud 306 XV. Of Mistake 329 XVI. Of the Incapacity of the Court to perform Paet OF the Contract 355 XVII. Of Defect in the Subject-matter of the Contract 375 XVIII. Of the Want of a Good Title 380 XIX. Op Failure of the Consideration 394 XX. Of Default on the part of the Plaintiff 404 XXI. Of Acts in Conteatention op the Contract 417 XXn. Of the Non-peepobmance of Conditions 424 XXIII. Of the Incapacity of the Defendant to pebfoem his pabt of the Contract 428 XXIV. Of the Eescission of the Contract 442 XXV. Of the Lapse of Time 463 PART IV,— Of the Mode of Exercising the Jurisdiction. I. Of the Peooeedinqs up to and including Judgment 485 n. Of Injunctions 494 m. Of the Wbit of Ne exeat 503 IV. Of Eblief aftee Judgment 504 TABLE OF CONTENTS. XV PART v.— Of Incidental Matters. CHAP. , PAGE I. Of Conditions of Sale and Paetioulaes 611 II. Of Compensation 622 III. Of Damages 564 IV. Of Eefeeence of Title 563 V. Of Inteeest, Eents, Deteeioeation, and Payment INTO COUET 689 VI. Of the Deposit 619 PART VI.— Of some Contracts in Particular. I. Of Conteagts foe the Sale of Shaees 626 II. Of Conteaots eelating to Contingent Inteeests AND Expectancies 641 III. Of Conteaots foe Paetneeship 645 IV. Of Conteaots foe the Sale of Ships 647 V. Of Conteaots by Maeeied Women 661 VI. Of Contracts foe Sepaeation Deeds 668 VII. Of Conteaots to Compeomise 662 VIII. Of Awaeds 666 IX. Of Contracts to eefee to Aebiteation 670 X. Of Conteaots not to apply to Paeliament 672 XI. Of Conteaots to Indemnify 674 ADDITIONAL NOTE A. The case of Bolton Partners v. Lambert 677 ADDITIONAL NOTE B. French Law of specific performance 680 ADDITIONAL NOTE C. Cases illustrative of the early jurisdiction of Chancery in specific performance 683 INDEX 687 ( xvii ) TABLE OF CASES. PAGE Aaron's Eeefs v. Twiss . . 297 Abbot V. Blair .... 424 Abbott V. Sworder . . .196 Aberaman Iron Works Co. v. Wickens . 69, 82, 83, 287, 298, 621 Acebal v. Levy . Acland V. Gajsford Acton V. Acton Adair v. New Eiver Co. Adam v. Newbigging . Adams 322, 324, 343, Blackwall 236 603 24 74 326, 458 V. London & Eailway Co. . . 55 — V. Brooke . . . 143 V. Lambert . . . 515 — V. Lindsell . . . 126 V. Weare .... 187 Adams and Kensington Vestry, Be 477 Adderley v. Dixon . . 24, 28 Affleck V. Affleck . . . .73 Agar V. Atbeneeum Life Assurance Society . . . .221 V. Macklew . . 153, 670 Ainslie v. Medlycot . . 132, 291 Akhurst v. Jackson . . .401 Albert Life Assurance Co., Be . 507 Aldborough, Earl of, v. Trye . 200 Alderson v. Maddison . .100, 273 Aldridge v. Aldridge . . . 652 Alexander I'. Duke of Wellington 641 V. Godwin . . . 463 V. Mills 384, 386, 389, 391 Alexander's Timber Co., ^e. .162 Allen t). Bennet . . . 231,241 V. Graves .... 632 V. Harding . . . .41 PAGE Allen V. Hilton . . . .477 r. Eiobardson . . . 549 Alley V. Deschamps . . . 476 Allgood V. Merrybent &o. Eailway Co 502, 509 Allison V. Monkwearmouth . . 39 AUoway v. Braine . . . 468 Alvanley v. Kinnaird . . . 333 Anchor case 348 Anderson v. Higgins . . . 565 Andrew v. Aitken . . . 288 V. Andrew . . . 584 Andrews v. Mockford . . . 292 V. Salt . . . .49 Anglo-Australian &c. Co. v. British Provident &c. Society Annesley v. Muggeridge Anon. V. Walford V. White . before Jekyll, M. E. Hard. 320 . 1 Mad. Ch. 411 n. 1 Mad. Ch. 525 n. 6 Mad. 10 . 1 Salk. 170 2 Ves. Sen. 629 . Anson, Lord, v. Hodges ■ V. Towgood . 675 . 113 70, 73 '. 402 . 172 . 61 . 40 . 645 . 69 . 438 40, 645 622, 624 . 396 57.3, 574 Appleby !'. Myers . . . 428 Arbib and Class's Contract, Be . 456 Archbold v. Howth . . .270 Archer v. Stone .... 305 Arglasse, Comes, v. Musohamp . 52 Anspach, Margravine of, v. Noel Arkwright i\ Newboll 287, 309 b xvin TABLE OF CASES. Armiger v. Clarke Armstrong v. Armstrong Arnison v. Smith . Arnold, Be . PAOE . 203 . 650 . 294 512, 520, 525 ArundeU, Lady, v. Phipps Ashburner v. Sewell Ashtury Eailway Carriage & Iron Works Co. V, Eiche . AsMon V. Oorrigan V. Wood . Astwortli V. Mounsey . Askew V. Millington . Astley V. Weldon . Asylum for Female Orphans v. Waterlow . Athy Guardians v. Murphy Atkinson v. Eitchie V. Smith 453 34 551 219 22 665 567 663 64 . 42 129, 237, 281 212, 399 . 358 . 61 . 609 Atkyns v. Kinneir Att.-Gen. v. Christohurch V. Day . 51, 249, 250, 251, 433, 538 V. Great Eastern Eail- way Co. . . 217 V. Manchester & Leeds Eailway Co. . 672 V. Mayor & Corporation of Poole . 74, 76 V. Parnther . , .116 V. SitwelL . . .352 V. Tewkesbury & Mal- . 407 Tern Eailway Co. Attwood V. Anon. V. Barham. V. Small Aubin V. Holt Auriol V. Smith Austin V. Martin V. Tawuey, Ayame v. Brown Avery v. Bowden V. Griffin Ayles V. Cox Aylesford's Case, Earl of Aylesford, Earl of, v. Morris Aylett V. Ashton AyUfle V. Tracey . 662 . 497 287, 291, 293, 294, 298, 323 40, 215 . 666 . 571 384, 472, 477 586, 587 . 445 205, 226 378, 532 . 265 . 201 . 546 . 131 204 B. PAGE Backhouse v. Mohun . . 209, 444 Badcock, Re. . . ■ 137, 139 Baden v. Countess of Pembroke . 84 Badman, Bx parte, Be Portuguese Copper Mines, Ld. Baglehole v. Walters Bagnell v. Edwards Bagot V. Easton . Bagot Pneumatic Tyre per &c. Tyre Co. Bailey v. CoUett . • V. Sweeting Bain v. FothergUl Bainbridge v. Kinnaird V. Smith Baird v. Wells Baker v. Metropohtan Co. . V. Paine . V. Williams Baldey v. Parker . Baldwin v. Society for Useful Knowledge Balfour v. Ernest Ball V. Coggs V. Storie Ballard v. Shutt V. Way Balmanno v. Lumley Banister, Be . 519, 566 Bank of New Zealand Bankes v. Small . Bannerman v. Clarke Barber v. Hodgson Barclay v. Messenger Barker v. Cox V. Hill . V. Hodgson ■ V. Venables Barkworthii. Young 247, 248 Barnard v. Caye . Barnes v. Wood . V. Toungs Barnett v. Wheeler Co. V 129, 677 "314, 378 . 30 . 457 Clip- . 80 . 612 235, 247 . 561 . 546 . 47 . 49 Eailway 55, 152, 464 . 345 . 506 . 357 Diffusing . 367 . 98 . 46 . 332 . 608, 617 . 377 . 526, 546 , 567, 570, 581 . Simpson 145 . 50 . 600 . 399 466, 467, 483, 484 209, 541, 543 . 84 . 212 . 85 100, 226, 231, 437, 438, 439 . 340 . 433, 540 . 671 . 161 TjtB-LE GP GA-SESv XIX PAGE Bam-well v. Harris . , . 389 Baroness Wenlock v. Eiver Dee Co 217 Barr v. Gibson .... 396 Barraud v. Archer . . . 529 Baxrell, Ex parte .... 623 Barret v. Blagrave . . 66, 477 Barrett v. Eing . . . .180 Barrett's Case . . . 292, 293 Barrington, Ex parte . . . 573 V. Horn . . . 432 Barry v. Oroskey .... 292 Barsht V. Tagg . . . 594, 604 Bartlett v. PurneU Barwiok v. English. Joint Bank Baskcomb v. Beckwith. V. Phillips . Basket v. Basket . Bass V. OHvely Bastin v. Bidwell . Bateman v. Countess of Boss V. Mayor, &c. of Ashton under- Lyne . ■ V. PhilHps , 238 Stock 288, 290 . 332 . 380 . 440 . 23 . 425 . 652 Bates V. Heard V. Kesterton Batthyany v. Bouch Baumann v. James Baxendale v. Seale Baxters. Burfield V. Conolly. V. Middleton . 218 . 109 . 685 380, 657 34, 650 166, 242 172, 333 139 493 157 302 96 466 161 85 Bayly v. Fitzmaurioe . V. Merrel V. Tyrrell Baynham v. Guy's Hospital Beakeney v. Hardie Beales v. Lord Eokeby Beardner v. London & North Western Eailway Co. . . 406 Beatson v. Nicholson . . 224, 427 Beattie v. Jjord Ebury . . 300, 347 Beauchamp, Lord, v. Great Wes- tern Eailway Co. . . .22 Beauchamp, Lord, v. Winn . 325, 344, 348 Beaufort, Duke of, v. Glynn . 500, 581 Beaufort's Will, Be . . .86 PAOE . 406 603, 617 22, 641 . 502 . 293 Beaumont v. Dukes Bebb V. Bunny , Beckley v. Newland Beddow v. Beddow Bedford v. Bagshaw & Cambridge Eailway Co. V. Stanley . 50, 104, 428 , Duke of, V. Trustees of the British Museum . . . 185 Bee V. Stafford & Uttoxeter Eail- way Co 56, 508 Beech v. Pord Beer v. London and Paris Co Beeston v. Langford V. Stuteley Beioley v. Carter Ben V. Balls V. Denver V. Holtby V. Howard Bellamy v. Debenham . Bellaney v. Knight Bellringer v. Blagrave . Beman v. Eufford Bennet v. Vade . College V. Carey Hotel 149, 27 283 . 684 432, 527 . 384 Bennett v. Brumfitt V. Fowler V. Eees . V. Stone . Benson v. Lamb . V. PauU . Bentheri". Denlon Bentley v. Craven Beresford, Ex parte Berkeley v. Dauh V. Hardy Bermingham v. Sheridan Bernard v. Meara Berry v. Young Bertram v. Hale Besant, Ee . V. Wood 160 493 Besley v. Besley Best V. Hamand Bettesworth v. Dean, Paul's Bewley v. Atkinson h2 . 239 . 505 . 384 175, 207, 443 204, 246, 462 . 167 . 180 97, 98 . 117 . 580 . 231 538, 564 . 579 600, 602 . 472 . 6 . 684 . 375 . 449 . 587 . 79 638, 639 38,42 . 463 . 48 . 661 652, 653 . 549 . 566 &c. of St. 25, 212, 435 . 21 420, 423, XX TABLE OF CASES. Beyfus and Mastera, Be Beynon v. Cook , Bickner v. Milner Bigg n. Strong Bilbie v. Lumley . Bill V. Bament Bingham v. Bingliam Binks V. Lord Eokeby 593; Birch V. Joy V. Podmore. Bird V. Boulter V. Lake Birmingliam. Canal Co ■wrigM Black V. Williams Blackburn v. Smith. V. Stace FAQE . 535 . 201 . 583 . 237 . 347 . 223 . 344 526, 529, 547, 606, 608, 609 . 611 . 598 . 239 61, 62 Cart- 22, 97 . 648 325, 326 . 618 V. Blackett v. Bates . 38, 42, 49, 423, 666, 669 Blackford v. Eockpatrick . 267, 575 Blacklow V. Laws Blagden v. Bradbear Blakeney v. Hardie Blaydes ?;. Calvert Bleakley v. Smith Blenkhorn v. Penrose . 571 158, 249, 250 . 157, 226 . 503 . 231 113, 307, 519, 567 Bloomer v. Spittle . . 345, 346 Blore V. Sutton . 162, 235, 260, 625 Blosse V. Lord Clanmorris . . 385 ■- V. Prendergast Blount V. Blount . Bluck V. Capstick. V. Mallalue . Blundell v. Brettargh Boardman v. Mostyn Boehm V. Wood . Bold V. Hutchinson Bolingbroke's, Lord, Case Bolton V. Ward . ■- Partners v. Lambert Bonner v. Johnston Bonnet v. Sadler . Bonnewell v. Jenkins Booth V. Pollard . Boothby v. Walker Borell V. Dana 153, 483, 612 615 41 667 497 503 . 132 . 538 . 22 2, 129, 245, 677 616, 617 . 94 125, 230, 245 . 42 . 618 196, 200 Borneman v. Tooke Bos V. Helsham. . Boswell V. Mendham Boulton V. Jones . Bourdillon i'. Collins Bower v. Cooper PAGB . 463 . 549 . 390 93, 97 . 148 159, 196 Bowler v. Barberton Development Syndicate 490 Bowman v. Hyland . . 453, 518 Bown V. Stenson .... 575 Bowring v. Shepherd . . 633, 634 Boyd V. Dickson .... 517 Boys V. Ayerst . . . 124, 130 Bozon V. Farlow . . . .39 Brace v. Wehnert . . .42 Bradford, Earl of, v. Earl of Eom- ney 345, 346 Bradley v. Munton . . . 564 Brady's Case . . . .265 Brafield v. Scriven . . .87 Bramley v. Alt .... 316 V. Teal . . . .617 Bray v. Briggs . . . 187, 332 V. Eogarty . . . .61 Braybroke, Lord, v. Liskip . 382, 580, 586 Brealey v. Collins . 28, 32, 296 Brenchley v. Higgins . . . 201 Brennan v. Bolton . . . 259 Brett t;. Clowser . 239, 290, 300, 301, 326, 547, 549 V. East India, &c. Shipping Co., Limited . . .48, 372 Brewer v. Broadwood . 204, 462, 581 V. Brown .... 343 and Hankins' Contract, Re 532 Brewster v. Clarke . . . 649 V. WoodaU . . . 684 Bridgend, &c. Co. v. Dunrayen 151, 430 Bridger v. Eice .... 179 Bridges v. Longman . . .585 V. Eobinson . . , 602 Bridgman v. Green . . 175, 318 Brien v. Swainson . . 229, 230 Briggs & Spicer, Re . 178, 208, 389 Brinkley v. Hann . . . 176 Bristol, &c. Bread Co. v. Maggs . 128, 245, 246 Bristow V. Wood .... 385 TABLE OF CASES, XXI FAQK Britain v. Eossiter . . 262, 269 British & American Telegraph Co. Limited v. Colson British Insulated Wire Co. v. Pres- oot Urban District Council British Mutual Co. v. Charnwood Forest Rail. Co. . . 289, Brogden v. Metropolitan Eailway Co Bromage v. Gennings . Bromley v. Jefleries Brook i'. Hook Brooke v. Anon. . V. Champernowne V. Garrod . V. Hewitt . 126 284 318 . 125 682, 685 151, 205 . 237 583, 584 595, 613 . 477 99, 415 , Lord, V. Eoundthwaite . 296, 534 and Fremlin's Contract, Re. 654 Brookes t'. Drysdale , . .515 V. Lord Whitworth . .76 533, 535 . 87 . 311 . 479 22, 28 . 632 . 606 . 86 Broom i/. Phillips . Broome v. Monck, V. Speak . Brophy V. ConnoUy Brough V. Oddy . Brown v. Black . V. Dibbs . ■ V. Eaindle V. Eoyal Insurance Co..429, 441 Browne v. La Trinidad . . . 234 V. London Necropolis Co. . 91 V. Marquis of Sligo . . 338 V. Warner . . 163, 430 Brownlie v. Campbell . 290, 291, 300, 301, 309, 310, 457, 517 Brumfit V. Morton Bryan v. Wooley . Bryant v. Busk . ,159, and Barningham, Re Buck V. Lodge V. WheUey . Backhouse v. Crosby Buckland v. Hall . ■ u. Papillon . 515 . 432 416, 621 . 380 . 617 . 432 . 208, 444 . 416, 497 93, 415, 477 Buckle V. Mitchell 18, 76, 208, 390 Buckmaster v, Harrop . 87, 238, 251, 259, 261, 265, 270, 356 Bucknell V. Bucknell . .171,658 Bull V. Hutchens Buller V. Buller Bullock V. Bullock Bunn V. Guy Burke v. Dawson V. Smyth Burne v. Madden Burnell v. Brown V. Firth Burnes v. Pennell Burroughs, Lynn, and Re V. Oakley Burrow v. Soammell Burrowes v. Lock Burton v. Todd . Butcher v. Stapeley Butler i'. MulrihOI V. Powis . Butterfield v. Heath Butterworth v. Walker Buxton V. Lister . 24, Bjrrd v. Nunn Byrne v. Acton . V. Eeid V. Van Tienhoven PAOB . 384 . 653 . 85 . 39 . 387 . 479 . 64 530, 572, 603 . 385 . 318 Sexton, 489, 582, 583 573, 617, 618 37, 540 196, 291 . 593 . 265 . 177 60, 209 . 390 . 338 33, 36, 40, 41, 142, 645 . 224, 249 . 179, 180 . 646 126, 128, 131 Cabaileeo v. Henty Cackett v. Keswick Caddick v. Skidmore Cadman v. Horner OahiU V. CahiU . Calcraft v. Eoebuck 296, 332, 537 . 311 . 158 . 304 51, 652, 653 524, 528, 572, 602 Caledonian and Dumbartonshire Junction Eailway Co. v. The Magistrates of Helensburgh .101, 105, 106 Callaghan v. Callaghan . 166, 194 Calverley v. Williams . . 342, 344 Camberwell and South London Building Society v, HoUoway . 519, 533, 586 xxii TABLE OF CASESi PAGE Campbell v. Pleming . . . 323 V. Leach , . . 205 V. London and Brighton Railway Company ■ . . 469 Candler v. Carden . . .39 Cann v. Cann .... 549 Cannel v. Buckle . . .24, 25 Oapps V. Norwich & Spalding Railway Co. .... 615 Cappur V. Harris . . . .31 Carden v. Butler . . . .61 Carew's Estate, Re . . .315 Carey v. Stafford . . . .434 Cargill V. Bower . . .50, 457 Carington, Lord v. Wycombe Rail- way Co 22 Carleton v. Leighton . Carlisle, Be . Came v. Mitchell Carolan v. Brabazon Carpenter, Be Oarr v. Livingston ■ ■ V. Lynch V. Roberts . Oarrigy v. Brock . Carrington v. Humphrey Carrodus v. Sharp Cartan v. Bury . 641 . 671 . 430 374, 434, 445 . 85 . 241 . 148, 150 . 674 . 226 . 684 593, 594, 604 422, 445, 479 Carter and Kenderdine's Contract, Be . . . 178, 208, 389 ?;. Boehm . . . .311 V. Carter (Forrest, 271) . 400 ■ V. Carter ([1896] 1 Ch. 62) 651 • V. Dean of Ely . . 444, 471 Cartwright v. Miller . . .162 Carus-Wilson and Greene, Be .153 Oasamajor v. Strode . . 356, 357 Casey v. Bentley .... 637' Cass V. Euddle .... 400 Casson v. Roberts . . . 623 Castellan v. Hobson . . . 634 Castle V. Wilkinson . 433, 541, 542 Catling V. Great Northern Rail- " way Co. . . 595, 612 V. King .... 149 Cato V. Thompson . . .162 Caton V. Caton . 119, 231, 233, 260, 267, 272 Gator V. Earl of Pembroke . . 547 Catt V. Tourle Cattell V. Corrall . Causton v. Macklew Cave V. Hastings . V. Mackenzie Cawley v. Poole . Cayley v. Walpole Central Railway Co. of Venezuela V. Kisoh . Ohadburn v. Moore Chadwick v. Maden V. Manning . Chalmers, Ex parte Chamberlain v. Lee Chambers v. Griffiths . Ohampernowne v. Brooke Champion v. Plummer . Chapman v. Callis V. Shepherd . FAOB . 368 386, 391 . 389 . 242 . 236 . 457 . 121 297, 309 . 235 70, 111 135, 307 . 460 581, 582 . 356 . 612 . 148 . 650 401, 640 340, 405 17, 169 32, 48 157, 671 255 79 . 207 . 49 175, 669 Chappell V. Gregory Chattock V. Muller Cheale v. Kenward Cheslyn v. Dalby . Chester v. Urwick Chesterfield, &o. Colliery Co. v. Hawkins . Chesterman v. Mann . Chetwynd v. Morgan . Chichester v. Mclntire . 151 Chifleriel v. Watson . . . 544 Child V. Lord Abingdon . . 613 V. Comber . . 209, 247, 270 Chilliner v. Chilliner . 60, 63, 65 Ohinnock v. Marchioness of Ely 1 18, 228 V. Sainsbury . . .48 Chipperfield v. Carter . . . 227 Chissum v. Dewes . . .39 Churchill v. Salisbury and Dorset Railway Co 83 City of London v. Mitford . . 468 V. Nash . 38, 41, 184, 214, 554 V. Pugh , . 61 Clapham v. Shilito . . . 296 Claringbould v. Curtis . 33, 34, 647 Clark V. Clark .... 653 V. Glasgow Assurance Co. . 43 V. Lord Rivers . . .108 V, Wallis . . . . 505- TABLE OF CASES, XXIU PAOE Clarke v. Birley . . . .80 V. Cuckfleld Union . . 281 V. Dickson 288, 293, 295, 320, 324, 325, 326, 327 . 614 . 457 330, 339, 352 . 299 340, 446, 479 . 367 . 547, 604 178, 208, 387 . 614 V. ElUott V. Faux , V. Graijt . V. Macintosh V. Moore . V. Price V. Eamuz . V. Willott . V. Wilson . Clarkson v. Edge . ' V. Hanway 61, 63 . 175 . 98 69, 70 . 468 . 203 . 431 . 29 548, 549 Clay V. Eufford V. Shafpe Claydon v. Green . Clayton v. Astdown V. Duke of Newcastle ■ ■ V. lUingwortli V. Leech. . V. Lord Nugent . .145 Cleaton v. Gower . . 190, 538, 554 Clegg V. Edmondson . . 468, 482 Clerk V. Wright . . . 242, 274 Clermont, Viscount, v. Tasburgh . 320, 327, 536 Clifford V. Kelly . . . .445 V. Turrell . . 31, 278, 352 CKnan v. Cooke . 145, 157, 236, 242, 269, 270, 331, 352 Clive V. Beaumont . 124, 576, 577 Clough V. London & North- West- ern Eailway Co. . . 321, 323 Clowes V. Higginson . .17, 338 Cobbett V. Brock . . . .318 Cochrane v. Willis . . 341, 395 Cockell V. Taylor . . . .194 Cockerell v. Cholmley . . . 347 OoflBn V. Cooper .... 580 Cogent V. Gibson ... 22, 27 Cohen's Executors and London County Council, Re . . .84 Colby V. Gadsden . . . 296, 302 Cole V. White . . . .274 Coleman and Jarrom, Re . . 488 ti. Upoot . . 130,209 Coles V. Bristowe . V. Pilkington V. Sims ■ V. Trecothick Collett V. Hover . Collier V. Brown . V. Jenkins V. Mason . V. McBean Colling, Re . ColUns V. Collins . Plumb . Plummer Stimson Stuteley Nettervill . V. Wilson . Chichester PAGE 72, 401, 631, 634, 639 . 266 . 61, 62 . 195, 232, 236, 239, 241, 401 . 76 . 196 88, 522, 544 . 174 . 383 . 85 . 153 . 38 . 204 620, 623 . 161 Colt V. Nettervill .... 32 Colton V. Wilson . . . .391 Oolumbiae v. Chichester . . 429 Colverson v. Blomfield . . . 503 Colyear v. Countess of Mulgrave . 79 Colyer v. Clay .... 545 Comes Arglasse v. Muschamp . 52 Commins v. Scott . . 148, 150 Compton V. Bagley . . 473, 475 Condon v. VoUuia . . . 661 Connor v. Fitzgerald . . . 271 V. Potts . . . 544, 545 Conolan v. Leyland . . .119 Consort Deep Level Gold Mines, Re, Ex -parte Starke . . . 125 Const V. Harris .... 448 Contract Corporation, Re . . 220 Good V. Good . . . .267 Cook V. Andrews .... 458 V. Dawson .... 384 V. Field . . .96, 641 . V. Waugh . . .313, 375 Cooke v. Clay worth . . .177 ■ V. Oxley . . . .128 V. Tombs . . . .274 Cooke's Trustee's Estate, Re . 276 Cookes V. Mascall . . . 137 Coombes v. Mansfield . . 649, 650 Coombs V. Wilkes . .150, 244 Cooper V. Denne . . . .381 V. Hood . . . 165, 168 V. Jarman . . .88 XXIV TABLE OF CASES. FAQE Cooper V. London, Chatham, and Dover Eailway Co. 615, 618 V. Phibbs . . . 343, 348 V. Smith . . . .248 Cooth V. Jackson . 172, 213, 261, 276 Copper Mining Co. v. Beach . 414 Corbett v. Commissioners of H. M. Works, &c. . . . 575, 676 Corder v. Morgan . . .69 Cordingley v. Cheeseborough . 512, 516, 531, 548, 549, 551 Corless v. Sparling 111, 531, 564, 571 Cornfoot v. Fowke . . .290 Cornwall v. Henson . . . 459 Corporation of Hythe v. East 506, 557 Corrall v. CatteU . . . .567 Cory V. Thames Lronworks, &c. Co. 559, 561 Cosens v. Bognor Eailway Co. . 70 Coslake v. Till . 39, 467, 468, 471 Cesser v. CoUinge . . . 161 Coster V. Turner .... 476 Costigan v. Hastier . . 185, 457 Cotton V. Wilson . . . .85 Counter v. Macpherson . 398, 399, 411, 484, 591, 604 County of Gloucester Bank v. Eudry Merthyr Colliery Co. . 221 . 245 . 395 135, 139 . 468 162, 227 599, 609 . 430 . 77 615, 520, 526, 534 303 332 669 97 45, Coupland v. Arrowsmith Couturier v. Hastie Coverdale v. Eastwood . Cowles V. Gale Cowley V. Watts . Cowpe V. Bakewell Cowper V. Harmer Cox V. Barker V, Ooventon . V. Middleton V. Smith Cox and Neave, Be Crabtree v. Poole . Crampton v. Varna Eailway Co, Crane v. Eilpin . Crawford v. Toogood . Cripps V. Jee Crocktord v. Alexander Crofton V. Ormsby Crofts V. Middleton 263, 284 . 603, 617 . 473, 474 . 350 . 498 99, 469, 479 . 651 PAOB Crompton v. Lord Melbourne . 547 Crook V. Corporation of Seaford . 267,. 279, 284 Croome v. Lediard . • 347, 358 Crosbie v. Tooke . 90, 93, 415, 416 Cross V. Sprigg . . • .135 Crosse v. Keene . . . 357, 378 -v. Lawrence . . 357, 378 Crossley v. Maycock . . 122, 230 Crow V. Eogers . . . .79 Crowder v. Austin . . . 316 Cruse 11. Nowell . . . .516 V. Paine . . . 635, 639 Cmtchley v. Jemingham 61, 613, 618 Cruttwell V. Lye . . . .39 Cubitt V. Blake . . . .476 V. Smith . . . .42 Cuddee {or Cud) v. Eutter . 31, 432 Cudden v. Cartwright . . .180 Cuddon V. Tite . . . .592 CuUen V. Duke of Queensbury . 74 V. G'Meara . . . 458 Cuming, Be 86 Curling V. Austin . 564, 614, 615 V. Flight . . 160, 565, 584 Curtis V. Marquis of Buckingham 498 Cutler V. Simons . . 574, 616, 618 Cutts, Ex parte . . . .249 V. Thodey . 70, 113, 454, 483 D. Da Costa v. Davis Daggett V. Eyman Dakin v. Cope Daking v. Whimper Dalby v. Pullen . Dale V. Hamilton. V. Lister Dames and Wood, Be Dance v. Goldingham D'Angibau, Be Daniel v. Adams . Daniell v. Sinclair Daniels v. Davison . 437 . 368 . 607 . 76 356, 581 257, 265 . 538 451, 452 . 70 49, 79, 81 . 432 . 347 82, 146^ TABLE OF CASES. XXV Danube and Black Sea Railway, &c. Co. V. Xenos . . . 458 Darbey v. Whitaker 151, 153, 154, 670 Darlington v. Hamilton 533, 535, 568, 5b9 Darnley, Lord, v. London, Chat- ham, and Dover Eailway Co. 43, 158, 427, 477, 483 Davenport v. Bishopp . V. Charsley 362 311 314 352 Davies v. Cooper , V. Fitton . ■ I'. London and Provincial Marine Insurance Co. 308 V. Thomas . . . 508 V. Treharris Brewery Co. . 656 Davis V. Abraham . . . 314 V. Davis . . . 664, 665 — V. Duke of Marlborough . 200 V. Foreman . . . 373 V. Haycock . . 633, 634 V. Hone 21, 186, 340, 408, 434 V. Jones .... 432 V. Park . . . .52 V. Shepherd . 174, 342, 378 ■ ■ V. SymOnds . 170, 443, 444 Davis and Cavey, Be . 17, 489, 620 Davy V. Barber . . . 399, 612 Dawdy, Be 153 Dawes v. King .... 291 Dawson v. Brinckman . . . 575 V. Newsome . . . 663 Day, Be, Sprake v. Day . . 88 V. Luhke .... 468 V. Newman .... 195 V. Singleton . . .561, 620 V. Wells . . . 239, 331 Deane v. Eastron . . . 193, 314 Dear v. Sworder . . . .78 V. Verity . . 166, 338, 339 De Beil v. Thomson . . 138, 240 Debenham v. Sawbridge . 342, 548 De Brassac v. Martyn . . . 401 De Cordova v. De Cordova . . 178 De Francesco v. Barnum 46, 47, 48, 116 De Hoghton v. Money . 70, 97, 214 Deighton and Harris' Contract, Be 453 Delabere v. Norwood . . .76 Delves v. Gray .... 179 PAGE De Mattos v. Gibson 34, 38, 369, 370 De Medina v. Norman . . . 431 Denne v. Light .... 191 Denning v. Henderson . 596, 600 Denny c. Hancock . . 331, 376 Dent ('. Nickalls .... 032 Denton v. Stewart . . 429, 625 Deposit & General Life Assurance Co. v. Ayscough . 320, 321, 325 Depree v. Bedborough . . . 623 Deptford Creek Bridge Co., /iV, v. Sevan ..... Dering i'. Kynaston De Rothschild v. Royal Mail Steam Packet Co. .... Derry v. Peek .... Devenish v. Brown Deverell v. Lord Boulton De Visme v. De Visme . 595 De Waal v. Adler Dewar v. Elliott . Dibbin v. Dibbin . Dibbius v. Dibbins Dicconson v. Talbot Dick V. Donald Dickenson v. Dodds ■ V. Heron Dicks V. Brooks . Dietrichsen v. Cabburn Dim.mock v. Hallett Dinham v. Bradford Dixon V. Astley . V. Fraser . V. Gayfere Dobell V. Hutchinson . V. Stevens . Dodsley v. Kinnersley . Dodson V. Downey Doe d. Gray v. Stanion d. Lambourne v. Pedgriph d. Lyster v. Goldwin d. Mann v. Walters d. Nash 0. Birch . d. Williams v. Evans Dolling V. Evans . Dolman v. Notes 525 51 . 598 . 287 431, 580 . 576 , 597, 598, 600 . 469 . 175 . 472 129, 677 . 308 . 517 128, 131 . 610 . 502 368, 496 296, 316, 517, 537 . 156 574, 616, 617 . 605 . 507 248, 533 . 303 . 25 . 646 . 159 227 143 143 451 95 162 313 244 xxvx TABLE OP CASES. PA8B Doloret v. Eothsoluld . 24, 27, 32, 464, 467 Donald v. Scott . . . .340 Donnell v. Bennett . . 368, 373 Doo V. London and Croydon Eail- way Co 103 Dorison v. "Westbrook . . .32 Dorling v. Evans .... 505 Douglas and Powell's Contract, Re 385, 387 V. Oulverwell . . . 253 V. Sidmoutli Railway and Harbour Co 424 Douglass V. London and North Western Railway Co. . • 457 Dowell V. Dew . 90, 93, 95, 99, 265, 652 Dowling V. Betjemann . . 35 Downie v. Summerson . . . 388 Downs V. Collins . . . 158, 359 Dowson V. Solomon . . . 186 Drake v. Mayor of Exeter . . 91 Drapers' Co. v. MoCann . . 488 Drewe v. Hanson . . 624, 528 Drincqbier v. Wood . . . 310 Driver v. Broad .... 222 Drogheda, Mayor, &o. of, I). Holmes 284 Drover v. Beyer .... 503 Drummond v. Duke of Bolton . 438 Drysdale v. Mace . . 302, 514 Duck V. Tower Galvanizing Co. . 221 Duddell V. Simpson . . 451, 452 Duke V. Andrews . . • 123 V. Barnett .... 565 V. Littleboy . . .216 Duke of Marlborough, Re . . 252 Duncan v. TindaU . . .649 V. Topbam . . .126 Duncuft V. Albrecht ... 32 Dundas v. Dutens . . 255, 271 Dunlop i). Higgins . . .126 Dunni;. Flood . . . 179, 181 • ■ V. Vere .... 505 Dunne v. English . . . 308 Duranty's Case . . . .288 Durham, Earl of, v. Legard. 333, 545 Duthy and Jesson's Contract, Re . 565 Dutton V. Pool . . . .81 Du:xbury v. Sandilord , . .95 PAOB Dyas V. Cruise . 99, 211, 236, 538 V. Eooney . . . 468, 482 Dyer v. Hargrave. 301, 302, 375, 376, 530, 607 Dyke v. Taylor . . . -66 Dykes v. Blake . . 357, 612, 633 Dyson v. Hornby . . 596, 699 E. Eads v. WiUiams . 176, 468, 476, 478, 483 Early v. Garrett .... 378 Eastern Counties Railway Co. v. Hawkes . . .30, 104, 220 East India Co. v. Donald . . 276 V. Nuthumbadoo VeerasawmyMoodelly 264,274,278 East India Co. v. Vincent . . 46 Eaton's Case . . . .437 Eaton V. Laughter . . . 437 Eooleshill Local Board, Re . 695, 612 Ecclesiastical Commissioners v. Pinney . . . .78, 507 Echlifl V. Baldwin . . .497 Eden v. Naish .... 666 Edge V. Bumford . . . .22 EdgeU V. Day . . .114, 238 Edinburgh, Perth, and Dundee Railway Co. v. Philip . . 426 Edwards v. Burt .... 200 V. Grand Junction Rail- way Co. . . 102, 188 V. Hodding . . . 113 . V. M'Leay . 286, 300, 301 i;. West. . . 400,589 V. Wickwar . . . 520 Edwards-Wood v. Majoribanks . 312, 377, 643 Egerton v. Lord Brownlow . . 213 V. Jones .... 684 ■ V. Mathews . . .230 Egmont, Earl of, v. Smith . 113, 605, 623 Ehrensperger v. Anderson . 445, 459 Ehrman v. Bartholomew . . 373 Eley V. Positive Government Life Assurance Co 234 TABLE OF CASES. XXVll PAOE 177, 315 . 429 . 114 159, 572 . 150 . 558 Ellard V. Lord LlandafE Ellis V. Colman . V. Goulton . V. Eogers Elmore v. Kingscote . V. Pirrie .... Elptiastone, Lord, v. Monkland Iron and Coal Co. Else V. Barnard .... V. Else Elswortliy V. Bird Ely, Dean of, v. Stewart Emeris v. Woodward . Emery v. Grooock V. Wase . 174 Emmerson's Case . Emmerson v. Heelis Emmett v. Dewturst . Empress Engineering Co, England v. Codrington V. Curling English V. Murray Enraght v. Eitzgerald Ernest v. Nicliolls Errington's Case . Errington v. Aynesly Esdaile v. Stephenson Bspley V. Wilkes . Esposito V. Bowden Essex V. Daniel! . Evans v. Edmonds V. Hoare . V. Eichardson V. Eobins . V. Saunders ■ V. Walshe . V. Wood Eyre v. Monro Eyston v. Simmons Eyton V. Dicken . . 61 . 238 . 521 . 659 . 190 . 665 . 389 199, 432, 669 395, 639, 640 236, 238, 356 . 352 ,, Be . 80 . 253 . 448, 645 . 534 579, 594, 612 . 98 . 434 . 41, 434 528, 583, 584, 586, 593, 596 . 407 212, 399 . 623 . 289 . 235 . 214 . 532 . 487 . 184 626, 638, 639 . 100 . 582 . 387 PAGE Faloke v. Gray . 34, 183, 193, 196 Falkner v. Equitable Eeversionary Society 388 Eallon V. Eobins . . . .346 Fane v. Spencer .... 160 Farebrother v. Gibson . , 298, 535 Farina v. Fickus . . . 133, 134 Farrall v. Davenport . . . 268 Farrar v. Lacy, Hartland & Co. . 619 V. Nash . . . 462, 581 Faulkner v. Llewellin . . .616 Fawcett and Holmes, Be . . 532 Featherstonhaugh v. Fenwick . 92 Feohter v. Montgomery Fellmakers' Co. v. Davis Fellowes v. Lord Gwydyr Fells V. Eeed Fenelly v. Anderson . Fenn v. Craig Fenner v. Hepburn Fenton v. Browne V. Hughes Fenwick v. Bulman Faine v. Brown . Fairhead v. Southee 188 543 . 368 . 79 90, 94, 304 . 34 . 205 . 74 27, 29 . 296, 618 . 113 69, 74, 83 FeoiJees of Heriot's Hospital u. Gibson 406 Ferguson v. Tadman . . 561, 605 •V.Wilson . 111,429,556 Ferrers, Earl, v. Stafford and Ut- toxeter Ey. Co. ... 622 Feversham, Lord, v. Watson . 412 Fewster v. Turner . . . 408 Fickus, Be, Farina v. Fickus 133, 134 Fife V. Clayton . . . .337 Filby V. HounseU. 130, 148, 230, 244 Fildes V. Hooker . . . 160, 527 Finch V. Earl of Salisbury . . 64 Finlay v. Bristol and Exeter Eail- way Co 282 Finucane v. Turner . . . 479 Firth V. Greenwood . . 235, 476 V. Midland Eailway Co. . 154, 602, 611 V. Eidley . . 40, 48, 168 . 22 . 237 V. Slingsby . Fitzmaurice v. Bayley . Flanagan v. Great Western way Co. Fleetwood v. Green Fleming v. Loe . Eail- 117 563 82 XXVUJ. TABLE OP CASES. Elesher v. Trotman . . .260 Fletcher v. Fletcher . , . 658 V. Lancashire and York- shire Eailway . . . .611 Flight V. Barton . . . .303 ■ —V. Baslin .... 161 v. BoUand . . 203,209 1). Booth . . . £31,532 Flinn V. Fountain . . .98 Flint V. Brandon ... . .42 V. Woodin . . . 304, 316 Flood V. Finlay . . . .95 V. Pritohard . . . 535 Flower v. Buller . . 78, 643, 644 Floyd t». Buckland . . .267 Fludyer v. Cocker . . 589, 608 Flureau v. Thornhill . . .560 Foligno V. Martin . . . 505 Ford V. Compton . . .99, 504 V. Heely . . . .69 V. Tiley . . . .460 Fordyce v. Ford . 476, 500, 526, 572 Forrer v. Nash .... 204 Forster v. Abraham . . . 389 V. Great Eastern Railway Co 457 V. Hale . . . 257, 268 V. Rowland . . .240 Forsyth v. Manton . . . 663 Fortescue v. Hennah . . . 100 V. Lostwithiel & Fowey Railway Co. . . . 44, 48 Foster, JEx parte, Be Foster . . 264 V. Deacon . '. . 547, 604 V. Eltonhead . . . 685 V. Mentor Life Assurance Co 132 V. Reeves .... 490 Fothergill r. Phillips . . .313 ■V.Rowland 35,36,371,495 Foubert v. Twist . . . .52 Fountaine v. Carmarthen, &c. Railway Co 221 Fowle V. Freeman . 209, 227, 229 Fowler v. Fowler .... 346 V. HoUins . . . .108 V. Lightburne . . .85 V. Scottish Equitable Life Insurance Society . . . 343 PAGE Fox V. Birch , 614 V. Mackreth . . 194 313 V. Purssell . , 497 V. Scard 49, 63 Foxlowe V. Amcoats . 579 Frame v. Dawson 259 268 Frank v. Basnett. 504 547 V. Frank . . 171 Franklin v. Lord Brownlow . 415 Franklinski v. Ball . 556 Franklyn v. Lamond . 357 Franks v. Martin. 142 166 Eraser v. Wood . 581 Frederick v. Coxwell 431 ,432 435 Freebody v. Parry . 616 Freeman v. Cooke . 132 Freer v. Hesse . 387 Freeth v. Burr 469 Freme v. Wright . 161, 564 French v. Macale . 55 ,59, 61, 64, 66 Friary Holroyd and Healeys Breweries v. Singleton 472, 477 Fritz V. Hobson . 557 Frost V. Beavan ,. 117 V. Enight . 459 V. Moulton . 226 Fry V. Lane . 201 Fuentes v. Montis 240 Fulham v. McCarthy 71 Fuller V. Wilson . 290 Furby v. Martin and B amm< 3 683 Furness v. Bond . 487 G. Gabriel v. Smith 516 Gage V. Acton . 24 ■ ■ V. Newmarket Railway Co. . 426 Gale V. Lindo . . . 132 V. Squier . 521 Galton V. Emuss . 84 Games v. Bonnor . . 585 587 Gandy ■;;. Gandy . . 80, 119 Garbutt v. Fawcus 501 Gardiner v. Tate . . 512 514 Gardner, Ex parte 483 V, Fooks . 166, 268 TABLE OV CASES. XXIX Gardom v. Lee Gamett v. Acton . Garrard v. Frankel — — — V. Grinling Garrett t;. Banstead 345 and Epsom Downs Railway Co. . V. Handley Garrick v. Earl Camden Gartside v. Isherwood . Gaskarth v. Lord Lowther . Gaston v. Frankum . .241, Gatayes v. Flatter Gaudet Freres Steamship Co., He . Geddes v. Wallace Gedye v. Commissioners of Public Works . . 579, V. Duke of Montrose . Gee V. Pearse . . . . PAQE 455 87 . 346 338 499 109 592 175 121 577 511 665 448 585 . 470 . 480 . 615 514, 568 Gell V. Watson Geogtegan v. Connolly 512 George WMtechurcli, Limited, )'. Cavanagh. . . . 132, 135 Gerrard v. O'Reilly ... 66 Gervais v. Edwards 358, 363, 365, 670 GhilUs V. MoGhee . . 166, 404 Gibbins v. North Eastern Metro- politan Asylum District . 125, 228, 579 . 347 652, 658, 660 . 289 • 91 579, 614, 615 Gibbons v. Caunt Gibbs V. Harding Gibson's Case Gibson v. Carrutbers •- V. Clarke . ■;;. D'Este . V. Goldsmid V. Holland V. Patterson ^ V. Spurrier Gilbert v. Endean Gilchrist v. Herbert Giles V. Beausang GilfiUan v. Henderson Oillett V. Thornton Qilliat V. Gilliat . Gillis V. McGhee . Glasbrook v. Richardson Glass V. Richardson Glasse v. Woolgar 286, 300, 302, 512 . 410 . 223 . 465 . 357 . 665 . 271 . 491 . 39 . 671 . 317 . 46 108, 112, 468, 478 . 381 . 29 PAGE Glave V. Harding , . . 406 Glengal, Earl of, v. Barnard 226, 238, 240 Lord, V. Thynne Gloag and Miller, Be Goddard v. Jeffreys Godson V. Turner. Godwin v. Brind . V. Francis Goilmere v. Battison Goldicutt V. Townsend . 226, 238 162, 574 . 336 . 565 . 235 232, 240 . 100 . 137 . 600 . 444 Golds and Norton, Be . Goman i'. Salisbury Gooday v. Colchester, &o. Railway Co 103, 104 Goodman v. Griffiths . . 150, 248 Goodwin v. Fielding . . 99, 181 Goold V. Birmingham Bank . Gordon, Lord, v. Marquis of Hert- ford . . . . V. Smart . . 322, 323, — V. Street . . . . V. Trevelyan Goring V. Nash . Gorringe v. Land Society Gosbell V. Archer Goss V. Lord Nugent . Gould V. Kemp . V. Staffordshire Waterworks Co. 565 340 421 94 157 361 . 18, Improvement . 23 . 232, 238, 248 . 443, 445 . 183 Potteries . 622 Gourlay v. Duke of Somerset . 153, 156, 670 for Relief of Poor of Clergym.en, &c. v. Governors Widows Sutton 393 Goylmer v. Paddiston . . . 100 Grace v. Baynton . . . 505 Grady's Case . . . .221 Graham, Ex parte . . . 127 V. O'Connor ... 99 • ■ — V. Oliver . . 544, 570 Grant, Ex parte .... 628 f . Munt . . . 301,530 . United Engdom Switch- back Railways Co. Granville v. Belts Gravely v. Barnard Graves v. Wright . 219 361 61 622^ XXX TABLE OF CASES. PAOE Gray v. Fowler . . . 323, 451 V. Smitli . . . 227, 257 Great Luxembourg Eailway Co. v. Magnay Great Northern Eailway Co. v. Eastern Counties Eailway Co. . Great Northern Eailway Co. v. Manchester, Sheffield and Lin- colnshire Eailway Co. . 164, 368 Great Western Eailway Co. v. Bir- mingham and Oxford Junction Eailway Co. . 365, 431, 497, 538 324 97 Greaves v. Tofield V. Wilson. . 99 451, 512, 518 . 646 . 374, 410 . 583 . 220 . 391 471, 473, 493 . 429 . 625 Green v. Folgham V. Low V. Monks V. Nixon V. Pulsford ■ V. Sevia V. Smith Greenaway v. Adams Greene v. West Cheshire Eailway Co 44, 50 Greenhalgh v. Brindley 307, 312, 529 V. Manchester and Bir- mingham Eailway Co. . 103, 436 Greenhill v. Isle of Wight (New- port Junction) Eailway Co. 29, 42 Greenwood v. Churchill . . 596 V. Leather Shod Wheel Co. Turner . 310 . 614, 617 . 148, 223, 248 . 132 . 265, 278 417, 418, 419, 420 . 466 . 440 . 113 . 432 Gregg V. Holland ■ V. Wells . Gregory v. Mighell V. Wilson Gregson v. Eiddle Grenningham v. Ewer Grey v. Gutteridge • V. Hesketh . Greycoat Hospital v. Westminster Improvement Commissioners . 69 Grierson v. Cheshire Lines Com- mittee 128 Griffin r. Griffin . . . .411 Griffith V. Spratley . . 194, 196 Griffiths V. Jones . . . .333 V. Tower Publishing Co. . 92 tAOB Grimston v. Cuningham . . 368 GrisseU v. Bristowe . 626, 631, 633 Grosvenor v. Green . . 161, 532 Grove v. Bastard .... 391 Groves v. Groves . . . .48 Guest V. Homfray . . . 478 GuUlamore v. Peacocke . 128, 157 Gunter v. Halsey. . . 250, 258 Guy V. Churchm . . . .96 Gwillim V. Stone .... 625 Gwynn v. Lethbridge . . . 337 Gylbert v. Fletcher . , .116 Habeedashees' Co. v. Isaac . 176 Hadley v. London Bank of Scot- land, Limited .... 499 Haedicke & Lipski's Contract, JRe 161, 377, 489, 512, 565, 567, 571 Haines v. Burnett . . .157 Hale V. Bushill . . . .85 Halfpenny v. Ballet . . . 137 Halifax Commercial Bank and Wood, lie . . .159 Joint Stock Banking Co. a. Sowerby Bridge Town Hall Co. . 68 HaU V. Betty .... 160 V. Cazenove .... 463 V. Conder .... 158 . 123 432, 666 69, 72, 450, 574 V. Hall. V. Hardy V. Laver V. Warren V. Wright Hall-Dare v. Hall-Dare Hallett V. Middleton . 18, 116, 155 . 428, 429 . 51 . 429 HaUett's Estate, Be, Knatchbull V. Hallett 18 Halsey v. Grant . . 524, 328, 529 Hamer v. Sharp .... 236 Hamilton v. Bates . . . 528 V. Buckmaster . . 383 i;. Grant . 191,193,204 v. Hector . . . 660 Hammersleyv.DeBiel. 131, 138, 240, 248, 262, 273 TABLE OP CASES. XXXI PAGE HampsHre v. Wickens . 157, 376 Handman & Wilcox's Contract, He 387, 389 Hands ?,-. Hands . Hanks v. Palling . V. Pulling . Harding v. Cox . Co. . Hardman v. Cliild Hardy v. Martin . Hare & O'More's Contract, Be . 503 . 396, 566 . 396 . 93 V. Metropolitan Eailway . 56, 155 , 452 . 66 ,333, 553 V. Bui-ges . . 414, 418, 421 V. London & North. Western Eailway . . 69, 218 V. Shearwood . . . 350 Harford v. Purrier . . 398, 607 Hargrave v. Hargrave . . . 663 Hargreaves and Thompson, Be . 489, 620 . 77 . 113 Contract, 204, 227, 654 519, 567, 580 V. Wright Hariagton v. Hoggart Harkaess & AUsopp's Be . . . Harnett v. Baker . V. Yielding Harrington v. Wheeler Harris's Case Harris v. Ingledew • V. Kemble V. Loyd . V. Pepperell 168, 179, 210 . 476, 478 . 125 . 85 291, 303, 327 . 349 . 345, 346 & Eawlings' Contract, Be. 488 Harrison v. Brown . . . 445 V. Cornwall Minerals Eailway Co. . . 487 V. Gardner . . . 352 V. Guest . . 194, 195 Hart V. Hart . 165, 278, 336, 501, 658, 661 ■ • V. Herwig V. Swaine Hartley v. Smith . Hartop, Ex parte . Harvey v. Grabham Harvy v. Ashley . Harwood v. Tooke Hatton V. Grey . 34, 53, 650 290, 300 . 390 . 108 . 443 . 414 . 642 . 208 -V. Chaffey PAGE Hatton V. Eussell . . 474, 587 Havelock v. Geddes . . . 463 Hawkes' Case . . . .206 Hawkes v. Eastern Counties EaU- way Co. 29, 184, 188, 206, 426, 431 Hawkins v. Holmes . . 233, 274 V. Maltby 72, 277, 401, 633, 636, 638 Hawksley v. Outram . 160, 165, 427 Hawksworth v. Brammall . 666, 667, 669 . 229 . 571 . 533, 535 . 2, 55, 57 146, 188, 299, 312 Head's Trustees and McDonald, Be . Heald v. WaUs Heap V. Tonge Heaphy v. Hill Heard v. Pilley . . . 112, Hearne v. Tenant Heath v. Metropolitan Eailway Co. Heathcote v. North Staffordshire Haydon v. Bell Haylord v. Criddle Haynes v. Haynes Haywood v. Cope . 18, 623 348 171 478 236 466 508 Eailway Co. Hebb's Case . Heffer v. Marty n . Helling v. Lumley Helsham v. Langley Henderson v. Hudson • V. Lacon 35, 370, 672 . 126 . 315 . 189 175, 333, 341 . 535 . 309 Henkle v. Eoyal Exchange As- surance Co. . . . 344, 346 Henthorn v. Eraser . . 126, 128 Henty v. Schroder . . 505, 506 Hepburn v. Leather . . 43, 44 Hepworth v. Pickles . . .388 Herbert v. Salisbury and Yeovil Eailway Co. . . . 598, 609 Hercy v. Birch . . .40, 645 Heriot's Hospital, Eeoffees of, v. Gibson 406 Heritage v. Paine . . .632 Hermann v. Hodges . . .22 Hersey v. Giblett . . .99, 162 Hertford, Marqxiis of, v. Boore . 478 Hervey v. Audland . . ,49 XXXll TABLE OF CASES. PAGE Heseltine v. Simmons . . . 385 Hesse v. Briant . . . ,177 Hetling and Merton's Contract, Jle 601 Hexter v. Pearce . . .37, 356 Heywood v. Mallalieu . . 305, 518 Heyworth v. Knight . . .229 Hibbert v. Hibbert . . 40, 645 Hibblethwaite v. M'Morine . . 432 Hick V. Phillips . . 378, 532, 621 Hickman v. Berens . . . 336 Higgins V. Samels . 289, 296, 299 — V. Senior . . . 108 Higgins and Hitcbman, lie . 377, 489 and Percival, Be . 393, 489 Higginson v. Clowes . 331, 339, 352 Highett and Bird's Contract, Be . 392, 604 Highgate Arcti-vray Co. v. Jeakes . 384 . 418 538, 544, 545 79, 82, 205, 443, 444 . 314 . 100 . 486 . 368 . 556 199, 202 84, 86 . 558 179 Hill V. Barclay V. Buckley V. Gomme V. Gray V. Sobwarz . Hillman v. Maybew Hills V. Croll Hilton V. Tipper . Hincksman v. Smith Hinton v. Hinton Hipgrave v. Case . Hipwell V. Knight Hitchcock V. Giddings Hitchens v. Landor Hoare v. Dresser . Hobbs V. Hull . Hobson V. Bell V. Trevor. Hochster v. De la Tour Hoddel V. Pugh . Hodgens v. Keen Hodges V. Blagrave — V. Horsfall Hodgkinson v. Kelly ^ V. Wyatt Hodgson V. Hutchenson Hodson V. Heuland Hoggart V. Cutts . V. Scott . Holden v. Hayn . 465 633, 467, 482 342, 394 . 95 . 35 . 659 . 517 63, 65, 642 . 459 . 84 . 113 . 414 . 166 638, 640 . 353 129, 24S 259, 265 . 113 204, 208, 582 . 72, 449 PAGE Holdemess v. Lamport . . 647 Holford V. HoLford ... 76 Holland, Re, Gregg v. Holland . 148, 223, 248 V. Eyre .... 123 HolUs V. Edwards V. Whiteing Hollis' Hospital (Trustees o: Hague's Contract, Be Holloway v. York Holman ■;;. Johnson Holmes, Be . V. Eastern Counties way Co. . V. Howes . V. Powell . v. Symons Holroyd v. Marshall Holt V. Holt V. Jesse Holyland, Ex parte Homan v. Skelton Homersham. v. Wolverhampton Waterworks Co. . . . 282 Homfray v. Pothergill. 22, 128, 646 Honeyman v. Marryatt 129, 227, 466 Hood V. Lord Barrington 148, 149, 392 V. North Eastern EaUway Co. . V. Oglander Hood-Barrs v. Cathcart V. Heriot . . 253 . 255 f) and . 386 415, 486 . 214 . 53 Eail- 168, 423 . 196 . 83 . 639 . 33, 34, 430, 432 . 37 . 664 . 116 . 479 Hook II. Kinnear . Hooper, Ex parte V. Smart . Hopcraft v. Hickman V. Hopcraft . 43 . 334 . 655 . 655 . 80 259, 270 540, 543 . 151 . 537 . 657 . 260 . 38 660 190, 377 Hope V. CaTnegie .... t: Cloncurry V. Gibbs .... V. Hope 206, 212, 374, 659^ V. Walter . Hopkins v. Myall . , . 652 Home V. London and North- western Railway Co. . 47, 496 Horner v. Williams . , . 549 Horniblow v. Shirley . . 528, 579 Horrocks v. Eigby . . . 543 Horsey v. Graham . . , 145 TAHLR OP CASES. xxxni Horsfall v. Garnett V. Thomas PAOE 120, 121, 127 309, 312, 530 Hotham v. East India Co. . . 410 Houghton V. Lees . . 48, 643 Houldsworth r. City of Glasgow Bank ■ V. Evans 318 471 Household Fire Insurance Co. v. Grant 126 Howard, JRe 85 V. Hopkins . 58, 60, 99 V. Hudson . . .132 V. Patent lyory Co. . 267 . 268, 270 Howe V. Hall • !'. Hunt V. Smith Howell V. Coupland V. George V. Howell V. Kightley Howland v. Norris Hoy V. Smythies . Hoyle, Be, Hoyle v. Hoyle V. Livesey . 556 464, 620 397, 428 334, 432 . 603 515, 583 524, 595 . 456 . 226 . 401 . 233 . 233 . 231 . 120, 227 466, 483, 497 123, 227, 551 . 532 . 77 . 452 Hughes V. Jones 484,526,531, 537, 577 V. Morris . . 269, 649 V. Parker . . .159 V. Statham . . .646 V. Sutherland . . .648 • and Ashley's Contract, -He 488, 489, 624 Hughes-Hallett v. Indian Mam- moth Gold Mines Co. . . 675 Huguenin v. Baseley . . . 318 Huish's Charity, Be . . . 391 Humber & Co. v. John Griffiths Cycle Corporation . . . 240 Humble v. Langstone . . .627 Hume V. Bentley . . . 568 V. Pocock . 300, 379, 580, 584 Hubert v. Treherne ■ V. Turner . Hucklesby v. Hook Huddleston v. Briscoe , Hudson V. Bartram u. Buck . V. Cook . V. Maddison V. Temple Humphery v. Conybeare Humphreys v. Green • ■ V. HoUis Hungerford v. Hutton Hunt V. Luck V. Silk Hunter v. Daniel Hurley v. Baker Hurst V. Hurst Hussey v. Domvile • r. Horne-Payne 227, 233, Hutchings v. Humphrey Hutton V. Eossiter Huxham. v. Llewellyn Hyam v. Terry Hyde v. Dallaway V. Warden . V. Watts . ■ V. White V. Wrench . V. Wroughton Hythe, Corporation of, v. PAOB . 162 . 271 . G8 . 684 . 99 325, 326 454, 455 . 114 61, 66 . 477 123, 226, , 245, 253 . 506 . 140 469, 478 . 559 . 585 . 161 . 451 . 643 . 129 . 579 East 506, 557 234 468, Ilohestee, Loed, Ex parte . 444 Imperial Loan Co. v. Stone . .116 Imperial Mercantile Credit As- sociation V. Coleman . . 308 Inge ('. Birmingham., Wolver- hampton, and Stour Valley Eailway Co. 56, 146 ■ u. Lippingwell . 444 Ingle V. Eichards (No. 1) . 88 v. Vaughan- Jenkins 84, 205 Inman v. Wearing 76 Innes v. Mitchell . . 52 lonides v. Pender. 307 Irnham^ Lord, v. Child 94, 350 Irvine v. Union Bank of Aus- tralia . 219 Isaacs V. Evans . . 158, 257 V. ToweU . . 456 Ives V. Metcalf 667 XXXIV TABLE OF CASES. J. PAOE Jackson's Case . . . .99 Jackson and Oakstott, Be . 451, 453, 517, 518 . 488 . 32 . 156 . 400 . 244 . 247 . 52 . 448 . 517 . 232 . 531 75, 92, 95, 99 . 201 . 537 . 356 225, 236 . 132 , 559, 562 . 150 . 222 168, 338 . 506 299, 378 . 48 . 606 147, 165, 435 663, 571, 580 . 69 . 503 . 554, 625 . 295, 298 . 579 and Woodburn, Re V. Cocker V. Jackson V. Lever V. Lowe V. Oglander V. Petrie V. Sedgwick V. Whiteliead Jacob V. Kirk Jacobs V. Eevell . Jalabert v. Duke of Cbandos James v. Eerr V. Licbfield V. Shore . V. Smith. . Jameson v. Stein . Jaques v. Millar . Jarrett v. Hunter . Jarvis v. Jarvis . JefEery v. Stephens V. Stewart Jeiierys v. Fairs . Jeffreys v, Jeffreys Jegon V. Vivian . Jenkins v. Green . V. Hiles . V. Jones . V. Parker V. Parkinson Jennings v. Broughton V. Hopton 162 295 Jersey, Earl of, v. South Wales Mineral EaiLway Co. . . 509 Jervis v. Berridge . . 233, 253 Jervoise v. Duke of Northumber- land 381, 382 Jessop V. Smyth . Jeston V. Key Jeudwine v. Agate V. Alcock . 505 . 414 ■ . 60 583, 584 . 84 John V. John John Griffiths Cycle Corporation V, Humber & Co. . . . 240 PAGE Johnson v. Bland V. King . 124 ■ V. Legard 75, 86, 178, 208, 387 ■ V. Nott . . . .175 ■ V. Ogilby . . .108 ■ V. Shrewsbury and Bir- mingham Eailway Co. 47, 97, 205, 214 V. Smart V. Smiley Johnston v. Boyes V. Johnston Johnstone v. Milling JoUffe V. Baker . Jollifle V. Blumberg Jones V. Clifford . 537 . 520 562, 619 324, 611 . 459 290, 549 129, 240 342, 511, 649, 667, 568 V. Daniel . V. Evans V. Gardiner V. How V. Jones ■u. Lees V. Littledale V. Martin . V. Mudd V. North V. Eimmer . 122, 230 . 539 559, 561, 596 100, 439 . 41 . 183 . Ill . 100 . 593 . 371 302, 331, 332, 512, 513 . 22, 641 V. Victoria Graving Dock Co. . . 223, 234, 283 V. Wallis . . . .160 V. Watts . . . 569, 576 Jonesse (John) v. John Peneley and William Peneley . . 683 Jordan v. Sawkins . 94, 360, 445 Jorden v. Money . Joyce ■;;. Hutton . Joynes v. Statham Jumpson V. Pitcher V. Eoe 337 135 49 352 687 K. Kay v. Crook V. Johnson . 133 41,111 TABLE OP CASES. XXXV Keane v. Attenry & Eniiis Junc- tion Eailway Co. . . 508, 509 Kearley and Clayton's Contract, Re 488 Kearns v. Leaf .... 436 Keates v. Earl of Cadogan . 312, 314 Keayes v. CarroU . . . 53Y, 543 Eeeble Fletton Brick Co., i?e , 593 KeigMey, Maxsted & Oo.i;.Durant 125, 238 Keisselbrack v. Livingstone . . 353 Keith, Prowse & Co. v. National Telephone Co. . Eell V, Notes Kellock V. EnthoTen Kelly V. Walsh . Kelner v. Baxter . Kemble v. Kean . Kemeys v. Proctor Kendall v. Beckett V. HiU . Kennedy v. Lee V. May . 371 . 623 . 627 . 264 . 237 . 166, 363, 367 . 238 . 199, 202, 625 . 157 121, 146, 227, 229 . 48, 204 V. Panama, &c. Mail Co. 320, 326, 329, 349 Kenney v. Wexliam . 28, 31, 402 Kensington, Lord v. PMUips 144, 158 238 . 526 . 454 . 175 . 355 595, 610 . 506 . 461 Kenworthy v. Schofield Ker V. Clobery . V. Crowe ] . Kemeys v. Hansard Kemot V. Potter . Kerslia-w v. Kershaw Kettlewell v. Watson Keys V. Harwood Kharaskhoma, &c. Syndicate, Be 150,225 Kidderminster, Mayor, &c. of, v. Hardwick 281 Kien v. Stukeley .... 198 Kimher v. Barber . . . 324, 327 Kimberley v. Jennings . 191, 367 Kine v. Balf . . . -265 King, Re 49 V. AccumulativeAssuranceCo.436 i;.King . . . 457, 614 V. Pinsoneanlt . . . 663 tJ.Eoydon .... 684 i>. Wilson . 473,482,528,530 King's Leasehold Estates, Re Kingsford v. Merry Kingsley v. Young Kinneen v. Persse Kintrea v. Preston Kirk V. Bromley Union Knatchbull t;. Grueber 423, V. Hallett Knight V. Cuckford KnoUys v. Alcook Knowles v. Haughton Knox V. Gye Kusel V, Watson , L. PAOE e 163 322 110 667 160 . 45 262 , 524, 525, 527 576 18 232 99 646 590 . 162 , 163 Lacey, Ex parte . . . • Lachlan v. Eeynolds . Lackersteen v. Lackersteen . Lacon v. Mertins . . 84, 251, Laird v. Birkenhead Eailway Co. V. Briggs Lake v. Dean Lamare v. Dixon 17, 208 536 346 270 165, 264 . 50 . 470 264, 406, 409, 410, 480 Lamprell v. BiUerioay Union . 463 Lancaster and Carlisle Eailway Co . V. North Western Eailway Co. 218, 672, 673 Lancaster v. De Trafford . . 167 Lander & Bagley's Contract, Re . 157, 162, 377, 488 Lane v. Debenham V. Newdigate Lanesborough, Lady, v Langford v. Pitt . Langridge v. Payne Langstafi v. Nicholson Lanyon v. Martin Larios v. Bonany y Gurety Lassence v. Tierney . 454 . 45 Ockshott. 443 . 580 . 455 . 150 . 278 22, 28 262, 272 Latimer v. Aylesbury and Buck- ingham Eailway Co. . 502, 509 Laughter's Case . . ■ 437, 438 c2 XXXVl TABLE OP CAfSES. PAGE Lavet V. Fielder . . . 133, 135 Lavery v. Pursell . 256, 263, 556 Law f. Garrett ■ . . . .671 Lawder v. Blachford . . 183, 184 Lawes v. Gibson . . . 516, 604 Lawrenson v. Butler . . 209, 210 Lawrie v. Lees . . . 515, 570 Lawton v. Campion . . .171 Lay thoarp ■!;. Bryant . . 225,231 Leake v. Morrice .... 255 V. Morris .... 255 Leavitt v. Williams . . .368 Le Blanch v. Granger . . . 370 Leohmere v. Brazier ■ . . . 476 Lee V. Jones .... 310 V. Lee . . . .49, 414 V. Soames .... 204 Leech v. Sohweder . . .17 Lees V. Nuttall . . . .110 Legal V. MUler . . . .338 Legge V. Groker .... 300 Leggott V. Barrett . . .39 ^ V. Metropolitan Eailway Co 608 Legh V. Lillie . . 69, 61, 66 Lehmann v. MoArthur . 478, 480, 482 Leigh, Lord v. Lord Ashburton . 69 Leitch V. Simpson . . . 432 Lench v. Leiich .... 254 Lennon v. Napper 25, 464, 619, 623 Leominster Canal Co. v. Shrews- bury and Hereford Eailway Co. 55, 105, 282 Leroux v. Brown . Leslie v. Crommelin V. Tompson Lesturgeon v. Martin . Lett V. Eandall' . Leuty V. Hillas . Lever v. KoEBer . Levy V. Lindo V. StogdoH . Lowers v. Earl of Shaftesbury . 223 . 539 . 333 . 563 . 161 83, 342 29, 130 484, 497 467, 623 556 Lewin v. Guest Lewis V. Bond V. Brass • V. Buncombe V. James V. Lord Lechmere . 356, 586 417, 418, 420 . 122 . 51 . 617 30, 193, 467 Lewis V. Loxam . . . • Leyland v. IlUngworth . 302, & Taylor's Contract, Be . Lievesley v. Gilmore . Life Interest and Eeversionary Securities Corporation v. Hand- in-Hand Fire and Life Insurance Society Lightfoot V. Heron LiUie V. Legh Limondson v. Sweed Lincoln v. Aj-cedeokne V. Wright. PAG-E 583 536 553 119 . 568 99, 176, 177 . 422 . 250 . 385 253, 254, 266 Lind v. Isle of Wight Ferry Co. . 55 Lindsay v. Lynch 257, 277, 280, 338 & Forder's Contract, Be . 406 Petroleum Co. v. Hurd . 325 Lindsey, Earl of, v. Great Northern Eailway Co. . 98, 104, 284, 436 Lingen v. Simpson Lisle V. Eeeve Lisset V. Eeave Lister v. Turner . 646 645 108 76 Little V. Newport &c. EaUway Co. 407 Liverpool Borough Bank v. Eccles 130. ■■ V. Turner 648,- 650. . 465, 476 . 675 . 34 161, 230, 427 . 466 . 322 . 135, 139 . 60, 100 Lloyd V. Oollett . V. Dimmack V. Loaring . V. Nowell . V. Eippingale Load V. Green Lotfils V. Maw Logan V. Wienholt London and Birmingham Eailway Co. V. Winter 277, 279, 284, 330, 337, 340, 341, 352 London aiid South- Western Eail- way Co. V. Btidgei- .. . .85 London arid Soiith-Westem Eail- way Co. V. Gomm . . .22 London and South-Western Eail- way Co. V. Humphrey . . 674 London, Brighton, and South Coast Railway Co. v. London and South-Western Eailway Co. 97 London, Chatham, and Dover Eailway Arrangement Act, Be. 672 TABLE OF CASES. XXXVll PAQB London, City of, v. Mitford . . 468 V. Nash 38, 41, 184, 214, 554 V. Pugh . . 61 London Corporation and Tubbs' Contract, Re . . . .601 London Founders' Association, Limited, v. Clarke . . . 637 London Guarantee Co. v. Fearnley 151 London Land Co. v. Harris . . 486 London, Mayor &c. of, v. South.- gate . , 43, 559 Long V. Bowring . 61, 69 V. Crossley . . . 78 V. Millar Ill , 241, 243 Longinotto v. Morss . . 84 Lord V. Jefikins . , . 200 V. Lord , . 249 ■ V. Stephens . . . 409 Lord Elphinstone v. Monkland L:on and Coal Co. . 61 Loring v. Davis . . 631, 636 Lovell V. Hicks . , 286, 287 Lovelock V. Pranklyn . . 460 Low-i". Bouverie . , . 141 V. Innes , . 494 Lowe V. London & North "Western Eailway Co. . . 282 V. Peers , . 61 V. Swift . 73 Lowes V. Lush 385 , 386, 414 Lowndes v. Lane . , . 299 Lowry, Re . . . 85 Lowther v. Heaver . . 444 5J. Loxley v. Heath . . 137 Lucas V. Commerford . . 41 ; V. Dixon . . 223 V. Godwin . . 463 t;. Hall . . 157 V. James . 123 124, 231, 377, 380,. 563 u. Martin . , . 123 Luddy's Trustee v. Peard . . 110 Luders v. Anstey . 137 Lukey v. Higgs . . 189 Lumley v. Eavenscroft . 116, 203, 356, 499 PAOE Lumley v. Timms . . . .68 V. Wagner . 191, 368, 369, 370, 371, 372, 373, 495 Lycett V. Stafford and Dttoxeter Eailway Co. .... 508 Lyddall v. "Weston . . .388 Lyde v. Mynn .... 643 Lyle V. Earl of Tarborough . . 564 Lynn v. Chaters . . . .34 Lyon V. Johnson . . . .671 Lyons and Carroll's Contract, Re . 569 V. Blenkin . . . 82 Lysaght u. Edwards . 690,591,604 Lysney v. Selby .... 298 Lytton, Sir E. B., v. Great Northern Eailway Co. . 43, 364 M. Macbetde v. "Weekes . 323, 469, 473, 474 McCaUan v. Mortimer . . . 215 McCalmont v. Eankin . . . 649 McCreight v. Foster . . .97 McOullooh V. Gregory . 392, 454, 624 Macdonald v. Longbottom . . 145 MoGormick v. Grogan . . . 255 McGregor v. McGregor . 653, 659 Mcllray v. Traill . . . .422 Mackay v. Commercial Bank of New Brunswick . . .318 Mackenzie v. Coulson . . . 345 V. Hesketh . 330, 333, 379, 544, 645 McKewan v. Sanderson . . 178 Macki-eth v. Marlar . . 466, 476 L'. Symmons . . . 607 Maclean v. Dunn .... 237 McManus V. Cooke . 44, 222, 262, 271 McMuUen v. Helberg . . .239 McMurray v. Spicer . 145, 474, 480, 564, 570 McNally v. Gradwell . .414, 416 Macnamara v. "Williams . . 69 MoNiell V. Eichards , , . 556 XXXVlll TABLE OF CASES. PAOE MaconcLy v. Clayton . . 460, 462 McQueen v. Farquhar . . 391, 528 MoViokers' Contract, Re . .519 Maddison v. Alderson . 132, 135, 136, 139, 256, 262, 269, 273, 276 Madeleyi;. Booth. . . .533 Magee i;. Atkinson . . .111 Magennis v. Fallon . 389, 482, 534, 581, 583 Magrane v. Arohbold . 66, 67, 180 Main v. Melbourn . . .270 Malins v. Freeman . . . 333 Malone v. Hensliaw . . 603, 605 Manby v. Gresbam Life Assurance Society ..... 38 Manobester Brewery Co. v. Coombs 29 Manchester Ship Canal Co. v. Manobester Eaoecourse Co. . 179, 207, 368, 499 Manifold v. Johnston . . . 519 Manning, Ex parte . . .613 Manser v. Back . 240, 331, 333, 352 Mansfield v. ChUderhouse . . 179 Manson v. Thacker . . . 549 Mardell v. Curtis . . . .95 Margetson v. Wright . . . 302 Markham and Darter's Case . 146 Marlborough, Duke of. Be . . 252 Marlo-w v. Smith . . . .380 Marsden v. Sambell . , 450, 454 Marsh and Earl Granville, lie . 518, 667 V. Joseph .... 237 V. Milligan . 33, 164, 432 Marshall and Salt's Contract, Re . 386 V. Berridge . . 162, 559 V. Broadhurst . . 88 V. CoUett . . .347 V. Corporation of Queen- borough , . 284 V. Marshall . . . 652 V. Sladden . . .110 V. Watson . . . 498 Marson v. London, Chatham, and Dover Railway Co. . . .55 Martin v. Cotter . 296, 388, 512, 514 — V. MitoheU 175, 209, 432, 652 — V. Nutkin . . . ■ . 496 Martin v. Pycroft Martyn v. Hind . Maskell and Goldfinch' Re . . . Mason v. Armitage V. Franklin V. Stokes Bay Eailway Co. Matthews v. Baxter Maturin v. Tredennick MaunseU v. White PAGE . 352 . 81 s Contract, . 385 . 250, 331 . 75 Pier, &c. . 66 . 177 . 324 133, 134, 135, 137 Mawi;. Topham . . 179,539,543 Mawson v. Fletcher 452, 453, 456, 551 Maxted v. Paine 630, 631, 632, 633, 634 Maxwell V. Dulwich College . 284 V. Lady Montacute . 254 V. Port Tennant, &c. Coal Co 646 May V. Piatt . . 345, 362, 353 V. Thomson . . 40, 158, 245 Maynard v. Eaton . . . 632 Mayor, &c. of Drogheda i^. Holmes 284 Mayor, &c. of Kidderminster v. Hardwick 281 Mayor, &c. of London v. South- gate 43, 559 Mayor, &c. of Norwich v. Norfolk Eailway Co. . . 217, 220, 431 Mayor, &c. of Oxford v. Crow . 263, 281 Meadows D. Tanner . . .315 Meara v. Meara .... 432 Melhado v. Porto Alegre, &c. Eail- way Co 237 MeUish v. Motteux . . . 378 Mellor V. Sidebottom . . . 678 Mercantile and Exchange Bank, Re 38 Mercer v. Living . . . .61 Merchants' Trading Co. v. Banner. 335, 359 Meredith v. Wynne . . . 413 Merry v. Nickalls . 631, 632, 633 Mersey Steel & Iron Co. v. Naylor 459 Mestaer v. Gillespie . . . 366 TABLE OF CASES. XXXIX Metropolitan Asylums (Managers of) V. Kingham . . .129 Metropolitan Board v. Ooombes . 158 Metropolitan District Eailway Co. and Cosh, iJe . . . . 488 Metropolitan Electric Supply Co. V. Ginder 373 Metropolitan Eailway Co. v. De- fries . Meux V. Maltby . Mews V. Oarr MeyneU v. Surtees . 516, 607 74, 99 . 238 30, 97, 120, 123, 126, 127, 156 . 570 . 180, 392, 460 Meyrick v. Laws . MiolLoUs V. Corbett Middleton v. Greenwood . . 144 V. Magnay. 556, 557, 621, 622 Midgley v. Coppock . . . 604 V. Smith . . .157 Midland Great Western Eailway of Ireland v. Johnson . . 347 Midland Eailway Co. v. Great Western Eailway Co. . .218 Mildmay v. Hungerford . . 347 Miles V. New Zealand, &c. Co. . 662 MiUard v. Harvey . 264, 265, 268 Miller and Aldworth v. ■ ■ V. Pinlay . MilHgan v. Cooke Mills V. Haywood Milner v. Pield . Milnes V. Gery Milward v. Earl Thanet Minchin v. Nann . Minor, Ex parte . Minton v. Kirwood Miser's Case Modlen v. Snowball Moeser v. Wisker. Mogridge v. Clapp Mole V. Smith Monarch, The Monckton & Gilzean, Be Money v. Jordan . Monk V. Huskisson Monro v. Taylor Sharp . 271 . 265 . 538 476, 480 . 154 24, 151, 153, 155 . 476 . 606 . 396 70, 583 . 322 408, 424 . 623 387, 389 . 68 . 662 452, 600 132, 135 . 596 144, 147, 378, 447, 465, 480, 565, 594 Montaoute, Viscountess, v. Max- well 135, 255 Montague v. Elockton . . . 369 Montefiori v. Montefioj Montgomery v. Eeilly Moore v. Blake V. Crofton V. Hart V. Marrable More V. Morecomb Morehouse v. Colvin Morgan v. Bain . V. Birnie . V. Brisoo . ' V. Griffith V. Holford V. Milman V. Ehodes V. Shaw . Morison v. Turnour Moritz V. Knowles Morley v. Clavering V. Cook Morocco Land and Training Co., Limited, v. Ery . . .345 Morphett v. Jones . 259, 265, 277 Morris v. McNeil .... 503 V. Stephenson . . . 432 • ■ V. Wilson . . . 244, 579 Morrison v. Arnold . . 85, 391 V. Barrow . . . 334 ■ V. UniTersal Marine In- surance Co. . . . 323, 464 Morse V. Faulkner . . . 644 V. Merest . 153, 154, 180, 670 . 132 . 138 . 476 . 445 . 137 447, 449, 478 . 438 . 136 . 460 . 153 . 505 . 337 . 208 30, 73, 164, 260, 261 90, 93 . 615 . 231 . 226, 240 . 187, 334, 505 451, 454, 517, 587 Mortimer v. Bell . V. Capper V. Orchard V. Shorhall V. Wilson Mortlock V. Buller Morton's Case Moseley v. Virgin Moss V. Bainhrigge V. Barton V. Matthews Moulton V. Edmonds . 316 . 198, 400 . 277 . 346 . 510 21, 100, 176, 179, 181, 524, 537, 680 . 449, 636 41, 43, 457 . 79 . 472, 477 . 579, 623 . 416 xl TABLE OF CASES. Moxey v. Bigwood . . 296, 331 Moxhay v. Inderwick . . .189 Moyses V. Little . . . .92 Mozley V. Tinkler . . .130 MulhoUand v. Mayor of Belfast . 179 Mullens v. MiUer . . . .289 Mullet V. Halfpenny . . . 254 Mullings V. Trinder . . 384, 386 Mumford v. Stohwasser . . 99 Mummery v. Paul . . .39 Munday v. Asprey . . . 226 Mundy v. Jolliffe . 259, 268, 277, 278, 421 Munns v. Isle of Wigtt EaUway Co 508, 509 Munro v. Wiventoe and Brigtt- lingsea Eailway Co. . . . 499 Murray v. FlaveU . . .80 V. Parker . . . 344, 346 Murrell v. Goodyear . 341, 410, 577, 582, 585 Musgrave and Hart's Case . . 492 V. McCuUagli . . 569 Muston V. Bradshaw . . 69, 83 Mutual Reserve Fund Life Asso- ciation V. New York Life Assu- rance Co 372 Mycock V. Beatson . . 507, 622 Myers v. Watson .... 406 N. 177 449 94 Nagle v. Baylor .... Nash V. Armstrong V. Dix V. Worcester Improvement Commissioners .... National Exchange Company of Glasgow V. Drew . 290, 292, National Provincial Bank of Eng- land and Marsh, Be . National Provincial Bank of Eng- land V. Marshall Naylor v. GoodaU. . 146, 166, 180 Neale v. Lady Gordon Lennox . 663 56 318 569 60 Gwvn Neale v. Mackenzie V. Neale Neap V. Abbott . Neath New Gas Co. v. Needham v. Kirkham . V. Smith Neill V. Morley Nelson v. Bridges . V. Stocker . , Lord, V. Salisbury PAQB 179, 210, 416, 538 . 267 . 333 608 . 100 . 100 . 117 547, 561 . 304 and Dorset Junction Eailway Co. . 502 Nelthorpe v. Holgate . 73, 91, 108, 110, 311, 456, 522, 540 Nene Valley Drainage Commis- sioners V. Dunkley . 225, 242, 299, 406 Nesbitt i;. Meyer . . .401,402 Nesham v. Selby . . . 162, 247 Nevill V. Snelling. . . .201 Neville v. Wilkinson . . . 132 Newbery v. James . . 38, 646 New Brunswick and Canada Eail- way Co., Limited, v. Conybeare. 318 New Brunswick and Canada Eail- way Co., Limited, v. Muggeridge 33, 41, 309, 645 New Land Development Associa- tion and Gray, Be . . . 385 Newby v. Sharpe . . . .50 Newman v. Hook . . . 397 V. Eogers . . . 467 Newton v. Metropolitan Eailway Co 87 V. Taylor . . . .671 New Windsor, Mayor of, v. Stovell 179 NichoU V. Jones . . . 652, 662 Nicholson v. Bradfield Union . 281 . 499 . 468,477 . 632, 634 627, 628, 632 184, 360, 666, 668, 669 289, 293, 295, 318, 320, 324 Nives V. Nives . . . .37 Noble V. Edwardes . . 463, 464 Noel V, Hoy . . . .581 V. Knapp V. Smith Nickalls v. Furneaux V. Merry . Nickels v. Hancock Nicol's Case TABLE OF CASES. xli PASE Nokes V. Lord Eilmorey . 472, 475 Norfolk, Duke of, c. Worthy 114, 536 Norris c. Chambres , . 51, 52 V. Irish Land Co. . . 5, 6 V. Jackson . 42, 144, 166, 268, 365, 366, 411, 560 North V. Great Northern Eail-n'ay Co. . . . 35, 49 c. Percival . 230,343,492,601 North British Eailway Co. 1). Tod . 406 Northumberland Avenue Hotel Co., Be .... . 237 Norton v. Florence Land and Public Works Co. . 53 V. MasoaH . . .666 r. Serle .... 33 V. White ... 88 V. Wood. . . .135 Norwich, Mayor of, v. Norfolk Eailway Co. . . 217, 220, 431 Nott V. Hill 197 • ■ V. Eiccard .... 474 Nottingham Patent Brick Co. v. . 305, 625 527, 534, 535 . 178, 383 . 270, 271 . 521 . 418 Butler Nouaille v. Flight Noyes v. Paterson Nunn V. Fabian . V. Hancock V. Truscott . Nurse v. Lord Seymour 110, 362, 407 Nutbrown v. Thornton . 31, 34, 36 Oakden v. Pike . . . .587 Oakeley v. Eamsay . . . 560 Oakes v. Turquand . 320, 322, 323 Oceanic Steam Navigation Co. v. Sutherbury . . . .179 O'Connor v. Spaight . . . 448 Ockenden v. Henly . . . 620 Odessa Tramways Co. v. Mendel . 33, 41, .358, 362 O'Fay V. Burko . . . .260 Official Manager of Sheerness . Waterworks Co. v. Poison . 567 PAGE Ogden V. Fossick . 48, 360 Ogilvie 1'. Foljambe 145, 159, 162, 225 , 231, 577 O'Herlihy v. Hodges . 92, 270 Okill V. Whittaker 349 Oldfield V. Pound 375 Oldham v. James . 328 Oliver c. Hunting 243 Olley V. Fisher 353 Olympia, Be 119 Omerod v. Hardman 571 Onions c. Cohen . 457 Onslow ('. Lord LondesboroL g^ ■ 414 Ord V. Johnston . 30, 48 205 ^ v, Noel . 179 O'Eeilly v. Thompson . 268 274 Oriental Inland Steam C 0. r. Briggs 33 120 Ormes v. Beadel . , 669 Ormond, Lord, v. Anderson 157 O'Eorke i'. BoUngbroke 201 O'Eourke v. Percival . , 543 Orr ('. Dickinson . 647 Osbaldiston v. Askew . 525 Osborne v. Harvey 516 , 574 617 + ^ T> ^-r^r^ r.4■^■ 381, 384, 392 389, 488 Osmond v. Fitzroy 117 Ottway V. Wing . 657 Otway V. Braithwaite . 209 Owen V. Davies . 117 612 V. Thomas . 144 146 Oxenden v. Lord Falmouth 598 Oxford, Mayor, &c. of. v. Cr ow . 263, 281 165 229, 405 278, 409 P. Padwick v. Piatt . 71 Pagani, Be . . 117, 430 Page V. Adams . 451 V. Broom . 88, 414 V. Norfolk . . 230 Paget V. Marshall . 345 xlii TABLE OP CASES. PAGE . 265, 422 401, 626, 636, 639 398, 400 456, 550 . 393 290, 549 . 384 130, 207 460, 620 . 599 Pain V. Coombs . Paine v. Hutoliiiison V. Meller Painter v. Mewby Palmer v. Green . u. Johnson 0. Locke . V. Scott . V. Temple Palmerston, Lord, v. Turner Panama, &c. Telegraph. Co. v. India Eubber, &o. Co. 306, 457, 460, 461 . 397 . 74 . 317 V. Crystal 156, 167, 446 Re . .5 198, 214, 341, 669 . 468 . 172 . 131 273, 275 142, 165, 418, 421 . 381 Parkin, Re, HUl v. Schwarz . 100 — — - V. Tborold 463, 464, 466, 467, 473, 478, 484 Parkinson v. Lee . . . .377 Parr v. Applebee .... 650 • V. LoTOgrove . . 582, 587 Partridge v. Strange . . .95 Paterson v. Gandasequi . .109 v. Long . 68, 70, 303 Patman v. Harland . .160, 576 Paton V. Brebner .... 546 V. Eogers . . . 584, 593 Patrick v. Milner . . 467, 470 Pattle V. Anstruther . . .150 V. Hornibrook . 118, 123, 233 Pawley and London and Provincial Bank, Re . Paxton V. Newton Payne v. Banner . Peacock v. Evans V. Penson Paramore v. Greenslade Pare v. Clegg Parfitt V. Jepson . Paris Chocolate Co Palace Co. Paris Skating Eink Co Parken v. Whitby Parker v. Frith . V. Palmer ' V. Serjeant V. Smith . V. Taswell V. Tootal . Peake, Ex parte . 84 . 41, 434 . 469 . 199 68, 188, 407 . 172 PAOB Pearce v. Bastable's Trustee in Bankruptcy . 98,415 V. Gardner . 147, 242, 244 V. Watkins . . .71 V. Watts . . . .166 Pearl Life Assurance Co. v. Buttenshaw . . . 506, 560 Pearne v. Lisle . . . .34 Pearson v. Pearson . . . 253 Peek V. Gurney . 290, 292, 293, 310, 312, 314, 327 Peele, Ex parte . Peers v. Lambert . Pegg V. Wisden . Pegler v. White . 79 . 625 473, 482, 575 . 385 Pell V. Northampton and Banbury Junction Eailway Co. . 502, 615 Pelly and Jacob's Contract, Be . 601 Pember v. Mathers . . 253, 352 Pembroke v. Thorpe 37,45,187,262,274 Pengall, Lord, v. Eoss . . 270 Penn v. Lord Baltimore . 48, 51 Penny v. Fox .... 674 People's Garden Co., Re . . 501 Peperno v. Hurmiston . . . 372 Percival v. Wright . . .307 Perfect v. Lane .... 200 Perkins v. Ede .... 525 Perriam v. Perriam . . . 547 Persse v. Persse .... 643 Peter v. NicoUs . . . 178, 387 Peto V. Brighton, Uckfield, and Tunbridge Wells EaUway Co. . 205, 371 Petre v. Buncombe . . 51, 69 , Lord, V. Eastern Counties Eailway Co. Phelan v. Tedcastle Phelps V. Prothero V. White . Phillimore v. Barry . 103 . 162 504, 547 331, 549 . 232 Phillips V. Alderton . . . 259 V. Caldcleugh . .511, 514 ■ V. Clark . . . .598 V. Duke of Buckingham . 93 V. Edwards . 274, 275, 652 V. Everard . . 88, 414 V. Homfray . . 237, 308 V. Howell . . . 493 TABLE OF CASES. xliii PMllips V. Miller . ('. Silvester PMUipson V. Gibbon Ptipps V. Cbild . V. Jackson Physician's Case . Pickard v. Sears . Pickering v. Bishop of Ely V. Dowson . V. Pickering PAGE . 537 . 603, 605 579, 582, 585 409, 567, 571 . 38 47, 81 132 205 . 378 . 171 239, 243 . 140 Pierce v. Corf Piggott V. Stratton Pigott and Great "Western Eail- way Co., Be . 56, 57, 595, 612 . 239 464, 482, 594 . 671 346, 350 . 461 . 146 . 199 . 671 . 255 . 236 . 304 36, 37, 42, 469 . 400 . 638 . 357 303, 375 Pike V. Wilson Pincke v. Curteis Pini V. Eoncoroni Pitoaim v. Ogbourne Planche v. Colburn Plant V. Bourne . Playford o. Playford Plews V. Baker Podmore v. Gunning Pole V. Leask Polhill V. Walter . PoUard v. Clayton 28, Poole V. Adams . V. Middleton V. Shergold Pope V. Garland . V. GreatEasternEailway Co. 616, 617 V. Mason .... 684 ■ V. Eoots . . . .400 Popple and Barratt's Contract, Be 488 Portarlington, Lord, v. Soulby . 52 Portman v. Mill . . 525, 550, 584 Portmore, Earl of, v. Taylor . 200 , Lord, V. Morris . . 350 Portuguese Copper Mines,Limited, In re, Ex parte BAiman . 129,677 Post 1^. Marsh . . 241,247,328 Potter V. Brown . . . .213 V. Commissioners of Ee- venue . . .39 . V. Crossley . . . 579 V. Duffield . 148, 150, 225 ■ V. Parry .... 385 ■ V. Peters . . . 239, 243 PAOH Potter V. Potter .... 251 V. Sanders . 82, 99, 131 Poussard v. Spiers . . . 428 PoweU V. Dillon .... 241 V. Doubble . . .536 V. EUiot 528, 536, 544, 545 V. Knowler . . .215 V. Lloyd . . . 416, 497 V. Lovegrove . 165, 265, 422 V. Marshall, Parkes & Co. . 415, G20 V. Martyr .... 595 V. Powell . . . 451, 520 V. Smith . . . 335, 347 Powell Duffryn Steam Coal Co. v. TafE Vale Eailway Co. . 38, 42 Poyntz V. Fortune . . 157, 422 Prebble v. Boghurst . . .60 Prendergast v, Turton . . . 468 Preston v. Liverpool, Manchester, and Newcastle Eailway Co. . . 103, 105, 106 V. Luck . . . .336 Pretty v. Solly .... 585 Price V. Assheton . 136, 159, 416, 446, 497 V. Cox'poration of Penzance . 45 Dyer Griffith . Ley . Macaulay . 338, 347, 350, 445 . 146, 356 . 342 291, 302, 517, 535, 536 . 545 . 258, 277, 280 . 383, 385 . 670 V. North V. Salusbury V. Strange . V. Williams . Pride v. Bubb . . . .651 Prince of Wales Assurance Co. v. Harding 221 Prior V. Moore . . . .235 Pritchard v. Merchants', &c. Life Assurance Society . 394 V. Ovey . . . 144 Proctor V. Bayly .... 555 Prole V. Soady . . . .139 Propert v. Parker . . . 231 Proprietors of English and Foreign Credit Co. v. Arduin . . . 124 Prosser v. Edmonds . . .96 xliv TABLE OF CASES. PAOB Prosser v. Watts . . . .389 Prothero v. Phelps . . 554, 555 Pryce-Jones v. Williams . . 516 Pryer v. Gribble . . . 663, 665 Pryse v. Cambrian EaUway Co. . 615 Puckett and Smith's Contract, Se . 532 Pullen V. Eeady .... 347 Purser v. Darby . Pusey V. Pusey . Pyke V. Williams . Pym V. Blackburn V. Campbell . Pyrke v. Waddingham Q. . 85 . 33 . 265 . 331 118, 233, 443 382, 383, 384, 385 Queensland Land and Coal Co., Re 283 E. Eadclif]?e v. Warrington . 464, 473 Eadford v. Willis . . 384, 389, 392 Eadnor, Earl of, v. Shafto . . 251 Eae V. Joyce .... 201 Eaffety v. Schofield . 410, 589, 606 Baffles V. Wickelliaus . . 329, 344 Eamsay v. Margrett . . . 659 Eamsbottom v. Gosden . . 339 Eamsden v. Dyson . . 236, 266 V. Hirst .... 545 Eamsgate Victoria Hotel Co. u. Montefiore . . • .127 EandaU v. HaU . . . 407, 408 V. Morgan . .133, 248 Eanelagh, Lord, v. Melton . . 477 Eanelaugh v. Hayes . . . 674 Eanger v. Great Western Eailway Co 64, 318 Eankin v. Huskisson . . . 495 . V. Lay . . . 418, 422 Eaphael v. Thames Valley Eail- way Co 182 EasMall v. Ford . Eawlings v. Lambert Eawlins v. Wickham Eaymer v. Preston Eayner v. Grote . V. Julian . ■ V. Preston V. Stone . Eaynes v. Wise . Eeddaway v. Banham Eeddin v. Jarmyn Eedding v. Wilkes Eede v. Oakes Eedgrave v. Hurd 287, 294, 295, 298 Eedshaw v. Governor, &c. of the Bedford Level . . . .170 Eeese Eiver Silver Mining Co. v. Smith .... 289, 321 Eeeve v. Berridge . . 161, 377 v. Lisle .... 645 Eeeves f. Greenwich Tanning Co. 408 Eegent's Canal Co. v. Ware . 56, 424, 595 Eeg. V. Eitson FAOE . 347 . 457 290, 320 .. 400 . 91 . 76 400, 590 . 38 . 503 . 306 . 267 . 274 179, 624 V. Tart . Eeilly v. Garnett Eeiner v. Marquis Eemfry v. Butler Eemnant v. Holt Eendeau v. Wyatt Eennie v. Morris Eeuss V. Picksley Eevell V. Hussey Eex V. Marsh Eeynard v. Arnold Ee3Tiell v. Sprye . Eeynolds v. Nelson V. Waring of Salisbury 422 233 99 53 . 637 . 580 . 250 . 632 . 130 18, 171, 184, 399 . 316 . 400 . 303, 309 . 473, 475, 504 . 277 . 514, 584 Ehodes v. Ibbetson Ehymney Eailway Co. v. Brecon and Merthyr Tydvil Junction Eailway Co 459 Ehys V. Dare Valley Eailway Co. 611 Eice V. O'Connor . . . 235, 237 Eich V. Gale .... 475 V. Jackson .... 352 Eichards v. North London Eail- way Co. . . . 333 — i'. Porter . . .248 TVRT.f. OF r'\?:T'^«!. XI V Eicliardsoii r. Eyton V. Smith Eicketts v. Bell . Eidgway !■. Gray . r. Wharton. PAGE . 663 . 156, 357 161, 203, 340 527, 534, 535 157, 227, 228, 235, 236, 237, 241, 242, 244, 479, 480 Eidley v. Eidley . . . .133 Eigby V. Connol . . 46, 49, 216 V. Great "Western Eailway Co. 362 Eight d. Fisher i: Cuthell V. Cuthell . Eiley to Streatfield, Be . Eishton v. Whatmore . Eoake v. Kidd Eoberts v. Berry . r. Karr . V. Marchant V. Massey V. Wyatt . . 678 . 143 . 595, 600 . 239, 243 . 381 466, 470, 471 . 407 84, 85 . 595 . 451 . 612 Eobertshaw v. Bray Eobertson v. Great Western Eail- way Co. . . 71 V. Skelton . 397, 598, 606 Eobinson v. Galland . . . 505 V. Page 341, 352, 444, 445 — V. WaU . . .315 King & Co. V. Lynes . 656 Eobson V. Collins .... 447 V. Drummond . . 92, 460 Eoohefoucauld v. Boustead . 223, 252 Eock Portland Cement Co. v. Wil- son . Eodger v. Harrison Eofiey V. Shatcross V. Shollcross Eogers v. Challis . V. Waterhouse V. Wilmot. Eolfe V. Peterson . Eook V. Warth Eooke V. Lord Kensington Eoots V. Lord Dormer Eoper V. Bartholome-w Eose t). Calland . V. Cunynghame V. Watson . Eosenbaum v. Belson iRosenberg v. Cook . 556 . 621 . 355 . 355 22, 23, 556 . 383 . 496 . 66 . 37 . 345 . 356 63, 64, 65 . 383, 571 . 242 589, 621, 622 . 236 . 566 58, 230, 236, 245 Be. 322 . 122 128 663 182 599 53 64 PAGE Eosher o. Williams . . 208, 387 Eosse, Earl of, v. Sterling . . 444 Eossiter v. MUler . 118, 125, 148, 149, 230 Eoundwood Colliery Co., Eoutledge v. Grant Eowe V. Wood Eowland v. Chapman . Eowley c. Adams Eowney v. Alder . Eoy V. Duke of Beaufort Eoyal Bristol, &o. Building Society V. Bomash .... Eoyal British Bank v. Turquand . 220, 221 Eoyou V. Paul Eudd V. Lascelles Eum.ble v. Heygate Eummens v. Eobins Eussell ('. Harford Eyall V. Eyall . Eyan v. Daniel V. Mutual Tontine, elation Eyle V. Brown V. Swindells S. Sabin v. Heape . Sainsbury v. Jones Sainter v. Ferguson St. John, Lord, v. Lady Sale V. Lambert . Salisbury v. Hatcher Samuda v. Lawford Sandbach and Edmondsou's Con- tract, Be . . . . 488, 519 Sander and Walford's Contract, Be 590 . 281 . 137 . 492 . 145 . 580 . 138 . 236 559 . 77, 423 537, 544, 546 . 147 127, 157, 229 . 515 . 254 . 614 &c. Asso- 28, 42, 44, 360 . 199 . 199 . 487 625 , 49 'St. John . 660 149 . 208, 582 . 166, 560 Sanders v. St. Neots Union Sands v. Soden Sargent, Ex parte Sari V. Bourdillon Saul V. Bolton Saunders v. Cramer V. Denoe xlvi TABLE OF GASES. Saunderson v. Cockermouth and Workington Eail- way Co. V. Griffltlis V. Jackson Savage v. Brooksopp V. Carroll . V. Foster . V. Taylor . Savile v. Savile SaviUe v. Tancred Saxon V. Blake Life Assurance Co., Be . 43, 165 . 237 231, 232, 244 . no 87, 265, 279 . 267 . 170 . 195, 198 34 111 348 Ancior Case Sayers v. OoUyer . 186, 366, 477, 555 Scales, Lord, v. Dame Katherine Pelbrigge and John Dame . 684 Schneider v. Heath . 303, 314, 378 V. Norris . . . 231 Scott V. Alyarez . 489, 490, 569, 624 V. Corporation of Liyerpool . 424 V. Dixon . . . .293 V. Hanson . V. Langstaffe V. Littledale V. Lord Ebury V. Morley V. Moxon V. Eayment . V. Scott 296, 528 . 94 . 336 . 237 656, 657 . 487 262, 363, 556, 645 . 132 and Alvarez' Contract, 5e . 18, 489, 490, 519, 569, 624 and Bave's Contract, Be . 535 Scottish North-Eastern Railway Co. V. Stewart . . 184, 206, 426 Scrimgeour's Claim. . . . 460 Scully V. Lord Dundonald . . 665 Seagood v. Meale .... 247 Seaman v. Vawdrey . . . 388 Seaton u. Booth .... 336 V. Mapp . 468, 471, 512, 514 SeaweU v. "Webster . . 429, 430 Sedgwick v. Watford, &c. Eailway Co 70, 508 Seear v. Lawson . . . .96 Selby V. Selby . . . .231 SeUs/v. Sells . . . .345 Seton V. Slade 209, 464, 466, 482, 580 Sevin v. Deslandes . . . 370 Shackle v. Baker . Shackleton v. SutclifEe Shannon v. Bradstreet Shapland v. Smith Shardlow v. Cotterell Sharman v. Sharman Sharp V. Adcock . V. Carter V. Milligan . ■ V, Wright . Shaw, Ex parte . V. Fisher 33, 72, 449, 565, 636 ■ V. Foster . ■ V. Thackray ■ and Corporation of PAGE . 39 376, 534 205, 260 . 380 143, 145 . 267 . 385 . 95 236, 479 . 478 . 492 97, 590 99, 177 Bir- mingham, Be . . . .611 Sheard v.Tenables . . 513, 624 Sheerness Waterworks Co. , Official Manager of, v. Poison . , 567 Sheffield Gas Consumers' Co. v. Harrison . 33, 41, 645 Nickel Co. v. Unwin . 324, 326 V. Lord Mulgrave . 381, 382 Shelbourne, Lady, v. Lord Inchi- quin 346 Shelfer v. City of London Elec- tric Lighting Co. Shelley v. Nash . Shepheard v. Walker . Shepherd v. Gillespie . V. Keatley ■ Sheppard u. Doolan V. Murphy . 555 . 200 . 479 . 635 . 568 . 384 626, 633, 638, 640 Sherwin v. Shakspear . 588, 598, 599, 602, 603, 608 Shillibeer v. Jarvis . . , 268 Shirley v. Davis .... 524 V. Stratton . . 313, 524 Shrewsbury and Birmingham Eailway Co., Directors of, v. Directors of North- Western Eailway Co 217 Shrewsbury and Birmingham Eailway Co. v. London and North-Western Eailway Co. . 182, 192, 214, 218, 480 TABLE OF OASES. xlvii Shrewsbury and Birmingliam Eailway Co. v. Stour Valley Eailway Co 186 Shrewsbury and Talbot Cab, &o. Co. V. Shaw . . . .353 Shrewsbury, Earl of, v. North StafPordshire Eailway Co. 105, 107 Siboni V. Kirkman . . .88 Sichel V. Mosenthal . . 22, 645 V. Eaphael . . . .53 Sidebotham, Ex parte . . .573 V. Barrington . . 581 Sidney ■;;. Clarkson . . . 521 Simmonds v. Swaine . . . 437 Simmons v. Cornelius . . . 270 Simpson v. Hughes . . .124 1). Sadd . . . .577 V. Terry. . . . 505 Sims V. Landray . . . 238, 239 Simultaneous Colour Printing Syndicate ■;;. Foweraker . .283 Skelton v. Cole . . 120, 148, 244 Skidmore v. Bradford . . . 133 Skinner v. City of London Marine Insurance Corporation . 637, 638 ■!;. M'DouaU . 125,145,228 Slack V. Midland Eailway Co. . 561 Sloper V. Fish . . .381, 385 Small V. Attwood . . .111,574 V. Torley . . . 387, 567 Smith V. Batsford . . .473 V. Birmingham and Staf- fordshire Gas Light Co. 281 V. Butler . . . 425, 623 V. Capron . . . 161, 576 V. Chadwick . . 288, 294 V. Clarke . . 108, 304, 316 V. Death . . . .385 V. Garland. . 178, 208, 387 V. Harrison . . 173, 566 • V. Hughes .... 312 ij. Jackson and Lloyd . 612 V. Jeyes .... 448 V. Kay . . . .291 V. Land, &c. Corporation . 294, 297 ■;;. Lloyd . . . 612, 614 , V. Lucas .... 652 Smith V. Neale V. Peters . V. Phillips . V. Eobinson V. Toloher . V. "Wallace V. Watts . V. "Webster V. "Weguelin ■ V. "Wheatcroft PAGE . 130 152, 154, 498 . 99 569, 570 . 530 , 454, 620 . 519 230, 240 . 51 337, 338 241, 291 . 665 . 180 . 253, 340, 351 43, 144, 366, 559 . 69 451, 453 94 Smout V. Ilbery . Smythe v. Smythe Sneesby v. Thorn . Snelling v. Thomas Soames v. Edge . Sober V. Kemp .... Solvency Mutual Guarantee Co. v. York 98 Somerset, Duke of, v. Cookson . 34 V. Gourlay . 418 Somerville's Estate, Be . . 528 Soper V. Arnold . .516, 620, 625 Souter V. Drake .... 160 South African Territories, Ltd., v. Wallington . . . .23 South Eastern Eailway Co. v. Knott .... South Hetton Coal Co. v. Has well, &o. Co. South of Ireland Colliery Co. v Waddle .... South Wales Eailway Co. v. Wythes . 29, 42, 45, 157, 165, 167, 360, 670 South Yorkshire Eailway and Ei ver Dun Co. V. Great Northern Eail- way Co 217 Southampton, Lord, v. Brown . 79 Southby V. Hutt . . 515, 516, 565 Southcomb v. Bishop of Exeter . 478, 480, 481, 624 Southern v. Harriman . . .162 Spain, King of, v. Machado. 71, 108 Sparks v. Liverpool Waterworks Co 469 206 120 281 Spence v. Hogg . . 99 Spencer v. Topham . 388 Spicer v. Martin . . 141 Spiller V. SpiUer . . 498,499 xlviii TABLE OF CASES. Spindler and Mear's Contract, Re . 456 Spoiie V. Whayman . . .23 Sprake v. Day . . . .88 Spratt V. Jefiery .... 568 Springwell v. Allen . . .378 Sprye V. Porter . . . .96 Spurrier v. Hancock . 467, 477, 478 Squire v. Campbell . . 352, 406 V. Whitton . . . 148 Stankope's, Lord, Case . . 526 Stanley v. Chester and Birkenhead 72, 98, 103, 436, 450 . 175 379, 573 . 171 . 648 457, 524 . 125 Bail way Co. . Eobinson 378 342 Stanton v. Tattersall Stapilton v. Stapilton Stapleton v. Haymen Stapylton v. Scott Starke, Ex parte . . . . Starr-Bowkett Society and Sibun, Re 451, Stedman v. Collett Steele r. North Metropolitan Eail- ■way Co. V. North Metropolitan Tram- way Co Steevens' Hospital v. Dyas . Stent V. BaiHs .... Stephens v. Green -v. Hotham V. Olive . Stevens v. Adamson V. Benning • Guppy ■ 452 354 672 3, 256 V. Stevenson v. McLean ■ ■ V. Newnham. Stewart v. Alliston 21, 146, 517 V. Denton . . . , • V. Kennedy V. Smith . Stilwell V. Wilkins Stooken v. Collin . Stocker v. Brocklebank V. Dean . V. Wedderbum Stockley v. Stockley . Stokes V. Moore . Stone V. Godfrey . 673 259 . 400 . 48 88, 196, 414 . 659 . 377 . 92 . 573 . 128 . 321 636 . 265 336, 522 . 474 . 194, 195 . 126 47, 48 . 93 41, 205, 359, 374, 496 267, 268, 347 . 233 . 347 PAGE Stone V. Smith . . . .459 Storer v. Great Western Eailway Co 43, 187 Storey v. Waddle .... 486 Storry v. Walsh .... 599 Stourton, Lord, v. Meers . . 580 Stowell V. Eobinson . . . 463 Strafford, Earl of, and Maples . 601 Stratford v. Bosworth Stray v. Eussell . Street v. Morgan . ■y. Eigby . Strickland v. Turner Stuart, Lord James, 120, 158, 226 401, 637, 638 . 630 . 670 . 395, 402 . London and North-Western Eailway Co. 28, 167, 187, 206, 426, 478, 481 Studds V. Watson Studholmes v. Mandell Sturge V. Midland Eailway Co. 244 438 30, 40, 168 314 Summers v. Griffiths . Summerson, Re, Downie v. Sum merson 333 Surcome v. Pinniger 248, 267, 268, 273 Sutherland v. Briggs . 268, 280, 538 Sutton, Ex parte . Swain v. Ayres , Swaisland v. Dearsley . Swan, Ex parte . Sweeney's Estate, Re . Sweet V. Lee V. Meredith Swinfen v. Lord Chelmsford V. Swinfen Swire V. Francis . Syers v. Brighton Brewery Co. Sykes v. Beadon . Symonds v. James V. Jenkins Synge v. Synge . 414 . 419 . 335 . 240 647, 607 231, 232 . 606 . 664 49, 664 318 499 . 215 515, 619 . 578 100, 138 T. Tacon v. National Standard In- vestment Co. . . . g22 Tadcaster Tower Brewery Co. u. "Wilson .... 426, 468 TABLE OF CASES. xlix Tailby v. Official Eeoeiver Talbot V. Ford . 333, 334, 333, 561 . 451, 454 Tamplin v, James Tanner v. Smith . Tanqueray- Willaume and Landau, Be 392 Tasker v. Small . . 68, 69, 73 Tatham «). Piatt . . . 119,168 Tawney v. Crowther . . 226, 243 Taylor v. AsMon . . . .289 V. Beech . , . 248, 271 V. Brown . . . 472, 473 V. Caldwell . . .397 V. Eokersley . . .22 V. Gilbertson . . .168 V. Martindale . . 512, 567 V. Neville . . . .37 ■ V. Portington . . . 166 V. Salmon . 74, 110, 112 V. Stibbert . . .98 — V. Stray . . . 401, 639 V. Taylor 657 V. Young .... 674 Tebbutt V. Potter . . .663 Telford v. Metropolitan Board of Works 673 Tenant v. Elliott . . . .215 Tendring v. London . . . 581 Tennent v. City of Glasgow Bank. 322 Terry and White's Contract . 17, 531, 537, 542 Tewart v. Lawson . . . 599 Thackwell v. Gardiner . . . 652 Thackwray and Young, Re . 385, 389 Thames Ironworks Co. v. Patent Derrick Co 119 Thomas v. Blackman . . 122, 478 V. Brown . . . 149 V. Bering . 178, 211, 227, 229, 541, 542, 544 v. Williams . . .502 Thompson and MoWiUiams' Con- tract, Re . . . 389 V. Blackstone . .179 V. Guyon . . 419, 421 V. Noel . . .666 V. Einger . . 50, 489 V. Whitmore . . 345 F. PAGE 15, 35 . 191 FAQE Thomson v, Thomson . . .215 Thorn v. Commissioners of Works 34 Thornbury v. Bevill . 39, 121, 127 Thornett v. Haines . . 315, 316 Throckmorton v. Throckmorton . 685 ThurneU v. Balburnie . . . 153 Thynne, Lady E., v. Earl of Glen- gall 264 Tibbatts v. Boulter . . .458 TUdesley v. Clarkson . . 377, 405 TUlett V. Charing Cross Bridge Co. 152, 158 Tilley v. Thomas . TiUy V. Peers Tindal v. Cobham Todd V. Gee . i;. Midland G. W. Ireland Toft V. Stephenson V. Stevenson Toler V. Slater ToLhurst V. Associated . 470 . 195 614, 615, 617 . 554, 625 Eailway of . 44 618 . 618 . 651 Portland Cement Manufacturers . . 92 Toller V. Carteret .... 52 Tolson V. Sheard . . . .179 Tomkinson v. Staight . .257, 280 Tomlinson v. Manchester and Bir- mingham Eailway Co. . 191, 615 Toole V. Medlicott . . 268, 277 Torrance v. Bolton . 170, 326, 342, 512, 625 Torret v. Cripps .... 231 Torrington, Viscount, i\ Lowe . 634 Touche V. Metropolitan Eailway Warehousing Co. . . 80,119 Towle V. Topham . . . .149 Townend v. Toker . . .76 Townley v. Bond .... 571 Townsend's Case .... 126 Townsend v. Champernowne . 87 Townshend, Marquis, ?;.Stangroom 330, 346, 350, 352 Traill v. Baring . . . .309 Trant v. Dwyer . . . .421 Trappes v. Cobb . . • .180 Trefusis v. Lord Clinton . . 613 Trevor v. Whitworth . . . 217 Trowell u. Shenton . . -255 Trower v. Newcome . . . 295 d TABLE OF CASES. PAOE Trueman v. Loder . . , 240 Tubbs V. Wynne .... 604 Tucker v. Vowles . . . 407 Tumbull, Me, Turnbull v. NicholaB 656 Turner and Skelton, Be . . 549 V. Green . 22, 307, 315, 662 V. Harvey . . 182, 314 V. Marriott . 685, 622, 624 V. May . . .77, 203 V. Eobinson . . .76 • V. Turner .... 535 V. West Bromwioh Union. 300 V. Wright . . . 498 Turpin v. Chambers . . . 452 Turquand v. Ehodes . . 379, 573 Tweedle v. Atkinson . . .81 Twigg V. Fifield . . . .396 Twining v. Morrice . 170, 176, 378 Tyler v. Tates . . . .201 U. IJDELli V. Atherton Underhill v. Horwood . Underwood v. Hitchcox Ungley v. Ungley Union Bank v. Kent . V. Munster Upperton v. Niokolson . 290 . 196 . 142 . 267 . 99 . 318 472, 564 Urquhart v. Macpherson 321, 324, 326 V. Van v. Corpe . . 303, 341, 625 Van Praagh v. Everidge . 333, 336 Vancouver v. Bliss . .381, 580 Vandenanker v. Desborough . 92 Vansittart v. Vansittart 360, 652, 660 Vaughan v. Thomas . . . 195 Vauxhall Bridge Co. v. Earl Spencer 103 Venn v. Oattell . . . .466 Vere v. Ashby , , . . 237 Vernon v. Hallam V. Keys . V. Stephens Verrell's Contract, He Vesey v. Elwood . Viokers v. Hand . V. Vickers Vigors V. Pike Vincent v. Godson Viney v. Chaplin . Viret V. Viret Vivers v. Tuck Vouillon V. States Vyner v. Hoylake Eailway Vynior's Case Co PASB . 39 . 313 463, 467 . 386 . 396 699, 600 154, 670 . 300 . 52 . 500 . 137 . 646 . 346 . . 508, 509 . 240 W. Waddell's Contract, Be . . 488 Waddell i;. Wolfe . . 611,569 Wakefield v. Llanelly KaUway and Dock Co 669 Wakeman v. Countess of Rutland 85 Waldron v. Jacob . . 99, 145 Walker v. Barnes . . . 431 V. Bartlett . . 33, 627 V. Eastern Counties Eail- way Co. . 31, 124, 144 V. Jeffreys . 404, 420, 421, 468 V. Walker . . 263, 362 V. Ware, Hadham, and Buntingford Eailway Co. . . . 608, 622 and Oakshott'e Contract, . 489, 620 Be . . . WaU's Case . Wall V. Bright . V. Stubbs Waller v. Hendon Wallis V. Day V. Sarel V. Smith ■ V. Woodyear . 126 . 690 95, 289, 296 110, 112, 236 . 46 . 612, 613 . 61 . 675 Be and Barnard's Contract, . 488, 489, 490, 521 TABLE OF CASES. li PAQE Walpole, Lord, v. Lord Orford . 100, 134, 142, 263 Walrond v. Walrond 48, 374, 659, 660 Walters v. Morgan . 313, 314, 666 V. Ndrthem Coal Mining Co 401 V. Tipton. . . .616 Wankford v. Fotterley . . 137 Want V. Stallibrass . 516, 517, 624 Ward and Henry's Case . 33, 492 and Jordan's Contract, Re . 307, 312, 425 V. Ghrimes .... 587 V. Wolverhampton Water- works Co. .... 477 Warde v. Dickson V. Dixon . . 387 . 387 255, 271, 273 . 200 Warden v. Jones . Wardle v. Carter . Ware v. Aylesbury and Bucking- liani Eailway Co. 508, 509 V. Grand Junction Water- works Co. .... 672 Waring u. Manchester, Sheffield, and Lincolnshire Eailway Co. . 359, 364 Warlow V. Harrison . . . 127 Warner v. White . V. Willington 130, 148 Warren v. Richardson Warwick v. Hooper V. Eichardson Waterlow v. Bacon Watkins v. Maule Watson V. Cox V. King . V. Marston V, Miller V. Eeid . Watt V. Evans Watts V. Ainsworth V. Watts . Wanton v. Coppard WeatheraU v. Gearing Webb V. Clark . t). Direct London and Ports- mouth Eailway Co. . 28, 167, 183, 187, 426 . 437 120, 121, 127, 244, 247, 248 . 577 . 455 . 674 . 500 . 22 . 506 . 241 190, 342 . 632 478, 481 269, 270 . 229 , 56 300, 458 95, 416, 432 . 61 Webb V. England V, Hughes . V. Kirby Webster v. Cecil . V. Dillon V. Webster 149 PAQE . 47 470, 483 622, 624 . 333 . 368 . 273 -and Jones' Contract, Be 488 391, 613 . 189 . 207 . 184 . 110 232, 247 WeddaU v. Nixon Wedgwood v. Adams . Weeding v. Weeding . Weekes v. Gallard Weise v. Wardle . Welford v. Beazeley Wellesley v. Wellesley Wells V. Chelmsford Local of Health . V. MaxweU. (No. 1) V. MaxweU (No. 2) Wenlock, Baroness, v. Eive: Co Wentworth'V. Bullen . V. Cook Wesley v. Walker Western v. Eussell 659 Board . 57 471, 473 . 593 Dee . 217 . 119 . 89 162, 559 . 209, 231, 245, 538 Scotland ■;;. . 318, 323, 324 Western Bank of Addie Western Wagon and Property Co. t;. West 23 Westmacott v. Eobins . . 544, 625 Westmeath's Case, Lord . . 660 Westmeath v. Salisbury . . 658 , Earl of, V. Countess of Westmeath . . . 658, 659 West Midland Eailway Co. v. Nixon ... 73, 82, 83 . 477 467, 468, 623 . 642, 643 . 274 . 538 Weston 0. CoUins V. Savage Wethered v. Wethered Whaley v. Bagnall Wheatley v. Slade V. Westminster Brymbo Coal Co 41 Wheeler v. D'Esterre . . .158 V. Home . . . 604 V. Trotter ... 40 Wheelton v. Hardisty . . .291 Wheler v. Huchynden . . . 683 Whitbread v. Brockhurst . . 260 d2 Hi TABLE OF CASES. PAQB WHtbread & Co., Ltd., v. Watt . 450, 620, 621 Wliite and Smitt's Contract, Se . 161, 377, 512 White V. Boby . . .46, 558 • V. Cuddon . . . 180, 552 V. Damon . . .18, 196 V. Garden . . .322 V. M'Mahon . . .162 V. Proctor . . .238 Whiteoliurcli v. Bevis . . 264, 255 Whitetead v. Izod . . . 640 Whitemore v. Whitemore . . 550 Whittaker v. Fox . . . 445 V. Howe . . .39 V. Kershaw . . . 656 Wiitwood Chemical Co. v. Hard- man . . .47, 369, 370, 372 Wickham v. Bvered . 614, 615, 617 Wiggins V. Lord . Wigleyi;. Blackwal Wilbraham. v. Livesey Wilcooks V. Carter Wilcox V. Eedhead Wilde V. Fort V. Gibson . Wilding V. Sanderson Wilkes V. Wilkes . Wilkinson v. Clements . u. Lloyd V. Torkington 113, 114 . 437 . 570 . 500 . 226 . 463 . 286 329, 332, 336, 343 . 659 358, 362 . 637 . 402 154, 670 . 170 Wilks V. Davis Willaii V. Willan . Willats V. Busby .... 76 WiUcox V. Bellaers . . .381 Willesford ■;;. Watson . . .671 William Eobinson & Co., Ltd., v. Heuer . . .61, 368, 373 Williams, Ex parte . . .79 V. Aylesbury and Buck- ingham Eailway Co. 502, 608, 509 V, Brisco . . 405, 425 V. East London Railway Co 604 V. Edwards . . 661, 625 V. Evans . . .268 V. Glenton . 598, 599, 600 Williams v. Jones V. Jordan V. Lake . ■ V. Owen PAQB . 350 . 148 . 148 . 263 V. St. George's Harbour Co. . 103, 104, 106, 214 V. Scott . . . 383, 385 ■ V. Shaw. . . -457 V. Snowden . . . 487 V. Steward . . .25 ■ V. Walker . . .652 V. Wheeler . . .223 ■ V. Williams . 38, 126, 131, 171, 203, 267, 476, 646 V. Wood . . 520, 621 Williamson v. Wootton . . 168 WiUingham v. Joyce . . 414, 416 WUlis V. Willis . . . .254 WiUmott V. Barber . 179, 346, 432 Wills V. Stradling. 259, 264, 267, 270 Wilmot V. Wilkinson . . . 565 Wilson V. BeUairs . . . 583 V. Clapham . . 593, 603 ■;;. EuUer . . . .290 • V. Furness Eailway Co. . 43 V. Kearse .... 204 V. Keating . . . 119 i;. Lord Bury . . . Ill V. Northampton and Ban- bury Junction Eail- way Co. . . 43, 660 ■ — V. Short . . .96, 302 V. Thomson . . 76, 83 V. Tumman . . . 237 V. West Hartlepool Eail- way Co. . 266, 284, 361 V. WiUiams 622, 523, 638, 641 V. Wilson . 51, 600, 658, 659 Wilsons and Stevens' Contract, -Be 489, 561, 601 Winch V. Birkenhead, Lancashire, and Cheshire Junction Eailway Co. . . 97 V. Winchester . . . 352 Winchester, Bishop of, v. Mid- Hants Eailway Co. . 68, 70, 82, 83 Wing V. Tottenham and Hamp- stead Junction Eailway Co. 508, 609 Winn V. BuU . . . 227, 229 TABLE OF CASES. liii PAGE Winnington v. Briscoe . . 212, 399 Winter v. Blades .... 610 Wise V. Piper .... 384 Wiseman u. Eoper . . . 641 Withers v. Eeynolds . . . 459 Witty V. Cottle . . 28, 32, 467 WoKe V. Matthews . . .216 Wolverhampton and Walsall Eail- way Co. V. London and North Western Eailway Co. 15, 363, 371 Wolverhampton Corporation v. . 44 Emmons . Wood V. Abrey V. Beard V. Bernal V. Griffith V. Midgley . V. Eicliardson •;;. Eowe V. Scarth V. White Woodgate v. Watson . Woods V. Hyde . and Lewis' Contract, Woodward v. Gyles V. MiUer . WooUam v. Hearn Worley v. Frampton . Worth, Ex parte . Worthington v. Warrington . 200 . 163 . 526 184, 214, 666, 667, 668 226, 248, 254, 255 . 179 . 663 244, 341 Be 658 392 601 66 316 352 414 288 159 PAOE Wright u. Bell * . . . .24 V. Bigg . . . .131 ■ V. Bond .... 579 V. Howard . . . 468 ■ V. St. George . . .123 — ■ V. Wright . . .642 Wrigley v. Sykea .... 384 Wycherley v. Wyclierley . . 48 Wycombe Eailway Co. v. Don- nington Hospital . 155, 334, 430 Wylson V. Dunn . Wynn v. Morgan 147, Wynne v. Griffith V. Price . Wythes v. Lee WyviU V. Bishop of Exeter 150, 207, 244 . 580 . 587 . 33 621, 622, 625 . 398 Y. Yates v. Farebrother . . 113, 623 Year Book, 8th Edward IV. 11 . 684 ■ 21st Henry VII. 41 . 684 Yielding and Woodbrook, Be . 489 Young & Co. V. Mayor, &c. of Eoyal Leamington Spa . . . 284 Young and Harston's Contract, Re 601 V. Clarke . . . .193 Younge v. Buncombe . . 614, 615 Yovatt V. Winyard . . . 646 NOTE. The following editions are referred to : — Austin's Lectures on Jurisprudence, 3rd edition. Daniell's Chancery Practice, 6th edition. Dart's Vendors and Purchasers, 5th edition. Fonblanque's Treatise of Equity, 5th edition. Holland's Jurisprudence, 9th edition. Haddock's Chancery Practice, 2nd edition. Maine's Ancient Law, 6th edition. Seton's Decrees [cited as " Seton "], 6th edition. Stephen's Pleading, 4th edition. Story's Conflict of Laws, 2nd edition. Story's Equity Jurisprudence, 10th edition. Sugden's Vendors and Purchasers [cited as " St. Leon. Vend."], 13th edition. Mitford's Treatise of Pleadings is cited thus : — " Eedesdale, Plead." The volumes of the Law Journal Eeports cited are those of the New Series. The Eules of the Supreme Court are cited thus : — E. S. C. Ord. I. r. 1. THE Specific Perfoemance op Contracts. PAET I. OF THE JUEISDIOTION. CHAPTER I. OF THE ORIGIN AND GENERAL CHARACTER OP THE JURISDICTION. § 1. "A CONTRACT," says the author of The Mirror^ What a " is a speech betwixt parties that a thing which is not ^^o^t'^^'^' done be done."^ " A contract," says Fulbecke,^ "is nothing but the consent of two persons for a thing to be done or given by the one to the other, and it is on both sides obligatorious." " The substance of all contracts," says West,^ " consisteth in consent as their matter, and in the cause or businesse as their forme." "A contract," says Sir William Blackstone, is "an agreement upon sufficient consideration to do or not to do a particular thing."* "In order to constitute an agreement or contract," said Kindersley V.C., ' ch.. ii. s. 27. classification of contracts, wliicli ' The Second Part of the ParaUele probably represents the current or Conference of the Civil Law, the views of the Elizabethan lawyers. Canon Law, and the Oonunon Law, * 2 Bla. Com. 442. Por other 1602, pp. 28, 29. definitions, see Holland's Elements 2 West, Symboleography, Part I. of Jurisprudence (9th edit.), 243 ; The introduction to this part con- Pollock on Contracts, ch. i. ; Anson tains a discussion on the nature and on Contracts. F. « THE JURISDICTION. "two things are requisite, — Istly, the will, and 2ndly, some act, whether in word or deed, whereby that will is communicated to the other party. No man has entered into an , agreement or contract to do, or not to do, some particular thing unless he has willed that the thing should be done or for- borne, and also has communicated that will to the other party by some act engaging to carry it into effect ; when both parties will the same thing, and each communicates his will to the other, with a mutual engagement to carry it into effect, then (and not till then) an agreement or contract between the two is constituted." ^ Defim- § 2. This treatise being devoted to a discussion co°ntract ^^t of contracts in general but of one particular not here method of giving relief in respect of them, it is not proposed here to enter into the numerous points which arise upon the above definitions. Many of the points which would require attention in such a discussion will be found treated of under the head of the defences which may be raised to an action for specific per- formance. That mode of treatment, if less logical, is, it is conceived, more practically useful for the purposes of this treatise than entering upon a general discussion of the nature of contracts. What § 3. The specific performance of a contract is its perform- actual execution according to its stipulations and anee is. torms ; and is contrasted with damages or compensa- tion for the non-execution of the contract. Such actual execution is enforced under the equitable juris- diction vested in the Courts of this country by directing the party in default to do the very thing which he contracted to do, and, in the event of his disobedience, by treating such disobedience as a con- tempt of Court and visiting it with all the consequences of such contempt, including imprisonment ; ^ and in some cases by doing in one way the thing which the 1 Haynes v. JSaynes, 1 Dr. & Sim. existence of a contract. See,, on at p. 433. The case oi Bolton Pari- that case, Additional Note A. at ners v. Lambert, 41 Cli D. 295, the end of tMs treatise, appears to cast some doubt on the necessity of -will or consent to the ' Seton, 2285, 2287. ORIGIN AND CHARACTER OP THE JURISDICTION. defaulter was directed to do in another way, as, e.g.^ by vesting by an order of the Court an estate which ought to have been vested by conveyance of the party .^ To say, as is above said, that the Courts enforce actual execution according to the stipulations and terms of the contract is not quite exact : for the Court rarely, if ever, interferes until the time for performance has passed and default been made : consequently the per- formance enforced by the Court is almost always behind time as compared with due performance volun- tarily yielded. § 4 . From every contract there immediately and The oUi- directly results an obligation on each of the contract- frfgw ing parties towards the other of them to perform such from a of the terms of the contract as he has undertaken to ""'^ ^^ ' perform. And if the pei^son on whom this obligation rests fail to discharge it, there results in morality to the other party a right at his election either to insist on the actual performance of the contract or to obtain satisfaction for the non-performance of it.^ § 5. When we consider how large a part in the Many aiiairs of modern society is played by contracts and of^,*„™s. the resu^lting rights and obligations, and how plainly prudence the right to insist on the actual execution of contracts enforce flows from their very nature, it is at first sight a specific remarkable circumstance that many systems of juris- ance"'^'^' prudence seem to make no direct provision for it. In Scotland, indeed, the breach of a contract for the sale of a specific subject, such as landed estate, gives the party aggrieved the legal right to sue for implement.^ But it seems probable that no such elaborate attempt to enforce the actual performance of contracts as that made by the Courts of Equity in this country exists in any other system of jurisprudence.* § 6. It is certain that the Roman Law gave a title Roman ^ See infra, § 1183. at tlie end of this treatise ; and, as 2 Austin's Jurisprudence, 65 ; to specific performance in Eoman- HoUand's Jurisprudence (9tli edit.), Dutcli Law, see Van Leeuwen's eh. xiii. Commentaries on Eoman- Dutch. 3 S^ewarf v.^e«rae(^2/, 15 App.Cas. Law, translated by Chief Justice 75—102. Kotzi, Vol. 2 (1886), pp. 27, 33, ^ See further, Additional Note B. 118—119, 141—142, and 210. b2 * THE JURISDICTION. Law gave to damages as the sole right resulting from default in only. performance, and did not enforce specific performance directly or in any other manner than by giving such right to damages. It held to the maxim " JVemo potest prcecise cogi ad factum P^ So, too, § 7. In like manner the Common Law of England mouLw. ^^-de no attempt actually to enforce the performance of contracts, but gave to the injured party only the right to satisfaction for non-performance. Suggested § 8. Perhaps it is to the recent growth in most tWs?"^"* societies of contract as compared with status, custom, and imperative law that the want in question is to be referred. Sir Henry S. Maine has shown^ how slow was the introduction into jurisprudence of any pro- vision for enforcing contracts, and how that intro- duction was due to the increase of commercial activity. The same spirit of commerce which led to the enforcement of contracts, also brought in the notion that money is an equivalent of everything — is an universal common measure : and this, coupled with the simplicity of early contracts and the diffi- culty attendant on the specific performance of com- plicated ones, probably led to the arrested growth of the remedies for their breach and the confining of such remedies for the most part to the payment of money or the delivery of a chattel. § 9. Again, in countries where the same instrument is at once contract and conveyance, it is obvious that no separate jurisprudence in specific performance is ever likely to arise. ' See PotHer, Tr. des Oblig. 1878; and an Egyptian marriage part I. ct. ii. art. 2, § 2. contract in 10 Eecords of the Past, ' Ancient Law, ch. ix. The Hs- 77. As to Assyrian and Baby- tory of contracts in early law re- Ionian contracts,— 1 Eecords of the mains, I beUeve, yet to be written. p^gt, 137 e« seg., 9 Eecords, &c., I may ofier the foUowing references g^ ^ ^^^^ ^^^ ^^^ jjgibi tablets to anyone who may be desirous to , , , • , ,_ 1 • o n , „ , , , . , ,, ■, • J 1 , -n (relatmg to a banking firm for 164 look into the subject. As to Eng- ^ ° ,. ,,^ ,,-r, Hsh law, the latest discussion is in y«^'^' ^^^'^S ^•°- ^^^^' " ^^''''^'l^' Maitland and Baildon's Court Baron '^°-' ^^ ^^ ««2- ^« *» Grseco-Egyp- (Selden Society, Vol. 4), p. 113. As ^^n contracts, a contract note to Egyptian contracts, 1 Wilkinson's dated B.C. 230, in Mahaffy's FKn- Ancient Egyptians, 312 ej ieq., ed. ders Petrie Papyri, No. 16, OKIGIN AND CHARACTER OF THE JURISDICTION. 5 § 10. There were, it appears, ancient systems of Theprin- law which refused all assistance to the enforcement of chlron- contracts on the ground that they ought only to be das. entered into with those whose honour could be trusted: such was, it is said, the principle adopted by Charon- das and the ancient Indians.^ § 11. Though the Courts of Common Law never Cases in enforced the specific performance of contracts, there 7,^^"^ ,. •i-i,i 1 ', Common were certain cases m which they made near approaches Law ap- to it, and these it will be well briefly to consider, "^^llif They were cases — perform- (i.) Where a public duty arose from a private ^"°'^' contract : (ii.) Where the contract was for the delivery of a chattel : (iii.) Where the contract was for the payment of a sum of money : (iv.) Arising on covenants real. § IS. (i.) The object of the prerogative writ of i. The mandamus is the enforcing of public duties. Before ^i^^'^^rit the Judicature Acts^ if A. had by the deed of settle- of man- ment of a company entered into a contract with that '^*™^^- company, or with trustees for it, or with his fellow shareholders, that a company should be formed and conducted in a specified manner, including, for instance, provisions for the registration of transfers of shares, and if this deed of settlement had been con- firmed by royal charter, and the company had made default in registering a transfer, whereby A. was injured, in such a case the prerogative writ of man- damus would have lain in the Court of Queen's Bench, and the public duty of the company which resulted from the contract contained in the deed of settlement would have been enforced at the suit of A.^ Here the contract would not have been specifically enforced: but a public duty flowing in part from the contract would have been performed. § 13. In addition to the old prerogative writ of The statu- 1 Holland, Jurisp. (9tli edit.), 245. 731. T-- 2 See now Jud. Act, 1873, s. 25(8); ^ Norris v. Irish Land Co., 8 El. Be Paris Skating Birik Go,, 6 Ct. D. & Bl. 512. " THE JURISDICTION. of^^'* mandamus there was a statutory writ under the 68th damns. Section of the Common Law Procedure Act, 1854 (now repealed by statute 46 & 47 Vict. c. 49, s. 3), which provided for the issue of " a writ of mandamus com- pelling the defendant to fulfil any duty in the fulfil- ment of which the plaintiff is personally interested." It was naturally suggested that this power authorized the Courts of Common Law to grant specific perform- ance of contracts by means of the statutory writ ; but by the cases of Benson v. Paull^ and of Norris v. The Irish Land Co.^ it was determined that the Courts of Common Law could not by means of the writ of mandamus enforce the actual execution of contracts which resulted in private rights only and not in duties in which the public were interested, ii. Deli- § 14. (ii.) Before the passing of the Common Law ohattds Procedure Act, 1854, it was a matter of question whether in detinue the delivery of the specific chattel could be obtained if the defendant chose to pay the damages assessed instead of delivering up the chattel ; but all such doubts were removed by the 78th section of that Act, which has in its turn been subsequently repealed. But Ord. XL VIII. r. 1, of the Rules of the Supreme Court, which has taken the place of the repealed statute, enables the plaintifE to obtain execution for the delivery of the property, without giving the de- fendant the option of retaining such chattel upon paying the value assessed. Return of § 15. If a Contract were entered into between A. specific""* ^ ^' ^^"^ ^^^ delivery by B. of a certain chattel on perform- payment of a certain sum by A., and A. made the ^'^''''" payment, but B. refused to deliver the chattel, an action for its detention would lie in a Court of Common Law at the suit of A., and at his election execution might issue for the return of the chattel. This looks very like a specific performance of the contract, but was not such in fact. The complaint of A., in the case supposed, was not that the contract had been broken, but that the chattel had been detained. He did not aver that the contract ought to be performed and that the chattel ought to be made his ; but he 1 6 El. & Bl. 273. 2 8 El. & Bl. 512. OEiaiN AND CHAEACTER OF THE JURISDICTION. ' alleged that the contract had been performed, and that therefore the chattel was his, and the defendant's detention wrongful. In short, the contract came into controversy, if at all, only as the title of the plaintiff. § 16. (iii.) Lord Mansfield C.J., has remarked that iii. Con- " pecuniary damages upon a contract for payment p^i'^g"',. of money are, from the nature of the thing, a specific of a sum of performance."^ But the remark seems hardly strictly ^°^'^y- accurate. No doubt the sum agreed to be paid will be the measure of damages, and the amount paid will be the same whether the contract be performed or broken. But in the former case the money is paid in performance of the contract : in the latter case it is paid as satisfaction for its non-performance. It is evident that the consequences of the two payments would therefore be different. § 17. (iv.) According to the old Common Law, a iv. Writ covenant by A. to convey lands to B. (which was called °^^^°^®" a covenant real) could be enforced by a special writ of covenant, which was in the nature of a specific perform- ance of that covenant. The writ was to the sheriff to command A. that he keep his covenant with B. ; and the relief for non-performance was not in damages but by means of a prcecipe quod reddat of the land in question. This writ of covenant was the commence- ment of proceedings in fines before their abolition.^ § 18. In one case the Ecclesiastical Courts exer- Former cised a jurisdiction in the nature of specific perform- j"J^'^^^°" ance. When man and woman had entered into a theEo- marriage contract per verba de prcesenti, one refusing co^'j-g*"^''^ might be sentenced by the Ecclesiastical Court to celebrate the marriage in facie ecclesice accordingly, and for refusal to obey might be excommunicated and imprisoned on a writ de excommunicato capiendo until he or she submitted to obey the ordinary : and a like jurisdiction was exercised in the case of contracts per verba de futuro, though the process for contumacy was in certain cases different.^ But by the statute ^ In Johnson v. Bland, 2 Burr, nant to levy a Fine ; " 3 Bla. Com. at p. 1086. 156. 2 Fitzh.NaturaBreyium, " Cove- ' 2 Bum's Eocl. Law (1st edit.), ° THE JURISDICTION. 26 Geo. II. c. 33, s. 13, and afterwards by statute 4 Greo. IV. c. 76, s. 27, this jurisdiction of the Eccle- siastical Courts was abolished. Origin of § 19. From what has been already said, it appears abieYuris- ^^^.t the Origin of this branch of equitable jurisdiction s 'ecm" ™ ^^ ^^^ *^ ^^ sought in the Roman Law. Perhaps it is perform- rather to be found in the Ecclesiastical Law. Theorigin § ^0. When St. Paul, in writing his first letter to oftheEo- the Christians at Corinth, insisted that they should Law!^*^°^^ settle their own disputes by reference to a domestic forum and abstain from going to law before the heathen, he was helping to lay the foundations of a great system of jurisprudence. If we follow the authorized version and Dean Stanley, St. Paul thought that the least esteemed members of the Church were fit for such business. But when we think of some episcopal chancellors whom we have known, we feel great relief in the revised version ; for this makes the setting of the least valued members of the Church to this business an additional matter of reproach in St. Paul's mouth. However this may be, we here for the first time, it is believed, catch a glimpse of the internal jurisdiction of the Church which was destined to grow into the great system ruled over by the Corpus juris canonici. § 21. In the second Book of the Apostolical Con- stitutions^ (whatever its date and authorship) we get another glimpse of the Church Courts as then existing. From this we can to some extent figure to ourselves the manner of conducting the business, which was half hortatory and half judicial ; we can gather some light on the penalties by which the judgments were en- forced ; but we find little or nothing definite with regard to the subjects of jurisdiction. The sub- § 32. In Pliny's celebrated letter to Trajan, we jurisdio-*^ have perhaps the first trace of the subject-matters tion. of which the Church Courts took cognizance. The Christians, according to the report of those who had abjured their faith, bound themselves by an oath not Marriage, ii. 5. In the Maid of performance of a written contract Honour, Massinger makes his hero- to marry her. ine sue to the King for the specific ' § 47. ORIGIN AND CHAEACTEK OP THE JUEISDICTION. to commit theft, robbery, or adultery ; not to break their word ("^^e/c?e^?^/a//era^^"), and not to deny the existence of a deposit when called upon by the depositor.^ These words "ne fidem fallerenV cover a wide area of moral obligation, and the jurisdiction of the Court of the Christians if it undertook to enforce it would be ample. In these few words we may perhaps find the germ of many things with which we are more or less familiar : of the troth which man and woman pledge to one another in the marriage service; of the form of declaration Do fidem still used in the University of Oxford ; of shaking hands over a bargain ; of the oath on the faith of a Christian — so much discussed on the admission of Jews to Parliament ; of the affidavit ; of "??2a/o2" as a common exclamation of our French neighbours ; and of the whole jurisdiction asserted by the Ecclesiastical Courts based on fidei laesio. This applied to contracts is, perhaps, the origin of the jurisdiction in specific performance. § 23. If every breach of faith was cognizable in ^^'^''^ the Church, it would follow that to pledge the faith was to create an obligation cognizable in the spiritual Courts and enforceable by penitence or excommunica- tion ; and accordingly we find in the middle ages that the pledge of faith (^fidei interpositio — fides facta) was a common sanction to engagements of various descrip- tions.^ It was used in the contract of marriage, where it still survives : it was used in private bargains such as partnerships:^ in the matter of essoins,^ in certain proceedings in the Exchequer,^ and in obligations of a more public or political character.® ^ Plin. Epist. lib. x. ep. 97. omnibus." In this passage the ' In tbe Cartulary of Eievaulx word " Ghriatianitatem " appears to (Vol. 83 of tbe Surtees Society's mean tbe same tbing as "fidem.'" publications) tbere is an attestation 3 Decret. iv. cap. 2. by Henry, Arcbbisbop of York, of 4 Bracton Com. Hb. v. Tract, ii. a confirmation by Eobert de Eos ^^^_ 2. Pleas in Manorial Courts of a grant to tbe Abbey. Tbe ^^^^^^^ gg^_^_ ^_ g_ Arcbbisbop declares tbat Eobert , t^. , ■, „ • ■■ m , . , = Dialogus de Scaocario, u. 19 "pnmum baec omnia sacramento ° firmayit, deinde Chrisfianitatem, in ^' manu mea qua ee obsidem dedit, " See e.g., Eadmer His. p. 7, et me plegium constituit de his KoUs Series. See, too, Fioretti di 10 THE JURISDICTION. § 24. In England, with the single exception of the proceedings in the Exchequer above referred to, it seems probable that no lay Court took any cognizance of a fidei laesio, whilst the Canon Law seems to have claimed a general jurisdiction in all cases of the breach of an oath or of the plighted faith, — a jurisdiction probably enforceable by admonition and penance, and in default of obedience by excommunication. Accord- ingly we find the clergy of Normandy, in articles passed by them in 1190 and assented to by Richard, asserting a general jurisdiction in breaches of faith and violations of oaths : " generaliter omnes de fidei laesione, vel juramenti transgression e quaestiones in ecclesiastico foro tractabuntur ; " ^ and in like -manner in England we find that the Courts Christian asserted a general jurisdiction in all such cases. If it had been allowed it is evident that they would have ac- quired a firm hold on almost all the ordinary affairs of life, whenever in fact there was a contract or dealing in which the faith could be pledged or an oath taken. Ecciesias- § 25. In Bracton's time^ the Ecclesiastical Courts diction in' appear to have claimed jurisdiction in matters of con- contraots. tract in three cases: (1) when one of the parties was a clerk ; (2) when an oath had been taken ; and (3) when there was the fidei interpositio. But in all these cases the lay Courts prohibited if the subject-matter of the contract was of secular and lay cognizance. Glanville puts the relation of the ecclesiastical and lay Courts in this matter of the plighted faith very clearly : ^ " Die autem statuta, debitore apparente in curi^, creditor ipse si non habeat inde vadium nee plegios nee aliam diracionationem nisi solam fidem, nulla est haec probatio in curi^ Domini Regis. Verum- tamen de fidei lesione vel transgressione inde agi poterit in curi^ Christianitatis. Sed judex ipse eccle- siasticus, licet super crimine tali possit cognoscere et San Francesco, cap. 21, -where ^ 2 Ealph de Diceto, p. 80, EoUs the saint puts the "Wolf of Agobio Series; 2 Matt. Paris, p. 368, EoUs to pledge his faith to his treaty! gg^es. and PoUock on Contracts in Early ^ ' -^ EngUsh Law, Harvard LavEeview, t.om. lib. v. cap. 9. \ March, 1893. ^ Book x. cap. 12. ORIGIN AND CHABACTER OF THE JURISDICTION. H convicto poenitentiam vel satisf actionem injungere : placita tamen de debitis laicorum vel de tenementis in curiS, Christianitatis per assisam regni, ratione fidei interpositae, tractare vel terminate non potest." § 26. To the like effect too is the 16th chapter of the Constitutions of Clarendon: "Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in justitia regis." To the like effect are records of John's reign/ and Edw. III.^ §27. The struggle was long continued; '' The straggle Spiritual Courts," says Blackstone,^ "continued to ^^*^jP°^- grasp at the same authority as before in suits pro laesione fidei, so late as the fifteenth century." The two versions of the great statute Circumspecte agatis, the one saving to the Courts Christian jurisdiction in such actions, and the other denying it to them, are evidence of the zeal with which the contest was carried on : for the true text must almost certainly have been tampered with and falsified by the one party or the other, in order to support its contention. § 28. In Bracton's note-book, so admirably edited Bractou's by Prof. Maitland, two cases illustrative of the claim ^"te-book. of jurisdiction on the ground of fidei laesio are particularly instructive. The first (No. 50) occurred in the year 1219. A prohibition had issued to restrain Alice Hathemus from drawing Roger the son of Ade into the Court Christian in regard to a lay fee. Alice replied that the matter between her and Eoger in the Court Christian was ^^ de fide sua lesd et non de laico feodo ;'''' that after her husband's death she had pledged part of her dower to Roger for a term of ten years, and that he had pledged his faith [affidavit) to return the land to her at the end of the ten years : that the term had passed but he had not returned the land, and there- fore she sued him " J e lesione fideiJ^ But Alice was restrained, and the marginal note runs, " Ahta quod proMbicio locum tenet de fidei lesione proptet' laicum feodum.'''' The second case (No. 1893) occurred in the year 1 Abbrev. Placit. Vol. 21, p. 31. ' iy. 53. ^ Lib. Assis. fol. 61, pi. 70, 22 Edw. III. 12 THE JURISDICTION. 1227. It was an assize to determine whether William the son of Grodwin unjustly disseized Eichard the sou of Maria de Brom of a tenement in Acle. The jurors found that Alured Rowe demised the land to Richard the son of Maria for a term : mean- while William the son of Grodwin met with Alured and they arranged that Alured should demise the land to William {in feodum) for a certain sum of money, and the day was fixed for the payment of the money and the execution of the charter, and they pledged their faith to this contract ("e^ ad convencionem istam tenendum hinc inde fuit affidatum^^). When the day came William broke his bargain, and thereupon Alured demised the land to Richard. Subsequently, William impleaded Alured in the Court Christian for breach of faith {de fidei lesione). Ultimately, Alured was compelled to execute the deed and to demise the land to William (" ita quod oportuit eundem Aluredum de necessitate facere ei cartam suam et terram illam ei concedere^''). Thereupon came William and disseized Richard of the land. Richard (as was just) was held entitled to recover seizin of the land and William was in mercy. Specific This entry is of the last importance for the present anoe'by' ©uquiry. It appears to be a clear case of a judgment a Court for Specific performance by the Ecclesiastical Court. § 29. At later dates a few traces of a jurisdiction of the Ecclesiastical Courts in respect of contracts may be found. Chaucer in the Friar's Tale mentions con- tracts as a subject-matter of the jurisdiction of the archdeacon, " That boldely did exeoucioun In puniscliying of fornicacioun, Of wiooliecraft, and eek of bauderye, Of diflamaoioun and avoutrye, Of cliirclie-reeves and of testamentes, Of contracts, and of lak of sacramentes." On such a point the authority of Chaucer appears entitled to much weight. He is said to have been bred to the law : and certain parts of his Tales exhibit an acquaintance even with the forms of law ; as, for in- stance, the Doctor's Tale, where the "pitous bill" ORIGIN AND CHARACTER OF THE JURISDICTION. 13 presented to Appius by Claudius/ forcibly recalls the form of a bill of complaint in the Court of Chancery. § 30._ Again, in the Registrum Brevium (1634), p. 66 a, is found a form of writ de excommunicato delihe- rando, where the excommunication appears to have been pronounced " ratione contractus in civitatc nostra habitiP § 31. Reference may also be made to the fourth volume of the Selden Society's publications, intituled ''The Court Baron," which contains (at p. 115) an account of entries in the rolls of the Bishop of Ely's Manorial Court at Littleport, about five miles north of Ely, in the reign of Edward II. It is curious to find from these entries that the fen-men of that early date were attempting, by means of distress, to enforce specific performance of their contracts. In one case the defendant had contracted to make the plaintiff a thousand of sedge ; in another, to make a new "rother" (^. e., according to Halliwell, a rudder); and in both cases an order was made to distrain the defendant to make the thing he had contracted for. It is strange that this out-of-the-way Court in the fens should have been in advance, in the development of jurisprudence, of the King's Courts and of the Chan- cery ; and yet such seems to have been the position of things in the reign of oiu- second Edward. The explanation may perhaps be found in the fact that the Lord of the Manor was a high ecclesiastic; that cases of difficulty or importance arising in the Court at Littleport might be reserved for the Bishop's Court or Council (Consilium) at Ely ; that an aggrieved liti- gant might complain to the Bishop, and obtain a writ to the steward commanding him to do right ("The Court Baron," p. Ill); and that in these ways the doctrine of specific performance may have leaked through from the Canon into the Manorial Law. § 32. There is therefore clear evidence of the activity of the Courts Christian in matters of contract. But there is another point to be noted : they proceeded by admonishing the delinquent party to do the very thing undertaken, — the man who had married a woman ' V. 178 at seq. 14 THE JURISDICTION. and refused her the rights of matrimony, to take her home, — the man who refused to execute the deed ac- cording to his promise, to execute the deed. A prin- ciple of the Canon Law was expressed in the heading of a chapter, ^^ Judex debet studiose agere ut promissa adimfleantur^'' and in the sentence therein contained, ^^ Studiose agendum est ut ea quae promittuniur opere compleanturP'^ Origin of § 33. These materials make it probable that from diction hi early times the Courts Christian enforced the specific Chancery, exocution of contracts in which there was an oath or fidei interpositio : that this jurisdiction was narrowed and perhaps almost extinguished by the pressure of the writ of prohibition from the King's Court : and that the ecclesiastical Chancellors found in the Chancery a means of reviving a like jurisdiction, the writ of sulpoena taking the place of excommunication.^ § 34. For in the records of the Court of Chancery there are early traces of the jurisdiction. A case in the reign of Richard II. has been thought to be one of specific performance : cases more distinctly in point occur in the reigns of Henry VI. and Edward IV. § 35. In the reigns of Edward VI., Elizabeth, and James I. several cases occur, and the advantages of the jurisdiction in Chancery were perhaps becoming more known. Brooke, in his Abridgment,^ had pointedly shown the superiority of the proceedings by sulpoena over an action on the case. "Note," he says, " that by this he will get nothing but damages, but by subpoena the Chancellor can compel him to convey the estate or imprison him ut diciturP § 36. The jurisdiction was thus established, though not without much jealousy on the part of the Common Law Courts, and a strenuous effort to set forward the action on the case as an adequate remedy in the case of contracts.* In an Additional Note (C), at the end 1 Deor. Greg. IX. lib. i. tit. 36, view (No. 19), Vol. 5, p. 235. cap. 3. ' Action sur le case, pi. 72. i* See further on the subject of * See jper Fairfax J., T. B. 21 Specific Performance and Laesio Edw. IV. 23, pi. 6, and per Fineux /', fidei an article by tbe present O.J., Y. B. 21 Hen. VII. 41, \ author in the Law . Quarterly Ee- pi. 66, ORIGIN AND CHAItACTER OF THE JURISDICTION. 15 of this volume, will be found a reference to several cases, illustrative of the earlier history of this juris- diction of the Court of Chancery. § 37. The circumstances which seem beyond all others to have conduced to the great development of the doctrine of specific performance in England are the great complication of the titles to English land, and the fact that in regard to land, contract has never been itself the conveyance. In a jurisprudence where contract and transfer are effected by the same instru- ment, a jurisdiction in specific performance could hardly arise : but where contract is separated from conveyance by all the formalities and delay of an examination into title, and the preparation of a formal deed, it would be a necessity to anything like a civilized system of law. § 38. Before proceeding further it will be well to Thejuris- distinguish the jurisdiction usually described as that in f^gg^g"^ specific performance from some kindred ones formerly perform- exercised by the Court of Chancery. By specific per- ^^^j^. formance is usually understood that peculiar, and, as guished it is called, extraordinary jurisdiction, which that Court exercised in respect of executory contracts as contrasted with executed contracts. Some other grounds of equitable relief approximate- to specific performance, from which they are nevertheless sepa- rable : thus specific performance may be usefully distinguished from (a) Specific relief on an execu.ted contract. (b) The performance of trusts. (c) The delivery of a chattel in specie. (d) An equitable charge arising from or accom- panied by a contract for a legal charge. (e) Constructive trusts. § 39. (a.) An executory contract is one which is from that not intended between the parties to be the final instru- ^g^o^uted ment regulating their relations : an executed contract contracts ; is one which is intended to be thus final.^ The differ- 1 Per Lord Selborne in Wolvtr- y, OfficialBeceiver, 13 A-p-p. Gas. 523, hampton and Walsall Baihvay Co. particularly 547. See also 1 Powell, v. London ■and North Western Bail way Co., L. E. 16 Eq. 439 ; Tailhy Contr. 235. 16 THE JURISDICTION. ence may be illustrated by the contrast between an agreement (say on the dissolution of a partnership) to execute a deed containing certain covenants, and the deed itself containing these coyenants. The agree- ment is an executory contract ; the deed is an executed contract. An action founded on the agreement would be strictly an action for specific performance : an action founded on the deed would not be so described, and it could have been entertained by the Court of Chancery only on the ground that an injunction or an account was prayed for, or that some independent jurisdiction of the Court was invoked. It could not have been supported on the ground of the peculiar jurisdiction in specific performance, from per- § 40. (b.) Actions for specific performance of of™uste- executory contracts differ from actions for the per- formance of trusts. For contracts are for the most part contained in legal instruments which give rise to legal rights : and specific performance is therefore only an alternative remedy in lieu of damages. On the contrary, trusts are constituted by instruments which are of equitable force (at least so far as the trust is concerned), in respect of which therefore, before the Judicature Acts, a suit in Equity was the only mode of relief, from § 41. (c.) The delivery of a chattel in specie may of chattel ^^ ^ mode of specific performance when the right to in specie; the chattel flows from a contract. But the Court of Chancery had (as we shall see^) an independent juris- diction to decree the delivery up of unique articles, whether the right to them resulted from contract or not. from an § 42. (d.) A contract for a legal or equitable ^har*^^-^^ charge, when the consideration has passed, itself creates an equitable charge independently of the doctrine of specific performance, but may in addition create a right to have a legal charge : though if the contract rested entirely in fieri no performance could be had.^ from § 43. (e.) Again, from actions for specific perform- f ance we must distinguish those cases in which, by oases construe' tive trust ; Infra, § 79. » See infra, § 54. ORIGIN AND CHARACTER OF THE JURISDICTION. 17 reason of fraud or the breach of some fiduciary relationship, a constructiye trust arises. Cases some- times of a mixed nature have arisen : as, for instance, when by a contract to give up part of an estate if purchased, A. persuaded B. not to compete with him as a purchaser. On A.'s refusal to abide by his con- tract, B. might have sued him, alleging at once the contract and the breach of A.'s duty as agent.^ We shall hereafter see^ that the peculiar doctrines from of the Court as to the specific performance of executory reHei" contracts do not necessarily apply to the other forms in which the Court grants specific relief. § 44. There is an observation often made with Thejuris- regard to the jurisdiction in specific performance ^iscre^ which remains to be noticed. It is said to be in the tionary. discretion of the Court. The meaning of this pro- position is not that the Court may arbitrarily or capri- ciously perform one contract and refuse to perform another, but that the Court has regard to the conduct of the plaintiff and to circumstances outside the con- tract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favour.* " If the defendant," said Plumer V.C, " can show any circumstances dehors, independent of the writing, making it inequitable to interpose for the pui'pose of a specific performance, a Court of Equity, having satisfactory information upon that subject, will not interpose."* § 45. And the contract itself may give rise to the discretion. A property was sold as "leasehold business premises," and the purchaser was by condition pre- cluded from objecting to anything in the lease : the lease, when produced, showed fetters on the use of the property, which falsified the description of the pro- perty as business premises : the Court declined in its discretion to enforce performance.® 1 See Chattoch v. MuUer, 8 Ch. D. at p. 467, n. ; Be Terry and White's 1Y7 181. Contract, 32 Oh. D. at p. 27 ^ In Clowes V. Higginson, 1 V. & 3 Lamare v. Dixon, L. E. 6 H. L. \ Be Davis and CaVey, 40 Oh. D. 2 Infra, § 841 et seq, ' Lamare v. Dixon, '. 414 ; Leech v. Schweder, L. E. 9 Oh. gQi F. C 18 THE JURISDICTION. § 46. But of the circumstances calling for the exercise of this discretion, the Court judges by settled and fixed rules ^; hence the discretion is said to be not arbitrary or capricious, but judiciaP; hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circum- stances, specific performance is as much a matter of course, and therefore of right, as are damages.^ The mere hardship of the results will not affect the discre- tion of the Court.* ' As to tlie rules of Courts of Equity, see th.e observations of Jessel M.E. in Re HalleU's Estate, Knatclibull v. Hallett, 13 Oh. D. at p. VIO ; and, as to tie weight attaching in those Courts to pre- cedents, see per Eighy L.J. in Be Scott and Alvarez' Contract, [1895] 2 Ch. at p. 615. « Goring v. Nash, 3 Atk. 186; Wiite T. Damon, 1 Yes. 30, 35; BucMe V. Mitchell, 18 Ves. 100, 111 ; Bevell v. Husaey, 2 Ball & B. 288. 3 Hall V. Warren, 9 Ves. 605, 608. See, howeyer, Re Scott and Alvarez' Contract, [1895] 2 Ch. 603. ' Haywood v. Cope, 25 Beav. 140, where Lord Eomilly M.E. fuUy discusses the nature of the discre- tion in specific performance. 19 CHAPTER II. OF THE EXTENT OF THE JURISDICTION. §47. It has already been iu substance observed Not au that if a contract be made and one party to it make contraota default in performance, there appears to result to the performed. other party a right at his election either to insist on the actual performance of the contract, or to obtain satisfaction for the non-performance of it.^ It may be suggested that from this it follows that a perfect system of jurisprudence ought to enforce the actual performance of contracts of every kind and class, except only when there are circumstances which render such enforcement unnecessary or inexpedient, and that it ought to be assumed that every contract is specifically enforceable until the contrary be shown. But so broad a proposition has never, it is believed, been asserted by any of the Judges of the Court of Chancery, or their successors in the High Court of Justice, though, if prophecy were the function of a law writer, it might be suggested that they will more and more approximate to such a rule. Judges have sometimes dwelt upon those negative circumstances which render specific performance un- necessary or inexpedient: sometimes on those affirma- tive circumstances which render such performance necessary and expedient. § 48. The following propositions may help to Theei- explain the extent to which the jurisdiction has li^^ffi hitherto gone, assuming in each proposition (unless the juris- otherwise stated or implied) the existence of a con- ^°*^°'^- tract binding in Equity. ' See supra, § 4. c2 20 THE JURISDICTION. The Court will interfere in specific performance — (i.) Where there is no Common Law remedy, (ii.) Where the Common Law remedy exists, but is not adequate. On the contrary, the Court will not interfere in specific performance — (iii.) Whei-e the Common Law remedy exists and is adequate. (iv.) Where the contract is such as the Court cannot perform. (v.) Where the performance of the contract would prove useless. (vi.) Where the Court would be unable to enforce its own judgment. (yii.) Where the enforced performance of the con- tract would be worse than its non-performance. (viii.) Where the contract is voluntary. (ix.) Where theplaintifp has elected to proceed in some other manner than for specific performance. (x.) Where the jurisdiction has been taken away by statute. After the foregoing propositions have been discussed it will be shown — (xi.) That the jurisdiction is against the defen- dant personally. Lastly will be considered— (xii. ) Certain cases of quasi-contract in which the Court has jurisdiction. i. Where there is no Common Law remedy. Ground § 49. In many cases though a contract was in fereno?of conscionce obligatory upon both the parties to it, yet Eciuity. the Common Law, from the strictness of its forms, afforded no remedy to the party injured by the other's non-performance. The defect of justice which hence arose was avoided by the jurisdiction of Equity, which in such cases has compelled the specific execution of OF THE EXTENT OF THE JURISDICTION. 21 the contract, if in other respects fit for the interven- tion of the Court. § 50. In Equity, differing in this respect from Contraota the Common Law, a distinction was made between regarded ^ those terms which are of the essence of the contract ^t Com- and those terms which are not thus essential, and a SiTm^'^ breach of which it is inequitable for either party to ^i^itJ' set up against the other as a reason for refusing to execute the contract between them. In these cases the doctrine of Common Law was forfeiture; the doctrine of Equity is compensation. "Lord Thurlow," to quote the language of his successor Lord Eldon, "used to refer this doctrine of specific performance to this : — that it is scarcely possible that there may not be some small mistake or inaccuracy; as, that a leasehold interest represented to be for twenty-one years, may be for twenty years and nine months ; some of those little circumstances that would defeat an action at Law, and yet lie so clearly in compensation that they ought not to prevent the execution of the contract." ^ On this ground the jurisdiction rests in all cases where specific performance is decreed with compensation by the plaintiff. § 61. The fact that the Common Law remedy has Common been lost by the default of the very party seeking the J'e^ay specific performance of a contract will not exclude the ^^"^f'^^f^^j jurisdiction, if it be notwithstanding conscientious that J^Mis. the contract should be performed, as in cases where the plaintiff has performed his part substantially, but not with such exactitude as to be able to plead such performance as the Common Law Courts required.^ § 62. But besides these cases, there are many others Common in which the Court interferes, because there _ is no avaaaUe Common Law remedy by reason of something in the ^r9™« Per Clarke M.E. in Bodsley v. v. Napper, 2 Sch. & Lef. 682 ; Kinnersley, Ambl. at p. 406. Cannel v. Buckle, 2 P. Wma. 242. ' Sel. Cas. in Oh. 66. S. 0. 3 The -paBs^ge in Williams r. Steward, Brown P 389 ^ Mer. 491, to which. Mr. Justice Story (Eq. Jur. § 741) has referred 3 Sel. Cas. in Ch. at p. 69. ^^ ^ ^^^^ ^^ q^^^^ ^^^ -^ ^j^^ * Per Lord Eedesdale" in Lennon language of counsel arguendo. ^^ THE JURISDICTION. ii. Where there is no adequate Common Law remedy. iii. Where there is an adequate Common Law remedy. po^won™' § 61. The propositions that the Court will inter- converse, fere in specific performance where the Common Law remedy exists but is not adequate, and that the Court will not interfere where the Common Law remedy exists and is adequate, being in the nature of converse propositions will be conveniently considered together. Common § 62. The Only remedy at Common Law for the medy7n- non-performanco of a contract was in damages, that is adec[uate. to say, in the payment of a sum of money by the party who had broken the contract to the party injured by that breach. If money were in all cases a perfect measure of the injury done by this breach, it is evident that an exact equivalent for the wrong might be made, and that the justice done would be complete. But money is an exact equivalent only when by money the loss sustained by the breach of contract can be fully made good. Now in a vast variety of cases this is not so ; for though one sove- reign or one shilling is to all intents and purposes as good as any other sovereign or shilling, yet one landed estate, though of precisely the same market value as another, may be vastly different in every other circumstance that makes it an object of desire : so that it evidently follows that there would be a failure of justice, unless some other jurisdiction supplemented that of Common Law, by compelling the defaulting party to do that which in conscience he is bound to do, namely, actually and specifically to perform his contract. The Common Law treats as universal a proposition which is for the most part, but not universally, true, namely, that money is a measure of every loss.^ The defect of justice which arose from this universality of the Common Law principle was met and remedied in certain cases by the jurisdiction of Courts of Equity to compel specific performance. Common § 03. The mere existence of a Common Law ^ See Aria. Eth. Nic. lib. ix. c. 1. OF THE EXTENT OF THE JUEISDICTION. 27 remedy, and even the existence of a perfect Common Law Law relation, will not necessarily exclude specific pl™tia{ performance. Thus, in one case it was held that, although an agreement might possibly amount at Law to a present demise or assignment, yet, if the docu- ment showed the intention that a further instrument should be executed, specific performance might be decreed.^ § 64. Even when money is alone in question, Common the Common Law remedy is in some instances less medyTe'ss beneficial than that afforded by Courts of Equity, and beneficial. where this is so, a ground is laid for specific perform- ance, if otherwise a proper remedy. So where A. gave a note to B., and C. agreed with B. for the relinquishment of his (B.'s) claim against A. on the payment of certain sums, for which the notes were, in the contemplation of Equity, to stand only as a secu- rity, it was held that the Court of Chancery would specifically perform the contract, though the relations between the parties might have been worked out by actions at Law.^ § 65. Sir John Leach M.R. (then V.C.) seems to Doctrine have considered that the fact that the remedy in ^Leaoii damages given at Common Law depended for its bene- ficial efiect upon the personal responsibility of the de- fendant, gave the other party to the contract a right to sue in Equity for its actual performance.^ It is evident that this principle applies to all damages, and, if it were admitted, would give the Court jurisdiction by way of specific performance in all cases of contract, whether for the sale of chattels or of any other nature, which certainly is not the law of the Court. In another case the same learned Judge appears to have held that the circumstance that damages at Law would not accurately represent the value of the con- tract to either party was a ground for granting specific performance. The contract in that case was for the sale of debts proved under two commissions of bank- 1 Fenner t. Heplurn, 2 Y. & 0. Cogent v. Oihson, 33 Beav. 557 0. 0. 159. (puroliase-moiiey of patent). 2 Beech v. Ford, 7 Ha. 208 (af- ^ Doloret v. Rothschild, 1 S. & S. firmed by Lord Oottenham). Of. 590. 28 THE JURISDICTION. ruptcy ; and Leach V.C. granted specific performance, considering that to compel the plaintifP to accept damages would be to compel him to sell those divi- dends which were of unascertained value at a con- jectural price. ^ The learned Judge just named seems to have shown a tendency to extend the jurisdiction in specific performance somewhat more liberally than most other Judges : ^ and the mere want of exactitude in the measure of damages at Common Law has not always been held a sufiicient ground for the equitable jurisdiction. Cases § 66. The ground of this jurisdiction having been Common ^^^® inadequacy of the remedy at Common Law, it Law re- f ollowod that whore that remedy was adequate, Chan- adequate. ^^^T ^^^ ^^^ interfere to compel specific performance. It is on this ground that the Court has generally refused specific performance in respect of Government stock or chattels, as will be hereafter seen, and refuses it in all cases where the contract is satisfied by a mere payment of money.^ Instances. § 67. The principle has been recognized in several other cases. It was one of the grounds on which Knight Bruce and Lord Cranworth L.JJ. acted in dismissing the bill in Lord James Stuart v. London and North- Western Raihvay Co} so far as regarded specific per- formance, and only putting the defendants on terms to make certain admissions in any action at Law to be brought by the plaintiff against them, — their Lordships considering that, the railway having been abandoned and complete relief being in their opinion obtainable at Law, the case was not one for specific performance. It was also one of the reasons alleged by Lord Cran- worth L.J. for dismissing the bill in Wehb v. Direct London and Portsmouth Railway Co.^ he considering 1 Adderley v. Dixon, 1 S. & S. 55 ; Larios v. Bonany y Ourety, 607. See ^er Lord Hatherley (then 1^. 'Si. 5 "B. Q. Z'iG; Ryan y. Mutual Wood V.C), in Pollard v. Clayton, Tontine, &e. Association, [1893] 1 1 K. & J. 462. Oh. at pp. 125, 128 ; and cf. the ^ See Withy v. Cottle, 1 S. & S. cases on contracts with a penalty, 594 ; Kenney v. Wexham, 6 Mad. infra, § 140. 355; cf. Brealey v. Collins, Yon. 4 1 De G. M. & G. 721. 317, 330. 3 See Broucjli y. Oddy, 1 E. & M. M De G. M. & G. 521. OF THE EXTENT OF THE JURISDICTION. 29 that under the circumstances the vendor could obtam complete relief at Law. The authority of these de- cisions was subsequently questioned by Lord St. Leonards/ but only as to the applicability of the principle to the circumstances, and not as to the validity of the principle itself, § 68. In one case specific performance was sought Contract of a contract for a tenancy from year to year, tlie teL^nTy!^ contract specifying that the tenant was in all respects to abide by the terms entered into by a previous tenant, and that the tenant should pay for a contract to be drawn up ; it was contended that the Court would therefore interfere for the purpose of settling the proper terms of the contract. But the Court thought the remedy at Law was adequate, and that the full terms of the contract might be shown there, and therefore refused to decree performance.^ Specific performance may, however, be granted in a proper case, even where the contract is for a yearly tenancy.^ § 69. On this ground also, as well as that of the Contract incapacity of the Court to execute the works, the Court raihr^ of Chancery refused specifically to perform a contract to make a branch railway, although the contract for the execution of it had been entered into during the pendency of the Bill before Parliament, and when several of the directors had thoughts of withdrawing the Bill, and would have in fact done so (as the bill of complaint alleged), but for the contract in question.* § 70. And where a bill sought the specific per- Contract f ormance of a contract which would have been effected money. by a mere account of profits and a payment of the amount found due, and there was no obstacle to the ' Hawhes V. Eastern Counties Coomhs, [1901] 2 Ch. at p. 616. Railway Co., 1 De G. M. & G. 737 ; Distinguish GJasse v.' Woolgar, 41 S. C. 5 H. L. 0. 331. Sol. Jo. 673 (contract to let for a single day). = Clayton r. lUingworth, 10 Ha. , ^^^^^^^ ^y^^j^^ EaiUaay Co. y. 451. Cf. Fenner v. Hepburn, 2 T. -^r^^j^^^^ 1 K. & J. 186; S. 0. 5 De & C. 0. 0. 159. Q j^_ ^ Q._ 880. See, too, Greenhill 3 Levery. Koffler, [1 901] 1 Cli. 543. t. Tsle of Wight {Newport Junction) See, too, Manchester Brewery Co, v. Railway,Co., 19 W. E. 345. 30 THE JUEISDICTION. recovery of the amount at Law, the Court dismissed the suit.^ Alter- § 71. In analogy with this principle, in a case in remedy, which the plaintiffs sought the specific performance of a contract to grant a way-leave for a railway for a term of sixty years, and between the filing of the bill and the hearing the plaintiffs had obtained statu- tory powers to take the land in fee, Stuart V.C. considered this to be a circumstance strongly in- fluencing the discretion of the Court against specific performance.^ Contract § 72. It may appear at first sight that, inasmuch by vendor. ^^ mouoy in exchange for the estate is what the vendor of land is entitled to, he has a complete remedy in an action for damages, and therefore cannot sustain an action for the specific performance of the contract. But on further consideration it will be apparent that damages will not place the vendor in the same situation as if the contract had been per- formed ; for then he would have got rid of the land and of all the burdens and liabilities attaching to it, and would have the purchase-money in his pocket; whereas, after an action for damages, he still has the land and, in addition, damages, — representing, in the opinion of a jury, the difference between the stipulated price and the price which it would probably fetch, if re-sold, together with incidental expenses and any special damage which he may have suffered.* The doctrine of Equity with respect to the conversion of the land into money, and of the money into land upon the execution of the contract,* and the lien which the vendor has on the estate for the purchase-money, and his right to enforce this by the aid of the Court, are additional reasons for extending the remedy to both ' Ord V. Johuion, 1 Jur. N. S. in Morgan v. Milman, 3 De G. M. 1063 ; 4 W. E. 37 (Stuart V.C). & G. 33. See also Sturge v. Midland Railway Co 6 W E 233 • 4 Jur N S ^ Eastern Counties Railway Co. v. 273. Cf. Bagnell v.' Edwards, I. e! ^^'''^^''' ^ ^- ^- ^- ^^^' 359, 376 ; Lewis v. Lord Lechmere, 10 Mod. 503. 10 Eq. 215. 2 Meynelly. Surtees, 3 Sm. &Gifl. 101. See also ^e?" Lord Cianworth * Ibid. OF THE EXTENT OF THE JURISDICTION. 31 parties. Accordingly, it is well established that the remedy is mutual, and that the vendor may bring his action in all cases where the purchaser could sue for specific performance of the contract, and this in- dependently of any question on the Statute of Frauds.^ § 73. On the principle that damages are a suffi- Oovem- cient satisfaction, it is now perfectly settled that XSs. specific performance will not be enforced of a contract for the transfer of stock in the public funds. § 74. It appears that in one instance Lord Hard- CiMee v. wicke did grant specific performance of such a -^""'"'• contract : ^ but in the earlier case of Cuddee (or Cud ) V. Rutter^ Lord Macclesfield, overruling a decision at the Rolls, refused to perform a contract to transfer South Sea Stock, though by the decree he undertook to arrange the settlement between the parties. His Lordship assigned three reasons for this decision : first, the natui'e of the subject-matter of the contract ; secondly, the circumstance that the defendant was not possessed of the stock at the time of the contract ; and thirdly, that the liability to sudden rise and fall in stock made the day a most material part of the con- tract, and therefore rendered it an improper one for the Court to carry into execution. This principle was acted on by Gilbert C.B.* and stated to be the settled doctrine of the Court by Lord Eldon.^ § 75. In a case before Leach V.C, a bill for the other specific performance of a contract to sell Neapolitan Stock was supported; but this was partly on the ground of its praying the delivery of the certificates which would constitute the plaintiff the proprietor of a certain quantity of the stock, and partly because, 1 Clifford V. Turrell, 1 Y. & C. 1902). C. 0. 138, 150; affirmed 9 Jur. 2 gee Nutbroiun v. Thornton, 10 633; WalJcer v. Eastern Counties ygg. 161. Bailway Co 6 Ha 594 ; Kenne^ y. 3 , ^.^_ ^^^_ ^1 ; S. C. Weccham, 6 Mad. 355. See further, ^ ^ ^^^_ ^^^ ; 2 W. & T., L. 0. on tlus subject, a paper on A ^^g_ Vendor's Eight to Specific Per- ^ ^ ^' formance," by Professor W. D. * ^'op^"'' ^- -^«'""'^' 2™^" ^35. Lewis, in tie American Law Ee- '^ In Nutbrmun v. Thornton, 10 gister, Yol. 41, N. S. 66 (February, Ves. 161. 32 THE JURISDICTION, the plaintiff not being the original scrip-holder, but merely the bearer, it was doubtful whether he would be able to maintain his action at Law.^ In another case the same Judge overruled a demurrer to a bill by the vendor of a life-annuity payable out of dividends of stock, on the ground that the purchaser could clearly maintain such a bill, and that the remedy must be mutiial.^ But it seems that the Court would not enforce specific performance of a contract to Sell a life-interest in the public funds.^ Shares^ § 76. With regard to shares in companies the panies. samo j)rinciple does not apply. "In my opinion," said Shadwell V.C.,* " there is not any sort of analogy between a quantity of £3 per cents, or any other stock of that description (which is always to be had by any person who chooses to apply for it in the market), and a certain number of railway shares of a particular description, which railway shares are limited in num- ber, and which, as has been observed, are not always to be had in the market ; " and accordingly specific performance was enforced of a contract to sell a certain number of railway shares, the shares not being parti- cularized. In a subsequent case Lord Chelmsford stated that there was no doubt that a contract for the sale of railway shares is capable of being enforced : ^ and in a subsequent chapter" many recent cases will be referred to which have arisen in respect of contracts for the sale of shares. It may have been on this principle that Lord King disallowed a demurrer to a bill for the transfer of York Building Stock ;'^ but a different view seems to have been previously enter- tained by Lord Macclesfield, inasmuch as he dismissed a bill for the transfer of £1,000 of the same stock.^ Actions § 77. A vendor of shares may maintain an action traotTto against the pm'chaser to compel him to complete the take purchase by the execution and registration of a proper sharea. ' Doloret v. Bothscliild, 1 S. & S. 690. 2 Withy V. Cottle, 1 S. & S. 174. 3 Brealey v. Collins, Tou. 317, 330. * Duncuft V. AlbrecM, 12 Sim. 189, 199. See Jackson v. Cocker, 4 Beay. 59. * Cheale v. Kenward, 3 De G. & J. 27. » Part VI. chap, i. ' Colt V. Nettervill, 2 Sim, . 304. ^ Dorison V. Westbrook, 5 Yin, Abr. 540, pi. 22. OF THE EXTENT OF THE JURISDICTION. 33 transfer/ and to indemnify the vendor against future calls.^ In like manner the company may sue a person who has contracted with- the comjoany to take shares from it.* Many difficult questions have arisen as to the nature and effect of contracts to take shares, which will be considered separately in a later chapter.* § 78. The Court for the most part refuses to inter- Chattels. fere in respect of chattels, both because damages are a sufficient remedy, and because the price of such articles, especially of merchandise, varies so as often to render the specific execution of contracts for their sale and delivery an act of injustice, entailing perhaps ruin on one side, when upon an action that party might not have paid perhaps above a shilling damages.^ As these principles however do not apply to all cases of chattels, exceptions arise which we shall now consider. § 79. When the chattel in question is unique, Unique when there is, over and above the market value, that ^"^^^oi^s. which has been called the pretium affectionis, the Court, whether the plaintiff's right has arisen from contract or not, has interfered and not left him to his Common Law remedy. The leading case in this branch of the law is Pusey v. Pusey,^ in which the heir of the family of Pusey recovered possession by a bill in Equity of the celebrated Pusey horn : the grounds of the decision 1 Bhaw v. Fisher, 2 De G. & Sm. * Part VI. chap. i. 11 ; 5 De G. M. & G. 596. Cf. = Per Lord Hardvioke in Buxton Ward and Henry's Case (where the v. Lister, 3 Atk. 384. In Norton v. purchaser had filed his bill for Berle, Finch, 149, Lord Nottingham specific performance), L. E. 2 Eq. specifically performed a charter- 226 ; 2 Ch. 431. party by directing the payments to ' Wynne v. Price, 3 De G. & Sm. be made in pursuance of it ; but 310; Walker y. Bartlett, 18 0. B. see m/ra, § 855. See also Claring- 845. lould Y. Curtis, 21 L. J. Ch. 541, ' New Brunswick, &c. Go. v. and Lord Westbury in Holroyd v. Muggeridge, 4 Drew. 616. See also Marshall, 10 H. L. 0. 209. Where Sheffield Gas Consumers' Co. v. the delivery of chattels is only part Harrison, 17 Beav. 294 ; Oriental of a contract otherwise enforceable, Inland Steam Co. v. Briggs, 2 J. & the contract may be performed. H. 625; 4 De G. F. & J. 191; Marsh v. Milligan, 3 Jur. N. S. Odessa Tramways Co. v. Mendel, 8 979 (Wood V.O.). Oh. D. 235. ' 1 Vern. 273. F. D 34 THE JUEISDICTION. Tort, trust, and contract. lUustra- tions of the prin- ciple. Dictum of Lord ■Wesfbury, are insufficiently reported, but the case ''turned," to quote Lord Eldon's language in respect of itj^ " upon tlie pretium affectionis^ independent of the circumstance as to tenure, which, could not be estimated in damages." This has been followed by other similar cases, one having relation to an ancient silver altarpiece, remark- able for a Greek inscription and dedication to Hercules,^ another to a tobacco-box of a remarkable and peculiar kind,^ another to masonic dresses and ornaments,* and another to a very finely engraved cherry-stone.^ § 80. These particular cases were suits grounded on tort or trust : but the same principle applies to cases of contract relating to chattels. § 81. Accordingly in Falcke v. Gray^ Kindersley V.C. sustained a bill by a purchaser for the specific performance of a contract to sell to him for £40 two china jars; and in Thorn v. The Commissioners of Works ^^ Lord Romilly M.R. made a decree for the specific per- formance of a contract for the sale to the plaintiff of the arch stone, the spandril stone, and the Bramley Fall stone contained in old Westminster Bridge, which had been pulled down. In this case, though elaborately argued, no objection seems to have been taken to the jurisdiction. § 82. There is a dictum of Lord Westbury in the House of Lords which puts the jurisdiction as regards chattels, as if extending to every case where the con- tract relates to specific property. " A contract for the sale of goods," said his Lordship,^ "as, for example. ' In Nwtlrown t. TJwrnton, 10 Ves. 163. ' Duke of Somerset v. Coohson, 3 P. Wms. 390. 3 Fells V. Bead, 3 Ves. 70. ^- Lloyd V. Loaring, 6 Ves. 773. See also Saville v. Taucred, 1 Ves. Sen. 101 ; S. 0. 3 Sw. 141, n.; Lady Arundell v. Fhipps, 10 Ves. 139 ; Lowther v. Lord Lowther, 13 Ves. 95. A ship is probably mtliin tliis principle. See Lynn v. Chaters, 2 Ke. 521, and Olaringlould v. Curtis, 21 L. J. Oh. 541 ; De Mattes v. Gibson, 4 De G. & J. 276 ; Hart V. Serwig, L. E. 8 Oh. 860, 866 ; Batthyany t. Bouch, 50 L. J. a B. 421; 44 L. T. 177. See, too, Part VI. chap, iv., infra. * Per Lord Hardwicke in Pearne V. Lisle, Ambl. 77, in which case a specific deliTery of negroes was prayed, " but that is not neces- sary," said his Lordship, "others are as good." <= 4 Drew. 651. ' 32 Bear. 490. " In Holroyd v. Marshall, 10 OF THE EXTENT OP THE JURISDICTION. 35 of 500 chests of tea, is not a contract which would be specifically performed, because it does not relate to any chests of tea in particular : but a contract to sell 500 chests of the particular kind of tea which is now in my warehouse in Gloucester is a contract relating to specific property, and which would be specifically performed. The buyer may maintain a suit in Equity for the delivery of a specific chattel when it is the subject of a contract, and for an injunction (if neces- sary) to restrain the seller from delivering it to any other person." It may be doubted whether this dictum does not express a more complete system of jurispru- dence than that which we possess, and whether the records of the Court of Chancery contained many bills for the specific performance of contracts relating to specific chattels of a mercantile value like tea.^ § 83. It does not appear to follow from the autho- Vendor rities referred to or from principle, that the vendor of p^'^^'^*'^- a chattel can maintain an action for specific perform- ance in all cases where a purchaser of the same chattel could do so. § 84. It also appears that if the chattel be of a Price peculiar value, but by contract between the parties a ^°'^'^^ price has been put upon the chattel, that circumstance has been treated as precluding the jurisdiction ; for it is an admission that by a money payment full relief can be had.^ § 86. Hitherto unique chattels have been spoken Chattels of : but it appears that such jurisdiction as the Court ^ut rf"^^^ exercises in the case of unique chattels it may also peculiar exercise in the case of chattels which, though not ^oe. unique, possess a special and peculiar value to the plaintiff. Thus in North v. The Great Northern Railway Co? the Court upheld its jurisdiction to interfere to prevent the sale of certain waggons belonging to the H. L. 0. 209, 210. Of. ^er Lord pp. 317—8 ; Fotliergill v. Mowland, Watson in Tailhy v. Official Receiver, l. e. 17 Eq. 132 ; Tailhij y. Official 13 App. Caa. 533. Receiver, 13 App. Cas. 523. ' Consider Eeathcote v. North , „ ,. „ ,. „ t » Staffordshire Railway Go., 2 Mac. ' ^"^^^"^ ^- ^etj^^^rvn, 2 J. & & G-. 112; per Lord Oranworth in H. 544. Hoare v. Dreseer, 1 H. L. 0. at '2 Giff. 64. d2 36 THE JUEISDICTION. Wtere a particular article is esaential or only- conve- nient. Chattels connected ■with en- joyment of estate. Contracts to build. plaintifp, which had been used by the plaintiff in his business of a colliery owner, and which the defendants asserted that they had a right to detain and sell. " Where specific things," said Stuart V.C.,^ " necessary for conducting a particular business are in the posses- sion of persons who claim a lien upon them, and threaten an immediate sale, this Court has undoiibted jurisdiction to interfere by injunction and prevent irreparable injury to the debtor, by giving him an opportunity of redeeming assets." § 86. So, too, there is the high authority of Lord Hardwicke for suggesting that specific performance might be maintained by a shipbuilder if he were to contract with a landowner for the supply of timber from an adjoining estate, the shipbuilder being under contract to complete a ship by a given time, for which the supply of such timber by the defendant was essen- tial. But this seems open to doubt : and certainly the doctrine will not be extended to mere cases of con- venience, as the supply of coal from an adjoining colliery, when plenty of other coal can be procured in the neighbourhood.^ § 87. Cases might probably arise in which the Court would interfere in respect of chattels connected with the enjoyment of an estate, where but for such connection it would not exercise jurisdiction. In one case Lord Eldon made an order specifically to restore to a tenant the stock on a farm, which had been seized by the landlord under a distress and bill of sale ; his Lordship holding that, under the circumstances of that case, there was an entire contract by which the land- lord agreed to let the tenant have both the estate and the chattels, the enjoyment of the chattels being requisite for the enjoyment of the estate.^ § 88. This appears to have been one ground on which the Court of Chancery anciently enforced con- tracts to build in certain cases ; as where the father entered into articles with a builder, and died before i p. 69. " Per Lord Hardwicke in Buxton V. Lister, 3 Atk. 383, compared with Pollard v. Clayton, 1 E, & J. 462 ; and cf. Fothergill v. Rowland, L. E. 17 Eq. 132. ' Nutlrown v. Thornton, 10 Ves. 159. OP THE EXTENT OF THE JURISDICTION. 37 the execution of the contract, the heir was allowed to sue the personal representative of his father and the builder, the contract savouring of the realty.^ So, in another case, a contract to build was specifically enforced against a tenant who, having undertaken to rebuild the farm-house, had done so on his own soil instead of his landlord's.^ And we shall hereafter^ see that contracts by railway companies for the execution of works on the land of the plaintiff stand on a different footing from ordinary building contracts. § 89. Lord Hardwicke seems to have entertained ^°^*^^g** the view that where the contract was for the delivery formed of chattels by instalments and for payment in a like ^g^tg'^^' method, the Court would entertain jurisdiction. In a case cited by his Lordship, articles for the sale of eight hundred tons of iron, to be paid for by instalments, at periods running through some years, were specifically enforced.* The case appears to have been, as already stated, approved by his Lordship, but was doubted by Lord Hatherley (when V.C.), who remarked on the absence of any case for the sale of mere goods being supported on the ground of their being to be delivered by instalments.^ Mr. Austin, too, has expressed his inability to understand on what principle the case proceeded,^ and a like inability is here confessed. § 90. It may here be noticed that the Court has, Undivided and in a proper case will exercise, jurisdiction to grant "°^^tn,i°^ specific performance of a contract relating to an property. undivided moiety of mineral property. Whether such a contract is a convenient or an inconvenient one is for the parties to consider when they enter into it.'^ 1 Holt T. Holt, 2 Vern. 322 ; per 384. Distinguisli Nives v. Nives, Lord Hardwicke in Rook y. Warth, 15 Ch. D. 649. 1 Ves. Sen. 461. ° Pollard v. Clayton, 1 K. & J. 2 Pembroke v. Thorpe, 3 Sw. ^^2. Aoi jj * Jiirispnidence, 808. ' Hexter v. Pearce, [1900] 1 Cli. ' -?"«/»•«. § 103. 3^2 _ 34g_ Qf_ Burrow y. Scammell, 4 Taylor v. Neville, cited 3 Atk. 19 Ct. D. 175. 38 THE JURISDICTION, iv. Where the contract is such as the Court cannot perform. Incapacity § 91. Where the contract is from its nature such g^fg°"^"° that the Court cannot enforce its performance/ it is contract, necessarily no subject of its jurisdiction in that re- spect.^ On this principle the Court will not prohibit the making of a secret medicine ; for if it be secret, then the Court cannot tell whether it has been in- fringed or no f nor, for the same reason, will it direct the specific performance of covenants in a farming lease, for "how," said Lord Northington, "can a Master judge of repairs in husbandry?"* Nor will it enforce against a life assurance society a contract to reduce a premium if satisfied with the removal of the cause for charging an extra premium, for it is the society and not the Court which is to be satisfied f nor will it order the performance of continuous acts.^ And the fact that the parties cannot be put in the condition for which they stipulated when the contract was entered into obviously disables the Court from adjudging specific performance/ Breaches § 92. So, too, the Court will not interfere to freauent. gj^force a contract by means of injunction, where the acts complained of as breaches are frequent, and the Court could not ascertain whether there has in each case been a breach without an action ; as in the case of a covenant not to sell water from a certain well to the plaintiff's injury.^ Goodwiu § 93. The incapacity of the Court to execute the business. Contract limits its jurisdiction in cases relating to the ^ As to uncertainty in contracts, 12 Ir. Oh. E. 389, 396. see Part III. chap, iv., infra. ^ Manly v. Oresham Life Assur- ' Consider Bopev. OMs, 26 W. E. ance Society, 29 Beav. 439. 72 ; De Maitos v. QiUon, 4 De G. & « BlackeU v. Bates, L. E. 1 Oh. J. 276, 299. 117; Powell Duff ryn Steam Goal Co. 3 Newberry v. James, 2 Mer. 446 ; v. Taff Vale Railway Co., L. E. 9 Williams v. Williams, 3 Mer. 157 ; Ch. 331. and see the other cases cited in the ' Re Mercantile and Exchange note to § ,1544. Banlc, L. E. 12 Eq. 268, 276. * Rayner v. Stone, 2 Eden, 128; ^ Collins v. Plumh, 16 Ves. 454. ■ Phipps V. Jachson, 56 L. J. Oh. 550 ; See also City of London v. Nash, 3 35"W.E.378. Gi.Bernardy.Meara, Atk. 512, 515. OF THE EXTENT OF THE JURISDICTION. 39 sale of the goodwill of a business. For where the contract has respect to a goodwill alone, unconnected with business premises, the Court refuses specific per- formance by reason of the uncertainty of the subject- matter, and the consequent incapacity of the Court to give specific directions as to what is to be done to transfer it.^ But where the goodwill is entirely or mainly annexed to the premises, and the contract is for the sale of the premises and goodwill, the contract may be enforced.^ For in that case the goodwill is merely the advantage attached to the possession of the house or other place of business,^ — "the probability," to use the words of Lord Eldon,* "that the old cus- tomers will resort to the old place," — together with the right which arises to the purchaser to restrain the vendor from setting up anew, or continuing, the identical business he has contracted to sell, but with- out any right, independently of stipulation, to prevent the vendor's setting up a similar business.^ In the case of contracts for the sale of the business of an attorney, the legality of stipulations comprised in them, for the purpose of giving to the party to carry on the business the advantage of the name or of the recommendation of the party not engaged in it, has been questioned by the highest authorities, including Lord Eldon, Grant M.R., and Knight Bruce L.J.'' But it seems to be now established, not only that such transactions are legally valid,^ but that they may be specifically enforced, by injunction or otherwise, by the Court.^ 1 Baxter v. Conolhj, 1 J. & W. * In C'toHto/Z v.X2/e, 17 Yes. 346. 576 ; Bozon v. Farlow, 1 Mer. 459 ; ° Cruttwell v. Lye, 17 Ves. 335 ; Coslake v. Till, 1 Euss. 376. Shachle v. Baker, 14 Ves. 468. Of. 2 Barley v. Whitaher, 4 Drew. Leggott t. Barrett, 15 Ch. D. 306 ; 134, 139, 140. Vernon v. Hallam, 34 Oh.. D. 748. 1 Y. Bewes, 5 Euss. 29 ; " Ber Lord Eldon in Candler v. Mummery v. Baul, 1 C. B. 316, Garden, Ja,o.2Sl; Bozon y. Farlow, 326; and see further, as to the 1 Mer. 459; Thornlury v. Bevill, nature of a goodwill. Potter v. Gom- 1 T. & 0. C. 0. 584. See, too, missioners of Revenue, 10 Ex. 147 ; Gilfillan v. Henderson, 2 01. & Allison Y. Monhwearmouth, 4 El. & Fin. 1. Bl. 13 ; and Lindley, Partn. (6t]i ' Bunn v. Quy, 4 Bast, 190. edit.), 441. ' WhittaJcerY. Hoive, 3 TieaY. 383; 40 THE JUEISDICTION. V. Where the performance of the contract would be useless. EevooaUe § 94. The Court will not enforce a contract whicli contracts, jg ^^ -^^ nature revocable by the defendant ; for its in- terference in such a case would be idle, inasmuch as what it had done might be instantly undone by one of the parties. Thus where the Registrar of a Consistory Court agreed to grant a deputation of his office, it was held that such a deputation was in its nature revocable, and therefore could not be enforced by the Court.* Contract § 95_ It ig on the same principle that the Court into part- generally refuses to interfere in cases of contracts to atwuf enter into partnership which do not specify the duration of the partnership — that relation, unless otherwise provided, being dissoluble at the will of either party.^ There is indeed some authority to the contrary of this proposition, consisting of a dictum of Lord Hardwicke's ^ in general terms, and two or three cases * in which specific perf onnance of contracts for partnership seems to have been enforced, but with regard to which it does not appear whether the part- nerships thus constituted were for a term or not ; and it is indeed said that Lord Eldon was not quite satisfied with his decision in the case quoted as establishing the principle.® Contract § QQ^ The doctrinc, however, appears to be gene- memberof rally accepted as that of the Court. Thus in a case company. Ibefore Lord Romilly M.R. the principle was acted on: the defendant entered into a contract with the plain- tiff company to take a certain number of shares and to execute the deed of settlement when required ; and of this contract the Court refused specific performance, because the defendant might, by the rules of the Auhin V. Holt, 2 K. & J. 66. As further, infra, §§ 843, 1540 et seq., to a medical practice, see Mai/ v. and of. Firth y. Ridley, 33 Beav. Thomson, 20 Ch. D. Y05. 516, 521. 1 Wheeler v. TroUer, 3 Sv. 174, n. ' ^^ -^"^*''" ^- ^''*''-' ^ ^t^" 383- See also Sturge y. Midland Railway ,/""»•' ^ ^^s. Sen. 629 ; Anon.. Co., 6 W. E. 233 (Stuart V.O.). ^ ^^^- ^^- *"■ '^^ ' -^'■^*^'"* ^- ^'^- hert. Coll., Partn. 133. ' Hercy v. Birch, 9 Ves. 357. See = 1 Mad. Oh. 411, n. OF TUE EXTENT OF THE JURISDICTION. 41 company, have ceased again to be a partner within fourteen days after becoming such/ § 97. It is on the same reasoning that the Court Contract declines to perform a contract to execute an instru- fJoaMe ment, if such covenants must be introduced into the instm- instrument that the party resisting the performance ™™ ' may immediately take advantage of them to deprive the other of all benefit under the instrument ; as, for instance, a contract for a lease which is to contain a proviso for re-entry on breach of a covenant, which the plaintiff has already broken.^ vi. Where the Cornet would he unable to enforce its judgment. § 98. In some old cases, the Court of Chancery Contracts entertained suits in respect of building contracts : and *° ^"'^g. what has been considered one of the earliest traces of cute the jurisdiction in specific performance is a dictum of "^°'^^^- Genney J. in the 8 Edward IV. that a promise to build a house would be specifically enforced.* Lord Hardwicke also maintained this view of the jurisdic- tion of the Court.* But it is now clearly settled that, subject to certain exceptions, the Court will not specifically enforce contracts to build or repair,'' both because specific performance is " decreed only where the party wants the thing in specie, and cannot have it any other way," " and because such contracts are for the most part so uncertain that the Court would be unable to enforce its own judgment.'^ 1 Sheffield Gas Consumers' Co. v. ' Buxton v. Lister, 3 Atk. 385 ; Harrison, 17 Beav. 294; of. BlucJc City of London y. Nash, 3 Afk. 512 ; V. Mallalue, 27 Beav. 398, 405. Dis- S. 0. 1 Ves. Sen. 12. See sAso Allen tinguish. Odessa Tramways Co. v. V. Harding, 2 Eq. 0. Abr. 17. Mendel, 8 Oh. D. 235; and of. Neiu ^ Paxton v. Newton, 2 Sm. & Gif. Brunswick and Canada Railway Co., 437; Kay v. Johnson, 2 H. & M. Limited v. Muggeridge, 30 L. J. Oh. 118; Wheatley y. Westminster Brymlo at p. 247. See also, as to contracts Coal Co., L. E. 9 Eq. 538. to form a company, Stocher v. Wed- " Per Lord Kenyon M.E. in derhurn, 3 E. & J. 393. Errington v. Aynesly, 2 Bro. 0. 0. » Per Grant M.E. in Jones v. 343 ; S. 0. 2 Dick. 692. Accord- Jones, 12 Ves. 188. ingly Lucas v. Commerford, 3 Bro. 3 See Additional Note C. at the C. C. 166. end of this volume. ' Mosely v. Virgin, 3 Ves. 184 ; 42 THE JURISDICTION. Cases ■where perform- ance re- fused. Other instances. Lord § 99. For the first of the reasons stated, Grrant M.R. refused specific performance of a covenant to make good a gravel-pit : ^ on the ground of both of these reasons, specific performance was refused in a case of a contract for the construction of a branch railway, which was entered into during the pendency of the Bill before Parliament, and when several of the directors had thoughts of withdrawing the Bill, and, as the plaintiffs alleged, would have done so, but for the contract in question : ^ and in other cases, specific performance has been refused of contracts for the working of quarries,^ and coal mines,* or involving the performance of continuous acts or duties.^ Indeed, it is a recognized rule that the Court will not decree specific performance of a contract, the execution of which would require watching over and supervision by the Court.'' § 100. In the case of Brace v. Wehnerf^ decided by Lord Romilly M.R. in March, 1858, the contract was that A. should grant a lease to B. as soon as B. should have built a house of the value of £1,400 according to a plan to be submitted to and approved by A., and B. agreed to build and take the lease: no plan had been approved : a bill filed by A. against B. was dismissed with costs. In like manner a contract by a landlord to execute repairs upon a farm was not enforced.* § 101. But, since Lord Cairns' Act (21 & 22 Vict. cf. OreenMll v. Me of Wight {New- port Junction) Railway Co. , 19 W. E. 345 ; Bernard v. Meara, 12 Ir. Ch. E. 389, 397. 1 Flint T. Brandon, 8 Ves. 159. '^ South Wales Railway Co. v. Wythes, 1 E. & J. 186; S. 0. 5 De G. M. & G. 880 ; Qreenhill v. Isle of Wight {Newport Junction) Railway Co., 19 W. E. 345. 3 Booth V. Pollard, 4 T. & 0. Ex. 61. * Pollard V. Clayton, 1 K. & J. 462. 5 Blachett T. Bates, L. E. 1 Ch. 117 ; Powell Buffryn Steam Coal Co. V. Taff Vale Railway Co., L. E. 9 Oh. 331. See supra, § 91. ^ See Ryan v. Mutual Tontine, &c. Association, [1893] 1 Oh. at p. 125 ; and of. Keith, Proivse & Co. V. National Telephone Co., [1894] 2 Oh. at p. 153. ' 25 Beav. 348. Note that this case was decided before the passing of Lord Cairns' Act. Consider Asy- lum for Fennale Orphans v. Waterlow, 16 W. E. 1102. ^ Norris y. Jackson, 1 J. & H. 319. OF THE EXTENT OF THE JURISDICTION. 43 c. 27), it has been held that where the contract is for Caima' the building of a house and also for the grant and acceptance of a lease, the Court can grant specific performance of the contract to accept the lease and give damages for the non-building of the house.^ § 102. There are, as already hinted, exceptional Excep- cases of building contracts in respect of which the /^?"^]jgj. Court will interfere. Lord Rosslyn, in a judgment the -wort which appears never to have been overruled, main- ^nd''^"^'^ tained that where a contract for building is in its essential nature defined, the Court might Avithout much diffi- p'la^ntiff. culty entertain a suit for its performance.^ Mr. Jus- tice Story argues in support of this view,^ and in Cubitt V. Smith* Stuart V.C. acted upon it. It may also be added that in Scotland many contracts to build are specifically performed, in respect of which the Court would decline jurisdiction in England, the Scotch Courts appointing some properly qualified person, under whose superintendence the work is directed to be executed.^ § 103. But whether the Court will, or will not, (^) where interfere to enforce all such contracts when definite, fendanta it appears to be settled that it will assume jurisdiction '^fJ^-^H" where we have the following three circumstances : — possession first, that the work to be done is defined ; secondly, ""^ti^ct"^ that the plaintiff has a material interest in its execu- tion, which cannot adequately be compensated for by damages, and thirdly, that the defendants have by the contract obtained from the plaintiff possession of the land on which the work is to be done. Thus the Court has in numerous cases ^ enforced on railway ' Soames v. JEdge, Jolms. 669 ;. son v. Cockermouth and Workington Mayor, &c. of London y. Southgate, Railway Co., 11 Beav. 497; Lord 38 L. J. Oil. 141 ; IV W. E. 197. Darnley v. London, Chatham and 2 Moaely t. Virgin, 3 Yes. 184. Dover Raihoay Co., 1 De Gr. J. & S. 3 Eq. Juris. § 728. 204 ; 3 ib. 24 ; L. E. 2 H. L. 43 ; * 10 Jur. N. S. 1123 ; 11 L. T. Bir E. B. Lytton t. Oreat Northern 298; Eephurn y. Leather, 50 L. T. Railway Co., 2 K. & J. 394; IF&ora (jgO. V. Furnesa Railvjay Co., L. E. 9 Eq. 5 Clarle v. Glasgow Assurance Co., 28 ; Hood v. North Eastern Railway 1 M'Qu. 668. Co., L. E. 5 Oh. 525 ; cf. Wilson v. « Storer v. Great Western Railway Northampton and Banhury Junction Co., 2 y. & 0. 0. 0. 48 ; Saunder- Railway Co., L. E. 9 Oh. 279 ; and 44 THE JUKISDICTION. Contract to make siding or accom- modation works. Contract to erect market- house. companies contracts to make and maintain works for the convenience of the lands of the plaintiff. It has done this in cases in which the terms of the contract have been general and difficult to execute. And in Wolverhampton Corporation v. Emmons,^ a purchaser of land from an urban sanitary authority was ordered to perform specifically a contract to erect houses on the purchased land in accordance with plans submitted to and approved by the plaintiffs' public works com- mittee. § 104. In another case a contract by a railway company to construct and maintain, upon land belong- ing to and to be provided by a landowner, a siding of specified length alongside the line, was held capable of specific performance ; and the company were not allowed to resist performance on the ground that the plaintiff had, before filing his bill, entered into a negotiation (which failed) for a money compensation.^ And where the undertaking of a railway company, which had covenanted with a landowner to make and maintain certain accommodation works, was trans- ferred by Act of Parliament to another railway company " subject to the contracts, obligations, and liabilities " of the former company, the landowner was held entitled to enforce specific performance of the covenants against the transferee company.^ § 105. There is also a reported case in which the plaintiff had sold lands to the defendants, a municipal corporation, who by the deed of sale covenanted forth- with to make a road and erect a market-house on the land. They entered and made the road, but neglected to build the market-house. Wigram V.C. observed that the defendants having had the benefit of the contract in specie, the Court would go any length that Ryan v. Mutual Tontine, &c. Asso- ciation, [1893] 1 Ch. at p. 128. See also McManus v.. Coolce, 35 Ch. D. 680 ; Hepburn y. Leather, uhi sup. 1 [1901] 1 K. B. 513. ' Qreene j. West Cheshire Railway Co., L. E. 13 Eq. 44 ; Todd v. Mid- land O. W. Railway of Ireland, 9 L. E. (Ireland) 85. 5 Fortescue v. Lostwithiel, &c. Raihvay Co. (wMch see for the form of judgment), [1894] 3 Ch, 621, 640. OF THE EXTENT OF THE JURISDICTION. 45 it could to compel them to perform their contract in specie.^ § 106. In this case, as in the railway cases pre- Amount of viously quoted, the plaintiS, having parted with the l^^^f^^t land, had no opportunity of doing the work which the tainabie defendants had contracted to do, and so ascertaining ^^^^ ""' the amount of damages sustained by their non-per- formance ; ^ but though part-performance has to this extent been held important, it must be borne in mind that it will in no case enable the Court to intervene where it has no jurisdiction in the original subject- matter of the contract.^ § 107. Where the act alleged as part-^^erformance Act of is one proper to be brought before a jury and can be formarfre answered in damages, non-pei'formance of the rest of answrr- the contract does not constitute that fraud which is damajes. the origin of the Court's jurisdiction in cases of part- performance in this respect, as well as when treated as an exception to the Statute of Frauds.* § 108. In one case Lord Eldon, though express- Covenant ing a difficulty in decreeing repairs to be done affirina- can;a m tively, yet by means of an injunction in fact granted rerair. performance of a covenant to keep a canal and its stopgates in repair for the benefit of the lessee of a mill interested in them.® § 109. Where default has been made in the exe- French cution of works contracted to be done, the French ixT«utio°i law authorizes the injured party to execute the works of works. at the expense of the defaulter.® It seems worthy of consideration whether a like remedy might not be usefully introduced into our own law. 1 Pricey. Corporation of Penzance, 640, 648; Cramptonr. Varna Bail- 4 Ha. 506. See also Pembroke v. way Co., L. E. 7 Ch. 562. Thorpe, 3 Sw. 437, n. : Oxford v. i South Wales Raihvay Co. v. Provand, L. E. 2 P. C. 135. Wythes, 1 K. & J. 186 ; and see 2 Per Lord Hatherley (then Wood infra, § 585. u.) in South Wales Railway Co. Wythes, 1 K. & J. 200. ^""' "^• ' Kirh V. Bromley Union, 2 Ph. ^ Code Civil, §§ 1143, 1144. V.C.) in South Wales Railway Co. ^t j- j ^c^\T mo „ , , T^ „ T „„„ ^ Lane v. Newdigate, 10 Ves. 192. V. Wythes, 1 K. & J. 200. " 46 THE JURISDICTION. vii. Whei^e the enforced performance of the contract would he worse than its non-performance. Hmng ^ § 110. The relation established by the contract of service. hiring and service^ is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the Court against an un- willing party with any hope of ultimate and real success ; and accordingly the Court now refuses to entertain jurisdiction in regard to them.^ Such § Wi. In former times this seems to have been formerly othorwisB. In a case decided by Lord Cowper and enforced, the House of Lords, there was a contract by which a skilled person had bound himself to serve during his life as manager and overseer to a company engaged in the manufacture of brass, and the company had agreed to pay him a certain salary and 3s. %d. for every hundred-weight of brass wire made by him or any other person for them during his life ; on a bill by the manager, Lord Cowper decreed the payments according to the articles for past services, and specific performance of them for the future, by the plaintiff again repairing to the works and acting according to the articles, if the defendants should require the same. The appeal from this decree to the House of Lords was by the plaintiff on a point of the construction of the contract as to the 3s. %d. per cwt., which resulted in a modification of the decree according to his contention.^ And in another case Lord Hardwicke specifically enforced against the plaintiffs as part of the things to be done by them under the contract, a stipulation by the East India Company to employ a man as a packer.* 1 See per Jessel M.E. in Bigly interference in respect of contracts V. Oonnol, 14 Ch. D. at p. 487. strictly personal in their nature. * See Oillis v. McGliee, 13 Ir. Ch. See also De Francesco v. Barnum, E. 48, 57 ; WhiU y. Bohij, 26 W. E. 45 Ch. D. 430. 133. In Bighy v. Oonnol, 14 Ch. D. ^ Sall v. Coggs, 1 Bro. P. C. 140. at p. 487, the opinion appears to This case involves the validity of have been intimated by Jessel M.E. contracts of service for life; as to that the fact of there being no pro- which see also Wallis v. Day, 2 M. perty, the right to which is taken & W. 273. away from the person complaining, * East India Co. v. Vincent, 2 lies at the root of the Court's non- Atk, 83. \ OF THE EXTENT OF THE JURISDICTION. 47 § 112. But the difficulty of enforcing such contracts Secus now. in specie is now admitted by the Court. It is not for the interests of society that persons who are not desirous of maintaining continuous personal relations with one another should be compelled so to do.^ In a case where the plaintiffs had contracted for a specified sum to work the line of a railway company and to keep the engines and rolling stock in repair, the Court, considering this to be a contract for services, refused to enforce it.^ "We are asked," said Knight Bruce, L.J.,® " to compel one person to employ against his will another as his confidential servant, for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and most competent persons that ever lived, still, if the two do not agree, and good people do not always agree, enormous mischief may be done." § 113. The proposal to apply the principles of specific performance to contracts of service which would have affected the Ryots of Bengal led to a vigorous protest from Lord Lawrence, whose observa- tions on the point may be read with profit.* § 114. In one case a grant having relation to an instances. office of a personal and confidential character, was held to be incapable of being specifically enforced ; ® in another instance, where an indenture was held to constitute the relation of master and servant, and not of partner. Lord Truro dissolved an injunction which had been previously granted, restraining the defendant from excluding the plaintiff from the management of the business : ^ and in another case, where a contract by the plaintiff to employ the defendant as manager of a business formed part of a contract by which the ' De Francesco v. Barnum, 45 ^ p. 926. Oil. D. 430 ; Whitwood Chemical i Life of Lord Lawrence by \ Co. V. Hardman, [1891] 2 Ch. 416 ; gmith, 552. ^ ^ JoTinson v. Shrewsbury and Bir- mingham Railway Co., 3 De G. M. ° Stocher v. Brochlebank, 3 Mac. & G. 914. See, too, Eorne Y.London & G. 250; cf. Weib v. England, 7 and North Western Railway Co., 10 Jur. N. S. 153 ; 9 "W. E. 183 ; 30 W. E. 170. L.J. Oh, 222. 48 THE JUEISDICTION. defendant agreed to grant to the plaintiff a lease of a wharf, specific performance was refused on the ground of ^ want of mutuality.^ On the other hand, where a railway company had contracted with a landowner not only to make and maintain accommodation works, but also to do certain acts in the nature of personal services, it was held that, the stipulation as to those acts being part of a larger contract which was specifi- cally enforceable, the Court could and would decree performance of the stipulation, although it might not be possible to enforce performance otherwise than by means of a sequestration.^ ofa<'en ^ 115. In like manner the Court cannot enforce ^oenoy. (,Qj-^^j,^g^g q£ agoncy : aa has been illustrated in the cases of contracts to employ a shipping-broker^ and auctioneer.* Nor can the Court specifically enforce a contract of apprenticeship against an infant, though he may have validly bound himself by it.^ Contracta VUl. Where no considera- tion. Where the contract is voluntary. § 116. The Court will never lend its assistance to enforce the specific execution of contracts which are voluntary, or where no consideration emanates from the party seeking performance,^ even though they may have the legal consideration of a seal : and this principle applies, whether the contract insisted on be in the form of an executory agreement, a covenant, or a settlement.'^ The peculiar doctrines of the Court as ' Ogden v. Fossick, 4 De Q-. F. & J. 421 ; of. Stacker v. Wedderhurn, 3 K. & J. 393 ; Firth v. Bidley, 33 Beav. 516. ^ Fortescue v. Losfwithiel, &c. Railway Co., [1894] 3 Ch. at pp. 639, 640. ' Brett V. East India and London Shipping Co., Limited, 2 H. & M. 404. * Chinnoch v. Sainshury, 30 L. J. Ch. 409 ; Bertram v. Eale, 27 Sol. Jour. 39. ^ 1 Eq. 0. Abr. 6 ; Be Francesco V. Barnum, 43 Ch. D. 165; S. 0. on trial, 45 Ch. D. 430. ^ Wycherley t. Wycherley, 2 Ed 175 ; Groves v. Groves, 3 T. & J, 163; Houghton v. Lees, 1 Jur. N. S 862 (Stuart V.O.); Ord v. Johnston. id. 1063; 4 W. E. 37 (Stuart V.C.) Walrond v. Watrond, Johns. 18 Kennedy v. May, 11 W. E. 358 See, too, per Lord Eldon in Penn T. Lord Baltimore, 1 Ves. Sen. at p. 450, and distinguish Cheale v. Kenward, 27 L. J. Ch. 784, and Stephens v. Green, [1895] 2 Ch. 148, 162. ' Jeffreys v. Jeffreys, Cr. & Ph. OF THE EXTENT OF THE JUEISDICTION, 49 to the consideration which permeates^ contracts in relation to marriage settlements must be borne in mind in relation to the foregoing statement. § 117. In the case of contracts for the purposes of mere no pleasure, scientific pursuits, charity, or philanthropy, property it has been said^ that "no Court of Justice can affected. interfere, so long as there is no property the right to which is taken away from the person complaining." ix. Where the flaintiff has elected to proceed in some other manner than for specific performance. § 118. Where a plaintiff proceeded at Common Where Law and recovered damages for breach of the con- preceded tract, he could not afterwards sue in Equity for its at Law. specific performance.® But of course it was not every proceeding at Common Law under a contract which barred its specific performance in Equity.^ This result was effected only where the legal and equitable relief were in respect of the same thing. § 119. In Bwinfen v. Sivinfen,^ Knight Bruce L.J. Opinion of seemed to think that the fact of applying to the Court sruoeL.J. of Common Pleas for an attachment to enforce a contract to compromise would stand in the way of the applicant afterwards suing in Chancery for perform- ance of the same contract. And in Blackett v. Bates^ Lord Cranworth intimated Opinion of the opinion that a party to an award could not, after q°1^_ unsuccessfully taking proceedings to set it aside, insist worth. on having it specifically performed. But in a case already referred to, a negotiation for the payment of a money compensation which went off was held not to 138 ; Eervey v. Audland, 14 Sim. '^ Per Jessel M.E. in Rifjly v. 531. See the older cases discussed Connol, 14 Ch. D. at p. 487 ; Baird > in 1 Mad. Oh. 413 ; and of. Be King, v. Wells, 44 Ch. D. 661. 14 Ch. D. at p. 186. Consider, too, 3 ^^^ .,^^^^ ^_ Ferguson, 1 Mao. & Andrews v. Salt, L. E. 8 Ch. 622, q 286 ; cf. Fox y. Board, 33 Beav. 636; Joyce v. Button, 12 Ir. Ch. E. 027 71 ; and Chetwynd v. Morgan, 31 , ,r .7 ^ ^ it ^i t, n riJ -r^ ro^ ^ North V. Great Northern Bail- > Cf. infra, § 202 ; ^ud^BeD^Angi- "'"^^ ^''■' " ^'^- *^*- lau, 15 Oh. D. 228, 242. Consider ^ 2 De G. & J. 381, 391. Lee V. Lee, 4 Oh. D. 175. « L. E. 1 Oh. at p. 126. F . ^ Clauses Act. ^^ THE JURISDICTION. be an election wliicli precluded the relief in specific performance.^ ki^smder § 120. In a casc where a railway company was Lauds entitled to enforce a contract as to the sale of lands entered into by the defendant with the promoters of the company, the company first took proceedings under the Lands Clauses Consolidation Act for a compulsory purchase, then took compulsory possession of the land by virtue of a bond, and lastly filed their bill for specific performance of the contract. It was held that they had taken the benefit of sections of the Lands Clauses Consolidation Act to which they were not entitled if a binding contract subsisted, and their bill was dismissed.^ The pre- § ISl. It is conccived that the principle embodied tioe. ^'^^°' in the case last cited will continue to be observed by the Supreme Court,^ But so far as the form of the proceedings is concerned, the right of claiming alter- native* relief, and the wide powers of amendment^ exercisable under the new practice, will in all proper cases enable a plaintiff to obtain relief by way of specific performance, provided that the facts proved and the rest of his claim as presented or insisted on at the trial are not inconsistent with such relief.® X. Where the jurisdiction has been taken away hy statute. Fines and § 122. By scct. 47 of the Fincs and Recoveries Recoveries Abolition Act (3 & 4 Will. IV. c. 74), any jurisdiction which the Courts of Equity might otherwise have had to treat a disentailing assurance under the statute as a contract of which specific performance might be granted, is taken away.'^ But this does not affect the jurisdiction which the Courts possessed of enforcing ' Greene v. West Cheshire Rail- * E. S. 0. Ord. XX. r. 6. way Co., L. E. 13 Eq. 44. = e. g. q. Qrd. XXVIII. ^ Bedford and Camhridge Railway " Cf. Cargillv. Bower, 10 Oh. D. Co. V. Stanley, 2 J. & H. 746. 502, 508 ; Newly v. Sharpe, 8 Ch. D. ^ See Thompson v. Ringer, 29 39; Laird y. Briggs, 19 Gh.T). 22. W. E. 520, infra, § 1139. ' Bankea y. Small, 36 Ch. D. 716. OF THE EXTENT OF THE JURISDICTION. 51 against the actual contracting tenant in tail a contract to execute a disentailing assurance/ xi. The jurisdiction is against the defendant personally. § 123. The jurisdiction in specific performance is Equity against the person of the defendant on the equity ^"'^^^gj arising from the contract. This principle is fertile in the per- results, '°°- § 124. One result is that where the defendant is where de- a person over whom the tribunals of this country have \l^^^^^. no jurisdiction, there can be no relief. Hence no jeottothe specific performance can be awarded against a foreign ji™^^°' government of a contract entered into by such govern- ment with a private person.^ § 125. Another result of this principle is that it Where constitutes no objection to specific performance, that originiity the subject-matter with which the contract deals was^ipj."™- not originally within the jurisdiction of the Court, as the contract itself may give the Court jurisdiction in specific performance, as well as in damages. The original jurisdiction in respect of the boundaries of our plantations in North America resided in the King in Council; but a contract respecting them having been entered into between adjoining proprietors was held by Lord Hardwicke to give the Court jurisdic- tion;^ and on the same principle, although the Court has no jurisdiction in matrimonial causes, yet, where there has been a contract or covenant, it may interfere to enforce the execution of a proper separation deed, or to restrain the breach of a covenant contained in it.* § 126. This introduces to our consideration the Foreign subject of foreign contracts. °°" ^^°^^' 1 Att.-Oen. T. Day, 1 Yes. Sen. ^ Penn v. Lord Baltimore, 1 Ves. 218, 223 ; Lewis v. Buncombe, 20 Sen. 444. Consider Norris v. Beav. 398; Petre v. Duncomhe, 7 OJiambres, 3 De Gr. P. & J. 583 Ha. 24 ; Bering v. Kynaston, L. E. (aflBrming S. 0. 29 Beav. 246). 6Eq. 210; Sail Bare y. Hall Bare, * Wilson y. Wilson, 1 H. L. C. 31 Ch. D. 251. 538; S. 0. 14 Sim. 405; 5 H. L. 0. * Smith T. Weguelin, L. E. 8 Eq. 40. See, too, Caliill y. CaMU, 8 198. App, Oas, 420. e2 52 THE JURISDICTION. The general principle which regulates the place for the enforcement of contracts is, it is conceived, ex- pressed in the maxim '^ actio sequitur forum rei.''^^ It follows from this that a contract made abroad may be enforced against a defendant within the jurisdiction of this country, and as the remedies for breach of a contract are clearly governed by the lex fori, or law of the place where the action is brought,^ it follows that it is no objection to the specific performance in Eng- land of a foreign contract that the foreign law might have given no such remedy. Accordingly a marriage contract made in France was specifically executed here, the parties to it having come to this country as refugees.^ Contracts § 127. This jurisdiction is not confined to cases immovf- ° ^f coutracts relative to personal property, but extends able pro- to those relative to real or immoveable property, where the defendant is within the jurisdiction of the Court. The maxim is ^^ ^quitas agit in personam,'''' and any operation of the judgment on the immoveable estate abroad is not direct but indirect, and only through the medium of the person affected by the judgment. Thus where Sir Philip Carteret, the owner of the island of Sark, had mortgaged it, and a bill was brought against him by the mortgagee for foreclosure, a plea put in by the defendant that the island was not within the jurisdiction of the Court of Chancery was overruled.^ § 128. But the Court has been careful to confine its jurisdiction to relief arising strictly from privity of contract : it has nothing to do with rights arising from privity of estate in any other country.^ So in Norris v. Chamhres^ the Court declined to enforce a lien on foreign real estate, though the parties were perty. There must be privity of contract. • Davis T. Park, L. R. 8 Ch. 862. " Story's Conflict of Laws, § 556. a Foubert v. Twist, 1 Bro. P. C. 129. * Toller V. Carteret, 2 Vern. 494. See, too. Comes Arglasse v. Mus- champ, 1 Vern. 75 ; Jackson v. Petrie, 10 Ves. 164 ; Lord Portar- Ungton v. Soully, 3 My. & K. 104, 108 ; Story Eq. Jur. § 743. * Vincent y. Godson, 4 De G. M. & G. 546 ; see, too, the argument in Tnnes v. Mitchell, 4 Drew. 67, and tlie cases collected in the note, p. 99. « 29 Beav. 246; 3 De G. F. & J. 583. OF THE EXTENT OF THE JURISDICTION. 53 residing here, and the defendant had taken the estate with notice of the contract from which the lien was sought to be raised. § 129. It has been said by Mr. Justice Story^ that Mr. Jua- " the doctrine of the English Courts of Chancery on tTle"'^ this head of jurisdiction seems carried to an extent Engiisii which may perhaps in some cases not find a perfect ^°''^''""'- warrant in the general principles of international public law." A.nd Lord Romilly M.R. in the case last cited, adopting this remark, expressed his disposition not to go a step further than the cases warranted and demanded.^ § 130. It remains to notice a case in which the The case Court of Chancery granted relief with a view to sefwi^J' specific performance against a defendant not within the jurisdiction.^ In that case Hart, a domiciled Englishman, agreed at Hamburg with Herwig, domi- ciled at Hamburg, for the purchase of a ship to arrive .from San Francisco, for a certain sum liable in the event of certain damage to an abatement. The ship arrived in this country. The plaintiff claimed the abatement, the amount of which he alleged could be ascertained by a survey, which Herwig and the master refused and declined to complete except on payment of the full price. The bill was against Herwig and the master, and prayed specific performance and an injunction against removing the ship. This injunc- tion was granted by Malins V.C., and upheld by James and Mellish L.JJ. Their Lordshijos drew a distinction between an action for damages and the suit. If it had been the former it was said that the action must have been in the forum of the defendant. ''But where," said James L.J.,* "the contract as in this case though made abroad is to deliver a thing in specie to a person in this country, and the thing itself 1 Conflict of Laws, § 544. Public Works Co., 7 Oh. D. at ^ See, further, as to land in the p. 335. Colonies, He Holmes, 2 J. & H. 527 ; ^ Rart v. Henvig, L. E. 8 Ch. Sichel T. Raphael, 3 N. E. 662 ; 860. Distinguish Bowney v. Alder, Reiner v. Marquis of Salisbury, 2 before Pollock B. as Vacation Oh. D. 378; a,nioi.per JesselM.E. Judge, 24 Sol. Jo. 807. in Norton v. Florence Land and * At p. 864. 54 THE JURISDICTION. Service out of the jurisdio- tion. is broiaght here, then the Court here, in the exercise of its discretion, will see that the thing to be delivered in this country does not leave this country, so as to defeat the right of the plaintiff to have it so delivered." The law thus laid down seems to create an exception to the general principle of international law, which requires the plaintiff to seek the defendant and to sue in his forum. The decision is remarkable, but it has the authority of three unanimous judges. § 131. It should be added that service of a writ or notice of a writ of summons maj be allowed out of the jurisdiction when any contract affecting land or hereditaments within the jurisdiction is sought to be enforced in the action, or when the action is founded on any breach or alleged breach within the jurisdiction of any contract, wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant be domiciled or ordinarily resident in Scotland or Ireland.^ Xll. Quasi- contracts under liands Clauses Act. EflEect of notice to treat. Quasi-contracts in respect of which the Court has Jurisdiction. § 132. There is a class of quasi-contracts in re- spect of which the Court entertains jurisdiction, viz. where the relationship of vendor and purchaser is con- stituted by the exercise of those compulsory powers of railway and other companies which are conferred by the Lands Clauses Consolidation Act, 1845, and similar statutes. They are here called quasi-contracts, because when the proceedings are strictly under the statute there is an absence on the part of the man whose land is taken on that volition, which seems an essential element in all true contracts. § 133. It was at one time supposed that the mere notice to treat constituted the relation of vendor and purchaser to such an extent that a suit in Equity could thereupon be maintained. But it is now well ascertained that such is not the case, and that though the notice constitutes the relation for certain purposes, ' E. S. 0. Ord. XI. r. 1. OF THE EXTENT OF THE JURISDICTION. 55 sucli as that the particular lands to be taken are fixed, and that the company cannot get rid of the obligation to take nor the landowner of the obligation to give up these lands, yet that there is no contract between the parties and no ground for equitable intervention.^ § 134. After this notice is given, the Act points Procedm-e out the method in which the purchase-money is to be notice*'"' ascertained. If the amount claimed do not exceed 50?. it is to be settled by two justices : if it exceed 501 it is to be settled by arbitration if the landowner so require, but otherwise by a jury, to be summoned at the instance of the company.^ § 135. If after notice given the landowner refuse Eefusaito to convey, the company can proceed against him under afteTthe their statutory powers, but have no ground for equit- notice. able relief : and conversely if after notice the company refuse to proceed, the landowner cannot, it is conceived, generally sue in Equity ; but he may apply for a man- damus to compel the company to proceed under the statute to ascertain the compensation money payable.^ § 136. There is one case,* however, in which Theeom- jurisdiction was entertained by the Court of Chancery C^ed to to enforce on the railway company proceedings under proceed. the Lands Clauses Consolidation Act. The question was how far a piece of land came within the definition of curtilage^ so that if the company took any part they could be compelled to take the whole under sect. 92 of the Lands Clauses Consolidation Act. The company gave a notice to take the part : the plaintiff gave a counter-notice to take the whole : the company took possession of part, and the plaintiff thereupon filed his bill and obtained at the hearing a declaration that the company were liable to take the whole and a reference ' Haynes v. Haynes, 1 Dr. & Sm. Lincl v. Isle of Wight Ferry Go., 7 426, where all the earlier cases are L. T. N. S. 416; 1 N. E. 13; cf. considered and classified. See, how- Leominster Canal Navigation Co. v. ever, Marson t. London, Chatham Shrewslury and Hereford Railway and Dover Railway Co., L. E. 6 Eq. Co., 3 K. & J. 654; and consider 101; 7 Eq. 546. Baker v. Metropolitan Raihvay Co., " Lands Clauses Consolidation 31 Beav. 504, 511. Act, 1845, sects. 22 and 23. * Marson v. London Chatham and ^ Adams Y. London and Blachwall Dover Railway Co., L. E. 6 Eq. Railway Go., 2 Mac. & G. 118; 101. 56 THE JURISDICTION. for title ; when the case came on for further considera- tion^ the plaintiff's counsel admitted that there was no precedent pointing out what course was to be pursued ; but they asked and obtained a direction that the defendant company should proceed under the Lands Clauses Consolidation Act to ascertain the amount payable for the value of the land, and directions for the payment of this amount and execution of the conyeyance. The question of jurisdiction to make such a decree as was made does not seem to have been raised at the hearing. ParHa- § 137. After the ascertainment of the amount of SitSraot. purchase-money, the equitable jurisdiction of the Court of Chancery was clear. There then exists what has been called a parliamentary contract, and the per- formance of that so-called contract could not be enforced at Common Law, for the Courts of Common Law having no machinery for investigating the title or settling the conveyance could not do complete justice between the parties ; but a suit might have been maintained in Equity by either party to carry into execution this quasi-contract.^ For this purpose it seems to have been considered immaterial whether the compensation money had been ascertained in strict pursuance of the Act or otherwise. In Mason v. Stokes Bay Pier ^ Railway Co? and Harding v. The Metro- politan Railway Co.*' the compensation money was ascertained by statutory arbitrations ; in Nash v. The Worcester Improvement Commissioners^ by the verdict of a jury ; in Inge v. Birmingham., Wolverhampton 6f Stour Valley Railway Co.^ the compensation was settled by correspondence ; in The Regenfs Canal Co. v. Ware'^ by arbitrators appointed under a written agreement ; and in Watts v. Watts ^ by two surveyors named by parol ; 1 L. E. 7 Eq. 546. ' 11 W. E. 80; 32 L. J. Oh. 110. = Regent's Canal Co. v. Ware, 23 * L. E. 7 Oh. 154. Beav. 675 ; Mason v. Stohes Bay '• 1 Jur. N. S. 973. Pier and Railway Co., 32 L. J. Oh. « 1 Sm. & GifE. 347; S. 0. 3 De 110; 11 W. E. 80; Harding v. G. M. & G. 658. See, too, Bee v. Metropolitan Railway Co., L. E. 7 Stafford and Uttoxeter Railway Co., Oh. 154; Watts v. Watts, L. E. 17 Eq. 23 W. E. 863. 217 ; Re Pigott and Great Western ' 23 Beav. 575. Railway Co., 18 Ch. D. 146. » L. E. 17 Eq. 217. OF THE EXTENT OF THE JURISDICTION. 57 and in all these cases, as well where the Act was as where it was not strictly pursued, the Court of Chan- cery entertained jurisdiction. In the latter class of cases the relation constituted approached to, if it did not assume, the character of true contract. § 138. When the quasi-contract has been estab- AppHca- lished by notice and the ascertainment of the price, quasi- all the ordinary rules which prevail between vendor ^f^^fg"*^ and purchaser apply unless excluded by statutory relating to enactment. On this principle a railway company has "^t"^*^^"'^- been held liable to pay interest on the purchase-money in a case in which an ordinary purchaser would have been so liable.^ § 139. It is probably hardly needful to observe ^j^g^'foi. that, if, after statutory notice, a contract should be lowed by a entered into between the company and the landowner, «oiit''aot. such a contract may be the subject-matter of an action for specific performance, just in the same way as any other contract.^ It is none the less a contract because the relations between the parties began under the statutory powers of the company. 1 Re PigoU and Great Western Health (15 Cli. D. 108), where the Railway Co., 18 Ch. D. 146. defendants ingeniously, but unsuc- cessfully, tried to give the go-by 2 Per Kindersley V.C. in Haynea ^^ ^-^^ contract by proceedings V. Haynes, 1 Dr. & Sm. 457. See under §§ 76, 77 of the Lands Wells V. Chelmsford Local Board of Clauses Act, 1845. 58 CHAPTER III. OF CONTEACTS WITH A PENAL OR OTHER LTKE SUM. Effect on tlie juris- Siotion. Tte question stated. Contracts § 140. From the principles stated in the last chapter, it appears that where a contract is substan- tially performed by the payment of a sum of money, the Common Law remedy being adequate. Equity will not interfere. Hence, in cases where there is added to the contract a clause for the payment of a sum of money in the event of non-performance, the question arises whether the contract will be satisfied by its payment, or whether it will not. In the former case, Equity will not interfere ; in the latter it may. § 141. The question always is. What is the con- tract ? Is it that one certain act shall be done, with a sum annexed, whether by way of penalty or damages, to secure the performance of this very act ? or is it that one of two things shall be done at the election of the party who has to perform the contract, namely, the performance of the act or the payment of the sum of money ? If the former, the fact of the penal or other like sum being annexed will not prevent the Court's enforcing performance of the very act, and thus carrying into execution the intention of the parties : ^ if the latter, the contract is satisfied by the payment of a sum of money, and there is no ground for pro- ceeding against the party having the election to compel the performance of the other alternative. § 142. From what has been said it will be gathered 1 Howard v. Hopkins, 2 Atk. 371 ; French v. Macale, 2 Dr. & War. 269 ; Soper V. Bartliolomew, 12 Pri. 797. CONTEACTS WITH A PEKAL OR OTHER LIKE SUM. 59 that contracts of the kind now under discussion are of tiie divisible into three classes : — ■ classified. (i.) Where the sum mentioned is strictly a penalty — a sum named by way of securing the performance of the contract, as the penalty in a bond : (ii.) Where the sum named is to be paid as liqui- dated damages for a breach of the contract : (iii.) Where the sum named is an amount the payment of which may be substituted for the per- formance of the act at the election of the person by whom the money is to be paid or the act done. Where the stipulated payment comes under either of the two first-mentioned heads, the Court will enforce the contract, if in other respects it can and ought to be enforced, just in the same way as a contract not to do a particular act, with a penalty added to secure its performance or a sum named as liquidated damages, may be specifically enforced by means of an injunc- tion against breaking it. On the other hand, where the contract comes under the third head, it is satisfied by the payment of the money, and there is no ground for the Court to compel the specific performance of the other alternative of the contract.^ It will be con- venient to consider the three classes of cases sepa- rately. § 143. (i.) A penalty (strictly so called) attached i. Contract to the breach of the contract will not prevent it from pe^^ity being specifically enforced. strictly so '' The general rule of Equity," said Lord St. '=^^^''^- Leonards,^ "is that if a thing be agreed upon to be done, though there is a penalty annexed to secure its performance, yet the very thing itself must be done. If a man, for instance, agree to settle an estate and 1 " There are," said Lord Bram- an act, with liquidated damages to ■well, in Legh v. Lillie, 6 H. & N. be paid if the act is done, which 165, 171; 30 L. J. Ex. 25, 28, are not withia the statute: and " three classes of covenants; first, thirdly, covenants that acts shall covenants not to do particular acts, not be done unless subject to a with a penalty for doing them, certain payment." ■whicharewithintheS&gWill. in. ' In French v. Macale, 2 Dr. & c. 11 : secondly, covenants not to do War. 274-5. 60 THE JURISDICTION. execute his bond for 600^. as a security for the per- formance of his contract, he will not be allowed to pay the forfeit of his bond and avoid his agreement, but he will be compelled to settle the estate in specific performance of his agreement.^ So if a man covenant to abstain from doing a certain act, and agree that if he do it he will pay a sum of money ; it would seem that he would be compelled to abstain from doing that act, and, just as in the converse case, he cannot elect to break his engagement by paying for his violation of the contract." Instances. §144. Thus, whcrc two persons entered into articles for the sale of an estate, with a proviso that, if either side should break the contract, he should pay 100^. to the other, and the defendant, by his answer, insisted that it was the intention of both parties that, upon either paying 100/., the contract should be absolutely void, Lord Hardwicke nevertheless decreed specific performance of the contract to sell.^ In another case, the condition recited a contract for a settlement com- prising a sum of money and also real estate : the jDenalty was double this sum of money, but had no relation to the real estate : the Court granted specific performance of the contract embodied in the condi- tion.^ And where a father, in consideration of his daughters' giving up' a part of their interest in the property, agreed to make up their incomes arising out of it to 200l. a year, and entered into a bond for the payment of such sum as might be needful for that purpose, and the bond recited the contract, the Court took this as evidence of the .contract, and accordingly granted relief on the foot of it beyond the bond ; * and in a case which went to the House of Lords, a contract (contained in the condition of a bond) to give certain property by will or otherwise, was held not to be satis- fied by the penalty, but was specifically performed.® 1 The case referred to seems to be * Jeudwine v. Agate, 3 Sim. 141. OhiUiner v. Chilliner, 2 Yes. Sen. ° ^ogan t. WienhoU, 7 BK. N. S. 1; 1 01. & Pin. 611. See also Butler V. Powis, 2 Coll. 156; Na- » Hoioard v. Hopkins, 2 Atk. 371. Uonal Provincial Bank of England 3 PrebUe v. Boghurat, 1 Sv. 309. v. Marshall, 40 Oh. D. 112. CONTRACTS WITH A PENAL OR OTHER LIKE SUM. 61 § 145. So, again, a contract not to carry on a par- Contract ticular kind of business within certain limits expressed ^^'^joq in the condition to a bond can be enforced by injunc- business. tion.^ § 146. (ii.) The difference between penalty and jj;^^!^^ liquidated damages is, as regards the Common Law between remedy, most material. For according to Common and^'kfui- Law, if the sum named is not a penalty, but the agreed dated amount of liquidated damages, the contract is satisfied ^^"^^s'^^- either by its performance or tlie payment of the money.^ But as regards the equitable remedy the distinction is unimportant : for the fact that the sum named is the amount agreed to be paid as liquidated damages is, equally with a penalty strictly so called, ineffectual to prevent the Court from enforcing the contract in specie.^ § 147. The simplest illustration of this is the ordi- Condition nary case of a stipulation on the sale of real estate oovery of that if the purchaser fail to comply with the condition ^^^^'g'^^",^"/ he shall forfeit the deposit, and the vendor shall be at liberty to resell and recover as and for liquidated damages the deficiency on such resale and the expenses.* Such a condition has never been held to give the pur- chaser the option of refusing to perform his contract if he choose to pay the penalty, nor to stand in the way of specific performance of the contract. S 148. In French v. Macale^ Lord St. Leonards fully -f'*"""'' ^^■ 1 Clarhson r. Edge, 33 Beav. 227 ; ^ Cihj of London v. Pucjh, 4 Bro. Gravely v. Barnard, L. E. 18 Eq. P. C. 395 ; Webb v. Clarh, 1 FonU. 518; of. William Robimon & Co., Eq. 154; French^. MamU,1T)T:.&, Lid. V. Eeuer, [1898] 2 Ch. at War. 296 ; CoM v. Bims, 5 De G. p. 458. M. & G. 1 ; Garden y. Butler, Hayes 2 Anon., Hard. 320 ; Lowe v. & J. 112; Bird v. LaJie, 1 H. & M. Peers, 4 Burr. 2225 ; Hurst y. Hurst, 111; cf. Bray v. Fogarty, I. E. 4 4 Ex. 571 ; Legh v. Lillie, 6 H. & N. Eq. 544. 165; Mercer y. Lrving, El. BI. & ^ "A purchaser," said Lord Eldon E. 563 ; Atkyns v. Kinneir, 4 Ex. -^ Orutchley y. Jerningham (2 Mer. 776. As to the distinction between g^g^^ « ^^^ ^^ ^^^^^ ^^ ^^^ ^j^^j. ^^ penalty and liquidated damages, ^^^ ^^^ ^^ ^^^ ^^ ^■^^^ agreement, see also Lord Elphinstone y. Monk- foj-f^jting his deposit." Of. Long v. land Lron and Goal Co., 1 1 App. Gas. Bowring, 33 Beav. 585. 332, 346—348 ; and Wallis y. Smith, 21 Gb. D. 243, 249, 258. ° 2 Dr. & War. 269. 62 THE JURISDICXIOK. discussed the law as to compelling the performance of contracts of the kind under discussion. In that case there was a covenant in a farming lease "not to burn or bate the demised premises or any part thereof under the penalty of 10/. per acre to be recovered as the reserved yearly rent for every acre so burned." His Lordship appears to have considered this increased rent as in the nature of liquidated damages and not a penalty, but nevertheless he granted an injunction against the burning, saying after a careful review of the authorities that in every case of this nature the question is one of construction, and that the Court will always interfere unless there is evidence of an inten- tion that the act is to be permitted to be done on pay- ment of the increased rent. £irdy. R 149. lu oue caso a deed was executed dissolving Lam. " 1 • 1 , TT IT 1 J ■ • a partnership between H. and L., and contammg a recital that it had been agreed that the deed should contain a covenant by L. not to carry on the tirade within one mile from the old place of business "without paying to H., as or by way of stated or liquidated damages," a sum named. In a subsequent part of the deed there was an absolute covenant not to carry on the trade within that limit, followed by a proviso that if L. should act contrary to or in infringement of that agreement he would immediately thereupon pay to H. the sum of 1,500/. by way of liquidated damages. Notwithstanding the recital and the form used, it was held that L. was not entitled to break the covenant on paying the 1,500/., and an injunction was granted.^ coieay. § 150. The same view was put forward, though perhaps in slightly different language, by the Lords Justices in Coles v. Sims? That was a case in which there were mutual covenants between a vendor of part of his land and the purchaser of that part as to building on the sold and unsold parts, with a stipulation for payment of liquidated damages in case of breach of covenant. On an application for an interim injunction (which was granted). Knight Bruce L.J. said:^ "If I were now deciding the cause, I should probably come 1 Bird V. Loke, 1 H. & M. 111. » 5 De G. M. & G. 1. 5 6 De G, M. & G. 9, Sims. CONTRACTS WITH A PENAL OR OTHER LIKE SUM, 63 to the conclusion that in a case where a covenant is protected (if I may use the expression) by a provision for liquidated damages, it must be in the judicial dis- cretion of the Court, according to the contents of the whole instrument and the nature and circumstances of the particular instance, whether to hold itself bound or not bound upon the ground of it to refuse an in- junction if otherwise proper to be granted : and that in the present case, the circumstances are such as to render it right for the Court to grant an injunction." Turner L.J. added : " The question in such cases, as I conceive, is whether the clau.se is inserted by way of penalty or whether it amounts to a stipulation for liberty to do a certain act on payment of a certain sum." § 161. Where the contract to do or not to do the Where act is distinct from the obligation to pay a sum of and*'^^''' money, it seems that either the contract or the obliga- obUgation .•11 ° to pay are tion may be sued on. distinct. " Where a person," said Lord Romilly M.R. in Fox v. Scard,^ " enters into an agreement not to do a par- ticular act and gives his bond to another to secure it, the latter has a right at Law and in Equity, and can obtain relief in either, but not in both, Courts." § 153. It is clear that the fact that the contract Where may be comprised in a bond does not of itself import ^ot^i^^ any election to pay the money and refuse to do the ported. act.^ § 153. (iii-) In the third class of contracts, which iii. Aiter- may be distinguished as alternative contracts, the in- contracts. tention is that a thing shall be done or a sum of money paid at the election of the person bound to do or pay. In these cases the contract is as fully performed by the payment of the money as by the doing of the act, and therefore where the money is paid or tendered there is no ground for interference by way of specific performance or injunction. § 154. The question to which of the three fore- intention 1 33 Beav. at p. 328. Beav. 227. "The form of marriage 2 Eobson T. Trevor, 2 P. Wms. articles by Iboiid does not import 191 ; CliilUner v. Cliilliner, 2 Yes. election " : Bo;per V. Bartholomew, Sen. 528 ; Clarkson v. Edge, 33 12 Pri. 797. 64 THE JUEISDICTION, primarily governs the con- struction. Alterna- tive form not con- clusive. The amount of the penalty. going classes of contracts any particular one belongs is of course a question of construction. In considering it " the Courts must, in all cases, look for their guide to the primary intention of the parties, as it may be gathered from the instrument upon the effect of which they are to decide, and for that purpose to ascertain the precise nature and object of the obligation." ^ Consequently each case depends on its own circum- stances, but it may be noticed that " a Court of Equity is in general anxious to treat the penalty as being merely a mode of securing the due performance of the act contracted to be done, and not as a sum of money really intended to be paid;"^ and that, "on the other hand, it is certainly open to parties who are entering into contracts to stipulate that on failure to perform what has been agreed to be done, a fixed sum shall be paid by way of compensation." ' § 155. On this question it is by no means conclu- sive that the contract may be alternative in its form, for nevertheless the Court may clearly see that it is essentially a contract to do one of the alternatives : so that where there was a contract to renew a certain lease, with an addition of three years to the original term, or to answer the want thereof in damages, the Court decreed specific performance of the lease, the second alternative only expressing what the law would imply.* § 156. The largeness or smallness of the sum named is no reason for considering it a mere penalty, unless that be the apparent intention :^ but where the amount of the penalty is small, as compared with the value of the subject of the contract, it has been con- sidered a reason for treating the sum reserved as a ' Boper v. Bartholomew, 12 Pri. 821. ^ Per Lord Oranworth in Ranger V. Oreat Western Railway Co., 5 H. L. 0. 94 ; Astley v. Weldon, 2 Bos. & P. 346. 2 Ranger v. Oreat Western Bail- way Co., 5 H. L. 0. 94. * Finch V. Earl of Salisbury, Finch, 212. * Royy. Dulse of Beaufort, 2 Atk. 190.; Astley v. Weldon, 2 Bos. & P. 346; French v. Macule, 2 Dr. & War. 269. But see Burne v. Mad- den, LI. & G. t. Thmk. 493. CONTEACTS WITH A PENAL OR OTHER LIKE SUM. 65 mere penalty, and not in the nature of an alternative contract.^ § 157. In a case where a man, being very nn- jtoJsobt. certain what estate he should derive from his father, ^''"'"■• entered into a bond in 5,000^., on the marriage of his daughter, to settle one-third of such property, and the contract so to settle was recited in the condition of the bond, it was specifically performed in full, and not up to 5,000/. only.^ " Such agreement," said Lord Macclesfield,^ " was not to be the weaker but the stronger for the penalty." § 158. The fact that the benefit of the contract Ttebene- would result to one person or flow in one channel, and ^l°lif^^ the benefit of the sum, if paid, in another, is a strong and the circumstance against considering the contract alterna- requiting tive in its nature : thus where, on a marriage, the to dif- husband's father gave a bond for the payment of 6001. pylons. to the wife's father, his executors or administrators, in the penalty of 1,200/. if he did not convey certain lands for the benefit of the hu.sband and wife and their issue. Lord Hardwicke held that the obligor was not at liberty to pay the 600/., or settle the lands, at his election, but compelled the specific performance of the contract to settle, — partly on the ground that the 600/. would not have gone to the benefit of the husband and wife and their issue, but of the wife's father and his representatives, and partly that the lands to be settled were worth much more than 600/.* § 169. Where the sum reserved is single, and the single act stipulated for or against is in its nature continuing coSinu- or recurring, as, for instance, particular modes of ^^s act. cultivating a farm, the sum will be considered as a security and not an alternative.^ § 160. On the other hand where the sum or sums Sums made payable vary in frequency of payment or amount '^^'^^^^i*- according to the thing to be done or abstained from, 1 OMlUner v. ChilUner, 2 Yes. * CMlliner v. CMlUner, 2 Yes. Sen. 528. ^^^- "^^ ' -^oper V. Barthohmeiu, „ 12 Pri. 797. » Holson V. Trevor, 2 P. Wms. 5 p^^nch v. Macale, 2 Dr. & War. 191. 269 ; and see Boper y. Bartholomew, " 2 P. Wms. at p. 162 (6th ed.). 12 Pri. 797. F. F 66 THE JURISDICTION. Woodward T. Gyles, Eolfe V. Peterson. Where a forfeiture in addi- tion. the Courts have, in many cases, found that the pay- ment is an alternative. § 161. In Woodward v. Gyhs^ a covenant by the defendant not to plough meadow land, and if he did, to pay so much an acre, was held not to be a fit case for an injunction restraining the ploughing : but the exact form of the covenant does not appear. " If," said Lord St. Leonards,^ "as in Woodward v. Gyhs^ and Rolfe v. Peterson,,*' there is evidence of intention that the party is to be at liberty to do the act if he choose to pay the increased rent, of course the Court cannot interfere, because this Court never interferes against the express contract of the parties." § 162. In Rolfe V. Peterson'' the question was whether the payment was a penalty and so came within the doctrine of equitable relief against penal- ties : but of it Lord Loughborough said, in Hardy v. Martin,^ " That was a case of a demise of land to a lessee to do with the land as he thought proper : but if he used it one way he was to pay one rent and if another way another rent." Similarly, a covenant in a farm lease not to do certain things '' under an increased rent of," &c., was held to give the tenant the right to do the act on paying the increased rent,'' and a contract to renew perpetually " under a penalty of 70/. " was held alternative.® § 163. But where, in addition to the increased rent, there is a stipulation that the act provided against shall be a forfeiture of the covenantor's interest, the sum is held to be a security only and not an alterna- tive : and consequently the Court would restrain the doing of the act :® and, of course, the usual form of lease giving the lessor the right to re-enter and avoid the lease on breach of covenant offers no impediment to the enforcement of the covenants specifically.^" see Hurst v. Hurst, 4 Ex. 571 ; Oer- rard v. O'Reilly, 3 Dr. & War. 414. ^ MagraneY.ArcIibold,lT)oyT,l(iT , ' Barret v. Blagrave, 5 Ves. 555, as explained, by Lord St. Leonards in French v. Macule, 2 Dr. & War. 278-9. i" Dykey. Taylor, 3 De G. F. & J, 467. 1 2 Vern. 119. 2 French v. Macale, 2 Dr. &War. 284. 3 2 Vem. 119. * 2 Bro. P. 0. 436. 5 Ihid. 8 1 Cox, 26. ' Zegh V. LilUe, 6 H. & N. 165 ; 9 W. E. 55 ; 30 L. J. Ex. 25; and CONTRACTS WITH A PENAL OR OTHER LIKE SUM. 67 § 164. Where the contract would be -unreasonable Wherethe r .. . in I • T , • 1 contract is unless it gives an option to the person stipulating to reasonable pay the sum, this will be a strong circumstance for °^l^^^ _ treating the contract as alternative. So where a lady, native administratrix of her husband, covenanted, under a °^^- penalty of 701., to renew a sub-lease as often as she obtained a renewal of the head-lease, and it appeared that the fines on the head-lease were raised on renewal, according to the then value of the property, so as to render her covenant unreasonable except upon the construction of its giving her an option, the House of Lords treated the contract as alternative.^ 1 Magrane v. Archlold, 1 Dow, 107. f2 68 VART II. PAETIES TO THE ACTION. — ♦ — CHAPTER I. OP THE GENERAL RULE. Division § 165. In Considering the subject of this chapter subject. ^* ^^^^ ^^ convenient to treat separately (I.) of the rules formerly applicable to suits for specific perform- ance in the Court of Chancery, and (II.) of the rules now applicable to like actions in the High Court. It is not yet possible entirely to neglect the former practice, as it will no doubt be appealed to from time to time as assisting the Court under the existing prac- tice. I. As to the former practice of the Court of Chancery. The gene- § 166. The general rule with regard to suits to stated.^ enforce contracts was that the parties to the contract, or their representatives, were the necessary and sufficient parties to the suit — that all the parties to the contract should be parties to the suit and no one else.'' The contract is what constitutes the rights and regulates the liabilities of the parties : in a stranger ' Mole V. Smith, Jac. 490 ; Tasher Winchester v. Mid-Hants Railway V. Small, 3 My. & Or. 63, 69 ; Wood Co., L. E. 5 Eq. 17, 21 ; Lumley v. V. White, 4 My. & Or. 460, 483 ; Timms, 21 W. E. 319 ; S. 0. ib. Humphreys v. Hollis, Jac. 73 ; Pat- 494 ; Halifax Joint Stock Banking ersonY. Long, 5 Beav. 186; Peacock Co. v. Sowerhy Bridge Town Hall r. Penson, 1 1 Beav. 365 ; Bishop of Go,, 25 Sol. Jo. 450 ; W. N. 1881, 65. OF THE GENEEAL EULE. 69 there is no liability : and against him, therefore, there was no more right to enforce specific pei'formance in Equity than to recover damages at Law.^ § 167. It made no difference, that the stranger to stranger the contract might be a necessary -party to the convey- party t?" ance, as a judgment creditor, or a legal or equitable ooavey- mortgagee, or a person interested in the equity of redemption.^ In Tasker v. Small* the bill was filed by Tasicr v. the purchaser of an equity of redemption against the ^"^^^' vendors, and Phillips, the first mortgagee, was made a defendant on the ground that he refused to convey without having competent authority for so doing. Lord Cottenham, however, held that the bill could not be maintained against him. § 168. Where the owner of land contracted to Long v. grant a lease to A. and then mortgaged the land to B. -^''*"'"'^- with notice of the contract, and B. did not dispute A.'s right to the lease, it was held that B. was not a proper party to a suit by A. for specific performance.* § 169. And so where a steward was made a party other as being receiver of the rents, and having the title- ^sta'ioes. deeds in his possession, the bill was dismissed as against him.^ And in a suit to enforce a contract made by a mortgagee under a power of sale, the mort- gagor was not a necessary party ; ® unless the pur- chaser had notice that the mortgagor disputed the validity of the sale.'^ > HareY. London & North Western ence in that respect between suits Railway, 1 J. & H. 252. to rescind and suits to enforce con- " TasJcery. Small, uhi sup., over- tracts, see Aheraman Ironworks v. ruling S. 0. 6 Sim. 625, 636 ; cf. Wickens, L. E. 4 Oh. 101, 111, and Soher V. Kemp, 6 Ha. 155 (a mixed Femuick v. Bulman, L. E. 9 Eq. case of specific performance and 165. foreclosure). See also Petre v. Dun- = 6 Sim. 625 ; 3 My. & Or. 63. comle, 7 Ha. 24 (a purchaser's hUl), ^ Long v. Bowring, 33 Beav. 585, and Lord Leigh v. Lord Ashlurton, 589. 11 Beav. 470 (a vendor's bill), ^ Macnamara y. Williams, 6 Yea. from which it appears that judg- 143 ; and see Muston v. Bradshaw, ment creditors, though not neces- 15 Sim. 192; 10 Jur. 402. sary, might be proper, parties. See ^ Oorder v. Morgan, 18 Ves. 344 ; also Greycoat Eosp. v. Westminster Ford v. Heely (Stuart V.O.), 3 Jur. Imp. Comms., 1 Da G. & J. 531; N. S. 1116; Clay y. Sharps, 18 Yes. Hall V. Laver, 3 Y. & 0. Ex. 191. 346, n. As to whether there was any differ- ' Anon. , 6 Mad. 10. See Jenkins ro PAETIES TO THE ACTION. Same property sold twice over. Pur- chasers of different lots held under same lease. n Effect of direction that A. should convey. Wiere the suit had several Tenant of vendor. § 170. In a case before Shadwell V.C., where the vendor sold the same property twice over and the bill was brought by the first purchaser against the vendor and the second purchaser, it was dismissed (without costs).as against the latter, though specific performance was decreed as against the original contractor ■} this was affirmed by Lord Lyndhurst after two arguments : and Turner L.J. laid down the same doctrine.^ § 171. Again, where two houses held under one lease were sold in separate lots at the same auction, and it was stipulated that each purchaser should be a party to the other's assignment, it was held that the purchaser of Lot 2 was not a necessary party to a suit to enforce the contract with the purchaser of Lot 1.* And a bill by a purchaser for specific performance could not be sustained against parties to a previous contract to sell the same land which the bill impeached.* § 172. In connection with the question under consideration it may be noticed that a direction in an order that A. should convey included in effect mort- gagees and all other necessary conveying parties, and the omission of the words commonly inserted, that A. "and all other necessary parties if any" should con- vey, was immaterial.® § 173. Where the suit sought other relief than that in specific performance, though all arising from a contract, the Court might require the presence of other parties. So where a plaintiff sought to restrain the occupation of his purchaser and his purchaser's lessees by asserting his right as unpaid vendor, the lessees were held proper parties.^ § 174. On the other hand, the general principle under discussion was strongly illustrated by the case V. Jones, 2 GifE. 99 ; Dance v. Oold- ingham, L. E. 8 OLi. 902, But see Clay V. Sharpe, 18 Ves. 346, n. 1 CuUar. Thodey, 1 CoU. 212, 223. See, too, Anon. v. Walford, 4 Euss. 372. 2 OhadiVich v. Maden, 9 Ha. 188. ' Paterson v. Long, 5 Beav. 186. * Be Hoghton v. Money, L. E. 1 Eq. 154, affirmed L. E. 2 Ch. 164. '^ Minton y. Kirwood, L. E. 3 Oh. 614. * Bishop of Winchester v. Mid- Hants Railway Co., L. E. 5 Eq. 17. See Sedgwick v. Watford, &c. Rail- way Co., 36 L. J. Ch. 379; Cosens V. Bognor Railway Co., L. E. 1 Oh. 594, OF THE GENERAL KULE. 71 of Robertson v. The Great Western Railway Company} The plaintiff had agreed to sell to the defendants a piece of land, and to buy up the right then vested in his tenant : the defendants having entered before pay- ment of the purchase-money, they were served with notices not to trespass on the land both by the plaintiff and his tenant. The plaintiff then brought his bill for a specific performance and to restrain the trespass, to which the defendants demurred, on the ground that the tenant was not a party. Shadwell V.C. allowed the demurrer; but the demurrer was over- ruled by Lord Cottenham on the grounds that the object of the suit was a specific performance, and that the company might be restrained from entering with- out payment of the purchase-money, whether that entry did or did not affect the tenant. § 175. In the Court of Chancery persons having Persons adverse or inconsistent rights in the subject-matter of \^^f^ the suit could not be joined as plaintiffs f nor could a rights. person who had no interest be joined as plaintiff with one who had.^ The importance of the doctrine of misjoinder was, however, diminished by the 49th sec- tion of the Chancery Procedure Act, 1862.* In some cases, persons claiming adversely might be made de- fendants.® § 176. To the general rule above stated^ it will be Exoep- found that many exceptions arose : some of these will thegencrai be noticed in the subsequent chapters of this Part, rule" But there are other exceptions, or apparent excep- tions, to the strict rule, which may well be stated here. § 177. One case where the parties to the original NoYation. contract were not those to the suit was, where there had been a novation or new contract substituted for the original one by the intervention of a new person ; 1 1 Eail. C. 459 ; S. 0. 10 Sim. Euss. 240. See also Pearce v. Wat- 314. Mns, 16 Jur. 832. 2 Fulham v. M'Carthy, 1 H. L. Mo & 16 Vict. c. 86; and see 0. 703 ; Padwick v. Piatt, 11 Bear. now infra, § 192. .303- T ;■ T ^T, <■ 'See infra, § 192. ' S. C, and per. Lord Lyndhurst in King of Spain v. Machado, 4 ^ Supra, § 166. 72 PAETIES TO THE ACTION. in which case the party in whose place the new person was introduced, being no longer a party to the con- tract, ceased to be a proper party to the suit, and it had to be carried on between the parties to the new contract. Thus, where A. agrees to sell to B., and, before completion, B. contracts to sell to C, and A. accepts C. as the purchaser, this may amount to a new contract ; and even where it did not strictly do so, B. might be an unnecessary party to the suit.^ Sales on § 178. One of the most remarkable instances of Exchange, novation occurs in sales on, and is the result of the custom of, the Stock Exchange. The vendor's broker sells shares to a jobber, the jobber sells to another broker, or to several brokers of several purchasers, and at last the name of the ultimate purchaser of the shares is handed in by his broker on the " name day " and comes finally to the vendor's broker ; the transfer is made by the original vendor to the ultimate pur- chaser, and all intermediate sales, although they may be numerous, are eliminated, and by novation the only contract left standing is between the first vendor and the last purchaser.^ stranger. § 179. There are certain cases in which A. con- tracts with B. for the benefit of C, and C can sue on the contract. These will be considered in the next chapter. Interest § 180. Another exception arose from the existence oonS™"^ of an interest in the estate bought or the money paid derived from a contract anterior to the contract for sale. In these cases the person thus interested in the fruit of the contract appears to have been a proper party to the suit. Instances. § 181. Therefore when A. had contracted to pur- chase an estate from B., having previously agreed with C. to sell the estate to him, and a contract to that effect was afterwards entered into between A. 1 Holden v. Eayn, 1 Mer. 47 ; infra, § 1040 et seq. as to Novation. Sail V. Laver, 3 T. & 0. Ex. 191 : ■> n i -o • i -r -n a m. „. ' , ^ ^ ,^ „ „• ^ Coles V. Bristowe, L. E. 4 Ch. Shaw V. Fisher, 5 De G. M. & G. „ „ , . ,,,,'„ ^ 596. And see Stanley/ v. Chester ^' ^''^^'"^ ^- ^'^^**2'' ^- ^- ^ ^• and BirJcenheadBailway Co., 9 Sim. 200. And see infra, Part YI. 264 ; 3 My. & Cr. 113. See also chap. i. OF THE GENERAL RULE. 73 and C, A. and C. subsequently brought a bill for performance against B., and it was held by Knight Bruce (then) V.C. that they were both proper parties.* The Vice Chancellor considered that Tasker v. SmalP had little or no application to the case before him/ and appears to have rested his decision on the ground that both the plaintiffs had, at the institution of the suit, an interest in the subject-matter of it.^ And from another case it may be gathered that if A. con- tracted to purchase from B., and A. then contracted with C. that B. should convey to C, and B. had notice thereof, A. could not enforce the contract against B. without joining C as a party.* ' In like manner a person who by virtue of an antecedent contract with the vendor claimed an interest in the purchase-money was a proper party to a suit for specific performance.^ § 182. In cases of contracts under powers, the Remain- question sometimes arose, whether a contract entered •i^'^™^"- into by the donee of the power could be enforced by or against the remainderman, the cases in which he could sue or be sued being, of course, co-extensive.^ The rule by which this question was decided was that the contract was binding in those cases, and those cases only, in which it might have been enforced against the donee of the power himself, independently of any conduct on his part.'' The grounds on which part-performance by a tenant for life will not bind the remainderman, will be considered when we come to treat of the principles of that subject.® It has already been noticed" that the jurisdiction of Courts of Equity has, by statute, been excluded in regard to the enforcement of the contracts of a tenant in tail against those in remainder.*" § 183. In one case vendors, plaintiffs to a bill for Objection specific performance against a purchaser from them, by plead- ing. ' Nelthorpe v. Holgate, 1 Coll. 203. ' Morgan v. Milman, 10 Ha. 2Y9 ; 2 3 My. & Or. 63, supra, § 167. S. 0. 3 De G. M. & G. 24; Lowe 3 I Ooll. at p. 211. V. Swift, 2 Ball & B. 529; and see * Anon. V. Walford, 4 Euss. 372. Affleck v. Affleck, 3 Sm. & G. 394. 5 West Midland Bailway Co. v. ° See infra, § 589. Nixon, 1 H. & M. 176. ^ Supra, Part I. chap. ii. § 122. " See infra, § 462. "> 3 & 4 WiU. IV. c. 74, s. 47. 74 PARTIES TO THE ACTION. made a sub-purcliaser a defendant : and the sub-pur- chaser then filed his bill against his vendor and the original vendors for specific performance : to this the original vendors objected that they were not proper parties : but it was held that they had precluded themselves from the objection by the course they had pursued.^ Some § 184. Where the circumstances of the case were sued^on."^ fitting, somo might sue for specific performance on behalf behalf of all :^ thus the directors of an unincorporated joint-stock company were allowed to sue on a contract to make a lease to them in trust for the company, without joining all the shareholders.^ But in the converse case, there was great diflSculty in applying to specific performance the principle that some might be sued on behalf of all : from the nature of such suits, however, this application of the principle was not often required for the ends of justice. In one case, a joint- stock company established by an Act of Parliament, which vested in them all property then belonging to them and authorised them to bring actions in the name of their treasurer, purchased an estate, with notice of a prior contract by the owner to grant a lease of part : on a bill by this proposed lessee against the directors and treasurer, but not the other proprietors, asking for a specific performance of the contract, Grrant M.R. said, that though he could bind the interests of parties not before the Court, he could not compel them to do an act, and that the execution of the lease by a few on behalf of all would hardly be sufficient, supposing it proper. He, however, gave the plaintiffs all the relief he could, by enjoining the treasurer from disturbing their possession, though he could not compel specific performance of the contract.* AToiding § 185. There are a few cases in which the strict 1 FenwicJc y. Bulman, L. E. 9 Eqt. * Meux v. Maltly, 2 Sw. 277. Igg, And see Adair v. New Biver Co,, 2 Femi V. Craig, 3 T. & 0. Ex. ^^ ^«^- ^^9; AU.-Oen. v. Mayor and Corporation of Poole, 4:'Mj. & Or. 17; ^^^" PareY. Glegg, 29 Beav. 589; Culkn 3 Taylor v. Salmon, 4 My. & Or. y. jjuhe of Queenslury, 1 Bro. 0. C. 134. 101 ; 1 Bro, P. 0, 396. OF THE GENERAL RULE, 75 rule, that none but the parties to a contract are proper muitipii- parties to a suit for its specific jierformance, appears 3^1^? to have been relaxed in order to avoid multiplicity of suits. § 186. To this principle we may probably refer zowther^. the case of Lowther v. Viscountess of Andover^ where a yj^^o^tess father entered into a covenant with the trustees of his " daughter's marriage settlement to endeavour to pur- chase certain remainders in estates of which he was tenant for life, and, when purchased, to convey them to the uses of the settlement. The covenantor died, having previously entered into a contract for the pur- chase of the remainders : on a bill filed by the trustees of the settlement against the vendors, and it would seem also the personal representative of the deceased covenantor, specific performance was granted. In another case, where the Duke of Chandos had granted to A. a lease of a lodge, and also the deputation of a keepership in Enfield Chase, and A. assigned, but for part of the term only, to B., B. was allowed to main- tain a bill against the Duke and A. for the rectifica- ' tion of a mistake in the original grant by the Duke, and for a new and sufficient grant by him.^ § 187. The same principle is illustrated by another wtereone case, in which a bill was filed by a purchaser against J°^o°ifed^^ trustees for sale, to enforce the specific performance of with an a contract for the sale of lot A. : it was resisted on the 1!^.°™™^ ground that by an arrangement, to which the plaintiff was a party, part of that lot as originally described was taken from it and given to the adjoining lot B. The bill was amended to put in issue this averment, which came out in the answer, but without adding as defendant the purchaser of lot B. ; and the Court held that he ought to have been made a defendant, for otherwise the vendors would be exposed to another suit from the purchaser of lot B.^ § 188. And where there were claims made by Adverse persons, strangers to the contract, adversely to both <=^^™^'^t*' 1 1 Bro. 0. 0. 396. As to oredi- Eden, 372. )rs of a deceased vendor suing, see ^ ohnson v. Legard, T. & E. 281. 2 Jalabert v. Buke of Chandos, 1 0. C. 239. tors of a deceased vendor suing, see it -i -v x n "" J rn p -D no? ^ Mason V. FranJchn, 1 Y. & 0. Johnson v. Legard, T. & K. 281. 76 PARTIES TO THE ACTION. the parties to it, thej might under some circumstances be made defendants to a suit for the performance of it. Thus, where an assignee under an insolvency sold a reversionary interest in stock of the insolvent, and the purchaser v^as served with notice not to pay the purchase-money to the assignee by a person claiming under a previous assignment by the insolvent subse- quent to his insolvency, a bill was brought against the assignee and the adverse claimant, and prayed an inquiry into the rights of the latter : he was, in the event, decreed to pay costs.^ s^ttie"*^'^ § 189. And so, in the case of purchases from a ment. Voluntary settlor, where the contract was sought to be enforced by a purchaser, it seems to have been proper to make defendants, not only the vendor, but the trustees of the settlement and the persons beneficially interested under it : ^ — the question whether the pur- chaser was entitled to have the contract performed depending on whether the previous settlement was or not void against him, and "that being a question which could not be tried in the absence of those who were interested under the settlement alleged to be voluntary. "I see no reason," said Turner L.J.,* "why it shall not be tried in a suit for specific performance^ rather than be made the subject of a distinct and separate suit, the more so as it is a question which affects the validity no less than the performance of the contract." Miiitifa- § 190. Where the several purchasers of several lots """"" ]ja,d been joined as defendants in one suit, a demurrer for multifariousness was repeatedly allowed.* " Sup- pose," said Lord Kenyon M.E.,^ " an estate is sold in lots to different persons, a plaintiff could not include them all in one bill for a specific performance, for each 1 Collett V. Hover, 1 Coll. 227, " In Townend v. Toher, L. E. 1 ■before Lord Cottenliain, and of. Ch. 457. Delabere v. Norwood, 3 Sw. 144 * Bayner v. Julian, 2 Dick. 677 ; (annuitants); Wilson v. Thomson, AU.-Oen. v. Mayor, &c. of Poole, 4 23 W. E. 744. My. & Or. 117 ; Brookes v. Lord 2 Eolford V. Holford, 1 Cli. Oa. Whitworth, 1 Mad. 86 ; Turner v. 217; Budde v. Mitchell, 18 Ves. Rohinson, ] S. & S. 313; InmanY. 100; Willats v. Busby, 5 Beav. 193; Wearing, 3 De G. & Sm. 729. Listerr. Turner, 5 'Sa,. 281; Baking ^ In Bayner v. Julian, 2 Dick.. V. Wliimper, 26 Beav. 568. 677. nousness. OP THE GENERAL EULE. 77 party's case would be distinct and would depend upon its own peculiar circumstances : and there must have been a distinct bill upon each contract," And a bill by several purchasers against one vendor would have been equally multifarious.* § 191. But in one case in which there had been Several several sales of a like kind, and several purchasers i°^one°*^ joined as plaintiffs, and the difficulty in completing the suit. sale arose from the same cause in each case, and the persons interested in the estate made no objection for multifariousness, the Court decreed specific perform- ance of the different contracts in one suit." And where the purchaser had entered into two sepa- rate but simultaneous contracts (for the purchase of freeholds and leaseholds) vnth the same vendor, and the investigations of the two titles had gone on con- currently, Kindersley V.C. considered that the vendor was right in making both contracts the subjects of one suit for specific performance.'' II. As regards the practice of the High Court. § 192. No doubt the general rule still is and will The continue to be that the parties to the contract are the ruie!'^^ necessary and sufficient parties to the action : for that is a rule of convenience and good sense. But the fact that persons may be joined as plaintiffs Provisions whose claims are alternative, or some of whom are Rules of found to have no interest in the litigation, or that a Court as defendant is not interested in all the relief claimed, "^^^ now furnishes no defence : * and the plaintiff may unite in the same action, and in the same statement of claim, several causes of action, subject to a power in the Court or Judge to direct separate trials of any of such causes 1 See Hudson v. Maddieon, 12 gave liberty to amend by adding Sim. 416. other purcbasers as co-plaintiffs. ^ Eargreavea v. Wright, 10 Ha. Consider Turner y. May, 32 L. T. Appx. 56. In this case the bill 56. was originaUy filed by two of the 3 ^^^^^^ ^_ p^^^^^ 38 L. J. Oh. at purchasers ore lelialf of themselves ggg and the other purchasers, and the Court (Turner V.C.) refused to * E. S. C. Ord. XVI. rr. 1, 4. entertain the suit in that form, but Cf. Cox v. Barker, 3 Ch. D. 359. 78 PARTIES TO THE ACTION. of action.^ Further, the Court or a Judge may at any stage of the proceedings order the name of any party, plaintiff or defendant, who ought to have been joined, or whose presence before the Court may be necessary, in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, to be added.^ Counter- 8 193. The existing procedure by way of counter- claim. tV m- t • T • "^ -I • T • Claim attords m some cases a mode m which, m a proper case, a person who was not a party to the original action may be brought in to the proceedings. Thus, where second mortgagees brought an action against first mortgagee, who had contracted to sell the mortgaged property under his power of sale, claiming to have the sale completed and the sale moneys applied in satisfaction of the mortgages, and the defendant delivered a counter-claim, to which he made the pur- chaser a co-defendant with the original plaintiffs, alleging that the concurrence of the latter in the sale was a term of the contract, and claiming specific per- formance; Hall V.C. held that the purchaser was properly made a party to the counter-claim.^ EccUsiaa- § 194. In Ecclesiastical Commissioners v. Pinney* mMm^'s where a contract for sale of glebe lands had been Y.Finney, entered into by a vicar with the approval of the Ecclesiastical Commissioners, who were made parties to the contract, it was held by the Court of Appeal that the Commissioners, in virtue of their statutory duty to see to the purchase-money being obtained and secured, had a right to sue, if not for specific perform- ance, at least for enforcement of a vendor's lien for unpaid purchase-money. Eegistered § 195. In actions for the specific performance of contracts relating to land or a charge registered under the Land Transfer Act, 1875, the Court has a special statutory power of bringing into the action any persons who have registered estates or rights in such land or charge.® > E. S. 0. Ord. XVin. r. 1. See [1899] 2 Ch. 729, 735 ; [1900] 2 Ch. Flower v. Bulkr, 15 Ch. D. 665. 736. ' E. S. 0. Ord. XVI. r. 11. See ^ 38 & 39 Vict. c. 87, s. 93, infra, Long V. Crossley, 13 Ch. D. 388. §§ 897, 1142. As to the costs of 3 Dear y. Sworder, 4 Ch. D. 476. parties so appearing, see sect, 94 of « [1899] 1 Oh. 99. And see S. 0, the same Act. land. 79 CHAPTER II. OP A STRANGER TO THE CONTRACT. § 196. Can a stranger to the contract sue, or be Division sued, for its performance ? sub^e^ot It will be convenient to consider the two branches of this question separately. I. As to a stranger suing. § 197. It is a general principle both at Common GeneraUy Law and in Equity, that a stranger to the contract cannot^^'^ cannot sue on it ; and this is not varied by the mere sue. fact that the stranger takes a benefit under it.^ § 198. Thus in a case, where protracted litigation instance. had been undertaken by A. for the recovery of an estate, and in the course of these proceedings A. became greatly indebted to his solicitor, and, by a contract between A. and his brother B., A. agreed to relinquish his interest in the estate to B., in consideration of B.'s undertaking to pay the costs already incurred with interest, it was held^ that the solicitor, being no party to the contract, I Grow V. Rogers, 1 Str. 592 ; Ex v. Hawkins, 3 H. & C. 677. The parte Peele,QYBS.&0'ii,QQi; Ex parte dicta of Eyre C.J. in Fellviakers' Williams, Buck, 13 ; Berkeley v. Co. v. Davis, 1 B. & P. 102, and of Sardy, 5 B. & 0. 355 ; Lord South- BuUer J. in his N. P. p. 134, do awpton v. Brown, 6 B. & 0. 718 ; not appear to be law. The Scotch per Lord Langdale M.E. in Col- law differs from ours in this par- year v. Countess of Mulgrave, 2 ticular, recognising the/its qucesitum Ke. 98 ; per Cotton L.J. in Be tertio. Stair, Inst. B. i. t. 10, s. 5. D'Angibau, 15 Ch. D. at p. 242 ; ^ Moss y. Bainbrigge, 18 Beav. Hill Y. Gorrime, 5 My. & Cr. 250, 478, 482 ; S. C. on appeal, 6 De G. 256 ; Chesterfield, &c. Colliery Co. M. & Q. 292. 80 PARTIES TO THE ACTION. and having given no consideration for it, could derive no benefit under it capable of being enforced by bim. Apparent § 199. There are, however, several apparent ex- exoeptions ceptions to this principle. ^' . . § 200. Thus (i.) there may be cases in which, queTri!^t wherc A. has as a trustee for B. contracted with C, B. of con- may be entitled to sue both C and A. for performance of the contract. The case of Touche v. Metropolitan Railway Warehousing Co} is a case of this sort. So, too, in Murray v. Flavell^ a widow who was the cestui que trust of a trust created by partnership articles was allowed to sue upon them. ii.Agency. § 201. (ii.) There are cases of agency which may wear the aspect of exceptions to the rule. In Hook v. Kinnear^ the two defendants were tenants in common of certain lands and the defendant Kinnear having been tenant of the defendant Philips' moiety, and in arrear to him for the rent, agreed with Philips to execute to the plaintiff such lease of the entire pre- mises as Philips and the plaintiff should agree upon, and that all the rent should be paid to Philips till the arrears due to him were satisfied : the plaintiff was no party to the contract: Philips entered into another contract with the plaintiff for a lease of the premises to the plaintiff at 30^. per annum, and executed a lease of his moiety at 15/. per annum: the defendant declined to do the same in respect of his moiety : and it was objected that the plaintiff as a stranger could not sue : but Lord Hal-dwicke overruled the objection, ' ^ on the ground that Philips might be taken as the agent '' of the plaintiff in the contract with Kinnear, and compared it to the case of stewards entering into contracts, and their masters enforcing them, iii. Exe- § 202. (iii.) There are cases of persons claiming benefits under deeds who are not parties to the deeds,* of persons suing for the execution of the trusts of marriage settlements who are not parties to such 1 L. E. 6 Oil. 671. Of. Re Em- Pneumatic Tyre Co., [1901] 1 Ch. press Engineering Co., 16 Oh. D. 196; [1902] 1 Oh. 146. 125 ; Gandy v. Gandy, 30 Oi. D. ^ 25 Oh. D. 89. 57 ; Clarke v. Birley, 41 Oh. D. 422 ; = 3 g^. 4^7^ n. Bagot Pneumatic Tyre Co. v. Clipper * 8 & 9 Viot. c. 106, 8. 5. cuted contracts. OF A STRANGER TO THE CONTRACT. 81 settlements/ and of proceedings by children under contracts antecedent to the marriages of which they are the issue. But these either refer to executed and not to executory contracts, or attract the jurisdiction of the Court on grounds other than that of the specific performance of contracts resting in fieri. § 203. (iv.) There is a class of cases where the i^. Near nearness of relationship of one party to the contract g^'i^*'"'" with the party to be benefited by it was formerly supposed to give to the latter the benefit of the con- sideration and a right to sue on the contract. The PhysiciarHs case^ was the leading authority on this point : there A. made a promise to his physician, that, if he would effect a certain cure, he would pay a sum of money to the physician's daughter ; and it was held that she might sue. In another case in assumpdt the plaintifPs who were husband and wife, declared that the wife's father, being seised of lands which had sub- sequently descended to the defendant, was about to fell 1,000^. worth of timber to raise a portion for his said daughter ; and the defendant promised the father that, if he would forbear to fell the timber, he would pay the daughter 1,000/. A verdict was found for the plaintiffs ; but it was moved, in arrest of judgment, that the father alone could have brought the action, but not the husband and wife : but after two argu- ments, the objection was overruled on the ground of the nearness of relationship.^ But these cases were in the year 1861 considered and deliberately disapproved by the Court of Queen's Bench, and can no longer be considered law.* § 204. (v.) It seems that an exception may arise y- change to the general principle that a stranger even though aitioa of taking a benefit under a contract cannot sue on it, life. in cases where the contract is of such a nature and has been so far acted upon as to change the condition in life of the stranger, and to raise in him reasonable 1 Of. Re D'Angihau, 15 Ch. D. Scao. T. Eaym. 302 ; per Lord 228, 242, and supra, § 116. Mansfield C.J. in Marhjn v. Hind, 2 Cited 1 Ventr. 6. Cowp. 443. ' Button V. Pool, 1 Ventr. 318, * Tweedle v. Atkinson, 1 Best & 332 ; 2 Lev. 210, affirmed in Cam. Sm. 393. F. G 82 PARTIES TO THE ACTION. expectations grounded on the contract. Such a case might be presented by a contract between A., a rich man, and B., a poor one, that A. should take B.'s child, bring him up as a gentleman, and leave him certain property, and a part-performance of this on A.'s part. But here, any right which the child of B. might have to insist on the contract is derived, not from the contract alone, but from the conduct of A. in pursuance of it, and the wrong which the child would sustain, if the contract were carried out in part and not in whole. For no such Equity would exist where the contract remained entirely in abeyance.^ Generally stranger cannot be sued. Excep- tion if he gets pos- session of subject- matter ■with notice. Instance. II. As to a stranger heing sued. § 205. Grenerally a stranger to the contract is not a proper defendant to an action for enforcing it.^ But this general rule is subject to exceptions. § 206. If a stranger to the contract gets posses- sion of the subject-matter of the contract with notice of it, he is or may be liable to be made a party to an action for specific performance of the contract upon the equitable ground of his conscience being affected by the notice. § 207. Thus where S. contracted with P. for the sale to him of an estate and afterwards conveyed it to C, who, at the time of the conveyance, liad notice of P.'s contract ; on a bill filed by P. against S. & C. for the enforcement of the contract between S. and P., Wigram V.C. decreed specific performance of that contract, ordered all necessary parties to convey the estate to P., and gave the plaintiff costs against both S. and C.^ ' Eill V. Gomme, 1 Beav. 540 ; 5 My. & 0. 250; Lyons t. Bhnhin, Jao. 245. ^ See supra, §§ 166, 192, and per Stuart V.O. in Bishop of Winchester V. Mid-Hants Railway Co., L. E. 5 Eq. at p. 21, and West Midland Railway Go. v. Nixon, 1 H. & M. 176. The case may be different where the action is for rescission. See Aheraman Iromoorhs v. Wichens, L. E. 4 Oh. 101, 111, explained Tby Cozens-Hardy J. 'm Fleming v. Loe, [1901] 2 Oh. 594, 597 (counter- claim for money had and received, on total failure of consideration); reversed on the facts, [1902] 2 Oh. 359. 2 Potter V. Sanders, 6 Ha. I; cf. Daniels y. Davison, 17 Yes. 433 ; OF A STRANGER TO THE CONTRACT. 83 § 208. Again, a stranger to the contract may so stranger mix himself up with it by setting up a claim to some ^en^T^ benefit resulting from it, as to render himself liable to resulting be made a party to proceedings for the enforcement of oonteact^ the contract; as, for instance, by claiming to be interested in the purchase-money under an arrange- ment antecedent to the contract.-' § 209. In some cases where a portion of the relief Where claimed might affect the person in actual possession of the relief the property, that person may properly be made a ™i&ii* party to an action for the specific performance of the person in contract ; as for instance, where the purchasers, a rail- possession. way company, being in possession of the land con- tracted to be purchased leased it to another railway company, who opened and worked a railway over it, and the unpaid vendors filed their bill against both companies for performance of the contract, declaration of the vendors' lien, and the appointment of a re- ceivei-.^ "Ordinarily," said Stuart V.C.,'' "a person not being a party to the contract ought not to be brought before the Court. But it is otherwise where possession is sought by the bill, and the person in possession will be affected by the decree. Therefore the South- Western Company [the lessees] have been properly brought here." § 210. Lastly, there are provisions in the Land Exception Transfer Act, 1875,* by virtue of which strangers to Xtutory the contract may, in certain cases, be brought into the provisions. position of defendants to an action for enforcing its specific performance. Holmes v. Powell, 8 De G. M. & Q-. tract, and of. Aheraman Ironworks 572 ; and distinguisli Leuty v. v. Wichens, L. E. 4 Ola. 101 ; Wilson Eillas, 2 De Q-. & J. 110; Femvich v. Thomson, 23 W. E. 744. V. Bulman, L. E. 9 Eq. 165. ^ Bishop of Winchester v. Mid- ' West Midland Railway Co. v. Hants Railway Co., L. E. 5 Bq. 17. Nixon, 1 H. & M. 176. Consider Of. Churchill v. Salishiiry and Dorset Huston V. Bradshaw, 15 Sim. 192, Railway Co., 23 W. E. 534, 894. where the interest claimed was ' L. E. 5 Eq. at p. 21. created subsequently to the con- * See §§ 195, 897, 1142. g2 84 CHAPTER III. OP THE DEATH OF A PARTY TO THE CONTRACT. Deatb of a party. Deatli of vendor. § 211. The general rule, that parties to the con- tract must alone be parties to the action, is further modified by certain circumstances, one of which, namely, the death of a party to the contract, will now be considered. By this circumstance, with an excep- tion to be mentioned hereafter,^ the obligation to perform, and the right to call for the performance^ of, the contract devolve on the representatives of the party dying. § 213. If the vendpr of real estate die before completion, the contract may be enforced either by the purchaser^ or by the personal representatives* or representative of the vendor ; ^ but in both cases the heir'' or devisee '^ must be a party, as having an interest 1 See ivfra, § 221. ^ See, for instance, Ingle v. Vmirjlum JeriJcins, [1900] 2 Oil. 368, where the executor of a person who had contracted with a. tenant for life for a lease obtained a judgment for specific performance against the remainderman. ' Hinton v. Hinton, 2 Ves. Sen. 631 ; Barker v. Hill, 2 Eep. in Oh. 218. * Note that under the Land Transfer Act, 1897, the real estate of a testator, who appoints execu- tors, generally Tests (not only in those who prove, but) in all of them {Re Pawley and London and Pro- vincial Bank, [1900] 1 Ch, 58 ; cf. however, per North J. in John v. John, [1898] 2 Ch. at p. 576). But where one body of executors is appointed for a testator's English property, and another for his colonial property, the English real estate vests in the former body exclusively [Be Cohen's Executors and London County Council, [1902] 1 Oh. 187 ; 71 L. J. Oh. 164). * Baden v. Countess of Pembroke, 2 Vern. 212. " Boherts v. Marchant, 1 Ha. 547 ; S. 0. 1 Ph. 370 ; Lacon v. Merlins, 3 Atk. 1 ; Eoddel v. Pugh, 33 Beav. 489 (costs) ; cf . Longinotto v. Morss, 26 L. T. 828 (lease). ' Oalton V. Emuss, 1 Coll. 243; OF THE DEATH OF A PARTY TO THE CONTRACT. 85 in disputing the contract : and it makes no difference that the legal estate is outstanding in a trustee.^ As a purchaser has no right to insist on having the will proved against the heir, he is not a necessary party V5"here there are devisees of the estate in question.^ The foregoing rules as to parties to an action remain, it is conceived, unaltered by the Land Transfer Act, 1897 (60 & 61 Vict. c. 65), ss. 1—3. § 213. Formerly, where the vendor's heir was an Trustee infant, a difficulty arose, owing to the inability of the ^"^ae^s?! infant to convey ; ^ but this difficulty has been overcome by legislation. First, by virtue of the 26th section of the Trustee Act, 1893, where a trustee entitled to or possessed of any land is an infant, the High Court may make an order vesting the land in any person entitled to require a conveyance of the land in any such manner and for any such estate as the Court shall direct;* and under the 31st section of the same Act, the Court may, where a judgment is given for the specific performance of a contract concerning any land, declare that any of the parties to the action are trustees of the land or any part of it, and therefore may make a vesting order relating to the rights of those persons, as if they had been trustees. It was held under the corresponding (but now repealed) sections of the Trustee Act, 1850, that where the contract was merely executory, the Court could not, on petition only, declare the heir of the vendor a trustee for the purchaser,^ but that it could do so where, during the vendor's life, the contract had been executed by pay- ment of the purchase-money and the execution of a Hale V. Bushill, 35 Beav. 343 ; Pur- 233 ; Morrison v. Arnold, 19 Ves. ser V. Barly, 4 K. & J. 41 (costs). 670 ; Beales v. Lmd Bokehy, 2 Mad. See, too, London and South Western 227. Railway Go. v. Bridger, 12 W. E. ^ Bullock v. Bullock, 1 J. & W. 948. As to tlie cestuis que trust of 603. real estate devised in trust, see * Of. Be Hoiuard, 5 De G. & Sm. E. S. C. Ord. XVI. r. 8. 435. As to the costs of the infant ^ Bohertsv.Marchant,llB.a,.541; heir, see Barker v. Venahles, 13 1 Ph. 370. Distinguish Foivler v. W. E. 803. Lightburne, 11 Ir. Oh. E. 495, 500. > Be Carpenter, Kay, 418 ; Be 2 Harris v. Ingledew, 3 P. Wms. Colling, 32 Oh. D. 333 (more fully 91 ; Cotton v. Wilson, id. 190 ; Wake- reported 54 L. T. 809), disapprov- man v. Countess of Rutland, 3 Ves. ing of Re Lowry, L. E. 15 Eq. 78. 86 PARTIES TO THE ACTION. Convey- anomg,&o. Act, 1881, s. 4. Widow. Contract enforced by credi- tors. formal covenant to surrender.^ Secondly, it has been enacted, by the 4th section of the Conveyancing and Law of Property Act, 1881, that where at the death of any person dying after the commencement of that Act there is subsisting a contract, enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives^ shall, by virtue of that Act, have power to convey the land, for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract; and the section goes on to provide that a conveyance made under it shall not affect the beneficial rights of any person claiming under any testamentary disposi- tion or as heir or next of kin of a testator or intestate. Where there is no dispute or doubt about the validity of the contract, and the vendor's heir or devisee is an infant, this section appears to aSord a convenient means of conveying the legal estate to the purchaser without resort to the Court. § 214. Where the vendor leaves a widow, who, but for the contract, would be entitled to dower ^ or freebench, the contract may be enforced against her, and she must be a party.* § 215. Where a binding contract has been made by a vendor who subsequently dies, it would seem that, if the executors decline to enforce the perform- ance, or to compel the purchaser to do so, an action may be brought for the purpose of executing the con- tract by the creditors of the deceased vendor against the executors and heir of the vendor and the pur- chaser.^ 1 Re Cuming, L. E. 5 Oh. 72. See, too. Be Beaufort's Will, [1898] W. N. 148. ^ As to tlie powers of personal representatives under the Land Transfer Act, 1897, see sect. 2 of that Act. 3 8c. under the Dower Act, 1833 (3 & 4 Will. IV. c. 105), wMoli regulates the dower-rights of widows married since the 1st of January, 1834. The 5th section of the Act enacts that all contracts to which a deceased husband's land is subject shall be vaM and efiectual as against the right of his widow to dower. * Hinton v. Hinton, 2 Ves. Sen. 631, 638; Brown t. Raindle, 3 Ves. 256. ^ See Johnson v. Legard, T. & E. 281 ; 1 Mad. Oh. 369. OF THE DEATH OF A PARTY TO THE CONTRACT. 87 § 216. In a case ^ where executors of a vendor of Executors leaseholds to a railway company filed their bill for beSfe specific performance, alleging (truly) that they had not pj^o^ate. proved the will, but before the hearing of an interlocu- tory motion to restrain the company from continuing in possession, the probate had been obtained, it was held that the defendants could not resist the motion on the ground of the bill's being demurrable. § 317. If the purchaser of realty die before com- Death of pletion, the contract may be enforced either by the ^""^ ^^'^'' vendor against the personal representative and the heir or devisee of the purchaser, or by the heir or devisee, joining the personal representative as a co-plaintifi or making him a defendant, against the vendor : the personal representative being a party as having an interest in disputing the contract, and being the hand to pay the purchase-money ; ^ and the heir or devisee being a party as being the person entitled (subject to the provisions of the Land Transfer Act, 1897, ss. 1 — 3) to have the estate conveyed to him, and to insist on a proper inquiry into the title.*^ § 218. The heir or devisee of the purchaser has no Heir or right to insist on the completion of a purchase, except p^^haser. where the contract is such as might have been enforced against his ancestor or testator; for otherwise he might be able to take the purchase-money from the personal estate, in order to purchase for himself that which his ancestor or testator was not bound to purchase, and perhaps never would have purchased.* ' Newton v. Metropolitan Railway additional reason for making the Co., 1 Dr. & Sm. 583. latter a party; and further, such, a 2 Bttchmaster v. Harrop, 7 Ves. personal representative may, it is 341 ; S. 0. 13 Ves. 456, where suggested, be entitled to maintain the residuary legatees were made an action against the vendor for parties; and see Holt v. Holt, 2 enforcement of the contract, making Vem. 322 ; Brafield v. Scriven, 22 the purchaser's heir or devisee a W. E. 202 (decree against executor party. with costs). Note, too, that if (as ^ Townsend v. C'hapernowne, 9 is conceived to be the case) the Pri. 130. equitable estate, having passed by * Broome v. Monde, 10 Ves. 597 ; the contract to the purchaser, vests Buchmaster v. Harrop, 13 Ves. 471, in his personal representative (Land 472 ; Savage v. Carroll, 1 Ball & B. Transfer Act, 1897, s. 1), that is an 265, 281 ; Garnetty. Adal : in Chancery, however, a suit could not be main- tained by the agent, unless his real principal were in some shape a party to the suit.^ § 265. The principle already stated^ that a person Agent appearing on a contract as principal, though really an ^^'^'^" agent, is yet liable on the contract as principal, applies in cases of specific performance in Equity^ as well as in actions for damages,^ and accordingly such an agent may be sued without the principal. In Chadtuick v. Maden/ where the contract was in the name of the 1 L. E. 2 eh. 77. Of. Wilson v. ^ Corless v. Sparling, I. E. 8 Eq. Lord Bury, 5 Q. B. D. at pp. 526, 335 ; 21 W. E. 876 ; Saxo7i y. Blake, 527. 29 Beav. 438. 2 Kay V. Johnson, 2 H. &M. 118. " Jonea v. Littledale, 6 A. & E. 3 Per Lord Lyndhurst in /Sma?Zv. 486; Mageey. Atkinson, 2 M. &W. Attwood, You. 457. See S. C. 6 01. 440. Of. Long v. Millar, 4 0. P. D. & Fin. 232. 450. < Stipra, § 258. ' 9 Ha. 191. 112 PAETIES TO THE ACTION. Cases where agent a proper party. i. Agent claiming interest. ii. By reason of form of contract. iii. State- holders. Cases where stake- agent, who contended that, being merely such, the bill should be dismissed as against him, Turner V.C. said that "the signature of the agreement was sufficient to subject him to the liability of performing it." In that case, after a lot had been knocked down to him, A. declared himself an agent for C, who was present, and asked to have the contract drawn up in C.'s name, which was refused, and then signed it himself ; it was there held that A. was personally liable on the con- tract. It would, however, appear on principle, that if, at the time the contract was signed, both A. and B. understood that A. was acting merely as agent for C, and B. were afterwards to sue A. for specific per- formance as principal, A. might allege the understand- ing between himself and B. at the time, and give parol evidence of it, and that, if the allegation were proved, it might fiu'nish a valid defence. And in many cases it is obvious that an action for specific performance against an agent alone would fail, from the incapacity of the agent to perform it.^ § 266, There are, however, special circumstances which sometimes occur, and make it proper that an agent should be a party to an action for specific per- formance. In almost all these cases the agent is an agent and something more. (i.) The claim by the agent to an interest in the property in question is one of these cases, and there the agent may be a party.^ (ii.) The contract, as we have already seen, may be so framed as to give a right of action against both principal and agent.^ (iii.) The agent of the vendor often becomes by the contract a stakeholder of the deposit paid by the purchaser, and in that character he may be a proper party to an action. § 267. Thus where a stakeholder threatens to pay over the deposit to the vendor, he may properly be 1 See infra, § 988. ^ Taylor r. Salmon, 4 My. & Or. 134 ; Heard v. Pilley, L. E. 4 Oh. 548. Distinguish Glasbrook v. Sich- ardson, 23 W. E. 61. ^ Waller y. Eendon, supra, § 262. OF AGENCY. 113 made a party to an action by the purchaser.^ Where toWers the stakeholder had paid over the deposit to the ^a'^rtL. vendor, and difBculties had arisen in completing the contract because the deposit was not forthcoming-, the purchaser made the stakeholder a party to a bill filed for specific performance, and was held entitled to a declaration that the stakeholder was (jointly with the vendor) liable to make good the deposit, which was required to discharge a mortgage on the property.^ So, again, the auctioneer has repeatedly been made a defendant to bills by the vendor or those claiming under him, and has been ordered to pay the deposit (less his charge^) into Court/ And on account of the auctioneer's right to bring an action for the deposit,*^ and of his liability in respect of it, it has been said that he can be made a co-plaintifE with the vendor,^ or he may interplead/ § 368. Still, although it is the law that a stake- Theproper holder or auctioneer holding a deposit may be made a ^^ch'^case™ defendant, the proper practice is not to make him a defendant when the deposit which he holds is small, unless being applied to to pay it into Court, he refuses to do so. Where the deposit is large, the depositee may properly be made a defendant if he has not paid it into Court before action.^ § 269. The auctioneer being agent for both ven- "^"°*'£^" dor and purchaser, and receiving the deposit as a stake- who may holder, is liable to an action for it if the sale goes off,^ beXL"^"' although he be also solicitor for the vendor •,^'^ and holders. 1 data V. Thodey, 13 Sim. 206; the purohaser'sIOU for the deposit: 1 Coll, 223, n. ; Fenton v. Hughes, it was teld that the auctioneer could 7 Ves. 287. maintain an action against the pur- ^ Wiggins v. Lord, 4 Beav. 30. chaser for the amount. 3 As to this see St. Leon. Vend. " Dan. Oh. Fr. (oth ed.) 175 ; but 51-52, and Blenhliorn v. Penrose, 29 see the 7th ed. 174, note. W. E. at p. 239. ' Hoggart v. Cutis, Or. & P. 197. * Annesley v. Muggridge, 1 Mad. ' Earl of Egmont y. Smith, 6 Oh. 593 ; Yates v. Farebrother, 4 Mad. D. 469, 474-5. 239. Ci. Blenkhorn Y. Penrose, 29 'i Grey y. Outteridge, iMan. SlUj. W. E. at p. 239. 614 ; Harington v. Hoggart, 1 B. & ^ In Hodgens v. Keon, [1894] 2 Ad. 677. I. E. 657, the auctioneer had, -with- '^ Edwards v. Hodding, 6 Taun. outauthorityfromtheyendor, taken 815. r. I ^^^ PARTIES TO THE ACTION. where the contract provided ''that a deposit of 350?. should be paid in part of the purchase-money to " the vendor's solicitors, it was held that they were stake- holders.^ But the vendor's agents,^ including solicitors to whom the deposit is paid, " as agents for the vendor," are not stakeholders.* Accordingly, where there is a condition for payment of the deposit to the vendor's solicitor " as agent for and on account of the vendor," the payment of the money to the solicitor is equivalent to payment to the vendor, and, if the contract goes off owing to the vendor's default, the deposit cannot be recovered from the solicitor, whether he has paid it over to his principal or not.* 1 Wiggins v. Lord, 4 Beav. 30. ^ ^dgell v. Day, L. E. 1 0. P. 2 Duke of Norfolk v. Worthy, 1 80. Camp. 337 ; Hurley y. Baker, 16 * Ellis v. OouUon, [1893] 1 Q. B. M. & W. 26. 350, 353. ]15 PAET III. OP THE DEFENCES TO THE ACTION. CHAPTER I. OF THE INCAPACITY TO CONTRACT. § 270. The incapacity to contract of either of the Nature of parties to a contract furnishes ground on which that ^^^'^' party may resist specific performance ; and on the principle of mutuality hereafter to be considered it may also furnish a defence to the other party, though himself perfectly competent. The incapacity to con- "When m- tract, and the incapacity to execute a contract, are of be^ud^d° course different questions : the one must be judged of o*- at the time of thd contract, the other when its per- formance is sought. § 271. The question as to the capacity of persons to contract, as raised in actions for specific perform- ance, being for the most part identical with the question as discussed at Common Law, and having no peculiar relation to the jurisdiction in specific performance, it is proposed only to refer to a few points of practical importance which may arise in actions of this nature. § 272. An infant has no general power to con- infants. tract : and generally can neither sue nor be sued on a contract^ into which he has purported to enter. In respect of apprenticeship, an infant may bind himself by an indenture for this purpose, but nevertheless no ^ See further, § 461, wfra. i2 116 OP THE DEFENCES TO THE ACTION. relief can be had against the infant by way of damages^ or specific performance^ on his contract to serve. " You cannot get specific performance against an infant.'"^ Married § S73. Married womcn have certain special powers women. ^^ Contracting, and a partial incapacity to contract. This subject will be found discussed in a subsequent chapter.* Lunatics. § 274. A contract entered into by a lunatic during a lucid interval is as binding as if made by a person of perfectly sound mind.® And, further, " a contract made by a person of unsound mind is not voidable at that person's option, if the other party to the contract believed, at the time he made the contract, that the person with whom he was dealing was of sound mind. In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other of the contracting parties. A defendant, who seeks to avoid a contract on the ground of his insanity, must plead and prove, not merely his incapacity, but also the plaintiff's knowledge of that fact, and unless he proves these two things he cannot succeed." ^ Under the practice of the Court of Chancery, where a person who had entered into a contract was subsequently found lunatic from a date prior to the contract, it was competent for the other party to sue for specific performance, and obtain a decision of the questions whether the defendant was a lunatic at the time of the contract, and, if so, whether he had lucid intervals, and whether the contract was executed during a lucid interval :^ or he might ask, in the alter- ' Gylbert v. FJetchfr, Cro. Car. lucid interval, see AU.-Gen. v. 179. Parnther, 3 Bro. 0. C. 441 ; Ex parte 2 1 Eq. 0. Abr. 6; De Francesco HoJyland, 11 Ves. 10. See also V. Barnum, A3 Ch. D. 165; S. C. Bay's Medical Jurisprudence and on trial, 45 Ch. D. 430. Insanity, ch. 14 ; Bucknill and , „ T ■ ■■, T T- . T- ■■ Tuke's Psycliological Medicine (3rd ' Per Lmdlev L.J. m Lumley v. j , nw t. 2.1 -j.- .-;„„ -, . ^ -^ , ed.), p. 27, wnere many authorities Bavenscroft, [1895] 1 Q. B. at ^^e ^ited. '^' ' ^ Per TiopesTi. J. in Imperial Loan * See Part VI. chap. v. Qo. v. Stone, [1892] 1 Q. B. at ^ Hall V. Warreti, 9 Ves. 605. As p. 602. to the eTidence required to prove a ' Hall v. Warren, 9 Ves. 605. OF THE INCAPACITY TO CONTKAGT. 117 native, to haye the contract either performed or dis- charged; and in the latter case the Court would allow him, if vendor, to retain out of the deposit his costs, charges, and expenses.^ In judging of insanity, Courts of Equity are governed by the same principles as purely Common Law Courts.^ § 375. The subsequent lunacy of a party to a con- Sutse- tract in nowise affects the rights of the other parties ; ^ ?unaoy of and the difficulties which formerly stood in the way of * party. their remedies are now dealt with by the Lunacy Act, 1890, sect. 133 and following sections. Where, for instance, a contract for sale of leasehold property had been entered into by a lunatic before his incapacity, and had been so acted upon as to entitle the purchasers to a judgment for specific performance, an order was made under sect. 135 of the last-mentioned Act, vest- ing the property in the purchasers, after payment by them of the purchase-money to the lunatic's curator,' § 276. In addition to the legal incapacities to con- Persons tract. Courts of Equity consider trustees, guardians, in^°on™? agents, and other persons standing in a confidential dentiai relation to others to be incapable (either absolutely or ™^''*^°°^- except under certain restrictions) of contracting for the purchase of the property entrusted to them in behalf of the persons to whom they stand thus confi- dentially related, and, under many circumstances, of contracting with such persons ; ^ and this incapacity may, of course, be urged in an action for specific per- formance. But inasmuch as it depends on the general doctrines of the Court with regard to each of these particular relations, — and questions of this sort are more often agitated in actions to set aside the im- pugned transaction, than in proceedings for specific performance, — it does not appear necessary to do more here than allude to the subject generally. 1 Frost V. Beavaii, 17 Jur. 369. FiUroy, 3 P. Wms. 129. See infra, As to setting aside a contract for § 399- ,, , „ J ,T -n ^ Oivenx. Bavies, 1 Ves. Sen. 82. the lunacy of a party, see IseiU v. . „ n ■ n onm i m, no,. ■^ r J' I Jig Pagam, [1892] 1 Oh. 236, Morley, 9 Ves. 478, 482. 238. 2 Fer Lord Hardwicke in Bennet a gee Flanagan v. Great Western V. Vade, 2 Atk. 327; Osmond v. iJat/woj' Co., L. E. 7 Bq. 116, 118 CHAPTER II. OP THE NON-CONCLUSION OF THE CONTRACT. There § 277. No proceedings in specific performance concluded Can, of coursc, be had unless a contract has actually contract, ijeen concluded, i.e., unless two persons have agreed on the same terms, and mutually signified to one another their assent to them. If what passed between them was but treaty or negotiation, or an expectation of contract, or an arrangement between them of an honorary nature, no specific performance can be had. Onus of § S78. The burden of proving this concluded con- piaintffi ti'act is, of coursc, on the plaintiff : and where the law requires some peculiar mode of evidencing the con- tract, as, e.g., a writing, or a signature, or a seal, the question of the existence of a contract in fact and of the existence of the required evidence should ever be kept distinct in thought.' There may be a contract in fact, though the required evidence of it may be wanting ; or there may be a writing, or signature, or seal, and yet no contract in fact. Parol evidence is admissible to show that, although there is what pur- ports to be a signed agreement, the parties in truth never came to an agreement at all. The admission of evidence to show that does not contravene the rule of law that evidence is not admissible to vary the terms of an agreement in writing.^ When a § 279. Where there is nothing to throw light upon o?con-° t^i6 existence or non-existence of a contract but some Btruction. 1 Rossiter v. Miller, 3 App. Oas. ^ Pym v. Campbell, 6 B. & B. 112^,1151; Qhinnoch -v. Marchioness 3Y0, 373; Pattle v. Hornihrooh, of Ely, 4 De G. J. & S. 638. [1897] 1 Ch. at pp. 30, 31. OF THE NON-CONCLUSION OF THE CONTRACT. 119 instrument ov instruments, the question is really one of construction of the documents in question. § 280. Where the contract is embodied in a formal where document simultaneously entered into by both parties, *J|^^™J" '^ and purporting to be a contract, little difficulty can document. occur as to whether the contract was concluded. But where this is not the case questions have arisen. § 281. One question has been whether the instru- istheiu- ment in question was the embodiment of a contract or con"w?'^ of some other transaction, (i.) Is a Judge's order made by consent, and judge's directing certain things to be done by the parties °'^'^'^''- to it, a contract to do the things ? It was said not to be by Lord Hatherley (when a Vice Chancellor), who, both on that ground and on the nature of the Judge's order, refused specific performance.^ The opposite view has been taken in some cases at Common Law, and it has been said that a contract is not the less a contract, and subject to the incidents of a contract, because there is superadded the com- mand of a Judge. ^ (ii.) Are instructions for a settlement a contract instruc- for a settlement, or only instructions for a contract ? settle-""^ This was a question on which the House of Lords ment. was in one case much divided.^ (iii.) Are articles of association a contract between Articles of the company and a third person named in them ? tkm!^^^" This is a question which, under special circum- stances, has been answered in the affirmative.* (iv.) Is the recital in a deed evidence of a con- Recital. tract ? — is a question which also has been answered in the affirmative.^ ' Thames Ironworks Co. v. Patent Warehousing Co., L. E. 6 Oh. 67 1 ; Derrick Co., 1 J. & H. 93. questioned, howeyer, by Bo-wen 2 Wentworth v. BuUen, 9 B. & C. ^/- ^^ ^««'^2'/-. Gandy, 30 Gh D. „^„ _. , «., T T> 1 at p. 65. It IS conceived that, 840; Lievesley v. Qilmore, Jj. JK. 1 ,, ,, ,. -, , 0. P. 570; Coru>lan y. Leyland, 27 ge^raly the question proponnded Ch. D. 632. See also Tatham y. m the text is to be answered m the Piatt, 9 Ha. 660. ^^Satm- ^'l ^' ^^V^V^^' [If §] 2 On. at p. 168, and the cases there ' Caton V. Catm, L. E. 2 H. L. referred to. 127. 5 Wilsmi y. Keating, 27 Beay. 121 , * Touche y. Metropolitan Railway affirmed 4 De G. & J. 588. 120 OF THE DEFENCES TO THE ACTION. Negotia- tion is not contract. Proposal and ac- ceptance. Essentials of the ac- ceptance. § 282. A much more common question is whether negotiations have passed from that state and resulted in actual contract. If it were only doubtful whether the contract was concluded or negotiations still re- mained open, the Court of Chancery used to refuse specific performance, and leave the parties to their Common Law rights if any.^ § 283. A binding contract, enforceable in Equity, may be constituted by the proposal of one party and the acceptance of the other.^ But as the proposal has no validity without the acceptance,* a memorandum of offer differs essentially from a memorandum of agree- ment. "In the case of an offer, no doubt, the party signing it may at any time before acceptance retract ; but if it be an agreement, though signed by one party alone, he cannot retract at his pleasure, but all he can do is to call upon the other party to sign or rescind the agreement. A memorandum of agreement supposes that the two parties have verbally made an actual contract with each other ; and when the terms of such contract are reduced into writing and signed, that is sufficient to bind the party signing ; but if the memo- randum is of an offer only, that assumes that there has been no actual contract between the parties." * § 284. In order that an acceptance may be ope- rative, it must be plain, unequivocal, unconditional, and without variance of any sort between it and the proposal, and it must be communicated to the other party, and that without unreasonable delay.® '■ Huddleaton v. Briscoe, 11 Ves. 583, 591 ; Stratford v. Bosworth, 2 V. & B. 341 ; Skelton t. Cole, 1 De G. & J. 587. * The acceptance must be by the other party. An offer by A. to B. and acceptance by 0. constitutes no contract. Meynell t. Surtees, 3 Sm. & Gif. 101, 117. ^ See South Hetton Coal Co. v. Haawell, &c. Co., [1898] 1 Ch. 465, 468, where a liquidator vendor having undertaken to accept " the highest net money tender I receive" for some mines, and the plaintiffs having thereupon sent in a tender which ia the view of the Court of Appeal did not answer the descrip- tion of what the vendor had bound himself to accept, it was held that there was no contract. * Per Endersley V.C. in Warner V. Willington, 3 Drew. 531. See also Meynell v. Surtees (on appeal), 1 Jur. N. S. 737 ; 3 W. E. 535 ; Eorsfall v. Garnett, 6 W. E. 387. See, as to pollicitatio, Pothier, Traite des Oblig. par. 1, chap. 1, s. 1, art. 1, § 2. 5 Oriental Inland Steam, Naviga- OF THE NON-CONCLU,SION OP THK CONTRACT. 121 § 385. The proposition that the acceptance must A'cimnii/ he plain, unequivocal, unconditional, and without vari- ^' "' ance, is supported and illustrated by a great variety of decisions. In the case of Kennedy v. Lee^\k\e subject was much discussed : it was there unsuccessfully argued that the acceptance introduced a term respecting the goodwill of a business not included in the proposal. § 386. The unequivocal character of the accept- Accept- ance that is requisite is well illustrated by a case in beunequi- which A. made an offer to B., by letter, to sell a lot ■^°°'^^- of land : B. filed a bill against A., alleging a contract in writing for the sale of this estate, and the answer offered to sell the estate : the decree was in the alter- native for a conveyance on the payment of the purchase-money into the bank, or in defaiilt for the dismissal of the bill : the money was paid. The question arose between the heirs and devisees of B. as to the time when the contract became binding : it was held that the bill did not amount to an acceptance so as to bind B. ; for he as plaintiff might have dismissed his bill : the decree did not, for it left an election to the plaintiff : but the payment of the money into the bank did, for that was unequivocal.^ In another case, where the plaintiff had made an offer to take a farm, and had referred to certain persons as to his capabili- ties and capital, and in consequence of this offer the agents of the proposed lessor had, by his direction, prepared and sent to the proposed lessee a lease which they considered to be in pursuance of the proposal ; Kindersley V.C. held this not to be an acceptance,^ on the ground that the act was ambiguous and condi- tional : — ambiguous, because the lease might have been sent in order to save time, and without any intention of departing from the right of accepting or refusing the offer of the plaintiff, according to the result of his communication with the referees; and tion Co., Limited v. Briggs, 4 De G. ' Qaskarth v. Lord Lowther, 12 F. & J. 191. Ves. 107. 1 3 Mer. 441. See, too, Thorn- ^ Warner v. WiUhigton, 3 Drew. lury V. Bevill, 1 Y. & 0. 0. C. 554 ; 623. Of. Horsfall v. Garnett, 6 Cayley v. Walpole, 18 W. E. 782. W. E. 387. 122 OF THE DEFENCES TO THE ACTION. conditional, because the sending the draft lease, if an acceptance at all, was an acceptance upon condition that the defendant accepted the draft lease. The case of Thomas v. Blackman,'^ before Knight Bruce V.C., may also be referred to as illustrating this doctrine. Here there had been a long correspondence, and the Vice Chancellor held that there never had been, in any part of it, a clear accession on both sides to one and the same set of terms ; and accordingly he decreed the dismissal of the bill, unless the plaintiff accepted the terms of the defendant's original offer, which the plaintiff acceded to. Accept- g 287. In illustration of the unconditional nature be uncon- of the acceptance required, the case of Crossley v. May- ditionai. ^^^^ 2 ^^^j ]-,g referred to. There vendors wrote, in answer to an offer, " which offer we accept, and now hand you two copies of conditions of sale," and in- closed a form of contract containing sundry special stipulations ; and it was held that the acceptance was conditional only. " If," said Jessel M.R.,^ "there is a simple acceptance of an offer to purchase, accom- panied by a statement that the acceptor desires that the arrangement should be put into some more formal terms, the m.ere reference to such a proposal will not prevent the Court from enforcing the final agreement so arrived at. But if the agreement is made subject to certain conditions then specified or to be specified by the party making it, or by his solicitor, then, until those conditions are accepted, there is no final agree- ment such as the Court will enforce." And with- § 288. Where there is any variance between the auce™rom tcrms of the proposal and those of the acceptance, no the offer, contract arises : as where A. offered to purchase a house on certain terms, possession to be given on or before the 25th of July, and B. agreed to the terms, and said he would give possession on the 1st of August/ And where A. made the promoters of a railway an offer of a way-leave for the purpose of 1 1 CoU. 301. 332. ^ L. E. 18 Bq. 180. See, too, , j^ jj_ ^g j,^_ ^^ ^^ ^gj_ Lewis v. Brass, 3 Q. B. D. 667 ; and Jones v. Daniel, [1894] 2 Ch. * Emitledge v. Orant, 4 Bing. 653, OF THE NON-CONCLUSION OF THE CONTKACT. 123 theii- railway, which was one foi" mineral traffic only, and it was subsequently accepted, but for the purpose of constructing a public railway for general traffic, this was held to be such a variation in the subject- matter as prevented any contract from arising.^ § 289. The introduction of a term in the accept- Aooept- ■1 • T • i-ji !• ■ 1-1 anoe must ance which is not m the proposal, is a variance which not mtro- prevents their constituting a contract. Therefore, iiuoe any where the defendant offered certain terms for a lease, and the plaintiff accepted the terms and offered an under-lease, there was held to be no contract.^ So where a condition was introduced into the acceptance, it prevented its operating as a contract.** In another case, where the plaintiff proposed a contract to the defendant, stipulating amongst other things that a lease should contain all the covenants in the superior lease, and the defendant signed the contract tendered, but with the qualification that there was nothing un- usual in such superior lease : a draft of the proposed lease was then submitted to the defendant, who made some alterations, and requested the plaintiff's solicitors to adopt them at once, or to refuse the lease : the solicitors sent back the draft, acceding to all the alterations except one as to assigning without licence : it was held that at this stage there was no contract, and that the proposed lessee could determine the treaty.* And where a proposal was made to take an allotment of railway shares, and a letter was returned, accepting the offer, but headed "not transferable," the new term introduced by these words prevented the proposal and acceptance from constituting a con- tract.* § 390. In a case which went to the House of Accqjt- Lords," the Court of Appeal held that the purchaser's f^cTto"' 1 Meynell v. Surtees, 3 Sm. & Gif. Wright v. St. Oeorye, 12 Ir. Ch. E. 101, affirmed by Lord Cranworth, 226; and see Pattle v. Hornihrooh, 1 Jur. N. S. 737 ; 3 W. E. 535, [1897] 1 Oh. at p. 31 (counter-offer sanctioning this argument. dechned — no contract). 2 Holland y. Eyre, 2 S. & S. 194. " Duhe v. Andrews, 2 Ex. 290. 3 Hall V. Hall, 12 Beav. 414; ^ Hiissey y. Horne-Fayne, 8 011.1). Lucas V. Martin, 37 Oh. D. 597. 670; 4 App. Oas. 311; Hudson v. * Lucas y. James, 7 Ha. 410. Of. Buck, 7 Oh. D. 683. ]2i OP THE DEFENCES TO THE ACTION. approved by soli- citors. tij^^^^eing acceptance of a proposal for sale " subject to the title being approved by our solicitors," did not constitute a contract by reason of the new term ; for all that the simple acceptance could have given here would have been the right to a good title, and what he stipulated for was a title to be approved by particular persons of his own selection. But in the House of Lords, though the decision of the Court of Appeal was affirmed (on the ground that no concluded contract had been established). Lord Cairns dissented from that Court's A'iew of the effect of the words in question, and said,^ " I am disposed to look upon the words as meaning nothing more than a guard against its being supposed that the title was to be accepted without investigation, as meaning, in fact, the title must be investigated and approved of in the usual way, which would be by the solicitor of the purchaser." If the point be still open, it will be worthy of consideration whether the opinion of Lord Cairns can be maintained. § 291. But where the proposal leaves a term to be decided by the acceptance, the decision of this will not of course amount to the introduction of a new term ; as, e.y., where the proposal has reference to such a day as shall be named by the party to whom it is made, and he in accepting names the day.^ And a contract by proposal and acceptance may, like any other, leave the price or any other term to be ascer- tained in a way agreed on.^ § 292. So again, it seems clear that a variation which is purely nugatory will not affect the contract ;** nor will the introduction into the acceptance of what is not matter of contract ; as, e.ff., the words " we hope to give you possession at half-quarter day," which were held to be a mere expression of hope, and so not to introduce a new term into the acceptance.^ What is not a new term. Nugatory- variations. ' 4 App. Cas. at p. 322. * Boys V. Ayerst, 6 Mad. 316. 3 Walker v. Eastern Counties Rail- way Co., 6 Ha. 594. * Lucas T. James, 1 Ha. 410, 424. Of. infra, § 636, anAper Lord Oolon- say in Proprietors, &c. of English & Foreign Credit Co, y. Arduin, L. E. 5 H. L. 64, 81, 82. ^ Clive V. Beaumont, 1 De G. & Sm. 397. See also Johnson v. King, 2Bing. 270; a,nd Simpsoiiy. Hughes, 66 L. J. Ch. 334, 0. A. ; 76 L. T. 237, affirming S. C. 45 "W. E. 221, where it was lield tliat some re- marks in a letter of acceptance, as OF THE NON-CONCLUSION OF THE CONTRACT. 125 § 293. Nor will the Court consider a new term Reference to be introduced by the circumstance that the accept- exe™°tion. ance proceeds to treat of the way in which the contract IS to be carried into execution ; as, for instance, by referring to a formal contract that was to be drawn. ^ § 294. Nor will a new term be held to be intro- indui- duced by the mere grant of some indulgence by the |ranted acceptor to the proposer ; as where the proposal in- ^y re- volved the payment on a particular day, and the '^'^^ °'' acceptance added that if the payment was not so made, interest at 10 per cent, must also be paid.^ It would seem that this could only apply where the time of payment would be of the essence of the contract, as in any other case it would seem that such a stipulation was not an indulgence. § 295. The acceptance must be communicated in Accept- some way by the accepting party to 'the other -.^ a mere'^g^g^™""* mental acceptance will not do. " The plea is not municated good," said Brian C.J., ''without showing that he pos^e™' certified the other of his pleasure, for it is common learning that the intent of a man is not triable, for even the Devil does not know the intent of a man." * § 296. But upon this doctrine a remarkable ex- or to post ception has been engrafted by decision, viz., that ° where the communications are by post, the delivery of the acceptance to the post office makes a concluded and absolute contract, though it may never reach the hands of the other party. This conclusion has been based on various suggestions; as that the person making the offer has assented to treating the posting of the acceptance as a sufficient communication to him ; that the post office is the agent of the proposer to receive the acceptance; that the balance of convenience is in favour to tlie time from wHcli the pur- ^ Harris' case, L. E. 7 Oh. 587. chase was to date, and as to seeing ^ lie Consort, &c. Mines, Ex parte to the fences, were not to be treated Stark, [1897] 1 Oh. at p. 591. as part of the bargain. * Tear Book, 17 Edw. IV. T. 1 Oibhins v. North Eastern Metro- Pasch. 2, referred to by Lord Black- politan Asylum District, 11 HesiY.!; burn in Brogden v. Metropolitan Skinner v. M'Douall, 2 De G. & Sm. Railiimy Co., 2 App. Cas. 692, and 265 ; Bonnewell v. Jenkins, 8 Oh. D. by Lord Macnaghten in Keiyhley, 70 ; Bossiter v. Miller, 3 App. Cas. Maxated & Co. v. Burant, [1901] 1124 ; and see infra, % 508. A. 0. at p. 247. 126 OF THE DEFENCES TO THE ACTION. of the doctrine ; that the acceptor has done all that is requisite on his part, and is not answerable for the casualties of the post office ; that the case is governed by analogy with the law as to notice of dishonour of a bill. Whether any of these suggested reasons are satisfactory is a question now open for discussion only in the House of Lords ; for in the Household Fire In- surance Co. T. Grant^ the majority of the Court of Appeal upheld the conclusion above stated, Lord Bramwell dissenting in a vigorous judgment. The current of authorities before this decision cited in the note hereto was not uniform.^ In Henthorn v. Fraser^ Lord Herschell said that he " should prefer to state the rule thus : Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of man- kind, the post might be used as a means of com- municating the acceptance of an offer, the acceptance is complete as soon as it is posted." Without § 297. The acceptance, moreover, must be with- aWedday. 0"-^ Unreasonable delay. " When I offer anything to a person," said Lord Cranworth,* "what I mean is, I will do that if you choose to assent to it ; meaning, although it is not so expressed, if you choose to assent lUustra- to it within a reasonable time." This principle is tions. illustrated by the case of Williams v. Williams^ of which the circumstances were, that in 1827 A. wrote to B. that he had credited B.'s account with 220^. in con- sideration of a contract by B. to convey certain houses. The abstract was delivered ; but there was no accept- ance in writing by B., who however five years after- wards filed his bill against A. for specific performance. It appeared that in 1827 A. had abandoned the treaty, and that in 1829 both parties considered it as broken off, but nevertheless that B. had in the meantime had 1 L. E. 4 Ex. Div. 216. L. E. 13 Bq. 148; WalU case, L. E. 2 Adams y. Lindsell, 1 B. & A. 15 Eq. 18; Byrne y. Van Tienhoven, 681 ; Stochen v. Oollin, 7 M. & W. 5 0. P. D. 344. 515 ; Bunlop v. Eiggins, 1 H. L. 0. , ^^^^^-^ ^ qj^_ ^^ 33_ 381 ; Duncan v. Topham, 8 0. B. 225; HebVs case, L. E. 4 Eq. 9; * I^ Meynell v. Surtees, 1 Jur. British, &c. Telegraph Co. v. Oolson, N. S. 737 ; 3 W. E. 635. L. E. 6 Ex. 108 ; Towneend's case, * 17 Beay. 213. OP THE NON-CONCLUSION OF THE CONTRACT. 127 the benefit of the credit of 220^, The Court dismissed the bill, on the ground that an offer, to convert it into a contract, must be accepted and acted on within a reasonable space of time. In another case, A, applied to a company for shares on the 8th of June, and an allotment was made on the following 23rd of November, and it was held that the acceptance of the proposal to take shares came too late to bind the proposer.^ § 298. The proposal, before conversion into a What de- contract by acceptance, may be determined in two the'^ro^-^ ways, by the withdrawal of the person making the po^ai. offer, or by the refusal of the person to whom it is made. § 299. First, it may be determined by the pro- i. With- poser by withdrawal before acceptance,^ because the '^^'^^^^^■ proposal by itself creates no mutuality and no obliga- tion ; so that where a person made an offer for a farm, which the owner intended to accept, but did not do so bindingly, and the proposer subsequently withdrew his offer, it was held that he could do so, and that there was no contract.^ And so also where A. by writing applied to a company for shares "which he thereby accepted " and paid the deposit, but before allotment withdrew his application and unsuccessfully required the return of his deposit, and an allotment was made to him, he was held not to be a contribu- tory.^ And where a railway company gave notice to treat for part of a manufactory, which was met by a counter notice requiring them to take the whole, and the company then gave notice of their intention to apply to the Board of Trade for the appointment of a surveyor to determine the value of the premises required by the notice to treat, and of the further lands which the owner could lawfully require, and ' Eamsgate Victoria Hotel Co., perty at any time before the ham- Limited y. Montefiore, L. E. 1 Ex, mer falls) Warlow v. Harrison, 28 109. L. J. Q. B. 18. « Tlwrnhury v. Bevill, 1 Y. & 0. 0. C. 554. See also Meynell v. Surtees, 1 Jur. N. S. 737 ; 3 W. E. 535 ; Horafall y. GarneU, 6 W. E. 387; and cf. (as to the right of a vendor * Ex parte Graham, 30 L. J, at an auction to ■withdraw the pro- Bank. 42. ' Warner y. WiUington, 3 Drew. 523. Cf. Riimmens y. Moiins, 4 De G. J. & S. 88. 128 OF THE DEFENCES TO THE ACTION. had required the company to take, it was held that the company might still withdraw their notice to treat.^ Notwith- § 300. This right to retract is not affected by the tim" for^ f ^ct that the offer itself specifies a time within which acceptance the acceptance is to be made ; so that where A. offered prescn e . ^^ ^^yi ^ house to B., and gave B. six weeks for a definite answer, A. was held entitled to withdraw his offer before the expiration of that period.^ Express § 301. It is ncccssary to the effectual determina- ^th-°* tion of a proposal by withdrawal before acceptance drawai that somo noticG of withdrawal qr retractation should iui. "^^ " be given to or reach the person to whom the proposal was made, and the mere posting of a letter is not suffi- cient.* For a person who has made an offer must be considered as continuously making it, until he has brought to the knowledge of the person to whom it was made that it is withdrawn.* But it is not needful that the notice should be formal or express.^ " It may well be that the one man is bound in some way or other to let the other man know that his mind with regard to the offer has been changed ;"^ but as soon as the person to whom the offer was made in fact has this knowledge, as, for instance, by knowing that the pro- poser has sold the property to a third person, he will be taken to have sufficient notice of withdrawal, and he cannot afterwards by accepting the offer make a binding contract.'^ Notice § 302. Where however the communication is not a XhTof iicisre offer to contract but a notice given in pursuance pre-emp- of a right of pre-emption, the notice may, according *'™' to the terms of the instrument giving this pre-emption, be incapable of being withdrawn,'' 1 Orierson v. Cheshire Lines Com- * Per Lord Hersoliell in Henthorn mittee, L. E. 19 Eq. 83. v. Fraser, [1892] 2 Ch. at p. 31. ' Boutledge v. Grant, 4 Bing. 653 ; ^ Biclcemon T. Dodds, 2 Oh. D. Coohe V. Oxley, 3 T. E. 653. Of. 463, 474. Dickenson v. Dodds, 2 Oil. D. 463; « Per James L.J., 2 Oh. D. at Bristol, (fee. Bread Co. v. Maggs, 44 p. 472. Of. Stevenson v. McLean, 5 Oh. D. 616. ' Q, B. D. 346; Ctiillamore t. Pea- ' Byrne v. Van Tienhoven, o coche, 12 Ir. Oh. E. at p. 360. 0. P. D. 344; Stevenson v. McLean, o ' See Eomfray v. Fothergill, L. E. Q. B. D. 346. 1 Eq. 567. OF THE NON-COKCLUSION OF THE CONTRACT. 129 § 303. In Bolton Partners v. Lambert^ the Court of Unautho- Appeal held that an unauthorized acceptance by a oeptanoe stranger in the name of the person to whom a proposal prevents was made prevented the person making the proposal drawai. from withdrawing it. The case appears to be a remarkable one ; and it raises such important ques- tions with regard to the true nature of a contract that some observations are made upon it in an Additional Note at the end of this volume, to which the reader is referred. It has been held that the doctrine of the case above discussed does not apply where the ratification does not come till after the time fixed by the contract for performance has arrived.'^ § 304. In the second place, the refusal of the h. Refusal. person to whom the proposal is made puts an end to it ; and it will not be revived by a subsequent tender of acceptance.^ § 305. As it is competent to the proposer to recall Variations his proposal at any time before acceptance, so also he "ogai! ^'^°' may vary it by the introduction of any new term into it. And as the person to whom the proposal is made may of course offer to accept the terms proposed with any variation or addition, it follows that each party may continue to add fresh stipulations to the proposed contract, until the terms proposed by one side have been definitely accepted by the other.* Therefore where the owner of an estate made a proposal re- quiring amongst other things the payment of 1,500/. by way of deposit, and the purchaser objected to it, and before he accepted the terms, the owner required 1 41 Oh. D. 295 ; followed in Re lums v. Kingham, 6 Times L. E. Portuguese Copper Mines, Limited, 217. Ex parte Badman, 45 Oh. D. 16; ' Hyde v. Wrench, 3 Beav. 334. but distinguished in Dibhins v. The decision in Hodgson v. Hutclien- JDibbins, [1896] 2 Oh. 348, 351, son, 5 Vin. Abr. 522, pi. 34, which where there was an option which inferred an acceptance from acts had to be finaHy exercised, if at all, after an expUcit^ refusal, probably ■J.I.- T -i J i- CI I. cannot be maintained on this point. Within a Imuted time. See, too, , „ ,^ „, ^ ^ HoneymanY. Marryat, 21 iJeaT. Athy Owxrdians v. Murphy, [1896] ^^^ affirmed in D. P. 6 H. L. 0. 1 12. 1 I. E. at pp. 74, 75. Distinguish JolUffe v. Blumberg, 18 ^ Managers of Metropolitan Asy- W. E. 784. r. K 130 OF THE DEFENCES TO THE ACTION. it to be paid and the contract to be signed before a given day, or the treaty to be at an end, and this was not complied with, but a subsequent offer was made to sign the contract and pay the deposit ; the Court held that there was no contract.* Sedby § 306. The Statute of Frauds requiring that the one party memorandum of agreement shall be signed by the sufficient, pj^p^y ^Q |3g charged therewith and not requiring the signature of both parties, it follows that where there is a writing under the hand of the defendant expressing the contract, there is no need to prove an acceptance in writing by the plaintiff of the terms of that contract, and the institution of the action is a sufficient accept- ance.^ If that writing leaves any term open to the election of the other party, the acceptance must of course be in writing to satisfy the statute.^ § 307. But the cases have gone further, and it is now well settled that where the writing is a memo- randum expressing not a contract but a mere proposal, yet there the acceptance of this proposal (though it seems essential to convert the proposal into a contract) need not be in writing. This was so decided by Kindersley V.C, in a case where he observed on the want of previous authority distinctly to establish the point,* and his decision was subsequently followed by the Courts of Excheqrter and Exchequer Chamber.^ In the old case of Coleman v. Ujjcot,^ where there was first an acceptance by the plaintiff by parol-,- and subsequently a subscription by the plaintiff, the parol acceptance appears to have been the ground of the decision that there was a binding contract. Where a written and signed memorandum contains two alternative proposals, parol acceptance of one of them may suffice to constitute a contract enforceable by the acceptor.'' Plaintifi's acceptance need not be ia "writing. 1 S. 0. '^ Boys V. Ayerst, 6 Mad 316. ^ Ibid. * Warner v. Willington, 3 Drew. 523. 5 Smith V. Neale, 2 0. B. N. S. 67 ; Beuss v. Pichsley, L. R. 1 Ex. 342. See also Mozley v. TinJder, 1 0. M. & E. 692 ; Liverpool Borough Bank v. JEccles, 4 H. & N. 139 ; and Filly V. Eoumell, [1896] 2 Ct. at p. 740. « 5 Vin. Abr. 527, pi. 17; cf. Palmer y. Scott, 1 E. & My. 391. ' Lever v. Koffler, [1901] 1 Oh. 543. OF THE NON- CONCLUSION OF THE CONTRACT. 131 § 308. When it has been once established that Aooept- the acceptance need not be in writing, it of coiu^se aot?.^'^ follows that it may be by acts as well as words.^ Thus, for example, where an uncle of a young man sent pro- posals to the friends of a lady, to which no answer was returned, but the young man was admitted as a suitor, and the marriage ensued, it was held by Lord Notting- ham to amount to a complete contract, which ought to be performed on all sides. ^ It is an every-day occur- rence to infer assent from acts as well as from words. § 309. Of course no action can be brought against Defen- any one on a parol acceptance of a proposal relative ce^Ll^' to the sale of realty. m^st te iu writiiifir. § 310. In contracts constituted by proposal and xime at acceptance, it is obvious that the question may arise, wMciithe at what time the treaty was converted into a contract.^ constf-'^ ^^ In all cases in which the contract is perfected by the '"*<='^- posting of a letter declaring the acceptance, the con- f^^f^^^ tract dates from the posting, and not from the receipt of the letter of acceptance.* § 311. In case of there being an agent for the where proposer authorized in that behalf, the communication *^T4nt of the acceptance to him completes the contract, though for pro- the agent may fail to make known the acceptance to ^"^^"^^ his principal.* § 312. One species of contract by proposal and Represen- acceptance is constituted by a promise or representa- *onduot"'^ tion made by one person, and acts done by another person on the faith of such promise or representation. " A representation," said Lord Cottenham,^ "made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will in general be sufficient to entitle him to the assistance of this Court for the purpose of realizing such repre- sentation." ' Williams v. Williams, L, E. 2 ^ Wright v. Bigg, 15 Beav. 592. Ch. 294. " In Hammershij v. Be Biel, 12 '^ Parker v. Serjeant, Fincli, 146. CI. & Fin. 62, n. ; of. Ayliffe v. ' Cf. on this point Bichenson v. Tracey, 2 P. Wms. 64, vliioli slao-ws Bodds, 2 Ch. D. 463; supra, § 301. that ■where the act was not done in ^ Potter V. Sanders, 6 Ha. 1 ; Byrne reliance on the representation, no T. Van Tienhoven, 5 0. P. D. 344. contract arises. k2 132 OF THE DEFENCES TO THE ACTION. Eepresen- § 313, Representations are of two kinds: the one tiLbgs° of things past or present, the other of things future : past. the one of things done or existing, the other of things to be done. With regard to the former class, whenever a representation as to something alleged as a then existing fact, which representation is not true, has been made by a person who knows it to be untrue, or does not know it to be true,^ to another person in order to induce him to an act, and that act has been thereupon done by the second person to his prejudice, the person ^ making the representation will not be allowed by the Court afterwards to turn round and deny the alleged fact. "It shall be," said Lord Mansfield C.J.,' "as niustra- represented to be." Thus for example, where one person represented to another, on a treaty for marriage with his daughter, that a certain demand was not existing, he was afterwards restrained by the Court from proceeding to recover the demand:^ and where a father represented to a future husband of his daughter that she was entitled after the death of her parents to 10,000/., and she was in fact only entitled to about half that amount, the balance was recovered from the father's estate.* But in these cases, the Court acts merely on the principle of preventing fraud, and not at all on contract ; ^ and they therefore do not properly come in for discussion here. StFon^of^' § 314. But with regard to representations of some- things thing future, and within the power of the party making the statement, the case is different. On the one hand, the doctrine of estoppel by representation has no application to such cases ;^ and on the other 1 Per Grant M.E. in Ainslie v. 3 El. & Bl. 48. Medlycott, 9 Ves. 21. , ^^^^ ^_ Hutchinson, 20 Beay. ^ In Monteficri v. Montefiori, 1 goO; affirmed 5 De G. M. & G. Wm. Black. 364. g .g_ ^^ difeerent grounds. See also 3 Neville Y. Wilkinson, 1 Bro. 0. 0, j^^^^^ ^_ ^^^ .,^_ 21 Beay. 5. ' 543. See also Oale v. Linda, 1 Vern. 475; Scott Y. Scott, 1 Cox, 366; and ' ^^"^ '^°^^ Cranwortli L.J. in at Law, Montefiori v. Montefiori, 1 -^oraej/ v. Jordan, 2 De G. M. & G. Wm. Bl. 363 ; Pickard v. Sears, 6 A. 332. & E. 469 ; Qregg t. Wells, 10 A. & ^ Maddison v. Alderson, 8 App. E. 90; J'reemara T. Coote, 2 Ex. 654; Cas. 467, 472. See, too, Oeorge Howard v. Hudson, 2 Bl. & Bl. 1 ; WMtechurch, Limited v. Cavanagh, Foster y. Mentor Life Assurance Co., [1902] A. 0. at p. 130. future. OF THE NON-CONCLUSION OF THE CONTRACT. 133 hand such a representation, made for a particular purpose by one person, and followed by conduct in pursuance of it by the other, constitutes a true and proper contract. "There is no middle term," said Lord Cranworth/ " no tertium quid between a representation so made to be effective for such a purpose and a contract ; they are identical." In one case an uncle represented that he would buy a ware- house for his nephew, and at the uncle's instance the nephew entered into a binding contract to purchase the warehouse : it was there held that the uncle's estate was bound to find the purchase-money.^ § 315. In order to enable the Court to give relief Represen- on the ground of contract to a person who has acted musTbe on the faith of another's statements, the representation ci^^^i ^^^ or promise on which he relies must be clear and abso- ^ ^° '^ ®- lute. Therefore where a father, after declining to enter into a settlement, added that he should allow his daughter the interest of 2,000/., and that if she married he might bind himself to do it, and pay the principal at his decease, it was held not to be an absolute contract •? and so where the father of an intended husband made only a promise to recognise his son in common with the rest of his family, but the promise was loose and vague, and defined no sum, Stuart V.C. dismissed a bill filed by the son, but under the circumstances directed the costs to be paid out of the father's estate.* But, on the other hand, where on the treaty for a marriage the father of the intended wife wrote to the intended husband, " At my decease she [the intended wife] shall be entitled to her share in whatever property I may die possessed of," Lord Romilly M.R. held that this amounted to a contract binding on the father and his estate, and was not too vague to be enforced.^ " When," said his 1 iTiMaumelly. White, 4:B.. L. 0. White, 1 Jon. & L. 567. 1056. * Kai/ V. CwoJi, 3 Sm. & G. 407. * Skidmore v. Bradford, L. E. 8 ' Laver v. Fielder, 32 Beav. 1. Eq. 134 ; of. Itidley v. Ridley, 34 Distinguisli In re Fichus, Farina v. Beav. 478. Fickua, [1900] 1 Ch. 331, where the 2 Randall v. Morgan, 12 Ves. 67. intended wife's father had written See the ohservations on this case of to the intended husband, " She will Lord St. Leonards in Maunsell v. have a share of what I leave after 134 OF THE DEFENCES TO THE ACTION. Lordship/ '' a man makes a solemn engagement upon an important occasion, such as the marriage of his daughter, he is bound by the promise he then makes. If he induce a person to act iipon a particular promise with a particular view which affects the interests in life of his own children and of the persons who become united to them, this Court will not permit him after- wards to forego his own words, and say that he was not bound by what he then promised. It is upon these principles that the Court has acted in all such cases ; it exercises its jurisdiction for the enforcement of the truth, and makes a man's acts square with his words, by compelling him to perform what he has undertaken." < Where the § 316. Where the representation is merely of what menUs the porsou intends to do,^ or the promise is one for the merely performance of which the person making: it refuses to contract, and insists that the recipient shall rely on his honour, the engagement is of a merely honorary nature, and therefore not enforceable by the Court.'' Mamseii j^ Que case the guardians of a young lady, who was a minor, objected to her marriage until a suitable settlement should be made on behalf of her intended husband ; his uncle, from whom he had expectations, having been jDreviously consulted on the matter, was informed of this resolution; in reply to which he wrote to his nephew, " My sentiments respecting you continue unalterable : however, I shall never settle any part of my property out of my power so long as I exist. My will has been made for some time, and I am confident that I shall never alter it to your dis- advantage. I repeat that my Tipperary estate will come to you at my death, unless some unforeseen occurrence should take place." The letter further alleged that, as he had never settled anything on any of his nephews, his doing so in this case would cause jealousy in the family : this letter the writer desired might be communicated to the young lady's guardians. the death of her motHer." See, too, ^ ]S,g., In re Fichus, Farina v. Coverdale v. Eastwood, L. E. 15 Eq. Fickus, [1900] 1 Oh. 331. 121. 3 Of. Lord Walpok v. Lord Orford, 1 32 Beav. at p. 12. 3 Ves. 402; infra, § 596. OF THE NON-CONCLUSION OF THE CONTRACT. 135 It was held that the intention of the uncle was not to settle his property, and that therefore the letter could not be treated as a contract.^ § 317. The same principle governed the decision Money ^r. of the case of Money v. Jordan? The facts were, '^'"''''"'■ shortly, that B. was under a bond for the payment of a sura of money to A. ; that B. being about to marry, A. said she should never distress him about the bond, that she had given it up, and would never enforce it ; but on being requested to give up the bond, she declined to do so, saying that she woidd be trusted, and that B. might rely on her word. B. married, and A. subsequently having put the bond in suit, B. sought the interference of the Court by injunction. The representations in question were held to be binding by Lord Romilly M.R. in the first instance, by Knight Bruce L.J. on appeal, and by Lord St. Leonards in the House of Lords, whilst the contrary was ultimately decided by a majority in the House, consisting of Lords Cranworth and Brougham. The question was in a considerable part one of evidence. But Lords Cran- worth and St. Leonards differed as to the effect of a representation of intention, the latter holding such to be binding, and the former not.^ § 318. On the same principle, where a settlement other was not ready at the time of the marriage, and the ^^^' lady married on the husband's engagement in honour that she should have the same advantage of the agree- ment as if it were in writing and duly executed, the Court refused to interfere, as the engagement was merely honorary.* And again where letters were sent containing what only amounted to a general assurance 1 Maunsell v. White, 1 Jon. & L. Wood, 1 E. & My. 178 ; Cross y. 539 ; afflrmed 4 H. L. 0. 1039. Bprigg, 6 Ha. 553 ; Laver v. Fielder, „ ^ ^„,,„„ 32 Beav. 1 ; Coverdale v. Eastiuood, = 15 Beay. 372 ; 2 De G. M. & G. l. E. 15 Eq. 121 ; Loffus y. Maw, 318 ; 5 H. L. C. 185, sul nom. Jorden g ^.^^ ^g^, oyerruled in Maddison y Money. And see Ohadwich y. ^_ ^i^,,,,^^ g App. Gas. 467; George Manning, [1896] A. C. at pp. 238, 239. Whitechurcli, Limited y. Cavanagh, [1902] A. 0. at p. 130 (promises de ^ With regard to tlie force of an ft4uro) ; and infra, §§ 328, 329. expression of intention, see, besides * Viscountess Montacute y. Max- th.e cases alboye stated, Norton y. tvell, 1 P. Wms. G18. 136 OF THE DEFENCES TO THE ACTION. that, if a tenant acted to the satisfaction of his land- lord, he would deal honourably and handsomely with him in regard to renewing his lease, this assurance was discriminated from a matter of contract, and was not enforced by the Court.^ Morehouse § 319. The circumstancos of the case of Morehouse V. Colvin^ -were these. A testator, who had by his will bequeathed 12,500^. to his daughter, wrote a letter to an old friend of his in India, to whom the young lady , was consigned, and therein stated that, in case of her marrying with his approbation, her husband should have 2,000?. on the marriage, and continued, " nor will that be all : she is and shall be noticed in my will ; but to what further amount I cannot precisely say, owing to the present reduced and reducing state of interest, which puts it out of my power to deter- mine at present what I may have to dispose of." The substance of these terms was communicated to the intended husband : the testator revoked his will, and made another, omitting the legacy, and giving his daughter a residuary and contingent interest : Lord Eomilly M.R., and afterwards the Court of Appeal in Chancery, held that there was no contract which could be enforced. Maddison § 320. Again, in Maddison v. Alderson,^ the appel- Im. ^^'"' lant, a housekeeper, had been long in the service of a farmer, and proposed to leave him ; he told her of expectations he had from an uncle, and that the uncle wished her to stay with him as long as he lived, and to make all right by leaving her the farm, which he (the farmer) promised to do if she lived with him ; the appellant remained with the farmer till his death. The House of Lords held the case was one of conduct induced by promises and not of definite contract ; that there was no contract on her part to remain with her master, and that he was at liberty to have dismissed her at any time. Subse- § 3S1. Where, subsequently to representations of tiemenT*' the sort which we have been considering, a settlement silent as to bas been executed making a provision but taking no promise. ox o 1 Price V. AssJieton, I Y. & 0. Ex. ^ ig geav. 341. 441. 3 8 App. Oae. 467. OF THE NON-CONCLUSION OF THE CONTRACT. 137 notice of the subject of the representations, a pre- sumption arises that the settlement contains the whole contract, and this, if not rebutted, is of course a bar to any relief on the representations.^ § 323. The same result more clearly follows where Where the not only is there a settlement which is silent as to the lldlot promise, but where it appears that the marriage was ^"^"9^ '^"^ determined on long before the promise. There it is ™^™''^''- evident that the promise did not induce the marriage.^ § 833. We will now proceed to consider the cases '^^^^ in which a representation, followed by conduct of the repreLn- party to whom it is made, has been held to be binding. ^}^°}^ ^ •/ ' o binding'. § 324. These cases have for the most part turned in cases of upon representations made in the course of marriage "'a™^^® treaties, followed by marriage made on the faith of such representations, — a class of cases in which the Court is inclined to attach more than ordinary weight to the language of the one party, when it is calculated to convey a false impression to the other.^ § 325. Where the proposal is in writing, the Eistmc- marriage and other acts are relied on only as evidence tween ' of acceptance ; but where the proposal has been ■"T^itfen verbal, the acts must be relied on also as constituting proposal. a case of part-performance, for which purpose mar- riage alone is, from the words of the Statute of Frauds, not sufficient. The cases on part-performance in connection with such contracts,* and also of marriage in fraud of a parol contract,^ are respectively con- sidered elsewhere. § 326. The principle of the cases now under dis- The prin- cussion is established by several old decisions, to which estab-™^ it will be sufficient to refer" before considering the I'^hed. more recent cases. § 327. In Luders v. Anstey^ a husband before mar- -^''*''^'- An&tey. 1 Loxley v. Hmth, 1 T)e G. P. & " See infra, § 576. J. 489; Samdsv. &dere, 31 L.J. Oh. ^ Moore v. Hart, 1 Vem. 110, 870; ReBadcoch, 17 Oh. D. 361. 201; WanJc/ordr.Fotherley, 2 Yern. ' OoldicuU V. Townsend, 28 Beav. 322 ; Halfpenny v. Ballet, 2 Vern. 445. 373; Gookes v. Mascall, 2 Vern. 3 Per Lord St. Leonards in Maun- 200. sell V. White, 1 Jon. & L. 563. ' 4 Ves. 501 ; S. 0. 5 Ves. 213 ; * See infra, § 619. Viret y. Viret, 17 Ch. D. 365, n. 138 OF THE DEFENCES TO THE ACTION. Saunders ^ Cramer. De Beil v. Thomson. MontgO' onery v. Ueiily. riage wrote a letter proposing a settlement of the lady's fortune, securing certain benefits to the children of the lady's first marriage : shortly afterwards the marriage took place, and Lord Loughborough held that Ihe husband was bound by the letter, though bonds to execute a settlement had subsequently been entered into, also securing benefits, but different ones, to the same children. " There is no locus poenitentice,''^ said his Lordship, "in this case; and I should require a positive distinct dissent : and that could not be evi- denced by anything but an actual settlement before marriage, varying from that." § 338. Li Saunders v. Cramer,'^ a paper signed by a lady, expressing her intention of leaving her grand- daughter a certain sum, to be secured by a bond, which offer was to be, and was in fact communicated to the intended husband of the young lady, and was followed by a marriage, was held a binding proposal. The mention of the bond went to show that it was intended to be binding on the party making it. § 329. Jja.De Beil v. Thomson,^ in written proposals made on the marriage treaty the father expressed that he " intended to leave his daughter a further sum of 10,000/. in his will, to be settled on her and her children, the disposition of which, supposing she had no children, to be prescribed by the will of her father." This was held to create an obligation. These pro- posals were made subject to revision ; but it was held that that power was determined by their acceptance by the intended husband, and the marriage with the father's consent. This decision of Lord Langdale M.R. was affirmed by Lord Cottenham,'* and after- wards by the House of Lords.* § 330. In Montgomery v. Reilly^ the eldest son came into estates, subject to a jointui-e to his mother and portions to his brothers and sisters, and carried on a correspondence with a friend of the family with a view to the increase of these charges, and ordered 1 3 Dr. & War. 87. 2 3 Bear. 469. 3 12 01. & Fin. 61, n. * 12 01. & Fin. 46, sub nom. Ham- I V. De Bid. See, too, Synge V. Synge, [1894] 1 Q. B. at p. 469. ^ 1 BU. N. S. 364; S. 0. 1 Dow, N. S. 62. OF THE NON-CONCLUSION OF THE CONTEACT. 139 the payment of the increased jointure and interest on the increased portions : on the faith of a representa- tion made on the strength of these acts by the family friend, a daughter married : the interest on the increased portion was continued to be paid to the daughter, and the agent's accounts in which these payments were stated passed ; and the eldest son took possession of some property under the arrangement with his brothers and sisters, to which he would not otherwise have been entitled. The House of Lords decided that there was a contract binding on the eldest brother, and specifically enforced it. § 331. In Prole v. Soady^ the Court, notwithstand- i'^fev. ing a considerable conflict of evidence, came to the '^'""^^' conclusion that previously to and in contemplation of the marriage of the plaintiff's father and mother, the natural father of the lady had represented to the in- tended husband and to other persons that a certain estate of his in Scotland and a sum of 105,000 sicca rupees were settled by him as a provision for his daughter and her children, and that the marriage was contracted in a confidence in that representation. It was part of the defendant's case that at the date of the marriage there was an existing testamentary settle- ment of the property in question in favour of the lady : but the Court held that such an instrument if it existed was made irrevocable by the representations of the father : and it gave the plaintiff relief on the ground of the representation made. And in a later case the same Judge (Stuart V.C.) Loffusy. held that a gift made by a codicil in pursuance of a "^'"''' promise by an uncle to his niece, on the faith of which she altered her position in life and continued to act as his caretaker, became irrevocable by force of the promise and conduct.^ But this case was overruled by Maddison v. Alder son? In Coverdale v. Eastwood^ the contract was contained coveniau in letters, and the only serious question was one of ^^ood! ' construction. I 2 Giff. 1, compromised on ap- " Loffas y. Maw, 3 Gifl. 592. peal; per Malins V.O. in lie Bad- ' 8 App. Oas. 467 ; supra, § 320. coch, 17 Oh. D. 365. ' L. E. 15 Eq. 121. 140 OF THE DEFENCES TO THE ACTION. Eepresen- tations by stranger. Figf/oit V. Stratton. § 332. The representations need not be made by the persons most immediately interested in the mar- riage treaty. In one case a legatee on his marriage assigned part of his legacy to the trustees of his settlement, and covenanted to pay the amomit by instalments. It was proved that the marriage was contracted, and the settlement made, on the faith of representations by the executor that the legacy was substantial and safe and would be paid though at a future time. The estate of the testator proving in- sufficient to pay the legacies, it was held that, by force of the representations, the estate of the executor was liable for the amount of the legacy.-' § 333. The doctrine in question seems to have been carried to its fullest limits in the case of Piggott V. Stratton.'^ The defendant Stratton was lessee for a long term of plots A, B, and C. The lease contained a covenant that any new houses should be detached and separated from one another by an open space of not less than thirty feet. Plot C lay between B and the sea. The defendant Harbour, under whom the plaintiff claimed as assign, negotiated with Stratton for an under-lease of part of B, and Stratton in answer to a question stated that he could not build closer than thirty feet because the lease forbad him, and Harbour swore that thereupon he was induced to take the land, and further that in order to satisfy himself he asked for and was shown a draft of the lease. An under- lease was executed containing covenants referring to the original lease. The original lease was surrendered , and a new lease granted with different covenants, and Stratton the lessee proposed to build so_as not to leave the thirty feet space. Lord Hatherley (then Wood V.C) held that the covenants in the under-lease did not restrain this conduct, but that the representa- tion did. He held it equivalent to a representation that the lease was an instrument by which the pro- perty was secured to the purchaser in a course of en- joyment, and that to permit him to alter that course would be to permit him to derogate from his own 1 Hution V. Eossiter, 1 De G. M. & G. 9. » Jolins. 341 ; S. C. 1 De G. F. & J. 33. OF THE NON-CONCLUSION OF THE CONTRACT. 141 grant. Lord Campbell and Turner L.J. held that the defendant was bound both by his covenants in his under-lease and by his representation. Knight Bruce L.J, held that he was bound by his covenants, but declined to give any opinion on the other point. It will not escape notice that in this case the only repre- sentation made was one of an existing fact, viz., the existence of the lease, that there was no statement that the state of things should continue, or that the lease should not be surrendered or allowed to drop, and that to infer from the existence of a lease that it should never be surrendered, seems, in the absence of express contract, a somewhat strong inference. The case is, however, one of the highest authority.^ 1 See tte references to this case 34 q}^, d. at p. 12; and by Eay madebvLordMacnagliteniniSpicer ^ ^ . ^ ^ . r,„^,-, „ ,,,.,.. ^ , nr, Jj.J. m Loru T. Bouvene, 1891 3 V. Martin, 14 App. Oas. at pp. 22, 1 l j 23; byLindleyL.J., S. C.inC. A., Ch. at p. 110. 142 CHAPTER III. OP THE INCOMPLETENESS OP THE CONTRACT. Contract §334. "NOTHING is more established in this ™rtoin^ Court," Said Lord Hardwicke/ speaking of contracts fair, and "which the Court wiU enforce, " than that every agree- ■" ■ ment of this kind ought to be certain, fair, and just in all its parts. If any of those ingredients are wanting in the case, this Court will not decree a specific per- formance." " I lay it down as a general proposition," said Lord Rosslyn,^ " to which I know no limitation, that all agreements, in order to be executed in this Court, must be certain and defined : secondly, they must be equal and fair ; for this Court, unless they are fair, will not execute them : and thirdly, they must be proved in such manner as the law requires." Where § 335. In regard to objections founded on the form'anoe. Want of any of these qualities in the contract, or on the incapacity of the Court to perform the contract, or its illegality, the Court is, from obvious motives of justice, somewhat unwilling to entertain the objection, when it is made after part-performance from which the defendant has derived benefits, and the plaintiff cannot be fully recompensed except by the perform- ance of the contract in specie.^ When a contract has been partly executed by possession having been taken under it, the Court, it has been said, " will strain its power to enforce a complete performance."* ' In Buxton v. Lister, 3 Atk. 386. 279 ; Franks y. Martin, 1 Eden, See infra, § 506. 309. 2 In Lord Walpole v: Lord Or- ^ See §§ 105, 480. ford, 3 Ves. 420. See, accordingly, * Parker t. Taswell, 2 De G. & J. Underwood v. Hitchcox, 1 Ves. Sen. 559, 571. , OF THE INCOMPLETENESS OF THE CONTRACT. 143 § 386. The qualities of completeness, certainty, Compiete- and fairness, which will be now considered, will in ^g^^' ^^^^" great part be best explained by showing cases in certainty, which they have been considered as being wanting. ex]^aki^d. The qualities of completeness and certainty are not perhaps truly separable : but under the former those cases will be rather considered where there is the absolute want of some term in the contract ; under the latter head of certainty, those where it is not the entire want of the term, but the want of sufficient exactitude in it, which has furnished a defence to a specific performance.^ § 337. It is evident that incompleteness may be incom- in the contract itself — in which case there is properly ^f '^^^^j^ speaking no contract, or in the evidence — in which contractor case there is no sufficient memorandum. But never- ^■"'^^^''^• theless it seems not inconvenient to consider these defects together. § 338. The time at which the completeness of Compiete- the contract is to be ascertained was the filing of the ^fl^° bill, and is now the commencement of the action : so tained at that it was not sufficient for the purpose of obtaining ^"^^r^" an immediate decree, to prove that the consent of a proceed- tenant for life, which was essential to the contract, '°^^- was given before the hearing.^ It is an obvious prin- ciple of justice, that the adoption of a contract by a third party shall not so relate back as to subject a party to legal proceedings in respect of its non-per- formance, the non-performance having at the time been justifiable.^ § 339. To this principle there are some excep- Excep- tions, or apparent exceptions, which it is well briefly *'°''^- to notice. When the contract is incomplete through l],^^!"" the default of the defendant, and the incompleteness p^^^I''^ is one which can be remedied, the Court will not aSanit'of' refuse its aid : thus, where a contract had been entered defendant, into for granting an annuity for three lives to be 1 See also the cases stated infra, 18 Ch. D. 280. Part III. chap. xi. ^ Bighi v. CidhcU, 5 East, 491 ; 2 Adams v. Brooke, 1 T. & 0. 0. Doe d. Mann v. Walters, 10 B. & 0. 0. 627. See also STiardlow v. Cot- 626 ; Doe d. Lyster t. Ooldwin, 2 terell, 20 Ch. D. 90 ; reversing S. C. Q. B. 143. 144 OF THE DEFENCES TO THE ACTION. named, and the consideration had been paid, but through the defendant's refusing to proceed the lives had not been named, the plaintiff was allowed to per- , feet his contract by nominating three lives who were in being at the time of the contract.^ So where the defendant agreed to build a house on the plaintiff's land and the plaintiff agreed thereupon to grant a lease which the defendant agreed to accept ; and the defendant pulled down the old house but neglected to build the new one : the Court held that the contract to accept a lease gave it jurisdiction, that damages could be awarded under Lord Cairns' Act for the non- performance of the contract to build, and that this condition being thus satisfied the plaintiff could have performance of the defendant's contract to accept a lease. ^ ii. Or may § 340. An action may be maintained on a con- gooT*^^ tract where, though some term be not ascertained, the from the Court has the means of ascertaining it, on the prin- lueiiT ciple of the maxim id certum est quod cerium reddi potest. Thus, in a contract for the sale of lands under the Lands Clauses Consolidation Act, in which the sum ■ was not ascertained, the Court decreed the defendants to issue their warrant to the Sheriff to summon a jury to settle the compensation : ^ and the same principle is illustrated by the cases on the requisite completeness as to subject-matter and price.* Complete- § 341. The necossary completeness of the contract ^6^00*11- J3iay be considered in respect of (i.) the subject-matter, sidered. (ii.) the parties to the contract, (iii.) the price, and (iv.) the other terms, i. As to § 342. (i.) Every valid contract must contain a subject- description of the subject-matter : but it is not neces- sary that it should be so described as to admit of no doubt what it is : for the identity of the actual thing and the thing described may be shown by extrinsic 1 Pritchard v. Ovey, 1 J. & W. Jackson, IJ. & H. 319. 396 ; Lord Kensington v. Phillies, ^ Walker v. Eastern Counties Rail- 3 Dow. 61. way Co., 6 Ha. 694. See also Owen 2 Soames v. Edge, Johns. 669 ; v. Thomas, 3 My. & K. 353 ; Monro Middleton t. Greenwood, 2 De G. J. v. Taylor, 8 Ha. 51. & S. 142. Distinguisli Norria v. * Infra, §§ 345, 353. OF THE INCOMPLETENESS OP THE CONTRACT. 145 evidence. This flows from the very necessity of the case ; for all actual things, except the contract itself, being outside of and beyond the contract, the connec- tion between the words expressing the contract and things outside it must be established by something other than the contract itself, that is, by extrinsic evidence : ^ the same rule is admitted, and from the like necessity, with regard both to persons and things mentioned in wills ;^ and in the cases of contracts within both the fourth and the seventeenth sections of the Statute of Frauds, parol evidence as to identity is admissible.^ Thus, for instance, the expression "Mr. iHnstra- Ogilvie's house" was held sufficient, and extrinsic evidence was admitted to show what house it referred to.* In another case a subject-matter described as ' ' the mill property including cottages in Esher village " was held capable of identification by parol evidence.^ The expressions "this place '""and "the lease '"'have been held sufficient descriptions of the thing sold : and " your word " has been explained by parol evidence of a previous conversation.^ So where a contract referred to another writing, parol evidence of the identity of a certain writing with that referred to was admitted ; ^ and in other cases parol evidence was admitted to show the meaning of " 50^. more of premium" and "the profit rent of the present tenant,"^" and to identify "twenty-four acres of ' As to extrinsic evidence — note ^ Sari t. Boiirdillon, 1 0. B. N. S. that although., where words in a 188. written contract have a fixed mean- * Ogilvie v. Foljamhe, 3 Mer. 53. ing, parol evidence is not admissible ^ McMurray v. Spicer, L. E. 5 to show that the parties meant Eq. 527. something different from what they " Waldron v. Jacob, I. E. 5 Eq. have said, still, where the words 131. used are susceptible of more than ' Horsey v. Graham, L. E. 5 one meaning, extrinsic evidence is C. P. 9. admissible to show what the facts ^ Macdonald v. Longhoitom, 1 El. were which the parties had in their & El. 977 ; Shardlow v. CuUerell, 20 minds. Bank of New Zealand v. Oh. D. 90. Simpson, [1900] A. 0. 182, 189. ^ Olinan v. Cooke, 1 Sch. & Lef. * See per Lord Cranworth (then 21, 33. See infra, § 539. 'Sio\iQ'B.)i-a. Claytons. Lord Nugent, i» Skinner v. M'Douall, 2 De G. 13 M. & W. 207. & Sm. 265. 146 OF THE DEFKNCES TO THE ACTION. land, freehold, at Totmonslow in tlie parish Pleadinsf. What de- finiteness required. Where subject- matter ascer- tainable thougli not ascer- tained. of Draycott."^ A general description of the subject- matter is sufficient, as e.g. " the Bank End estate," although the contract itself may provide for the parcels being subsequently defined.^ § 343. Where it is necessary to call in extrinsic evidence, the connection of the subject-matter of the contract, and the thing in respect of which specific performance is sought, must be pleaded and supported by sufficient evidence.^ § 344. It is, however, essential that the description of the subject-matter should be so definite, as that it may be known with certainty what the purchaser imagined himself to be contracting for,* and that the Court may be able to ascertain what it is.^ And so in a case where there was a contract for the letting of " coals, etc.," the statement of the subject-matter was thought by Knight Bruce L.J. insufficient, and specific performance was refused on that amongst other grounds.® § 345. With regard to the description of the sub- ject-matter, the maxim id certum est quod certum reddi potest applies. Thus, where the memorandum of the contract contained no specific description of the pro- perty sold, but referred to the deeds as being in the possession of a person named, the Court thought that the property might easily be ascertained before the Master, and held the description of the subject-matter sufficient.'' And again, a contract to sell an estate within certain ascertained boundaries, described as partly freehold, and partly leasehold, is not void for 1 Plant V. Bourne, [1897] 2 Ch. 281. See, too, North v. Percival, [1898] 2 Oil. 128, where the sub- ject-matter of sale was "thirty-six acres of land," defined by boundaries on three sides, but not on the fourth; and cf. Marhham and Barter's case, [1899] 1 Ch. at p. 429. 2 Haywood v. Go2]e, 25 Beav. 140. 3 Price V. Griffith, 1 De G. M. & a. 80. * Stewart t. AlKston, 1 Mer. 26, 33. ^ Kennedy v. Lee, 3 Mer. 441, 451 ; per Lord Eldon in Daniels v. Davison, 16 Ves. 266. « Price V. Griffith, 1 De G. M. & G. 80. See also Inge v. Birming- ham, Wolverhampton, and Stour Valley Railway Co., 3 De G. M. & G. 658. ' Oiuerl V. Thomas, 3 My. & K. 353. Of. Naylor v. Goodall, 26 W. E. 162. OF THE INCOMPLETENESS OF THE CONTEACT. 147 uncertainty, because it is a good contract to sell the vendor's interest in the property ; but the purchaser is entitled to have it reduced to certainty by the boun- dary of the properties of different tenures being ascertained, or shown to be capable of being so.^ In one case the contract described the property as half an acre of the land as agreed on. The land had previously been paced out in the purchaser's presence, and the description was held sufficient.^ § 346. So the uncertainty of description of the Ascer- subject-matter may be got over by the election of one gi^^^^^ party to the contract, where the effect of the contract is to give such a right of election. Thus, where a contract was made by the defendant to sell to the plaintiff for the purpose of a churchyard so much land as was necessary on the north side of the church, and the plaintiff obtained the sanction of the proper autho- rities to the consecration of three-quarters of an acre of land adjoining the north side of the existing in- closure of the church and applied to the defendant to convey, it was held that the plaintiff being the person to do the first act under the contract had a right of election, and that if otherwise there was uncertainty of description he had sufficiently ascertained the land to be conveyed.^ A similar decision was pronounced in a case where the difficulty arose on a contract to let a glebe "except thirty-seven acres," and it was held that the right of election was with the lessee as the person who had the first act to do.* With these cases may be compared the cases on executory contracts for the sale of goods not specified, where the appro- priation by the party entitled to elect converts the executory contract into an actual sale and passes the property to the vendee.^ § 347. (ii-) The contracting parties must appear in u. As to the contract, or the memorandum of it,^ in order to ^1^.^^''" 1 Monro T. Taylor, 8 Ha. 51. iamin on Sales (4tli ed.), Book II. 2 Wi/lso7i Y. Dunn, 34 Ch. D. 569. chap. 5. , „ 77 TT J 10 -tir T> " See Pearce r. Gardner, [1897] "" ' 1 Q. B. 688, where the name of a '^•^' contracting party appeared only on * Jenhins v. Green, 27 Beav. 437. an envelope, which was treated as ^ See the cases collected in Ben- part of the memorandum. l2 148 OF THE DEFENCES TO THE ACTION. constitute a binding contract :^ but they may so appear either by name or by description or reference sufficient to ascertain their identity.^ Indeed it is " sufficient, so far as parties are concerned, that the written con- tract should show who the contracting parties are, although they or one of them may be agents or agent for others, and it makes no difference whether you can gather the fact of agency from the written document or not. Who the principals are may be proved by parol." ^ " There can be no doubt that if a written contract is made in this form : ' A. B. agrees to sell Blackacre to C. D. for 1,000/.', then E. F., the principal of A. B., can sue Gr. H., the principal of C. D., on that contract."* Where, however, the defendants made a written offer to take a lease, beginning " Sir," but without address, and the plaintiff's agent wrote an acceptance, but there was no document signed by the defendants showing the intended lessor's name, it was held that there was no contract in writing sufficient to satisfy the Statute of Frauds.^ Desorip- g 348. The Contracting parties may be indicated stead of by description instead of by name, provided the de- scription is sufficient to preclude any fair dispute as to the identity ;^ or, in other words, is certain within the legal maxim, id certum est quod certum reddi potest ;^ and provided this description is not by reference, but to the contract itself. " It is scarcely possible," said Lord Romilly M.R.,'' "to look at a,n auction list without seeing property sold by a mortgagee, or by executors, or by trustees, without the name being disclosed and bought by somebody whose name is not given until the conveyance is prepared. It is the ordinary practice." 1 Champion v. Plummer, 1 N. E. * Per Jessel M.E. in Commins v. 253; WarmrY. Willington, 3 Drew. Scott, L. E. 20 Eq. at pp. 15, 16. 523 ; Squire y. WhiMon, 1 H. L. 0. , Williams v. Jordan, 6 Oh. D. 333; WilliamB Y. Lake, 2 El. & El. ^^^_ Distrnguish Carr y. Lynch, 349. _ Of. SJcelton y. Gole, 1 De G. r^gooi 1 Cli 613 * » PMer y. Duffield, L. E. 18 Eq. 4. ' ^°'''^''- ^- ^'^^''-' ^ ^H. D. 648 ; See, too. Me Holland, Gregg Y. Hoi- 3 App. Oas. 1124 1140; Carr y. land, [1902] 2 Ch. at pp. 374, 385 ^'J"'^'' "^* "'i"""' ^* P- 615- (reasonable intendment). ' Hood y. Lord Barrington, L. E. ' Per Eomer J. in FilhyY. Houn- 6 Eq. 218. See, too, Bourdillon y. sell, [1896] 2 Oh. at p. 740. Collins, 19 W. E. 556. name. OP THE IISrCOMPLETENESS OF THE CONTRACT. 149 §349. ''Your Lordships," said Earl Cairns, ad- Lord ^ dressing the Hovise of Lords, "have frequently seen etatement conditions of sale not merely by auction but by private of the law. contract, in which it is stated that the sale is made, sometimes by the otvners, and sometimes by the mort- gagees, and a form of contract is annexed in which an agent signs for the vendors, and no other specification upon the vendors' part is inserted, and I never heard up to this time that a contract under those circumstances was invalid. In point of fact, my Lords, the question is, is there that certainty which is described in the legal maxim id certum est quod certum reddi potest ? If I enter into a contract on behalf of my client, on behalf of raj principal, on behalf of my friend, on behalf of those ivhom it may concern, in all those cases there is no such statement, and I apprehend that in none of those cases would the note satisfy the requirements of the Statute of Frauds. But if I, being really an agent, enter into a contract to sell Blackacre, of which I am not proprietor, or to sell the house No. 1, Portland Place, on behalf of the owner of that house, there, I apprehend, is a statement of matter of fact, as to which there can be perfect certainty, and none of the dangers struck at by the Statute of Frauds can arise." ^ § 350. In a case already referred to,^ the sale was J?^^°^Pj^ stated to be by direction of the executors of Admiral F., sufadent. and, in another,^ the vendor was stated to be a trustee selling under a trust for sale ; and in each case the description was held sufficient. Again, where the contract stated the sale to be by direction of the pro- prietor, that was held to be a sufficient description.* And so, where a landlord signed and handed to his tenant a memorandum beginning, " Dear Sir, — In consideration of your having this day paid me the sum of 50/., I hereby agree to grant you a further lease," 1 Rossiter v. Miller, 3 App. Cas. =' Catling v. Kiiuj, 5 Ch. D. 660. 1140. Tlie italics are not in the * Sale v. Lambert, li.U. 18 Hq. I. report. See, too, Rossiter v. Miller, 5 Oh. D. ■^ Hood Y. Lord Barrin(jton,'L.'&. 6i8 ; 3 App. Cas. 1124; Beer Y. 6 Eq. 218. See, too, Towle v. London and Paris Hotel Co., L. E. Topham, 37 L. T. 308 ; Well v. 20 Bq. 412 ; and Thomas v. Brown, Kirly, 3 Sm. & G. at p. 337. 1 Q. B. D. 714. 150 OF THE DEFENCES TO THE ACTION. Descrip- tion held insuffi- cient. iii. As to price. Cases it was held that the intended lessee (who was not named in the memorandum) was sufficiently defined as being the person who had paid the 50/.^ In another case, where property was sold by ten persons incor- porated, who worked the property in the name of a company, it was held that the description "the vendors" was enough, because it appeared from the conditions of sale and memorandum of the contract, that the vendors were in possession, that the abstract would be an abstract of the company's title, and that it was the interest of the company which was being sold.^ In one case the signature of A. B. on the paper bearing the name of A. B.'s firm was held a sufficient description of that firm.^ § 351. But where the contract did not disclose the vendor's name, but stated the auctioneer's name, and the auctioneer signed the contract as confirming it "on behalf of the vendor," the memorandum was held insufficient, because the question who sold the estate (^. e. , the question of the contract) was left to be decided by parol evidence.* § 352. When the conditions described the person selling as "the vendor," and named A. B. as "the vendor's solicitor," and A. B. was the beneficial owner (and was so known to the purchaser at the time of the contract), the description was insufficient:^ so was the description of the vendor as "landlord."^ § 353. (iii-) In all sales it is evident that price is an essential ingredient, and that where this is neither ascertained nor rendered ascertainable, the contract is void for incompleteness, and incapable of enforce- ment.'' Accordingly where A. agreed to sell an estate to B. I Carr v. Lymli, [1900] 1 Oh. 613. ^ Commins v. Scott, L. E. 20 Eq. 11. 3 Wylson V. Dunn, 34 Oh. D. 569. * PoUer r. Duffield, L. E. 18 Eq. 4. 5 Jarrett v. Hunter, 34 Ch. D. 182. 8 CoomU V. Wilhes, [1891] 3 Oh. 77. Of. Pattle V. Anstruther, 41 W. E. 625; 69 L. T. 175 ("pro- posing lender " not a sufficient de- scription of an intending mort- gagee). ' Elmore v. Kingscote, 5 B. & 0. 583 ; Goodman v. Griffiths, 1 H. & N. 574. Oonsider Langstaff v. Nicholson, 25 Beay. 160 ; and Be Kharashlioma, dkc. Syndicate, [1897] 2 Oh. at pp. 464, 467. OF THE INCOMPLETENESS OF THE CONTEACT. 151 for 1,500/. less than any other purchaser would give, where the contract was held void ; for if the estate was not asoe?-^"' to be sold to any other purchaser than B., it was im- tamed. possible to know what such a purchaser would give for it.^ So again where there was a contract to sell at a price to be fixed by two surveyors, and they made their valuation, but that did not sufficiently and finally ascertain the price, specific perf oi-mance was refused : ^ and the like was the result of a similar case, where the valuation was such as the Court could not act on, by reason of circumstances of great impropriety on the part of one of the valuers, and the valuation being based on an erroneous view of the facts.® § 354. It is not, however, necessary that the con- Contract tract should in the first instance determine the price.* precisely It may either appoint a way in which it is to be deter- iietermine mined, or it may stipulate for a fair price. § 355. Where the contract appoints a way of Where a determining the price, the Courts have in some cases determin- deemed that way essential : in other cases they have ^s tiie deemed it non-essential, and have treated the contract Tcribed!*^ as essentially one to sell at a fair price. In all cases where the principal subject of the contract is to be valued in a specified manner, the manner has, it is believed, been held essential : ^ the manner has often been held non-essential where it is applied only to an incident to the main subject, as timber to land, fixtures to a house, or plant to a business. § 356. Where the contract specifies a way of as- Where certaining the price which is essential, the contract is ^"ertaL- conditional till the ascertainment, and is absolute only ment when the price has been determined in the manner ^^^^^ agreed upon.'' In case of default in this respect the contract remains imperfect, and incapable of being- enforced : for the Court will never direct the payment of such a sum as A. may fix.^ ' Bromley v. Jefferies, 2 Tern. * See London Ouaraniie Co. v. 415, Fearnley, 5 App. Cas. at p. 920. 2 Hoperaft v. Hickman, 2 S. & S. ' Milnes v. Gery, 14 Yes. 400, 408. 130. " Bridgend, &c. Co. v. Dimraven, 3 Chichester v. Mclntire, 4 BU. 31 Oh. D. 219. N. S. 78. ' Darley v. Whitaher, 4 Drew. 152 OF THE DEFENCES TO THE ACTION. Asceitain- § 357. If the contract be between A. and B. to sell ™aiuer/to and buj at such, a price as valuers to be named by te named, them shall fix, it seems that either A. or B. may refuse to name a valuer, and the contract will remain in- capable of completion without any liability on the part of the refusing party.^ But if the contract between A. and B. be to sell and buy at such a price as C. shall fix, neither A. nor B. can rightfully pre- vent C's determination and the completion of the contract : and it is presumed that an action might be hoii ^ maintained for such prevention.^ "Actus inceptus," maxSi! says one of Lord Bacon's maxims,^ " cujus perfectio pendet ex voluntate partium, revocari potest : si autem pendet ex voluntate tertise personas vel ex contingenti, non potest." One of his illustrations is this: "If I contract with you for cloth at such a price as J. S. shall name, then if J. S. refuse to name, the contract is voyd, but the parties cannot discharge it, because they have put it in the power of the third person to perfect."* The doc- § 358. The conclusion that a valid sale could be trine of effected at such a price as a third person should fix Law.°™'^° was not arrived at in the Roman Law without great doubt, or finally settled until the time of Justinian. Ofilius and Proculus maintained the validity of such a sale : Labeo and Cassius denied it.^ " Sed nostra decisio," says Justinian, after adverting to the doubts of the ancients, " ita hoc constituit, ut quotiens sic composita sit venditio quanti ille cestiinaverit, sub hac condicione staret contractus ut, si quidem ipse qui nominatus est pretium definierit, omnimodo secundum ejus sestimationem et pretium persolvatur et res trada- tur, ut venditio ad effectum perducatur, emptore quidem ex empto actione, venditore autem ex vendito agente. Sin autem ille qui nominatus est vel noluerit vel non potuerit pretium definire, tunc pro nihilo esse -^. 134; TilhttY. Charing Gross Bridge §157. Co., 26Beav. 419. Consider -Baftc»- " Smith v. Peters, L. E. 20 Eq. V. Metropolitan Railway Co., 31 511, infra, § 361. Beav. 504. ' No. 20. ' See, as to the French Law on * Maxims, ed. 1636, pp. 71, 73. this point, Troplong, De la Vente, ^ Troplong, Dela Vente, § 156. OF THE INCOMPLETENESS OF THE CONTRACT. 153 venditionem, quasi nuUo pretio statute."^ The prin- ciple thus established by Justinian is embodied in the French Law," and has found its way into our juris- prudence. § 359. The persons nominated to value are some- Valuers times though inaccurately spoken of as arbitrators. arbUra- Arbitrators are appointed to settle a pre-existing t°™- dispute : valuers to ascei'tain the value of the subject- matter of the sale. Accordingly the arbitration pro- visions of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 124), were not applicable to valuers named in a contract,* and the provisions of the Arbitration Act, 1889 (52 & 53 Vict. c. 49), are, it is conceived, similarly inapplicable. § 360. Of the first class of cases, viz., those in First cUss which the contract provides the mode of ascertaining °^ '"'^'^^• the price, and this provision is an essential term, Milnes V. Gery^ maybe considei^ed as the leading case. MUnesv. There was there a contract that land should be sold at ^^''^' a price to be fixed by one valuer appointed on each side, or their umpire : the valuers could not agree ; and Grant M.R. held the contract to be incomplete, and that the Court could not supply the defect by appointing other persons as valuers, which would be to execute a contract different from that of the parties ; although, where it is merely a contract to sell at a fair price, that is a matter which the Court can ascertain. " A man," said Leach V.C.,^ " who agreed to sell at a price to be named by A., B., and C, could not be compelled by a Court of Equity to sell at any other price." This principle has governed the decision of several other cases of specific performance,® and may further be illustrated by the cases at Common Law.^ 1 Inst. Lib. iii. tit. 23, § 1. 1889. 2 Code Civil, art. 1592. * 14 Ves. 400. 3 See Collins v. Collins, 26 Beav. * In Morse v. Merest, 6 Mad. 26. 306 ; Re Bawdy, 15 Q. B. D. 426 ; '^ Blundell v. Brettargh, 17 Ves. and Be Carus-Wilson and Greene, 232; Oourlay y. BiiJce of Somerset, 18 Q. B. D. 7 (yaluers' umpire). 19 Ves. 429 ; Agar v. Macldew, 2 S. Sects. 3 to 17 inclusive of the Com- & S. 418; Darhey v. Whitaker, 4 mon Law Procedure Act, 1854, Drevi^. 134. relating to arbitration, were re- ' E.g., Thurnell v. Balhiirnie, 2 pealed by the Arbitration Act, M. & W. 786; Jforg'aa v. i?i>»!>, 9 154 OF THE DEFENCES TO THE ACTION. Difaouity § 361. The difficulty has in several cases pre- bydefen- Tailed, notwithstanding the fact that the obstacle has defa'it arisen from the defendant's default. Thus, where the contract was to sell at a price to be fixed by arbitra- tors, but, in consequence of the defendant having refused to execute the arbitration-bond, it was un- certain whether any award would be made, the Court refused to proceed : ^ and the same result followed where the refusal of one of the valuers to proceed appeared to arise from the information given to him by the defendant, of his intention not to complete.^ But where a vendor had agreed to sell a public-house for 10,700/., and the furniture and fixtures in it at a fair valuation to be made by L., and after L. had com- menced taking the inventory, the vendor refused to allow him to complete it, Jessel M.R., on an inter- locutory application, made an order that L. be j)er- mitted to enter the premises for the purpose of completing the valuation.^ In a case where the price was to be ascertained by one of two alternative modes, and no election had been made as to the mode of ascertainment, the Court held that no contract had been constituted.* Firth Y. § 362. In a case between a landowner and a Raiimiy railway company, a contract had been entered into ^'"^ under which the company was to do certain works. By a subsequent contract an estimate of the cost of completing the works was to be made by the com- pany's engineer and submitted to A., the landowner's agent, "for approval:" in case of difference the amount was to be determined by B. : the amount " when agreed or determined" was to be paid to the landowner by the company in discharge of their obli- gations as to the works. A. died before approving any estimate. B. was living : it was held that by A.'a death the contract became incapable of enforcement.^ Bing. 672 ; Milner v. Field, 5 Ex. 529. 829. ' Smith v. Peters, L. E. 20 Eq. » Wilhs V. Davis, 3 Mer. 507; 511. Vickers v. Vickers, L. E. 4 Eq. 529. * Morgan v. Milman, 3 De G. M. Cf. Morse r. Merest, 6 Mad. 26. & G. 24. ' Barley v. Whitaker, 4 Drew. * Firth v. Midland Railway Co., 134 ; Vickers v. Vickers, L. E. 4 Eq. L. E. 20 Eq. 100. OF THE INCOMPLETENESS OF THE CONTRACT. 155 § 363. Again, where a railway company con- TTycombe tracted for the purchase of land with a charitable co!y."^ corporation who had no power to sell except under the Donmng- Lands Clauses Consolidation Act, and the price had p"tai°'' not been ascertained by surveyor's certificate pursuant to the provisions of that Act, the Court held that no final contract had been arrived at.' It may here be noticed that, when once the price has been fixed pur- suant to the Act, the purchasing corporation is com- pellable to complete the purchase.^ § 364. The second class of cases embraces those second contracts which are substantially for the sale of the ^lassof property in question at a fair price, the mode of contracts ascertainment, though indicated by the contract, to sell at a fair price. being subsidiary and non-essential : and where conse- quently, if that mode of ascertainment has failed, the Court will have recourse to some other means of coming at the fair price and of thus carrying into effect the contract in its essential parts. As already remarked, these cases are principally of the valuation of incidental matters and not of the principal subject- matter of the contract. § 366. G-rant M.R. not only indicated, in his Tiiedis- iudffment in 3Iilnes v. Gerii^ the distinction of the '^"^f'^^ 1 c 1,-i i-i in 1- oetweeu two classes of cases, but m two otrier cases before him the two acted upon it. In the earlier, in consequence of the cJfges%°as- lunacy of the vendor, the valuers could not be nomi- trated. nated ; but the Master of the Rolls did not consider this an insurmountable difficulty, saying that, "if there was a valid and binding contract, the super- vening incapacity of one party cannot deprive the other of the benefit ; " and he accordingly directed an issue as to the lunacy, as a preliminary step in the cause. ^ In the other case, there was a contract to grant a lease, to contain such conditions as A. B. should think reasonable and proper ; and his Honour referred it to the Master to settle the lease, and not to A. B., — considering the agency of A. B. not to be of 1 Wycomhe Railway Co. t. Bon- way Co., L. E. 7 Oh. 154; supra, nington Hospital, L. E. 1 Oh. 268. ^ ^^\- ^ ^^^ '14 Yes. 400. 2 Harding v. Metropolitan Rail- i jjcdl y. Warren, 9 Ves. 605. l'^6 OF THE DEFENCES TO THE ACTION. the essence of the contract, and that the Court having determined that the agreement as it stood was bind- ing and conclusive, it would not require foreign aid. The objection to A. B.'s selling the lease might, it C was said, have lain in the mouth of the defendant, but could not lie in the mouth of the plaintiff.^ § 366. Again, in a case before Stuart V.C. where there was a contract to sell land and bleachworks at a sum fixed, and the plant and machinery to be taken at a value to be ascertained by valuers to be appointed by the parties, it was held that this was a subsidiary stipulation onh', and that it did not form an obstacle to specific performance, which was accordingly de- creed with costs. ^ The same view was taken both by Stuart V.C. and on appeal by Lord Hatherley in a case where the main subject of the contract was the sale of an estate for 24,000^., and a provision was inserted for the valuation of certain furniture and articles : ^ and in another case where a partnership contract contained a provision for a valuation at its expiration, which fell through from there being no provision as to an umpire, the Court ascertained the value.* The main object of the contract there was the partnership : the defendant had had the benefit of that contract, and could not be allowed to escape from the subsidiary contract as to sale on the ground of the difficulty as to the valuation. MeyneiiM. § 367. In another case Stuart V.C. remarked that, where possession is referable to a contract to give a fair consideration, the amount of which has not been settled, the Court will, in favour of possession and expenditure referable to this contract, endeavour by every means within the legitimate bounds of its jurisdiction to ascertain the amount of the considera- tion.^ 1 Gourlay Y. DuJie of Svmirset, 19 see Eads v. Williams, 4 De G. M. Ves. 429. & G. 674. ^ Jackson v. Jaclcson, 1 Sm. & G. ^ Richardson v. Smith, L. E. 5 184; Paris Chocolate Co. v. Crystal Oh. 648. Palace Co., 3 Sm. & G. 119, 123. * Dinham v. Bradford, L. E.; 5 As to the way in wMoh referees as Ch. 519. to price ought to proceed, and on = Meynell v. Surtees, 3 Sm. & Gif. what grounds they may determine, 101, 113; affirmed, 1 Jur. N. S. 737; Surtees. OF THE INCOMPLETENESS OF THE CONTRACT. 15'i' § 368. (iv.) It is of course essential to the com- iv. Asto pleteness of the contract, and it should express not term's only the names of the parties, the subiect-matter, and °**J"3 ^ the price, but all the other material terms. What are, in each case, the material terms of a contract, and how far it must descend into details to prevent its being void as incomplete and uncertain, are questions which must of course be determined by a considera- tion of each contract separately. It may, however, be laid down that the Court will carry into effect a contract framed in general terms, where the law will supply the details j'^ but if any details are to be sup- plied in modes which cannot be adopted by the Court, there is then no concluded contract capable of being enforced.^ § 369. Though it may be impossible to define instances what is the necessary completeness in the terms of a tact's" contract, it is easy to give instances in which contracts heUin- have been held insufficient in this respect. Such was ™"'i'^''*'^- the case where it was not stated from what time an increased rent was to commence;^ where the contract did not state, either directly or by reference, the length of the term to be granted ; * where a contract for a lease for lives neither named the lives nor de- 3 W. E. 535. See also Cheslyn v. public-house ; Midgley v. Smith, Balby, 2 T. & 0. Ex. 170. [1893] W. N. 120, where covenants ' In Hampshire y. Wichens (7 Oh. were held to he unusual and un- D. 555), the power of the Court to reasonable ; and Lucas t. Hall, enforce a contract to accept a lease [1899] W. N. 92, where the terms " to contain all usual covenants and of "the usual public-house con- provisions " appears to have been tract " were held to be ascertainable admitted. Of. Haines v. Burnett, 27 by evidence. Beav. 500 ; Kendall v. Hill, 6 Jur. 2 gee South Wales Railway Co. y. N. S. 968 ; Foijntz v. Fortune, 27 Wythes, 5 De G. M. & G. 888 ; Beav. 393 ; Blaheney v. Hardie, I. E. Eidgway v. Wharton, 6 H. L. 0. 8 Eq. 381 ; and consider Ouilla- 285 ; Bummens v. Robins, 3 De G. more v. Peacocke, 12 Ir. Oh. E. 354, j. & S. 88 ; infra, § 380. 360. See, too. Be Lander and Bag- , -r ■, ^ , ^ , , , ^ J ^ n nrvm r, ni. A1 T- Lord Urmond v. Anderson, 2 Zews C'o«*»'"<;<, [1892] 3 Ch.41, where ^ ,, „ -p, 0^0 ..... . T ,T xJall cfc ±). 000. covenants (1) to reside on the pre- mises and personally conduct the * Clinan v. Coohe, 1 Soh. & Lef. business, and (ii) not to assign 22 ; Gordon v. Trevelyan, 1 Pri. 64 ; without consent, were held not to Bayly v. Fitzmaurice, 8 EI. & Bl. be usual covenants in a lease of a 664. 158 OP THE DEFENCES TO THE ACTION. Some matter left for future agree- ment. Contract referring to third person's decision. Implied terms. cided by whom they were to be named ; ^ where an auctioneer's receipt was set up as a contract, but it did not refer to the conditions of sale, or show the proportion which the deposit was to bear to the price ;^ where there was a term as to the expenses which was not settled by the contract ; ^ where there was a con- tract for a partnership, which defined the term of years, but was silent as to the amount of capital and the manner in which it was to be provided ; * and where a document showed the amount of rent to be paid by a party to a mining enterprise, but was silent as to the other terms. ^ § 370. Contracts are often incomplete from their reserving some matter for future agreement : unless perhaps in cases where in the absence of such agree- ment the law determines the matter," such contracts are necessarily incomplete until the further agreement has been come to. A contract to contract is nothing. § 371. Where the contract provides for the deter- mination of any material thing by some third person, and this has not been done, the contract is in the same predicament as when the price has been neither expressed in the contract nor ascertained. Cases have occurred where buildings or works have been stipu- lated to be done in such manner as a third person may direct, and where such direction has either been refused or not given : and in these cases specific per- formance has been refused.' § 373. Besides the express terms of the contract, there are others which, in the absence of any expres- sion to the contrary, are implied by law.® With 1 WJieeler v. D'Esterre, 2 Dow, 359. But query wlietlier the lessee cannot name the lives wlien the contract is silent. See also Lord Kensington v. Phillips, 3 Dow, 61. 2 Blagden v. Bradhear, 12 Yes. 466. 3 Stratford v. Bosworth, 2 V. & B. 341. * Downs T." Collins, 6 Ha. 418. ^ Caddick v. Shidmore, 2 De G. & J. 52. Of. Isaacs v. Evans, [1899] W. N. 261 ; 16 Times L. E. 113, 480. 6 Hall V. Oonder, 2 0. B. N. S. 22; Matj v. Thomson, 20 Ch. D. 705 ; Metropolitan Board v. Goombes, 28 Sol. Jour. 378. ' Tillett V. Charing Cross Bridge Co., 26 Beav. 419; Earl of Darnley V. London, Chatham and Dover Bail- way Co., 3 De G. J. & S. 24 (cf. S. 0. 1 ib. 204 ; L. E. 2 H. L. 43). ^ The elements of all contracts OP THE INCOMPLETENESS OF THE CONTRACT. 159 regard to such terms, therefore, whether they be necessary terms or not, the silence of the contract does not render it incomplete : thus a contract to sell property described merely as cottages and lands pur- chased by the vendor of persons named was construed as referring to and importing the sale of the whole of the vendor's interest.^ A contract to sell a house simply implies that the interest sold is the fee simple ; ^ and a contract to renew is presumed to be for the same term as the preceding lease.^ § 373. In every contract for the sale of land, a Condition condition is implied for a good title,* and for the ^['^3^°°'^ delivery-up of the deeds ; so that where this was pre- implied. vented by the accidental destruction of the deeds subsequent to the contract, and the vendor could not furnish any evidence that they were duly executed and delivered, it was held that he could not enforce the sale.® The mere fact of the loss of the title deeds does not release a purchaser from performance of his contract. He can still be compelled to complete, if the vendor furnishes him within a reasonable and proper time with satisfactory secondary evidence of the contents and due execution and delivery of the lost documents.'^ tave by some jurists been placed * Boe d. Gray v. Stanion, 1 M. & in tkree classes : let, those things W. 695, 701 ; Worthington v. War- ■which are essential, without which rington, 5 0. B. 635. In Ogilvie v. the contract cannot exist; 2ndly, Foljambe [Z Mer. 53), Grant M.E. those which are of the nature but appears to have thought the right not of the essence of the contract, to a good title was a collateral right being implied in it unless expressly given by the law. See Ellis v. excluded, but capable of being thus Rogers, 29 Ch. D. 661, 670. The excluded without subverting the distinction is probably not of much contract ; and Srdly, the things practical importance, for the right, that are accidental. The terms in if collateral, is so closely connected question correspond of course with with the contract that they always the second of these classes. Po- seem to go together, thier, Tr. des Oblig. Part I. chap. 1, * Bxita nt v. Bu sk, 4 Euss. 1. sect. 1, art. 1, § 3. ^ -Be Hal ifax Commercial Bank 1 Bower v. Cooper, 2 Ha. 408. and Wood,-^Q. A., 47 W. E. 194; 79 ' Hughes v. Parker, 8 M. & W. L. T. 536. In this case it was held 244. that evidence not furnished until ^ Price Y. Assheton, 1 T. & 0. after the date for completion, and Ex. 82. after the purchaser had reasonably 160 OF THE DEFENCES TO THE ACTION. The title to be shown, of course, varies according to the nature of the property to be sold : ^ in the case of the sale of a lease, it formerly included the title of the lessor,^ except in the case of a bishop's lease.^ But by the Vendor and Purchaser Act, 1874,* it has been pro- vided that 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 free- hold ; and by the same Act certain other provisions of a kind very common in contracts of sale are, in the absence of stipulation to the contrary, made implied terms in contracts for the sale of land. The statutory provisions with regard to title do not preclude the purchaser from showing aliunde that the title of the vendor is bad.^ Waiver of § 374. Where a contract contains stipulations conditions, -^]-^jg}j a,re sioiply and solely for the benefit of the pur- chaser, and are severable, the purchaser may waive them, and obtain judgment for specific performance of the rest of the contract.*' For instance, the terms conferring on the purchaser a right to a good title are conditions for the benefit of the purchaser, and may accordingly be waived by him, .though the vendor may desire to insist on them as a ground for discharg- ing himself from the contract.'^ But where an agree- ment for sale was expressed in a memorandum to be subject to the preparation by the vendor's solicitor and completion of a formal contract, that provision was held not to be such a stipulation as the vendor issued a summons claiming a de- * 37 & 38 Vict. c. 78, s. 2. See, claration tliat the vendor had not too, sect. 3 (1) of the Conveyancing shown a good title, was too late. Act of 1881, which provides that, 1 aurling v. Flight, 6 Ha. 41 ; '^^'^^'^ ^ °°^*'^^°' *° ^^^^ ™d assign S C 2P}i filS ^ term of years derived out of a leasehold interest in land, the in- 2 Fildes^ V. Hooker, 2 Mer. 424 ; tended assign shall not have the Bouter.y. Drake, 5 B. & Ad. 992 ; right to caU for the title to the Hall Y^Betty, 4 Man. & Gr. 410. leasehold reversion; and consider As to a contract for the sale of a JPatman v. Harland, 17 Ch. D. 353. contract for a lease, see Kintrea v. 5 jo^^^ y_ WalKs, 43 Ch. D. 574. Preston, 25 L. J. Ex. 287 ; and see e Sawksley v. Outram, [1892] 3 infra, § 1355. Ch. 359, 376. ' Fane v. Spencer, 2 Mer. 430, n. '' Bennett v. Fowler, 2 Beav. 302. OF THE INCOMPLETENESS OF THE CONTRACT. 161 might waive, for the purpose of insisting on perform- ance of the agreement without it.^ § 376. On principle there seems much in favour Contract of the view, that a contract for an under-lease implies fgase"*^'^'^' that the siib-lessee is to be subject to all the covenants in the superior lease, and it is not unsupported by authority.* But it has been determined that this implication can only arise where the purchaser had a fair opportunity of ascertaining for himself the pro- visions of the original lease : ^ and if the contract were silent, and unusual provisions were found in the head lease, the Court would probably not enforce specific performance on the ground of the implication referred to.* Possession taken by the intended lessee is a strong circumstance to fix him with an acceptance of the terms of the head lease.^ But it is not conclusive, and the circumstances under which the possession was taken may deprive it of this effect.'' § 376. The question whether or no there is an impUca- implication in executory contracts, in favour of the to°uguai insertion in the executed contract of all such stipula- stipula- tions as are usually inserted in such contracts, appears *'°"'^' one still open in our law.'^ § 377. An implied term may of course be re- implied butted by the contract or conditions of sale ; as where b^™edTy they limit the title to be deduced, or provide that the acondi- purchaser shall simply take the vendor's interest.® notice!^ "*" And further, although an express term of a contract is in nowise affected by notice,® yet notice, communi- 1 Lhnjd V. Nowell, [1895] 2 Oh. 282. 744, 747. ^ OoBser t. CuUinge ; Smith v. " Cosser v. C'oUinge, 3 My. & K. Capron, libi supra. 283 ; Smith v. Capron, 7 Ha. 185 ; " Hyde v. Warden, uhi supra. Grosvenor v. Green, 7 W. E. 140. ' Richetta v. Bell, 1 De Gr. & Sm. Cf. Collins V. Stuteley, ib. 710. 335, where the question was much ' Hyde v. Warden, 3 Ex, D. 72 ; discussed by Enight Bruce V.C. Reeve t. Berridge, 20 Q. B. D. 523 ; Cf . Beaheney v. Hardie, I. E. 8 Eq. Re White and Smith's Contract, 381. [1896] 1 Ch. 637. Cf. Haedicke and " Freme v. Wright, 4 Mad. 364. Lipshi's Contract, [1901] 2 Ch. at " Barnett v. Wheeler, 7 M. & W. p. 669. 364; LettY. Randall, 'k9L. T. N. S. * Flight V. Baslin, 3 My. & E. 71. F. M 162 OP THE DEFENCES TO THE ACTION. Where material term can- not be supplied, no per- formance. Watson. catiug knowledge, is sufficient to rebut the presumption of an implied term ; for that is something not growing out of the contract itself, but given by law, and a matter therefore, not of contract, but of notice.^ So that, for instance, where a purchaser has notice that the vendor is only a lessee, he cannot insist on the implication which might otherwise arise, that the con- tract is for the fee.^ § 378. Again, a material term may well be sup- plied by construction or inference where the circum- stances justify it : but if neither supplied by expression, construction, nor inference, the contract is incapable of performance. In a contract for the grant of a lease, the date of the commencement of the lease is a material term, and if it does not appear in the con- tract, by expression or reference, it is incomplete : ^ nor can it be inferred to begin at the date borne by the memorandum of agreement,* though it may, of course, be collected from the agreement read as a whole.^ § 379. Where A., being lessee of a house and shop for the unexpired residue (fifty-nine years) of a term of eighty years, agreed to sub-let the premises to B. (who did not know the nature of A.'s interest) at a fixed yearly rent, but the duration of the under-lease was not specified in the contract, and B. went into and remained in possession, and laid out money in improving the premises, and ultimately, when the head lease had still twenty years to run, brought his action for specific performance of the contract ; it was ' Ogilvie v. Foljamhe, 3 Mer. 53, 64; In re Oloag and Miller, 23 Ch. D. 320 ; Cato v. Thompson, 9 Q. B. D. 616. •^ Oowley V. Watts, 17 Jm\ 172. 3 Blore V. SuUon, 1 Mer. 237 ; Neaham v. Selhy, L. E. 13 Eq. 191 ; 7 Oh. 406. See also Hersey v. Oihlett, 18 Beav. 174; Wesley v. Walker, 26 W. E. 368 ; Cartwrighi V. Miller, 36 L. T. 398; Southern v. IIarriman,"l'i W. E. 487 ; reversing S: 0, 12 W. E. 704; Dolling v. Evans, 15 W. E. 394; White v. MoMahon, 18 L. E. (Ireland) 460. In Phelan v. Tedcastle (15 L. E. (Ireland) 169), the date was ascer- tained by reference to circum- stances. Cf. Be Alexander's Timber Co., 70 L. J. Ch. 767. * Marshall v. Berridge, 19 Oh. D. 233, overruling Jagues v. Millar, 6 Oh. D. 153; Humpheryy. Conyheare, 80 L. T. 40. * In re lander and Bagley'e Con- tract, [1892] 3 Oh. at p. 48. OF THE INCOMPLETENESS OF THE CONTRACT. 163 held by Bacon V.C. tliat B. was entitled to an under- lease for the whole of the residue of the term, less one day ; and the Court of Appeal affirmed the plaintiff's right to an under-lease of defined duration, though they varied the Vice-Chancellor's decision by direct- ing A. to grant an under-lease for the residue of the term, less one day, if the plaintiff should so long live^ 1 Eusel V. Watson, 11 Gh. D. 129. Of. Browne v. Warner, 14 Yes. 156; '^ Re King's Leasehold Estates, L. E. 16 Eq. 521 ; Wood v. Beard, 2 Ex. D. 30. M 2 164 CHAPTER IV. OF THE UNCERTAINTY OF THE CONTRACT. What § 380. It is obvious that an amount of certainty cCTteinty niust bo required in proceedings for the specific per- required. formance of a contract greater than that demanded in an action for damages. For to sustain the latter proceeding, the proposition required is the negative one, that the defendant has not performed the con- tract, — a conclusion which may be often arrived at without any exact consideration of the terms of the contract ; whilst in proceedings for specific perform- ance it must appear not only that the contract has not been performed, but what is the contract which is to be performed. It is perhaps impossible to lay down any general rule as to what is sufficient certainty in a contract ; but it may be safely stated that the certainty required must be a reasonable one, having regard to the subject-matter of the contract,^ and the circum- stances under which and with regard to which it was entered into.^ Thus in a case where there was a contract between two railway companies, that the one should have the right of running with their engines, carriages, and trucks, and carrying traffic upon the line of the other, Parker V.C. held that this was not too uncertain to be enforced.^ "It means," he said, " a reasonable use, — a use consistent with the proper enjoyment of the subject-matter, and with the rights of the granting party."* And we have already seen ' See Arist. Eti. Nio. lib. i. c. 3. Manchester, Sheffield, and Lincohi- ^ Marsh v. Milligan, 3 Jur. N. S. shire Railway Co., 5 De Q-. & Sm, 979 ("Wood V.C). 138. 3 Oreat Northern Railway Co. v. * 5 De G. & Sm. at p. 149, OF THE UNCEKTAIJS'TY OF THE CONTRACT. 16-3 that where the terms of the contract are general, but the details are such as the law will supply, the contract will not be considered as objectionable for vagueness and uncertainty.^ In one case a contract by a railway company with a landowner, to make such roads, ways, and slips for cattle as might be necessary, was held not incapable of being performed by the Court ; but it is to be observed that in this case the company had entered and made the railway.^ In another case, where a rector had agreed to grant a lease of his glebe, "except thirty-seven acres thereof" (which were not specified). Lord Romilly M.R. held that the contract was not void for uncertainty, inasmuch as the lessor had a right to select the thirty-seven acres at any time before the execution of the lease. His Lordship held, however, that this right must be so exercised as not to interfere with the lessee's beneficial enjoyment of the lands included in the lease.** § 381. Where the terms of the contract have been Original originally uncertain, but the contract has been acted ^^^^' on and a user and course of dealing have existed removed, between the parties which gives certainty to what was originally uncertain, the Court has in some cases had regard to this as removing the original difficulty.'' Part performance will induce the Court to struggle against the objection of uncertainty.'' § 383. The mere fact of indefinite words, such as indefinite " ef ccetera^'' being used in a contract does not neces- ^°^ ^' sarily make it too uncertain for performance. Such words may be understood with sufficient certainty by reference to the words to which they are added and the surrounding facts of the case.® Again where, by ' Per Turner L.J. in South Wales * Oxford v. Provand, L. E. 2 P. C. Railway Co. v. Wythes, o De G. M. 135. See also Laird v. Birkenhead & G. 888 ; supra, § 368. Railway Co., Johns. 500. 2 Saunderson v. Cockermouth and , ^^^^ ^_ ^^^^^ ^8 qj^_ j^ g^^^ Workington Railway Co., 11 Beay. q^._ g^^^ too, Haivksley y. Outram, 497, affirmed by Lord Cottenham. .^ggg-, 3 oh. at pp. 374, 376, 381. See Parker v. Taswell, 4 Jur. N. S. '" "' Jr-r . . 183 (Stuart V.O.) ; S. 0. 2 De G. & « Cooper v. Mood, 26 Beay. 293 ; J. 559, and supra, § 335. Powell v. Lovegrove, 8 De G. M. & 3 Jenkins v. Oreen (No. 1), 27 G. 357 ; Parker v. Taswell, 2 De G. Beav. 437 ; and see supra, § 346. & J. 559, 166 OF THE DEFENCES TO THE ACTION. the contract for a lease, the tenant was to do certain specified works, and " other works " upon the property at a total estimated cost of about 150^., and the specified works were such as would evidently cost nearly that sum, the Court considered the "other works " to be of such a trifling description that their being left undefined was not a ground for refusing specific performance.^ Instances § 383. On the grouud of uncertainty, the Court taiJTcon- ^^^ rcfuscd Specifically to perform marriage-articles tracts. ' prepared by a Jewish rabbi in an obscure form, said to prevail amongst German Jews ; ^ also a contract for the sale of land, where there was a doubt as to the identification of a plan to be incorporated into the contract.^ In another case the Court refused to inter- fere in respect of an engagement by the defendant, Mr. Kean, to perform at a theatre.'' " Independently of the difiiculty of compelling a man to act," said Shadwell V.C, " there is no time stated, and it is not stated in what character he shall act ; and the thing is altogether so loose that it is perfectly impossible for the Court to determine upon what scheme of things Mr. Kean shall perform his agreement." ^ And where a vendor had agreed to sell an estate with a reserva- tion of " the necessary land for making a railway through the estate to Pi'ince Town," Jessel M.R. held that the contract could not be enforced by the pur- chaser.® other § 384. So again, where the contract is discrepant " with itself, or there are two different contracts relating to the same subject-matter, the Court will generally refuse specific performance.'' In a case,* where an offer was made to take a house for a specific term and 1 Baumann v. James, L. B, 3 Ch. * Pearee v. Watts, L. E. 20 Eq. 508. 492. 2 Franks v. Martin, 1 Eden, 309. ' Callaghan v. Callaghan, 8 01. & 3 Hodges v. Horsfall, 1 Euss. & M. Fin. 374. 116. 'D]s\mgmSa.Naylor\.OoodaTl, ^ Taylor v. Partington, 1 De G. 26 W. E. 162. M. & G. 328 ; cf. Norris t. Jackson, * Kemhle v. Kean, 6 Sim. 333. IJ. & H. 319 ; Samuda v. Lawford, CI. OhiUisY.McGhee, 13 It. Ch.H. 4 Giff. 42; Gardner v. Fooks, 15 48 . W. E. 388 ; Dear y. Verity, 1 7 W. E. « 6 Sim. at p. 337. 567. instances. OF THE UNCEETAINTY OP THE CONTRACT. 167 at a certain rent, if put into thorough repair, and stating also that the drawing-rooms would be required to be handsomely decorated according to the present style, and making some further requirements as to painting, and the offer was accepted, the Court of Appeal in Chancery, reversing the decision of Eomilly M.R., dismissed the bill on the ground of the uncertainty imported into the contract by the expressions in the offer as to repaiirs. Where a contract was for the purchase of " the land required" for the construction of a railway, at so much per acre, and the contract contained provisions agreed on between the land agents of the company and the vendor as to roads, culverts, etc., etc.. Lord Romilly M.R. (following the decision of Turner V.C. in Webb v. Direct London and Portsmouth Railway Company,^ then unreversed,) held that a surveyor going upon the ground, and having the contract in his hand, could accurately ascertain the land to be taken, and that the terms of the contract were therefore sufficiently explicit ; but this decision was overruled on appeal, and Knight Bruce L.J. held the language " too vague, too uncertain, too obscure to enable this Court to act with safety or propriety."^ A contract to take the mines under lands of A. at B., B. being neither a township nor a parish, has also been held uncertain.^ § 385. In another case, where there was a con- other tract in genei'al terms for the construction of a railway "" according to the terms of a specification to be prepared by the engineer of the company for the time being, it was held too vague, obscure, and uncertain to be en- forced.* The like was held in the case of a contract to give the plaintiffs accommodation for the sale of their articles in the refreshment-rooms of the defendants, and to furnish them with the necessary appliances.^ 1 9 Ha. 129; 1 De G. M. & G. ^ Lancaster v. De Trafford, 31 521. L. J. Ch. 554. == Lord James Stuart v. London , ^^^^^ ^^^^^ _g^.^^^^ ^^^ ^_ and Northwestern Railway Co., 15 ™ ^^^ , -p^ (._ j^_ ^ q._ gg^^ Beay. 513; S. 0. 1 De G. M. & G. "^ 721. Of. Bellaney v. Knight, 10 ' Paris Chocolate Go. v. Crystal W. E. 289. Palace Co., 3 Sm. & GifP. 119. instances 168 OF THE DEFENCES TO THE ACTION. The like was again held where one partner proposed to sell to the other his share in the business, and that a large portion of his capital should remain in the business, but the writing did not state how much, for how long, or at what interest, and this proposal was accepted.-' And again, where on the sale of a piece of land there were stipulations that, in the event of there being any coals or ironstone under the land, a royalty of so much per ton should be paid thereon by the pur- chaser to the vendor, and also that any mines required to be left by a certain railway company were to be paid for, as if the same had been gotten, out of the money to be received from the railway company ; it was held, with regard to the latter stipulation, that it was incapable of being worked out, inasmuch as if the company bought the mines, the contingency whether there was any coal or ironstone under the land would remain undecided; and as to the former stipulation, that the parties seemed to have intended to work it out by a reservation of mines to the vendor, and a lease of them by the vendor to the purchaser, but that there was nothing to guide the Court as to the stipulations to be included in such a lease, except the rates of royalty ; and the Court accordingly declined to en- force the contract for sale.^ Lesaoer- § 386. The Same certainty will not be required required "^ cascs whcro there is any element of fraud, as in ■where simple cascs of specific performance of a contract. ^^^;i;' Thus where A. agreed with B. in effect that if B. would not try to buy a certain estate, A. would try to buy, and in case of success would cede a portion of the estate to B. at a certain price : and B. acted on his bargain and allowed A. to purchase : and A, having purchased refused to perform his part and set up the uncertainty of the part to be ceded : the Court 1 Gooper v. Hood, 26 Beav. 293. Taylor v. GilheHson, 2 Dre-w. 391 ; .__.„. TTT i. o T-v Holmes Y. Eastern Counties Railway 2 Williamson Y.Wootton, 3 Drew. „ „t^ p t ^^r a^ 71^-77 j Co.,3K. &J. 675; Sturger. Midland 210. Seefurtier.astoimcertainty, ji^n^^y Co., 6 W. E. 233; Jeffery Harnett v. Yielding, 2 Soh. & Lef . y. Stephens, 8 W. E. 427 ; Firth v. . 549; Tatham v. PlaU, 9 Ha. 660; Ridley, 33 Beav. 516; supra, § 93. OF THE UNCERTAINTY OF THE CONTKACT. 169 held that the defence could ijot avail, and directed an inquiry to ascertain the portion to be given up and the price. It seems that if this could not have been ascertained, B. might have claimed the whole estate.^ 1 Chattock V. Midler, 8 Ch. D. 177. iro CHAPTER V. OF THE "WANT OF FAIRNESS IN THE CONTEACT. Nature of the fairness required. Unfair- ness in the terms or in extrinsic matters. When as- certained. § 887. There are many iostances in which, though there is nothing that actually amounts to fraud, there is nevertheless a want of that equality^ and fairness in the contract which, as we have seen, are essential in order that the Court may exercise its extraordinary jurisdiction in specific performance. In cases of fraud ^ the Court will not only not perform a contract, but will rescind it ; but there are many cases in which the Court in the exercise of the jurisdiction in specific performance will stand still, and interfere neither for the one purpose nor for the other.^ § 388. The unfairness in question may be either in the terms of the contract itself, or it may be in matters extrinsic and the circumstances under which it was made : with regard to the latter, parol evidence is of course admissible.* § 389. The fairness of the contract, like all its other qualities, must be judged of at the time it is entered into, or at least when the contract becomes absolute, and not by subsequent events : ^ for the fact ' As to the equalitywliioh. natural justice requires to find place in con- tracts see Grotius, De Jure Belli ac Pacis, lib. ii. cap. 12, sect. 8 et seq. ' The jui-isdiction to rescind is, of course, not confined to cases of actual fraud. See per James L.J. in Torrance v. Bolton, L. E. 8 Ch. at p. 124. ^ Per Lord Eldon in Willan v. Willan, 16 Yes. 83. See Savage v. Taylor, Forr. 234 ; Twining v. Mor- rice, 2 Bro. 0. 0. 326 ; Savage v. Brodesopp, 18 Yes. 335 ; Davis v. Symonds, 1 Cox, at p. 406; Redshaw T. Governor and Co. of the Bedford Level, 1 Eden, 346. *• Davis Y. Symonds, 1 Cox, 402. * So as to hardship : see infra, §418. OP THE WANT OF FAIRNESS IN THE CONTRACT. 171 that events, uncertain at the time of the contract, may afterwards happen in a manner contrary to the expec- tation of one or both of the parties, is no reason for holding the contract to have been unfair. " The period," said the Irish Lord Chancellor Manners, " at which the Court is to examine the agreement between the parties is the time when they contracted." ^ § 390. In the case, however, of contracts to sell where at a price to be fixed or any other condition to be per- conduion formed before they become absolute, it may be urged to te per- that the time when the contract becomes absolute, and °^^^ not the date of its signature, is the time to judge of its fairness. Unfairness in the valuation is certainly an objection. § 391. The principle of judging of the fairness of Compro- a contract at its date applies to compromises and ^'^^y*'"'^ settlements of family and other questions. " Where settie- parties, whose rights are questionable, have equal "^®^'^- knowledge of facts, and equal means of ascertaining what their rights really are, and they fairly endeavour to settle their respective rights amongst themselves, every Court must feel disposed to support the con- clusions or agreements to which they may fairly come at the time,^ and that notwithstanding the subsequent discovery of some common error"® or a subsequent judicial decision showing the rights of the parties to have been different from what they supposed, or that one party had nothing to give up.* And the uncer- tainty which may render a compromise fair, and therefore binding, may be either in some future and uncertain event, or the future ascertainment of some event past and therefore in itself certain, as, for instance, whether a son was legitimate or not,® or whether an uncle had made a particular will or not.® § 392. The principle just stated is perhaps most Contracts ' In Revdl t. Hussey, 2 Ball & ^ Per Lord Langdale M.E. in B. 288. See infra, § 418. Fichering v. Pickering, 2 Beav. 56 ; Of. per Turner L.J. in. Williams Franh v. Frank, 1 Cas. in Ch. 84. * Laivton y. Campion, 18 Beay. T. Williams, L. E. 2 Oh. at p. 304 ; g^ Buchnell v. Bucknell, 7 Ir. Oh. B. s stapilton v. Stapitton, 1 Atk. 2. 130. " Heap y. Tonge, 9 Ha. 90. 172 OF THE DEFENCES TO THE ACTION. involving frequently illustrated by cases of family arrangement genoies. or of Compromise ; but it is applicable to contracts of Farkm-y. wtatsoevor nature. The case of Parker v. Palmer^ Palmer, -^^hich camo bcfore the Court in the fourteenth year of Charles II., illustrates this. Parker, as it appears, had, during the Commonwealth, sold a lease which he had from a dean and chapter for three lives, to Palmer, the price agreed on being 4,320/. Subse- quently the purchaser agreed with the vendor that, if he would abate him 420/., he would reconvey the lease whenever the King and dean and chapter were restored : the abatement was made : the King and Church were restored : and thereupon the vendor sued for a reconveyance, which was accordingly decreed by the then Master of the Rolls, and affirmed by Lord Other Clarendon and Sir Orlando Bridgeman. Again, where ms ances. ^ ^^^^ agreed to sell for 20/. an allotment thereafter to be made to him under an inclosure, and it turned out to be worth 200/., he was nevertheless compelled to perform his contract:^ and so in a case before Leach V.C., where he maintained a contract entered into without any fraud or concealment, by which one partner agreed with the retiring partner to give him 2,000/. for the concern, though they knew the partner- ship to be insolvent, his Honour said, " Suppose the case of a trade attended with great risk, one partner despairing, the other confident and willing to buy the share of his partner, and give him 2,000/. for it ; on what possible ground could this contract be invali- dated ?" ^ The cases in which the thing sold is described in general terms, — as, for example, a manor, — and the extent and value of it are at the time uncertain/ and also the cases in which the vendor only sells such interest in the property as he has, where that which is sold turns out differently from the purchaser's expectations, are analogous to those before stated.^ The con- § 393. But in Order to bring a contract within muft bT *^^^ principle, the uncertainty as to the subject-matter 1 1 Cas. in Oh. 42. = Ex parte Peahe, 1 Mad. at p. 355. * Anon, before Jekyll M.E. cited ■* Baxendaley. Seale, 19Beav. 601. in Cooth V. Jackson, 6 Ves. 24, ' See infra, § 1323. OP THE WANT OF FAIRNESS IN THE CONTRACT. 173 of the contract must at the time of the contract have really such been a real one to both parties, either from the nature parties. of things or from the state of knowledge of both par- ties. A contract entered into by one party who knows that the subject-matter of the contract does not exist with another who does not know, will not, it seems, be executed by the Court, though its terms may be such as to put the ignorant party on his guard, and to throw the uncertainty on him. In one case, the particulars described the subject of the sale as the interest, if any, of Francis Norton in certain stock and also in a lease, and stated that there was a lien of 100/. on the lease, and the conditions provided that even if it should appear that Francis Norton had no interest in the premises, the purchaser should have no remedy against the vendor to compel him to refund ; in consequence of the state of certain part- nership accounts which was known to the vendor, but which the purchaser had no means of ascertaining, the interest sold was of no value Avhatsoever, and was in fact only exposed to sale for the purpose of enabling certain proceedings to be taken against the separate estate of Francis Norton : the vendor made no repre- sentations as to the value, but received from the jiur- chaser 150/. as the purchase-money : Lord Hatherley (then Wood V.C.) set aside the sale at the suit of the purchaser, with costs against the vendor, on the ground that the purchaser was buying what might be worth nothing, Avhile the vendor was selling what was worth nothing.^ § 394. Further, the principle in question will not The con- apply where, though the terms of the contract may ^^sthlve express an uncertainty, that uncertainty was not beenun- understood by the parties to comprise the event which as within actually happens. Thiis where A. contracted with B. *^^g^°°" for the sale of a manor, and stipulated that he should not be obliged to define its boundary, and, the manor turning out to comprise a valuable property not before known to either party to be part of it, the purchaser, who had previously sought to repudiate the contract, filed his bill for performance. Lord Romilly M.R., on 1 Smith V. Harrison, 26 L. J. Ch. 412 ; 5 W. E. 408. 174 OF THE DEFENCES TO THE ACTION. 3avis V. Shepherd. Contracts to sell at a price to be fixed. Amount of rent to be fixed. consideration of the evidence, came to the conclusion that neither party intended to sell or buy a mere doubtful matter, and that both parties at the time of the contract believed that it included something dif- ferent from what would then be conveyed to the plaintiff, if the conveyance were to be executed as he claimed it, and accordingly dismissed the bill, but without costs/ § 395. In another case there was a farm which appears to have contained 181 acres, and had coal under it, which was known or believed to be traversed by a fault : the owners agreed to demise to A, the minerals under a portion of the farm which lay to the eastward of an upthrow fault to the east : the quantity was described as supposed to be 98 acres or there- abouts. There were to be a rent certain and royalties on the coal raised. It turned out that the fault left 173 instead of 98 acres to the east of it. The Court of Appeal in Chancery thought it clear that of such a contract specific performance could not have been granted at the suit of the lessee.^ § 396. In contracts to sell at a j)rice to be fixed by a third person, the Court would no doubt consider the unfairness of the valuer's conduct as a bar to the right to specific performance. So in one case, where the Court came to the conclusion that it was doubtful whether the valuation had been made with a due attention to accuracy. Lord Eldon refused specific performance of the contract to sell.' § 397. In another case, where the amount of rent to be paid was referred to arbitrators and an umpire, one of the arbitrators so far misconducted himself as to rest his decision, not on his own judgment, but on the will of one of the parties interested, and the umpire proceeded on the footing of an outlay of money by the tenant for which the contract contained no stipulation, the House of Lords reversed a decree Seale, 19 Beav. ' Baxendale v. 601. ' Davis V. Shepherd, L, E. 1 Ch. 410. ' Emery v. Wase, 8 Ves. 505. Distinguish Collier v. Mason, 25 Beav. 200. OF THE WANT OF FAIRNESS IN THE CONTRACT. 175 for specific performance pronounced by the Irish Court of Chancery.^ § 398. In another case, where the referees con- SachY. suited the umpire and made their award as to the '^ '""""*• value of coal upon his estimate, though one at least of the referees thought it wrong, this circumstance was held fatal to the valuation and the suit.^ Other objections were discussed, and it was held that the objections (i.) that the valuers did not examine wit- nesses, and (ii.) that one of the valuers did not go down the mine, but acted on the report of his grand- son, were not sustainable : but another objection, that the valuers did not sign their award together, was held entitled to much weight though not determined to be valid. This case is a very instructive one as to the duty of referees or valuers. § 399. In judging of the fairness of a contract. Fairness the Court will look not merely at the terms of the °^^™- ini ni T • rounding contract itself, but at all the surrounding circumstances, ciroum- — such as intimidation and duress of the defendant,^ stances. the mental incapacity of the parties, though falling short of insanity,* their age or poverty, the manner in which the contract was executed, the circumstances that the parties were acting without a solicitor, that the property was reversionary, or that the price was not the full value.^ § 400. Therefore, whenever there are evidences Court of distress in the party against whom performance is aoTwhere sought,^ or he is an illiterate person, or whenever there oiroum- are any circumstances of surprise, or want of advice,'' auspicious. or anything which seems to import that there was not a full, entire, and intelligent consent to the contract,® ' Chichester t. Mclntire, 4 Bli. = Bell v. Hoioard, 9 Mod. 302; N. S. 78. Martin v. Mitchell, 2 J. & W. 413, 2 Eads V. Williams, 4 De G. M. 423; Stanley v. Bohinson, 1 E. & M. & G. 674. 527. ' Dewar v. Elliott, 2 L. J. Ch. ' KerneysY. Hansard, Ooop. 125; (0. S.) 178. Johnson v. Nott, 1 Vern. 271. * Glarhson v. Hanway, 2 P. Wins. ' Stanley v. Bohinson, 1 E. & M. 203 ; Oartside v. Isherwood, 1 Bro. 527 ; Eelsham v. Lanyley, 1 Y. & 0. 0. 558 ; Bridgman v. Oreen, C. C. 0. 175. Wilm. Not. 58, 61. See supra, ^ The nature of the proper con- § 274. sent to a contract seems not in- 176 OF THE DEFENCES TO THE ACTION. Inten- tional vmfair- ness not necessary to be proved. Twining y. Morrice. Miestate- ments. Silence or anpfn'gssio the Court is extremely cautious in carrying it into effect. Still, it is not the doctrine of the Court that a man cannot contract without his solicitor at his elbow/ or that a man in insolvent circumstances, or in prison, is disabled from selling his estate : and if a contract made under such circumstances will bear the careful examination of the Court and the full light of day, it will be specifically enforced.^ § 401. It is enough, generally speaking, to induce the Court to refuse performance, that there are any circumstances about the making of the contract which render it not fair and honest to call for its execution ; it is not needful that there was any intentional un- fairness or dishonesty at the time.^ A leading case on this subject is Twining v. Morrice^* where the bill was by a purchaser against a vendor: at the sale, which was by auction, the solicitor, who was known to be the agent of the vendor, had made some biddings for the plaintiff, which from his known relationship to the vendor were thought to be the biddings of a puffer, and so damped the sale : the act was done in inad- vertence by the solicitor; but as it was done at the plaintiff's instance, specific performance was refused by Lord Kenyon M.R. § 402. Unfairness arising from misstatements is considered under the head of Misrepresentation : ® and cases relating to the silence or suppression of a fact by one party are considered in the chapter on Fraud.* But it seems possible that there may be cases where silence is not fraudulent, but yet creates such a case of hardship as prevents the interference of the Court in specific performance. On this ground was put a case where a lessee obtained the renewal of a lease on the surrender of an old one, knowing and suppressing the fact, which was unknown to the lessor, that the person correctly expressed in tlie followmg extract: "Consensus debet esse (1) verus seu internus et mutuus; (2) aliquo signo extemo expressus ; (3) liber etplenedeliberatus; (4) serins, cum animo se obUgandi." Mariani Examen, § 278. 1 Lightfoot v. Heron, 3 Y. & 0. Ex. 586; Haberdashers' Co. v. Isaac, 3 Jur. N. S. 611 (Wood V.C). ^ Brinhley v. Hann, Dru. 175. 2 MOrtlock V. Buller, 10 Ves. 292, 305. * 2 Bro. 0. 0. 326. ' Infra, § 650. « Part III. ch. xiv. § 701. or THE WANT OF FAIRNESS IN THE CONTRACT. 177 on whose life the old lease depended was in extremis^ and the Court declined to aid the lessee/ And in a case before Lord Cranworth, where the same solicitor acted for both parties, but did not disclose to both parties the whole nature of the dealing, or place his principals at arm's length in the transaction, the Court refused to enforce specific performance at the suit of the purchaser.^ § 403. On the ground of want of fairness, the intoxica- Court will not assist one party to a contract specifically to enforce it against the other, who at the time of entering into it was in a state of intoxication, and that even in the absence of any unfair advantage taken of his situation which would induce the Court to rescind the contract.^ But the mere fact that some glasses of liquor had been drunk before the signing of the contract will not avoid it, if there be nothing to show that the defendant acted without a full understanding of what he was doing.* In one case Stuart V.C. refused to allow a third party, who, having got a subsequent transfer of the property, was the substantial defendant, to avail himself of this defence.^ § 404. One kind of that unfairness which stays Contract the interference of the Court arises where the enforce- to^hi^^f^ ment of the contract would be injurious to third persons. persons. Therefore where an estate was settled in r\ strict settlement, giving to the settlor a life estate and an ultimate remainder, and the tenant for life entered into a contract for the sale of the fee, the Court refused to allow the purchaser to take the interest of the tenant for life with compensation, on the ground that a father and a stranger would be likely to use an estate without impeachment of waste in a different 1 Ellard v. Lord Llandaff, 1 Ball tained by fraud from an intoxicated & B. 241. party was set aside. The contract ^ Hesse v. Briant, 6 De G. M. & of a drunken man is not void, but Gr. 623. voidable. Matthews v. Baxter, L. E. 3 Coohe V. ClaywortJi, 18 Ves. 12 ; 8 Ex. 132. Nagle v. Baylor, 3 Dr. & War. 60. * Lightfoot v. Heron, 3 T. & 0. Distinguish SJiaw v. Thachray, 1 Ex. 586. Sm. & Q. at p. 539. In Butler v. ^ Shaw v. Thackray, 1 Sm. & G. Mulrihill, 1 Bli. 137, a contract ob- 537. 178 OP THE DEFENCES TO THE ACTION. Secret guarantee. c Sale by a way, and that therefore the sale might prejudice the interests of the persons in remainder.^ § 405. Again, where bankers, after a customer had commenced liquidation proceedings, secretly took a guarantee from his brother that the bank's loss should not exceed 2,000^., and thereupon forbore to take proceedings against the customer or to prove against his estate, the Court, on the ground that this arrangement tended to give the bankers an undue advantage over the other creditors, dismissed a bill filed by the bankers to enforce specific performance of the guarantee.^ § 406. Formerly the Act 27 Eliz. c. 4, in effect settior^'^^ enabled a voluntary settlor of land to defeat the settlement by means of a subsequent conveyance to a purchaser for value. If, however, a voluntary settlor entered into a contract to sell the estate and brought an action to carry the contract into execution, the Court would not assist him thus to override the settle- ment and prejudice the interests of the persons claiming under it ; ^ unless the purchaser was willing to complete on having a good title shown.* Now, by virtue of the provisions of the Voluntary Conveyances Act, 1893 (56 & 57 Vict. c. 21), a voluntary convey- ance of land, if in fact made lond fide and without any fraudulent intent, is not liable to be defeated under any of the provisions of the above Act of Elizabeth. § 407. The Court will not generally exercise its extraordinary power in compelling a specific perform- ance, where to do so would necessitate a breach of Contracts necessi- tating a breach of trust. ' Thomas t. Bering, 1 Ke. "729. ^ McKewan T. Sanderson, L. E. 20 Eq. 65. Of. De Cordova y. Be Cordova, 4 App. 0. 692. ^ Johnson t. Legard, T. & E. 281 ; Smithy. OarIand,2Mer. 123; Clarke V. WilloU, L. E. 7 Ex. 313. BeBriggs and Spicer, [1891] 2 Oh. 127, was overruled by the decision of the 0. A. in. Be Carter and Kenderdine^s Contract, [1897] 1 Oh. 776. « Peter v. Nicolls, L. E. 11 Eq. 391. But the difficulty of being quite sure that the settlement had not been made good by some ex post facto matter was calculated to deter purchasers from being -willing to complete. It was held in a comparatiTely recent case that the mere fact that one link in the title was a voluntary conveyance to a person under whom the vendor claimed by purchase for value was not enough to justify the purchaser in repudiating the contract. Noyea Y. Paterson, [1894] 3 Oh. 267. OF THE WANT OF FAIRNESS IN THE CONTRACT. 179 trust 01' of a prior contract with a third person/ or would compel a person to do what he is not lawfully competent to do, even though at the time of contract the act might have been lawful/ — partly, as it seems, on the ground of the unfairness and illegal taint of such a contract in itself, and partly of the hardship to which it would expose the person forced to execute it. The plaintiff "must also," said Lord Redesdale, " show that, in seeking the performance, he does not call upon the other party to do an act which he is not lawfully competent to do; for, if he does, a consequence is produced that quite passes by the object of the Court in exercising the jurisdiction, which is to do more complete justice."^ § 408. Therefore, where trustees entered into a instances. binding contract for a sale under a power, but one so disadvantageous as to be a breach of trust, the Court would not specifically perform the contract : ^ and so, again, where trustees for sale for the benefit of credi- tors made a sale by auction, under circumstances of improvidence and likely to prejudice the owner of the estate, for the sake of immediately realizing money to pay his creditors, the Court pursued the same course.*^ And where, on the sale of trust property, it was agreed that the purchaser should out of the purchase-money retain a private debt due to him from the trustee, a demurrer to a bill by the trustee was allowed.® Again, where trustees entered into a contract for a lease which was in excess of their power ; '' and, again, where they 1 Willmott V. Barter, 15 Ch. D. sale), [1902] 2 Oh. 606, 611 ; 51 96, 107. Of. Mulholland v. Mayor W E 56 • 87 L T 425 of Belfast 9 Ir. Oh. E. 204, 215 ; [ ^^^^^^-,^ ^_ ^^^/^^ [^ ^^^_ 292. and Manchester Ship Canal Co. y. . _ r. t n- •. t Manchester Racecourse Co., [1900] 2 Accordingly, Bridger y. Bice, 1 J. Ch. at p. 367; [1901] 2 Ch. at p. 50. & W. 74 ; Wood v. Richardson, 4 ^ Mayor of New Windsor Y.Btovell, Bear. 174; Maw y. Topham, 19 27 Ch. D. 665. Beav. 576. See also Hill Y.BucJdey, ^ Harnett v. Yielding, 2 Sch. & 17 Ves. 394 ; Neale v. Mackenzie, 1 Lef. 553. See Byrne v. Acton, 1 Ke. 474; RedeY. Ora/ces, 4 De G. J. Bro. P. C. 186; Tolson v. Sheard, & S. 505; Dunn v. Flood, 25 Ch. D. 5 Ch. D. 19 ; Oceanic Steam Ravi- 629, affirmed 28 Ch. D. 586. gation Co. v. Sutherbury, 16 Ch. D. ^ Ord v. Noel, 5 Mad. 438. 236; Mansfield v. Childerhouse, 4 ^ Thompson Y. Blackstone, 6 Be&Y. Ch. D. 82 ; and Delves v. Gray (re- 470. purchase by one of two trustees for ' Harnett v. Yielding, 2 Sch. & n2 180 OF THE DEFENCES TO THE ACTION. Where condition for com- pensation. Thorn. The ob- ieotion precluded by the conditions of sale. entered into a covenant for renewal which was ultra vires ; the Court on this ground, in both cases, refused specific performance.^ § 409. Where trustees for sale misrepresented the value of the property, when they had the means in their power of stating it correctly, and the conditions of sale stipulated for compensation on either side ; one of the grounds on which the House of Lords reversed a decree for compensation was, that the Court would not give effect to a condition which would injure the cestuis que trust, by reason of the neglect of the trustees in making the misdescription which was the ground for compensation.^ § 410. In another case, the Court refused per- formance of a contract for the sale of leaseholds by one of two executors, on the ground that, under the circumstances of the case, it would be an injury to the cestuis que trust, and expose the executor to extra- ordinary risk from them, and that either of these grounds was sufficient to stay the interference of the Court." § 411. But where trustees, who had without authority granted leases, put up the property for sale under conditions which expressly provided that no objection should be made in respect of such leases, and that the purchaser should take subject to such interests as the tenants might be entitled to there- under, the Court held the purchaser precluded from objecting on the ground of breach of trust.* It is conceived, however, that trustees generally cannot by contract prevent the operation of the Lef. 549. Accordingly Byrne v. Acton, 1 Bro. P. 0. 186. - Bellringer T. Blagrave, 1 De Gf-. & S. 63. 2 imte V. Guddon, 8 CI. & Fiii.. 766, reversing S. C. s. n. Gudden v. Cartwright, 4 Y. & 0. Ex. 25. See infra, § 1294. 3 Sneeaby v. Thorn, 1 Jur. N. S. 536, before Lord Hatherley (then Wood V.O.), affirmed 7 De G. M. & G. 399. See also Magrane v. Archbold, 1 Dew, 107; Trappes v. Gobb, 16 W. E. 117; JSfayhr v. Ooodall, 26 W. E. 162. But in Barrett v. Ring, 2 Sm. & Gif. 43, Stuart 'T.C. compelled trustees of a road to complete a contract for sale wMcli tad been made in f orget- f ulness of a statutory right of pre- emption, and might expose them to an action for damages. * MichoUs V. Gorbett, 34 Beav. 376; 3DeG. J. & S. 18. OF THE WANT OF FAIRNESS IN THE CONTRACT, 181 Court's usual unwillingness to enforce any transaction resulting in injury to third persons. § 412. The law with regard to depreciatory con- statutory ditions of sale used hj trustees^ has been modified by as°o de° legislation. By the 14th section of the Trustee Act, 111^^^°''^ 1893, it is provided as follows : — tiona. " (1) No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made may have been unneces- sarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. "(2) No sale made by a trustee shall, after the execution of the conveyance, be im- peached as against the purchaser upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, un- less it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. "(3) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid." § 413. Even where there is nothing amounting to Unbusi- a distinct breach of trust the Court will be delicate of contract. interfering against trustees ; so that where, in a con- tract for sale by them, there is any want of a business- like character, the Court will not, it seems, interfere, unless the price be shown to be equal, or more tlian equal, to the value of the property.^ § 414. The doctrine does not apply only to per- Cases of sons standing in the position of formal trustees, but, auty! it seems, to all cases of trust and confidence. So, that if a contract were the result of a gross breach of duty by an agent towards his principal, the Court would not, it seems, enforce the consequences of that act.^ 1 See Dunn v. Flood, in 0. A. 28 M. & G. 90. Ch. D. 586. 3 Mortloclc v. Bidhr, 10 Yes. 292, 2 Goodwin v. Fielding, 4 De G. 313. 183 OF THE DEFENCES TO THE ACTION. And SO, railway directors having duties towards the shareholders, the Court will not enforce any contract amounting to a breach of duty to the prejudice of all or any of the shareholders at the instance of a plaintiff cognizant of the circumstances.* Eesoind- g 415. The Court has on this ground not only tract on rcfuscd specific performance, but in a case where the ^round purchascr must have known that assignees in bank- ruptcy were dealing without sufficient knowledge, and that the creditors who were to ratify it were equally ignorant, the Court, on the ground of the breach of trust of the assignees (as well as other grounds), set aside the contract.^ Injury to § 416. In oue caso Lord Romilly M.R. took into public, consideration the injury likely to arise to the public from the specific performance of a contract relating to the level of a railway, and on the ground of that injury refused to compel the company to lower the level of their line. But that decision was reversed on appeal.* 1 SJirewshury and Birmingham Of. Rowland v. Chapman, [1901] Bailway Co. v. London and North- W. N. 153 ; 17 Times L. E. 669 Western Bailway Co., 4 De G. M. & (receipt by puroliasers' agent of G. 113, aflBrmed, and tliis principle secret commission from vendor), approved, 6 H. L. 0. 113. ' Baphael v. Thames Valley Bail- ^ Turner v. Harvey, Jac. 169. «;«?/ Co., L. E. 2 Eq. 37; 2 Oh. 147. 183 CHAPTER VI. OP THE HAEDSHIP OP THE CONTEACT. § 417. It is a well-established doctrine that the HardsMp Court will not enforce the specific performance of a ti^eCourt's contract, the result of which would be to impose great inter- hardship on either of the parties to it ; ^ and this *®'^^^°®- although the party seeking specific performance may be free from the least impropriety of conduct.^ § 418. The question of the hardship of a contract When is generally to be judged of at the time at which it is ^a^ed. entered into : if it be then fair and just and not pro- ductive of hardship, it will be immaterial that it may, by the force of subsequent circumstances or change of events, have become less beneficial to one party,^ except where these subsequent events have been in some way due to the party who seeks the performance of the contract. For whatever contingencies may attach to a contract, or be involved in the perform- ance of either part, have been taken upon themselves by the parties to it. It has been determined that the reasonableness of a contract is to be judged of at the time it is entered into, and not by the light of subse- quent events,* and we have already seen that the same principle applies in considering the fairness of a contract.^ § 419. On this ground it has been decided in instances several cases in Ireland, that where a lessee of renew- ^ue^^'^^' ^ Per Lord Brougham in. Oould Wehh v. Direct London and Forts- V. Kemp, 2 My. & K. 308. mouth Raihuay Oo., 9 Ha. 129; S.O. 2 Per Kindersley V.C. in Falcke on appeal, 1 De G. M. & G. 521. V. Gray, 4 Drew. 660. ^ Jmes v. Lees, 26 L. J. Ex. 9. 3 Lawder v. Blaehford, Beat. 522; * See supra, § 389. 184 OF THE DEFENCES TO THE ACTION. oirouiu- stances disre- garded. Submis- sion and avards. Instances of sub- sequent events regarded. able leaseholds covenants with his sub-lessee for renewal without fine on every renewal to himself, and subse- quently a renewal is made to him, but on terms far less beneficial than had been the custom at the time he entered into the covenant, and on the expecta- tion of the continuance of which he had so covenanted, be will nevertheless be obliged to renew to his sub- lessee, and that without any contribution towards the increased fine which he has paid.^ So where railway companies contract unconditionally for the purchase of land, and by their laches their powers expire before the completion of the purchase, that circumstance furnishes them with no gi^ound of defence.^ § 420. This is further well illustrated by the cases on awards : for where the contract contained in the submission is unfair, or conducing to hardship, the Court will not interfere ; ^ whereas hardship or un- reasonableness in the award itself will not be a bar to its enforcement by the Court : for the submission and not the award is the contract, and unreasonableness in the award is therefore a matter subsequent, and arising from the decision of a Judge whom the parties them- selves have chosen, and the risks attending whose judgment they have taken on themselves.* § 421. It cannot however be denied that there are cases in which the Court has refused its interference by reason of events subsequent to the contract. Thus in The City of London v. Nash^ where a party had covenanted to re-build several houses, and, instead, had built but two new houses, and only repaired the others, but in so doing had laid out at least 2,200^., and put them in very good condition ; Lord Hardwicke, 1 Evam V. Walshe, 2 Sch. & Lef. 419 ; Revell v. Hussey, 2 Ball & B. 280; Lawder v. Blacliford, Beat. 522. ^ Hawlcea v. Eastern Counties Rail- way Co., 1 De G. M. & G. 737, 75o ; S. 0. 5 H. L. 0. 331, 353. In Scottish North Eastern Railway Co. V. Stewart (3 Macq. 382, parti- cularly 401), may be found ex- pressions wliicli appear contrary to tlie statement in the text. But the real point decided in the case was that, on the true construction of the contract, it was conditional on the making of the line. ^ Nickels V. Hancock, 7 De G. M. & G. 300. See infra, § 1592. ^ Wood Y. Griffith, 1 Sw. 43; Weekes v. Gallard, 18 W. E. 331. s 3 Atk. 512 ; S. 0. 1 Ves. Sen. 12. OF THE HARDSHIP OF THE CONTRACT. 185 holding that the covenant was one which in its nature the Court could enforce, yet considered that specific performance would entail so great a loss and hardship on the defendant, and be so useless to the plaintiff, that the Court would not enforce it, whether the defendant had mistaken the sense of the covenant to re-build, or perhaps had even knowingly evaded it. And so again, where a mortgagor had entered into a contract to grant a lease, expecting to obtain the mortgagee's consent, but failed in this, and was in circumstances which rendered him practically unable to redeem : in a suit instituted by the intended lessee, the Court refused specific performance, but granted the alternative prayer of the bill for rescission.^ § 422. Notwithstanding these cases the general Subse- rule seems to be, that events subsequent to the con- events tract, and not so involved in it as to render it unequal ^^p?"'^^ at the time it is entered into, cannot be brought forward piamtife. to show the hardship of enforcing it. But where the subsequent events alleged for this purpose are acts of the plaintiff himself, or events in some sense within his power, the Court may have regard to them in exer- cising its discretionary jurisdiction in specific perform- ance. There are cases in which the Court has con- sidered that, by means of these events, such a change has taken place in the relative position of the plaintiff and defendant, as to render it inequitable specifically to enforce the contract against the latter. § 423. The leading case on this head is The Duke ^"^i%^ of Bedford y. The Trustees of the British Museum,^ heiore Trustees of Plumer M.E. and Lord Eldon. Lord William Eussell ^;;J;;,^^^ and Lady Rachel his wife, being in the occupation of Southampton House (afterwards called Bedford House) as their residence, in 1675 conveyed to Mr. Montagu adjoining land, for the purpose of his erecting on it a mansion, with suitable appendages of gardens and offices ; and Mr. Montagu entered into covenants with Lady Rachel Russell not to use the land in a particular manner, with a view to the more ample enjoyment of the adjoining lands. Lady Rachel Russell, or those 1 Coatiganv. Hastier, 2 Sch. & Lef. 160. 2 2 My. & K. 552. 186 OP THE DEFENCES TO THE ACTION. Plaintiff's subse- quent conduct a trap. Distino- claiming under her, subsequently covered these lands, or a considerable part of them, with houses, and Southampton House was pulled down to make way for streets and buildings. On a motion by the Duke of Bedford, who claimed under Lady Rachel Russell, for an injunction to restrain the defendants, who claimed under Mr. Montagu, from using the land in a way at variance with the covenants of the deed of 1675, Plumer M.R. and Lord Eldon held that the Duke or his predecessors having altered the state of the property in the way mentioned, it would be in- equitable, unreasonable, and unjust, thus to enforce the covenants specifically, and the plaintiff was left to his remedy at Law.^ And so, long acquiescence in a variation from the mode of renewal pointed out by a covenant for that purpose has been held a reason for not specifically enforcing the covenant in its original terms.^ § 434. Where the conduct of the plaintiff subse- quent to the contract has led the defendant into a trap, though the plaintiff's conduct may have been unintentionally injurious, the Court will refuse specific performance. Thus, in one case, the contract for sale of leaseholds liable to a covenant to insure stipulated that the contract should be completed on the 20th July : the insurance expired on the 24th June : one of the vendors renewed for a month only, to the 24th July: the contract in fact was not completed before the 26th August, when the parties met for that purpose, and it was discovered that the insur- ance had expired and the leaseholds had become liable to forfeiture ; and the purchaser refused to complete. Kindersley V.C. held that the property was at the risk of the purchaser: but as the vendors' conduct had operated as a trap to the purchaser, he refused specific performance.^ § 425. It would seem that, in considering the ' See per EnigM Bruce L.J. in Shrewsbury and Birmingham Bail- way Co. T. Stour Valley Railway Co., 2 De G; M. & G. 882. 2 Davis V. Hone, 2 Sch. & Lef. 341 ; Bayers v. Oollyer, 28 Oh. D. 103. ^ Dowson V. Solomon, 1 Dr. & Sm. 1. OF THE HARDSHIP OF THE CONTRACT. 187 hardship which may flow from the execution of a tionbe- contract, the Court will consider whether it is a result patent obviously flowing from the terms of the contract, so ?;nd latent that it must have been present at the time of the con- tract to the minds of the contracting parties, or whether it arises from something collateral, and so far concealed and latent, as that it might not have been thus present to their minds. ^ It is obvious that a far higher degree of hardship must be present in the former, than in the latter class of cases, for it to operate on the discretion of the Court. § 426. The cases which have been already quoted Hardship as showing that the hardship must be judged of at the ^^^^^ time of the contract also illustrate another obvious party principle, namely, that where the hardship has been ""^"^ brought upon the defendant by himself, it shall not be allowed to furnish any defence against the specific performance of the contract,^ at least whenever the thing he has- contracted to do is "reasonably pos- sible."^ § 427. It will not constitute a case of hardship Failure that the ultimate object which a party had in view in f^.^^^f^ entering into a contract may have become impossible : the mere failure of the purchaser's speculation will not discharge him from his obligations to the vendor. Thus, where one person contracted with another for the purchase of a j)iece of land on which he intended to erect a mill, for which the consent of a corporation was requisite, the refusal to give this consent furnished no defence to the purchaser, although he had, in con- sequence of the object he had in view, given a very high price for the ground.* And so also the fact that a mine which the defendant had contracted to take for £1,400 turned out literally worth nothing was ' See e.g. cases stated § 429. 84 ; per Turner V.O. in Wehh v. ^ See ver Lord Hardwicke in Direct London and Portsmouth Rail- Pemhroke v. Thorpe, 3 Sw. 443 n. «'»2/ p"., 9 Ha.^ at p. 140 ; per Lord Eomilly M.E. in Lord James Stuart 3 Per KmgM Bruce V.O. in y, Zondmi and Mrih-Western Mail- Storer v. Great Western Bailway ^^ ^. -g ^ , Co.. 2 T. & 0. 0. 0. 52. 4.1, 1 4. i ■ . . ^ ' '^ -^- "- ^' these last two cases see infra, * Adams v. Weare, 1 Bro. 0. 0. § 986). Distinguish. Bray t. Briggs, 567 ; Morley v. Glavering, 29 Beav. 20 W. E. 962. 188 OF THE DEFENCES TO THE ACTION, held to be no defence to a suit for specific performance of the contract.^ Hardship § 428. In cases against companies, the Court will berrofa ^^^ Consider the hardship which may result to the corpora- individual members from enforcinff a contract made tion. ti by the whole body ; for ' '' the Court cannot recognize any party interested in the corporation, but must look to the rights and liabilities of the corporation itself; "^ and though, as we have seen," the decision of the case in which tliis language was used by Lord Cottenham has been disapproved of in the House of Lords, this principle seems to be untouched, and to rest on solid reasoning. Forfeiture § 429. If the Bxccution of the contract would stanorof' i"6nder the defendant liable to a forfeiture, the Court hardship, will regard this as a circumstance of hardship : so where a man was entitled to a small estate under his father's will, on condition that, if he sold it within twenty-five years, half the purchase-money should go to a brother ; the owner agreed to sell it, but Lord Hardwicke held that the hardship was sufficient to determine the Court not to interfere.* So where a lessee sold certain lots of building ground, and agreed to make a road, which it was found he could not do without incui-ring the risk of forfeiting a piece of leasehold land through which it was to pass, or of being sued by the lessor, the Court, granting the pur- chaser specific performance of the contract for sale, refused to enforce this stipulation, but gave him com- pensation for the non-performance of it.^ Excep- § 430. But the Court will give no effect to this defence unless it clearly appears that the forfeiture will follow on the judgment for specific performance. The mere apprehension of such a result is not enough. Nor will the Court give much, if any, consideration to this defence where the forfeiture is the result of other ' Haywood v. Cope, 25 Beav. 140. § 414. ^ Per Lord Oottenham in Edwards 3 ggg ^jmra § 254, V. arand Junction BaUway Co., 1 , _^^.^^ ^_ ' Brown, cited 2 Ves. My. & Or. at p. 674 ; Hawkes v. Eastern Counties Bailway Co., 1 De Gr. M. & Gr. 737, 754; cf. supra, = Peacock v. Pensow, 11 Beav. 355, tions. OF THE HARDSHIP OF THE CONTRACT. 18.9 acts of the defendant himself. So where a lessee of a theatre, having by his lease power to lease forty-one boxes, agreed to let a box to the plaintiff, and in defence alleged that he had already let forty-one boxes, so that to perform his contract with the plain- tiff would work a forfeiture, his defence failed.^ § 431. To this head of hardship we may perhaps where best refer the cases which establish that, where the ^®o'|fi^''te vendor is liable to certain covenants, and has not left sub- expressly stipulated that the purchaser shall indemnify inability. him against them, yet the purchaser, so soon as he has notice of them, whether by the particulars of sale^ or subsequently to the contract,^ is bound to elect either to rescind the contract or to execute an indemnity to the vendor: for otherwise the vendor would lose his land but retain his liability in respect of it. In the earlier of the cases cited, it was only decided that the purchaser as plaintiff could not enforce specific per- formance without entering into such indemnity ; but in the latter, that the vendor as plaintiff might put the purchaser to his election. § 432. In a case where trustees had joined their otter cestuis que trust in a contract for sale, and had per- ^'''^'^'^^s- sonally agreed to exonerate the estate from the incumbrances, and it did not appear whether the purchase-money would be sufficient to discharge them, or what would be the extent of the deficiency, the Court refused specific performance on the ground of hardship, although the plaintiff had had possession of the estate, and could not be deprived of the benefit of his contract without great inconvenience.* In another case a mortgagee with power of sale had obtained a foreclosure decree, and, intending to sell as absolute owner, entered into a contract for sale to the plaintiff. In the contract there was copied, by inadvertence, from conditions of sale of other parts of the estate drawn up some time before, a clause stating the vendor to be a mortgagee with power of sale : the 1 Helling y. Lumhy, 3 De G. & J. ^ LiAey v. Higgs, 24 L. J. Ch. 493. 495 (Kindersley V.O.). 2 Moxliay v. Inderwick, 1 De Q-. * Wedgwood y. Adams, 6 Bear. & Sm. 708. 600. 190 OF THE DEFENCES TO THE ACTION. vendor offered to convey as owner under the fore- closure decree : the purchaser insisted on a title under the power of sale : but the Court held, that to impose on the vendor the risk of opening the foreclosure decree by such a sale, was a hardship which it would not put on him, and accordingly dismissed the bill unless the plaintiff would accept the conveyance which the defendant was ready to execute.-' LiabUity § 433. But where a tenant for life had agreed to garded grant a mining lease, and to a bill by the intended lessee he objected that he was only tenant for life, and that he could not grant the lease in question under his power, and that he should be accountable for waste, Lord Nottingham appears to have considered this to be no defence, and he decreed the defendant to execute the contract as far as he was capable of doing.^ Misoei- § 434. In one case Lord Hardwicke, on the instTiwea g^ouud of hardship, refused specific performance of a of hard- covouant to Icavc buildings in repair contained in an ^ ^^' ecclesiastical lease, the fact of the description of the buildings being continued from lease to lease without variation showing that the buildings in question might not have been in being at the time of the making of the lease.^ In another case, property described as " eligible freehold property for investment " having been sold by auction, the purchaser discovered before completion that it was being used by the vendors' tenant as a disorderly house. Vendors and purchaser were alike ignorant of this fact at the time of the contract. The Court of Appeal declined to enforce specific perform- ance at the suit of the vendors, Lindley M.R. putting his judgment on the ground that the Court will not compel a man to buy a property which, if he takes no steps to prevent it, will expose him, as owner, to criminal proceedings by 'reason of its state at the time of the sale.* 1 Watson V. Marston, 4 De G. M. ^ Dean of Ely v. Steivart, 2 Atk. & G. 230. 44. 2 Cleaton v. Oower, Finch, 164; * Hope v. Walter, [1900] 1 Oh. but see the cases stated sitpros, § 404 257, 260, reversing S. C. [1899] 1 et seq. Oh. 879. Note, ho-wever, that both OF THE HARDSHIP OF THE CONTRACT. 191 And where a lessee of mines covenanted that if at any time before the expiration of the lease, the lessor should give notice of his desire to take the machinery and stock about the mines, the lessee would at the expiration of the lease deliver the articles specified in the notice to the lessor, on his paying the value, to be ascertained by valuation, the Court held the covenant thus framed to be so injurious and oppressive to the lessee that it refused specific performance, and would not interfere to prevent a breach by injunction.^ Again, where A., in consideration of B.'s not joining in barring an entail, agreed to convey to him, his heirs or assigns, the fee of such parts of the estates, which were situate in three counties, as he or they should choose, to the yearly value of 200/. ; the inconvenience and hardship to which such an option might expose the party who had granted it was one ground on which specific performance was refused by the House of Lords.^ In another case the Court refused to enforce a contract for service by which a young man placed himself almost entirely in the power of certain great traders, by whom he was employed as traveller and clerk.** § 435. Where a contract, if enforced, would make impossi- a man buy what he could not enjoy, the Court will, on enjoying the ground of hardship, refuse to interfere, as in the the thing case of a contract to sell a piece of land to which no ^^^'^ ^^^ way could be shown, the contract itself being silent as to any right of way.* § 436. The principle applies equally to contracts in con- between companies as to those between private in- ^3^°*^^^ dividuals; and therefore where the result of such a eom- contract was to divert from its legitimate channel a p^°^<=^- considerable portion of the profits of one part of the Courts dismissed a counterclaim by 340 ; this case was overruled, but tte purctaser for rescission and on another point, by Lumley t. return of deposit. Wagner, 1 De G. M. & G. 604. 1 m 77 J 7^ 7 10CC 1HO ^ Ziome T. ii'o/' ^i 26 L. J. Ch. 459 J 8 De G. M. & G. Y74. Consider 2 Hamilton v. Grant, 3 Dow, 33, Tomlinson v. Manchester and Bir- 47. mingham Raihvay Go., 2 Eail. C. ' Kimlerley v. Jennings, 6 Sim. 104, 123. 192 OF THE DEFENCES TO THE ACTION. line of one company for the benefit of the other, without securing any corresponding portion of profits of the other line, the Court refused to interfere by way of specific performance, irrespectively of the con- sideration whether such contracts were legally binding or not.^ inade- § 437. The inadequacy of the consideration on the conldera- ^^^^ ^^^^ ^^ ^^^ othor is a form of hardship frequently tion. alleged. This will be considered separately in the next chapter. ' Shrewshury and Birmingham Western Bailway Co., 4:1)6 G.M.. & Raihuay Co. v. London and North G. 115; S. 0. 6 H. L. C. 113. 193 CHAPTER VII. OF INADEQUACY OF THE CONSIDERATION. § 438. We now proceed to inquire how far the How it inadequacy of the consideration for a contract may ^^arin furnish a defence against its specific performance, theeon- The inadequacy may, it is evident, in contracts for sale be either on the side of the vendor or of tlie purchaser ; either in the purchase-money or in the thing sold ; or again, in other cases, it may consist in the inequality of the contingencies to which the con- tract has reference.^ § 439. It has been justly remarked^ that there is Difference a great difference between the defence grounded on oases^rf the inadequacy of purchase-money set up by the vendor vendor, and on the excess of it set up by the pur- ohaser!'^" chaser ; for whilst the Court can ascertain the former by a reference to the general market value of such property, it has no satisfactory means of determining what represents the money value to a particular indi- vidual of a particular estate. § 440. There is no doubt that inadequacy of inade- consideration when combined with any case of fraud, w'lth^other misrepresentation, studied suppression of the true cjroum- value of the property,^ or with any circumstances of oppression, or even of ignorance,* is a most material ingredient in the case, as affecting the discretion of the Court in granting specific performance ; and ' Hamilton v. Grant, 3 Dow. * Young v. Glarhe, Preo. Ch.. 538 ; 33. see also per Kindersley V.C. in 2 Dart, V. & P. (6th ed.) 1210. Falche v. Gray, 4 Drew. 660; Leiuis ' Deane v. Bastron, 1 Ans. 64. y. Lord Lechmere, 10 Mod. 503. F. O 194 OF THE DEFENCES TO THE ACTION. further, it may materially concur in constituting a ^TayhrJ' caso for Setting aside a transaction. Thus, in Cockell V. Taylor,'^ Lord Romilly M.R. set aside an alleged sale of land to the plaintiff, where the consideration was about ten times the value of the land, — the pur- chase having been made the condition of a loan which the plaintiff was very anxious to negotiate in order to prosecute his claim in Chancery to some valuable pro- perty, and he being in humble circumstances and illiterate. "Coupled with such circumstances," said his Lordship, "the evidence of over-price is of great weight, and if the case had stood here I should have been of opinion that this transaction was one which could not stand." ^ Inadequacy of consideration may also concur with other circumstances to show that the transaction was in the nature not of a contract for sale but of a gift, in respect of which therefore the Court would not interfere, as it does not decree the specific performance of incomplete gifts.* inade- § 441. The question however which has been prin- HseuT ^ cipally discussed is the effect on contracts of inadequacy of the consideration taken by itself and abstracted from all other circumstances. Asa § 443. With regard to it as a ground for the fet°tiug*°'^ setting aside of transactions, the doctrine of the Court aside con- is that inadequacy of consideration, if only amounting ^^ ^' to hardship or even great hardship, is no ground for relieving a man ' ' from a contract which he has wit- tingly and willingly entered into;"* but that it may be so enormously great as to be a conclusive evidence of fraud, and that it is then a ground for setting aside the transaction affected by it.® Asade- § 443. Regarded* as a ground of defence to a specmo° specific performance, the doctrine of the older cases perform- -^^s that inadequacy of consideration was a sufiicient ground, it being regarded, even where not amounting 1 loBeav. 103. 388-9; 2 Bro. 0. 0. 179; Fox v. ^ 15 Beav. atp. 116. Mackreth, 2 Dick. 683. See too 3 Callaghan v. Gallaghan, 8 CI. & ^''^"'°^ ^- G'"^^*. 6 De G. M. & G. ^. „^/ 424, affirmed in D. P. 8 H. L. 0. Em. 374. 4gj_ * Ori^th V. Sprathy, 1 Cox, 383, « Stilwell y. Wilhins, Jac. 280. OF INADEQUACY OF THE CONSIDERATION, 195 to evidence of fraud, as a circumstance of hardship which woiild stay the interposition of the Court. Thus, in a case before Eyre C.B., that Judge said that, independently of all consideration of fraud, "the Court upon the mere consideration of its being so hard a bargain will not enforce it."^ So, in a case where there was a contract between two men each sid juris for the sale of an estate worth 10,000/. for 6,000/. down and 14,000/. more, payable at the death of a man aged sixty-four or sixty-five, and there were no circumstances of pressure or circumvention, Lord Alvanley M.R. refused, on a cross-bill, to set aside the contract; but he also refused specific performance of it on the ground of its being a hard bargain.^ And in an earlier case, where a purchaser had, during the South Sea mania, purchased a house under the Court for 10,500/., and paid a deposit of 1,000/., the pur- chaser, submitting to forfeit his deposit, was dis- charged by Lord Macclesfield on the ground of the general delusion which the nation was under at the time of the contract, and the imaginary values then put by people on estates, and this in spite of a most able argument by Lord Nottingham, who argued on behalf of his granddaughters the plaintifi:s.^ § 444. But it appears to have been established by Merein- the decisions of Lord Eldon and Grant M.R., that notT'^"''' mere inadequacy of consideration is no defence to defence. specific performance, unless it amount to an evidence of fraud, and so would furnish a ground even for cancelling the contract.* " Unless the inadequacy of price," said Lord Eldon in one case, " is such as shocks the conscience and amoimts in itself to con- clusive and decisive evidence of fraud in the trans- action, it is not itself a sufficient grotmd for refusing a specific performance."^ And in an earlier case, ^ Tilly V. Peers, cited by Sir S. also Vaughan v. Thomas, 1 Bro. Eomilly arg. 10 Ves. 301. 0. 0. 556. ^ Per Lord Eldon in Stilwell v. 'Day J Newman, 2 Cox, 77; ^..^^_,.,,^^ j^^_ 282; cf. Harrison v. S. a cited by Sir S. Eomilly arg. ^^^^^^_ g -^^ q_ ^_ ^ (. _ ^^4, affirmed ^^"^^^■300. inD.P.8H.L.C.481. ' Savile Y. Savile, 1 P. Wms. 745 ; ^ In Coles v. TrecothicJc, 9 Ves. S. 0. 5 Vin. Abr. 516, pi. 25. See 246. 2 196 OF THE DEFENCES TO THE ACTION. FaXcTee v. Gray, Keason of the rule. where, a sale by auction having taken place for about half the value of the estate, Lord Rosslyn had refused specific performance, Lord Eldon, on a re-hearing, although he ultimately decided the case on a question of evidence, doubted the principle of the decree, and expressed an opinion that a sale by auction could not be set aside for mere inadequacy of price.^ His Lord- ship also applied the same principle in the instance of an annuity transaction.^ The doctrine vs^as adopted by Grant M.R. and Lord Erskine, and is now, it is conceived, the well-established rule of the Court.^ An illustration of it may be found in the case of Abbott v. Sworder,^ where an estate was bought for 5,000^., the value of which was considered by Knight Bruce V.C. to be 3,500^. ; but this inadequacy of consideration was held both by him and also by Lord St. Leonards to be no bar to specific performance, which was accordingly decreed at the suit of the vendor. § 445. One case before Kindersley V.C. must be referred to, as it seems to break the current of autho- rities indicated in the last pi-eceding paragraph. His Honour in that case considered the older cases on the subject, and came to the conclusion that mere inade- quacy of price, without the least impropriety of con- duct on the part of the plaintiff, was a sufiicient defence: and his Honour did not advert to the pro- position that such inadequacy must amount to evidence of fraud, but treated it as one form of hardship which prevented the action of the Court.^ § 446. The general rule, that the hardship of a contract is, independently of fraud, a ground for refusing its specific performance would seem to carry with it the particular rule that inadequacy of considera- tion, when amounting to hardship but not to fraud, should yet be a defence. But there appears (notwith- ■ White V. Damon, 7 Ves. 30. " Underhill v. Horwood, 10 Ves. 209. ' Burrowes v. Loch, 10 Ves. 470 ; per Lord Erskine in Lowther v. Lowther, 13 Ves. 103 ; Collier v. Sroivn, 1 Cox, 428; Boivery. Cooper, 2 Ha. 408 ; Borell v. Bann, 2 Ha. 450. See also Griffith r. Spratley, 2 Bro. 0. C. 179; 1 Cox, 383; Stephens v. Hotham, 1 E. & J. 571 ; Holmes v. Howes, 20 W. E. 310. * 4 De G. & Sm. 448. 5 Falche v. Cray, 4 Drew. 651. OF INADEQUACY OF THE CONSIDERATION. 197 standing an expression of opinion from the Bench to the contrary^) great good sense in refusing to adopt such a rule. To make a contract for an insufficient consideration incapable of enforcement by the pur- chaser, would be practically to prevent a man from selling his property at less than its value, — however impossible it might be to sell it at its value, however desirous he might be to sell it for the price actually obtained, however desirable it might be for his interest that he should do so, and however unwilling or unable the purchaser might be to purchase at its full value. The rule would, when it did not stop the sale, yet further reduce the amount receivable by the vendor, because the purchaser would in effect indemnify himself for the risk he ran by offering less purchase- money than he otherwise would have done. The freedom of contract, including in it the freedom to enter into enforceable contracts, should never be infringed without sufficient cause. But furthermore, if inadequacy of consideration short of fraud were a bar to specific performance, the question would arise as to the amount of inadequacy which should so operate — a question not easy to answer. § 447. In the later Roman law, these difficulties Theia-ws in the way of relieving against inadequacy of con- °„^ °^'^ sideration in certain cases were overcome, at least as ^France. to immoveable property. By a Constitution of the Emperors Diocletian and Maximian, the right of rescission for inadequacy of consideration was first introduced.^ Their Constitution was adopted by Justinian. It fixed the arbitrary standard of half the real price as that which would give the sufferer a right to the interference of the law: when the price paid did not amount to half the real value of the thing sold, the vendor might put the purchaser to his election, either to take back the purchase-money and restore the thing sold, or to keep the thing and make up the deficiency in the purchase-money.^ The old French law adopted the same principle, except in the case of sales between co-heirs and co-proprietors, where a defect of one 1 Nott V. mn, 2 Gas. in Ch. 120. 780. ' Troplong, De la Vente, sect. ' Cod. lib. iv. tit. 44, 2. 198 OF THE DEFENCES TO THE ACTION. quarter of the price had. the same effect as a like defect of one-half in other cases.^ The present law of France is embodied in Article 1674 of the Code Civil, which is remarkable for the stringency of its pro- visions and for the discussion in the Conseil d'Etat of which it was the result, a discussion in which the First Consul took a prominent part.^ It enables a vendor of an immoveable to require rescission, if he suffers injury to the extent of more than seven-twelfths of the price, though he may by the contract have expressly renounced such right, and have declared that the price given is the full value. When in- § 448. The qucstion of the inadequacy of the ts to be°^ consideration must of course be decided at the time of asoer- fho coutract, and not by the light of subsequent ^"^^ ■ events. It is true that, in a case^ already stated, the circumstance of the contract having been made during the excitement caused by the South Sea scheme was allowed as a reason why the Court relieved a purchaser from the performance of his contract ; but the case is one which cannot now be considered as law, and the principle involved seems unjust. It is now therefore well established that the time of the contract is the time for judging of its consideration : thus, to give one example, where an annuity for life forms part of the consideration, and the life drops before any pay- ment is made, this does not render the consideration necessarily inadequate.* Sale at a § 449. Where the contract refers the price to a ^ed.*°^^ valuer for him to ascertain between the parties, this fact does not of itself preclude the Court from inquir- ing into the adequacy of the consideration,^ and this inadequacy of consideration would, of course, be strengthened as a defence if any circumstances arose 1 PotMer, Tr. des Oblig. Part I. tu-ged ; but according to tte report chap. 1, sect. 1, art. 3, § 4. i^ GHbert, the case was decided on » Troplong, De la Vente, sect. 787 ^^^^her point. et seq. e, supra, § 443. * Mortimer t. Capper, 1 Bro. 0. 0. V. See Kien v. Stuhehy, 1 Bro. P. 0. 156. 191, -where the same ground was ' Parhen v. Whitby, T. & E. 366. OP INADEQUACY OF THE CONSIDERATION. 199 which threw a doubt on the accuracy with which the valuation was made.-^ §450. The efEect of an undervaluing by the Effect of valuers is a question which has however been but little yaiuTtion. discussed in our Courts : it has been debated with the usual diversity of opinion by the writers on Civil Law.^ It is conceived that, if the undervalue were such as to convince the Court that the valuers had acted under fraud or mistake, the contract would be incapable of enforcement in Equity : otherwise, if the undervalue did not so convince the Court. § 451. The question of inadequacy of considera- Sales of tion in a sale of reversionary interests, whether arising ^^'^'^^^^°^^- in a suit to set aside the sale or in a suit for the per- formance of the contract, was formerly governed by special considerations. The law upon this question has to a certain extent been altered by statute. It is necessary therefore to consider how the law stood before the legislative alteration, and what is the extent of that alteration. § 452. Before the statute hereafter to be referred Before the to, the defence of inadequacy of consideration in re- ^^yersioua spect of contracts for the sale of reversions had two Act. peculiarities which distinguished it from the like defence in the case of ordinary contracts. It was clear (i.) that the proof of inadequacy was a sufficient defence, though there were no accompanying circum- stances of fraud or oppression, and though the inade- quacy did not amount to evidence of fraud ;^ (ii.) that the burthen of proof lay on the plaintiff purchaser : it rested on him to show that the price was adequate, not on the defendant vendor to show that it was in- adequate.* § 453. The principle on which the Court acted in where these cases was that a man possessed only of a future §[™^o^^® interest sells at a disadvantage : it therefore did not apply. 1 Emery v. Wase, 8 Yes. 505. sub nom. Byle v. Swindells, M'Clel. ^ Troplong, De la Vente, sect. 519. 138. * Peacock y. Evans, and Ryle v. ' Flay ford, v. Play ford, 4 Ha. Brown, uhi sup. ; Kendall v. Beckett, 546; Peacock-7. Evans, l&Yes. 612; 2 E. & My. 88; Hinchsman v. Ryle V. Brown, 13 Pri. 758 ; S. C. Smith, 3 Euss. 433. 200 OF THE DEFENCES TO THE ACTION. Present interest relatively small. Where sale by- auction. The Sales of Eever- sions Act, 1867. apply where the tenant for life and the reversioner concurred, as they together " form a vendor with a present interest " :^ and so where a vendor had a rent- charge of 500^. in possession and an estate in reversion, and he sold a perpetual rent-charge of 500^., he was not considered as within the principle now under consideration, he having it in his power to secure a perpetual rent-charge of that amount in possession.^ § 454. The mere fact, however, that some interest in possession was sold together with the reversion, did not, at least where the former was not considerable, take the case out of the rule ; ^ as, for instance, where an annuity in possession was sold together with the reversion, the estimated value of the annuity being only about one-sixth of that of the reversion.* § 455. Again, the principle did not apply where the reversionary interest was sold by auction ; ^ and this for two reasons. First, " there being no treaty between vendor and purchaser, there can be no oppor- tunity for fraud or imposition on the part of the purchaser. The vendor is, in no sense, in the power of the purchaser."^ Secondly, it being clearly esta- blished that the market price of the reversionary interest, and not the estimate of actuaries, was the criterion by which the Court decided the question of undervalue,"^ and a sale by auction being a mode of ascertaining that market price, it followed that the consideration for the transaction and the value in the eye of the Court must in such cases be one and the same, and that, in the absence of fraud, no question of undervalue could arise. § 456. Such was shortly the state of the law before the Act 31 Vict. c. 4 (the Sales of Reversions Act, 1867). By that Act it was enacted that no purchase, ' Wood V. Abrey, 3 Mad. 417. 2 Wardle v. Carter, 7 Sim. 490. ' Per Lord Eldon in Davis y. DuJce of Marlborough, 2 Sw. 154. * Earl of Portmore v. Taylor, 4 Sim. 182. 5 Shelley v. Nash, 3 Mad. 232. " Per Leach V.C., id. 236. ' Wardle v. Carter, 7 Sim. 490 ; per Wigram V.O. in Borelly. Dann, 2 Ha. 452 ; Earl of Aldborough v. Trye, 7 01. & Fin. 436, 460; Edwards V. Burt, 2 De G. M. & G. 55. Con- sider Perfect v. Lane, 30 Beav. 197; 3 De G. F. & J. 369 ; Lord v. Jeff- Ja'ns, 35 Beav. 7. OF INADEQUACY OF THE CONSIDERATION. 201 made hond fide and •without fraud or unfair dealing, of any reversionary interest in real or personal estate, should thereafter be opened or set aside merely on the ground of undervalue. § 457. As regards actions for the rescission of Effect of contracts for the sale of reversions, the operation of to*a^ionr this Act is clear. It makes mere inadequacy no suffi- for resois- cient ground for relief; but it leaves entirely unaffected "°°' the jurisdiction which relieves against the fraud which infects catching bargains with heirs, reversioners, or expectants in the life of the father. The doctrines of the Coiirt which throw protection round unwary young men in the hands of unscrupulous persons ready to take advantage of their necessities are entirely unchanged.^ § 458. But the Act is silent as regards the specific As to performance of contracts relating to reversions. Does p^rform- it therefore leave the law just as it was? or does anoe. it for all purposes place sales of reversions on the same footing as other sales so far as regards the ques- tion of inadequacy of consideration ? No decision has, it is believed, been given upon these questions : but it is submitted that the true con- clusion is, that every contract for the sale of a rever- sion which cannot be relieved against ought prima facie to be performed ; that the object of the Act was to place bond fide and honest sales of reversions on the same footing as other sales ; and that henceforth in specific performance actions there will rest on the defendant the burthen of proving inadequacy of con- sideration, and such inadequacy as shocks the con- science of the Court and constitutes evidence of fraud, or as is accompanied by other circumstances of oppres- sion or unfairness. § 459. It only remains to add as affording some origin of 1 Tyler v. YaUs, L. E. 11 Eq. v. Kerr, 40 Ch. D. 449; Rae v. 265 ; 6 Ch. 664 ; Earl of Aylesford j^j^^^ 29 L. E. Ir. 500 ; Brtnchley y. Morris, L. E. 8 Ch. 484 ; Bnjnon ^_ ^. .„ gg j^ j_ ^.^ ^^^^^ V. Cooh, L. E. 10 Ch. 389 ; O'Rorke S. C. 82 L. T. 143 (purchase at an undervalue plus unfair dei Fry V. Lane, 40 Ch. D. 312 ; James the part of the defendant). V. Bolinghrohe, 2 App. Gas. 814; Nevill V. Snelling, 15 Oh. D. 679; undervalue jdas unfair deahng on 202 OF THE DEFENCES TO THE ACTION. b'urihe*°f ^^PPort to this conclusion that the rule throwing the proof. burthen of proof of adequacy on the purchaser was adopted in specific performance suits in obedience to decisions to that efPect in suits to set aside the trans- action ; and not on any independent ground affecting such suits in particular.^ 1 See Kendall v. Beckett, 2 E. & My. 884 ; Hiiichsman v. Smith, 3 Euss. 433 ; and notice tie oases there cited and relied upon in tte judgment. 203 CHAPTER VIII. OF WANT OF MUTUALITY IN THE CONTRACT.^ § 460. A CONTRACT to be specifically enforced by Mutuauty the Com't irnist, as a general rule, be mutual, — that is '^ei""''"^- to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them.^ Whenever therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the con- tract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difiiculty attending its execu- tion in the former. § 461. Thus a tenant in tail cannot enforce a con- instances. tract entered into by a tenant for life, because the tenant in tail could not be sued on it : * an infant cannot sue, because he could not be sued,* for a specific performance : ^ a purchaser from a person who ' A very learned and exhaustive ' Armiger v. Glarke, Bunb. Ill ; discussion of tMs topic is to be Sicketts v. Bell, 1 De G. & Sm. 335. found in a series of papers on tbe * " You cannot get specific per- " Defence of Lack of Mutuality," formance against an infant": per by Prof essor William Draper Lewis, Lindley L.J. in. Lumley v. Ravens- publisbed in the American Law croft, [1895] 1 Q. B. at p. 684. Eegister (University of Pennsyl- ^ Flight v. Bolland, 4 Euss. 298. vania) for May, July, August, The case of Clayton v. Aslidown, September, and October, 1901, and 9 Via. Abr. 393, may perhaps be May, 1902. explained on the ground of a ratifi- ^ ~hx Williams v. Williams, L. E. cation by the infant after attaining 2 Ch. 294, 304, there was held to his majority, or as being an appHoa- be mutuality in a verbal family tion in Equity of the legal principle arrangement. Consider Turner v. that the contract, though voidable May, 32 L. T. N. S. 56. by the infant, binds the party of 204 OF THE DEFENCES TO THE ACTION. I at the time of the sale had no estate in, or power over, ythe property sold, or a material part of it, may defend himself on the score of the vendor's original incapacity to perform his part : ^ a father cannot enforce a con- tract on the part of his mother-in-law to pay him an allowance in consideration of his giving up to her the custody of his infant children during a specified part of every year : ^ and where A. agreed with B. not to join in barring an entail, and B. agreed to convey to A. certain parts of the estate on his entering into possession, and it was held, on the authority of Collins V. Plummer^ that such a contract could not be specifi- cally enforced against A., a specific performance of B.'s part of the contract was refused at the suit of A.'s representatives.* To the same principle may, perhaps, be referable the decision in Avery v. Griffin^ (decided in the year 1868), where it was held that a contract entered into by several devisees in trust for sale, of whom one was a married woman, could not be enforced by the purchaser. So where the relief sought was analogous to the specific performance of a grant of an office, the Court held that, the duties and services incident to the office being personal and confidential in their chai'acter, specific performance could not have been decreed against the plaintiff at full age. The infant cannot re- convey the property, being real cover a deposit paid on the con- estate, to the purchaser except with tract, except on the ground of the concurrence of her husband, fraud. Wihon v. Kearse, Peake, and by a deed acknowledged by Add. Cas. 196. her. Ee Harhness & AUsopp's Con- 1 Hoggart v. Scott, 1 E. & My. tract, [1896] 2 Oh. 358. The vali- 293. Of. Forrer v. Nash, 35 Beav. dity of the contract appears not to 167 ; Brewer v. Broadwood, 22 liave been challenged in that case ; Ch. D. 105; Bellamy Y. Dehenham, but, even assuming that the Married [1891] 1 Ch. 413; Lee v. Soames, Women's Property Act, 1882, s. 1, 36 W. E. 884. sub-s. 2, empowers a married woman 2 Kennedy v. May, 11 W. E. 358. 3 1 P. Wms. 104. to enter into such a contract, it wUl not, it is conceived, be specifically enforceable by either side if the 4 Hamilton v. Grant, 3 Dow, 33. husband's concurrence in the con- 5 L. E. 6 Eq. 606. In the case veyance cannot be obtained, unless, of a similar contract made in the indeed, his concurrence is dispensed year 1896, it was held that the with by the Court under sect. 91 married woman trustee could not of the Fines and Eecoveries Act. OF WANT OF MUTUALITY IN THE CONTRACT. 205 the suit of the defendant ; and consequently, that the plaintiff could not sue the defendant, though there were no personal duties to be performed by the defendant.^ Again, where the plaintiffs had agreed to perform certain services in working a railway, which were of such a confidential nature that the Court could not have enforced them if the defendants had sued the plaintiffs ; and the defendants were to pay money, and do nothing else ; the Court refused specific performance, on the ground, amongst others, of want of mutuality.^ The like objection prevailed where the plaintiff sued on a contract under which he was to construct a railway, and offered to make the railway and asked for payment.^ § 462. A doubt was at one time entertained incou- whether there existed the proper mutuality between *^^^*^ a person having entered into a contract to take a lease powers. from a tenant for life with a leasing power and the remainderman:* but that doubt is now resolved, and it seems clear that such a contract may be enforced by either of these parties.^ In Ingle v. Vaughan Jenldns^ specific performance of such a contract was enforced against a remainderman at the suit of the executor of the person who had con- tracted with the tenant for life. The case is interest- ing because of a curious question of merger which arose in it. The first tenant for life under a settle- ment, having power to grant ninety -nine years' building leases, agreed to grant such a lease of a portion of the settled estate to the second tenant for life, at a small 1 Pickering v. Bishop of Ely, 2 Fenelly v. Anderson, 1 Ir. Oil. E. Y. & 0. C. 0. 249. 706. The grounds of this decision ^ Johnson v. Shrewsbury and Bir- do not appear very conclusive. Of. mingham Railway Go., 3 De G. M. Avery v. Griffin, L. E. 6 Eq. 606. & G. 914; Blocker v. Wedd^rhurn, 3 , p,fo ^. Brighton, Uchfield, and E. & J. 393; Ord v. Johnston, 1 Jur. y„„j„-^ ^^n, ^^^^ g ^ jj, N. S. 1063; 4 "W. E. 37 (Stuart & jj;_ 468. V.O.). See also Hill v. Oomme, 1 - ^ t^ n m ■ n i. n T> nAr\ 7> 7 7- jr • (1 "«»■ Ue Grey C.J. in Campbell Beav. 540; Bromley v. Jejenes, 2 r 7, a 1,1 t Vein. 415, sed qu. It has been de- eac , cided in Ireland that a contract by * Shannon v. Bradstreet, 1 Sch. a purchaser with a husband and & I^ef- ^2, particularly 64. See Vidfe is not bad for want of mutu- infra, § 589. ality, and may be enforced by them. ^ [1900] 2 Oh. 368. 206 OF THE DEFENCES TO THE ACTION. groTind rent, upon the latter building a house on the property to be leased. After the house had been built, at a cost of 1,500/., the first tenant for life died, and the second became legal life-tenant in possession ; but the lease was not granted in the latter's lifetime. The remainderman resisted the executor's claim, on the ground that the equitable interest created by the agreement had become merged, or extinguished, in the legal life estate of the termor. It was held, however, that that was not so ; and that, the principle being that a Court of Equity looks to the benefit of the person in whom two interests coalesce, and it being clearly for the termor's benefit that his equitable interest should not merge, there was no merger in Equity. Time at § 463. The mutuality of a contract is, as we have ^'"t'^^iit ^6®^) ^o ^6 judged of at the time it is entered into ; k"obe so that it is no objection to the plaintiff's right, that judged of. ^]-^g defendant may by delay, or other conduct on his part subsequent to the contract, have lost his right against the plaintiff.^ And accordingly it has been held to be no defence on the part of a railway com- pany for them to show that they had after the con- tract suffered the time during which, by their statutory powers, they could purchase the lands to expire : ^ if such a defence were sustained, it would be to allow defendants to take advantage of their own neglect. From the time of the execution of the contract being the time to judge of its mutuality it further follows, that the subsequent performance by one party of terms which could not have been enforced by the other will not prevent the objection which would arise from the presence of such terms.^ 1 South Eastern Bailway Co. v. may probably be taken to be over- Knott, 10 Ha. 122. ruled by his LordsMp's conoiirrence ^ HawJcesY. Eastern Counties Bail- i^ Hawhes' case, in tbe House of wa?/ Co., IDeG. M. &G. 737, 755;' Lords. See also Scottish North- S. C. 5H. L. 0. 331, 365. Tbe ob- Eastern Bailway Co. v. Stewart, 3 serrations of Lord Oranwortb (tben Maoq. 382, where, however, the L. J. ) in Lord James Stuart v. London poiat really determined was one of and North-Western Bailway Co., 1 construction. De G. M. & G. 721, to the contrary, ^ Hope v. Hope, 8 De G. M. & G. OF WANT OF MUTUALITY IN THE CONTRACT. 207 § 464. The exceptions or apparent exceptions and Exoep- limitations to the doctrine of mutuality may now be *'°°^- considered. § 465. (i.) The contract may be of such a nature i. Uni- as to ffive to the one party a right to the performance ^^^^f ^^ , which it does not give to the other,- — as for instance, where a lessor covenants to renew upon the request of his lessee : ^ or where the contract is in the nature of an undertaking.^ But these are merely cases of con- ditional contracts : and when the condition has been performed, as for instance, in the case above stated, by a request to renew, the contract becomes absolute and mutual and capable of enforcement alike by either party.^ § 466. In Wylson v. Dunn,* it was held by Keke- Condi- wich J., that the doctrine of mutuality does not co°ntract. apply to a contract where the vendor had in the first instance told the purchaser, and the purchaser knew from all the circumstances of the case, that the vendor had no title, and was not likely to have one for some time. The learned Judge seems to have considered the contract as a conditional one, which was revocable till the condition was fulfilled, and that it then became binding. § 467. In cases arising out of unilateral contracts, chesterman the Court will exercise its discretion as to specific per- ■*"• ^'^""■ formance with great care, and, it seems, view even somewhat narrowly the conduct of the party claiming the benefit of his unilateral right to make the contract absolute.® § 468. (ii.) Mutuality may be waived by the sub- ii. Waiver. sequent conduct of the person against whom the contract could not originally have been enforced : 731, 746, overruling the observa- H. 424, wliere a conditional con- tions ol Lord EomUlyM.E. ia S. 0. tract had become absolute by the 22 BeaT. 364. exercise of an option of purchase. 1 Chesterman v. Mann, 9 Ha. 206. ^^ ^ ^^^ ™/^^S °* ^ '=°^t^-^°t See Bell y. Howard, 9 Mod. 302, *° S^^'' ^^'^ " ^^'^^ ^^^^^^1' °* ^^''^' o„, see Manchester Ship Canal Co. v. Manchester Racecourse Co., [1901] 2 ^ Palmer v. Scott, 1 E. & My. ch. 37. 391. M4Ch. D. 569. 3 Cf . Weeding v. Weeding, 1 J. & ^ Chesterman t. Mann, 9 Ha. 206. 208 OP THE DEFENCES TO THE ACTION. thus, where a purchaser contracts for an estate with a person having no title, or not such as he affects, to sell, and the contract therefore is not mutual, for want of interest in the vendor, — yet, if the purchaser investi- gate the title and make requisitions, or concur in proceedings for the purpose of remedying the defe6t, he is afterwards precluded from setting up the original want of mutuality in the contract.* Instances. § 469. And SO where, from the relation of the par- ties to one another, the contract is originally binding on the one and not on the other, the latter may by action waive that want of mutuality, and enforce the specific performance of the contract ; as in the case of an action by a cestui que trust against his trustee for the perform- ance of a contract for sale, such a contract being origi- nally binding on the trustee, and not on the beneficiary.^ Before the alteration of the law effected by the Voluntary Conveyances Act, 1893, the case of a con- tract for sale by a voluntary settlor was similar ; for though he was incapable of enforcing the contract against an unwilling purchaser,^ the purchaser might waive the want of mutuality and enforce it against him,* § 470. (iii.) Another apparent exception to the principle in question is afforded by the doctrine which was established very soon after the passing of the Statute of Frauds, that, in case of contracts which by that statute are required to be in writing, a party who has not signed the contract may enforce it against one who has.'^ § 471- It has been alleged in support of this doc- trine, in the first place, that the statute only requires iii. Con- tract signed by one party only. Beasons. > SaUslury v. Hatcher, 2 T. & C. 0. 0. 54 ; Boggart v. Scott, 1 E. & My. 293. ' Ex parte Lacey, 6 Ves. 625. 3 Smith V. Garland, 2 Mer. 123 ; Johnson v. Legard, T. & E. 281 ; Clarke V. Willott, L. E. Y Ex. 313. See, too, Re Garter and Kenderdine's Contract, [1897] 1 Ch. 776, over- ruling Be Briggs and Spicer, [1891] 2 Oil. 127 ; also supra, § 406, and notes there. * Buckle V. Mitchell, 18 Ves. 100; and see Bosher v. Williams, L. E. 20 Eq. 210. ^ Eatton V. Orey, 5 Vin. Abr. 525, pi. 4, in 36 Car. II.; S. 0. 2 Oas. in Ch. 164; Buckhousey. Croshy, 2Eq. Oa. Ab. 32, pi. 44 ; and see, as to the interest of the party who has not signed, Morgan v. Holford, 1 Sm. & Gifl. 101. See too infra, § 515. OF WANT OF MUTUALITY IN THE CONTRACT. 209 the contract to be signed by the party to be charged therewith or his agent, and is silent as to the signature of the other party.^ But this reasoning seems incon- clusive ; because the doctrine of mutuality is indepen- dent of the statute, and where one party has signed and the other has not, the rights of the parties, which before the statute were mutual, have by force of it ceased to be such.^ A more satisfactory reason is that, by instituting proceedings, the plaintiff has waived the original want of mutuality, and rendered the remedy mutual.^ § 473. On the same ground, a contract contained Contract in a deed-poll was enforced, notwithstanding an objec- p"nf^ tion taken from the unilateral nature of the instru- ment.* § 473. (iv.) Where the vendor has not substan- ^^- where tially the whole interest which he contracted to sell, he has only cannot enforce the contract against the purchaser, and pafti^i yet the purchaser can generally enforce it against him by compelling him to convey what he can, with an abatement of the purchase-money as compensation for the deficiency. This subject will be found discussed in a subsequent chapter.^ § 474. In two Irish cases decided by Lord Redes- Doubts dale, in each of which the party seeking to enforce the Redesdaie. contract was at the time when he entered into it aware of the defect in the other party's title," the principle stated in the last preceding section was held not to apply. § 475. In one of these cases, a tenant for life zawrmsm entered into a contract with the plaintiff to grant a V. Butler. ' Coleman v. Upcot, 5 Vin. Abr. M.E. in Western v. Russell, 3 V. & 527, pi. 17 ; GMld r. Comber, 3 Sw. B. 192 ; Martin y. Mitchell, 2 J. & 423 n. ; Backhouse v. Mohun, id. W. 413 ; Flight v. Bolland, 4 Euss. 434 n. ; Beton v. Blade, 7 Ves. 265; 298. Lord Ormond v. Anderson, 2 Ball & * Otway v. Braithivaite, Finch, B. 363. 405. So also of a bond, Butler v. ^ See per Leach V.C. in Boys y. ^"f'' ^ ^\^^^\. Ayerst, 6 Mad. 323. ^^'^^ ^- °^^P- "• § ^257 et seq. ^ That this circumstance is not ^ Child V. Comber, 3 Sw. 423 n. ; necessarily fatal to relief, see infra, Seton V. Slade, 7 Ves. 265; Fowle § 1266; Barker v. Cox, 4 Ch. D. V. Freeman, 9 Ves. 351 ; per Grant 464. F. p 210 OF THE DEFENCES TO THE ACTION. lease, which he could not do without the consent of , trustees : ^ the consent was refused, the contract being i in fact intended to give a fine to the tenant for life in fraud of the power : the intended lessee filed his bill against the tenant for life, and contended that he was at least entitled to such a lease as the tenant for life could grant out of his estate. But Lord Eedesdale dismissed the bill for want of mutuality. " No man," he said, "signs an agreement but under a supposition that the other party is bound as well as himself : and therefore if the other party is not bound, he signs it under a mistake " ; ^ and his Lordship considered that the principle above stated only applies where, on the faith of a contract, one party has put himself in a situation from which he cannot extricate himself, and is therefore willing to forego part of his contract, — where an injury would be sustained by the plaintiff, unless he were to get such an execution of the contract as the defendant could give. Sarnett y. In the other case, Lord Eedesdale further observed upon the specific performance of contracts by a tenant for life exceeding his power.^ " I think," said his Lordship, " Courts of Equity should never enforce such contracts, whether with a view to the party him- self or to the person entitled in remainder. In the first place, it is unconscionable in the tenant for life to execute such a lease, because it brings an incumbrance on the estate of the remainderman, and puts him to litigation to get rid of it : and as to the tenant for life himself, it is compelling him to do what is to be the foundation of a future action for damages, if he die before the twenty-one years. The Court will never do this, but will leave the party at once to bring his action for damages. And I also conceive that this sort of contract, obtained by a person who knew at the time the nature of the title, is unconscionable in him, as he makes himself a party knowingly to that which is a fraud on the remainderman ; and, under such ' Lawrenson v. Butler, 1 Sci. & ^ HarneU v. Yielding, 2 Sch. & Lef. 13. Lef. 649; contra, NealeY. Mackenzie, 2 1 Sch. & Lef. at p. 21. 1 Ke. 474. OF WANT OF MUTUALITY IN THE CONTRACT. 211 circumstances, he has no claim to the assistance of a Court of Equity."! § 476. This view of the jurisdiction is certainly Thepnu- narrower than that entertained by previous Judges :,it weUes- has been remarked to be such by Lord Langdale M.R.,^ tabiished. and has been disapproved of by Lord St. Leonards. " I doubt," said his Lordship, speaking of Lord Eedes- dale's dismissal of the bill in the first of the cases above alluded to, " whether that can be maintained as the law of the Court where there is no fraud in the transaction. If there be a hond fide intention to exe- cute the power, and the contract cannot be carried into effect, I do not see why the interest of the tenant for life should not be bound to the extent he is able to bind it, unless there be some inconvenience."^ And the principle thus stated is now firmly established, not- withstanding the objection for want of mutuality.* 1 2 Sch. & Lef. p. 559. See also ^ Dyas v. Cruise, 2 J. & Lat. 460, 487. P- °^^- ^ See infra, Part V. chap. ii. 2 In Thomas V. Bering, 1 Ke. 746. § 1257. p2 212 CHAPTER IX. OF THE ILLEGALITY OF THE CONTRACT. Illegality a bar to perform- ance of a contract. In foreign contracts. § 477. The illegality of a contract, or of any part of a contract, is of course a bar to its specific perform- ance, as well as to every other proceeding by which either of the parties may seek to enforce it.^ The interference of the Court is prevented, whether the contract was illegal at the time of its being entered into, or was then legal but has been rendered illegal by subsequent statute law before its execution.^ But in the latter case the Court is, it seems, anxious to find some means of executing the contract so far as it may be done without violating the law.^ § 478. In the case of foreign contracts, they must, in order to be enforced here, be legal according to the law of this country ; and this notwithstanding that such foreign contracts may have been made with a view to performance abroad and to foreign laws. It is not enough that they are valid according to the law of the country where they were made. For ''when the Courts of one country are called upon to enforce contracts entered into in another country, the question to be considered is not merely whether the contract sought to be enforced is valid according to the laws of the country in which it was entered into, but whether it is consistent with the laws and policy of the country in which it is sought to be enforced." * ' See infra, § 485. ^ Athinaon v. Ritchie, 10 East, 530, 534 ; Barher v. Hodgson, 3 M. & S. 267 ; Esposito v. Bowden, 4 El. & Bl. 963. See also Winnington v. Briscoe, 8 Mod. 61 ; and infra, §913. ^ BeUeswortJi-v- Dean of St. Paul's, Sel. 0. in Ch. 66 ; 3 Bro. P. 0. 359 ; infra, § 1008. 1 Hope V. Hope, 8 De G. M. & G. 731, 743; per Lord Ellenborougli OF THE ILLEGALITY OF THE CONTRACT. 213 § 479. What constitutes illegality in all the What con- various species of contracts which may exist between megaUty man and man is a subject of enormous dimensions, regulated in part by the statute law of the realm, in part by considerations of public policy,^ and in part even by the rules which the Courts have adopted for the general protection of all suitors.^ It will be need- ful here only to enter into the subject so far as it peculiarly affects actions for specific performance. § 480. A defence founded on the illegality of Peculiar a contract differs in its nature from most other ontT defences: the objection is rather that of the public ^^^'''i'^^- speaking through the Court, than of the defendant as a party to the action. The law disallows all pro- ceedings in respect of illegal contracts, not from any consideration of the moral position and rights of the parties, but iipon grounds of public policy. For if A. and B. enter into a contract for some illegal act to be performed by A., to which both are alike privy, and A. do his part in the business, B. has, it seems, no moral right tO' refuse performance of his part, provided there be nothing immoral in that part abstracted from the general end of the contract ; as, for instance, if, under a contract to ship goods contrary to law, A. ship the goods, B. has no ground in natural equity for refusing to pay the stipulated price : A. and B. were equal in the culpability of the contract, but B. does a fresh wrong by refusing payment : * but it is a wrong for which no remedy is afforded by the law, for ex dolo nialo non oritur actio. "It is not for his (the defendant's) sake," said Lord Mansfield C.J., "that the objection is ever allowed ; but it is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice between C.J. in Potter v. Broiun, 6 East, at amongst tte jurists as to the binding p. 131. nature of the promise, in the case ' As to this class, see Egerton v. ^^°'^^ stated, in foro conscientix ; Lord Brownlow, 4 H. L. 0. 1, and though all agree that it cannot be the cases there collected. enforced. See Grot, de Jur. Bell. ac Pac. lib. ii. c. xi. s. 9; Pothier, 2 Gooth V. Jackson, 6 Ves. 12. j^_ ^^^ q^-^^^^ p^^^ j_ ^j^^p_ j^ 3 There is a difference of opinion sect. 1, art. 3, § 6. 214 OF THE DEFENCES TO THE ACTION. him and the plaintiff, — by accident, if I may so say." ^ Where the defendant has received the benefit of the contract, this defence is evidently an unrighteous one, and will accordingly be received by the Court with some degree of disfavour.^ A-wards. § 481. The principle on which this defence reposes is shown by the cases on the specific performance of awards ; for the illegality of the act directed to be done by the award will be a ground for refusing specific performance, although the unreasonableness of the act would be no ground, it being a decision by the judge chosen by the parties.® It is further illus- trated by this, that where, in a suit for specific per- formance, a fact not put in issue by either party has come out on the evidence affecting the legality of the contract, it has been noticed by the Court, which has not proceeded without directing an inquiry.* How far § 482. As to the clearness of the illegality which g^ty^' "^^^^ ^® ^ ^^^ ^*^ specific performance, there is perhaps must be some slight diversity of expression. In Johnson v. Shrewsbury and Birmingham Railway Co.^ Knight Bruce L.J. laid it down that, before the Court would enforce the specific performance of a contract, it must be satisfied that there is not a reasonable ground for contending that the contract is illegal or against the policy of the law ; and in another case,^ Turner L.J. refused to enforce a contract for sale which he held to have been entered into for the purpose of acquiring the right to set aside a transaction for fraud committed on the vendor to the plaintiff : he declined to deter- mine whether the contract was tainted with champerty or maintenance ; but held that the right to complain of fraud was not a marketable commodity. But in a case on a contract by a solicitor retiring from a firm, to allow his name to be used after his retirement, ' In Edlman v. Johnson, Oo^wp. ^ Wood v. Oriffith, 1 Sw. 43. 343. * Parhen v. Whitby, T. & E. 366; ^ Shrewsbury and Birmingham Evans v. Richardson, 3 Mer.- 469. Railway Co. v. London and North- ° 3 De G. M. & G. 914. See also Western Railway Co., 16 Beav. 44. Oity of London v. Nash, 3 Atk. See also supra, § 335, and of. Wil- 512 ; S. 0. 1 Ves. Sen. 12. made out. V. The St. George's Harbour ^ De Hoghton v. Money, L. E. 2 Co., 2 De G. & J. 647, 558. Ch. 164. trust is consti- OF THE ILLEGALITY OF THE CONTRACT. 215 Lord Hatherley (then "Wood V.C.) observed, " the agreement must be legal or illegal, and it is not within the discretion of the Court to refuse sj)ecific performance because an agreement savours of ille- gality. It must be shown to be illegal."^ § 483. Where a trust is constituted, designed to wh give effect to a contract in itself incapable of being enforced, and the trust is in itself perfectly lawful tuted. and independent of the contract except so far as that may be necessary to explain the constitution of the trust, there the trust may be enforced, and by means of it the contract incidentally performed. This prin- ciple was acted on in the case of Powell v. Knowler,'^ Foweii v. before Fortescue M.R., where A. and B. entered into a contract for the division of an estate to be recovered, which was incapable of being enforced on the ground of champerty, and the party who, according to the contract, was to convey part of the estate to the other, by a codicil directed the contract to be carried into execution, and created a trust for that purpose ; the trust was specifically enforced against the trustee. § 484. The principle of this case is in analogy Theprin- with that of several other cases. Thus where an act, tiated!^^' though the result of an unlawful contract, is itself lawful, it may form the consideration for a lawful contract, as, for instance, the actual transfer of stock, the contract for which was illegal.* Similarly a trustee into whose hands money is 23aid on account of a third person cannot set up the illegality of the trust under which the money was so paid, though the cestui que trust could not have enforced his right against the payer directly, as in that case he could only have got at the money through the illegal contract.* § 485. The position of the Court with regard to Sy^^^^- illegal contracts was stated by Jessel M.R., in Syltes V. Beadon^ as follows : "I think," said his Lord- ship, " the principle is clear that you cannot directly enforce an illegal contract, and you cannot ask the 1 Aulin T. Soli, 2 K. & J. at "W. 636. p. 70. * Tliomaon v. Thomson, 7 Ves. 2 2 Atk. 224. 470 ; Tenant v. Elliott, 1 B. & P. 3. 3 M'Callan v. Mortimer, 9 M. & ^ 11 Oh. D. 170. 216 OF THE DEFENCES TO THE ACTION. Court to assist you in carrying it out. You cannot enforce it indirectly ; that is, by claiming damages or compensation for the breach of it, or contribution from the persons making the profits. realized from it. It does not follow that you cannot, in some cases, recoyer money paid over to third persons in pursuance of the contract ; and it does not follow that you cannot, in other cases, obtain, even from the parties to the contract, moneys which they have become possessed of by representations th9,t the contract was legal, and which belonged to the persons who seek to recover them."i Trade § 486. Trade unions being, apart from the Trade unions. Union Act, 1871, illegal associations, the Court will not, by reason of the terms of section 4 of that Act, at the instance of a member of such an union, enforce a contract contained in its rules for providing benefits for its members.^ 1 11 Ch. D. at p. 197. 977. The Act of 1871 mentioned in the text was amended in various Rigly Y. Coniiol, 14 Ch. D ! ; Wolfe V. Matthews, 21 Ch. D, 195. Of. Duhe v. LiUUhoy, 28 W. E. 1876). respects by 39 & 40 Vict. o. 22 (the 482 ; Wolfe v. Matthews, 21 Ch. D. Trade Union Act Amendment Act, 217 CHAPTER X. OF THE CONTEACT BEING ULTRA VIEES. § 487. CoRPOEATiONS Created for special purposes contraota have a power to contract, but within certain limits ^J^.j^'^^"' only, and all contracts in excess of their powers, or must be ultra vires, are void, and therefore necessarily in- J^^*^™ capable of being enforced in any legal proceeding.^ powers. This subject has of late years undergone great dis- cussion in respect of contracts by railway and other companies. § 488. A contract entered into by such a corpo- But are ration in the proper form is prima facie good, and the tobTg^od. onus lies on the person alleging it to be void to show that it is in excess of the corporation's powers, and not on the person relying on it to show that the corpo- ration was authorized to enter into it. Corporations have by law a power to enter into all contracts not expressly or impliedly prohibited ; ^ and therefore all corporate bodies are prima facie bound by contracts under their corporate seals; "but this prima facie WheTe the right," said Lord Cranworth, " does not exist in any ^on^^' case where the contract is one which, from the nature rebutted. and object of incorporation, the corporate body is expressly or impliedly prohibited from making."^ "Where a corporation," said Lord Wensleydale,* "is ' See Baroness Wenlock v. liiver luich v. Norfolk liailway Co., 4 El. Dee Co., 10 App. Cas. 354, 362; & Bl. 397, 413. 54 L. J. Q. B. 577 ; A.-O-. v. Oreat ^ In Directors, &c. of The Shrews- Eastern Railway Co., 5 App. Cas. hury and Birmingham Railivay Co. at p. 486 ; 49 L. J. Ch. 545 ; Trevor v. Directors, &c. of The North- V. Whitworth, 12 App. Cas. 409, Western Railway Co., 6 H. L. 0. 433 57 L. J. Oh. 28. 135, 136. ' Per Erie J in Mayor of Nor- * In South Yorkshire Railivay and 218 OF THE DEFENCES TO THE ACTION. Shrews- bury, 4-c. Eailway Co. v. L. and N. W. Mailivay Co. created by an Act of Parliament for particular pur- poses, with special powers, their deed, though under their corporate seal, and that regularly affixed, does not bind them, if it appears by the express provisions of the statute creating the corporation, or by neces- sary or reasonable inference from its enactments, that the deed is ultra vires, that is, that the legislature meant that such a deed should not be made." § 489. This doctrine was very fully discussed in a case to which it is proposed now briefly to advert. In the case of The Shrewslury and Birmingham Rail- way Co. V. The London and North- Western Railway Co.^ the contract between the companies was briefly to the elfect that the North- Western Company should give up to the Shrewsbury Company seven-thirteenths of the profits of the carriage of passengers and goods over a part of the North- Western line, in considera- tion of receiving, in return, six-thirteenths of the profits made by the Shrewsbury Company on a certain portion of their line. In the course of the protracted litigation which arose out of this contract, opposing opinions were given by the highest autho- rities as to whether it was ultra vires or not, Lord Cottenham and the Queen's Bench inclining to the opinion of its validity, and Turner L.J. and Lord Cranworth sitting in the House of Lords leaning strongly to the opinion that it was in excess of the powers of the companies. If such a contract was valid as to part of the line, why should it not be valid as to the whole ? and if so, there would be no impediment, it was urged, to two companies bringing their funds into a common stock, and dividing them amongst their shareholders in any stipulated propor- tion. Bive/r Dun Co. v. Great Northern Eaihvay Co., 9 Excli. 84; accord- ingly Bateman v. Mayor, &c. of Ashton-under-Lyne, 3 H. & N. 323. '■ Before Lord Cottenham, 2 Mac. & G. 324; before Lord Truro, 3 Mac. & G. 10; before Q. B., 17 Q. B. 652 ; before Lord Eomilly M.E., 16 Beav. 441 ; before the Court of Appeal in Chancery, 4 De G. M. & G. 115; and in D. P., 6 H. L. C. 113; a.nd see Lancaster and Carlisle Railway Co. y. North- Western Railway Co., 2 K. & J. 293 ; Hare v. London and North- Western Railway Co., 2 J. & H. 80 ; Midland Railway Co. v. Oreat Western Railway Co., 21 W. E. 657. OF THE CONTRACT BEING ULTEA VIRES, 219 § 490. It would be foreign to the objects of this Limitation treatise to discuss the very numerous cases which have cussion. ^' arisen on this doctrine of ultra vires, involving as they almost always do a careful consideration of the statutes in force with regard to the class of corporations in question, the charter or Act of Parliament or memo- randum of association of the particular corporation, and the contract in question in each case.^ § 491. The question of ultra vires as applicable to Difference corporations must be carefully distinguished from the Jj;',^^„^°^s question of ultra vires as applicable to the agents or a corpora- officers of those bodies. An act which is beyond the ^^a^avLs powers of the corporation can never be good and can its agents. never be made good by ratification or acquiescence or in any way short of Act of Parliament.^ On the other hand, an act which is within the powers of the body but beyond the powers of the boai'd of directors or other managers, may and often does become binding on the corporation by its ratification^ or acquiescence : and so again acts which are beyond the powers of the managers except on the observance of certain condi- tions may, if within the powers of the body corporate, be held good by a judicial inference from the conduct of the corporation that the conditions have been observed. The first class of acts are void from the nature of the corporation : the second are objected to as having been beyond the scope of the agent's autho- rity. § 492. Hence it must not be assumed that the Difference question of ultra vires is in all respects the same when ^etween""^ it arises between the members of a company and its corpora- directors, and when it arises between the company and between a third person. corpora- n 1 , tion and S 493. oome contracts are of such a nature that strangers. every one must know them to be beyond the powers where n ,-1 ,• .,1 1 • 1 1 • 1 T ultra vires 01 the corporation with wnicn ne is dealing, as e.g., a is and is contract by a railway company to buy a thousand ^°l^ •I J i. J J defence. ^ See Brice's Doctrine of Ultra ' See Grant v. United Kingdom Yjj.gg_ Switchback Railways Co., 40 Oh. D. 135, 139—140; 58 L. J. Ch. 211; 2 See AshhuryBailway Carriage & i^vine v. Union Bank of Australia, Iron Co. T. Eiche, L. E. 7 H. L. 653. 2 App. Gas. 366 ; 46 L. J. P. 0. 87. 220 OF THE DEFENCES TO THE ACTION. Vendor of land to com- pany not bound to see that it is strictly required. Irregu- larity. gross of green spectacles, or a contract bj a company formed to make a railway from A. to B. for the con- struction of a railway from C. to D. Such contracts as these are equally void, whether the question arise between the company and a stranger or between members of the corporation. But the case is quite different as regards many other contracts which may or may not be really entered into for the purposes of the company. Directors might buy iron rails not really for the purposes of the line but for speculation. This contract would be void as against the shareholders, but might be perfectly good in favour of the vendor to the company. In short, the mere fact that a contract by the directors is idtra vires, as between them and the shareholders, does not necessarily disentitle the other party to the contract from suing upon it. To do so, it is further necessary that the party suing should have known at the time of the contract that it was intended for a purpose unconnected with the incorporation of the company. The nature of the contract will show this in some cases : in others it will not.' § 494. From this principle it follows that, where a public company is authorized to take land for extra- ordinary purposes, a person who agrees to sell his land to this company is not bound to see that it is stiictly required for such purposes ; but if he acts bond fide and without knowledge that the land is not so required, or that the transaction is any misapplication of the funds of the company, the contract is binding in his favour, and may be enforced by him in Equity : ^ and the same holds good where the company, really requiring part of an estate, purchase more than is required.^ § 495. Furthermore a contract will not be void as against a third person dealing bond fide with the corpo- ration, because there may have been the omission to ' Per Lord Campbell O.J. and iion, L. E. 8Ec[. 14; Oreen Y.Nixon, Erie J. in Mayor of Norwich v. Norfolk Bailwaij Co., 4 El. & Bl. 397, 415, 443 ; per Lords Campbell and St. Leonards in Eastern Oounties Railway Co. v. Hawkes, 5 H. L. C. 338, 355, 372 ; Be Contract Corpora- ls Beav. 530; Boyal British Bank V. Turquand, 5 El. & Bl. 248 ; 6 El. & Bl. 327. ' Eastern Comities Bailway Co. t. Hawkes, 5 H. L. C. 331, 349, 355. 3 S. C. OF THE CONTRACT BEING ULTEA VIRES. 221 observe some formality required by the terms of its constitution, or because there may have been some irregularity on the part of the directors or officers of the body entering into it on their behalf. Thus for instance it has been held to be no defence to an action against a company upon a debenture sealed with their common seal that the borrowing of the money thereby secured was not sanctioned by the resolution of an extraordinary general meeting as required by its deed of settlement.* 1 Roijal British Bank v. Turqmnd, L. E. 5 Eq. 316, at p. 322 ; 37 L. J. 5 El. & Bl. 248 ; 6 El. & Bl. 327 ; Oh. 429 ; County of Gloucester Bank Agar v. Athenwum Life Assurance ^^^ j^^^^^ g^^^- q Society, 3 0. B. N. S. 725 ; Grady's ^ -^^ ^ -r -r ^, n 1 -n r. T p Q ^cQ D ■ f [1895] 1 Cli. 629, 633; 64 L. J. Ch. Vase, 1 De G. J. & S. 488 ; Prince of ^ ^ ' ' Wales Assurance Co. v. Harding, 451; Buck v. Toioer Galvanizing El.B. &E. 183. Q%Q, too, Foxmtaine Co., [1901] 2 K. B. 314, 318; 70 V. Carmarthen, &c. Railway Co., l. j_ 2. B. 625. 222 CHAPTER XI. OP THE STATUTE OF FRAUDS AND THEREIN OP PART PERPORMANCE. fectiou § 496. . By the 4th section of the Statute of ofthe^ Frauds^ it is, amongst other things, enacted that no statute, action shall be brought whereby to charge any person ' ' upon any contract or sale ^ of lands, tenements, or hereditaments, or any interest in ^ or concerning them," "unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the part}^ to be charged therewith, or some other person thereunto by him lawfully authorized." It follows from this enactment that the plaintiff suing on a contract in relation to land must prove two things — first, that there was in fact a contract con- cluded between the parties ; and secondly, that there is a sufficient note or memorandum of the contract to satisfy the statute. The writings which have passed between the contracting parties may be most impor- tant evidence of both these propositions : or, again, some of the writings may show that notwithstanding other writings which, if taken alone, appeared to evidence a contract, there was no contract in fact : or, ' 29 Oar. 11. c. 3. ctarge on a company's landed „ , , ,. ,. , property is a contract for an inte- ^ As to the grammatical con- ^^^^ -^ ^^^^ ^.^^ ^^ ^^^^^^ . struction of tL.s clause see per ^„.^^^ ^_ ^^^^^^ ^ ^ ^ Eav J. m McManus v. Cooke, 35 con>ri^ a j. t • r ■' _ oci9, 744. bee, too, Jams Y. Jarvis ^' ' (machinery consisting of trade 3 A contract for the sale of fixtures), [1893] W. N. 138; 63 debentures containing a floating L. J. Ch. 10 ; 69 L. T. 412. or THE STATUTE OF FRAUDS. 223 again, the parol evidence may show that, though there is an apparent memorandum of contract, there was in fact no contract. § 497. This 4th section affects not the contract The itself, but the right of either party to sue the other refei^to upon it ; and it was decided in Leroux v. Brown ^ that ^^^ p™- it refers not to the solemnities of the contract, but to ''^ ^^' the procedure, and consequently that an action will not lie in this country on a contract made in a foreign country, and valid there, which, if made here, would have been incapable of being sued on by reason of this section. " The statute relates to the kind of proof required in this country to enable a plaintiff suing here to establish his case here. It does not relate to lands abroad in any other way than this : it regulates procedure here, not titles to land in other countries."^ The decision in Leroux v. Brown^ though still law, has not escaped criticism,^ and is difficult to reconcile with the well settled rule* which requires that the writing relied on as taking a case out of the statute should be in existence before action brought ; a re- quirement which would be unreasonable and contrary to the usual practice, if it related only to procedure and did not go to the solemnities of the contract. § 498. It is obvious that in many cases a defence The to an action for specific performance may be grounded of^g^*^ upon this 4th section of the Statute of Frauds. It is defence. therefore proposed to consider (i.) how such a defence i^ivision may be raised, and (ii.) what constitutes a sufficient subject. agreement or memorandum or note of agreement within the meaning of the statute. And as, notwith- standing the express language of the statute, it was held by the Court of Chancery and is now the law of the land that certain circumstances may preclude a ' 12 0. B. 801. required by the 4tli section is matter ^ Per Lindley L.J. in Rochefou- of procedure in the judgment of the caidd V. Boustead, [1897] 1 Oh. at Queen's Bench Division in Jones v. p. 207. Victoria OravingBocJc Co., 2 Q.'B.D. 3 Williams v. Wheeler, 8 0. B. at p. 323. N. S. 299, 316 ; Oibson v. Holland, * Bill t. Bament, 9 M. & W. 36 ; L. E. 1 C. P. at p. 8. The case is, Lucas v. Dixon, 22 Q. B. D. 357 ; howoTer, cited as an authority for Be Holla7id,OreggY. Holland, [1902'] the proposition that the signature 2 Oh. 360, 375. 224 OF THE DEFENCES TO THE ACTION. defence founded upon the statute, it is necessary to consider a third question, namely, (iii.) what, accord- ing to the principles of Equity, takes a contract out of the statute. Former practice. The pre- sent prac- tice under theE.S.O. Benefit of statute must be claimed. How to be claimed. i. How the defence may be raised. § 499. Before the Judicature Acts, the defence of the Statute of Frauds was raised in Chancery by demurrer or plea or answer, or plea and answer, according to circumstances, which it is not now neces- sary to consider. For by the effect of those statutes and the Rules of the Supreme Court, demurrers, pleas, and answers have all disappeared, and a uniform system of pleading has been introduced into both Divisions of the Court. § 500. Ord. XIX. r. 20 provides that when a contract is alleged in any pleading, a bare denial of the contract by the opposite party shall be construed only as a denial in fact of the express contract alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, whether with reference to the Statute of Frauds or otherwise. Again, Ord. XIX. r. 15 refers to the Statute of Frauds as one of the things which must be expressly raised by the pleadings of the party who desires to obtain its benefit. § 501. In cases, therefore, in which pleadings exist the Statute of Frauds must be expressly raised by the pleading of the person who seeks to use it as a defence. In any case arising under proceedings in a summary manner where there are no pleadings, the statute should be set up by affidavit or otherwise as the circumstances may admit. § 502. It is not necessary that the defendant should claim the benefit in the very words of the statute ; but he must claim it in words equivalent, so as to call the attention of the other party to the circum- stance that the benefit of the statute is claimed.^ 1 Per Wigram V.O. in Beatson v. Nicholson, 6 Jur. 621. Of. as to tlie distinctness of pleading now re- quired, Byrd v. Nunn, 7 Ch. D. OF THE STATUTE OF FRAUDS. 225 § 603. If the plaintiff delivers a statement of claim, J^^'^^f and the defendant delivers no defence, it appears clear nTakL ^" that the defendant cannot set up the statute at the '^^g^^J*^" hearing of the plaintiff's motion for judgment, for then the Court is to give such judgment as upon the statement of claim the Court shall consider the plaintiff to be entitled to.^ ii. What satisfies the statute. § 504. The object of the Statute of Frauds being. Written as regards the contracts now under consideration, to statement. prevent the mischief arising from the resort to parol evidence to prove the existence and the terms of the alleged contract, it is obvious that the mischief is avoided wherever there exists, under the hand of the party sought to be charged, a written statement containing, either expressly or by necessary inference, all the terms of the contract,' — that is to say, the parties (described either by names or descriptions or reference sufficient to preclude any fair dispute as to their identity),^ the subject-matter of the contract,^ the consideration,* and the promise,^ — and leaving nothing open to future treaty.^ § 605. This therefore is sufficient to satisfy the Nature statute, and provided this be found, no formality is document required, nor does it signify at all what is the nature imma- 284 ; James v. Smith, [1891] 1 Oh. where a plan on which the parties, 384, aflarmed [1891] W. N. p. 175, contemporaneously with their sig- in which case it was held by Keke- nature of the contract (which did wich J. that, though the defendant not refer to any plan), signed a need not have pleaded a particular memorandum referring to the con- section of the statute, still he, hay- tract, was held to be sufficiently ing pleaded the 4th section, could incorporated with the contract, and not be allowed to amend his defence to control the description in it. at the trial by pleading the 7th , ..^ ^^^^^ract in writing must section. express as part of the contract the 1 See E. S. 0. Ord. XXVII. r. 11. eonsideration " : per CHtty L.J. in ^ Potter V. Duffield, L. E. 18 Eq. ^^ Kharaskhoma, &c. Syndicate, 4. See, for a further discussion of |-^g9^-] ^ qj^_ ^^ ^_ ^^^_ the mode of description. Part III. chap, iii., where the cases are cited. ^ Laythoarp v. Bryant, 2 Bing. ^ See Nene Valley Drainage Com- N. 0. 735. missioners v. Bunhley, 4 Ch. D. 1, " Ogilvie v. Foljambe, 3 Mer. 53. 226 OF THE DEFENCES TO THE ACTION. The writ- ing must express a concluded contract existing at the time when the memo- landum was signed. or character of the document containing such written statement, — whether it be a letter written by the party to be charged to the person with whom he contracted, or to any other person, or a deed, or other legal instrument, or an affidavit.^ " The Court is not in quest of the intention of parties, but only of evidence under the hand of one of the parties to the contract that he has entered into it. Any docu- ment signed by him and containing the terms of the contract is sufficient for that purpose."^ The question of what is necessary to be agreed upon, and therefore what is necessary to be expressed, in order that a written memorandum shall be evidence of a completed contract, will be found more fully dis- cussed in the chapter^ on the Incompleteness of the contract. § 506. There is of course no binding contract when the writing appears only to be terms agreed on as a basis for a contract, and not the contract itself ; * or where it provides that any of the terms are after- wards to be settled,® or where the matter is uncon- cluded, and one party may still withdraw his consent ; ^ or where there appears any design of further negotia- tion ; '' or where one of the parties was at the time when the memorandum was signed — which is the point of time at which the statute requires the plaintiff to prove a concluded contract existing^ — incapable of contracting bindingly.^ Therefore where the pur- ' Barkworth v. Young, 4 Drew. 1, 14. Of. Moritz v. Knowles, [1899] W. N. 40 ; reversed in C. A. ihid. 83. ^ Per Bowen L.J. in Re Eoyle, [1893] 1 Oh. at p. 99. In the same case (at ,p. 100) A. L. Smith L.J. intimated that an entry in a man's own diary, if it were signed by him and the contents were sufficient, would do. 3 Part III. chap. iii. And see Blaheney v. Eardie, I. E. 8 Eq. 381 ; Carrigy v. Brock (collateral contract), I. E. 6 0. L. 501. * Frost V. MouUon, 21 Beav. 596. ^ Wood V. Midgley, 5 De G. M. & G. 41. ° Earl of Olengal v. Barnard, 1 Ke. 769; affirmed as Lord Olengal V. Thynne, St. Leon. Law of Prop. 56. See too Hussey v. Horne-Payne, 4 App. Cas. 311. ' Tawney y. Crowther, 3 Bro. 0. 0. 318 ; Stratford v. Bosworth, 2 V. & B. 341 ; Wilcox v. Bedhead, 28 W. E. 795. ^ Munday v. Asprey, 13 Ch. D. at p. 857. ' Avery v. Orlffin, L. E. 6 Eq. OF THE STATUTE OF FRAUDS. 227 chaser's solicitor offered 25,000/. for the purchase of an estate, which the defendant's agent accepted, " subject to the terms of a contract being arranged between his [the vendor's] solicitor and yourself," the Court considered this to be a contract to enter into a contract with respect to which some terms were already- agreed on, and the rest were to be settled by future arrangement, and that if they could be agreed on, this was to become a valid contract: but such a contract never having been come to, the Court dismissed the purchaser's bill asking for a specific performance.^ On this principle the approval of a draft does not of itself constitute a contract.^ § 507. The Court will refuse to act even where Treaty it only "rests reasonably doubtful whether what passed °^^' was only treaty, let the progress towards the confines of agreement be more or less."^ § 508. But the mere fact, though appearing on -^^ formal the paper, that a more formal contract is intended to intended. be executed, will not prevent a paper duly signed and containing all the terms from being a contract, any more than will a reference to deeds thereafter to be executed.* Therefore where A. wrote to B., "I offer you 3,000/. for the estate," and B. replied, " I accept your offer, and if you approve of the inclosed, sign the same, and I will on receipt of the deposit sign you a copy," (the inclosure was not produced), the Court 606 (decided in tlie year 1868). Of. 683 ; and GliipperfieU t. Carter, 72 Re ' Harhness & AUsopp's Contract, L. T. 487 ("lease to be approved in [1896] 2 Ch.. 358. tlie customary way by my soli- 1 Honeymanv. Marryaf, 21 'Bea.Y. citor"). 14 ; S. C. 6 H. L. 0. 112. See too 2 2)oe d. Lamhourn v. Pedgriph, WintiY. Bull, 7 Ch. D. 29. Whether 4 Q^r. & P. 312. the expression in the memorandum that the contract is subject to the approval of the title by the pur- chaser's solicitor is enough to make * Foivle v. Freeman, 9 Ves. 351 ; the contract conditional appears Kennedy v. Lee, 3 Mer. 441. See doubtful. Com.pare the observations per Lord Cranworth in Ridgway v. of Lord Cairns in Hussey v. Home- Wharton, 6 H. L. C. 264 ; per Lord Payne, 4 App. Cas. at pp. 321, 322, LangdaleM.E. ia Thomas y. Bering, with the judgments of the Court of IKe. 741; Cowley j. Watts, VI Jux, Appeal in S. 0. 8 Ch. D. 675 et seq. 172 ; Gray v. Bmith, 43 Oh. D. 208 ; See also Hudson v. BiicJe, 7 Ch. D. and sujpra, § 293. ' Per Lord Eldon in Huddleston Briscoe, 11 Ves. 592. 228 OF THE DEFENCES TO THE ACTION, lield that there was a binding contract, and treated the inclosure as a mere means of carrying that contract into effect:' and in another case, a correspondence about the taking of a house was held to constitute a sufficient contract, though the agent of the lessor accepted the offer thus, '• These terms I have submitted to Mrs. S., and I am authorised to say they are ac- cepted, and that her solicitor will draw up a proper agreement for signature, which I will forward to you."^ Where the § 509, But whercver the formal contract contem- ment not plated is to bc anything more than merely ancillary to binding, ^j^g j,gg^| contract, — wherever any new term not ex- pressed or implied in the earlier contract might be introduced into the formal one, the first document will not by itself be binding. And wherever the concluded nature of the arrangement does not evidently appear on the writings, the fact that a subsequent and more formal contract was entered into will be strong evi- dence that the previous negotiations were not intended to amount to a contract.^ cunnocJcY. § 610. In the case of Chinnock v. The Marchioness Ihim^sT' '^f Ely^ the plaintiff had proposed certain terms of pur- ofEhj. chase to the defendant's agents, who had replied to the plaintiff that they were instructed by their client to proceed with the sale to him, and that a draft con- tract was being prepared and would be forwarded to him for approval in a few days. It was contended on the plaintiff's behalf that this letter clearly recognised the fact that there had been a complete sale to him, and also amounted to a distinct acceptance of certain terms previously stated by him in writing. But it was held by Lord Westbury that the true meaning of the letter was that the defendant was willing to accept the plaintiff's terms, if the plaintiff would agree to the draft contract about to be sent to him. "I entirely accept," said his Lordship,® " the doctrine contended for by the plaintiff's Counsel, and for which they cited ' Oihbins v. North Eastern Metro- ^ Ridyway v. Wharton, 6 H. L. 0. politan Asylum District, 11 Beav. 1. 238, and particularly pp. 268, 305. == Skinner v. M'DouaU, 2 De G. & * 4 De G. J. & S. 638. Sm. 265. M De G. J. & S. 645. OF THE STATUTE OF FKAUDS. 229 the cases of Fowle v. Freeman,^ Kennedy v. Lee,"^ and Thomas v. Bering,^ which establish, that if there had been a final agreement, and the terms of it are evi- denced in a manner to satisfy the Statute of Frauds, the agreement shall be binding, although the parties may have declared that the writing is to serve only as instructions for a formal agreement, or although it may be an express term that a formal agreement shall be prepared and signed by the parties. As soon as the fact is established of the final mutual assent of the parties to certain terms, and those terms are evidenced by any writing signed by the party to be charged or his agent lawfully authorised, there exist all the materials, which this Court requires, to make a legally binding contract. Biit if to a proposal or offer an assent be given subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of that stipulation." § 511. The law upon this point has been sum- The law marised as follows by Jessel M.R. : * — jetsd ^ "■ It comes, therefore, to this, that where you have ^■^• a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says ; it is subject to and is dependent upon a formal contract being prepared. When it is not expressly stated to be subject to a formal contract it becomes a question of construction, whether the parties intended that the terms agreed on should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail." In that case accordingly a writing purporting to be a contract for a loan, but expressed to be "made sub- ject to the preparation and approval of a formal con- tract," was held not to be a concluded contract.^ 1 9 Ves. 351. Provand, L. E. 2 P. 0. 135 ; Watts 2 3 Mer. 441. v. Ainaworth, 31 L. J. Ex. 448 ; ' 1 Ke. 729. Heyworth v. KnigM, 33 L. J. C. P. * In Winn v. Bull, 7 Ch. D. at 298 ; Eawksworth v. Cliaffey, 55 p. 32. See Rwmmena v. Rohins, 3 L. J. Oh.. 335. De G-. J. & S. 88; Oxford v. ' See too Brien v. Swainson, I 230 OF THE DEFENCES TO THE ACTION. Crossley v. Maycock. Solicitors ' ' to pre- pare con- tract." Rossiter v. Miller, Agree- ment by one party only. § 512. " If," said Jessel M.R. in another case, '' there is a simple acceptance of an offer to purchase, accompanied by a statement that the acceptor desires that the arrangement should be put into some more formal terms, the mere reference to such a proposal will not prevent the Court from enforcing the final agreement so arrived at. But if the agreement is made subject to certain conditions then specified or to be specified by the person making it, or by his solici- tor, then, until those conditions are accepted, there is no final agreement such as the Court will enforce."^ § 513. In a case in which estate agents received an offer for sale, and replied that they were instructed to accept it, and had asked their principal's solicitor " to prepare contract," it was held that notwithstand- ing these words the acceptance was complete.^ § 514. In the case of Rossiter v. Miller,^ the agent of the plaintiffs (vendors) wrote to the defendant (pur- chaser) reciting a parol offer which the defendant had made to him, and accepting it on behalf of the plain- tiffs, and said : "I have requested Messrs. H. & M. to forward you the agreement for purchase." The pur- chaser replied in terms of acceptance ; and it was held by the House of Lords that the contract was complete, notwithstanding the expressed intention to forward a formal contract. § 515. The statute requiring that the agreement, or the memorandum or note thereof, shall be signed by the party to be charged therewith, or his agent, and not requiring that it shall be signed by both parties to the contract, it has been held, both in Courts of Equity* and also in Common Law Courts,^ that a signa- L. E. Ir. 135; also Lloyd v. Nowell (wiere it was held that the vendor could not waive such a stipulation), [1895] 2 Oh. 744; 44 W. E. 43; and Page v. Norfolk, 38 Sol. Jo. 205. 1 Crossley v. Maycock, L. E. 18 Eq. at p. 181 ; followed in Jones v. Daniel, [1894] 2 Ch. 332. ^ Bonnewell v. Jenkins, 8 Oh. D. 70. ^ 3 App. Oas. 1124, reversing the decision ol the Court of Appeal, 5 Oh. D. 648. So too North v. Per- cival, [1898] 2 Oh. at p. 132, and Filby V. Hounsell, [1896] 2 Oh. at p. 742. Of. the observations of James L.J. in Smith v. Webster, 3 Ch. D. at p. 56, and distinguish Brien v. Swainson, 1 L. E. Ir. 135. ^ See sv^ra, § 470. 5 Egeriony. MathewSy&'Ea.Bt, 307; OF THE STATUTE OP FRAUDS. 231 ture by the party against whom the contract is sought to be enforced is sufficient. § 516. The statute requires a signature and not a Signatm-e. subscription;^ therefore all that is requisite to satisfy the statute as to the signature is, that the name be inserted by the party in such a manner as to govern and authenticate the entire instrument. Accordingly, a letter beginning "Mr. Foljambe presents his com- pliments " was held duly signed.^ The same was the case where A. wrote "A. has agreed," &c. ;^ and where B. wrote " A. agreed with B.," &c.* An affi- davit made by a person has been also held sufficient.^ § 517. The signature must be the actual writing Must be of the name, or the doing of some act intended by the o{^he^°° person to be equivalent to the actual signature of the name. name, such as the mark by a marksman. Therefore a letter beginning " My dear Eobert," and concluding with the words " Do me the justice to believe me the most affectionate of mothers," was held not to be signed within the statute.® ■§ 518. A signature in pencil is not necessarily in pencil. deliberative, and may be equally binding within the statute as one in ink.'^ And even a printed name may in print. avail ; so that where a vendor inserted in a printed invoice with his name on it the name of the purchaser, it was held that there was such a ratification and adoption of the printed name as made it a signature, and satisfied the statute.® In like manner a stamp may no doubt be used for the purpose of signing.^ And the writing of the name of the sender of a tele- Allen V. Bennet, 3 Taunt. 169; Lay- * Selby v. Selby, 3 Mer. 2. thoarp V. Bryant, 3 Bing. N. 0. 735. ' Lucas v. James, 7 Ha. 410, 419. See tte editors' n. to Bweet v. Lee, 3 ^ Schneider v. Norris, 2 M. & S. Man. & Gr. 462. 286 ; per Lord Eldon in Saunderson ^ Per Lord Westbury in. Gaton v. v. Jachson, 2 B. & P. 239 ; Torrtty. Galon, L. E. 2 H. L. 142. Crimps, 27 W. E. 706 ; 48 L. J. Ch. ^ Ogilvie-^. Foljamhe,%MjSiX. bZ. 567. Distinguisli-HMc^fe6?/v. -Hbo/i;, 3 Propert v. Parher, 1 E. & My. [1900] W. N. 45 ; 82 L. T. 117. 625. See also Western -■^. Bussell, 3 ' BennettY.Brumfitt,'L.'R.3 0.'P. V. & B. 187 ; Morison v. Tumour, 28. See also 1 Mad. Ch. 376, and 18 Ves. 175. the illustratiou tliere given from the * Bleahley v. Smith, 11 Sim. 150. stamping of Letters Patent by King 5 Barkujorthy. FoMn^r, 4 Drew. 1. WilHam III. 232 OF THE DEFENCES TO THE ACTION. Initials. How far intent to sign neceS' sary. gram by the telegraph clerk, where the sender had himself signed the instructions for the message, has been held to be a good signature by an agent in that behalf.i It seems too that the setting down of the initials may be a sufficient signature.^ § 619. It cannot be denied that there is some conflict of authority on the question how far the writing of his name by the party must be with the intent of signing. There is authority for the pro- position that such a writing, even with a different intent, may amount to a binding signature. " It has been decided," said Lord Eldon (then Lord Chief Jus- tice of the Court of Common Pleas), " that if a man draw up an agreement in his own handwriting, begin- ning ' I, A. B. agree, &c.,' and leave a place for a signature at the bottom, but never sign it, it may be considered as a note or memorandum in writing within the statute. And yet it is impossible not to see that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete until it was further signed ; " ^ and in a subsequent case his Lordship said: "It is true, that, where a party, or principal, or person to be bound, signs as, what he cannot be, a witness, he cannot be understood to sign otherwise than as principal." * But in other cases the Courts have had regard to the intention of the writing alleged to operate as a signature. The Court of Queen's Bench on this ground held that a person capable of being a witness, and signing as such, will not be bound by the instrument as a party, or as agent of a party : ^ and where the ' Godwin v. Francis, L. E. 5 0. P. 295. ' See Phillimore v. Barry, 1 Oa. 513; Jacol v. Kirh, 2 Moo. & E. 221; Sweet v. Lee, 3 Man. & Grr. 452;— cited St. Leon. Vend. 116. ^ In Saunderson v. Jackson, 2 B. & P. 239 ; referring apparently to Knight v. Cuchford, 1 Esp. 190 (Eyre O.J.). * Coles V. Trecothich, 9 Ves. at p. 251. In Welford v. Beazeley (3 Atk. 503) it appears that tlie person who subscribed the articles as witness, and was held bound by the signature, was not a party to the articles. 5 OosUll V. Archer, 2 A. & E. 500, w;here the Court doubted the above dictum of Lord Eldon in Coles v. OF THE STATUTE OF FRAUDS. 233 naaies were written at the beginning of a paper embodying a contract which conckided with the words " as witness our hands," and no signatures followed, it was considered by the Court of Common Pleas not to satisfy the statute, because the concluding words evidently showed an intention that the paper should be signed at the foot.^ § 520. Some points however are clear. It is clear incidental that the incidental introduction of his name by the t"on°of"' party to be charged for some distinct and different name tor purpose will not do : as where A. wrote on a memo- p,^poTe! randum for a lease the words " the rent to be paid to A. : " it was held to be no signature by him.^ '*I adhere," said Lord Selborne in the House of The Lords," " to what I said, when sitting in the Court of weapon^of Chancery, in the case of Jervis v. Berridge^^ that the defence, Statute of Frauds ' is a weapon of defence, not offence,' fence. and ' does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real intention of the parties.' " § 521. The same principle was affirmed by the Caton^. House of Lords in the case of Caton v. Caton^ where '^"'™" specific performance was sought of certain heads of arrangement set out in a written memorandum and there called ''conditions of a basis for a marriage settlement mutually agreed upon in the event of marriage between the undermentioned parties ; " the parties so referred to being the plaintiff, then a widow, and the writer of the memorandum, who subsequently became her husband, and whose estate was sought to be charged. The document was not signed by the writer, but his name and initials appeared incidentally in several parts of it ; and it was argued for the plain- TrecotJiich ; but see the observations ^ In Huasey v. Home-Payne, 4 of Lord St. Leonards, Vend. 116. App. Cas. at p. 323. 'i L. E. 8 Oh. at p. 360. See, too, > Habert v. Treherne, 3 Man. & ^^^ g^^.j^^^ j_ -^ p,^^^^^ ^ ^^^^._ Gr.'743; 8. G. s.n. Iluhertr. Turner, ^^^^j^^ ^^gg^^ ^ Ch. at pp. 30, 31 4 Scott, N. E. 486. Of. Beg. v. (defendant's signature not final- Tart, 28 L. J. Q. B. 173. ^^ contract), referring to Pym v. 2 Stokes V. Moore, 1 Cox, 219 ; Campbell, 6 E. & B. 370, 373. Hawkins v. Holmes, 1 P.Wms. 770, « L. E. 2 H. L. 127. 234 OF THE DEFENCES TO THE ACTION. tiff that his name and initials, occurring as they did below the words " undermentioned parties, ""were suffi- ciently connected with those words to enable the Court to treat the document as a memorandum signed by him within the statute. The argument however was unsuccessful. " If," said Lord Westbury, in the course of his speech,* " a signature be found in an instrument incidentally only or having relation and reference only to a portion of the instrument, the signature cannot have that legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum." Actual § 522. On the other hand, it seems that if there wftiTiu^* be an actual signature written with the intention of te"t to signing or authenticating the document, it is not the catethe' less Operative because the signature was attached for document, g, purpose different from that of satisfying the statute.^ Thus, in a recent case in the Queen's Bench Division, the signature by the chairman of a board of directors in their minute book, pursuant to the 67th section of the Companies Act, 1862, of a resolution of the board to the effect that a particular draft contract should be engrossed and executed, was held to operate as a sufficient signature within the statute, so as to bind the company to an admission of the contract, notwith- standing that the chairman's signature had been put to the minute merely in order to verify its accuracy and without any intention of attesting or verifying the contract.^ " The question," said Lush J. in de- livering the judgment of the Court, " is not what its [the minute's] object was, but whether it was a written and signed statement of the contract." * Eiey^.The § 523. But in another case, that of Eley v. The ^Tassut- Positive Government Security Life Assurance Co.^ the mce Co. question being whether a clause contained in the Articles of Association of a company to the effect that a particular person should be the solicitor of the ' L. E. 2 H. L. at p. 143. ^ Joms v. Yidoria Graving Bock Co., 2 a B. D. 314. ^ See however per Lord Selborne « 2 Q B D at d 324 in Hussey v. Home-Payne, 4. App. s i Ex. D. 20. See also Browne Cas. at p. 323. v. La Trinidad, 37 Ch. D. 1. OF THE STATUTE OF FRAUDS. 235 company, was a contract with this person, the Judges of the Exchequer Division held that if it was such a contract at all, the signatures affixed to the Articles having been affixed alio intuitu could not satisfy the statute. In the Court above ^ the case was disposed of irrespective of the statute, on the ground that the Articles of Association were a matter between the shareholders inter se or the shareholders and the directors, and did not create any contract between the solicitor and the company. § 524. It is submitted that no writing of a name Sugges- at the beginning, or end, or in the course of a paper, thTtrue" is a signature within the statute, unless the Court principle. conclude that it was there placed with the intention of authenticating the entire paper : but that if there be such a writing of a name, it is immaterial whether the signature Avas attached with the intention of evidencing the contract or for any other purpose whatever.^ All motives, objects, and purposes beyond that of authenticating the paper are immaterial.^ § 525. Where the contract purports to be signed -^-gent. by an agent, it must be alleged and proved by the plaintiff that the person who signed as agent was authorized to act as agent for the purpose of con- cluding a binding contract of the nature of the contract set up.* It is not enough in the case of a sale that the agent was appointed to negotiate for a sale : ® it is not enough that he was appointed as the person to whom intending purchasers were to apply to treat and see the property : * and further it has been 1 1 Ex. D. 88. Ridgway v. Wharton, 3 De G. M. & ^ See Evans y. Hoare, [1892] 1 ^- ^^^J 6 H. L. 0. 238; Firth y. Q. B. at pp. 596, 597, in wliicli ^^'^^'"°<"^' 1 J™- N- S. 806 (Wood case a memorandum of agreement Z '^ ' ^'"' ^- ^ ^"""'"•' ^^ Ir- Oh. containing tte defendants' names ^ f^^' overruling S. 0. 11 Ir. Oh. had been written out by their " ' _ authorized agent, and then pre- J Ghadhurn y ; Moore, [1892] i IX t.-u ^ -^-at • : W. N. 126: 61 L. J. Ch. 674; 41 sented to the plaintifi for signature „. ^„„_-..„ ' , j^^ ^ ^ W. E. 39; 67 L. T. 257. See contra, ^ ■ . Prior y. Moore, 3 Times L. E. 624, ^ See the judgments m Bailey v. ■, Sweeting, 9 0. B. N. S. 843. , g.^^^.^ ^_ ^„.^^_ L. E. 5 C. P. * Blore V. 8uUon, 3 Mer. 237 ; 299, n. 236 OF THE DEFENCES TO THE ACTION. How ap- pointed. Where the Court will conclude in favour of the agency. 1. Direct evidence. 2. Infer- ence. 3. Repre- sentation. held that a written request by the owner of freeholds to procure a purchaser for them, and to advertise them at a certain price, is no authority to enter into an open contract of sale, and is probably no authority to con- tract for sale at all.' But an authority to sell real estate prima facie entitles the agent not only to nego- tiate for a sale, but also to sign a binding contract of sale.^ § 526. As the statute does not require an agent for signing a contract to be appointed in writing, the general law applies in such cases, and consequently the appointment may be made as well by parol as by writing.^ But the fact of an appointment by parol must, of course, if denied, be proved by the person alleging it.* § 527. The Court may conclude in favour of the agency in any of the following ways : — (1.) The Court may come to this conclusion from direct evidence, oral or written, of the appoint- ment; or, (2.) By inference from the acts, letters, or conduct of the parties, or from their relations to one another, or, in short, from any evidence legitimately raising the inference of agency.^ (3.) An alleged pidncipal, though he may in fact have given no authority to the alleged agent, may by representations which he has made to the other party, or by inducing him to lay out money on the faith of the alleged agency, be estopped from deny- ing the agency.^ 1 Hamer v. Sharp, L. E. 19 Eq. 108. Distinguish. Saunders v. Dence, 52 L. T. 644. ^ Roaenhaum v. Belson, [1900] 2 Ch. 267, 271. ' Waller v. Eendon, 5 Vin. Abr. 524, pi. 45 ; Coles v. TrecotJiick, 9 Ves. 234, 250; Clinan v. Cooke, 1 Sch. & Lef. 22 ; Emmerson v. Heelis, 2 Taunt. 38; per Tiadal C.J. ia Acehal v. Levy, 10 Bing. at p. 378 ; Heard v. Pilley, L. E. 4 Ch. 548 ; Cave V. Mackenzie, 46 L. J. Ch. 564. ^ James v. Smith, [1891] 1 Ch. 384; 63 L. T. 529 ; 39 W. E. 396 ; affirmed [1891] W. N. 1 75 ; 65 L. T. 544. * Dyas V. Cruise, 2 Jon. & L. 461 ; Sharp v. Milligan, 22 Beav. 606 ; Pole v. Leask, 28 Beav. 562 ; affirmed in D. P. 33 L. J. Ch. 155 ; Bossiter v. Miller, 3 App. Oas. 1124. ^ Ridgway v. Wharton, 6 H. L. C. 238, 297 ; per Lord Cranworth in Ramsden v. Dyson, L. E. 1 H. L. at p. 158, OF THE STATUTE OF FRAUDS. 237 (4.) Ratification may take the place of agency. 4- r^atia- Here the maxim applies, o^nnis ratihahitio reirolrahi- tur et mandalo cequiparatur, and therefore the subse- quent ratification of a contract, entered into by a person then unauthorized as agent, takes it out of the statute ; ^ and this ratification need not be by any express act ; it is enough if the party whose authority is required take the benefit of the con- tract, or even if, with a full knowledge of it, he passively acquiesce in it for a length of time longer than that reasonably to be allowed for the expression of dissent.^ But it will not be implied from vague expressions to a third person.^ § 528. For a valid ratification it is necessary that Essentials the person who ratifies the contract should have been ratifila^-' in existence at its date ; * and further, that he should tion- be the person in whose name the agent has professed to act.^ Thus, where the pretended agent professed to contract in writing on behalf of a married woman, it was held that the husband could not ratify the contract, as he had not been named as a principal.^ A contract made by a man purporting and professing to act on his own behalf alone, and not on behalf of a principal, but having an undisclosed intention to give the benefit of the contract to a third party, cannot be ratified by that third party, so as to render him able to sue, or liable to be sued, on the contract. The hypothesis of ratification is that the ratifier is already in appearance the contractor, and that, by ratifying. ^ Maclean v. Dunn, 4 Bing. 722 ; 174 ; Scott v. Lord Ehury, L. E. '1 Ridgway v. Wharton, 6 H. L. 0. 238, C. P. 255 ; Mdhado t. Porto Alegre, 296. Seetoo FitzmauriceY. Bayley, &c. Baihvay Co., L. E. 9 C. P. 503; 6 El. & Bl. 868 ; 8 ib. 664 ; 9 H. L. In re Northumherland Avenue Hotel 0. 78. Co., 33 Ch. D. 16. 2 Bigg v. Strong, 3 Sm, & Gr. 592 ; = Wilson v. Tumman, 6 Man. & affirmed 6 W. E. 536 ; Rice v. Gr. 236 ; per Parke J. in Vere v. O'Connor, 12 Ir. Oh. E. 424, 434. AsMy, 10 B. & C. at p. 298. See And see per Lord Hatherley in too Marsh v. Joseph, [1897] 1 Ch. V. Homfray, L. E. 6 Ch. 213 ; and cf. Athy Guardians v. at p. 778. Murphy (1896), 1 I. E. 65. 3 Ridgway v. Wliarton, 6 H. L. C. '' Saundersony. Griffiths, oB.&O. 238. 909 ; and see Brook y. IIooJc, L. E, < Kelner y. Baxter, L. E. 2 0. P. 6 Ex. 89. 238 OF THE DEFENCES TO THE ACTION. he holds as done for him what already purported or professed to be done for him.^ tione § 529. It is now cloarly decided that, at sales by auction, auctioneers are agents of the purchaser as well as of the vendor.^ This conclusion seems to have been arrived at from the necessity of the case, and the peculiar nature of the mode of sale.^ " The nature of the proceeding by auction, — " said Lord Langdale M.R.,* " the bidding for the purpose of making the purchase — the necessity of making a state- ment of the bidding — the direction to the auctioneer to write down the bidding, which is perhaps involved in the very process of bidding, and some other circum- stances, afford intelligible ground for the decision in Emmerson v. Heelis,^ and the approbation which has since been bestowed u^jon it." Where this necessity does not exist, as in a subsequent purchase in private from the auctioneer, no such agency arises.^ Where, however, after an unsuccessful sale by auction, but before the auctioneer had left the rostrum, a purchaser ascertained from the auctioneer's clerk the amount of the reserved bidding, and agreed to take the property at that price, and signed a bidding paper for it, but subsequently denied the authority of the auctioneer to act as the vendors' agent, it was held impossible for him to contend that the sale ought not to be treated as one by auction.'^ But the authority which the pur- chaser at an auction confers upon the auctioneer being an authority to make a minute or record of the bidding at the time and as part of the transaction, the auctioneer cannot bind the purchaser by signing a memorandum 1 Keigliley, Maxsted & Co. v. [1894] 2 Oh. at p. 320 ; cf. Bartlett Durant, [1901] A. 0. at pp. 253, v. Purnell, 4 A. & B. 792. 259, reversing [1900] 1 Q. B. 629, ' Goshell v. Archer, 2 A. & E. C. A. 500 ; Earl of Qlengal y. Barnard, 1 ' Emmerson v. Heelis, 2 Taunt. Ke. 788, afBrmed in D. P. as Lord 38 ; White v. Proctor, 4 Taunt. 209 ; Olengal v. Thynne, St. Leon. Law Kemeys Y. Proctor, 3 V. & B. 57 ; of Prop. 56. S. C. 1 J. & W. 350 ; BucJcmaster v. * In Earl of Glengal v. Barnard, Harrop, 7 Ves. 341 ; S. 0. 13 Ves. 1 Ke. at p. 788. 456 ; Kenworthy v. Schofield, 2 B. « 2 Taunt. 38. & 0. 945 ; Edgell v. Bay, L. E. 1 « Meioa v. Carr, 1 H. & N. 484. 0. P. 80, 84; Sims y. Landray, ' j&Zse v. 5am«rd, 28 Beav. 228. OP THE STATUTE OP FRAUDS. 239 of contract at a later time, — a week, for instance, after the sale.^ § 530. In order to prove that the auctioneer on a Authority sale by auction was the vendor's agent, it is only tfoneer. necessary to prove by whose instructions he acted : ' and it seems that after the hammer has fallen the vendor is not entitled to revoke the authority of the auctioneer, although, at the time when the vendor seeks to revoke it, no written contract has been signed.** § 531. As an agent may not without express Agent of authority delegate his authority to another, an auc- ^^^"*' tioneer cannot without permission appoint another to conduct the sale,* and, for the same reason, the clerks of agents are not agents for the principal, unless the principal has assented to their acting as such.*^ The Auc- auctioneer's clerk at an auction has not by custom ^lerk?'^ " authority as the purchaser's agent to enter his name at the time of the sale in a book,** but it may be shown that the purchaser, by word, sign, or otherwise, autho- rized the making of such entry : '^ and where that is shown, the clerk's signature is a signature on behalf of the purchaser sufficient to satisfy the Statute of Frauds.® It has even been contended that the exigencies of the case require that, on sales by auction at the present day, the auctioneer's clerk, sitting publicly beside him, should be held authorized, generally, to sign memoranda on behalf of purchasers ; but that contention has been judicially rejected as groundless.*' 1 Bell V. Balls, [1897] 1 Oh. at " Pierce v. Corf, L. E. 9 Q. B. p. 671 ; 45 W. E. 378. 210. See too Po«er v. Pefcrs, [1895] ^ Consider P,-^ey. WiUon, 1 Jur. f ^ 37; 64 L. J. Oh. 357; 72 ' As to what such entries must » Day V. Wells, 30 Beav. 220. contain, see iJisWo« T. Whatmore,% See further, as to the auctioneer s qj^_ p^ ^gy . ^-^y^j^^ ^ ^^^_ authority, McMullen y. Helherg, ^ ^/^^ ^[ Landray, [1894] 2 Ch. I. E. 6 0. L. at p. 465 ; Brett v. at p. 320. dowser, 5 0. P. D. at p. 386. „ j^^-^ ^_ ^^^^^^ |-^89y-| ^ gj^_ ^^ * Dart, V. & P. (6th ed.) 204. pp. 669, 670, where the ordinary = Doles T. Trecothick, 9 Ves. 234. practice at sales by auction is Of. Bird T. Boulter, 4 B. & Ad. 443. stated. 240 OF THE DEFENCES TO THE ACTION. Solicitor. Telegraph clerk. Eevooa- tion of agent's authority. Death of principal. § 632. In one case, a solicitor employed in a marriage-treaty, who drew up a minute of the arrange- ment come to at an interview, was held not to be an agent lawfully authorized to bind the parties, so as to make the insertion of their names in the minute a signature within the statute ; ^ nor has a solicitor in- structed on behalf of one of the parties to prepare a formal contract, authority to sign for his client any memorandum or note of the contract within the statute.^ But where letters had been written by an agent, within the scope of his authority, recognizing and insisting on the terms of an alleged contract on which his principal was sued, the letters were held by the Court of Appeal to constitute a memorandum sufficient to satisfy the statute.^ § 533. A telegraph clerk despatching a message from written instructions of a party to a contract has been held the agent of such party to sign his name in the message.* § 534. The authority of an agent may be revoked at any time before it is acted upon, and such revocation may be proved by parol.^ But where the agent has been habitually employed, and so held out by the principal as such, the latter will be bound by his acts, if within the scope of his former authority, until reasonable notice of its revocation.® § 535. In general, the death of the principal ' Earl of Glengal v. Barnard, 1 Ke. 769, affirmed in D. P. as Lord Qlengal v. Tliynne, St. Leon. Law of Prop. 66. See also De Bdl v. Tliomson, 3 Beav. 469 ; Hammeraley V. De Biel, 12 CI. & Fin. 45. 2 Smith V. Webster, 3 Ch. D. 49. See too Forster v. Boioland, 1 H. & N. 103. Distingnisli Jolliffe v. Blumberg, 18 W. E. 784; and see Moritz V. Knowles, [1899] W. N. 40, 83. ' John Griffiths Cycle Corporation V. Humber & Co., [1899] 2 Q. B. 414; 68 L. J. a B. 959; 81 L. T. 310. Tie decision of the 0. A. was reversed by the House of Lords, but on another ground. Humber & Co. V. John Griffiths Cycle Corpora- tion, [1901] W. N. 110. * Godwin T. Francis, L. E. 5 0. P. 295. ^ Vynior's case, 8 Co. 82; Manser V. Bade, 6 Ha. 443. * Trueman v. Loder, 11 A. & E. 589; Ex parte Swan, 7 C. B. N. S. 400, 432. But an agent for sale of goods whose authority has been re- voked cannot validly pledge the goods even to persons who have no notice or means of knowing of the revocation. See Fuentes v. Montis, L. E. 3 0. P. 268; S. C. L. E. 4 C. P. 93. OF THE STATUTE OF FEAUDS. 241 "works a revocation of an agent's authority, and any contract made by the agent after, though without notice of the death, is void.* This is, however, subject to certain exceptions in the case of agents appointed by power of attorney in favour of pur- chasers." § 636. The question of agency is, of course, one Agency a ^fi„^4. fb J ) ) question of fact. of fact. § 637. It follows from what has been said that Letters. letters passing between the parties themselves, or between the party sought to be charged and some tliird party, even including amongst such third parties the writer's own agent, may be used to supply such evidence of the contract as the statute requires. It may be convenient to consider these cases under the following heads, viz.: (1) where there is an un- signed writing containing all the terms of the con- tract, and the letters are adduced as incorporating that writing, and furnishing the signature of one or both of the parties ; (2) where the principal writing is incomplete in one or more of its terms, and the letters are referred to to supplement the defect ; and (3) where they are adduced as themselves constituting the contract and the written evidence of it. § 638. (1.) In order to make a contract binding i. Letters under the Statute of Frauds, it is not necessary that to fra*^ it should be all contained in one paper, signed by the signature. party to be charged; but the terms of the contract may be contained in one paper, and the signature may be found in some other paper, provided that such second paper refer to the paper which does contain the terms.* § 639. For the ascertainment and identification Parol ' Watson Y. King, 4 Camp. 272; also per Lord Eldon in Coles v. Smout V. Ilbery, 10 M. & W. 1 ; Trecothick, 9 Ves. 250 ; Gaston v. Carr t. Livingston, 35 Beav. 41. Franhum, 2 De Gr. & Sm. 561 ; Powell V. Dillon, 2 BaU & B. 416 ; » Conveyancing Act, 1882, ss. 8 ^ J^^^^ ^ ^ p_ jy ^g^. and 9 Where the terms of the contract ^ Allen V. Bennet, 3 Taunt. 169; are contained in several documents, Ridgway v. Wharton, 3 De G. M. & all must be produced. See Post v. G. 677 ; S. 0. 6 H. L. 0. 238. See Marsh, 16 Ch. D. 395. F. R 242 OF THE DEFENCES TO THE ACTION. evidence admitted. There must be a reference. To terms in writing. How far the re- ference must be express. of the actual paper referred, to, parol evidence is admissible : ^ for the one paper cannot be physically contained in the other paper. In the same way, in the case of a bequest in a will, the thing given and the person to whom it is given must be mentioned in the instrument, but the actual identification of the thing and the person must, from the nature of the case, be dehors the instrument, and therefore a matter of parol evidence.^ § 540. There must, however, be a reference: therefore, where the contract made no reference to an advertisement respecting the property which was sought to be introduced to supply a term, it was held that this could not be done : ^ and so also the mere admission in writing of a contract, without ascertain- ing its terms, is inoperative.* § 541. Further, the reference must be to terras in writing: therefore where a writing duly signed referred not to a writing, but to terms arranged by parol, there was no valid contract.® But the terms, if in fact in writing, need not appear on the face of the other paper to be so : so that a reference in one paper to " terms agreed on," when in fact the only terms agreed on were in writing, was held sufficient.* § 542. Whether the reference must be express and on the face of the paper containing the signature, or whether it be enough that a jury or judge of fact would conclude from the circumstances and contents that the two papers are parts of one correspondence, may be open to doubt. The latter is probably the better view. It has been held by the Court of Appeal that an envelope may be referred to in order to supply the name of the person to whom a letter, proved to have been sent by post inclosed in the envelope, was addressed.'' ^ Per Lord Eedesdale in Clinan 550 ; Ckrh v. Wright, 1 Atk. 12. V. Cooke, 1 Sch. & Lef. 33. " See supra, § 342. ^ Clinan y. Cooke, 1 Sch. & Lef. 22. Distinguish Nene Valley Drain- age Commissioners v. Dunhley, 4 Oh. D. 1. jway V. Wharton, 3 De G. M. & a. 677 ; S. 0. 6 H. L. 0. 238. ^ Baumann v. James, L. E. 3 Ch. 508 ; Cave y. Hastings, 7 Q. B. D. 125. ' Pearce v. Gardner, [1897] 1 Base V. Cunynghame, 11 Ves. Q. B. 688. OF THE STATUTE OP FRAUDS. 243 § 543. Another question does not seem free from is parol T • 1 1 1 1 1 i. evidence controversy. Is it the rule that the two papers must admissible be such that the judge of fact would connect them *°;^™^f without the aid of verbal evidence/ or that verbal ments? evidence may be given not only to identify, but to connect them ?^ § 544. In a case arising on an entry of a contract Entry in an auctioneer's book, where the entry contained no ^o^eer'a reference to the conditions, subject to which the sale took. took place. Hall V.C. said that the entry must contain such a reference to the conditions as to identify them upon production as being the conditions mentioned in the entry .^ § 545. In Tawney v. Crowther,*' the contract was Tawneyy. reduced into writing, and was in possession of the defendant, who, in answer to a letter from the plain- tiff's solicitor, asking him to meet him and sign tlie contract, wrote a letter, in which he mentioned his having been from home, acknowledged having said his word should be as good as his bond, and that there was time enough before Michaelmas to settle every- thing; and again said "that his word should always be as good as any security he could give : " Lord Thurlow, first on a plea of the statute, and subse- quently on the answer, which insisted on the statute, held that the letters and the paper together constituted a valid contract. " If a letter cannot be referred to the agreement," said his Lordship, "or does not con- tain pro23er terms, I cannot treat it as out of the statute ; but I confess, on what appears here, the papers do refer to that agreement, and contain a promise to perform it ; the defendant did intend by the letter to raise a confidence that the agreement should be performed."^ Lord Redesdale has expressed his disapprobation of this case, considering that the 1 Seeio??^ V. Miliar, 4 0. P. D. Oh. 357; 72 L. T. 624 (parol evi- 450, and particularly ^er Bramwell ^ence held not admissible). L. J., at p. 452. 3 RisUon v. Whatmon, 8 Oh, D. 2 Of. Fierce v. Cort L. E. 9 Q. B. ^ 467 210, with. Oliver v. Hunting, 44 Oh. D. 205; and see Potter v. * 3 Bro. 0. 0. 161, 318. Peters, [1895] W. N. 37 ; 64 L. J. =3 Bro. 0. 0. at p. 320. 244 OF THE DEFENCES TO THE ACTION. Other illustra- tions. 2. Letters to supply a term. promise was intended to be of an honorary and not of a legal and binding nature ; ^ and the correctness of the decision has been questioned by Lords Cranworth and Brougham in the case of Ridgway y. Wharton? From the note at the end of the case in Brown's Reports^ it appears that the decree was by consent. § 546. In another case, the defendants' letters referred distinctly to the conditions of sale, which were in their hands, signed by the plaintiff, and the Court of Queen's Bench held that no parol evidence was necessary to connect the two, and that there was a binding contract.* And where A. wrote to B., pro- posing to let a public-house on certain terms, and B.'s clerk met A. and discussed the terms of the lease, and afterwards B. replied that he was willing to take the premises of A., this was held to refer to the terms contained in A.'s letter, and therefore to constitute a contract.^ § 547. (2.) Letters may be used to supply a term wanting in the principal writing ; thus where, in- a memorandum, the lessor's name was not mentioned, and subsequently a letter from the lessee, referring to this document, mentioned his (the lessor's) name in a manner from which the Court could imply that he was lessor, there was held to be sufficient evidence of the contract.^ But where'^ two persons came to a verbal agreement for the sale and purchase of an estate, and the vendor thereu^pon signed and handed to the pur- chaser a memorandum of the particulars of the pro- perty and the price, which however did not contain the purchaser's name ; and afterwards the vendor 1 See Belt's n. 3 Bro. 0. 0. 153. 2 6 H. L. 0. 265, 2Y1. See per Lord St. Leonards, S. 0. 293. 3 3 Bro. C. 0. (Belt's ed.) p. 320. * DoMl V. Hutchinson, 3 A. & E. 355. See also Saunderson v. Jack- son, 2 B. & P. 238 ; and Jackson v. Lowe, 1 Bing. 9. = Wood V. Scarth, 2 E. & J. 33. See too Morris v. Wilson, 5 Jur. N. S. 168, followed by Eomer J. in Filby Y. Hounsell, [1896] 2 Oh. 73Y; Wylson Y. Dunn, 34 Oh. D. 569; Studds V. Watson, 18 Cli. D. 305. * Warner v. Willington, 3 Drew. 523. See tMs case, infra, § 557, and the observations of Eomer J. in Goomls v. Wilkes, [1891] 3 Ch. at p. 81 ; also Pearce v. Gardner, [1897] 1 Q. B. 688, where the name of a party was supplied from an envelope. ' Skelton V. Cole, 1 De G. & J. 587. OF THE STATUTE OF FRAUDS. 245 signed and sent to the purchaser a letter, saying, ''I am about to relet the land at S. The Lady Day rents will be mine and the Michaelmas yours;" it was held that the defect in the memorandum was not supplied by the letter. § 548. (3.) Letters may themselves constitute the s. Letters contract and the written evidence of it : and the cases tuting\he in which a contract is thus constituted by correspon- contract. dence between the parties are very numerous : some of them have already been discnssed.^ § 549. It is one of the first principles of a case Theeor- of this kind that where the contract, or the note or enc^°^u'gt memorandum of the terms of the contract, has to be be con- found in letters, the whole of the correspondence a whoie^ which has passed must be taken into account.^ Accordingly, in a case where the first two letters of a correspondence, taken by themselves, appeared to amount to a complete contract, but there really were other terms, which when those letters were written were unsettled and in the result remained unsettled, the House of Lords held that there was no concluded contract.® § 550. There are many reasons to recommend this rule as to the consideration of the whole of the corre- spondence. The subsequent letters may show that at the time of the supposed contract there was on neither side that intention to contract which is of the essence of a contract : or again, the correspondence may show a subsequent agreement to vary or rescind an agree- ment previously made. " I think," said Jessel M.R.,* '' that it very often happens that both parties use expressions in letters which read alone would amount to a contract, if we did not know that in fact neither of the parties ' See supra, § 286. See also ^ Hussey v. Home-Payne, 4 App. Wester7i v. Russell, 3 V. & B. 187 ; Oas. 311. See this case considered Coupland V. Arroiusmiih, 18 L. T. ^ ^^^^^^ Partners y. Lamhert, 41 N. S. 755; Rossiter v. Miller, 5 ^, ^ r\\. -r. DAo o A n nn^ Cn. D. 307 ; ojho. Bristol, &c. Bread Ch. D. 648; 3 App. Oas. 1124; ' Bonneivell v. JenMns, 8 Ch. D. 70. ^''- '*'• ^I^'dO^' ^'i Ch. D. 616. 2 Per Lord Cairns in Hussey r. * May v. Thomson, 20 Ch. D, Home-Payne, 4 App. Cas. at p. 316. 705, 706. 246 OF THE DEFENCES TO THE ACTION. intended those general expressions to constitute a contract." § 551. The efPect of subsequent letters may perhaps be thus stated. If the subsequent corre- spondence leads to the conclusion that at the date of the letters relied on as the memoranda of the contract there M^as no contract in fact, then the plaintiff must fail : if, on the other hand, the whole evidence shows that at that date there was a consensus between the parties upon the terms expressed in the letters relied upon, then the subsequent correspondence, unless amounting to a new contract or an agreement for rescission, can have no effect upon the existence of the contract. Effect of §552. The influence of subsequent correspondence leUers!*"'^ was Carried very far in the case of the Bristol, Cardiff, and Swansea Aerated Bread Co. v. -Ma^ys,^ where Kay J. held that the plaintiff was precluded from relying on letters as evidence of a contract, not because at the date of those letters there was no contract, but because the plaintiff's solicitor subsequently began a negotiation with a view to introduce new terms. " Having treated these two letters," said the learned judge, " as part of an incomplete bargain, it would be most inequitable to allow them to say, ' Although we thus treated the matter as incomplete and a negotia- tion only, yet the defendant had no right to do so, but was bound by a completed contract.' " ^ The case, therefore, is put not on the non-existence of the contract in fact, but upon an equitable estoppel resulting from the subsequent negotiation by the plaintiff's solicitor. This proposition seems worthy of further discussion. A new negotiation for a new term does not seem necessarily to involve the desire to rescind or abandon an existing contract, nor is it conclusive evidence that no contract had in fact been previously entered into. § 553. In Bellamy v. Debenliam^ North J. dis- cussed the language used by Kay J. in Bristol, ^c. 1 44 Oh, Div. 616. ^ 45 q\^_ j)_ 451 . affirmed on 2 At p. 625. ' another ground, [1891] 1 Oh. 412. OP THE STATUTE OF FKAUDS. 247 Bread Co. v. Maggs, and said : ''In my opinion, sub- sequent negotiations, first commenced on new points after a complete contract in itself has been signed, cannot be regarded as constituting part of the nego- tiations going on at the time when it was signed." This seems to be good law. It would seem clear that if the letters of proposal and acceptance in fact con- tain all the terms agreed on at the time, and were written with the intent of binding the writers, this complete contract could not be affected by subsequent negotiations not resulting in a new contract. § 554. The plaintiff cannot insist on some terms Parts of or some letters and reject others.^ If the letters taken ^^111^6°.' as a whole do not constitute the contract, the plaintiff must fail.^ § 555. The contract may even be sufficiently evi- Letter to denced by a letter addressed to a third person, pro- person vided it ascertain the terms of the contract.^ § 556. It is desirable to consider the effect of Letters re- letters which repudiate or disown a contract referred ^"^^^^raS to in them. Where the letters deny that a contract ever existed, it would seem impossible to treat them as the evidence or an admission of a contract ; but where the letters repudiate on the ground of matter subse- quent, as for example, of damage done to goods bought, there a statement of the terms of the contract in the letters may satisfy the statute.* § 557. The subject was discussed in the case of ^rmvY. Warner v. Willington,^ before Kindersley V.C. In that ton. "'^ case there was a memorandum for a lease, signed by the defendant, the proposed lessee, but deficient in the lessor's name, and then a letter by the defendant, withdrawing the memorandum, but referring to the lessor's name : and the Vice-Chancellor held that the letter supplied the original defect in the memorandum, 1 Post V. Marsh, 16 Oh. D. 395. Barhxvorth v. Young, 4 Dre-w. 1, ' NesTiam v. Selhy, L. E. 13 Eq. particularly 13. 191 ; affirmed L. E. 7 Oh. 406. * Bailey r. Sweeting, 9 0. B. N. S. 3 Per Lord Hardwioke in WeJ/ord 843 ; Nesham v. Selhj, L. E. 13 Eq. V. Beazeley, 3 Atk. 503 ; Child v. 191 ; 1 Oh. 406 ; cf. Jackson v. Og- Oomber, 3 Sw. 423, n. ; Seagood y. lander, 13 W. E. 936. Meale, Prec. Oh. 560. See also = 3 Drew. 523. 248 OF THE DEFENCES TO THE ACTION. and converted it into a contract binding under the statute. It is submitted that this decision is not without difficulties on principle ; for it would seem that the whole letter must be looked at, and then that affirms the memorandum to be, what in fact without the letter it was, namely, a mere ofPer : and, further, the case appears difficult to reconcile with other decisions. Thus, where buyers have written letters distinctly referring to inyoices of the goods, but insisting that they were not bound to accept the goods, and thus repudiating the contract, the Courts have held that there is no sufficient writing within the 17th section of the Statute of Frauds : ^ and in a case in the Exchequer, in which Warner v. Willington was cited, the Court considered that it would be treating the Statute of Frauds as nothing, if a letter, merely declining to accept goods under a parol contract or an insufficient written contract, were held to take the case out of the statute.^ And again, in a case in Chancery, Turner L.J. treated the argument that a letter de- clining to enter into a contract could constitute one as too strained to require any observation.^ Parol § 558. It is now distinctly settled, after some before"* difference of opinion, that a written memorandum of marriage, contract after marriage, in pursuance of a parol one after.^'^ bcforo, takes the case out of the statute.* Pleading § 559. With regard to the mode in which a wXulthe contract within the statute should be pleaded, the statute. Rules of the Supreme Court under the Judicature Acts have swept away the diversity which existed in the pleadings at Common Law and in Chancery, An allegation of a contract is sufficient without stating it ' Cooper V. Smith, 15 East, 103 ; 297 ; per Lord Oottenham in Ham- Ricliards v. Porter, 6 B. & 0. 437 ; mersley v. De Biel, 12 01. & Fin. pier'Loii&.'DsniD.duTxinDohellY. Hutch- 64, n. ; per Turner L.J. in 8ur- inson, 3 A. & E. 371 ; Ooabell v. come v. Pinniger, 3 De G. M. & Q-. Archer, 2 A. & E. 500. 571 ; Barhworth t. Toung, 4 Drew. ' Goodman v. Griffiths, 1 H. & N. ^' approved in 0. A., Be Holland, gy^ Gregg v. Holland, [1902] 2 Oh. 360. See also Hodgson v. Hutchemon, 5 ' Wood V. Midglei,, 5 De G. M. & yin. Abr. 522, pi. 34. In Bandall Q-- 41, 46. y. Morgan, 12 Yes. 67, Grant M.E. * Taylor v. Beech, 1 Ves. Sen. expressed doubts on tbis point. OF THE STATUTE OF FRAUDS. 249 to be in writing, and tlie defendant who admits the con- tract in fact, but denies its sufficiency with regard to the statute, must specially raise the point by his defence.^ § 560. Aiiother important provision of the Rules Contract of the Supreme Court is to the effect that where a f^^'iet. contract is to be implied from a series of letters or ters, con- conversations or otherwise from a number of circum- orcScnm- stances, it is sufficient in pleading to allege such stances. contract as a fact and to refer generally to such letters, conversations, or circumstances without setting them out in detail ; and that if in such a case the person so pleading desires to rely in the alternative upon more contracts than one, as to be implied from such circumstances, he may state the same in the alternative.^ iii. What takes a contract out of the statute. § 561. Courts of Equity hold that, notwithstanding Sale by the express language of the statute, a case may be ad^s'sion taken out of its operation by any one of the following fraud, circumstances: — (1.) by the sale being by the Court, perform- (2.) by an admission in the defence of a contract in ^'^<'^- fact, where the defence does not insist on the statute, (3.) by fraud,'^ and (4.) by a parol contract and part performance, which is, as we shall see, but a particular case of fraud. In the two first cases the reason is that the danger of that which the statute was meant to guard against does not arise, and in the third and fourth that the statute shall not be made use of to cover a fraud. § 562. (1.) It was held that a sale in the Court of i. Sale by Chancery by private contract, in pursuance of an *^^ ^°™^'' order confirming a Master's report, was exempted from the Statute of Frauds, and consequently might be enforced against the representative of a purchaser who had not signed it.* The considerations upon 1 E. S. C. Ord. XIX. rr. 15, 20. * Ait.-Gen. v. Dmj, 1 Ves. Sen. Of. as to the distinctness now re- 218 ; per Grant M.E. in Blagden v. quired in pleadings, Byrd v. Nunn, Bradhear, 12 Ves. 472 ; per Lord 7 Oh. D. 284 ; and see supra, § 500. Oottenham in Ex parte Cuffs, 3 2 E. S. C. Ord. XIX. r. 24. Deac. 267 ; Lord r. Lord, 1 Sim. 3 See too infra, § 814 (mistake). 503. 250 OF THE DEFENCES TO THE ACTION. Ordinary sale by auction. 2. Admis- sions in pleadings. EfPect of admissions under present practice. "whicli this decision was based are that the judicial character of the proceeding is such as to prevent the hazard of uncertainty and perjury which the statute was intended to prevent, and moreover that, in such a case, the purchaser, having been a party to the pro- ceedings in which the order for sale to him was made, is bound by the order, and would be guilty of con- tempt in refusing to pay the purchase-money. § 563. The same rule was held to apply to sales in the ordinary way by auction before a Master,^ and would no doubt apply to sales under the present practice ; ^ but not to ordinary sales by public auction ; because, it is said, such sales might be without written or printed particulars and conditions, and also, no doubt, because they are in no way proceedings connected with the Court.^ § 564. (2.) An admission of a parol contract in the answer of a defendant to the bill of complaint was, under the old practice, held to take the case out of the statute where the answer did not insist upon the statute, and this because the admission took the case out of the mischief which the statute was designed to remedy.* Another reason suggested for the rule was that the contract, though originally in parol, was, after admission, evidenced by writing under the signature of the party, which would be a sufficient compliance with the statute as interpreted by the decided cases.® § 565. The substantial result of the present system of pleading is to continue this effect of an admission of the contract in fact, and furthermore to treat the contract as admitted unless it is actually denied. For it results from the Rules of the Supreme Court" that if the contract be not expressly denied to exist in fact, and expressly stated not to satisfy the Statute of 1 Att.-Qen. V. Day, ubi supra. ' See St. Leon. Vend. 86 ; Dart, V. & P. (6tli edit.) p. 227. 3 Blagden v. Bradhear, 12 Ves. 466, 4Y2. See too Mason v. Armi- tacje, 13 Ves. at p. 35. * Gunter v. Halsey, Amtl. 586; Limondson v. Sweed, Gilb. 35. See also per Lord Eosslyn in Bendeau v. Wyatt, 2 H. Bl. 68. ^ Story, Eq. Jur. s. 755. " E. S. 0. Ord. XIX. rr. 15, 17, 20. OF THE STATUTE OF FRAUDS. 251 Frauds, it will be held that the defendant has ad- mitted both its existence and its sufficiency to satisfy the statute. § 566. In the case of the death before judgment Death of of the person making such an admission, his repre- ^^akino- sentatives will be bound by his admission on being admission. made parties to the action.^ But the admission by a vendor that he had contracted to sell an estate to a person since deceased will not bind the personal repre- sentatives of such deceased purchaser; nor will an admission by a purchaser that he had contracted to buy an estate bind the real representatives of the alleged vendor : for it is now clearly settled that, in order to entitle the real or personal representative to enforce the execution of a contract to the prejudice of the other, there must have been, at the death of the deceased contractor, a contract by which he was legally bound, and which the Court would have compelled him specifically to execute ; and it is consequently open to any of the parties interested, notwithstanding the admissions or submissions of any of the other parties, to take every objection which the deceased might himself have taken if living.^ Thus the admission of a contract by the executors of a testator will not bind the residuary legatee.^ § 567. (3.) The principle upon which the Court 3. Fraud regards fraud as forming an exception to the statute was stated by Lord Eldon as follows : " Upon the Statute of Frauds, though declaring that interests shall not be bound except by writing, cases in this Court are perfectly familiar deciding that a fraudulent use shall not be made of that statute ; where this Court has interfered against a party meaning to make it an instrument of fraud, and said he should not take advantage of his own fraud even though the statute has declared that in case those circumstances do not exist, the instrument shall be absolutely void. One 1 AU.-Oen. y. Bay, 1 Yes. Sen. oveiTuling Xacoi v. -Mej-fo'ns, 3 Atk. 218 221. 1. See also PoWer Y. PoWer, 1 Ves. 2 Buckmaster v. Harrop, 1 Ves. Sen. 437. 341 ; S. C. 13 Ves. 456. See Earl ^ Buckmaster v. Harrop, 1 Ves. of Radnor v. Shafto, 11 Ves. 448, 341; S. 0. 13 Ves. 456. 263 OF THE DEFENCES TO THE ACTION. Collateral coatract. Fraudu- lent re- fusal to instance is the case of instructions upon a treaty of marriage : the conveyance being absolute, but subject to an agreement for a defeasance, which, though not appearing by the contents of the conveyance, can be proved aliunde: and there are naany other instances."^ "It is established," said Lindley L.J. in Roche- foucauld y. Boustead^ " by a series of cases, the pro- priety of which cannot now be questioned, that the Statute of Frauds does not prevent the proof of a fraud ; and that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by parol evidence that it was so conveyed upon trust for the claimant, and that the grantee, knowing the facts, is denying the trust, and relying upon the form of conveyance and the statute, in order to keep the land himself." § 568. Accordingly, if it can be shown that the written contract which is sought to be enforced was only signed in consequence of some collateral contract having been come to, the plaintiff must either submit to the collateral con tract, or have his action for specific performance dismissed; and this although the collateral contract is not evidenced in writing. Thus, in Clarke V. Grant,^ where trustees of a charity sought specific performance of a written contract to take a lease, and the main defence was a parol contract of the same date as the written one and affecting the parcels, Grant M.R. held that evidence to prove the parol contract was admissible, and that, if it were proved, it would be against equity and a fraud on the defendant to insist upon his performance of a contract, which ho had only signed on the faitli of an alteration being made in one of its terms. § 569. In the last-mentioned case the defendant set up the collateral contract : but the cases go much ^ Mestaer v. Gillespie, 11 Ves. at p. 627. 2 [1897] 1 Ch. at p. 206 (a case on the 7th section of the statute). See too lie Dahe of Marlborough, [1894] 2 Ch. 133, 141. 3 14 Ves. 519, 525. OF THE STATUTE OF FRAUDS. 253 further and show that the plaintiff may, on the ground ^^y°°°^^[ of fraud, obtain the benefit of a collateral parol parol pro- promise which the person who claims under the ™'^^- written contract fraudulently refuses to recognize. In one case Lord Thurlow allowed the plaintiff to give parol evidence that, at the time the contract (which was subsequently reduced to writing) was entered into, an undertaking had been given by the assignee of the lease to the assignor for indemnity against the rents and covenants ; his Lordship laying down that " where the objection is taken before the party execute the agreement and the other side promise to ratify it, it is to be considered a fraud on the party if such promise is not kept." ^ § 570. So in the case of transactions which are Provision really for mortgages or charges, if the written instru- am;e or^^' ment be in terms absolute and have been obtained on redemp- a promise to execute a defeasance, or if the clause for duiemiy" redemption have been fraudulently omitted, the mort- omi"ed. gagor or chargor has been allowed to come to the Court and to reduce the absolute conveyance to a mortgage or charge.^ § 571. So again, in Jervls v. Bcrridge^ where the •^■^ plaintiffs assigned the benefit of a contract to the defendant upon certain terms, some only of which were reduced into writing, it was held that, vmder the circumstances of the case, the memorandum was only ancillary to the verbal contract, and any use of it by the defendant for a purpose inconsistent with the verbal contract was fraudulent. Lord Selborne in the course of his judgment* stated the principle now 1 PemhtT V. Mathers, 1 Bro. C. 0. v. Culverwell, 3 Giff. 251 ; S. C. 4 52 ; Pearson v. Pearson, 27 Oh. D. De G. P. & J. 20. 145, 148. Of. SnelUng v. Thomas, ^ -^ -^ % Oh. 351 L. E. 17 Eq. 303, wliere the plain- tiffi failed to establish the collateral * L. E. 8 Oh. at p. 360. In his contract alleged hy him. speech in the House of Lords, in 2 1 Bq. Oa. Abr. 20, pi. 5; Walker Hussey v. Home-Payne, 4 App. Oas. V. Walker, 2 Atk. 98 ; England v. at p. 323, Lord Selborne expressly OodriB^toK, lEden, 169; WilUamsY. re-affirmed the doctrine laid down Owen, 5 My. & Or. 303, 306; Lincoln in the quotation referred to in the V. Wright, 4 De G. & J. 16; Douglas text. Jdrns V. Serridqe. 254 OF THE DEFENCES TO THE ACTION. in discussion in words which have ah'cady been quoted.^ Trustee § 672. So again, if A. have in his hands money purchaser, ^f 13. and at B.'s request lay it out in the purchase of an estate, A. cannot, on the ground that the land is conveyed to him, claim the estate as his own and exclude parol evidence that he was a trustee for B.^ Theprin- § 573. In all thesc cases, to exclude parol evi- foregoiil^g'' dcuce and to adjudge specific performance of the cases. contract as evidenced by the writing alone, would be to work the very mischief which the statute was intended to prevent ; viz., to fix the party sought to be charged with a contract which he never in fact entered into. Fraud ia § 574. So again, the want of writing could not marriage" ^^ sct up succcssfully by a man who had fraudulently articles, prevented the writing from coming into existence.^ Thus where the defendant, on a treaty for the mar- riage of his daughter with the plaintiff, signed a paper comprising the terms of the agreement arrived at, but afterwards, and with a view to rid himself of the obli- gation imposed by it, induced his daughter to wheedle the plaintiff to give up the writing and then to marry her, — the plaintiff was held entitled to relief and obtained a decree on the ground of fraud.* Merenon- § 575. But tliis waut of Writing must be due to aDoe°o" fraud and not to mere non-performance of a contract contract to to sign SL Writing. No doubt the opposite view was d^ument. formerly taken, and it was thought, that an allegation that it was part of the parol contract between the contracting parties that the contract should be reduced into writing would take the case out of the statute, on the ground of fraud. Accordingly, where a bill con- taining such an allegation was met by a plea of the ^ Supra, § 520. ' Maxwell v. Lady Montacute, 2 Per Kindersley V.O. in Lincoln Preo. Cli. 526; 1 Eq. Oa. Ab. 19; V. Wright, 28 L. J. Oh. "707, n. ; WhitecJmrch v. Bevis, 2 Bro. 0. 0. S. 0. on appeal, 4 De G. & J. 16. i^=' °^- ^""'^ ^- ^'^9^'y' ^ Sm. & a n 77 p 7 1 A^.1 -Q T^-77- ^^ ^^^' I'eversed 5 De G. M. & G. See Byall y. Byall, 1 Atk. o9 ; Wtlhs ^^ . ^^^ ^^^ g^^^^^ ^^_ j^^..^_ ^ ^gg_ V. Willis, 2 Atk. 11; per Gra.nfK.-B. i Mullet v. Halfpenny, cited in in Lench v. Lench, 10 Ves. at p. 517. Peaoliey on Settlements, 82. OF PART PERFORMANCE. 255 statute, Lord North, after argument, ordered the de- fendant to answer so much of the bill only as charged that the contract was to be put into writing.^ It seems obvious, however, that such a procedure affords a most easy means of evading the intention of the statute, and introducing the mischief it was designed to remedy : and accordingly, the law is clearly established, that such an allegation does not withdraw the case from the operation of the statute, and that, after a parol contract, a refusal to sign a written one is no fraud of which the Court can take cognizance.^ § 676. The same principle as regards fraud was Marriage once considered to apply to marriage contracts, which '=°"*^^''*- also are within the 4th section of the statute. In Dundas v. Dutens,^ Lord Thurlow decided that a post- nuptial settlement recited to be made in pursuance of an ante-nuptial parol contract was not a voluntary settlement, and that because a refusal to perfoi^m the previous contract would have been a fraud ; but this decision is in effect overruled by the case of Warden v. Jones,'^ where Lord Cranworth remarked that, were the decision in Dundas v. Dutens correct, the whole policy of the statute would be defeated.^ § 577. In cases of wills obtained by a promise to 'wma. dispose of the property in a particular way, the Court will, notwithstanding the language of the Statute of Frauds that every will must be in writing, and the language of the Wills Act to the same effect, give effect to the verbal arrangement by raising a trust on the property devised or bequeathed by the will.® § 578. (4.) The part performance of a contract *• Of part by one of the parties to it may, in the contemplation perform- ance. 1 Leake v. Morris, 1 Dick. 14 ; 235. See too Viscountess Montacute S. 0. s. n. Leake v. Morrice, 2 Cas. v. Maxwell, 1 P. Wms. 620. in Oh. 135 ; Hollis v. Whiteing, 1 * 2 De G. & J. 76, 85. Vem. 151 ; Hollis y. Edwards, 1 * cf. Troiuell v. Shenton, 8 Ch. D. Vern. 159. at p. 324, where however the ques- ^ tion turned on Lord Tenterden's 2 Whitechurcli v. Bevis, 2 Bro. . , O.C.565; WoodY. Midgley,5J)e V p,^,^ore y. Gur^r^ing, 7 Sim. G. M. & G. 41, reversing S. 0. 2 ^^^ . ^^^^^^^^ ^_ ^^^.^^ ^^^^ 3^^ 23 Sm. & Gif. llo. gg^^_ ^Q^. j^^Q„^^^j^ ^_ Orogan, 3 1 Yes. Jun. 196 ; S. C. 2 Oox, L. E. 4 H. L. 82. 256 OF THE DEFENCES TO TPIE ACTION. of Equity, preclude the other party from setting up the Statute of Frauds, and thus render it, although merely resting in parol, capable of being enforced by way of specific performance, though not by way of damages, even since the Judicature Acts.^ Theprin- § 579. This exception seems to be based on the eMeption.^ view that if a man have made a bargain with another, and allowed that other to act upon it, he may have created an equity against himself which he cannot resist by setting up the want of a formality in the evidence of the contract out of which the equity in part arose.^ The principle is not unknown to the law of Scotland,^ and seems to be the same as that which gave rise to the real contract in Roman Law, — a contract in which the connection between the parties was clothed with obligation, and so ceased to be nudum pactum, by force of the actual delivery of the subject of the contract. "In the real contract," says Sir Henry Maine, "per- formance on one side is allowed to impose a legal duty on the other, evidently on ethical grounds."* Essentials. § 580. In Order thus to withdraw a contract from the operation of the statute, several circumstances must concur: 1st, the acts of part performance must be such as not only to be referable to a contract such as that alleged, but to be referable to no other title ; 2ndly, they must be such as to render it a fraud in the defendant to take advantage of the contract not being in writing ; 3rdly, the contract to which they refer must be such as in its own nature is enforceable by the Court ; and 4thly, there must be proper parol evidence of the contract which is let in by the acts of part performance, i. The acts § 581. First, " the acts relied upon as part per- to"a*oon-^' formanco must be unequivocally and in their own tract. nature referable to some such agreement as that alleged."^ But if the acts go as far as this, they are admissible, for it seems evident that all that can be 1 See per Chilty J. in Lavery v. Cas. 73. Pursdl, 39 Ch. D. 508. * Ancient Law, p. 332. See also ' Per Lord Selborne in Maddison p. 338. V. Alderson, 8 App. Cas. 476. ^ I'er Lord Selborne in Maddison ' Steioart v. Kennedy, 15 App. v. Alderson, 8 App. Cas. 479. OF PART PERFORMANCE. 257 gathered from acts of part performance is the existence of some contract in pursuance of which they are done, and the general character of the contract : they cannot, unless possibly in some very singular case, be them- selves sufficient evidence of the particular contract alleged, because they cannot in themselves show all the terms of the contract from which they flow. They may be evidence of an unknown contract, but the making known what that contract is must be the result of the evidence which the acts in question are allowed to introduce.' It cannot be denied that there is some want of exactitude in the statements sometimes made in this respect, as, for instance, where it is «aid that the acts must be referable to the alleged contract : and Lord Redesdale seems to have held that, to admit parol evidence, the part performance must be such as to show the very same contract as the plaintiff alleged. So that in a case where the plaintifi: stated a parol contract for a lease for three lives, and payment of rent in part performance, and the defendant admitted a contract, but for one life and not for three ; his Lordship said that the Statute of Frauds put it out of the power of the Court to execute the contract for the lease for three lives, the part performance being per- fectly consistent with the contract alleged by the defendant, and that therefore there was no case to admit proof of a further contract.^ § 583. The true principle, however, of the opera- They need tion of acts of part performance seems only to require leierred that the acts in question be such as must be referred *« some to some contract, and may be referred to the alleged and con- one ; that they prove the existence of some contract, sistent and are consistent with the contract alleged.^ This is alleged. very well illustrated by a case in the Common Pleas on the 17th section of the Statute of Frauds, by which acceptance is treated as such an act of part perform- ance as dispenses with the necessity of writing.* It 1 See^e?- Lord Alvanley M.E. in Lef. 1, 8. See infra, § 639. Forater v. Hale, 3 Yes. 712 ; ptr ^ See Isaacs v. Evans, [1899] Wigram V.O. in Dah v. EamiUon, W. N. 261 ; 16 Times L. E. 113, 5 Ha. 381. Cf. Gray y. Smith, 43 480. Oh. D. 208. * Tomldnson v. StaigM, 17 0. B. 2 Lindsay v. Lynch, 2 Sch. & 697. F. S 258 OF THE DEFENCES TO THE ACTION. was there held, that bare acceptance of the goods by the vendee was sufficient to satisfy that section of the statute, so that, although the vendee, immediately after accepting them, stated that he did so on terms different from those on which the vendor delivered them, yet the acceptance having established the fact of a contract of sale, parol evidence of its terms was admissible. It was there strongly urged that the acceptance must be equivalent to a memorandum in writing, and must show all the terms of the contract ; but the doctrine was denied by the learned Judges, both during the argument and by their decision of the case. Williams J., in the course of his judgment, said, " The Legislature has thought that where there is a fact so consistent with the existence of a contract of sale as the actual acceptance of part of the goods sold, the necessity of a written evidence of the contract might safely be dispensed with. But it is clear that it was not meant to go to all the terms of the contract : and that acceptance is no evideace of the price, but only establishes the broad fact of the relation of vendor and vendee. So where there is proof of part perform- ance, the jury must settle all the other facts that go to make up the contract."^ Mr.Austin § 583. In like manner, Mr. Austin, in one of his quoted. Fragments, has called attention to the "distinction between such solemnities of a contract as are merely evidence of a contract and such as are evidence of a contract and of its terms.''^ "Earnest, for instance," he adds, ' ' is merely evidence that a contract was made : its subjects, its terms, &c., must be established by evidence aliundeP'^ The acts § 584. To make the acts of part performance bTrefer- effectivc to take the contract out of the Statute of able to any Frauds, they must be consistent with the contract other title, alleged and also such as cannot be referred to any other title than a contract, nor have been done with any other view or design than to perform a contract : ^ therefore, if a tenant in possession sue for the specific 1 , - Q -g ^L iTQY ^ Ounter v. Halsey, Ambl. 586. „ ^ ' ' Consider Price v. Salmhury, 32 ' Lectures, p. 940. -^^^^^ 44g_ OF PART PERFOKMANCE. 259 performance of an alleged contract for a new lease, the mere fact of his continuance in possession will have no weight as an act of part performance of the contract, being referable to his character as tenant.^ Where a tenant under a term alleged the rebuilding of a party- wall, which was in a ruinous state during his term, as part performance of a contract by his landlord to grant a renewed term : it was held that the act was equi- vocal, as it might have been done by him in respect of his title under the old as well as tinder the alleged new term.^ The cases in which possession is an act of part performance will be considered presently.^ § 585. Secondly, the principle upon which the "■ The r-i , • • ■ T I • • T • 1 • -J- acts must Court exercises jurisdiction ui adjudging specinc per- render f ormance of parol contracts followed by a part perform- non-per- ance, is the fraud and inj'ustice which would result a fraud. from allowing the party charged to refuse to perform his part, after performance by the other upon the faith of the contract and with the knowledge of the party charged : * and this principle extends not only to con- tracts which, but for such part performance, would be void bv reason of the Statute of Frauds, but also to such as, being entered into by corporations, are in- valid for want of their corporate seal.° §586. "Courts of Equity," said Lord Gotten- The ham,^ " exercise their j'urisdiction, in decreeing specific st'ateTby performance of verbal agreements, where there has LordCot- ^ , n J? xi ; • tenham. been part periormance, lor the purpose oi preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise 1 Wills V. Stradling, 3 Ves. 378. ^ Frame v. Datvson, 14 Ves. 386. See too per Lord Bldon in Ex parte s Jnfra § 601 et sea. Hooper, 19 Ves 479; per Plumer , ^^^ ^^^^^ ^^ -^^ ."^ Buehnasfer M.E. m MorpheU y. Jones, 1 Sw. 181; 5 Yin. Abr. 323, pi. 41; ^' Phillips V. AUerton, 24 W. E. 8; ' ^ee infra, § 648, and Steevens's and Brennan v. BoUon, 2 Dr. & Hospital y. Dyas, 15 Ir. Oh. E. 405, 491 War. 349. Distinguish, however, '^^' Hodson T. Heuland, [1896] 2 Oh. " In Mundy v. Jolliffe, 5 My. & 428. Or. at p. 177. s2 260 OF THE DEFENCES TO THE ACTION. acted in execution of the agreement. Under such circumstances, the Court will struggle to prevent such injustice from being effected; and, with that object, it has, at the hearing, when the plaintiff has failed to establish the precise terms of the agreement, endeavoured to collect, if it can, what the terms of it really were." NoreUef § 587. Such being the principle on which the refusaito Court acts, it follows that, wherever the acts of the perform is party to bo charged have caused no change of circum- no fraud, g^^nces in the other party,^ and wherever the acts of part performance by the one are not such as to render refusal by the other party to perform the contract a fraud in him, however clearly they may evidence the existence of a contract, there the jurisdiction in ques- tion can have no application ; and this may be the case either from the character of the person permitting the acts, or from the nature of the acts themselves. The acts § 588. From what has been said, it appears that dontwia *^^ ^^^^ ^-^ P^-*"^ performance must in all cases be done the know- by the person asserting the contract with the know- the^person l^dge of the pcrson sought to be charged that the acts to be are being done and are being done on the faith of the ° ^^^^ ■ contract; without such knowledge there would be neither injustice nor fraud. Where not § 589. On the ground that the character of the ien?from P^rsou permitting the acts prevented the notion of character fraud, it has been decided that where a plaintiff seeks person. ^^ cuforce agaiust a remainderman a parol contract entered into between the plaintiff and the tenant for life, acts of part performance which would have bound the tenant for life will not bind the remainder- man, unless it can be shown that he permitted the acts of the plaintiff with a knowledge of the contract entered into by the tenant for life.^ For to constitute ^ Colon V. Cat07i, L. E. 1 Oh. 72 ; joer Lord Cran-worth. in Morgan 137; S. 0. in D. P., L. E. 2 H. L. y. Milman, 3 De G. M. & G. 33. See too Flesher v. Trotman, 3 Gifl. 127. 2 Blare y. Sutton, 3 Mer. 237 ; Whithread v. Brockhurst, 1 Bro. ^^V-Q l Fay Y.Burke, Sir. Ch.U. 0. 0. 404 ; per Lord Eedesdale in 225 ; Hope y. Gloncurry, I. E. 8 Eq. Shannon y. Bradstreet, 1 Soli. & Lef. 555. OF PART PERFORMANCE. 261 fraud, there must coincide in one and the same person knowledge of some fact and conduct inequit- able having regard to such knowledge. And again, on the same principle, where the acts are those of persons not parties to the contract, they will not be binding : so that, for instance, acts done by arbitrators towards the performance of their duty, are not part performance of a parol contract for a compromise and division of estates by arbitrators.^ § 590. From the nature of the act, it follows, From the that though, as we shall hereafter see, it has been tteall"* a question how far the acceptance of part of the purchase-money binds the vendor, the payment of this on the part of the purchaser can in nowise bind him, because to refuse to complete the contract after paying ' ' part of the purchase-money, would be no fraud upon the seller, but his own loss."^ The question was raised in a case where the co-heirs of a purchaser sought the enforcement of the contract against his personal representatives, and set up his part payment as a part performance making it a binding contract : ^ but, on the ground above stated, Grant M.R. decreed against the claim of the heirs. § 591. Upon the same principle it seems doubtful From whether any acts which admit of alternative remedies, ^J^t al- one by the execution of the contract and another by ternative ,1 J? • X 1 remedies some other means, as, for instance, a compulsory taking under the Lands Clauses Consolidation Act, can be taken as part performance; because there is no fraud on the other party if the remedy other than that by execution of the contract be pursued.^ § 592. Thirdly, the contract which the acts of iu. The part performance allow to be set up by parol evidence ^ust be must be of such a nature as that the Court would have such as had jurisdiction to enforce it specifically if it had been enforced. in writing. In this respect the jurisdiction of the High Court is the same as that of the Court of Chancery. The rule in the latter Court was that ' Oooth T. Jackson, 6 Ves. 12. 341 ; S. 0. on appeal, 13 Ves. 456. = 7 Ves. at p. 345. ' ^^^ -P^'" ^"^"^ Cranworth in Morgan v. Milman, 3 De G. M. & 3 BucJcmaster v. Harrojp, 7 Ves. Q-_ gg_ 262 OF THE DEFENCES TO THE ACTION. where there was jurisdiction in the original subject- matter, viz., the contract, the want of writing would not deprive the Court of it, where there was part performance. But tlie want of writing could not itself be made the ground of jurisdiction, for if that were so, all parol contracts required by the Statute of Frauds to be in writing, and in part performed, might have been enforced in Equity : which was not the case. Accordingly a demurrer to a bill for work and labour done, alleging fraud and part performance, was allowed by Lord Cottenham.^ To what § 593. As was to be expected, the fusion of Law doesXo^- ^^^*^ Equity has given rise to questions as to the extent trine of of the doctrine of part performance. Is this equitable formanee doctrino to bo applied to all cases, or only to contracts apply? where it would have been applied by the Court of Chancery ? This question may be safely answered by saying that its application is to be thus restrained. But what is then its extent ? In Britain v. Ro&siter^ the limits of the doctrine were stated differently by each of the three learned judges: the M.R. (Lord Esher) confined it to "cases concerning land," Cotton L.J. to "questions relating to land," and Thesiger L.J. to " sales of land." In Maddison v. Alderson,^ Lord Selborne in his speech in the House of Lords referred to the decision in Britain v. Rossiter, and seems to have doubted how far it was consistent with the views of Lord Cotten- ham in Hammer sley v. De Biel^ and Lassence v. Tierneyj" And in McManus y. Oooke,^ Kay J. criticised the case of Britain v. Rossiter, and discussed several rele- vant authorities, and concluded that probably it would be more accurate to say that the doctrine of part per- formance of a parol agreement " applies to all cases in which a Court of Equity would entertain a suit for ' Kirk V. Bromley Union, 2 Ph. § 98. 640. Tlie case of Pcm5ro7<;e V. Thorpe 2 11 Q. B. D. 123 (3 Sw. 437, n.) may appear at van- ^ o a m a,.>, ,^,. .,,.,. ••' ^\ , .„ , M App. Gas. 467, 474. ance with this view, but will be reconciled by oonsidermg that Lord * ^^ ^^- ^ '^''^- ^*' ^• Hai-dwicke held the Court to have ' 1 M'N. & G. 551. an original jurisdiction in respect " 35 Ch. D. 681. See too ScoU of building contracts. See supra, v. Rayment, L. E. 7 Eq. at p. 115. OF PAKT PEEFORMxVNCE. 263 specific performance if the alleged contract had been in writing." It may be questioned whether this statement of the extent of the doctrine would not be made more accu- rate by omitting the words "for specific perform- ance." § 594. It has been further held that the doctrine it does not of part performance does not extend to enable the damlgel Court to award damages on a parol contract.^ § 595. The necessity of original jurisdiction in Where case the contract had been in writing in order to ^^"'^ °^ ^ induce the Court to interfere in cases of parol con- tracts is illustrated by cases in which there has been a want not of writing', but of a seal. Thus where the ' plaintiff stated a cjaim against a company for work and labour done on the estate of the company, and alleged that, as the contract was not under seal, and as the company claimed the legal estate in the land, he had no remedy except in Chancery, a demurrer by the company to the plaintiff's bill was allowed.^ § 596. So, again, where the engagement is of an Where honorary and not of a legal character, part perform- tatement ance gives the Court no jurisdiction.^ Thus in the of an case of Lo7^d Walpole v. Lord Orford,^ where two testa- oharactCT. tors on the same day, and in the presence of the same witnesses, executed mutual wills ; one of the testators having died, it was argued that there was part per- formance under circumstances which could only be referred to a contract between the testators to make such wills : but Lord Rosslyn, though inferring an agreement of some sort, held it to have been a merely honourable engagement, and one Avhich the Court therefore could not carry into effect. § 597. On the same principle, there can be no Orincom- part performance of an incomplete contract. For acts ^ ^*^" to amount to part performance, the contract "must be obligatory, and what is done must be done under the 1 Lavery v. Fundi, 39 Oh. D. Oxford v. Crow, [1893] 3 Ch. 535. ^0^' ^^^- 3 Of. supra, § 316. ^ CramptoriY.Varna Railway Co., L. E. 7 Oh. 562. Of. Mayor, &c. of " 3 Veg. 402. 264 OF THE DEFENCES TO THE ACTION. terms of the agreement and by force of the agree- ment." ^ laird Y. § 598. Where, however, the owner of a ship- 'Maitwm"'^ building yard proposed to construct a siding from it Co. to a railway station close at hand, and obtained from the railway company a general assent to his proposal, and proceeded to make the siding, without the details of the arrangement having been agreed upon, and after the construction of the siding was allowed to use it on terms embodied in an informal memorandum ; it was held that even had there not been any actual user the Court would probably have found means to enforce the completion of some arrangement by which the company would have been compelled to allow the siding to be used on reasonable terms, and that, the memorandum showing what were reasonable terms, an arrangement on that footing would be enforced.^ Where § 599. It is porhaps scarcely needful to observe adverse"^ that wherc the possession taken is not under a contract, c\ ' but adverse, the circumstance that there is no Common Law remedy does not suffice to give the Court juris- diction.^ § 600. The general character of the acts which are requisite to constitute part performance for the purpose in question having been stated, it is proposed now to show the result of these principles in respect of some particular acts.* § 601. Possession is in some cases equivocal in respect of the title to which it is to be referred : ^ in other cases it is not : therefore the possession of a tenant, after the expiration of a lease, which was Particular acts. Posses- r> ' Per Lord Brougham in Lady E. Tliynne v. Earl of Olengall, 2 H. L. C. 158; Ex parte Foster, Be Foster, 22 Ch. D. 797. * Laird v. Birkenhead Bail. Go., Jolms. 500. 2 East India Go. y. Nuthumhadoo Veerasawmy Moodelly, 1 Moo. P. C. C. 482. * Consider, in addition to the cases referred to in the text, Kelly V. Walsh, 1 L. E. Ir. 275, where giving consent to a lease was held to be, under the circumstances of the case, an act of part perform- ance. '■ See Wills v. Stradling, 3 Ves. 381 ; Lamare v. Dixon, L. R. 6 H. L. 414 ; Millard v. Harvey, 34 Beav. 237. OF PART PERFORMANCE. 265 referable only to a contract for a renewal, has been considered part performance of such a contract.^ §602. Still more clearly "the acknowledged Possession possession of a stranger in the land of another is not "okno^P'^ explicable except on the supposition of an agreement, ledged. and has therefore constantly been received as evidence of an antecedent contract."'^ Thus, to refer to an Pm»v. often cited case, where a parol contract for a lease ^'"""*'- was made, and the terms of it were agreed on between the proposed lessor and lessee, and by the direction of the lessor the lessee instructed a solicitor, who acted for both parties, to reduce the terms to writing ; and the solicitor took a note of the terms thus stated to him, and from it prepared a draft contract embodying these and other terms, which he submitted to the lessor, who afterwards, without objecting to it, let the lessee into possession, and directed the solicitor to prepare a lease in pursuance of the draft contract; and a draft lease was accordingly prepared, to which the lessor objected, and gave the tenant notice to quit : — the Court held that there was part performance of the contract, and enforced the same accordingly.^ And continuance in possession may, if unequivocally referable to the contract alleged, be a sufficient act of part performance, although the taking of possession was antecedent to the contract.'' § 603. Even where the possession has been taken Possession without consent, yet if the owner afterwards allow the ^_i"^®^^ stranger to remain in possession, this will, it seems, operate as an act of part performance.'' • Dowell V. Dew, 1 Y. & 0. C. 0. Str. Y83 ; Steiuart v. Denton, 1 345; 12 L. J. Ch. 158; of. Buck- Fonbl. Eq. 187; Savage v. Carroll, master v. Sarrop, 13 Ves. 456, 474 ; 1 Ball & B. 265 ; Kine v. Balf, 2 Millard v. Harvey, 13 W. E. 125 ; Ball & B. 343; Dale v. Hamilton, 5 10 Jur. N. S. 1167 ; Powell v. Love- Ha. 381 ; Pain v. Ooomhs, 3 Sm. & grove, 8 De G. M. & G. 357, 367. Gif. 449 ; S. 0. 1 De G. & J. 34. Distinguish Brady's case, 15 W. E. ' Bain v. Coombs, 1 De G. & J. 753. 34. See too Miller v. Finlay, 5 2 Per Plumer M.E. in Morphett L. T. N. S. 510. V. Joms, 1 Sw. 181. See accord- * Hodson v. Heuland, [1896] 2 ingly Butcher v. Stapely, 1 Vern. Oh. 428. 363; Pylce v. Williams, 2 Vern. ' Gregory y. Mighell, ISYes. 328; 455 ; JEarl of Aylesford's case, 2 Pain v. Coombs, 1 De G. & J. 34, 46. 266 OF THE DEFENCES TO THE ACTION. feiiT/^™ § ^O"^' Possession is, it must be observed, part and performance botb by and against tbe stranger and the boa"^* . owner :^ the owner has allowed the stranger to do an ties alike, act on the faith of the contract, viz., enter on the land : the stranger has allowed the owner to do an act on the faith of the contract, viz., withdraw from the land. They are therefore both bound. Possession § 605. Possession is, as already pointed out, part rconT-™^' performance as well against a company as against a paiiy. natural person.^ In con- § 606. It is not only in contracts for a sale or a otwtii l^^se that possession is part performance. It may of sale or let in parol evidence of any contract explaining the lease. possessioii. Thus where A. was in possession of his own land subject to a mortgage, and he, as he alleged, contracted with B. that B. should purchase the land from the mortgagee, and hold it for the benefit of A., subject to certain terms for the repayment of the purchase-money ; and B. afterwards set up the pur- chase as being an absolute one for his own benefit ; the continued possession of A. as owner of the land was held to be part performance of the contract alleged by him.^ In another case A. by parol agreed to allow B. the occupation of a leasehold house for life, on payment merely of ground rent, rates, and taxes. B. was put into possession : and that possession was held to preclude any objection on the ground of the statute.* Marriage § 607. Many casos havo also arisen in respect of marriage contracts, where the part performance has excluded the operation of the statute. Thus in a case, where there was a parol promise before marriage to give certain property to the married pair by the father of the intended wife : the marriage took place, and was followed by the delivery up of possession to the son-in-law, expenditure of money by him, and the See too jper Lord Kingsdown in ' Lincoln v. Wright, 28 L. J. Oh.. Eamsden Y. Dyson, L. E. 1 H. L. at 7o5; S. 0. 1 W. E. 124, 350; 4 P-^'^*^- DeG. &J. 16. ' Wilson T. West Hartlepool Mail- way Go., 2 De G. J. & S. 473, 485. * Goles v. Pilkington, L. E. 19 Eq. ' S. 0. 174. OF PART PERFORMANCE. 267 absence of all disturbance on the part of the father-in- law : these acts were held to be in part performance of the alleged ante -nuptial contract/ And so where a father verbally promised, in consideration of his daughter's marriage, to give her a house as a wedding- present, and immediately after the marriage put the daughter and her husband into possession, and con- tinued himself to pay what became due to a building society in respect of an existing mortgage on the house, it was held by the Court of Appeal (affirming the decision of Malins V.C.) that the possession took the case out of the statute, and that the balance due to the building society on the father's death was payable out of his estate.^ § 608. The same principle applies in cases of family Family arrangements involving the giving up, partition, or ^^?°'^' exchange of land; so that though such arrangements may be by parol, yet if they be followed by uninter- rupted exclusive enjoyment of the several lands in pursuance of the arrangement, the Court will speci- fically enforce them.'' § 609. In considering this effect of possession Effect of where the acquiescence has been of very long dura- ^^^^ °^ tion, the Court will regard the lapse of time as a circumstance against allowing the statute to be set up.* § 610. The laying out of money, provided it be Laying such as would only be likely to take place in pursu- ^oney. ance of such a contract as that alleged, and it be with the privity of the other party, is an act of part performance.® Therefore, where a proposed lessee entered and built, the acts were held to be such;^ and 1 Surcome v. Pinniger, 3 De G. * BlacJefordY. Bockpatrich, 6Bea,Y. M. & Gr. 571. See also Floyd y. 232; cf. Orookr. Corporation of Sea- Bucldand, 1 Perm. 268. ford, L. E. 10 Eq. 678; 6 Oh. 551. 2 Ungley v. UngUy, 4 Ch. D. 73 ; 5 Oh. D. 887; followed in Sharman V. Sharman, 67 L. T. 834. nn -r\ i-r- a -u , r,^ 1, at 11 1 tr *r -R Oh. D. lo6. bee, however, per 3 BtocUey V. Stochley, 1 V. & B. ii, t n • n 1 ,^ , ,T 7 1 -17- n".T Lord Oranworth. Ij.U. m Caton v. 23; Neale v. Neale, 1 Ke. 6/2; r t> ^ n\, t- no •^.„. Tir-iT n -n J a™ Ccrfon, L. E. 1 Oh. at p. 148. Wilhama v. Wilhams, 2 Dr. & bm. ^ 378, affirmed L. E. 2 Oh. 294 (see '' Savage v. Foster, 5 Yin. Abr. especially, pp. 304, 305) ; Cood v. 524, pi. 43 ; Reddin y. Jarmyn, 16 Good, 33 Beay. 314. L. T. 449. 5 Wills y. Siradling, 3 Ves. 378 ; Howard y. Patent Ivory Co., 33 268 OF THE DEFENCES TO THE ACTION. How dif- ferent from pos- session. Expendi- ture and other acta admitting of com- pensation. again, the alteration of a garden fence and the plan- tation of a meadow with the privity of the other party, and partly at his expense, by a tenant in possession, were held acts of part performance, evidencing a con- tract to demise the meadow for a term.^ So the expenditure of money, in alterations and repairs of the property, by a sub-lessee with the knowledge of the owner has been held to be part performance of the contract by the owner to let to the sub-lessor.^ § 611. The expenditure of money differs, it will be observed, from possession, in two respects : the one, that whilst mere possession is referable to a tenancy at will, as well as to a larger estate, the laying out of any considerable sums of money is rationally to be referred only to some contract to confer a substantial interest in the property ; the other, that whilst pos- session cannot be supposed to be continued by a stranger without the knowledge of the owner, a person in possession may well lay out money without the owner's cognizance : and what is therefore neces- sarily inferred in the one case must be proved in the other. § 613. There are cases where it has been held that, as money spent in repairs easily admits of com- pensation, such expenditure is no part performance, and consequently does not avail to take a case out of the statute;^ and where the acts relied on are proper to be brought before a jury, and can be answered in damages, or are in the nature of acts of preparation,* they will not be considered as part per- formance. But nothing can be clearer than that there are many acts, easily enough admitting of compensa- tion, which yet amount to such part performance as will enable the Court to enforce a parol contract. ' Sutherland v. Bri(/(j3, 1 Ha. 26. So3 also Stockley v. StockJei/, 1 V. & B. 23 ; Toole v. Medlicott, 1 Ball & B. 393; Mundy v. JolHffe, 5 My. & Or. 167 ; Surcome v. Puiniger, 3 De G. M. & G. sn ; Farrall v. Davenport, 3 Gifl. 363; Norris v. Jackson., ib. 396. Distinguish. Mil- lard V. Harvey, 34 Bear. 237. ^ jnWj'ams V. £'ya?ts, L. E. 19 Eq. 547. See too Shillibeer v. Jarvis, 8 De G. M. & G. 79, 87. Distinguish Hoiue V. Hall, I. E. 4 Eq. 242; Gardner v. Fooks, 15 W. E. 388. 2 Frame r. Dawson , 14 Ves. 386 ; cf. Forster v. Hale, 3 Ves. at p. 713. * O'Beilly v. Thompson, 2 Cox, 271. OF PART PERFORMANCE. . 269 § 613. If the laying out of money in alterations Payment in pursuance of a contract is a part performance of it, ohaHe-" it might be supposed that making a payment of the money purchase-money payable under the contract was yet more clearly a part performance. But this cannot be said to be the case. For it seems now to be decided that the payment by the purchaser to the vendor of the whole ^ or a part, whether substantial or unsub- stantial, of the purchase-money, is not an act of part performance which will take the parol contract out of the statute. § 614. The best explanation of this doctrine is Wlynot said by Lord Selborne^ to be that the payment of partper- money is an equivocal act, and not iu itself, until the formance. connection is established by parol testimony, indica- tive of a contract concerning land. But other grounds for this decision have been alleged, as that the men- tion of part payment in the 17th section of the Statute of Frauds, and the silence in that respect of the 4tli section, must be taken to show that the Legislature did not intend that part payment should be binding in cases of the sale of lands : ^ and again, that the money may be repaid, and that both parties will then be in the situation in which they were before the con- tract, without either party's having gained any in- equitable advantage over the other.* This is a case where, for the act done, there are alternative reme- dies, one by the execution of the contract, and the other by repayment, — and the election to put the other party to the latter remedy is no fraud. It has been truly said that this reasoning overlooks the possibility of an insolvency intervening and prevent- ing the repayment of the purchase-money.^ What- ever be the true grounds of the doctrine, the doctrine itself is well established. § 615. The law upon this subject was, however, Vaciiia- 1 See per Knight Bruce L.J. in ^ Clinan v. Cooke, 1 Sch. & Lef. Hughes v. Morris, 2 De G. M. & G. 22 ; Watt v. Evans, 4 Y. & 0. Ex. 579 at p. 356; Britair. y. Rossiter, 11 , "^^.^^^^ ^ ^ ^^^_ ^ ^^^_ Q. B. D. 123, 130. 22. 2 'hxMaddisonY,Alderson,^A-pp. 6 13 ygg. 4ei^ ^ote by the re- Cas. 478. porter. 270 OF THE DEFENCES TO THE ACTION. tion of the for a time somewhat vacillating. Lord Cowper held subject, part payment not to be j)^'" periormance. bubse- quently, in a case before Lord Hardwicke, he, on the contrary, held part payment to be part performance;^ but this as a general proposition was early overruled. The question then arose whether, although payment of a small instalment was inoperative, payment of the whole or of a substantial part of the price would not be an act of part performance. Lord Rosslyn main- tained the affirmative of this question ; ^ but Lord Redesdale denied any such distinction ; * and Lord Eosslyn's decision seems now to be overruled, upon the ground that it is impossible satisfactorily to dis- criminate between substantial and unsubstantial part payments.^ § 616. Payment of the auction duty has been held not to be part performance, it being by the revenue laws essential to the contract, and " that without which there would have been no contract cannot be said to be in part performance of the con- tract." « § 617. The same vacillation, which characterized the course of the authorities on payment of the pur- chase-money as part performance, has attended the cases dealing with the question whether payment of an additional rent is to be treated as part performance. In the earliest case on the subject, it was laid down that such a payment, if shown or admitted to be on the foot of the contract is a circumstance of part performance.'' It was subsequently determined not to be,® but this decision appears to be overruled by the case of JV^unn v. Fabian,^ where a landlord, having Payment of auction duty. Payment of addi- tional rent. Niinn V. Fabian. ^ Lord Pengall v. Ross, 2 Eq. 0. Ab. 46. ^ Lacon v. Merlins, 3 Atk. at p. 4. See also Child v. Comber, 3 Sw. 423, n. 2 Main v. Melhourn, 4 Ves. 720. See the arguments in Wills v. Strad- ling, 3 Ves. 378, and Simmons v. Cornelius, 1 Eep. in Oh. 138 (a case ■before the statute). * In Ctinan v. Cooke, 1 Sch. & Lef. 22. 5 Watt V. Evans, 4 Y. & 0. Ex. 579. See Ex parte Hooper, 19 Ves. 479. ^ Per Grant M.E. in Buckmaster V. Earrop, 7 Ves. at p. 346. ' Wills V. Stradlimj, 3 Ves. 378. 8 O'Herlihy y. Hedges, 1 Sch. & Lef. 123. s li. E. 1 Oh. 35. Consider Howe V. Hall, I. E. 4 Bq. 242 ; Archbold OF PART PERFORMANCE. 271 verbally agreed with, liis tenant to grant him a lease for twenty- one years at an increased rent, died before the execution of the lease, but after having received from the tenant one quarter's rent at the increased rate : and it was held that this payment constituted a sufficient act of part performance to take the case out of the statute. § 618. It is not easy to think that the whole Revie-w group of cases dealing with the payment or expendi- oases^on ture of money on the footing of a contract is satis- payments factory. It would seem reasonable to hold one or perform- other of two things : that all payments of money made ^"^ce. by one contracting party with the knowledge of the other, and on the faith, of the contract, should be deemed acts of part performance for the purpose in question : or that none of such acts should be deemed ,' to be part performance, and that the Court should in all these cases think that the possibility of repayment deprived them of any effect on the Statute of Frauds. It does not seem reasonable to halt between the two opinions. § 619. Marriage alone is not a part performance Marriage. of a contract in relation to it : for to hold tliis would be to overrule the Statute of Frauds, which enacts that every agreement in consideration of marriage to be binding must be in writing.^ Accordingly, where there was, before marriage, a contract by parol for the settlement of part of the wife's property, and that the husband should take the rest, which he did, but there was no settlement made ; and the wife subsequently filed her bill, stating these facts, for the purpose of obtaining a declaration of her rights in certain pro- perty coming to her, and the husband by his answer V. Eowth, I. E. 1 0. L. 608. In ^ Per Lord Hardwicke in Taylor HumpTireya v. Oreen, 10 Q. B. D. v. Beech, 1 Ves. Sen. 297 (see as to 148, some doubt -was cast on Nunn this case McManus v. Goohe, 35 V. Fabian by Lord Esher (then Ch. D. 681, 691); j5er Lord Thurlow Brett L.J.). But in GonnorY. Fitz- i^Dimdasr. Diitens, IVes.Jun. 199. 7 7 11 T T> fT \ 1A/1 i-T. TTM As to tMs case, sce th.e obsBrvatious gerald, 11 L. R. (Ir.) 106, the V.U. j, -r j -n -n -.r -r. ■ tt^ , ^ V / ' j,f Loj,^ Eomilly M.E. m Warden followed Nunn v. Fabian, and so ^_ ^^„^^^ 23 Beav. 487; S. 0. on did Byrne J. in Miller & Aldworth, appeal, 2 De G. & J. 76. Consider Limited v. Sharp, [1899] 1 Ob. 622. Gilchrist v. Herbert, 20 W. E. 348. ^'^2 OP THE DEFENCES TO THE ACTION. admitted the statements in the bill, and a deed was then prepared pm-porting to be a settlement on the wife in pursuance of the contract, and was signed but not acknowledged by the wife : in a suit by a plaintiff claiming under the settlement against the heir, it was held that there was no part performance by marriage, nor any other part performance of the parol contract, and that it was void and all the subsequent proceedings ineffectual.^ ^cl'Zi^' § 620. In a case already referred to, the intended husband and wife, previously to marriage, agreed by a writing, which was held to be unsigned, that the husband should have the wife's property for her life, paying her a certain sum by way of pin-money, and that she should have it back again after his death ; and instructions were given for a marriage settlement to have that effect ; but no settlement was ever executed, the husband promising, as the wife alleged, to make a will giving her all his property — a promise which, if made, he did not keep. After the husband's death the wife sought specific performance of the ante- nuptial arrangement, but it was held that there was no contract in writing within the statute, and that the marriage was no part performance.^ This decision was affirmed by the House of Lords,* but the question of part performance was not there argued. Acta con- § 621. There may, of course, often be acts con- nected nected with the marriage which, as independently of maoriage. it they would be acts of part performance, are not the less so from being done in connection with it, and therefore differ from cases where the marriage is the sole act relied on. Thus, in a case which was ultimately decided by the House of Lords, it was held that the execution by the husband of a settlement in pursuance of a parol contract entered into by him with the lady's father previously to the marriage, being something over and above the marriage, was an act of part performance of the parol contract entered into pre- 13/. °°^- ' L. E. 2 H. L. 127. OF PART PERFORMANCE. 273 viously to it.^ In the case of Warden v. Jones'^ it was held by Lord Romilly M.R. that the execution of a settlement is no act of part performance where the previous parol contract is between the intended husband and wife only, and not between the husband and some third person, and that such a settlement must be considered a voluntary deed; and this decision was affirmed by Lord Cranworth. § 622. The cases in which the Court relieves on Marriage the ground of marriage in fraud of a parol contract ofpre^^ua entered into previously must, of course, be distinguished parol from cases in which the marriage itself is set up as '^°^^^^°^- part performance of the contract.^ § 623. But though marriage be not, cohabitation Cohabita- may be a sufficient act of part performance. In a separation deed, the husband covenanted with a trustee for the payment of an annuity to his wife : shortly before the death of the husband, his wife returned to him upon the faith of a promise made by the husband to the wife and her trustee, that if she would do so he would continue to pay the annuity and would charge it upon his real estate. He died without having done so, and it was held that the contract could be enforced against the devisees of the husband, on the ground of part performance.* § 624. As acts done prior to a contract cannot be Previoua referred to it as done in pursuance of it, they can never ^°^^' be treated as acts of part performance.^ § 625. And so also acts subsequent to the contract, Prepara- and even in pursuance of it, if not strictly in perform- °^ *° ^' ance of the contract as between the parties to it, but preparatory to such performance, cannot be taken as part performance. It is evident that acts of this sort may be, and for the most part are, the mere acts of the 1 Hammerdey v. Be Biel, 12 01. & 293, where service as housekeeper Fin. 45, 64, n.; Surcomey. Pinniger, and giving up other prospects in 3 De G. M. & G. 571. life were regarded by Stephen J. as 2 23 Beav. 487, on appeal 2 De part performance ; but his decision G. & J. 76. was reversed on appeal, 7 Q. B. D. 2 See supra, § 576. 174 ; 8 App. Gas. 467, sub nom. * Webster v. Webster, 1 Sm. & G. Maddison v. Alderson. 489, affirmed 4 De G. M. & G. 437. ^ Parker v. Smith, 1 OoU. 608, Of. Alderson y. Maddison, 5 Ex. D. 623. 274 OF THE DEFENCES TO THE ACTION. party doing them : the other party is not necessarily cognizant of them, and consequently he is not so bound by them as to render it fraudulent in him subsequently Instances, to rcfusc to Carry the contract into effect. Therefore giving instructions for a lease/ putting a deed into a solicitor's hands to prepare a conveyance/ giving orders for a conveyance to be drawn and going several times to view the estate/ the execution and registra- tion of the deeds by the vendor/ and the admeasure- ment of the estate/ have all been decided not to be acts of part performance binding on the other party to the contract. So, again, where it was a condition of the contract that the plaintiff should obtain a release of a right from a third party, which the plaintiff did obtain by payment of a valuable consideration ; it was held to be merely a preparatory act on the part of the plaintiff, and not a part performance of the contract.® And the appropriation of money by a party, though it may be with a view to an intended purchase, is not of itself any part performance or evidence of any contract.'^ § 626. To the same principle may probably be referred the case of Whaley v. Bagnel^ in the House of Lords. A. agreed by parol with B. for the purchase of lands: B. delivered a rent-roll to A., which showed by its heading that a contract had been entered into between them for the sale of the lands comprised in it at twenty-one years' purchase, and an abstract of the title and deeds was also delivered to A. for the purpose of effecting the sale : B. informed his creditors by letter that he had agreed to sell the land to A. : he took A. over the estate, introduced him as landlord to the tenants, and refused to renew leases and do other acts of management as owner, in these cases referring the tenants to A. B. also set up the contract against 1 Cole Y. White, cited 1 Bro. 0. 0. Beav. at pp. 444, 445. 409. 5 Pembroke v. Thorpe, 3 Sw. 437, n. « Bedding v. Wilhes, 3 Bro. U. 0. « O'Reilly v. Thompson, 2 Cox, 400. 271. 3 Clerh y. Wright, 1 Atk. 12 ; ' East India Co. y. Nuthumladoo Coolie V. Tombs, 2 Anstr. 420. Veerasowmy Moodelly, 7 Moo. P. 0. ^ Hawkins y. Holmes, 1 P. Wms. 0. 482, 497. 770; cf. Phillips y. Edwards, 33 s 1 Bro. P. 0. 345. OF PART PBRFOEMANCE. 275 an elegit, and on the strength of it obtained a verdict finding him not to be seised of the lands in question : but notwithstanding all these circumstances, a plea of the Statute of Frauds was allowed. § 627. In Phillips V. Edwards,^ IsindL being vested FuiupsY. in a trustee for a married woman with power to lease ^'^^'""^'■ at her request in writing, the two verbally agreed to let it, and executed a lease of it; but before her solicitor had parted with the deed, and before the plaintiffs (the would-be lessees) had executed the counterpart, the married woman (who had made no written request to the trustee) signified her intention to retire from the transaction. It was held by Lord Romilly M.R. that her execution of the lease was no part perfoi-mance, and that there was no binding contract. § 628. But where the contract between A. and B. Parker y. comprises acts between A. and B., and also between B. ^"^'*''' and C, and A. may be supposed to have an interest or to have stipulated in respect of the acts between B. and C, part performance with knowledge of this part of the contract renders it binding on A. This seems to be illustrated by the case of Parker v. Smith} There a lessor entered into a pai'ol contract with a colliery company, holding a lease from him, and con- sisting of four partners, of whom two were his sons, that one of his sons and one of the other partners should retire and leave the benefit of the business to the remaining two, and that thereupon he would con- sider the subject of rent, which it was found was put too high in the original lease, and refer the subject to a competent person, and on the report of that person being made, would, if the report should seem right, adopt it, and grant a new lease. The dissolution of partnership so agreed on took place, and the two con- tinuing partners released the others : these acts, being referable only to the contract, were held to take the case out of the Statute of Frauds, and specific per- formance of the contract to grant the lease was enforced against the lessor's assignees in bankruptcy. This 33 Beav. ^40. ^ 1 OoU. 608. t2 276 OF THE DEFENCES TO THE ACTION. case has, it must be added, been doubted by Lord Selbome.^ Surrender § 629. In an Irish case, B. being tenant to A. of lease, surrendered his lease on the faith of a parol con- tract by A. to grant a new lease to C. : the surrender was held an act of part performance, and the contract was enforced against A.'s representatives.^ It. Of the § 630. Fourthly, the effect of part performance luhe°^ being, as we have seen, to show that there is a con- contract, tract, and to let in parol evidence of the terms of that contract, it becomes necessary to inquire on what evidence or admission of the contract the Court will act. oiassifica- § 631. The cascs which require to be considered ci°ses°* *^' may be classified as follows : (1.) Where the defendant admits the contract as alleged. (2.) Where the defendant denies the contract as alleged, and the plaintiff supports his case by one witness only. (3.) Where the defendant denies the contract as alleged, and the evidence proves a contract, but different from that alleged by the plaintiff. (4.) Where the defendant denies the contract as alleged, but admits another contract. 1. Con- § 632. — (1.) An admission of the contract in the mittedin plcadings of coursc precludes the necessity of further pleadings, proof : and the fact that the defence claims the benefit of the Statute of Frauds is immaterial in case of part performance, for that excludes the operation of the statute.^ 2. Denied § 633. — (2.) Under the practice of the Court of dant^s^"' Chancery, where the contract was positively denied by pleading, the answcr and was proved only by the unsupported evidence of one- witness, that was not allowed to pre- vail : but where the one witness was corroborated in his statements by circumstances, the proof might pre- vail over the denial.* But now that the defence is not ' In Maddison v. Alderson, 8 L. E. Ir. 99. App. Gas. 482. ^ Oooth v. Jackson, 6 Ves. 12. , ' Be CooJce's Trusteed' Estate, 5 * East India Co. y. Donald, 9 OF PART PERFORMANCE. 277 put in upon oath, the Court would no doubt feel itself justified, in a proper case, in acting upon the evidence of a single witness against the unsworn denial of the defendant. But if the defendant, in answer to inter- rogatories or by his evidence, swore positively to the denial, the Court would probably refuse to act upon the aflSrmative evidence of a single witness, if uncor- roborated. § 634.— (3.) In considering the cases in which a 3. Vana- variation has arisen between the contract alleged and between that proved, it must be boi'ne in mind that the burthen tte con- p • 1 • IP l_^ ^ ' x'j2c tracts al- oi proving nis case rests, oi course, on the plamtirr, legedand and therefore, if there be any such conflict of evidence proved, as leaves any uncertainty in the mind of the Court as to what the terms of the parol contract were, its inter- ference will be refused.^ § 635. Therefore, where there were variations instances. between the evidence of the one witness and a memo- randum of the contract in a pocket-book which was produced, the witness mentioning 1,000 guineas exclu- sive of timber as the price, whilst the pocket-book made no mention of the timber, the Court dismissed the bill.^ And where a contract was alleged by the bill, another proved by the plaintiff's one witness, and a third admitted by the two defendants, specific per- formance was decreed according to the contract set up by the answers ; but Lord Rosslyn considered that in strictness the bill ought to have been dismissed.^ In ■ a more recent case, where one contract was alleged and another proved, the bill was dismissed without prejudice to the filing of another bill.* The inclina- tion of Lord Cottenham's mind seems to have been to struggle with apparently conflicting evidence, rather than to dismiss the bill, where there had been part performance.^ In one case Turner L.J. observed that Ves. 275 ; Morphett v. Jones, 1 Sw. Jun. 243 ; cf. London and Birming- 172; Toole Y. Medlicott, 1 Ba. & B. ham Railway Co. v. Winter, Or. & 393. Ph. 57. 1 Lindsay v. Lynch, 2 Soli. & Lef. * Hawkins v. Malthy, L. E. 3 Cli. 1 ; cf. Price v. Salushury, 32 Beav. 188. Thefresli bill was filed : L. E. 446. 6 Eq. 505 ; 4 Ch. 200. 2 Reynolds v. Waring, Tou. 346. ^ Mundy v. Jolliffe, 5 My. & Or. 2 Mortimer v. Orchard, 2 Ves. 167. 278 OF THE DEFENCES TO THE ACTION. "there are cases in which the Court will go to a great extent in order to do justice between the parties when possession has been taken, and there is an uncertainty about the terms of the contract."^ And in the case of Oxford V. Provand^ where there had been part per- formance of a contract alleged to be vague in its terms, Sir William Erie in delivering the judgment of the Privy Council said, " With respect to the supposed vagueness of the memorandum of agreement, their Lordships propose to consider what is the true con- struction of that memorandum, having regard to the terms of the instrument and to the surrounding circumstances, and also in reference to this suit for specific performance, and to the conduct of the par- ties in the interval between the making of the agree- ments and the commencement of the suit."^ What 8 636. Where the variation between the contract are imma- alleged and that proved consists in the plaintiff's ad- teriai. mission of some term against himself, or omission of some term in his favour ; * or where the term which constitutes the variation is immaterial, from its being merely the expression of what would be implied or from its having been actually performed, the Court will not refuse the evidence of the contract. So that where a tenant alleged that he was to pay taxes and do necessary repairs, and the contract proved did not contain this term:^ and again, where a plaintiff ad- mitted a contract to drain the lands generally, and he only proved one to drain where necessary, and he also stated as part of the contract that he was to lay certain arable land into pasture, which was not proved by the evidence : ^ in each of these cases, the variation was considered as no reason for rejecting the evidence of the contract.'^ Inquiry. § 637. It IS perhaps not quite clearly decided ' East India Co. v. NutJmmbadoo 0. 0. 138, aflarmed 9 Jur. N. 8. 633; Veerasawmy Moodelly, Y Moo. P. 0. Lanyon v. Martin, 13 L. E. (Ir.) 0. 482, 497. See supra, § 335. 297. 2 L. E. 2 P. 0. 135. 5 Qregory v. Mighell, 18 Ves. 328. 3 See also Hart v. Hart, 18 Oh. D. " Mundy v. Jolliffe, 5 My. & Or. 670, 685. 167. ^ Clifford V. Turrell, 1 Y. & 0. ' See aupra, § 292. OF PART PERFORMANCE. 279 whether the Court can, in any case, direct an inquiry into the terms of a contract, when it has not been sufficiently proved to enable the Court to pronounce a final judgment upon the evidence before it. Lord Manners^ strongly expressed an opinion that the Court has no such jurisdiction, a view which seems to have met with the approval of the highest authorities.^ And in the case of Crook v. Corporation of Seaford,^ where Stuart V.C. had made an order giving the parties liberty to apply in Chambers in reference to the performance of the contract, Lord Hatherley said that he felt some difficulty about the decree, for it was the duty of the Coiu't to ascertain whether there was a contract, and if not to dismiss the bill ; but being himself of opinion that a contract had been made out, his Lordship varied the order by striking out the reference to Chambers, and declaring what the con- tract between the parties was, and ordering specific performance of it. § 638. The authorities upon the point now under The discussion, to which reference has been made, were all ^J^g™*e under the old pi-actice, and were greatly influenced by the incapacity of the Court of Chancery, except under very unusual circumstances, to permit an amendment of the record at the hearing. The High Court may be expected to feel itself freed from some of the difficulties which arose under the old practice in deal- ing with cases where one contract was alleged and another proved : it will probably, for the most part, feel it possible to deal with the matter once for all, and not to postpone the real discussion till a further proceeding shall have been taken : it is probable that the main question will always appear to be. Was there really and in truth a contract or not? that if there was, the Court will generally allow the needful amend- ment to put that contract in issue : that if there was not, it will generally give judgment' for the defendant, without reserving any right to the plaintiff to institute 1 Savage t. Carroll, 2 Ball & B. Birmingham Bailivay Go. v. Winter, ^^^- Cr. & Ph. 57. 2 St. Leon. Vend. 126 ; Story, Bq. Jur. § 764; cf. London and ' L. E. 10 Eq. 678; 6 Ch. 551. 280 OF THE DEFENCES TO THE ACTION. fresh, proceedings. But the circumstances will govern the discretion of the Court in each case which may- arise. 4. Alleged § 639. — (4.) It remains to consider the cases in de^a^but which the contract alleged by the plaintiff has been another denied, but another has been admitted by the defen- admitted. ^^^^^ j^ ^^^^ cases, if the acts of part performance were consistent alike with the one contract and the other, Lord Redesdale seems to have considered that there was no case to admit proof of the contract alleged by the bill, and that the acts of part perform- ance must be such as to show them to have been done in pursuance of the very same contract as that alleged.^ It is however submitted, that this view of the case is inconsistent with the general doctrine of the operation of the acts of part performance : that they open the whole question of the terms of the contract to parol evidence : and that as a written contract where there are acts of part perfoi-mance may be added to by parol,^ so a contract set up by the defence may be modified by parol. If this were not so, the plaintiff would be at the mercy of the defendant : for whereas if he simply denied the contract, the plaintiff would have an opportunity of proof by parol ; when he set up some other contract, all that evidence would be excluded.* Part re- § 640. It maybe added that the existence of a ■writing? sigued but incomplete contract is no obstacle in the way of proving the additional terms by parol where there is part performance : * for the whole might have been proved by parol, and so may part. The doctrine of parol variation has, of course, no application, where by reason of acts of part performance parol evidence is admissible. 1 Lindsay r. Lynch, 1 Sch. & Lef. C. B. 697. 1. See supra, §§ 581 — 584. * Sutherland v. Briggs, 1 Ha. 26, ' Sutherland v. Briggs, 1 Ha. 26. 35. Consider Price v. Salusbury, 3 Of. Tomkinaon v. Staight, 17 32 Beav. 446. 281 CHAPTER XII. OF THE FORMALITIES REQUIRED IN CONTRACTS BY CORPORATIONS. § 641. Questions relative to the formalities requi- Practical site to render a contract binding on a body corporate ancTof tho have so often arisen in proceedings for specific per- subject. formance that it is expedient to give an outline of the law on this point. § 643. When the party seeking to enforce a con- Contract tract/ or whom it is sought to charge with a contract, potation is a corporation, the contract must, subject to the must exceptions mentioned below, be under the common be'trndil^ seal; it being the rule of law^ that in no other way common can a corporation express its intentions. This rule is, ^^ ' however, subject to certain important exceptions. tions^ § 643. (i.) The rule does not apply to the contracts i- Some of trading corporations^ having relation to the trade oUradlng which they are constituted to carry on, nor to con- corpora- tracts of so everyday a character as would make the afiixing of the common seal to them a practical incon- venience.* § 644. (ii.) There are various statutes enabling ii. under certain classes of corporations to contract otherwise statutory ■■■ provisions. 1 Mayor, &c. of Kidderminster v. 617. Hardwich, L. E. 9 Ex. 13; Mayor, * Sanders v. St. Neots Union, 8 &c. of Oxford Y. Crow, [\S2'i']ZG'h. Q. B. 110; ClarU v. Cuckfield 535 ; Athy Guardians v. Murphy, Union, 21 L. J. Q. B. 349 ; Nichol- [1896] 1 I. E. 65, 75. son v. Bradfield Union, L. E. 1 2 1 Bla. Com. 475. Q. B. 620; Smith v. Birmingham 3 South of Ireland Colliery Co. v. & Staffordshire Oas Light Co., 1 A. Waddle, L. E. 3 0. P. 463 ; 4 C. P. & E. 526. 282 OF THE DEFKNCES TO THE ACTION. than under their common seal. The principal pro- visions for this pm-pose now in force are comprised in the Companies Clauses Consolidation Act, 1845, which regulates railways and other undertakings of a public character, and in the Companies Act, 1867, which applies to companies constituted under the Com- panies Acts, 1862 to 1900. Companies § 645. The Companies Clauses Consolidation Act, Acri84.5, 1846 (8 & 9 Vict. c. 16), s. 97,^ is as follows:— •i. 97. ' '< The power which may be granted to any such committee [of directors] to make contracts as well as the power of the directors to make contracts on behalf of the company, may lawfully be exercised as follows, (that is to say,) With respect to any contract which, if made between private persons, would be by law required to be in writing, and under seal, such committee or the directors may make such contract on behalf of the company in writing, and under the common seal of the company, and in the same manner may vary or discharge the same : With respect to any contract which, if made between private persons, would be by law required to be in writing, and signed^ by the parties to be charged therewith, then such committee or the directors may make such contract on behalf of the company in writing, signed by such committee or any two of them, or any two of the directors, and in the same manner may vary or discharge the same : With respect to any contract which, if made between private persons, would by law be valid although made by parol only,^ and not reduced to writing, such committee or the directors may make such contract on behalf of the company by parol ^ See Leominster Canal Navigation ^ Homersham v. Wolverhampton Co. V. Shrewsbury and Hereford Waterworhe Co., 6 Ex. 137, 141; 20 Railway Co., 3 K. & J. 654, 672, -^ j_ -g^^ ^gg ^ ^^ ^^^_ ^^^ fi7S ^'Finlay v. Bristol and Exeter Lowe y. London and North-Western Railway Co., 1 Ex. 409, 417; 21 Baihvay Co., 18 Q. B. 632, 638; 21 L. J. Ex. 117 ; 7 Bail. Cas. 449. L. J. Q. B. 631. OF FORMALITIES IN CONTRACTS BY CORPORATIONS. 283 onlj^ without writing, and in the same manner may- vary or discharge the same : And all contracts made according to the provisions herein contained shall be effectual in law, and shall be binding upon the company and their successors, and all other parties thereto, their heirs, executors, or adminis- trators, as the case may be ; and on any default in the execution of any such contract, either by the company or any other party thereto, such actions or suits may be brought, either by or against the company, as might be brought had the same contract been u\ade between private persons only." § 646. The 37th section of the Companies Act, ^°™P''"'f 1867 (30 & 31 Vict. c. 131), is as follows :— Tst ' " Contracts on behalf of any company under the Principal Act [the Companies Act, 1862], may be made as follows (that is to say) : — (1.) Any contract which, if made between private persons, would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing under the common seal of the company, and such contract may be in the same manner varied or discharged : (2.) Any contract which, if made between private persons, would be by law required to be in writing,^ and signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under the express or implied authority of the company, and such con- tract may in the same manner be varied or dis- charged : (3.) Any contract which, if made between private persons, would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any 1 See Beer v. London & Paris L. T. 115; 42 "W. E. 600; and Hotel Co., L. E. 20 Bq. 412; Jones Simultaneous Colour Printing Syn- V. Victoria Graving Doch Co., 2 dicate v. Foiueraher, [1901] 1 K. B. Q. B. D. 314; also Re Queensland 771; 70 L. J. K. B. 453 (oases of Land and Coal Co., [1894] 3 Oh. contracts by companies to issue 181, 183; 63 L. J. Oh. 810; 71 debentures). 284 OF THE DEFENCES TO THE ACTION. Former statutory prOTisions. iii. From the doc- triue of part per- formance. person acting under the express or implied authority of the company, and such contract may in the same way be varied or discharged : And all contracts made according to the provisions herein contained shall be effectual in law, and shall be binding upon the company and their successors and all other parties thereto, their heirs, executors, or adminis- trators, as the case may be." § 647. Somewhat similar provisions with regard to the contracts of companies were contained in the Joint Stock Companies Eegistration Act (7 & 8 Vict. c. 110), ss. 44 — 46 ; the Joint Stock Banks Registration Act (7 & 8 Vict. c. 113), s. 22 (as to bills of exchange and promissory notes only) ; and the Joint Stock Companies Act, 1856, s. 41. But these Acts have been repealed. § 648. (iii.) Another exception arises from the doctrine of part performance : for it appears to be clear that such part performance as will prevent an ordinary defendant from setting up the (iefence of the Statute of Frauds, will prevent a defendant company from setting up either that defence or a defence grounded on the absence of the corporate seal, or of the statutory formalities, in accordance with which the company may be enabled to contract. This was clearly laid down in the case of Wilson v. West Hartle- pool Harbour and Railway Co.^ and there are other authorities leading to the same conclusion.^ It must however be added that part performance by a company of a contract not under seal, "which is not in its nature the subject of specific performance, as, e.g.^ a contract for work and labour, will not give the Court jurisdiction.^ 1 34:Beav. 187; 2 De G.J. & S. 475. '^ MarshallY. Gorporationof Queen- horough, 1 S. & S. 520 ; Maxwell v. Dulwich College, 7 Sim. 222; London and Birmingham Railway Co. v. Winter, Or. & Ph. 57, 63 ; Earl of Lindsey v. Oreat Northern Railway Co., 10 Ha. 664; Crooh v. Corpora- tion of Beaford, L. E. 10 Eq. 678 ; 6 Ch. 551 ; Mayor, &c. of Brogheda V. Holmes, 5 H. L. 0. 460. 2 CramptonY. Varna Railway Co., L. E. 7 Oh. 562 ; supra, § 106. Of. Young & Co. v. Mayor, &c. of Royal Leamington Spa, 8 App. Oas. 517 ; and British Insulated Wire Co. V. Prescot TJrhan District Council, [1895] 2 Q. B. 463, in whict cases contracts which, had been performed OF FORMALITIES IN CONTRACTS BY CORPORATIONS. 285 § 649. The subject chiefly dealt with in this The sub- chapter is more fully discussed in various works on fuu„™°a! corporations and companies with which our law libraries cussed in abound, amongst which the well-known work of Lord ^orks. Lindley has long held the foremost place. by the plaintifls were held to be ■with obligatory provisions as to unenforceable against urban autbo- sealing, &c. contained in sect. 174 rities by reason of non-compliance of the Public Health Act, 1875. 286' CHAPTER XIII. OF MISEEPEESENTATION. Effect of a misre- presenta- tion. Elements of a mis- represen- tation. § 650. A MisREPEESENTATiON, whetlier fraudulent or innocent, having relation to tlie contract, made by one of the parties to the other of them, is a ground for refusing the interference of the Court in specific performance at the instance of the former party; and may in certain cases be a ground for its active inter- ference in setting aside the contract at the instance of the latter.^ Representations are most usually by vyord, written or spoken, but they may be by act, as, for instance, by the performance of fraudulent experi- ments, on the faith of which a contract was entered into for a licence under a patent.^ § 651. Such misrepresentations may be resolved into some or all of the following elements, namely, — first, a statement actually untrue : secondly, the making of that statement by a party to the contract : thirdly, the condition of mind of the person making the statement as to its truth or untruth : fourthly, the intent in the party making the statement to induce the other party to enter into the contract : fifthly, the reliance on the statement by the party to whom it is made : sixthly, the statement having such a relation to the contract as that the statement being false makes the contract unconscionable. ' Edioards v. M'Leay, Coop. 308 ; S. 0. 2 Sw. 287 ; Gilson v. D'Este, 2 T. & 0. C. 0. 542, reversed in D. P. sub nom. Wilde y. Gibson, 1 H. L. 0. 605 ; St. Leon. Law of Prop. 614. 2 Lovell V. Hicks, 2 Y. & 0. Ex. 46. OF MISEEPEESENTATION. 287 § 652. It will be desirable to discuss these points Division separately ; and, in doing so, it must be remembered tation'of that it makes a material difference whether the mis- the sub- representation in question is alleged by way of defence ^^^ ' to an action for specific performance, or to a Common Law action on the contract, or as the ground for an action of deceit,^ or for the rescission of the contract ; for somewhat less than the ingredients requisite for either of the two latter proceedings^ will suffice to prevent the active interference of the Court in specific performance. The object of the present chapter being to consider misrepresentations in relation to specific performance, it is, of course, only incidentally and very partially discussed in any other relation. § 653. A misrepresentation may or may not be a Misrepre- fraud. Where it is false to the knowledge of the how^re""^ person making it, it is a fraud. Where its falsity was lated to not known, it may have been carelessly made, or even in perfect innocence : and yet the fact that the statement was false may render it unconscionable in the person who made the statement to enforce the contract which it produced. § 654. (i.) The first point calls for little remark, i. a state- It is obvious that, to constitute misrepresentation, made and there must be a statement, and that statement must be untme. untrue. § 655. Mere silence is, generally speaking, neither Mere misrepresentation nor fraud : and, as will be shown in ^^ ^^''^' the next chapter,^ it is quite open to a vendor or purchaser to maintain such silence, though its effect may be that the other party acts under a misappre- hension. But silence may amount to misrepresenta- tion : as where, in the course of communications about a title, the solicitor of one party so wrote that he assumed certain things ; the assumj)tion was erroneous 1 As to actions of deceit, see the ivories v. WicJcens, L. E. 4 Oh. 101, leading case of Derry y. Peek, 14 reversing the decree of MalinsV.C. App. Gas. 337 ; 58 L. J. Ch. 864 ; j^-^., b„ 435 . Eedgrave v. Eurd, 61 L. T. 265 ; 38 W. E. 33. .r. nx. ^ ^ n -a a i ■ i , „ ,^, , a 77 a ni p -ni- 20 Oil. D. 1. Consider Arhionglit • Attwood T. Small, 6 01. & Pm. •^ 232, 395, 444 ; Lovell v. Hicks, 2 Y. V. Newlold, 17 Oh. D. 301. & 0. Ex. 46, 51 ; Aheraman Iron- ^ See infra, § 705. 28S OF THE DEFENCES TO THE ACTION. to the knowledge of the solicitor of the other party, but he let the matter pass in silence : this was held to be a misrepresentation.^ Ttera^nt § 656. The statement must be untrue: and in. is to be determining this question, it will not suffice to show ta^e'^'^' *^^^ ^^® language used might admit of a meaning which would make it correct.^ It must, it is conceived, be held to be untrue wherever it is found that the speaker intended or expected the hearer to accept it in a sense in which it would not be true. ii. The § 657. (ii-) The statement which is relied on as a ^^^f misrepresentation must have been made by a party to a party or the coutract Or his agent, and not by a stranger. his agent. ,< ^„ ^^-^ j^^^^ RomiUy M.R. "a third person, by representing to A. that it will be highly for his benefit, and by false representations induces him to enter into a contract with B., but B. makes no false representation, and is neither party or privy to any such, then the contract is valid, and stands good in this Court. But the person who, by false representa- tions, induced the other to enter into that contract is liable, in an action, to make good to the person he has misled the damage he has sustained by acting on the misrepresentation made to him."^ Durantifs case and U:i: parte Worth^ bring this principle into clear relief : for in those cases it has been held that if directors, as agents of the company, issue a false report, and third persons, influenced by this report, contract with the company for shares, the contract may be avoided ; but that if the same third persons contract with individual shareholders for shares, the contract cannot be avoided. What § 658. It is, of course, enough that the agent was mnftle appointed to bring about the contract for the principal, proved. and that he made the misrepresentation. It is not needful that he should have been appointed the agent to make the misrepresentation.^ Thus, in the cases 1 Andrew v. Aitken, 31 W. E. ' In Duranty's case, 26 Beav. at 425. p. 270. 2 ChrJce v. Dickson, 6 0. B. N. S. * 26 Beav. 268. 453 ; cf. Smith v. Ghadwick, 9 App. * 4 Drew. 629. Oas. 187. ° Barwich v. English Joint Stock i OF MISREPRESENTATION. 289 in whicli contracts have been rescinded against com- panies, the representations have been made by the directors, who, of course, have no express authority to make a misrepresentation.^ § 659. (iii.) As to the state of mind of the person ^■'^^ making the statement as to its truth or falsehood ; it mind of is to be observed that though there can be no fraud J^^]?^^*^ vpithout the knowledge of the untruth of the statement, the state- yet there may well be misrepresentation, i.e., the ™®'^*' representation may be erroneous, though not known to be so. § 660. We are not here concerned with an action ^ to to rescind a contract or an action for deceit, or a ledge of defence to an action for damages on the ground of ^^^f^fj^'^' fraud or misrepresentation : we are concerned with ^' actions for specific performance : in such, it is con- ceived to be clear that a false statement, though believed to be true, if made with a view to a contract by a party to the contract, is a good defence. In Wally. Stubbs,^ Plumer V.C. observed, '' that whether Waii^. the misrepresentation be wilful or not, of a fact latent '^''"***- or patent, such misrepresentation may be used to resist a specific performance, unless the purchaser really knew how the fact was." § 661. This point was particularly considered by sigghr, v. Lord Hatherley (when V.C.) in Higgins v. 8ameh,^ in '""°'' which case the defendant resisted specific performance on the ground of misrepresentation by the plaintiff, and it did not appear that the plaintiff knew the falsity of the statement which he made. His Lord- ship concluded that it was not necessary to prove that the representation complained of was made with a knowledge that it was false ; and in so concluding relied on Taylor v. Ashton * and Evans v. Edmonds.^ The latter case arose on a covenant in a separation Bank, L. E. 2 Ex. 259 ; Mullens v. 283 ; and NicoVs case, 3 De G. & J. Miller, 22 Cli. D. 194 ; British 337 ; 28 L. J. CH. 257. Mutual Co. V. Charnwood Forest r, . jr , gn Bail. Go., 18 Q. B. D. 714. 3 2 J & H 460 466. ' See, e.g., BeeseBiver Silver Min- ' • > ' ing Co. V. SmUh, L. E. 4 H. L. 64 ; * 11 M. & W. 401. cf. Gibson's case, 2 De G. & J. 275, = 13 C. B, 777. F. U 290 OF THE DEFENCES TO THE ACTION. Misrepre- sentation by agent in Com- mon Law actions. Always fatal to speciiio perform- ance. deed, to wliich fraud was pleaded, and Maule J. said, '' I conceive that if a man, having no knowledge what- ever on the subject, takes upon himself to represent a certain state of facts to exist, he does so at his peril : and, if it be done either with a view to secure some benefit to himself, or to deceive a third person, he is in law guiltj of a fraud, for he takes upon himself to warrant his own belief of the truth of that which he so asserts."^ Indeed executed contracts have been rescinded on the ground of their having been induced by false statements which were believed to be true by the persons making them.^ § 663. Questions of considerable nicety have been raised at Common Law as to the effect of the misrepre- sentation by an agent, where the principal is innocent and neither authorized nor knew of the misstatement. It has been discussed whether such misrepresentations render the principal liable in an action for deceit.^ It has in a celebrated case been held, that where an agent, without designing to deceive, made a representation which was false, but which he did not know to be so, whilst the principal had the knowledge of the actual facts, but did not make the representation, there was no evidence to support a plea of fraud or covin.* § 663. But as an innocent misrepresentation by a jjarty to the contract is a bar to his seeking specific performance of it, such questions do not seem to arise in actions of this nature : for it seems clear that any misrepresentation of an agent leading up to the 1 13 0. B. at p. 786. See also Peeh V. Ourney, L. E. 6 H. L. 377. ^ Bawlins v. Wickham, 3 De Gr. & J. 304 (as regards tte deceased partner) ; Hart v. Swaine, 7 Oh. D. 42 (nnioh. observed upon in Joliffe V. Baker, 11 Q. B. D. 255 ; Palmer V. Johnson, 13 G. B. D. 351). Dis- tinguish Brett V. Clowser, 5 0. P. D. 376 ; and of. per Lord Selborne in Brownlie v. Camphell, 5 App. Oas. at p. 938. 3 Udell V. Atherton, 7 H. & N. 172 ; Barwich v. English Joint Stock Bank, L. E. 2 Ex. 259. * Cornfoot v. Fowke, 6 M. & W. 358, discussed and explained in The National Exchange Co. t. Drew, 2 Maoq. 103; and see Barwick v. English Joint Stock Bank, L. E. 2 Ex. 259. See also Fuller y. Wilson, 3 Q. B. 68, and in 0am. Soac. as Wilson V. Ftdler, 3 Q. B. 68, wMcli was an action for deceit, ultiinately decided on the ground that the cause of the injury was the plain- tifi's own misapprehension ; and cf . per Lord Hatherley in Brownlie y. Camphell, 5 App. Gas. at p. 941. OF MISREPRESENTATION. 291 contract, though both principal and agent were innocent, would debar the principal from specific performance. § 664. It may probably be laid down that there in Equity are many cases in Equity in which a man is bound trtound^ who makes a representation which is not true, though tyinad- without knowledge of its untruth, and this even misrepre- though the mistake be innocent : for a man, before sentation. making a representation, ought not only not to know it to be untrue, he ought to know that it is true.-' So in a case where a trustee was charged by the Court in respect of a misrepresentation made to a purchaser, and the trustee alleged that he did not at the time recollect the fact thus misrepresented, Grant M.R. said, "the plaintifE cannot dive into the secret recesses of his (the trustee's) heart, so as to know whether he did or did not recollect the fact, and it is no excuse to say that he did not recollect it."^ In like manner, it may be added that, in the cases of agents rendering themselves personally liable, it is the same whether they represent what they know to be false, or what they do not know to be true.* § 665. (iv.) The misrepresentation must have been jv. The made in relation to the contract in question, and with a the^mis"- view to induce the other party to enter into it ; it must represeu- be capable of being described as dans locum contractui^ Hence, unless under very special circumstances, it must have been made at the time of the treaty,® and not have relation to some collateral matter, or other relation or dealing between the parties.^ ' AinsUe v. Medlycott, 9 Yes. ^ Per Leach. V.O. in Harris v. 13, 21. Kemlle, 1 Sim. 122. As to the 2 In Burrowes v. Loch, 10 Ves. question whether a representation 476; accordingly Price v. Macaulay, ^7 ^n insurance company in a pub- 2 De G. M. & G. 339 ; and see per Wished prospectus can be presumed Lord Selborne in Brownlie v. Camp- i^ ^^^ absence of specific evidence hell, 5 App. Cas. at pp. 935, 936. *" ^lave been the basis of an insur- ance effected with them, see Wheel- 3 Per Alderson B. in Smout v. ^„„ ^_ Hardisty, 8 El. & Bl. 232. mery, 10 M. & W. 10. e ^„,„-, ^. ^..^e, 1 Sim. Ill, * Seejper Lord Brougham in Att- 128, overruled, but as to the appli- wood V. Small, 6 01. & Pin. at cation and not as to the principle, p. 444 ; per Lord Wensleydale in 5 Bli. N. S. 730. See also Dawes Smith v. Kay, 7 H.' L. 0. at p. 775. v. King, 1 Stark. 75. u2 292 OF THE DEFENCES TO THE ACTION. Natiomi § 666. This point was much discussed in a Scotch ^rt!"^' case in the House of Lords. There, a tottering joint- Drm. stock company had put out flourishing annual reports of its condition, and shortly after the last of these reports, and with a view to prevent its shares falling in the market and to counteract certain unfavourable rumours, the company, through their manager, urged the defenders to purchase additional shares in the concern, and assured them that the company would advance the necessary funds, and that the stock should be held until it could be sold at a profit, without the defenders being called on to pay any money: the shares became valueless, and the company sued for the money advanced, to which the defenders pleaded the fraud of the company : to this plea it was, amongst other things, objected that the loan was one independent transaction, and the purchase another, and that the alleged misrepresentation in the purchase did not vitiate the loan. But it was held by their Lordships that the defence was good. Lord Cranworth putting it on the ground that the transaction did not constitute a loan in the ordinary sense of the word, but a special contract by the company to purchase for the defenders, to be repaid only in a particular manner; and Lord St. Leonards holding that the purchase and the loan were one transaction, though consisting of two parts, — that if there had been no loan there would have been no purchase, and if there had been no purchase there would have been no loan."^ Purchaser 8 667. On the othor hand, it was held by the prospectus House of Lords in a noteworthy case that a purchaser not re- of shares in the market, upon the faith of a prospectus from its which he had not received from its authors, could not authors, go conncct himsclf with them as to render them liable for the misrepresentation contained in it.^ In earlier ' The National Exchange Co. v. for statements in prospectuses, tlie Brew, 2 Macq. 1 03. provisions of the Directors Liability » Peek y. Qurney, L. E. 6 H. L. ^^^ ^ggo, and of the Companies 377; 43 L. J. Ch. 19, distm- . '' „ ,„ , ^ guished^»dre«;«v.ilfocfc/orrf,[1896] ^''*' ^9°°' ^^- ^' ^^' ^^«* "°^ ^« 1 Q. B. 372 ; 65 L. J. Q,. B. 302 ; ^orne in mmd. See, too, Barry t. 73 L. T. 728. In regard to the Croshey, 2 J. & H. 1 ; and consider liabilities of directors and others Barretfs case, 3 De Q-. J. & 8. 30. OF MISREPRESENTATION. 293 cases it had been held, that a report published by the Earlier directors of a company as addressed to its shareholders, affected but intended to come and coming into the hands of ^ ^"^^ '^• any person who might wish to purchase shares, was a '"^"^^' representation made by the directors to any person who might obtain the report and on the faith of it buy shares ; ^ and that false representations made by the directors of a company to the secretary of the Stock Exchange to obtain an official quotation justified a person who, knowing the rules of the Exchange, had bought on the faith of the quotation so obtained, in suing the directors in damages : ^ but in Peek v. Gurnet/^ Lord Chelmsford, while not doubting the propriety of the former of these two cases, expressed strong dissent from the latter. It need hardly be said that if, in any case where an action for deceit would lie, the resu.lt of the misrepre- sentations had been a contract between a director and one of the public, and the director had sued the purchaser in specific performance, the purchaser would have had a clear defence. § 668. Where directors as agents of the company Jsncoi'a prepared false reports and a circular addressed to the '""*' shareholders and customers of the bank, and intended for them, and one of the directors took these papers to a person who was neither a shareholder nor a customer, and thereby induced him to become a shareholder, it was held that the company were not bound, on the two grounds, (1) that the authority was given to the directors as a body and not to each one individually, and (2) that the paper was prepared for one purpose and applied by an individual director for another.* 5 669. (v.) Another circumstance essential to mis- ^-,7^^ •^ V , • ^ i> , • n c reliance on representation as a deience to specific pcrrormance the state- is, that it was in reliance upon the statements in '^®^*- question that the party to whom they were made entered into the contract. In Atttvood v. Small,^ which 1 Scott V. Dixon, 29 L. J. Ex. ^ l. E. 6 H. L. at pp. 397, 398. 62, n. * Nuol's case, 3 De G. & J. 387 ; 2 Bedford v. Bagshaiv, 4 H. & N. 28 L. J. Ch. 257. Consider Bar- 538. See also Clarice t. Dickson, 6 rett's case, 3 De G. J. & S. 30. 0. B. N. S. 453. 5 6 01. & Fin. at p. 447. 294 OF THE DEFENCES TO THE ACTION. was a case for the rescission of the contract (and for this point the plaintiff's case for rescission and the de- fendant's case against specific performance seem alike), Lord Brougham, after referring to the earlier cases, said, "Now, my Lords, what inference do I draw from these cases ? It is this, that general fraudulent conduct signifies nothing ; that general dishonesty of purpose signifies nothing ; that attempts to overreach go for nothing; that an intention and design to deceive may go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract." HeA^me g 670. In Redgrave v. Hurd^ this question was much considered, and the case of Attwood v. Small was much discussed. In Redgrave v. Hurd, the misrepre- sentation was in respect of a solicitor's practice, and the judge who tried the case concluded that the defendant did not rely on the misrepresentations, but bought without regard to them. From this conclusion the Court of Appeal dissented, and in the course of his judgment^ Jessel M.R. said, " If it {i.e., the repre- sentation made) is a material representation calculated to induce him {i.e., the party resisting performance) to enter into the contract, it is an inference of law that he was induced by the representation to enter into it." This is probably an erroneous statement ; but the law probably justifies this view that if the representation be of a kind likely to be influential on the mind, the Court will so hold it on very slight evidence, unless the contrary be satisfactorily shown by evidence or admission. But in every case the question whether or no reliance was placed upon the statement made is a question of fact, and not an inference of law.^ 1 Redgrave v. Surd, 20 Oli. D. 1. Oh.. D. 7, especially ^erBowen L.J. 2 At p. 21. ib. 16, criticising the language of 2 Per Lord Blackburn in Smith Jessel M.E. in Redgrave v. Hurd, 20 V. Chadwich, 9 App. Cas. at p. 196; Ch. D. 1, 21. Some language of Smith V. Land, ifcc. Corporation, 28 Lord Halsbury L.O. in Arnison v. OF MISREPRESENTATION. 295 § 671. It is not, of course, necessary that the The state- statements which were false should have been the sole thTsoie inducements to the contract. The presence of true i'^'iioe- statements will not remove or cancel the effect of false ones.^ § 673. In considering whether the defendant relied Vagueness on the misrepresentation of the plaintiff, the Court preseuta- will discriminate between such representations as are ^^°^^- in conscience a part of the bargain, whether incor- porated into the legal contract or not, and mere vague commendations, as the holding out of mere hopes or expectations which ought to put the other party upon further inquiry ; and in judging of this, it is import- ant to consider whether the thing stated may lie in the knowledge of the party making the representation, or whether it must lie beyond his knowledge. Thus, for instance, with regard to mines, a distinction will be drawn between a specific account of what was to be seen in the mine, and a general description of its prospects and capabilities, which from the very nature of the property must be problematical and doubtful.^ So, again, the misrepresentations relied on must be statements of alleged facts and not mere expressions of opinion. § 673. Accordingly, where an advowson was sold instances. by auction, and the particulars stated that a voidance of the preferment was likely to occur soon, but made no mention of the present incumbent, and the auctioneer at the sale stated in explanation that the living would be void on the death of a person aged eighty-two ; and in fact the then incumbent was only thirty-two years of age : Grant M.R. held the repre- sentation made by the particulars so vague and in- definite that its only effect ought to have been to put the defendant upon making inquiries, and accordingly granted specific performance.^ And so, again, the representation that land was uncommonly rich water- Smith, 41 Oil. D. 369, tas beea ^ Jennings v. BrougTiton, 17 Beav. fiiougtt to favour the view of 234; 5 De G. M. & G. 126; cf. Jessel M.E. in Redgrave v. Eurd. j^g ^_ jf,^^ 4 Oj^_ D_ 448. 1 ClarU V. Dichson, 6 0. B. N. S. 453; NicoVs case, 3 De G. & J. 387. = Trower v. Newcome, 3 Mer. 704. 296 OF THE DEFENCES TO THE ACTION. Vendor's statementa must be unambi- guous. Commen- dation by vendor. Other grounds for con- sidering that there was not reliance. Clapham V. Shilito. meadow, whereas, in fact, it was very imperfectly- watered, was held not to be a bar to performance : * and the like was held as regards a statement to the effect that the land in course of time might be covered with warp and considerably improved at a moderate cost.^ § 674. But, generally speaking, in statements made by the vendor as to property, he is bound to make them free from all ambiguity, and " the pur- chaser is not bound to take upon himself the peril of ascertaining the true meaning of the statement;"^ and in all cases of commendation by the vendor, a specific statement as to the character of the thing sold is to be distinguished from general laudation. The statement that a lime which would be produced by stone to be got in an unopened field would be of a particular quality, was held sufficiently precise to furnish a defence.* § 675. Besides the vagueness of the representation, there are other grounds upon which the Court will conclude that it was not relied upon by the party to whom it was made : these were discussed by Lord Langdale M.R. in the case of Clapham v. Shilito.^ His Lordship there said : " Cases have frequently occurred in which upon entering into contracts mis- representations made by one party have not been, in any degree, relied on by the other party. If the party to whom the representations were made himself re- sorted to the proper means of verification, before he entered into the contract, it may appear that he relied upon the result of his own investigation and inquiry, and not upon the representations made to him by the other party : or if the means of investigation and verification be at hand, and the attention of the party ' Scott V. Hanson, 1 Sim. 13; S. 0. 1 E. & My. 128. See also on this point Fentony. Broivne, 14 Ves. 144 ; Brealey v. Collins, ToTi. 317 ; Brooke v. Roundthwaite, 5 Ha. 298. ^ Dimmoch Oh. 21. V. HalleU, L. E. 2 ^ Per Lord St. Leonards ia Martin v. Cotter, 3 Jon. & L. at p. 507; Wall v. Stulhs, 1 Mad. 80. See, too, Moxey v. Bigwood, 4 De Or. F. & J. 351 ; Oaballero v. Henty, L. E. 9 Oh. 447. ' Higgins v. Samels, 2 J. & H. 460. See, too, Colby v. Oadsden, 34 Beav. 416, reversed 15 W. E. 1185. » 7 Beay. 146. OF MISREPRESENTATION. 297 receiving the representations be drawn to them, the circumstances of the case may be such as to make it incumbent on a Court of justice to impute to him a knowledge of the result, which, upon due inquiry, he ought to have obtained, and thus the notion of reliance on the representations made to him may be excluded. Again, when we are endeavouring to ascertain what reliance was placed on representations, we must con- sider them with reference to the subject-matter and the relative knowledge of the parties. If the subject is capable of being accurately known, and one party is, or is supposed to be, possessed of accurate know- ledge, and the other is entirely ignorant, and a contract is entered into after representations made by the party who knows, or is supposed to know, without any means of verification being resorted to by the other, it may well enough be presumed that the ignorant man relied on the statements made to him by him who was supposed to be better informed : but if the subject is in its nature uncertain, — if all that is known about it is matter of inference from something else, and if the parties making and receiving repre- sentations on the subject have equal knowledge and means of acquiring knowledge, and equal skill, it is not easy to presume that representations made by one would have much or any influence upon the other." ^ § 676. It must not from this be inferred that the Merepre- mere presence of the means of detecting the misstate- means°of ment prevents the deceived person from relying on it.^ tnow- If a statement be made by A. to B. and the means of ^^' verification be offered, B. may rely on the statement and refuse the investigation : but if he accept the investigation and find or might have found the state- ment false, he cannot afterwards allege that he relied on the statement : for in fact he did not. § 677. He who, because he does not rely on what Resort is stated to him, resorts to other means of knowledge, mea^^of 1 7 Beav. at pp. 149, 150. v. Land, &c. Corporation, 28 Oh. D. 7 ; jper Lord Halsbury L.C. in » Central Railway Co. of Venezuela ^^^^^,^ ^^^^^ ^_ y^^ .^^_ ^^ggg^ ^_ ^_ V. Kisch, L. E. 2 H. L. 99, affirming 273, at p. 279 ; 65 L. J. P. 0. 54 ; S. C. 3 De G. J. & S. 122; Smith li L. T. 794. 298 OP THE DEFENCES TO THE ACTION. ^°'^- cannot afterwards say that the misrepresentation was ^^^' what he relied on. " If," said Lord Holt C. J., alluding to the circumstances of the case before him, "the vendor gives in his particular of the rents, and the vendee says he will trust him and inquire no further, but rely upon his particular; then, if the particular be false, an action will lie ; but if the vendee will go and inquire further what the rents are, there it seems unreasonable he should have any action, though the particular be false, because he did not rely upon the particular." ^ Atiwood § 678. It was on this ground that the House of V. Small. LQp^g ultimately decided the celebrated case of Att- wood V. Small.''' The British Iron Company had sent a deputation of their directors down to Mr. Attwood's works for the express purpose of verifying his repre- sentations, and they expressed their satisfaction with the proofs produced : by this line of conduct they precluded themselves from being able to rely on any previous misrepresentations : for if a purchaser chooses to judge for himself, and does not avail himself of all the knowledge and means of knowledge open to him, he will not afterwards be allowed to say that he was deceived by the representations of the vendor. This decision was given in a suit for rescission, and not upon a defence to a specific performance ; but for the present point these seem to be alike.^ But the mere fact of resorting to some means of knowledge is not always inconsistent with reliance upon a statement made.* Jennings^. § 679. The principle is further illustrated by the Broughton. ^g^gg q£ Jeunings V. Broughton,^ where the plaintiff, having bought shares in a mine, afterwards sought to set aside the sale on the ground of misrepresentation as to the state of the mine ; but he having visited the mine himself, and the alleged misstatements being such as he was competent to detect, the Court held 1 Lysney v. Selby, 2 Lord Eayd. v. Gibson, 1 De G. & J. 602. 1118, 1120. 1 Bedgrave v. Hurd, 20 Oh. D. 2 6 CI. & Tin. 232. Of. Aheraman Ironworks v. 1, 19. Wickens, L. E. 4 Ch. 101, reversing = 5 De Q. M. & G. 126, affirming S. 0. L. E. 5 Eq. 485 ; Farebrother S. 0. 17 Bear. 234. OP MISREPRESENTATION. 299 that his purchase of shares had not been made in reliance on the representations, and the bill was dismissed both by Lord Romilly M.R. and the Court of Appeal in Chancery. " I desire," said Knight Bruce L.J., "to be understood as at once giving my opinion against the plaintiff with regard to every 'object of sense' which on either visit to the mine he may, as an educated man of ordinary intelligence, having the use of his eyes, his mind on the alert and his interest awakened, be reasonably taken (whether much or little of a workman or a philosopher) to have observed." ^ With this last mentioned case may advantageously be brought into comparison the case of Higgins v. Samels,^ where the representation was as mz/t/ms v. to the character of the lime which could be made from '^'^'"^^'• the stone under a field, and where after this statement the defendant and two friends made a cursory in- spection of the field in company with the plaintiff, and it did not appear that any of the persons were competent to judge by inspection of the quality of the stone for the purpose of lime burning. In this case Lord Hatherley (then V.C.) considered that the in- spection did not preclude the defendant from relying upon the misrepresentation. § 680. Where a purchaser complained of a repre- Lowmies sentation that the woods sold had yielded 250/. per ^' annum on an average of fifteen years, on the ground that though they might in fact have done so, yet that they would not have done so in a fair course of hus- bandry, his objection was held to be displaced by proof that he had been put in possession of a paper from which he might have ascertained that the woods had been unequally cut.^ § 681. The allegation of misrepresentation may other also be effectually met by proof that the party alleging ftseil^^'^^'' it was from the beginning cognisant of all the matters complained of,* or after full information concerning 1 5 De Q-. M. & Gr. at p. 131. ^ Lowndes v. Lane, 2 Cox, 363. See also Haywood v. Co:pe, 25 Beay. See, too, Glarhe v. Mackintosh, 4 Gifl. 134; 11 W. E. 652. * Of. Nene Valley Drainage Com- "°' missionersY. Bunldey, 4 Oil. D. 1, 4, 140 ; and Jefferys v. Fairs, 4 Oh. D. 48. ' 2 J. & H. 460. where misdescription was alleged. 300 OP THE DEFENCES TO THE ACTION. sentation as to title. them continued to act on the footing of the contract, or to deal with the property comprised in it as if held under the contract : as, for instance, where a lessee of a mine after knowledge of alleged misrepresentation, continued to work it.^ Misrepre- S QQ2, Whether a misrepresentation not of fact, SPTlt'3 1'lOTl of law. but of law, would afford a defence to an action for specific performance has not, it is believed, been decided.^ But for the purposes of holding a defen- dant liable to make good a representation, or of rescinding a contract,^ it is certain that it must be a statement not of law, but of fact.* No one is at liberty to say that he does not know the law. Misrepre- § 683. QuBstions of title are mixed questions of law and fact : but where the vendors knew of a fact which destroyed their title to a material part of the property sold (viz., the fact that it was a recent encroachment from a common), and nevertheless represented that they were the owners in fee simple or had free power to dispose of the inheritance of the whole of the property sold, and the abstract they delivered did not disclose the material fact, it was held by Grant M.R. and Lord Eldon that a bill for rescission could be maintained. This was the case of Edtvards v. M'-Leay? 't^n^oi' § 684. But it must not thence be, inferred that Mwards every representation that the vendor has a good title ^T^ot'oi""'^ will enable the purchaser to set aside an executed con- universal tract or successfully resist specific performance.^ tion. , § 685. The authority of Edwards v. M'-Leay was Gibson Y. followed and relied on by Kniffht Bruce V.C. in the * "' celebrated case of Gibson v. U Este^ in which he de- 1 Viqers, V. P*e, 8 CI. & Ein. 662, = Coop. 308 ; 2 Sw. 287 ; St. 650; Hume y. Pococh, L. E. 1 Eq. Leon. Law of Prop. 649. See 423; 1 Ch.. 379. Turner v. West Bromwich Union, 2 Cf. infra, § 797 (mistakes of 9 W. E. 155 ; Hart v. Swaine, 7 law). Ch. D. 42, 47. 3 See Wauton v. Coppard, [1899] « Legge v. Croher, 1 Ball & B. 1 Ch. at p. 97. 506 ; Hume v. Pococh, L. E. 1 Eq. * Beattie v. Lord Ehury, L. E. 7 423 ; 1 Ch. 379 ; BrownKe v. Camp- Ch. 777, affirmed in D. P., L. E. 7 hell, 5 App. Cas. 925, 937. Cf. H. L. 102 ; Legge v. Croher, 1 Ball Brett v. dowser, 5 0. P. D. 376. & B. 506. ' 2 T. & C. 0. C. 542, OF MISREPRESENTATION. 301 cided that the knowledge in the vendor or her agent of a right of way over the property sold of which the purchaser was not aware, and which was not stated to him by the vendor or her agent, was a ground for the rescission of the contract. This decision was, how- ever, overruled by the House of Lords, on the prin- ciple that, in order to set aside a purchase perfected by conveyance and payment of the purchase-money, there must be proof of the direct personal knowledge and concealment by the principal, and not merely by an agent, and that such proof was wanting in the case.^ This decision has by no means given universal satisfaction,^ but whether correct or not, it leaves intact the doctrine established in Edioards v. M'-Leay. § 686. Where a misrepresentation has been made Where by the vendor with regard to some patent defect in the pateut.'^ thing sold, and it is proved that the purchaser had seen the thing sold, so that this defect must have been known to him, he will not be able to avail himself of the defect as a bar to specific performance. This was decided by Grant M.R. in the case of Dyer v. Har- grave,^ where a farm was described as all lying within a ring-fence, whereas it did not in fact so lie ; but it was clearly proved that the defendant had lived in the neighbourhood all his life, had seen the farm before purchasing it, and must have known whether it did lie in a ring-fence or not ; and on these facts the Master of the Rolls decided that the defendant was clearly excluded from insisting upon the mis- representation as a defence. This principle will of course only apply where the thing in respect of which the representation is made is one perfectly visible to everybody.* § 687. The decision in Dyer v. Hargrave^ was Analogy supported by Grant M.R.^ by the analogy of warranties rantieir''" at Common Law, in which, however general, defects apparent at the time of the bargain are not included, 1 s.n. Wilde v. Gibson, 1 H. L. 0. ^ St. Leon. Law of Prop. 614. 605. See Broivnlie v. Campbell, ' 10 Yes. 505. See supra, § 679. 5 App. Cas. 925, 937; and con- * Grant v. Mimt, Coop. 173; sider Brett t. dowser, 5 C. P. D. infra, § 868 et seq. 376, 388. " In 10 Yes. at p. 507. 302 OF THE DEFENCES TO THE ACTION. The evi- dence of knowledge must be clear. Other means of knowledge open to the pur- chaser not enough. Doctrine of notice does not apply. General statement inconsis- tent with the mis- represen- tation is not enough. Eecom- mendation to other party to consult his adviser. because they can form no subject of deceit or fraud; SO that, for example, a person who buys a horse know- ing it to be blind in both eyes, cannot sue for this defect on a general warranty of soundness.^ § 688. But for the vendor thus to countervail the effects of his own misrepresentation, the evidence of knowledge in the other party must be conclusive : he " must show very clearly that the purchaser knew that to be untrue which was represented to him as true ; for no man can be heard to say that he is to be assumed not to have spoken the truth." ^ § 689. Such being the proof required, it is very certain that the mere circumstance of other means of knowledge being open to the purchaser will not have this effect, even though, independently of any state- ment, the party relying on the representation would in law have been taken to have had notice of the contrary. The doctrine of notice has no application where there has been a representation as to the fact of which notice would be implied : ^ the proof must go further, and clearly show the purchaser to have had communicated to his mind information of the real state of facts.* § 690. Therefore, where a distinct representation has been made, it will not be countervailed by any general statement or any circumstances from which an inference inconsistent with the representation might be drawn, even though in the absence of such repre- sentation they might be sufficient to put the other party on inquiry.^ § 691, Nor will it prevent the effect of a misre- presentation that the party making it recommended the other to consult his friends and professional ad- visers, for " no man can complain that another has too ' Bayly v. Merrel, Oro. Jac. 679 ; MargeUon v. Wright, 7 Bing. 603. ' Per Knight Bruce L.J. in Price V. Macaulay, 2 De G. M. & G. 346; Wilson V. Short, 6 Ha. 366, 378; Dyer y. Margrave, 10 Ves. 503 ; Leyland t. Illingworth, 2 De G. F. & J. 248 ; Colly v. Gadsden, 34 Beav. 416, reversed 15 "W. E. 1185. ■ 2 Drysdale v. Mace, 2 Sm. & Gif. 225, 230; cf. per Jessel M.E. in Jones Y. Simmer, 14 Ch. D. at p. 590. * Price V. Macaulay, 2 De G, M. & G. 339. See also Oibson v. B'Este, 2 T. & 0. 0. 0. 542, 572. = Wilson V. Short, 6 Ha. 366, 377. character build- OF MISEEPKESENTATION. 303 implicitly relied on the truth of what he has himself stated." 1 § 692. Thus where a misrepresentation is made by Miarepre- a vendor in respect of a lease, of the covenants in ^g'to'^iiaae which the purchaser would by law be implied to have notice, the vendor will be equally bound by his state- ment as if no such implication arose.^ On the same principle it was decided that where a As to vendor represented the house to be substantially and "^ ^ well built, and it proved to be the contrary, the ing vendor was not entitled to specific performance, though the defendant might of course have inquired into its actual state. ^ § 693. In Harris v. Kemhle* there was a contract ^^*° consequent upon certain misrepresentations as to the theatre? profits of a theatre : Leach V.C. was of opinion that these representations being manifestly founded on accounts which were equally open to both parties (they being joint owners of the theatre), and being justified by the accounts, did not avoid the contract ; but his decision was overruled by Lord Lyndhurst and afterwards by the House of Lords, on the ground that the representations were made with a view to the contract, aod that the accounts were so kept as to render it difficult without employing an accountant to draw any certain conclusion from them. § 694. The circumstance that the vendor sold Sale with "with all faults," though it may serve to put the ''^^*'''^"- purchaser on his guard, will not enable the vendor to say that the purchaser did not rely on any representa- tion made, or prevent the purchaser from avoiding the sale, if that representation were false.® § 695. The principle that, in order to render a Assign- misrepresentation operative, there must be reliance on raiSract it by the party who uses it as a defence, applies to affected 1 Reynell v. Sprye, 1 De G. M. & Distinguish Paterson t. Long, 6 a. 660, "710; Dobell v. Stevens, 3 Beav. 590. E & fi2S ^ ^"'"^ ^' ^^iddleton, 2 Drew. 209. " ^ ' " „,, „ ^ * 1 Sim. Ill, particularly 120; > Van V. Corpe, 3 My. & K. 269 ; g_ q_ ^ g^_ j^_ g_ ■^3q_ Flight V. Barton, id. 282; Pope v. 5 Schneider y. Heath, 3 Cam. 506. Garland, 4 T. & 0. Ex. 394, 401. See also infra, § 8Y6. essential. 304 OF THE DEFENCES TO THE ACTION. represen- the case of the assignment of a contract originally affected by such a circumstance : thus it seems that if A. contract with B., and in so doing there are mis- representations on the part of A. which would prevent his enforcing the contract against B., and B. assign the contract to C, on whom no fraud is practised and who is not affected by the original misrepresentation, in such circumstances the contract might be enforced against C, for he placed no reliance on the misrepre- sentation made to B.^ statement § 696. From the same principle it follows that if ^o|™^y A. make a misrepresentation to the agent of B., which principal is believod by the agent to be true but known by B. to be false. ^^ ^^ false, B. Cannot avail himself of this as a defence ' to specific performance.^ vi. The § 697. (vi.) It is, for obvious reasons, necessary, sentation ^'^ Constitute a misrepresentation \yhich will prevent must be a spccific performance, that the statement in question """ shall be so material to the contract built on it that, if the statement be false, the contract becomes one which it would be unconscionable for the party having made the statement to enforce. In other words, the misrepresentation must be shown to have operated to the prejudice of the defendant.^ There- fore, where A. induced a purchaser to think that he was contracting with B. through his (A.'s) agency, whereas he was, in fact, contracting with A. himself, but there was nothing to induce the belief that he would not have contracted on the same terms with A., or that he had sustained any loss or inconvenience from acting under the mistake, the Court enforced performance of the contract.* But it is sufiicient if the misrepresentation operate to the prejudice of the defendant to a very small extent.® ^ Smith Y. Clarke, 12 Ves. 477, ^ Cadman v. Sorner, 18 Ves. 10. 484. The distinction of tte casuists be- ' Ntlson V. Stoclcer, 4 De G. & J. tween error antecedens and conco- 458. mitans was the same as that referred ^ See Polhill v. Walter, 3 B. & to in tMs section. Error ." dividitur Ad. 114. in antecedentem qui dat causam * Fellowes v. Lord Gwydyr, 1 contraotui, ita ut, eo absente, con- Sim. 63 ; S. 0. 1 E. & My. 83 ; cf. tractus non fieret, et in concomi- FlintY. Woodin, 9 Ha. 618. tantem, seu incidentem, quo etiam OP MISREPRESENTATION, 305 "A man may with impunity," said Nortli J., in Archer v. Stone ^ "tell a lie in gross in the com^se of negotiations for a contract. But he cannot, in my opinion, tell a lie appurtenant. That is to say, if he tells a lie relating to any part of the contract or its subject-matter, which induces another person to con- tract to deal with his property in a way Avhich he would not do if he knew the truth, the man who tells the lie cannot enforce the contract," § 698. In Nottingham Patent Brick Co. v. Butler,"^ Misre- the land was subject to covenants preventing its iise as tlonTot' a brick field in favour of a group of purchasers from avoided by an original vendor. The conditions of sale stated that ^^"^ the property was sold subject to any matter or thing affecting the same whether disclosed at the time of sale or not, and that any error or omission in the par- ticulars should not annul the sale or entitle the pur- chaser to compensation. The contract was brought about by a representation in substance that the land could be used for brickmaking. It was held that the purchaser could rescind and recover his deposit, not- withstanding the conditions of sale. § 699. The effect of misrepresentation on the Cases oon- contract and the rights of the parties under it is u^dCTl^he further considered in connection with cases of fraud head of in the next chapter. § 700. The right to rescind on the ground of misrepresentation is adverted to in the chapter on Rescission of the Contract.^ absente adhuc contractus iniretur. ' 78 L. T. at p. 35. , , . Si error circa solam qualitatem a ig q_ -q_ J)_ 2G1 • 16 Q. B. D. aocidentalem contigerit, quee simul „g_ g^^ ^^^^ mywood v. Malhdicu, cum substantia rei non iiigreditur r,- rrv. t\ objectum substantiale contractCis, hie vaMus omnino persistet," " -f"/''"' ^^rt III. cbap. xxiv. Mariani Examen, § 279. § 1059. F. 306 CHAPTER XIV. OF FRAUD. Fraud, Comes before the Court in several relations. Fraud in obtaining contract. Fraud in perform- ing con- tract. § 701. Feaud^ of course includes not only mis- representation when fraudulent, whicli has already been considered, but also all other unconscionable and deceptive dealing of either party to any contract. § 702. Fraud comes before the Court in several relations : — as a defence to an action for damages on the contract ; as the ground for an action for deceit ; as a ground for setting aside an executory or even an executed contract ; as forming an exception to the Statute of Frauds (in which relation it has been con- sidered in the chapter^ on that statute) ; and lastly, as a defence to an action for specific performance. With the last only we are now directly concerned. § 703. Fraud may arise either in the obtaining of the contract, or in the course of its performance. Fraud in the obtaining of the contract has long been held a ground for the cancellation of the contract ; and a fortiori it presents to the party defrauded a com- plete defence to an action for specific performance. § 704. Whether fraud in the course of its per- formance is in all cases a ground for the rescission of a contract is a point which cannot be considered as finally settled : it certainly appears to be so in all cases in which rescission is the only adequate remedy.^ It ' "Fraud ia infinite in variety; sometimes it is audacious and un- blushing ; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. But fraud is fraud all the same, and it is the fraud, not the manner of it, which calls for the interposi- tion of the Court." Per Lord Mao- naghten in Reddaiuay v. Banham, [1896] A. 0. at p. 221. ^ Part III. chap. xi. § 567 et seq. ^ Panama and South Pacific Tele- graph Co. V. Indiaruhher, Outta- percha and Telegraph Works Co., L. E. 10 Oh. 515. 0¥ FEAUD. 307 is conceived that in no case could a party guilty of fraud in the performance of a contract ask the Court to interfere for the purpose of enforcing its further performance. Thus if A. were to contract with B. for the sale of an estate at such a price as C. should fix and then were to bribe C. to fix a very high price, A. could never, it is submitted, bring an action against B. for the performance of the contract either at a price to be fixed by C. or by any third person. § 705. In the chapter on Misrepresentation it has Suppres- been seen, that the suggestion of what is false is a f°^_° ^ ground for refusing specific performance, and also in certain cases for rescinding contracts: the same results flow from the non-disclosure of a fact which is material, and which it is the duty of one party to the contract to disclose to the other,^ or from the active suppression and concealment of a fact which is material, and which the other party would have come to know, but for such suppression and concealment. But mere silence as regards a material fact which suenee. the one party is not under an obligation to disclose to the other cannot be a ground for rescission or a defence to specific performance.^ " Silence is innocent and safe where there is no duty to speak." ^ ' The question as to what facts gunt." De Jur. Belli ac Pacis, ■which roight influence the mind of lib. ii. c. 12, s. 9. See also Pothier, one party it is the duty of the other, Tr. du Oontrat de Vente, Part II. if knowing of them, to communi- chap. 2. Consider Blenhhom v. cate, is one of great difficulty. It Penrose, 29 W. E. 237 ; lonides v. is discussed by Cicero in a well- Pender, L. E. 9 Q. B. 531. known passage (De Offic. lib. iii. * See, for instance, Turner y. c. 12 et seq.) ; culpable concealment Oreen, [1895] 2 Ch. at p. 208, in being in his opinion " cum quod tu which case it was held that the scias id ignorare emolumenti tui plaintiff's solicitor was not bound causa Telis eos quorum intersit id to disclose, at an interview with scire." c. .13. The limitation put the defendant to arrange an agree- by Grotius on this principle would ment for the compromise of an probably be adopted by our law, action, some material information "non ergo generaliter sequendum which the solicitor had received in Ulud ejusdem Cioeronis, celare esse, a telegram ; also Oreenhalyh v. cum tu quod scias id ignorare Brindley,[190112Gh..324:; BeWard emolumenti tui causa velis eos quo- and Jordan^ s Contract, [1902] 1 1. E. rum intersit scire: sed tum demum 73; and Percival y. Wright, [1902] id locum habet, cum de iis agitux 2 Ch. 421 ; 51 W. E. 31. quse rem subjectam per se contin- ^ Per Lord Macnaghten in Ghad- x2 308 OF THE DEFENCES TO THE ACTION. It becomes then most material to consider what facts either party to a contract is bound to disclose to the other. Obligation 8 706. The oblisjation to disclose arises in various to disclose. js •*'w & ways.^ i. Where (i.) Where the parties to a contract stand in some relation^ prc-existing relationship to one another of a fiduciary sMp. character (as, for example, the relation of agent and principaP), they can only deal after the most full dis- closure. The relations of trustee and cestui que trusty solicitor and client, partner and partner, are all well known to be of a fiduciary kind. The cases arising out of such relationships show that when there is a non-disclosure of that which it is the plaintiff's duty to disclose, no specific performance can be granted, ii. Where § 707. (ii-) Sometimes the obligation to disclose wcmg'^^^^ may even arise from an antecedent wrong done by done. the one party to the other. "If," said Lord Hatherley, " a man knows that he has committed a trespass of a very serious character upon his neighbour's property, and finding it convenient to screen himself from the consequences, makes a proposal for the purchase of that property, he certainly ought to communicate to the person with whom he is dealing the exact state of the circumstances of the case: "* and on that ground and under those circumstances specific performance was refused. iii. From § 708. (iii.) Sometimcs the obligation to disclose character g^j,£ggg fpom the character of the contract itself. For tract. there are certain contracts which are said to be uber- rimce fidei : i.e., they are contracts which from their nature demand a full disclosure of all material facts by the one contracting party to the other : such are luich V. Manning, [1896] A. C. at 18 Eq. 524. p. 238. 3 Probably in tbe case of a tenant 1 See Davies v. London and Pro- *°'^ ^^ purchasing from Ms trustees vincial Marine Insurance Co., 8 ^l'®^'' '" ^ relationship imposing a Ch. D. 469 474. similar obligation. See per James L.J. in Dicconson t. Talbot, L. E. 6 ^ See Imperial Mercantile Credit Ch. at p. 37. Association v. Ovhimtn, L. E. 6 * Phillips v. Homfray, L. E. H. L, 189; Dmme v. Ein/Hsh, L, E. Ch. 770, 779. OF FRAUD. 309 contracts for marine insurance, and contracts for tlie formation of a partnership. In these cases silence may be fraud. ^ So again, in tlie case of the contract between a company and a person taking shares, the Courts have held that there is an obligation to disclose material circumstances.^ In the case of a contract for the sale of a chattel Latent having a latent defect, there exists an obligation to disclose that defect.'' § 709. (iv.) Sometimes the obligation to disclose iv. From arises from the course of the negotiation itself. ne"otia°* It is evident that the making of one statement tion. during a negotiation may create an obligation to make another : so, if in the course of a negotiation A. make a statement to B. which is false in fact and Avhich A. subsequently discovers to be false, he is under an obligation to state that discovery ; or if A. make a statement to B. which at the time is true but in the course of the negotiations becomes false, A. becomes under an obligation to state that change of fact to B."* "When," said Lord Blackburn, addressing the Loi-d House of Lords, "a statement or representation has ^^gted"™ been made in the hond fide belief that it is true, and the party who has made it afterwards comes to find out that it is untrue, and discovers what he should have said, he can no longer honestly keep up that silence on the subject after that has come to his knowledge, thereby allowing the other party to go on, and still worse inducing him to go on, upon a state- ment which was honestly made at the time when it was made, but which he has not now retracted when he has become aware that it can be no longer honestly persevered in. That would be fraud too, I should say, as at present advised. And I go on further still to say, what is perhaps not quite so clear, but certainly 1 See per Lord Blackburn in ArhwrigM v. Newhold, 17 Oh. D. Brownlie v. OampheU, 5 App. Oas. 301. ^^ P- 9^*- 3 Horafall v. Thomas, 1 Hurl. & ^ Neiu Brunswick, &c. Oo. v. Mug- p ■■. qq geridge, 1 Dr. & Sm. 363; Central Railway Go. of Venezuela v. Kisch, * Reynell t. Sprye, 1 De G. M. & L. E. 2 H. L. 99 ; Henderson v. Gr. 660, 703 ; Traill v. Baring, 4 Lacon, L. E. 5 Eq. 249. Consider De G, J. & S. 318, 329. 310 OF THE DEFENCES TO THE ACTION. it is my opinion, where there is a duty or obligation to speak, and a man in breach of that duty or obliga- tion holds his tongue and does not speak, and does not say the thing he was bound to say, if that was done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was because he had nothing to say, I should be inclined myself to hold that that was fraud also." ' Imperfect § 710. Again, entire silence can hardly deceive : statement. ^^^ ^^ imperfect statement may be a perfect untruth. For instance, if the owners of a business, desiring to sell it to a company, put out a prospectus containing various statements, each in itself correct, but keep silence on a material fact, it would seem well worthy of consideration whether these persons who were under no antecedent obligation to make any statement have not, by saying something, assumed an obligation to tell not only the truth but the whole truth.^ So where a proposed creditor describes a transaction to the projDosed sureties, the description may be evidence of a representation that there is nothing in the trans- action that might not naturally be expected to take place between the parties to the transaction described.^ \]?'^7?^ § "Til. C"^-) Further, it must, to prevent confusion, snbs^- ^ ^ be observed that there are obligations to disclosure quent to -^hich arisc from the contract itself : as, for example, the con- , -,,.. , „ , ', i tract. the obligation on a vendor oi real estate honestly to disclose his title. This is a duty arising out of and subsequent to the contract, and the non-performance of this duty cannot constitute fraud dans locum con- tractui. With these we are not at present concerned, vi. statu- § 712. (vi.) Lastly, an obligation to disclosure gatiou^''" ™^y ^^^^^ ^^°™ statute. Thus, by the 38th section of the Companies Act, 1867, it was provided that every prospectus of a company, and every notice inviting ' In Brownlie v. Camphell, 5 App. Leaiher Shod WJieel Co., [1900] A.O. Gas. at p. 950. 42i, 434 ; 69 L. J. Oh. 131, ap- ' Consider PeeJc v. Ourney, L. E. - _ . , . .,^ , ^, „.„^ ^ TT T OH., n i.i_ ■' i. pio\mg Bnncqbier Y. Wood, [IS991 6 H. L. 377 ; also the provisions of > l j the Directors LiabiKty Act, 1890, ^ ^^- ^^^' ^^ ^- '''• ^^- 1^^- s. 3, and of the Companies Act, ' Lee v. Jones, 17 0. B. N. S. 482, 1900, s. 10. See, too. Greenwood y. 503. OF FRAUD. 311 persons to subscribe for shares in any Joint-stock com- pany, should specify the dates and the names of the parties to any contract entered into by the company, or the promoters, directors, or trustees thereof, before the issue of such prospectus or notice. That section was repealed^ by the Companies Act, 1900 (63 & 64 Vict. c. 48), s. 33 ; but the tenth section of the last- mentioned Act provides that every prospectus issued by or on behalf of a company, or by or on behalf of any person who is or has been engaged or interested in the formation of the company, must state (inter alia) ''the date of and parties to every material contract, and a reasonable time and place at which any material contract may be inspected : provided that this require- ment shall not apply to a contract entered into in the ordinary course of the business carried on or intended to be carried on by the company, or to any contract entered into more than three years before the date of publication of the prospectus." § 713. But it has never (it is believed) been held Mere by our Courts that there is any general obligation to generally disclosure on the part of a vendor or purchaser of permis- chattels or realty, though the person maintaining either" silence may know that the other party is acting under v^'^^r- an erroneous impression. " Aliud est celare, aliud tacere : neque enim id est celare quicquid reticeasP ^ It has been justly observed by Mr. W. W. Story ^ that "it is the general policy of the law, in order to induce vigilance and caution and thereby to prevent those opportunities of deceit which lead to litigation, to throw upon every man the responsibilities of his own ' But a right of action acquired by Lord Mansfield in Carter v. or accrued under the repealed sec- jBoeAm (3 Bur. 1910), andbyEniglit tion may be enforced notwitbstand- Bruce L.J. in Nelthorpe v. Holgate ing the repeal. See, e.g., Cackett (1 Coll. 221). If the whole is to V. Keswick, [1902] 2 Oh. 456 ; express the principles of our law, Broome v. Speak, [1902] W. N. 96 ; velis must, it is conceived, import 50 W. E. 614. not only will, but some act conse- ^ Cicero De Off. lib. iii. o. 13. quent thereupon. Davenport v. Cicero continues : " sed cum, quod Charsley, 34 W. E. 391. See tu acias, id ignorare emolumenti tui supra, § 705, note 1. causa velis eos, quorum intersit id ' Law of Contracts (5th ed.), scire." The passage has been cited s. 644. See, too, supra, § 705. 312 OP THE DEFENCES TO THE ACTION. contracts and to burden him with the consequences of his careless mistakes." " I am not aware," said Lord Chelmsford, addressing the House of Lords in the case of Peek V. Gurney^ "of any case in which an action at Law has been maintained against a person for an alleged deceit, charging merely his concealment of a material fact which he was morally but not legally bound to disclose." The case of Keates v. The Earl of Cadogan^ is an authority for the proposition that there is no obligation on a proposed lessor of a house in a ruinous and unsafe condition to inform the proposed lessee of its state. In Ilorsfall v. Thomasj^ it was decided that the vendor of a chattel is under no obligation to disclose a patent defect. In Smith v. Hughes * the Court of Queen's Bench determined that the passive acquiescence of the seller of chattels in the self-deception of the buyer does not entitle the latter to avoid the contract. In Greenhalgh v. Brindley,^ the vendor of a house was held not to be debarred from enforcing a contract for the sale of it by reason of his non-disclosure of a deed acknowledging that he was not entitled to the access of light to the windows. Lastly, in Edtvards-Wood v. Marjoribanlcs,^ a contract was made for the sale of an advowson, nothing being said or asked as to the income of the living, which was in fact subject to a charge in favour of the Grovernors of Queen Anne's Bounty, for repayment of a sum borrowed from them to rebuild the parson- age : the purchaser filed his bill for specific perform- ance with compensation, but got a decree only for specific performance without compensation : and "from this he ineffectually appealed, first to the Lords Jus- tices, and lastly to the House of Lords. suence of § 714. Again, as regards the purchaser, lie is not purchaser. 1 L. E. 6 H. L. at p. 390 ; and sale of a public house, the vendor's see p. 403. omission to disclose the fact that 2 iQ Q_ 3_ g92^_ one conviction had been endorsed 1 1 TT j> r< ii nn °^ *^6 licence was held not to be a ■" 1 i±. & uoit. 90. i • 1 • ■ ,..-,. material omission entitling the pur- * L. E. 6 Q. B. 597. chaser to refuse to complete. = [1901] 2 Ch. 324. See, too, Be « 1 Gifi. 384; 3 De G. & J. 329; Ward and Jordan's Contract, [1902] 7 H. L. 0. 806. See also Haywood 1 I. E. 73, where, on a contract for v. Cope, 25 Beav. 140. OF FRAUD. 313 under an obligation to communicate any circumstance which may enhance the vakie of tlie thing bought by him. So that, for instance, a man knowing of the existence of a mine under an estate may vaHdly deal with the owner who is ignorant of this fact, without any communication of it.-' And so Avhere a first mortgagee, with power of sale, having entered into an arrangement not amounting to a binding contract for the advantageous sale of part of the mortgaged property, afterwards bought up at a reduced price the interest of the second mortgagee without informing him of the arrangements for sale, a bill by the second mortgagee to set aside the sale, on the ground of the suppression of information by the purchaser, was dismissed by Lord Romilly M.R., and subsequently by Lord Cranworth.^ Nor is the purchaser liable to an action for deceit for misrepresenting the seller's chance of sale, or the probability of his getting a better price than that offered.^ § 715. The case is however quite different when, Ag-gres- in addition to silence, something is done by the one celiment party to conceal from the other some fact material to that other party. Thus where a wall which required to be maintained against the Thames was industriously concealed, a bill for S23ecific performance was dismissed, though without costs.* So again where colliery-owners entered into a Fothergiu contract for the purchase of a farm adjoining their '^■^'"'''p^- colliery not only without disclosing, but (it would seem) studiously concealing the fact, of which the vendors were at the time wholly ignorant, that they (the purchasers) had wrongfully taken 2,000 tons of coal from under the farm, the Court dismissed the purchasers' bill for sjDOcific performance, and on the vendors' bill ordered the contract to be cancelled.® This case, perhaps, turns on the fact that the thing concealed was a wrong done by the one party to the 1 Fox V. Macreth, 2 Bro. C. C. ' Shirley v. Stratton, 1 Bro. C. 0. 400, 420; of. Walters v. Morgan, 3 440. Distinguish. Cook v. Wauyh, De G. E. & J. at p. 723. 2 Giff. 201. 2 Dolman v. Nohes, 22 Beav. 402. * Fothergill v. Fhillips, L. E. G 3 Vernon v. Keys, 12 East, 632. Oh. 770. 314 OF THE DEFENCES TO THE ACTION. contract to the other. And where A. agreed to sell his land to B. at a halfpenny per square yard, which amounted to about 500/., when the real value was 2,000/., and the defendant asked the attorney whom he employed to calculate the amount before the con- tract was signed, not to tell the plaintiff how small it was, the Court granted an interlocutory injunction to stay proceedings at Law.-' In Hill v. Gray''' the plaintifE had employed an agent to sell a picture, and the defendant bought it under the belief that it had belonged to a third person. The case has sometimes been thought to support the proposition that mere silence may be fraudulent. But in Keates v. Earl of Cadogan^ Jervis C.J. pointed out that the case really turned on the "aggressive deceit" on the part of the agent of the seller: and if the case cannot be supported on this ground it seems not to be law.* On sale Evcn as regards a sale with all faults, the indus- fauitst trious and active concealment of faults would be fraudulent.^ Purchaser § 716. So, though the purchascr may keep silence make"any ^^ ^^ ^^ advantages of the estate, he must not go any false re- further than silence. "A very little," said Lord Eldon, tion or^' " is Sufficient to affect the application of that principle. sugges- If a word, if a single word be dropped which tends to mislead the vendor, that principle will not be allowed to operate." Accordingly, in the case before his Lord- ship, the purchaser having made such suggestion of what was not true, the contract was set aside : ^ and in a case where a solicitor bought of a person in difficulties who was selling without professional ad- vice, and untruly represented the nature and title of the property as such that no one but a professional man would purchase it, specific performance was re- fused.'^ Silence § 717. It IS possible that silence which would not ' Deane v. Bastron, Anstr. 64. ^ Turner y. Harvey, Jac. 169, 2 1 Stark. 434. 178 ; and see Walters v. Morgan, 3 3 10 0. B. 591. De G. P. & J. at pp. 723, 724 ^ See per Lord Chelmsford in Peek Davies v. Cooper, 5 My. & Or. 270. V. Ourney, L. E. 6 H. L. 391. ' Davis v. Abraham, 5 W. E. ^ Baglelwle v. Walters, 3 Camp. 465. Of. Summers v. Oriffitlis, 35 154 ; Schneider v. Heath, id. 506. Beav. 27. OF FRAUD. 315 constitute fraud may yet constitute such unfairness in not frau- a contract as to stay the hand of the Court. The case tutmifair. of Ellard \. Lord Llandajf\^ if it is to be supported on the ground of the silence of the lessee as to the fact that one of the lives in the surrendered lease was, at the time of signing the contract, in extremis^ rests upon this principle : and was so put by Lord Manners in deciding it.^ § 718. The employment of a puffer at auctions is Puffing at in some circumstances regarded as fraud, affecting the ''^°*'°"^- contract made at the auction. The cases prior to the statute to be presently mentioned'' seem to fall under three heads. § 719. (i.) Where the sale is announced to be with- !■ Where out reserve, this excludes any interference on the part out^rT- of the vendor which can under any possible circum- serve. stances affect the right of the highest bidder to have the property knocked down to him, and that without reference to the amount to which the highest bidding shall go.* Therefore the employment by the vendor in such a sale of one or more persons to keep up the price on his behalf amounts to fraud in the contempla- tion of the Court,® and is a bar to specific performance.® Where the vendors, assignees of an insolvent, put up his life interest in certain property for sale by auction without reserve, having previously entered into an arrangement with a person whose wife was interested in remainder, that he should bid 35,000^. and be the purchaser, unless a higher sum should be bid, and this fact was concealed, it was held to taint the sale to the defendant at the auction, though he purchased for 49,800/.^ § 720. The statement that a sale is without re- AU parties ' 1 Ball & B. 241. 367, where the earlier cases are the observations of Chitty J. on . , . , -,. , _„ „ • m n As to an intending purchaser buy- Ellards case in Turner v. Green, . „..,, \K ^ ,, [1895] 2 Ch. at pp. 209-211. Z'w.TS rseTZcIt^ 3 Infra, § 724. ^^^ pf_ ^^ Carew's Estate, 26 Beav. * Per Lord Cottenham in Bohin- igT. son v. Wall, 2 Ph. 375. i RoUnson v. Wall, 10 Bear. 61 ; 5 ThorneU y. Haines, 15 M. & W. S. 0. 2 Ph. 372. 316 OF THE DEFENCES TO THE ACTION. having liberty to bid. ii. One puffer employed. A defence in Chan- cery. iii. Several puflfers. The Sale of Land by Auc- tion Act, 1867. serve may of course be modified by other statements : as in one case of a sale under the Court, where it was stated that the sale was without reseiwe, but that all parties to the suit had liberty to bid : the plaintiff bid against the purchaser and ran him up, and the Court of Appeal in Chancery held that the result of the two statements, though not very consistent, was such that the purchaser could not complain.^ § 721. (ii.) Where there is no declaration that the sale is without reserve, and no right of bidding is ex- j)ressly reserved to the A^endor, and he employs one person to prevent the property ghiug at an under- value ; this has been thought not to be fraud in the contemplation of a Court of Equity,^ though it clearly was in that of the Courts of Common Law.^ The distinction however was disapproved of, if not doubted, by Lord Cranworth in the case of Mortimer v. Bell.''' § 722. Inasmuch as a contract, if originally void by the Common Law, ought not to be enforced by Equity, the defendant in a suit in the Court of Chan- cery for specific performance might avail himself of the defence furnished by this fraud at Law, and that formerly by means of a trial of the question at Law.^ § 723. (iii.) Even in the absence of any declara- tion that the sale is without reserve, the employment of two or more persons as puffers has in all Courts been considered fraudulent, inasmuch as only one person can be necessary to protect the property, and the employment of more can only be to enhance the price. "^ § 724. The decision in the case of Mortimer v. Bell above mentioned led to the passing of an Act of Parliament (the 30 & 31 Vict. c. 48), which was intro- duced by Lord St. Leonards. 1 Dimmoch v. Hallett, L. E. 2 Oh. 21. 2 Smith V. Clarice, 12 Yes. 4*77 ; Woodward y. Miller, 2 Coll. 279; Flint V. Woodin, 9 Ha. 618; Bram- ley V. Alt, 3 Ves. 620. ' Per Lord Wensleydale in Thor- iiett V. Haines, 15 M. & W. 372 ; Oroivder v. Austin, 3 Bing. 368. * L. E. 1 Ch. 10. ^ Woodward v. Miller, 2 Coll. 279. " Per Lord Wensleydale in Thor- nett Y. Haines, 15 M. & W. 372. See also Rex y. Marsh, 3 Y. & J. 331 ; Bramley v. Alt, 3 Ves. 620. OF FRAUD. 317 The 4tli section of this Act enacts that, after the Section 4. passing of the Act, whenever a sale by auction of land would be invalid at Law by reason of the employment of a puffer, the same shall be deemed invalid in Equity as well as at Law. Land is defined, in the 3rd section of the Act, to include hereditaments of whatever tenure : but the difference of the view of the Courts of Common Law and Equity as to fraud in auctions of chattels (if such difference exist) is left in its pristine vigour. § 725. The 5th section of the Act enacts that the Section 5. particulars or conditions of sale by auction of any land shall state, (a) whether such land will be sold without reserve, or (b) subject to a reserved price, or (c) whether a right to bid is reserved : and (a) If the land be sold without reserve, it is not lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person. (b) In the event of the land being sold subject to a reserved price the Act is silent, but it has been held that in the absence of express stipulation, it is not lawful to employ any person to bid up to the reserved price.^ But (c) in the event of a reservation of a right to Section 6. the seller to bid, it is lawful for him or for any one person on his behalf to bid at such auction in such manner as he may think proper (sect. 6).^ § 726. As with regard to misrepresentation, so Fraud by with regard to fraud in general, delicate questions ^s^^^^- arise where the fraud alleged is that of the agent practised on third persons, and the principal is su.ed on the ground of deceit or for rescission by reason of such fraud. ^ But in actions for specific performance these questions cannot arise. If the principal of the fraudulent agent were the plaintiff, he would not be at liberty to avail himself of that agency in part and repudiate it in the rest of the transaction : to such a case the well-established principle of Equity that 60 ^ ri-7T i rc77' i T T> n 17 ' See Parfitt v. Jepson, 46 L. J. ' See supra, § 662. 318 OF THE DEFENCES TO THE ACTION. innocent parties cannot derive benefits from the fraud of others^ would apply. If on the other hand the fraud were that of the defendant's agent, the plaintiff by suing on the contract would have waived the fraud and ratified the contract. Agency of 8 727. A particular class of cases arising from the agency of directors and the fact that corporations are incapable of personal fraud has occupied much attention in the Courts of late years, and has evoked a considerable variation of opinion amongst the learned Judges.^ But the question can hardly arise in cases of specific performance for the reason indicated in the last preceding section. Fraud by § 728. Will the fraudulent act of a mere stranger, BtrangCT. ^^ which the plaintiff was neither party nor privy, deprive him of his right to enforce the performance of a contract ? The question has never, it is believed, been judicially answered. But upon the general equitable principle that no person though innocent can derive a benefit from the fraud of another, the contract, if resting absolutely in fieri, could not be enforced. If the plaintiff were an assign for value of the contract, or if the contract were partly performed, the conclusion might probably be different.^ § 729. The foregoing passage was discussed by Kekewich J. in . the case of Union Bank v. Munster.* There a mortgagee had brought an action for fore- closure or sale against the mortgagor, in which an order for sale was made, of which the mortgagee had the conduct. A., an agent for B., the owner of the ^ Bridgman v. Green, Wilm. Not. v. Addie, L. E. 1 H. L. So. 145 ; 58 ; Hnguenin v. Baseley, 14 Ves. Mackay v. Commercial Bank of New 289 ; NicoVs case, 3 De G. & J. Brunswick, L. E. 5 P. 0. 394 ; Swire 387, 438. V. Francis, 3 App. Cas. 106; Houlds- 2 Banger Y. Great Western Baihuay worth v. City of Glasgow Bank, 5 Co., 5 H. L. C. 72; Burnes v. App. Cas. 317, 326; of. British Pennell, 2 ib. 497 ; New Brunswick Mutual Banking Co. v. Gharnwood and Canada Bailway Co. v. Cony- Forest Railway Co., 18 Q. B. D. leare, 7 ib. 711 (S. 0. 4 Giff. 339; 714, 717. 1 De G. F. & J. 578); National , ^^^^^^^^ ^^^^^^^ ^_ ^^^^j^^ 20 Exchange Co. of Glasgow v. Drew, 2 Bga_y_ g24. Macq. 103 ; Nicol's case, 3 De G. & J. 387; Western Bank of Scotland * 37 Ch. D. 51. OF FRAUD. 319 equity of redemption, after the biddings of tte defen- dant had gone beyond the reserve fund, bid without any intention of really performing the contract, which neither A. nor B. had the means to perform. As the result of these bids the defendant gave more than he would otherwise have done. The Court, without deciding whether the fraud of a stranger will or will not prevent specific performance in some circum- stances, held that the conduct of A. did not. If the mere mistake of the defendant is a defence in specific performance,^ it would seem that mistake produced by the fraud or misconduct of a third party may also furnish a defence. § 730. The effect of fraud on the contract tainted The fraud by it extends to the entirety of the contract, though entire the fraud may only have arisen or been practised as contract. regards one term or one part of that contract. Hence the party guilty of the fraud cannot enforce the con- tract to any extent, even though he may waive the part afiected by the fraud. § 731. The same results follow from misrepre- So does sentation, even though innocent. ^ntation In a case where there was a misrepresentation which the Judge considered not to have been wilful, but to have arisen from misunderstanding as to the surrender of a lease on part of the property which was to be exchanged, and the plaintiff offered to take the land subject to the lease, and thus, as he contended, to abide by the contract, exonerated from what was affected by the misrepresentation ; so that the ques- tion distinctly arose whether the misrepresentation avoided the contract in toto or only quoad hoc ; Plumer M.R. said, "there is no authority anywhere, no case where the Court has, when misrepresentation was the ground of a contract, decreed the specific performance of it; and nothing would be more dangerous than to entertain such a jurisdiction. The principle on which performance of an agreement is compelled, requires that it must be clear of the imputation of any decep- tion. The conduct of the person seeking it must be free from all blame : misrepresentation, even as to a ' See infra, § 758. 320 OP THE BEFENCES TO THE ACTION. Mawlins v. ]J ichham. The two- fold effect of fraud. Contract voidable, not void. small part only, prevents him from apj^lying here for relief. The reason of this is obvious: if it be so obtained, the contract is void both at Law and in Equity. When an agreement has been obtained by fraud, is the effect to alter it partially, to cut it down or modify it only ? No ; it vitiates it in toto ; and the party who has been drawn in is totally absolved from obligation. If so, what equity has the other party, who, by his misconduct has lost one contract, to call on the Court for his benefit to make a new one ? If the defendant were willing to consent to it, and to enter into a new agreement, it would be a different case ; but if he refuses, if he insists that he is absolved from it, what equity can there be in favour of the other? "1 § 732. The view that fraud operates on the entire contract was adopted and approved by the Court of Appeal in Chancery in Raivlins v. Wiclcham,^ which was a suit for rescission : where the defendant urged that justice would be done not by rescinding the contxact, but by directing the representation to be made good : but the contention was rejected by Knight Bruce and Turner L.JJ., on the ground that the misrepresentation gave a right to avoid the entire contract. § 733. The effect of fraud on the contract is two- fold. First, it renders the contract voidable at the election of the defrauded party : secondly, it operates as a personal bar to specific performance. These two effects are for many purposes distinguishable : for ex- ample, the right to rescind may be lost, and the right to object to specific performance may remain. These two effects will therefore be considered separately. § 734. The first effect of fraud is to render the whole contract voidable, but voidable only. The contract is not void : it is not a nullity. " It is now well settled," said Lord Campbell C.J. in The Deposit and General Idfe Assurance Co. Registered v. Ayscough^' ' Viscount Clermont y. Taahurgh, 1 J. & W. at pp. 119, 1^0. 2 3 De G. & J. 304. See also Kennedy v. Panama, &c. Mail Co., L. E. 2 a B, 580, 587. 3 6EI. &B1. 761. See also Nicol's case, 3 De G. & J. 387, 431; Clarke V. Dickson, El. B. & E. 148; Oakes OF FRAUD. 321 " that a contract tainted by fraud is not void but only voidable at the election of the party defrauded." It is valid till disaffirmed, not void till affirmed.^ § 736. From this distinction, many important Conse- consequences follow : it follows that the defrauding ^^Xa^'f party is bound until the defrauded party elects to the temg contrary, and that he can never set up any invalidity oniy''^^'' in the contract : it follows that the defrauded party is equally bound, until he rescinds : ^ it follows that the property the siibject of the contract passes to the purchaser, whether defrauding or defrauded, until avoidance : it follows that all mesne dispositions by the defrauding party to third persons not parties or privies to the fraud are valid, so that third persons may acquire absolute interests and rights under the fraudulent contract;^ and lastly, it follows that the defrauded party may, by electing to be bound or by losing his right to repudiate, become absolutely bound by the contract. § 736. The right of rescinding a contract may, Howrigiit however, be precluded or lost by any one of the to rescind p 11 . ' . ^ . ,.%.■' -1 -T /••• \ 1 maybe lollowmg circumstances, VIZ., (i.j impossibility: (ii.jthe precluded. vesting of an interest under the contract in an inno- cent person which renders rescission inequitable : (iii.) the election of the defrauded party to abide by the contract : or (iv.) the inability of the defrauded party to perform the obligation which rests upon him to make restitution on his part.* § 737. (i-) The rescission has become impossible i. Resois- when its object is to get back something which is ^''"g'^;™^" actually destroyed, as, e.ff., if A. sought to rescind a contract for the sale of a sheep to B., which sheep B. had killed and eaten.® The rescission would be equally impossible, but for a legal and not a physical reason, if B. instead of T. Turquand, L. E. 2 H. L. 325, 6 El. & Bl. 761. 346; Urquhart v. Macpherson, 3 ' Stevenson y. Newnham, 13 C. B. App. Oas. 831. 285, 302. ' See per Lord Cairns in Beese * See Clough v. London and North River Silver Mining Co. v. Smith, Western Bailioay Co., L. E. 1 Ex. L. E. 4 H. L. at p. 69. 26. ^ Deposit and General Life As- ^ PotHer, du Oontrat de Vente, surance Co., Registered v. Ayscoxtgli , s. 348. 322 OF THE DEFENCES TO THE ACTION. ii. Eescis- sion in- equitable. iii. Elec- tion to abide by the con- tract. killing the sheep had sold it : for the contract between A. and B., not being void, vested the property in B., and consequently before rescission B. could make a good title to C, and 0. could hold free from any right of rescission in A.^ It is too late for the defrauded vendor to declare his election to rescind when the property has passed from the fraudulent vendee to a third person.'^ § 738. (ii.) The rescission is inequitable when third persons innocent of the fraud have acquired interests under the contract, and such innocent per- sons would consequently be injured by its rescission. So in the great case arising out of Overend, Grurney & Co.'s -failure, it was held by the House of Lords that the person who took shares by reason of a fraudu- lent misrepresentation could not after a winding-up order rescind this contract, and have his name removed from the list, because the creditors of the company had acquired an interest in the enforcement of the contract which, as they were innocent, the shareholder could not defeat by rescinding.^ This reasoning, of course, does not apply to private partnerships : to allow rescission against a company after winding-up would be to interfere with the rights of creditors, whilst to permit it in the case of a private partnership leaves all their rights intact.^ § 739. (iii.) An election to abide by the contract will prevent its rescission. A person defrauded into making a contract has but an election, and an election once determined is determined for ever.^ Whether this election must be made within a reasonable time, or whether the party entitled to elect may do so at any time, unless he has in the meanwhile lost that right on some other ground, as, e.g., the acquisition of rights by third parties, is a question left open by a 1 Kingsford v. Merry, 11 Ex. 577; Loadv. Green, 15 M. &W. 216,219. ' White V. Garden, 10 0. B. 919. ^ OaJies V. Turquand, L. E. 2 H. L. 325; Mixer's case, 4De G. & J. 575. * TennentY. City of Glasgow Bank, 4 App. Gas. 615, observed upon by Stirling J. in lie Roundivood Colliery Co., [1897] 1 Oil. at p. 382; Adam V. Newhigging, 13 App. Oas. 308, 322. * Comyn, Dig. Election, c. 2. Clough V. London and North Western Bailway Co., L. E. 7 Ex. 26, 34. Consider Gordon y. Bl/reet, [1899] 2 Q. B. 641, 649. OF FRAUD. 323 modern case on this subject.^ It is certain, however, that in the case of rescission for fraud, the election once determined in favour of the contract precludes any subsequent rescission.^ § 740. In the case of contracts to take shares Contracts induced by a misrepresentation of the objects of the shares! company, it is now determined that the date of the allotment of the shares is the very latest date to which the reasonable time for election extends.^ § 741. The election to abide by a contract may be How eieo- by express words or may be inferred from acts done t" m^dT with a knowledge of the invalidity of the contract.* The election is not necessarily formal or express. As soon as the fraud is discovered the right to elect Election arises : and if this has been exercised by affirming the ^^^' contract, the subsequent discovery of fresh incidents of the same fraud will not give rise to a new right to rescind.^ § 742. (iv.) The person who seeks rescission and iv. in- thereby restitution to his state before the contract must ^^eresti- do the like on his part and make restitution: ^^ Resti- tution. tutio in integrum,'''' said Lord Cranworth,*^ " can only be had where the party seeking it is able to put those against whom it is asked in the same situation in which they stood when the contract was entered into." If by any act on his part, done even in ignorance of the fraud, the defrauded party has made this im- possible, he cannot obtain rescission:'^ as, e.g., if A. has by fraud been induced to buy a sheep of B. and ^ Morrison v. Universal Marine * Per Lord Lyndhurst in ^itoootZ Insurance Co., L. E. 8 Ex. 40, 19Y, v. Small, 6 01. & Pin. 432; 3£ac- particularly 205. See, too, Gordon Iryde v. Weekes, 22 Bear. 533. V. Street, uhi supra. Comyn, Dig. Election, c. 1. dough V. London and North Western Bail- 2 Camplell v. Fleming, 1 A. & E. ^^^ ^^_^ j^ ^ ^ ^^_ 26 ; Morrison 40; Clough v. London and North ^_ Universal Marine lasuranee Co., Western Railway Co., L. E. 7 Ex. -r -p c -p„ 107 ons 26. See also Gray v. Fowler, L. E. ', q^^^^'^h ^_ 'Fleming, 1 A. & E. 8 Ex. 249. .n ' Oahes T. Turquand, L. E. 2 H. L. ^ In Western Bank of Scotland t. 325, and particularly 352, -where Addie, L. E. 1 H. L. Sc. at p. 164. the earlier cases are considered. ' S. 0. 166. y2 324 OF THE DEFENCES TO THE ACTIOiSr. seeks the repayment of the money paid to B., he must offer to restore the sheep, and if he has himself killed the sheep he cannot seek such rescission/ though he may still maintain his action against B. for the fraud practised on him. So, again, no fraud in bringing about a marriage settlement will enable the defrauded party after marriage to rescind it.^ Clarice y. Jjv the caso of Clarke v. Dickson,^ the plaintiff sought to rescind a contract for the sale of shares in a mine, and the following facts were held to be several grounds of objection all falling under this principle: (1) that he had held the shares for three years, and that they were not the same shares at the beginning of the time as at the end ; (2) that he had received dividends ; (3) that he had concurred in the conversion of the concern from a partnership on the cost-book principle, into a joint-stock corporation ; and (4) that at the time of the offer to restore, the company was being wound up and all chance of profit was gone. Western § 743. In a Subsequent case in the House of Lords Scotland ^^^ plaintiff complained of fraud in inducing a contract V. Addie. on his part to take shares in an unincorporated banking company : and the circumstances that the plaintiff had in ignorance of the fraud taken part in proceedings to convert this company into an incorporated companj-, and that the company was in course of winding u^d, were held to preclude the plaintiff from rescission. Lord Cranworth thought that the former circumstance would of itself have been sufficient.* Adamy. With these previous cases may profitably be com- bigging. pared the case of Adam v. Newhigging, also in the House of Lords.^ There the plaintiff had been by • See Clarke v. Dichaon, El. B. 1016 ; 33 W. E. 30. &E. 148. iVjcoPs case, 3 De G. & J. 3^1. b. & E. 148. See, too, 387, 431; Maturin v. Tredennick, Sheffield Nickel Co. v. Unwin, 2 12 W. E. 740; Great Luxemlourg q_ 3. j). 214, 223; Urguhari v. Bailwarj Co. v. Magnay, 25 Beav. Macpherson, 3 App. Oas. 831 ; and 686. This case, so far as it deter- consider Maturin v. Tredennick, 12 mined that the plaintiffs had lost ■yf_ j^. 740. their remedies besides rescission, seems bad law. See Kimber y. ^'^^'^" -^«»* "/ ^-^"^^"'"^ ^• Barber, L. E. 8 Ch. 56. ^'^'^''' ^- »• ^ ^- ^- ^c Ho. = Johnston v. Johnston, 32 W. E. " 13 App. Cas. 308. OF FRAUD. 325 misrepresentation induced to enter into a partnership witli the defendant, and the plaintiff was held not to be precluded from rescinding the contract by reason of the concern's having gone from bad to worse during the time between the contract and the action. § 744. The receipt of dividends before discovery Does the of the fraud was relied upon in the case of Clarke v. ^f^an^ Dickson,'^ as precluding rescission ; and there are other benefit authorities to show that, at Common Law, the recep- resolsSon? tion of any benefit under a contract will preclude its rescission for default of performance by the other party .^ But it is submitted that no such rule prevails where the rescission is on the ground of fraud, and that where a benefit has been received and is capable of restoration either in kind or by way of compensa- tion, and the defrauded party offers such restoration, he has not lost his right to rescind. For to return to the illustration of the sheep : — if, before the discovery of the fraud, A. has sheared the sheep, it appears reasonable to hold that such change in the condition of the sheep will not deprive A. of his right to rescind, if he offer to restore the sheep and account for the wool. So, in Earl Beauchamp v. Winn,^ the House of Lords instances. held that the construction of a warping-drain and the inclosure of a common would not have prevented the rescission of a contract for the sale of the land on the ground of mistake : and in The Lindsay Petroleum Co. V. Ilurd,*' the Privy Council took the same view of the facts that possession had been taken under the contract and a trial well sunken. In that case the Court below had offered an account of the profit of the well, if any, which was not accejDted. § 745. In the rule as above stated,^ the act pre- Restitu- cluding restoration is referred to the party bound to aeTedlm- restore. Is it essential that it should be by his act, or possible is it enough that even by another's act the restoration oJtted person. 1 El. B. & E. 148. * L. E. 5 P. G. 221. See also^cr Crompton J. ia Deposit and General 2 Hunt V. Silh, 5 Bast, 449; ickburn r. Smith, 2 Ex. 783. L. E, 6 H. L. 223, 232. ^ Siti^ra, § 736. Life Assurance Co., Begistered, y. Blackburn r. Smith, 2 Ex. 783. Ayscough, 6 El. & Bl. 761. ■326 OF THE DEFENCES TO THE ACTION. i.^ impossible ? To return once more to the sheep. Can the defrauded purchaser claim to resciiid though the sheep have died by the act of God ? The point seems to have never been decided. On the one side there are cases in which are found general statements of the law which imply that the impossibility of restoration from whatever cause is a bar to rescission.^ And it may be open to question whether any real distinction can be drawn between the innocent act of the defrauded party which precludes him from restora- tion, and the act of Grod, or of a third person, leading to a similar result. On the othei' side is the language of Crompton J. in Clarke v. Dickson,^ that ' ' the true doctrine is that a party can never repudiate a contract after, by his own act, it has become out of his power to restore the parties to their original condition." The § 746. As our law is far from clear on this point Frraioh £|. j^g^y ijg useful to refer to the principles of French Law as expounded by Pothier.' According to him an action for rescission was not precluded by the change or destruction of the thing sold. If the destruction took place without the act of the plaintiff, he was not bound to do more than he could. If the horse had died, the plaintiff must give back his skin : if the cow sold had died of a contaglotis disease, and been buried, he need return nothing. If, on the other hand, the change or destruction was due to the act of the plain- tiff, he was bound to account to the defendant for the value of the thing but did not lose his action. Innocent § 747. The right to rescind does not arise from sentaSou ^^ innocont misrepresentation, unless it be such as to does not show that there is a complete difference in substance ffve right between what was supposed to be and what was taken to rescind, so as to Constitute a failure of consideration.^ other § 748. It must not be assumed that in every case ' Eunt V. Bilk, 5 East, 449 ; = Traite du Contrat de Vente, • Blacldmrn v. Smith, 2 Ex. "783. ss. 220—223. ■ ' El. B. & E. 155, approved in * Kennedy v. Panama, &c. Mail P. C. Urqiihart v. Macpherson, 3 Co., L. E. 2 Q. B. 580; Torrance y. App. Oas. 831. See, too, Sheffield Bolton, L. E. 8 Ch. 118. Qi. Brett Nickel Co. v. Univin, 2 Q. B. D. v. dowser, 5 C. P. D. 376; and 214, 223. Adam y. Newhigging, supra, § 743. OP FRAUD. 327 in which the right of rescission is lost, every other remedies remedy in respect of the transaction is lost also. This though is not the case. Thus a person induced to take shares rescission by fraud may have lost the right of rescinding the sibie. contract, but may yet sue the deceiver for indemnity against the loss resulting from the contract.^ A prin- cipal authorizes an agent to buy shares at 31. per share on the agent's representation that he can procure them for that price : the agent has in fact just bought them for 21. a share : the principal having sold the shares before the discovery of the fraud cannot rescind the contract, but may sue the agent for the difference between 3/. and 21. per share.^ § 749. The second effect of fraud on the contract Fraud is is this : it " operates," as expressed by Lord Lynd- ba/to°°^ hurst, "as a personal bar to the relief."^ This is an relief. operation independent of the rescission of the con- tract : and though there can be no doubt that, where the defrauded party has elected to be bound by the contract, he has also waived the right to insist on the personal bar, it does not follow that he has also lost the right to set up that bar where rescission has become impossible from the interests of third persons, or from the impossibility of restitution arising either from the act of God or of third persons or from his own act before knowledge of the fraud. In all these cases, it is conceived that the defendant might still urge the fraud as a bar to specific performance ; — just as at Common Law he might, after having lost his right to rescind in any of the ways last indicated, maintain an action of deceit against the defrauding party.* An innocent misrepresentation may, as well -as a innocent fraudulent one, constitute a personal bar to relief.'^ ^nSon. § 750. Where it appears that the execution of a Fraud on contract in the manner insisted on by the plaintiff ^^'^ w^^^'^- will result in a fraud upon the public, the Court will 1 Peek V. Ourney, L. E. 6 H. L. at ji. 751. 377. ■* Clarke v. Dickson, El. B. & E. 2 Kimber v. Barter, L. E. 8 Ch. 148. 36. 5 Clermont T. Tasburgh, IJ. & W. 3 In Harris y. KemlU, 5 Bli. N. S. 112. 328 OF THE DEFENCES TO THE ACTION. not enforce the performance of the defendant's part of the contract. Thus in a case where the plaintiffs sought to compel the defendant to perform an alleged contract by him to edit a guide-book with a title-page stating it to be the work of K. (a well-known editor of such books), who, in fact, had nothing to do with it, it was held that the defendant was justified in staying his hand and breaking o£B the delivery of " copy" of his manuscript, on the ground that such a title-page was calculated to deceive the public.^ ' Post V. Marsh, 16 Oh. D. 395. Of. Oldham v. James, 16 Ir. Oh. E. 81. 329 CHAPTER XV. OF MISTAKE. § 751. There being at least two parties to every Kinds of contract, it follows that mistake may be, 1st, the ^1*^^^ mistake of the defendant alone ; or 2ndly, the common in con- mistake of both plaintiff and defendant; or 3rdly, *'^^°'^' the mistake of the plaintiff alone. The first and second species will require discussion, as grounds of defence to an action for specific performance; the second and third will both raise the question how far the plaintiff may enforce performance with a cor- rection of the error. It will be necessary to consider mistake not only as a defence to a specific perform- ance, but also to some extent as giving a plaintiff a right to a rescission or rectification of the contract. § 752. Mistake may be of such a character as in Principle the view of a purely Common Law Court to avoid the °* *^® contract on the ground of want of consent or of total failure of consideration.^ But Equity does not confine the defence of mistake to these cases. The principle upon which it proceeds is this : — that there must be a contract legally binding, but that this is not enough, — that to entitle the plaintiff to more than his Common Law remedy, the contract must be more than merely legal. It must not be hard or unconscionable : it must be free from fraud, from surprise, and from mistake : for where there is mistake, there is not that consent which is essential to a contract in Equity : non videntur qui errant consentire? 1 Raffles y. Wichelhaus,2'S.. & C. - Dig. Lib. 50, tit. 17, t. 116. 906 ; Kennedy v. Panama, &c. Mail See Wilding y. Sanderson, [1897] Co., L. E. 2 Q. B. 580. 2 Oh. 534. 330 OF THE DEFENCES TO THE ACTION. Mistake sometimes, but not a bar to perform- ance. As to the Statute of Frauds. Parol evi- dence ad- mitted for defence. Marquis Townshend v. Stan- groom, § 753. In some cases, mistake furnishes an abso- lute bar to specific performance : in other cases it affords no such ground, if the plaintiff be willing to make a reasonable compensation to the defendant for the mistake made : whether a given case falls within one or other of these categories depends on all its circumstances.^ § 754. Again, the Statute of Frauds has not affected the situation of a defendant against whom specific performance is sought,^ and it therefore leaves it open to him to produce any evidence for his purpose, which is not to establish a contract, but to rebut an equity which the plaintiff insists has arisen out of a contract. § 755. The cases of mistake have, it is true, seemed to present rather peculiar difficulties to the admission of parol evidence, because it has been argued that to do so is to overrule the Statute of Frauds and to contradict the writing by parol. Its admission is, however, the settled doctrine of the Court, and that not merely for purposes of defence to a specific performance, but, as we shall hereafter see, for the purpose of correcting the mistake. The question of its admission by way of defence was much debated in the case of the Marquis Townshend v. Stangraom^ where Lord Eldon said, " It cannot be said, that because the legal import of a written agree- ment cannot be varied by parol evidence, intended to give it another sense, therefore in Equity, when once the Court is in possession of the legal sense, there is nothing more to inquire into. Fraud is a distinct case, and perhaps more examinable at Law : but all the doctrine of the Court as to cases of unconscionable agreements, hard agreements, agreements entered into by mistake or surprise, which therefore the Court will not execute, must be struck out, if it is true, that because parol evidence should not be admitted at Law, therefore it shall not be admitted in Equity ' London and Birmingham Rail- way Co. V. Winter, Cr. & Ph. 57, 62 ; McKenzie v. HesJceth, 7 Ch. D. 675. * Per Grant M.E. in Clarke v. Grant, 14 Ves. 519. 2 6 Ves. 328. OP MISTAKE. 331 upon the question, whether, admitting the agreement to be such as at Law it is said to be, the party shall have a specific execution, or be left to that Court, in Avhich, it is admitted, parol evidence cannot be intro- duced."^ " No person," said Lord Redesdale, "shall be charged with the execution of an agreement, who has not, either by himself or his agent, signed a written agreement ; but the statute does not say that if a written agreement is signed, the same exception shall not hold to it that did before the statute." - § 756. It follows from what has been stated, that Mistake where the defendant has been led into any mistake or fendant. ' error, the plaintiff cannot enforce the contract with the mistake. Therefore where, in a sale by auction, the plaintiff had induced the defendant, who was the vendor, to think that he should not bid, and so put him off his guard, and the estate was, by a misappre- hension on the part of the person employed to make the reserved bidding, allowed to be knocked down to the plaintiff, the Court, on the ground of mistake, though there was no fraud, declined to enforce the sale.^ Lr another case the estate was sold in lots : the particular stated that the timber on lots four and five was to be taken at a valuation : in addition to tlii.s, one of the conditions of sale specified that the pur- chaser was to take the timber (speaking generally without reference to any particular lot) at a valuation : Grant M.R. said that the express declaration as to lots four and five was so likely to mislead a purchaser as to the meaning of the conditions, that supposing that the right construction of the condition was that it applied to all the lots, it would be inequitable to enforce specific performance of the contract.^ Again, where^ on a sale by auction, the plan annexed to the particulars of the property (a house and grounds) showed a shrubbery on the western boundary, and 1 6 Yes. at p. 333. Accordingly * Higginson t. Clowes, 15 Ves. Manser v. Bach, 6 Ha. 443. 516. See, too, per Jessel M.E. in ^ In Clinan v. Coohe, 1 Sch. & Jones t. Btmmer, 14 Ch. D. at Lef. 39. p. 592; MoxeyY. -Bi'g'iwood, 4 DeG.F. 2 Mason v. Armitage, 13 Ves. 25; & J. 351 ; and of. Phelps v. White, Pym V. BlacMiurn, 3 Ves. 34 ; Day 5 L. E. Ir. at p. 335. T. Wells, 30 Beav. 220. = Denny v. Hancock, L. E. 6 Ch. 1. 332 OF THE DEFENCES TO THE ACTION. the defendant, going to inspect the property before the sale with the plan in his hand, found on the western side a belt of shrubs with an iron fence out- side it enclosing three ornamental trees, and he then bought the property, believing that the fence was the boundary, but the real boundary was a line of shrubs within the shrubbery and did not enclose the trees, the Court of Appeal held that the mistake was increased by at least crassa negligentia on the part of the vendors, and accordingly dismissed with costs their bill for specitic performance. Where § 757. In the preceding cases, it will be observed buted'to ^^^ ^^ plaintiff contributed to the mistake of the de- bj plain- f endant : and there is no doubt that the circumstance that the plaintiff has by his words or his silence or in any way contributed to the error of the defendant, even though he may have done so unintentionally, greatly strengthens the defendant's case.^ Mistake § 758. Even where the mistake is purely due to drfenda'nt. ^^^ defendant himself or his agent, the Court will in some cases refuse specific performance:^ indeed, it will sometimes furnish active assistance on the ground of the mistake of the party himself as well as of another, as is strongly shown by a case in which a professional man was held entitled as plaintiff to the rectification of an error in a deed of his own drawing.^ The cases, too, on intoxication furnish an analogy to this doctrine : for that circumstance is a ground of defence, though it may have been in nowise brought about by the plaintiff.* Mistakes § 759. On tliis principle, where a person, who aldof'^a^'^ was employed to bid for one of two distinct estates vendor. offered for sale at the same time and place, came into the auction-room, and after hearing the description of a lot which was perfectly different from that for which he was engaged to bid, kept bidding in a hasty ' Baskcomh v. Bechwith, L. E. 8 Rimmer, 14 Ch. D. at p. 592. Eq. 100; of. Caballero y. Henty, , ^^^^ ^_ 1 S. & S. 210; L. E. 9 Oil. 447 ; Bray v. Briggs, ' 20W.E.962; Wilding y. Sanderson, ''f" ^"^ ^- ^™''«^' ^^ ^- T- N. S. [1897] 2 Oh. 534. 517. ^ See per Jessel M.E. in Jones y. ' See supra, § 403. instances OF MISTAKE. 333 and inconsiderate manner for, and ultimately pur- chased, this lot, which by his own gross mistake he thought to be the lot for which he was to bid, the Court refused specifically to carry out the sale.^ And where a vendor by mistake offered to sell an estate for 1,100/., which figure he had by a wrong addition reached instead of 2,100/., the Court refused the pur- chaser specific performance and dismissed his bill without costs. ^ 5 760. So where a vendor had revoked the autho- 9*-^^^ rity or the auctioneer as to part of the property, and the auctioneer inadvertently sold the whole, the Court refused specific performance, though the purchaser was justified in believing that he purchased all ho claimed by his bill.^ Again, where a description of parcels was prepared by the vendor's solicitor from a previous description, which had been prepared by another solicitor on the report of a surveyor, and the description turned out to be erroneous as to quantity, the Court would not enforce the sale on the vendor, unless the case were one for compensation, and the purchaser would submit to it."* And where a vendor sold a manor, being at the time ignorant of its exact extent, and both parties at the time of the contract believed that what it included was something difPerent from what it really did, and the manor proved to comprise valuable property that the vendor did not know to be within it, the purchaser's bill for specific performance was dismissed.^ § 761. Where a defendant was tenant for life of ^^""'^'v. G:orge. ' MalinB v. Freeman, 2 Ke. 25 ; Contract, [1901] 1 Ch. 93. but see contra Van Praagh v. Eve- * Leslie v. Tompson, 9 Ha. 268. ridge, [1902] 2 Oh. 266. See also per Lord Cottenham in ^ Webster v. Cecil, 30 Beav. 62. Alvanley v. Kinnaird, 2 Mao. & Gr. As to tlie costs in this case, see per 7 ; Helsliam v. Langley, 1 Y. & C. James L.J. in TanipZmv. James, 15 0. 0. 175; Neap v. Abbott, C. P. Ch. D. at p. 221. Sucli a mistake Coop. Eep. (1837-8) 333. And of. will not be a ground for opening McKenrAe v. Hesheth, 7 Ch. D. 675. biddings, wbiob can now only be ^ Baxendale v. Seale, 19 Beav. opened for fraud. Griffiths y. Jones, 601. See, too. Earl of Durham v. L. E. 15 Eq. 279. Legard, 34 Beav. 611; Richards v. 3 Manser v. Bach, 6 Ha. 443 ; North London Railway Co., 20 followed in Re Hare and O'More's W. E. 194. 334 OF THE DEFENCES TO THE ACTION. an estate, under a settlement wliich contained a pro- viso, that if he purchased and settled an estate in fee simple in possession in some convenient place or places of a value equal to or greater than the estate comprised in the settlement, then this estate should become the property of the tenant for life ; and he, imagining that he had, with the concuri-ence of his wife, an absolute power of disposition over the settled estate, entered into a contract for sale : Plumer V.C. refused to cany it into effect by an exercise of the pi"oviso in the settlement, considering that such a per- formance of the contract would be attended with great difficulty, and that the defendant had not contracted for that purpose or with that intention.^ ^de?^ § 762. In a case where a corporation was con- dant's tracting by an agent, and he swore to his sense and agent. understanding of the contract he entered into being to a certain effect which the contract did not justify, and a bill was filed against the corporation, one ground upon which Knight Bruce L.J. dismissed an appeal against the corporation was this mistake of the agent. ^ It would open a wide field of defence if every mis- apprehension of the legal effect of a contract furnished a valid one. But perhaps the Court considers with more favour as a defence the allegation of mistake in an agent than in a principal.^ Cases § 763. Where there has been no misrepresentation, mistake and there is no ambiguity in the terms of the contract, of defeu- -^j^g defendant cannot be allowed to evade the perf orm- defence. ance of it by the simple statement that he has made a mistake.* In a case before Lord Romilly M.R., where the defendant alleged that he misunderstood the par- ticulars of sale, his Lordship observed that "if there appear on the particulars no ground for the mistake, if no man with his senses about him could have misap- prehended the character of the parcels, then I do not think it is sufficient for the purchaser to swear that he ^ Howell V. George, 1 Mad. 1. Cf. ^ Per Turner L.J. in Morrison y. Hood Y. Oglander, 34 Beav. at Barrow, 1 De G. F. & J. 638. pp. 518, 519. * Per Baggallay L.J. in Tamplin * Wycombe Railway Go. t. Don- T. James, 15 Ch. D. at p. 217; nington Hospital, L. E. 1 Oh. 268, Morley t. Clavering, 29 Beay. 84. OF MISTAKE, 335 made a mistake or that he did not understand what he was about." ^ And so where, according to the true construction, the contract made the intended lease determinable at the option of either party, but the lessee insisted that he signed it in the belief that it gave the option to him only, the Court overruled the defence based on the alleged mistake.^ § 764. So again where the property sold (an inn TampUn v. and shop) was described in the particulars as consisting of Nos. 454 and 455 on the tithe map, containing by admeasurement 20 perches more or less, and in the occupation of Mrs. K. and Mr. S., — all which state- ments were correct, — and correct plans of the property were exhibited at the auction ; and the purchaser deposed that he did not see the plans, but had known the property from his boyhood, and bought it in the belief that it included two plots of garden ground which had for many years been occupied with the gardens behind the inn and shop respectively ; it was held by Baggallay L.J. (sitting for Malins V.C.) and by the Court of Appeal that the purchaser was not entitled to be released from his bargain." " If," said James L. J., " a man will not take reasonable care to ascertain what he is buying, he must take tlie con- sequences. ... It is not enough for a purchaser to swear ' I thought the farm sold contained twelve fields which I knew, and I find it does not include them all,' or 'I thought it contained 100 acres and it only con- tains 80.' It would open the door to fraud if such a defence was to be allowed. Perhaps some of the cases on this subject go too far, but for the most part the cases where a defendant has escaped on the ground of a mistake not contributed to by the plaintiff, have been cases where a hardship amounting to injustice would have been inflicted upon him by holding him to his bargain, and it was unreasonable to hold him to it."* § 765. Indeed, it seems on general principles clear ^ Siuaisland T. Bearsley, 29Beav. ' PowellY. Smith, L. E. 14 Eq. 85. 430. This statement of the law was 3 TampUn y. James, 15 Oh. D. cited and approved by Baggallay L.J. in TampUn v. James, 15 Ch.. D. at p. 218. ' 15 Ch. D. at p. 221. 336 OF THE DEFENCES TO THE ACTION. that one party to a contract can never defend himself against it by setting up a misunderstanding on his part as to the real meaning and effect of the contract, or any of the terms in which it is expressed. To permit such a defence would be to open the door to perjury and to destroy the security of contracts.' Whether the objection to such evidence is derived from the doctrine that every person who becomes a party to a contract, contracts to be bound in case of dispute by the interpretation which a Court would put on the language used, or from any other doctrine, the objec- tion seems to be certainly valid.^ rae**art°* § 766. So thc mistake purely of one party to a as ground coutract not induced by the other will often fail as a sion^^^"^^' gi'o^'^d for rescinding the contract by the ]Darty making the mistake. So where the defendants sold to the plaintiffs 100 chests of tea ex Star of the East, and the sale was made by a sample produced by the defendants as from that ship, when in fact it had nothing to do with that cargo, and the defendants gave notice that they would on that account treat the contract as void, the Court of Queen's Bench determined that there was no equity in the defendants simply to rescind the con- tract.^ Mistake of § 767. Again, the mistake of the defendant may a'ground' ^^ ^ reasou for putting the plaintiff to his election for eieo- either to have his action dismissed, or to take perf orm- ^^°°' ance of the contract as it was understood by the defendant.* Parol § 768. We may now proceed to consider the effect set up by ^^ ^ parol Variation set up by the defendant as a defendant, ground for rcfusing the specific performance of a written contract alleged by the plaintiff. It depends on the particular circumstances of each case whether the variation " is to defeat the plaintiff's title to have ' See Van Praagh v. Everidge, Cas. 108 ; Hart v. Hart, 18 Ch. D. 71 L. J. Ch. 598 ; [1902] 2 Ch. 266, 670. Cf. Hickman v. Berens, [1895] at pp. 272, 273 ; and the case of ^ Ch. 638, 645, and consider Wilding ■^^ ' ' ^ T. Sanderson, [1897] 2 Ch. 534. Goddard V. Jeffreys, 30 W. E. 269, 3 ^^^^^ ^_ Littledale, 8 El. & Bl. 270, there (at p. 271) referred to. 815. ^ See Stewart Y. Kennedy, 15 App. * Preston y. iwc^, 27 Oh. D. 497. OF MISTAKE. 337 a specific performance, or whether the Court will per- form the contract, taking care that the subject-matter of this parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for."^ § 769. (i.) Whei'e the parol variation set up by i- Where the defendant shows that after the parties to the con- ^°^°''°^'^- tract had mutually agreed with one another, an error occurred in the reduction of the contract into writing, and it appears that the written contract varied accord- ing to the defendant's contention represents the true contract between the parties, the Court will, it seems, enforce specific performance of the contract so varied. § 770. Thus, where a bill was brought for the instances. specific performance of a contract to grant a lease at a rent of 9/. per annum, and the defendant insisted that it ought to have been a term of the contract that the plaintiff should pay all taxes : Lord Hardwicke granted specific performance, and directed that the terms of the verbal contract should be carried into effect by the covenants to be inserted in the lease.^ Again, where a bill prayed the execution of a contract for the sale of an estate, and the defendant resisted, and proved parol declarations by the auctioneer as to a right of common, and that previously to the sale the particular had been altered as to a certain right of common ; the plaintiff proposed that his bill should be dismissed, but Lord Eldon pursued the course which the defendant insisted on, which was specifically per- forming the contract as contended for by the defen- dant, thus saving the expense of a cross-bill by him.^ § 771. (ii.) But where the mistake or parol varia- u. mere tion set up by the defendant does not show a mere ^is^Ssed. mistake in the reduction of the contract into writing, but that one party understood one thing and the other another, there is no such contract as the Court will enforce, and the plaintiff's action is consequently dismissed. 1 Per Lord Cottenham in London p. 72. and Birmingham Raihuay Co. v. * Joynes T. StatJiam, 3 Atk. 388. Winter, Cr. & Ph. at p. 62 ; Smith ' Fife T. Clayton, 13 Ves. 546. V. Wheatcroft, 9 Cli. D. 223. Of. See also Oimjnn v. Lethiridge, 14 Morgan v. Griffith, L, E. Ex. at Ves. 585. F. Z 338 OF THE DEFENCES TO THE ACTION. Therefore, where the Court thought that the plaintiff and defendant had both been mistaken in a contract which contained certain ambiguous conditions as to the payment for timber, the bill was dismissed.-' menTof' § "772. The samo result follows where, from any variation other circuuistance, the enforcement of the parol varia- unfair. ^^qj^ gg^ ^p -j^j ^]^g defendant would be unfair on either party. Accordingly, where the plaintiff set up a con- tract which the defendant successfully resisted by parol evidence of a subsequent contract, and the plaintiff insisted on a performance of the contract so set up ; Strange M.R. refused to grant it, on the grounds that it would be a surprise on the defendant to insist, under the prayer for general relief, on the performance of a contract which was not put in issue by the record, and that the plaintiff had really caused the litigation by his refusal to adopt the real contract.^ Again, where the defendant proved a parol variation, and a great lapse of time had occurred, and compensation in respect of the term in dispute must have been allowed, if the contract had been enforced, for the period whilst the doubt about the terms of the contract had been subsisting, the plaintiff's bill was dismissed, but without costs. ^ So in Lindsay v. Lynch, ^ where the plaintiff had refused throughout to adopt the contract which the defendant admitted, the bill was dismissed, but with- out prejudice to another bill. iii. Plain- § 773. (iii.) Where, as is often the case, the Court Ms eieo-*° ^^oes not decide that the parol variation falls clearly tion. under either of the previous cases, but merely that the defendant contracted under mistake, it puts the plaintiff to his election either to have his action dismissed, or to have the contract executed with the parol variation.^ ' Clowes V. Eigginson, 1 V. & B. Ves. 364. See also Smith y- Wheat- 524. See tlie judgment in tliis case croft, 9 Oh.. D. 223. observed on by Lord St. Leonards, ^ Oarrard t. Orinling, 2 Sw. 244. Vend. 133, and by Stuart V.O. in * 2 Sob. & Lef. 1, 10—11. See Dear v. Verittj, 17 W. E. at p. 568. Jeffery v. Stephens, 6 Jur. N. S. 947; See, too, Butterworth v. Walker, 13 8 W. E. 427 ; Smith v. Wheatcroft, W. E. 168. 9 Ob. D. 223. 2 Legal v. Miller, 2 Ves. Sen. 299. * See, in addition to tbe cases cited See tbe statement of tbis case by infra, Browne v. Marquis of Sligo, Grant M.E. in Price y. Byer, 17 10 Ir. Cb. E. 1. OF MISTAKE. 339 § 774. Thus, in Higginson v. Clowes^ where the Sigginson conditions of sale were likely to have misled the de- ^" fendant, and the defendant contended for a different construction from that of the plaintiff, Grrant M.E. offered the plaintiff either to hare his bill dismissed, or to have the contract executed on the defendant's construction. The counsel for the defendant con- tended that it was not competent to the plaintiff to have his bill dismissed, but that the defendant, without filing a cross-bill, might have a specific performance of the contract. Grant M.R., however, held that that right existed where the defendant's construction was adopted by the Court, but that where, as in the case before him, the Court did not decide that the defen- dant's construction was right, but only that he had contracted under a mistake created by the plaintiff, the bill was merely dismissed. In a subsequent suit^ on the same contract, where the parties were inverted, Plumer V.C., holding that there had been a mistake on both sides, refused specific performance on the construction of the defendant in the first suit. § 775. In Ramshottom v. Gosden,^ ■where the written Rams. contract confined a reference of expenses to those of GosdeZ' conveyance, but the defendant proved by the parol evidence of the attorney that it was the intention of both parties that the plaintiff, who was the purchaser, should also pay the expenses of making out the defen- dant's title, Grrant M.R. put the plaintiff to his election, either to have the contract performed in the way contended for by the defendant, or to have his bill dismissed. And in a subsequent case, where the defendant proved a parol variation, the same Judge again left the plaintiff either to have a specific per- formance with this variation, or to have his bill dismissed.* § 776. In a case where parol evidence was LoH ^ 15 Ves. 516. tion, as the error appears to liave 2 1 V. & B. 524. been merely in the reduction of the , , TT o T^ , , ^ , contract into writing? 3 1 V. & B. 165. Query, why , g^^^-^^ ^_ (j^^,^;^ 14 y^^, gi9_ was not specific performance en- j^g to this case, see Bmr y- Verify, forced on the defendant's conten- 17 W. E. at p. 569. z2 340 OF THE DEFENCES TO THE ACTION. Gordon V. admitted on behalf of the defendants to show that a Me'rtford contract by several persons to enter into bonds in 1,5001. ought to have been for one joint bond in that amount by all; Plumer V.C. left it to the plaintiff to have his bill dismissed, or to take a decree for the joint bond, or to take an issue on which the witnesses could be examined.^ Clarke V. § 777. In Clur/ce V. Moorc,^ where a landlord '^'""'^' sought specific performance of a contract for a lease, and the defendant set up a parol contract to abate the rent, to which the plaintiff at the bar submitted, the lease was directed with the abatement and each party was left to bear his own costs : and in another case, where it appeared that, in addition to the written contract, there had been an understanding between the agent of the plaintiff and the defendant as to pay- ment for timber and certain expenses, the plaintiff consenting to adopt the terms as part of his contract, specific performance was granted.^ other S 778. Where there is a stipulation which one of instances ,■• " j , • ,• tit i ofvaria- the contractmg parties may reasonably have under- *'°'^- stood to be implied in the contract, and did so under- stand, — as, for instance, the insertion of a usual clause in a lease, — specific performance will not be enforced against such party except with such condition included.* And where a plaintiff sought relief on the ground of a covenant for renewal, which had for one hundred and fifty years been acted on in a manner different from its terms, — namely, by continually increasing the fine, and not the rent : the Court held that the covenant could not be carried into execution according to its original terms, but might be on the plaintiff's sub- mitting to a conscientious modification of it, to meet the circumstances of the case.^ In this instance ac- quiescence, and not mistake, was the ground of the variation. ^ Lord Oordo7iY, Marguia of Hert- Distinguish SnelUng v. Thomas, ford, 2 Mad. 106. L. E. 17 Eq. 303. 2 1 Jon. & L. 723. ■> Bicketts v. Bell, 1 De G. & Sm. ^ London and Birmingham Bail- 335. Consider Chappell v. Gregory, way Co. T. Winter, Or. & Ph. 57 ; 34 Beav. 250. cf . Barnard v. Cave, 26 Beav. 253 ; ^ Davis v. Hone, 2 Soh. & Lef . Donald v. Scott, 10 Ir. Ch. E. 496. 341. OF MISTAKE. 341 § 779. The parol variation may be alleged by the Variation, plaintiff for the purpose of offering the defendant his up^ ^^ election ; ^ or it may be set up by the defendant by way of defence. If, in the absence of its being thus alleged, it comes out on the evidence, the Court will inquire into it before disposing of the case.^ The Court will do the same where the variation is alleged by the defendant, and so far proved as to raise a suspicion of its existence, and yet not to satisfy the Court.'' § 780. From the great danger which would other- Evidence. wise arise, the Court will not allow a person to escape from a written contract on slight parol evidence of mistake on his own part. So in one case Lord Hather- ley (then V.C.) said that the oath of the defendant that he had inserted in his letter a term which he in fact omitted, and the oath of his agent that he had received instructions to the like effect, in letting the house, wotdd not have sufficed ; but the defendant having in his letter referred to the offer as having been previously made to another party, and that party swearing that in the offer as made to him the term omitted in the subsequent offer was contained, the Court held that sufficient evidence of mistake on the defendant's part had been given, and allowed the defence.* § 781. The common error or mistake of both parties Common as to the subject-matter of the contract is, on the prin- ^"^°^- ciples already stated, a clear ground for resisting specific performance : so where the plaintiff being entitled to estates during the life of A. entered into a contract with regard to the timber on the estates with the remainderman ; and it subsequently appeared that A. was at the time dead, though this circumstance was unknown to both parties ; Lord Eomilly M.E,., and afterwards the Lords Justices, refused specific perfoi"m- ance and dismissed the bill with costs. ° • EoUnson v. Page, 3 Euss. 114. ^ Van v. Oorpe, 3 My. & K. 269. 2 Parhen y. Whithy, T. & E. 366 ; * Wood v. Bcarth, 2 K. & J. 33. London and Birmingham Railioay ^ Cochrane v. Willis, 34 Beav. Co. T. Winter, Or. & Pi. 57 ; cf. 359; L. E. 1 Oh. 58. Of. per Turner Eelsham v. Langley, 1 Y. & 0. 0. 0. L.J. in Murrell v. Goodyear, 1 De 175. G. F. & J. at p. 449. See, too, 342 OF THE DEFENCES TO THE ACTION. Mistake of both parties a ground for rescis- sion. V. Wil- liams. Instances of grant and re- fusal of rescission. § 782. Further, where both parties to a contract are at the time of the contract in mistake or error as to the matters in respect of which they are contracting, this not only will furnish a ground for resisting specific performance, but also may enable the Court to rescind the contract.^ § 783. Thus, in Calverley v. Williams^ Calverley brought his bill against Williams for a conveyance of seyen acres of copyhold land, part of an estate sold by auction and purchased by the plaintiff as being compre- hended in the advertisement of the sale, and described as in the possession of Groombridge. The defendant resisted this claim, on the ground that he did not intend to include those seven acres, or know that they were in the possession of Groombridge. Lord Thurlow, in giving judgment, said, "No doubt, if one party thought he had purchased hona fide., and the other party thought he had not sold, there is a ground to set aside the con- tract, that neither party may be damaged ; because it is impossible to say one shall be forced to give that price for part only which he intended to give for the whole or that the other shall be obliged to sell the whole for what he intended to be the price of part only." § 784. Again, where both vendor and purchaser of an alleged estate in fee in remainder on an estate tail were ignorant that at the time the tenant in tail had suffered a recovery, so that in fact no estate in remainder existed, the Court rescinded the contract.^ Watson V. Marston, 4De G-. M. & G. 230, where, however, Turner L.J. said (at p. 238), " Specific perform- ance is not to be withheld merely upon a vague idea as to the true effect of the contract not having been known." 1 See Torrance Y. Bolton, L.E. 14 Eq. 124; 8 Oh. 118. In Jones v. Clifford, 3 Oh. D. at p. 793, HaU V.C. intimated the opinion that the Court would, even in the case of a completed contract, give relief against a common mistake in the same way as it would against fraud. Of. Leuty v. Eillas, 2 De G. & J. 110; and distinguish Bebenham v. Sawbridge, [1901] 2 Oh. 98, 109, where the relief of rescission on the ground of common mistake was asked for, but not granted. ^ 1 Yes. Jim. 210 ; per Lord Erskine in Btapylton v. 8coU, 13 Ves. 427. See, too, Davis v. Shep- herd, L. E. 1 Oh. 410; Price v. Ley, 4 Gifl. 235, affirmed 11 W. E. 475. ' Hitchcock V. Giddings, 4 Pri. 135. OF MISTAKE. 343 And where A. proposed certain terms of assurance to the agent in London of a Scotch insurance office, and by mistake wrote down other terms in his proposal, to which proposal the Scotch office assented, the Court at the instance of A. (refusing to reform the contract) rescinded it, and directed the repayment of the pre- miums paid.-' But where there was a common mistake as to the total acreage of some land, thirty-six acres of which the vendor contracted to sell, it was held that, the mistake being one which did not really touch the substance of the contract, the vendor was not entitled to rescission.^ § 785. Again, mistake of the plaintiff produced by Mistake the innocent misrepresentation of the defendant,^ or by°de-°^ by the defendant's not doina; his duty in respect of the fendant a ■'., 1 Tp-'T 1 ground for contract, may be ground tor rescission, in a case where rescission. the vendor described the garden of a house as inclosed by a rustic wall with a tradesman's side entrance : and knew but did not disclose that the wall was no part of the property sold, and that the tradesman's entrance was used only by sufferance, the Court rescinded the contract.* § 786. In a case brought before the House of Cooper y. Lords on appeal from Ireland, the appellant believing ' *' himself to be a stranger to a fishery agreed to take a lease of it : the respondents believing themselves to be entitled to the property agreed to grant the lease : it turned out that the appellant was entitled to the pro- perty and not the respondents, and the House declared that the contract was entered into by the parties to it under mistake and in ignorance of the actually existing rights and interests of the parties in the fishery, and that the contract was not binding in Equity upon the appellant and respondents, but ought to be set aside subject to certain terms which the special circumstances of the case and the principles of good conscience were held to impose.^ ^ Fowler Y. Scottish Equifalle Life ^ Adam v. NewUgging, 13 App. Insurance Society, 28 L. J. Ch. 225 ; Gas. 308; 34 Ch.D. 583. Of. Wilding 7 W. E. 5. V. Sanderson, [1897] 2 Ch. 534, 550. " North V. Percival, [1898] 2 Ch. * Brewer v. Brown, 28 Oh. D. 309. at pp. 131, 132. = Oooper v. PMhbs, 17 Ir. Oh. E. 344 OF THE DEFENCES TO THE ACTION. Mistake a § 787. But where neither party to the contract is reo°ffioa-°'^ in error as to the matters in respect of which they are tion. contracting, and there is an actually concluded con- tract, but there is an error common to both the parties in the reduction of the contract into writing, there the Court interferes for the purpose of reforming the con- tract, and not of rescinding it.^ For by so doing neither party will be damaged : whereas by enforcing it as it stood, one party would be necessarily injured ; and by rescinding it, both would be deprived of the benefit of the contract. Lord § 788. Accordingly in a case already stated, where in aii°^ the question was whether a certain seven acres were or «erfo|^ V. were not included in the contract. Lord Thurlow, after stating that if the parties to the contract had mistaken each other in this respect, it must be rescinded, said : " Upon the other hand, if both understood the whole was to be conveyed, it must be conveyed. But again, if neither understood so, — if the buyer did not imagine he was buying, any more than the seller imagined he was selling, this part, — then this pretence to have the whole conveyed is as contrary to good faith upon his side, as the refusal to sell would be in the other case."^ HenUe § 789. The jurisdiction of the Court in this Exchange respcct was clcarly asserted by Lord Hardwicke in Assurance ^}xq casc of HeuMe V. Royol Exchange Assurance Co,^ which was a bill seeking, after the loss, so to rectify a policy, on the ground of common mistake, as to turn the loss on the insurer, which but for such varia- tion must have been borne by the insured. '' No doubt," said his Lordship, "but this Court has juris- diction to relieve in respect of a plain mistake in contracts in writing, as well as against frauds in contracts; so that if reduced into writing contrary to intent of the parties, on proper proof that would be rectified : " but for want of such proper proof the bill was dismissed. 73 ; L. E. 2 H. L. 149 ; m/w. § 802. ^Murray y. Parker, 19 Beav. See also Bingham v. Bingham, 1 305. Yes. Sen. 126; Baffles v. Wichel- ^ Qalverley v. Williams, 1 Veg. haus, 2 H. & 0. 906 ; Earl Beau- Jun. 210. champ T. Winn, L. E. 6 H. L. 223. ^ 1 Ves. Sen. 317. OF MISTAKE. 345 § 790. In another case, before the same Judge, Bakers. the captain of an East India ship, by articles of agreement, bargained and sold all his china ware and merchandize, brought home in his last voyage, to the defendant : the articles of agreement were drawn up, from minutes made by the parties, by an attorney, who, misunderstanding the transaction, drew up the articles in an erroneous and absurd manner : the captain, who was the party aggrieved by the error, brought his bill for an accoimt of what was due on the contract, and insisted on its rectification : he was allowed to give parol evidence of the error and of the usage of trade to show the nature of the real trans- action and the consequent mistake in the articles.' § 791. It follows from the nature of the jurisdic- Rectifica- tion that there can be no rectification where there is ^!:°ZIT« not a prior actual contract by which to rectify the prior con- written document : so that, for instance, a policy *™°*' cannot be rectified^ by the slip, because the slip con- stituted no contract, and there was no contract till the policy was signed and the premium paid.^ § 792. It equally follows that the mistake of one Mistake of party to a contract can never be a ground for com- nota*^"^'^ pulsory rectification, so as to impose on the second ground for party the erroneous conception of the first.* The sor^'^recti- error of the plaintiff alone may, however, where (but, fication. it is conceived, only where) there has been fraud or ^g^^gg^ conduct equivalent to fraud on the part of the defen- annulment dant,^ be a ground for putting the defendant to elect ficat[on!^" between having the transaction annulled altogether or submitting to the rectification of the deed in accordance with the plaintiff's intention.^ ^ Baker v. Paine, 1 Ves. Sen. 456; of Romney, 30 Beav. 431. 6 Ves. 336, n. ^ Mmj v. Piatt, [1900] 1 Ch. at ^ See Morocco Land, &c. Trading ^' "1 " t, , P F 13 W E 310 Garrard v. Fran/eel, 30 Beav. 445 ; Harris v. Pepperell, L. E. 5 3 Mackenzie t. Coulson, L. E. 8 Eq. 1 ; Bloomer v. Spittle, L. E. 13 Eq. 368. Eq. 427; PagetY. Marshall, 28 Ch.D. * Sells V. Sells, 1 Dr. & Sm. 42; 255. In his judgment in Harris JRooke V. Lord Kensington, 2 K. & J. v. Pepperell, Lord Eomilly M.E, 753 ; Thompson v. Whitmore, 1 J. pointed out the distinction between & H. 268; JEarl of Bradford y. Earl tlie decisions in Oarrard v. Frankel 346 OF THE DEFENCES TO THE ACTION. Parol evidence admitted for recti- fication. But must be clear. Latent ambi- guity. Division of mis- takes. § 793. Parol evidence is admitted to show the common mistake of both parties in reducing the contract into writing, and as the ground for rectifying it. "I think it impossible," said Lord Thurlow, " to refuse, as incompetent, parol evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties." ^ § 794. But in order thus to procure the rectifica- tion of a contract, the proof must be clear, irrefragable, and the "strongest possible."^ As the point to be proved is that the concurrent intention of all the j)arties to the contract was different from that ex- pressed by the written contract, the Court will atten- tively regard the admission or denial of the defendant as one of those parties.^ It need scarcely be added that the Court will only act on parol evidence when satisfied that there is no existing Avriting which con- tains the original instructions or contract.* § 795. Where there is a writing by which an executed deed is to be rectified, and in that writing there is a term in respect of which there is a latent ambiguity, parol evidence may be admitted to explain it, and thus assist in the rectification of the deed.^ § 796. Mistakes are usually divided into mistakes of fact^ and of law. The former kind have always and Earl of Bradford v. Earl of Bomney, 30 Beav. 431. ' In Lady Sheliourne \. Lord Ln- cMquin, 1 Bro. 0. 0. 341. 2 HenhU v. Boyal Exchange As- surance Co., 1 Ves. Sen. 81Y; ^cr Lord Eldon in Marquis Townshend V. Stangroom, 6 Ves. 333 ; Vouillon Y. States, 25 L. J. Ch. 875; 27 L. T. 268; Fallon v. Bobins, 16 Ir. Ci. E. 422. Lord Thurlow's language in Henkle v. Boyal Exchange Assurance Co. was critioiKed by Lord Chelms- ford L.O. in Fowler v. Fowler, 4 De G. & J. at p. 264. 3 6 Ves. 334 ; Mortimer v. Shor- hall, 2 Dr. & War. 363, 374. In Pitcairn v. Oghourne, 2 Ves. Sen. 375, 379, the evidence was con- sidered sufficient to overcome the defendant's denial. See, too, Gar- rard T. Franhel, 30 Beav. 445 ; Harris v. Pepperell, L. B,. 5 Eq. 1 ; Bloomer v. Spittle, L. E. 13 Eq. 422. * Lachersteen v. Laclcersteen, 30 L. J. Ch. 5; 6 Jur. N. S. 1111. ^ Murray y. Parlcer,!^ Beav. 305. * It may be observed that mis- take of fact is not the less a ground for relief because the person who has made the mistake had the means of knowledge. Willmott v. Barber, 15 Ch. D. 97, 106; S. 0. 17 Ch. D. 772. OF MISTAKE. 347 been held to give occasion to the jurisdiction of Equity in mistake. § 797. As regards mistakes of law, the maxim Mistakes usually referred to was Ignorantia legis non excusat : °^'^^'^- and the older authorities seem to show that Courts of Equity would neither set aside contracts for mistake in law/ nor allow such mistake to be set up as ground for resisting sj^ecific performance of contracts in other respects free from objection.^ § 798. This view of the law was thus stated by The law Lord Chelmsford in addressing the House of Lords in f^*£oj.d 1858 :® — "Mistake is undoubtedly one of the grounds cheims- f or equitable interference and relief : but then it must ^°'^^' be mistake not in matters of law, but a mistake of facts. The construction of a contract is clearly matter of law ; and if a party acts upon a mistaken view of his rights under a contract, he is no more entitled to relief in Equity than he would be at Law."* § 799. With the authorities referred to in the two Misrepre- last preceding sections may be compared those others, ^f"*^'^*'"'' which show that a misrepresentation of law, at least if innocently made, does not bind and create any civil liability.^ § 800. Recent decisions, however, have lessened Court if not destroyed the importance of the distinction be- ^iig°°^ tween mistakes of fact and of law. In Stone v. God- against fref Turner L.J. said that he felt no doubt that the ^/'i*^f' Court had power to relievfe against mistakes in law as well as mistakes in fact. § 801. Acting on this view. Lord Hatherley (when Anciwr Vice Chancellor) remitted to his original rights against '""'^" Company A. a creditor of that company who had given ' Marshall v. Oollett, 1 T. & 0. ^ Midland Oreat Western Patilway Ex. 232, 238; Gockerelly. Cholmley, of Ireland v. Johnson, 6 H. L. 0. IE. & My. 418. 810,811. 2 Pullen V. Ready, 2 Atk. 587 ; 4 gee Powell v. Smith, L. E. 14 per Lord Alvanley M.E. in Oihbons -g g- T. Gaunt, 4 Ves. 849; Btochley v. , „ 7 7 77 t- 7 t r, ^ -r, c<^ 77 1 -57- x> -R OQ qn. 71^.7^ Bashdall v. Ford, L. E. 2 Eq. Btochley, 1 V. & B. 23, 30; Mild- „.„ „ j^. t j -n,i t in T-r J- J o AT cA-i 'oO; Seattle v. Lord Ebury, L. E. r^ Y. Eungerford 2 Vern. 243. ^^_ ^^^ ^^^ ^ ^ ^^^_ See also Bilhie y. Lumley, 2 East, 469; OroomeY. Lediard, 2 My. &K « 5 De G. M. & G. 76; Baniell v. 251 ; Price v. Byer, 17 Ves. 356. Sinclair, 6 App. Oas. 181, 190. 348 OF THE DEFENCES TO THE ACTION. up that right in consideration of the substituted secu- rity of Company B., which purchased the business of the first Company A., when that purchase was held void as ultra vires} Cooper y. § 802. The point came twice before the House of Lords in the years 1867 and 1873. In Cooper v. Phibhs^ where the appellant believing himself to be a stranger to his own land agreed to take a lease of it, and was relieved from his mistake, his belief was founded on an erroneous impression of the effect of Lord certain documents of title : and Lord Westbury said : onigm^ "It is Said Ignorontia juris haud excusat : but in that rantia maxim the wordj/ws is used in the sense of denoting ^excusat!' general law, the ordinary law of the country. But when the word/i^s is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is matter of fact: it may be the result also of matter of law: but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having pro- ceeded upon a common mistake." ^ Lord § 803. Again, in Earl Beauchamp v. Winn, Lord fordkf' Chelmsford in addressing the House said '* that the suriBeau- ignorauco imputable to the party was of a matter of "mmJ" ^^^ arising upon the doubtful construction of a grant. This is very different from the ignorance of a well- known rule of law. And there are many cases to be found in which Equity, upon a mere mistake of the law, without the admixture of other circumstances, has given relief to a party who has dealt with his property under the influence of such mistake." * Eesuitof § 804. It seems to follow that, at least as a de- rities.^*^° fence to specific performance, common error of law of both parties, or even the sole error of the defendant, when resulting in mistake important to both parties to the contract as to some of the matters dealt with by the contract, would be sufficient. But it is submitted ' Be Saxon Life Assurance Co., ' Cooper v. Phibbs, L. E. 2 H. L. Anclor cose, 2 J. & H. 408. at p. 170. 2 (1867), L. E. 2 H. L. 149 ; 17 « (1873), L. E. 6 H. L. at p. 234. Ir. Ch. E. 73 ; supra, § 786. Of. Heald v. Walls, 18 W. E. 398, OP MISTAKE. 349 that neither the common error of both parties nor the sole error of the defendant as to the operation and effect of the contract can be a ground for resisting specific performance.* § 805. Again, as in cases of hardship the turning SpeouU- of events in a way different from what the parties to facts. anticipated will not furnish a ground of defence ; so in regard to mistake, if persons choose to speculate upon facts, and the view on which they acted proves to be a mistaken one, that circumstance will furnish no de- fence on which the Court will act.^ § 806. "Where there is a mistake of both parties, Mistake but not about the very subject of the contract, it will thee^-°"* not be a ground for rectifying the contract. There- senoe of fore where both parties were under a mistake as to the tract""" duration of a leasehold interest, so that the price was considerably less than if the actual extent of the interest had been known, and the vendors filed a bill asking for a reassignment of the extra term which the pm'chasers took under the assignment, Knight Bruce V.C. held that the lease was the substance sold and not a term of the supposed duration, and that the vendors ought to have known what was the condition of the property they proposed to sell, and accordingly dismissed the bill.^ § 807. In like manner the Eoman jurists held The that mistake as to the substance of the thing avoided laX^'^ the contract : but if there be only a difference in some quality or accident, though the misapprehension may have been the actuating motive, yet the contract remains binding.^ § 808. The Court, on a clear principle, will not wterethe interfere for the rectification of a written contract purpoady where it was by the intention of the parties to it that difBers the writing did not comprise all the terms of the actual conTract! contract ; for what is done on purpose is evidently not done by mistake. Therefore where there was a contract for an annuity, and the parties to it designedly 1 See supra, § 763. Sm. 83, affirmed 2 Ph. 338. ^ See, at Common Law, Harris * Kennedy v. Panama, &c. Mail V. Loyd, 5 M. & "W. 432. Co., L. E. 2 Q. B. 680, and autho- 3 Okill V. WhittaJcer, 1 De G. & rities there cited. 350 OF THE DEFENCES TO THE ACTION. Subse- quent parol contract omitted a proviso for redemption, thinking it would render the transaction usurious, the Court refused to rectify the deed,^ The parties " desired the Court," said Lord Eldon,^ " not to do what they intended, for the insertion of that proviso was directly contrary to their intention, but they desired to be put in the same situation as if they had been better informed, and consequently had a contrary intention."^ § 809. Where the parol variation which the plain- tifE or defendant seeks to set up is a subsequent con- tract in parol between the parties to a written contract, the case in nowise comes within the doctrine of mis- take, and the parol variation is inadmissible under the Statute of Frauds, except in cases where the refusal to perform it might amount to fraud/ Instances. § 810. Therefore where A., by writing, agreed with B. to grant him a lease, to commence on the 21st of April, B. being merely the agent of C. ; and subse- quently A. and C. agreed by parol that the lease should commence from the 24th of June instead of the 21st of April, and be made to C. instead of to B., and C. and B. sought a specific performance of the written contract as varied by the subsequent parol one, a plea of the Statute of Frauds was necessarily allowed.® And where there was a contract in writing, and the defen- dant set up a subsequent parol contract, by which the parties mutually abandoned the terms of the written contract and then agreed upon new terms; Grant M.R. held that these new terms were merely meant to modify or add to the terms of the original contract; that therefore the parol contract could not be set up as a waiver of the first, and that the subsequent terms not having been in any way acted on, the second con- tract formed no defence to the first, the execution of which he accordingly directed.** Again, where the ' Lord Irnham v. Child, 1 Bro. C. 0. 92 ; Lord Portniore v. Morris, 2 Bro. 0. 0. 219; Eare v. Shear- wood, 3 Bro. C. 0. 168; S. 0. 1 Ves. Jun. 241. * In Marquis Townshend v. Stan- groom, 6 Ves. 332; Williams v. Jones, 36 W- B. 573. ^ See also Piicairn v. Oglourne, 2 Ves. Sen. 375 ; cf . Cripps y. Jee, 4 Bro. 0. 0. 472. * See per Grant M.E. in Price v. Dyer, 17 Ves. 364. ^ Jordan v. SawJdns, 3 Bro. 0. 0. 388; S. C. 1 Ves. Jun. 402. « Price Y. Dyer, 17 Ve's. 356. OF MISTAKE. 351 written contract was silent as to restrictive covenants, but there was some evidence of a subsequent contract to take tlie lease subject to a certain restrictive cove- nant as to trade, the Statute of Frauds was held to be a bar to the performance which the plaintiff sought of this subsequent parol contract.^ § 811. The question how far a plaintiff can enforce Speciflo specific performance of a contract with a parol varia- Loe, with tion, or in other words, with a rectification of a mis- ^[^^^of^" take, was on the authorities before the Judicature Act, mistake. 1873, not perfectly clear: but the weight of authority appeared to be in favour of the proposition that a plaintiff could not sue for the specific performance of a contract with a parol variation. This is now altered by the last-mentioned statute.^ Before proceeding to consider the cases on this point, we may briefly advert to principles. § 812. With regard to a mistake of the plaintiff Mistake of alone, it is at once obvious that to allow him to correct alone.' this mistake, and enforce the contract so corrected on the other party to it, would be a great injustice. § 813. With regard, however, to a mistake of both Mistake parties to a contract in the reduction of the contract parties. into writing, there can be no objection in j)oint of justice to the plaintiff asking to have that mistake corrected, and to have the real contract carried into execution. § 814. It may be said that a plaintiff seeking to Mistake in correct and enforce a contract which is within the to statute Statute of Frauds is suing in contravention of that Act. °* Frauds. But the objection seems untenable. For every action to correct by parol evidence a written contract, whether executed or executory, is in some sense a suing on the contract : yet the jiu'isdiction of Equity in cases of mistake in written contracts is clear. Mistake, like fraud,^ must be deemed an exception to the statute in Equity. 1 Sn'eUing y. Tliomas, L. E. 17 and. second editions of this work. Eq. 303. The Judioatm-e Act, 1873, has * See infra, § 818. A fuller dis- seemed to justify a briefer treat- Gussion of this question than that ment of it. following is to be found in the first ' See supra, § 567, 352 OF THE DEFENCES TO THE ACTION. Cases of entire ex- clusion of parol evi- dence for plaintiflf. Cases for admission of parol evidence for the plaintiff. § 815. There was, however, a series of cases which seemed to establish the proposition, that in the Court of Chancery a plaintiff could not be allowed to sue for the specific performance of a contract with a parol variation. The principal cases in this series were Rich V. Jackson, before Lord Eosslyn;^ Woollam v. Ilearn, before Sir W. Grant ; - Clinan v. Coolie, before Lord Redesdale;^ Squire v. Campbell, before Lord Cotten- ham ;^ Manser v. Back, before Wigram V.C. •,^ Attorney- General V. Sitwell,^ before Alderson B. ; and Davies v. Fitton^ before Lord St. Leonards.^ § 816. This current of authorities, however strong, can yet scarcely be considered uniform in favour of the position that the plaintiff could never avail himself of a parol variation. There are dicta of Lord Hard- wicke's in the cases of Walker v. Walker^ and Joynes v. Statham'^'^ which, notwithstanding the remarks upon them of Lord Redesdale" and of Grant M.R.,'^ i™ply5 it is submitted, a somewhat different view of the question from that already stated. In like manner, it is believed that arguments against the course of autho- rity above stated may be drawn from the cases of Pemher v. Mathers,^^ before Lord Thurlow; Marquis Townshend v. Btangroom^^ before Lord Eldon ; Clifford V. Turrell^^ before Knight Bruce V.C. ; and Martin v. Pycroft,^^ before the Lords Justices in Chancery." § 817. The great American jurists, Mr. Justice ' 4 Bro. C. 0. 514; 6 Yes. 334, n. 2 7 Ves. 211; 6E. E. 113; S. 0. 2 W. & T. Lead. Cases in Equity (7tli ed.) 513, and cases there col- lected. 3 1 Sck & Lef. 22, 38. M My. & Or. 480. 5 6 Ha. 447. « 1 T. & 0. Ex. 559. ' 2 Dr. & W. 225. ^ See also Higginson v. Clowes, 15 Ves. 516, 523; WiiicJiv. Winchester, 1 V. & B. 375, 378 ; Nurse v. Lord Seymour, 13 Beav. 254; London and Birmingham Railway Co. t. Winter, Or. & Ph. 57, 61 ; JEmmett v. Bew- hurst, 3 Mac. & G. 587; and the ohservations of Farwell J. in May V. P?art, [1900] 1 Ch. at p. 622. » 2Atk. 98; S. 0. 6 Ves. 335, n. " 3 Atk. 388. " In Clinan v. OooJce, 1 Sch. & Lef. 38. '^ In Woollam v. Ilearn, 7 Ves. at pp. 219, 220. " 1 Bro. 0. C. 52. " 6 Ves. 328. 15 1 Y. & 0. 0. 0. 138. i« 2 De G. M. & G. 785. " See also per Sir W. Grant in Clarke v. Grant, 14 Ves. 524 ; JSar- risonY. Gardner, 2 Mad. 198; BoUn- son V. Page, 3 Eiass. 114. OF MI.'iTAKE. 353 Story and Chancellor Kent, were likewise clear in their opinion that a Court of Equity ought, if neces- sary, at one and the same time, to reform and enforce a contract.^ § 818. This vexed question has, it is believed, been Efiectof finally solved by the Judicature Act, 1873, s. 24, sub- eaLrf '" s. 7. That statute requires the High Court in any cause Act, i873, to grant all such remedies whatsoever as any of the ^' " parties thereto may appear to be entitled to in respect of any and every legal and equitable claim properly brought forward by them respectively in such cause, so that so far as possible all matters in controversy between the said parties respectively may be com- pletely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided. Under this provision the High Court has entertained an action for the reformation of a contract, and for the specific performance of such reformed con- tract, in a case in which the Statute of Frauds did not create a bar.^ § 819. It may be added, that there are cases some- Cases of what resembling specific performance, where in the tfon and same siiit the plaintiff has had an instrument rectified, relief in and then obtained consequential relief : as where a ^^^'^ ^"^'" bond and deposit of deeds were given to secure an advance, and the bond by mistake appeared to be usurious ; the plaintiff proved the mistake, had the bond rectified, and was held entitled to the conse- quential relief to which an ordinary obligee and equitable mortgagee is entitled.^ In another case a client entered into a contract with his solicitor for the payment of a fixed sum of money in lieu of costs, and the contract contained mistakes as to the name and rights of the client, which, if construed strictly, would have excluded the solicitor from all rights under the contract. In consequence of these mistakes, the solicitor by his bill alleged that he had no remedy at ' 1 Story, Bq. Jur. § 161; -KeisseZ- L. T. Jour. 274. See, however, hracle v. Livingstone, 4 Johns. Oli. i^fatj y. Piatt, [1900] 1 Ct. at pp. Eep. 148. g^^ g22. 2 Olletj V. Fisher, 34 Ch. D. 367 ; foRowed by Eay J. in Slirewshury ' HodgJcinson v. Wyatt, 9 Beav. and TaJhot Cab, &c. Co. v. SJkiw, 89 566. F. A A 354 OF THE DEFENCES TO THE ACTION. Law, and accordiBgly prayed that the contract might be rectified, and an order made for payment of the sum of money under the contract, as if at the time of its execution it had expressed the intention of the parties : the Court made a decree directing the pay- ment of the money .^ Misde- § 820. It may here be added that a misdescription in"on°'^ in the contract may be attributable to (i.) the plaintiff tract. alone, or (ii.) the defendant alone, or (iii.) both parties ; and in either of the former cases it may be either fraudulent or innocent. If it be fraudulent, the party guilty of the fraud of course cannot avail him- self of it in any way : if it be innocent, then (i.) if it be attributable to the plaintiff alone and induce mis- take, it falls under the head of mistake induced by the plaintiff;^ (ii.) if it be attributable to the defendant alone, it comes under the head of mistake purely due to the defendant;^ and lastly (iii.) if it be attributable to both parties, it falls under the head of common error or mistake.* 1' Stedman v. Colletf, 17 Beav. 608. ' Supra, §§ 758 et seq. " Supra, §§ 756, 812. « Supra, §§ 781, 813. 355 CHAPTER XVI. OF THE INCAPACITY OF THE COURT TO PERFORM PART OF THE CONTRACT. § 821, The Court will not, as a general rule, compel Subject specific performance of a contract, unless it can execute °^apter the whole contract; or, as Lord Romilly M.R. expressed it, " This Court cannot specifically perform the contract piecemeal, but it must be performed in its entirety if performed at all."^ It often therefore becomes import- ant to inquire whether a contract is entire or divisible, or, in other words, what is the whole contract which must be executed ; and it is proposed in the present chapter, first, to inquire what contracts are divisible ; secondly, to illustrate the general doctrine of the Court above stated ; and, thirdly, to consider the exceptions or apparent exceptions to the rule. § 823. It is obvious that the decision of the ques- Contract tion whether a contract is entire or divisible, must divisible depend on the particular nature of each contract, and the terms in which it is concluded : but some general rules may be gathered from the cases. § 823. A contract for the sale of property in one Property lot will generally be considered indivisible. Thus, in ^^ °^^ ^°*- a case where two undivided seventh shares of land were sold in one lot, the Court refused to enforce sj)ecific performance whei'e a good title could be made to one seventh only :^ and the purchaser of the entirety will, '■■ Merchants' Trading Co. y. Ban- a j^offey v. Shafcross, 2 Bro. C. 0. ner, L. E. 12 Eq. at p. 23 ; of. per ^^g^ ^ . g^ ^_ ^_ „_ ^^_^^^ ^_ gj^^^^_ Turner L.J. in Kernot t. Potter, 3 . ,, ,, „„„ Tvn-cijTj. A-n cross, 4 Madd. 227. De Gr. P. & J. at p. 4o9. ' aa2 356 OF THE DEFENCES TO THE ACTION. of course, not be compelled to take six undivided seventh parts of the estate.^ And so in a case where two persons were owners of an estate in undivided moieties, and the plaintiff sought to enforce an alleged contract by them to lease the coals under it, but could not prove any such contract against one of the owners, one ground on which the bill was dismissed against the other owner also was that he had never contracted to lease one share alone. If he had held himself out and contracted as the owner of the whole, the case would have been different.^ But, in the absence of misre- presentation or misconduct, the general rule is that, where a person is jointly interested in an estate with another person, and purports to deal with the entirety, specific performance will not be granted against him as to his share.^ Ship and § 824. But where properties are of two descrip- ^'^ ■ tions, — as, for example, a ship and the freight, — the fact that they are both included in one instrument, and dealt with for one entire sum, does not seem conclu- sively to render the contract indivisible.* Distiuct S 825. After some vacillation in the older cases, ^ it lots • has been decided at Common Law, that where property is sold in distinct lots, there is a separate contract for each lot,** each buyer having a com])lete right of action after he is declared the purchaser of each lot.'' And in Equity the same is prima facie the case, so that, in the absence of special circumstances, a vendor is entitled to compel the purchaser of two lots to complete his purchase of the one, though he may fail in making out a title to the other.® But where from the nature of the > 1 Dalhy v. Pullen, 3 Sim. 29. 2 My. & K. 724. Chambers v. Grif- » Price V. Griffith, 1 De G. M. & ■fi*^''' ^ ^"P- ^^"^ ^^«™« ^ ^^ °^ei- G. 80, 85. See the observations of ParweU J. upon this case in Hexter ' "^""^^ ^- ^^'°"' ^ S*^*- *26 ; V. Pearce, [1900] 1 Oh. at p. 345. ^°°^' ^- ^"'"^ Pormcr, 4 B. & Ad. riv;Q-ni '^'^' -P^'' Coleridge J. m Beaton y. Lumley y. Ravenscroft, [l69o] 1 ^^^^^_ 4 A. & E. 536. ■^' ■ ' Emmereon v. Heelis, 2 Taunt. ^ Mestaer Y.Gillespie, \\'V&s.Q2\, 3g 45^ ^^^' ^ Lewin v. Guest, 1 Euss. 325. ^ See the oases reviewed by Lord See also Budcmaster v. Harrop, 7 Brougham in Caiamnjnr v. Strode, Yes. 341 ; S. 0. 13 Yes. 466. INCAPACITY OF THE COURT TO PEEFOEM PAET. 357 contract, or the property that is the subject of it, or upon matters known to both parties, one of them can prove that the one transaction was dependent on the other, the two form one contract, although there may be no express statement to that effect.^ And the parties by their subsequent dealing may convert two or more distinct contracts into an entire one, as by entering into one contract for the sale of the several subject-matters at one aggregate price.^ Thus, where A. purchased by auction three lots of 100 shares each, and after the sale received the shares, paid the price, and received a bill of parcels describing the transaction as a sale of 300 shares : it was held, that as each lot was knocked down there was a distinct contract for the sale of 100 shares, but that the subsequent dealings showed that the parties treated the transaction as one entire sale of 300 shares.^ § 826. The mere fact of different prices being fixed Different for different parts of the subject-matter of the contract, P"''^^- will not necessarily make it divisible : so where a person went into a shop and bouglit various goods at distinct prices for each, the contract was still held to be single.* And where one price was fixed for the land, and another (a valuation price) ^ for the timber, and the vendor could not show a title to all the timber by reason of the copyhold tenure of parts of the estate, which were not distinguishable from the freehold ; the Court held that that was only one contract, that consequently the vendor was only bound to make out the title according to the contract, and that the title to the land was the title to the timber ; — and, as the conditions of sale provided for the copyhold tenure as to the lands, the contract was enforced as a whole. "^ § 827. In a case in which, by the same contract, A. Gross contracted to sell an estate to B., and B. contracted to of^^ie!*^ ' Casamajor v. Strode, 2 My. & K. ^ Franhlyn v. Lamond, 4 0. B. 722 ; Poole v. Shergold, 2 Bro. C. 0. 637. 118 ; S. C. 1 Cox, 273; and at Com- * BaUey v. Parlcer, 2 B. & C. 37. monLaw, QibsoiiY. Spurrier, V&ake ^ Of. Richardson v. Smith, L. E. Add. C. 49. o Ch. 648, and supra, § 366. * Dykes v. Blake, 4 Bing. N. C. ^ Crosse v. Laiurence, 9 Ha. 462 ; 463. Crosse v. Kee^ie, 9 Ha. 469. 358 OF THE DEFENCES TO THE ACTION, sell another estate to A., the contracts in respect of the two estates were held to be independent of one another ;^ whilst in a case of cross contracts for the sale of goods, the Court of Exchequer held the contracts dependent.^ stipuia- § 828. Where the contract itself contains a pro- piecemeai vision for its pieccmeal execution, the contract is execution, treated as divisible. So in a building contract, where the landowner agreed to grant separate leases of separate plots as and when the buildings on each plot reached a certain stage, it was held that the contract might be performed in separate parts, and that it was no answer to the builder or his assign who sued for its performance as regards one plot to show that it was not performed by the builder as regards other plots.^ Contem- § 829. In like manner, where there are two con- contractr temporaneous contracts which the parties intended to be separated, the Court will treat them as separate, and will not allow an objection to the one contract to bar the performance of the otlier.* Court -will § 830. It is, as we have already seen, a principle form p^art. o^ the Court, that it will not compel specific perform- ance of executory contracts unless it can at the time execute the whole contract on both sides. On this principle, where there was a contract between two neighbouring landholders to change the course of a stream, and one of the terms of the contract was that, if any damage should accrue to the lands of the defendant from a dam which was agreed to be erected, the plaintiff would give an equivalent in land to the defendant, the quantity of land to be ascertained by arbitrators ; this being a thing which the Court could not do in prcesenii, and the Court holding that the parties entering into a covenant to do it would not be a specific performance of the contract, the bill was dismissed, as the whole contract could not be carried into effect.® And where the owner of a patented invention entered into a contract with certain persons, ' Croome v. Lediard, 2 My. & K. Cli. 96. 251. I * Odessa Tramways Co. Y.Mendel, '' Atkinson v. Smith, 14 M. & W. 8 Ch. D. 235. 695. *' Oervais T. Edwards, 2 Dr. & ' Wilkinson v. Clements, L. E. 8 War. 80. INCAPACITY OF THE COURT TO PERFORM PART. 359 who with himself were to form a company, to the pro- motion of which he was to give his services for two years, and he was to do his best to improve the inven- tion for the benefit of the company, and on the refusal of these persons to go forward with the company, the patentee filed a bill for the specific performance of the contract : the Com't held, on demurrer, that as it would have been impossible to enforce against the plaintiff the stipulations on his part, he could not sue for per- formance ; and further, that the Court could not carry the contract into effect by directing the parties to execute a deed, for the contract was to do certain acts, and not to execute covenants to do them.* § 831. So, again, where a contract was entered Merchants' into by a shipbuilder to alter a ship, and it was agreed f'™v"^ that in default of performance by him the owners -»««««''• might enter and make the alterations : default was made by the shipbuilder, whereupon the owners filed a bill to enforce their right to enter and make the alterations : but on demurrer the bill was dismissed.^ § 833. So wherever that which the plaintiff is to Considera- tion a act. give as the consideration moving from him is some- 1^^^^^ thing to be done at a future time, and which tlie Coiu-t cannot enforce, specific performance of the con- tract will be refused.^ § 833. The principle that the Court will not par- other tially enforce contracts is illustrated by many other ^Ho^l^oi cases. Thus, where there was a partnership contract theprin- for an absolute term of years, leaving undefined the °^^ ^' amount of capital and the manner in which it was to be provided, this being a contract which in its entirety the Court could not enforce, the Court refused to enforce it in part, by refusing the representatives of a deceased partner a decree for the dissolution of the partnership and the sale of the partnership property.'' In another case the Court refused to separate the parts of an award which were capable of specific perform- 1 Stacker Y. Wedderhurn,Z'K,&S, ^ Per Wigram V.C. in Warwg v. 393. Manchester, Sheffield, and Lincoln- 2 Merchants' Trading Co. y.Ban- shire Railway Co., 7 Ha. 492. ner, L. E. 12 Eq. 18. * Doions v. Collins, 6 Ha, 418. 360 OF THE DEFENCES TO THE ACTION. ance from those which were not.^ And again, where the contract was that the landlord o£ a residential flat should employ a porter, who should do certain specified work for the benefit of the tenant, that was held to be one indivisible contract, and the Court declined to interfere by injunction to compel performance of part of it.^ ogden v. § 834. It is, as will havo been already gathered, Fosswh. immaterial whether the things which the Court cannot specifically enforce are to be done by the plaintiff or by the defendant. So where the defendant agreed to grant a lease of a coal mine to the plaintiff, and the plaintiff agreed to employ thfe defendant as manager, specific performance of the part relative to the lease was refused.'' "Wiere § 835. Where the contract stipulates for future of deedn^t acts, but is silcnt as to any deed to be executed to ordered, secure their performance, the Court, as we have seen, will not consider the execution of such a deed any performance of the stipulation. Other cases have arisen, where the contract contemplates some deed or obligation. Where there was a contract to execute works of such a nature that the Court could not super- intend their performance, and in the contract was a stipulation that the contractors should give a bond to secure the performance of the contract: the Court, refusing to decree performance of the works, refused also to decree the execution of the bond, as that would have been a piecemeal performance of the con- tract, and the stipulations as to the works were the substance of the contract, and that as to the bond only incident to them.* Where § 836. But whero the contract is to do a thing, of deed°" and to exocuto a deed for that purpose, and this deed ordered, covors, SO to Say, the whole of the contract, or the whole of so much of the contract as is incapable of 1 Nickeh t. EancocJe, 7 De Q. M. ' Ogden t. Fossick, 4 De G. F. & & Gr. 300. See also Vansittart v. j. 426. Vansittart, 4 K. & J. 62, affirmed 2 , „ , ^ , „ ., T) r (%• T 94Q bouth Wales Bailway Co. v. 2 Ryan v. Mutual Tontine, &c. Wythes, 1 K. & J. 186 ; S. 0. 5 De Association, [1893] 1 Oh. 116. G. M. & G. 880. INCAPACITY OF THE COURT TO PERFORM PART. 361 immediate performance, the Com't will, it seems, en- force the contract by the execution of the deed, though the acts to be done be future and to be done from time to time.^ The real contract here which the Court enforces is a contract to execute the deed. § 837. In Wilson v. The West Hartlepool Harbour wuson and^ Railway Co.,^ the company agreed to sell to the ^^Zulooi plaintiff a plot of land near their line, and the contract Barbour contained terms as to the company laying down a "^^y c^' ' branch railway, and as to the plaintiff using prefe- rentially the defendants' line of railway. Lord Ro- milly M.R. granted specific performance, and his decree was affirmed by the judgment of Turner L.J., who held that the parties must have intended that the user of the railway which Avas necessarily prospective should be secured by covenant. Knight Bruce L.J. dissented. The view of Turner L.J. appears conso- nant to the ordinary course of business and in further- ance of justice. § 838. The cases on marriage contracts strongly The prm- illustrate the principle that the entire contract must '^ipi^ap- 1 • 1 • on ITT- 1 1 • 1 plied to be carried into enect. With regard to these, it has marriage been urged that as the Court interferes in behalf of <=°°'''^''*»- those who are purchasers, or considered as such by the Court, but declines to aid volunteers, so when the Court specifically executes a settlement, its interference should be confined to limitations in favour of pur- chasers, and not extended to volunteers. The Court however has applied the principle, that the whole or no part of the contract shall be executed, to marriage contracts as well as to other contracts. " There is no instance," said Lord Hardwicke,^ " of decreeing a partial performance of articles, — the Court must decree all or none ; and where some parts have appeared very unreasonable, the Courts have said we will not do that, and therefore, as we must decree all or none, the bill has been dismissed." In a case where a husband sued the heir of his wife, who was the settlor, on a covenant to settle lands, the specific performance was not re- ^ aranvilh y. Belts, 18 L. J. Oh. ' ^^ ^^^^^ 18? ; 2 De G. J. & S. 475. ^^' 3 In Goring y. Nash, 3 Atk. 190. 362 OF THE DEFENCES TO THE ACTION. Excep- tions. i. Separate execution contem- plated. ii. Where the con- tract is executed. stricted to his estate, but carried to a limitation to a niece of the wife, who was of course a collateral.^ § 839. The cases of exception, or rather of appa- rent exception, to the principle in question may now be considered. § 840. (i.) It is hardly needful to repeat that the principle will not apply to contracts which, though they may be entire and single in themselves, contem- plate a separate and piecemeal performance of sepa- rate parts. There, in the absence of other objection, the Court will carry into effect the intention of the parties.^ § 841, (ii.) The principle in question is strictly applicable to executory contracts.^ It does not apply in terms to executed contracts. In Righy v. Great Western Railway Co} the company had demised the Swindon refreshment rooms to the plaintiffs for 99 years : the lease contained various covenants, one of which the plaintiffs sought. to enforce by injunction : an objection was made that the lease contained other covenants which the Court could not enforce : and Wigram V.C. made these observations:® ''I cannot go the length of the defendants' proposition that the plaintiffs are not to be protected by injunction, only because there are other covenants to be per- formed by them which may bo possibly broken here- after. It would be more cori'ect to say that where the mutual rights of the parties rest in covenant, each party is prima facie entitled to enforce his right in Equity or at Law, according to the nature of the covenant which may be broken. I cannot doubt but that this Court would, at the suit of a landlord, re- strain a tenant for years, under a husbandry lease, from ploughing up ancient pasture, where he had bound himself by covenant not to do so ; and it would be no answer to such a bill for the tenant to say, that the landlord was under covenant to find him rough 1 Davenport v. BisJiopp, 2 Y. & 0. 0. C. 451 ; S. 0. 1 Ph. 698. ^ Wilkinson v. Clements, L. E. 8 Oh. 96. See, too, Odessa Tramways Co. V. Mendel, 8 Ch. D. at p. 244. 3 See supra, §§ 38, 39. * 15 L. J. Ch. 266 ; S. 0. on ap- peal, 2 Ph. 44. 5 15 L. J. Ch. at p. 271. INCAPACITY OF THE COURT TO PERFORM PART. 363 timber fox- repairs, wliich covenant might possibly be broken by tlie landlord before the expiration of the lease. That is a very different case from that of Gcrvais v. Edwards} On the other hand, I am not prepared to go the length of the plaintifPs' argument. It woidd not be difficidt to suppose a case in which great injustice might be clone by compelling a party specifically to perform a particular covenant." § 842. A similar view was enunciated and acted woher- upon by Lord Selborne in the case of Wolverhampton ^"'Xa- cV Walsall Railway Co. v. London Sf North Western ^oay Go. Raihvay Co.!,' where the plaintiffs sought an injunction ]^. j^^ on the ground of the stipulations contained in a con- -H«i^«'«y tract between the companies sanctioned by Act of Parliament. It was argued that the contract con- tained terms, such as those providing for the proper development of local traffic, which the Court could not perform : but the argument was repelled by the Lord Chancellor, on the ground of the distinction between injunction as a right flowing from an executed con- tract and the specific performance of executory con- tracts. § 843. A familiar illustration of this difference DiflEerenoe between executory and executed conti'acts occurs in exeratory the case of partnership articles. The Court will not, and exe- m !• f< L L i. J. • ± cuted con- generally speaking, enforce a contract to enter into a tracts u- partnership whilst it remains executory :^ but never- iu»trated theless, when the partnership has been constituted, the ^eStap^ ' Court will by injunction enforce the performance of ^i^ticies. particular terms, though it may be incompetent to enforce all the terms : * this is the common course of j)ractice in the Court. § 844. Another familiar illustration arises on And from leases. The Court will restrain the breach of a cove- ■^'^'*^'^'*- nant in a lease, though it may contain other covenants which the Court could not possibly perform. § 845. (iii.) The principle in question is not to iii. ReUef be extended to all cases of legal or even equitable tmctTnot relief on contracts, though the contracts may be exe- ty way of 1 2 Dr & War 80 ^ ^"'^ "^- ■^"2/"'«'**' L. B. 7 Bq. 112. See /»/ra, § 1540. ' L. R- 16 Eq. 433. 4 Kemhle v. Kean, 6 Sim. 333. 364 OF THE DEFENCES TO THE ACTION. perform- ance. Instances. Lytf-on V. The Great Northern Railway Co. iv. Con- tract may be com- pletely per- formed, though there are future acts. cutoiy. The fact that future acts may have to be done under a contract is no bar to relief grounded on a right perfect in itself, and resulting from past trans- actions also under the contract. ' § 846. Thus, where in a contract for the execu- tion of railway works the contractors, previously to their completion, filed a bill against the railway com- pany, alleging fraud in the engineer in withholding certificates of work done, and asking amongst other things for an account of work done : it was held on demurrer, that though the works were not complete, and though the Court might not be able specifically to perform such a contract, the plaintiffs had a right, perfect in itself, of which they had been deprived by the alleged acts of the defendants, and that they were therefore entitled to some relief in Equity.* And so, it seems that if by a partnership contract it were stipulated that accounts should be made up half- yearly, and that one partner should have a salary proportionate to the profits to be so ascertained, he might from time to time institute actions to have the accounts so taken according to the contract, though its other terms might not be the subject of an action for specific performance.^ § 847. To this principle we may probably refer the case of Lytton v. The Great Northern Railway Co.^ where, there being a contract by the company to make and maintain a siding so long as it should be of con- venience, the clause as to maintaining it was held no objection to a bill for the specific performance of the contract to make it, the question of repairs being a matter for inquiry when a breach of that part of the contract should occur. § 848, (iv.) In the next place, it must be observed that where the contract can be completely performed at the time, though there may be future acts depen- dent on it, the Court will be able to grant specific performance: as, e.g., a contract for the immediate sale of timber to be cut down at a future time, or at ' Waring v. Manchester, Sheffield, and Lincolnshire Railway Co., 7 Ha. 482. 2 Per Wigram V.C. in tlie last- cited case, 7 Ha. at p. 496. 3 2 K. & J. 394. INCAPACITY OF THE COURT TO PERFORM PART. 365 intervals, and the purchase-money for it to be paid by instalments.^ The cases already stated, where the Com't will direct the execution of a covenant to do future acts, illustrate the same principle.^ § 849. (v.) It seems very questionable whether ^- wi^ere the principle that the Court will not perform part of a not bT" contract if it cannot perform all, ever applied to cases performed 1 ,1 • -I •!• p . ^'^ ■ through where the impossibility or carrying a part into execu- defen- tion was due to the default of the defendant who set flf^^f. up this defence. To permit it to prevail would be counter to the maxim that no man shall take advantage of his own wrong. In the case of the defendant only possessing a part of the interest which he has stipulated to sell, the defect as to the other part is, as we have seen, no bar to specific performance at the suit of the purchaser.^ In one case there Avas a contract between three railway companies having reference to a pur- chase and an amalgamation : for the purchase no further parliamentary powers were needed, but for the amalgamation they were, and as regards one of the companies, they could not be obtained because a majority of its shareholders were adverse to the scheme : in a suit relating to the purchase the last-mentioned company set up as a defence the imjjossibility of carrying into effect the contract as to the amalgama- tion; but Lord Cottenham overruled the demurrer, and doubted whether the defendant company could say to the plaintifPs, that they should not have the benefit of such part of the contract as the defendants could perform, because they could not without an Act of Parliament perform the whole, and they declined applying to Parliament to give them the necessary powers.* § 850. But whatever difficulties may have pre- Lord viously existed on this point, seem to have been CaW removed by Lord Cairns' Act (21 & 22 Vict. c. 27),^ ' ' 1 Per Lord St. Leonards in Oer- * G^'eat Western Railway Co. \. vais V. Edwards, 2 Dr. & War. at Birmingham and Oxford Junction p. 83. Railway Co., 2 Ph. 597, 605. See 2 See supra, §§ 835, 836. also Norris v. Jackson, 1 J. & H. ' Supra, § 473 ; and see infra, 319, and particularly 328. § 1257 et seq. ° This statute has been repealed 366 OF THE DEFENCES TO THE ACTION. Jaekson. and it may, it is conceived, be laid down, that wherever the thing which the Court cannot enforce is a condition inserted for the plaintiff's benefit in respect of which the defendant is in default, and where the Court would, before the passing of the Act, have had jurisdiction to enforce the contract on the plaintiff's waiver of the condition for his benefit, there the Court can now grant specific performance of the contract so far as it is enforceable specifically, and direct the defendant to pay damages (whether substantial or nominal)^ for his non-performance of the condition which the Court Soames cannot specifically enforce. Thus, in Somnes v. Edge^ V. Edge, ^j^^ plaintiff had agreed to grant a lease to the defen- dant so soon as he should have built a new house on the land: and the defendant agreed to accept the lease when required and to build the new house : the plaintiff filed his bill praying specific performance of the contract to build and take the lease, also for damages, either in addition to or substitution for such relief : on demurrer the defendant urged that the Court could not execute the contract to build, that the lease was dependent on the house being built, that the jolaintiff had not waived the condition, and conse- quently that Lord Cairns' Act did not apply : this argument was repelled by Lord Hatherley (then a Vice Chancellor), who overruled the demurrer and held, that on the plaintiff's waiver of the condition^ he should have had jurisdiction before the Act, and that therefore since the Act he could give relief as to part by way of specific performance, and as to the rest by way of damages. Norrisv. § 851. The limits of this principle are well illus- trated by a case of Norris v. Jackson,^ which shortly followed the case just referred to. In that case Cook, through whom the defendant claimed, in 1850 agreed with the plaintiff to grant him a lease of a certain (by the Statute Law Eevision Act, ^ As to waiTer by one party to 1883), but without affecting tlie a contract of stipulations inserted jurisdiction conferred by it. Sayers ^^^^j ^^^ j^^ ^^^^g^ ^^^ .^^j. V. Gollyer, 28 Oh. D. 103, 107. I 8ayers v. Gollyer, 28 Oh. D. ^ ^®' 103. * IJ. & H. 319. See, too, 3 Gifl. a Johns. 669. 396. INCAPACITY OF THE COURT TO PEEFOEM PART. 367 house and farm, and on or before the 11th October, 1852, to put the house into sufficient repair and to erect suitable coach-houses, &c. as Norris and Cook should jointly agree upon, to the intent that the house and premises should be made fit for the occupation of Norris and his family : and Norris agreed that upon due per- formance by Cook of the foregoing stipulations he would accept the lease. These repairs were never done : but there was no allegation in the bill that Cook had evaded giving his consent to any arrangements : and the plaintifp did not waive but insisted on bis right to have such rej)airs done, as the Court should think proper to fit tbe house for the occupation of himself and his family. The Court held that this was beyond its powers : that there was no contract which could be performed with respect to repairs, nor any contract binding the plaintiff to take a lease till the repairs had been done. The bill was consequently dismissed on demurrer. § 852. (vi.) It was formerly laid down that where vi. Where the positive part of an executory contract could not be tract has performed by the Court, it would not enforce the nega- negative tive by injunction: so that, for example, where an t^eatipu- actor had agreed to act at a certain theatre, that being lations.. a contract which the Court could not enforce, it refused to restrain him by injunction from acting elsewhere :^ and where there was a contract for hiring and exclusive service during seven years, and for partnership at the end of that time on such terms as should be mutually agreed on ; the contract being one which the Court could not perform as a whole, it refused to enforce by injunction the covenant for exclusive service.^ Again, where the defendants had agreed to furnish the plain- tiffs with the drawings for maps which the plaintiffs were exclusively to sell ; the Court, being unable to compel the defendants to furnish these drawings, refused an injunction to restrain the defendants from themselves selling the maps.^ § 853. This question was very much discussed in inmieyx. Wagner. ^ Kemhle v. Kean, 6 Sim. 333. ^ Baldwin v. Society for Biff using ' Kimberley y, Jennings, 6 Sim. Useful Knowledge, 9 Sim. 393 ; 340. Clarke v. Price, 2 J. Wils. 157. 368 OF THE DEFENCES TO THE ACTION. the case of Lumley v. Wagner^ where, there being an executory contract in part positive and in part negative, and the positive part being such as the Court vras unable to enforce specifically, it yet interfered in respect of the negative part by means of injunction. In that case, the defendant entered into a contract with the plaintiff to sing at his theatre, and not to sing at any other ; and Lord St. Leonards granted an injunc- tion restraining the defendant from singing at any other theatre than the plaintiff's, though the specific performance of the positive part would have been certainly beyond the Court's power. The principle was acted on in some earlier cases,^ and has been applied in several later ones.'^ ^eyative § 854. It has been thought to follow from the tionim- language of some parts of the judgment in Lumley v. plied. Wagner^ that the principle of that case is not confined to cases where the negative stipulation is express, but applies also to others where the negation is implied. Accordingly, in one case where an actor had entered into a contract to perform on certain nights at Sadler's Wells Theatre, but without any stipulation that he would not perform elsewhere. Lord Hatherley (then Wood V.C.) restained him from acting at any other place than the plaintiff's theatre on the nights on which he had agreed to act there.^ In Fechter v. Montgomery^ Lord Romilly M.R., though refusing an injunction on other grounds, does not seem to have doubted the juris- 1 1 De G. M. & G. 604. See, too, Ch. D. 835 ; Orimston v. Ciming- GaU V. Tourle, L. E. 4 Ch. 654 ham, [1894] 1 Q. B. 125 ; William (where the Court considered that Eolinson & Co. v. Ileuer, [1898] the covenant in question, though in 2 Ch. 451. terms positive, was in substance ^ 1 De G M. & G. 604 Cf negative). Manchester Ship Canal Co. v. Man- ^ Dietrichsen v. Cahhurn, 2 Ph. ^^^^^^^^ Eacecourse Co., [1901] 2 Ch. 52 ; Great Northern Railway Co. v. + »■■ Manchester, Sheffield, and Lincoln- '^' „ .„ „ -, -to , . „ ., ri K T\^ n s a^ Webster v. Billon, 3 Jur. N. S. shire Jlaihcay Co., 5 De G. & Sm. , ,nn n 1 TT-n /"( 77 1 Tl 40Z; O VV . li. OO/. 138. See also Hills v. CroU, 1 De . ' G. M. & G. 627, n. ; S. 0. 2 Ph. 60 " 33 Beav. 22. See, too, Leavi/t (explained in Cait v. Tourle, L. E. v. Williams (Jessel M.E.), 24 Sol. 4 Ch. 654); Daggett v. Ryman, 16 Journ. 706; and distinguish G^?'im- W. E. 302. ston V. Cuningham, [1894] 1 Q. B. ^ E.g., Donnell v. Bennett, 22 at pp. 130, 131. INCAPACITY OP THE COURT TO PERFOEM PART. 369 diction in a like case : and in Montague v. Flocton^ Malins V.C. granted an injunction on a similar contract by an actor after a full discussion and consideration of the authorities. This case, however, appears to have been decided under a misapprehension of Lord St. Leonards' judgment in Lumley v. Wagner^ and has been disapproved of in the Court of Appeal.** § 855. Another class of cases in vs^hich the Courts Negative have implied a negative are suits on charter-parties. 0™^^^-™ De Mattos v. Gibson^ vras the first case where thisques- party- tion arose. There the defendant Curry, being about to purchase a ship contracted by charter-party with the plaintiff to carry for him a cargo of coals from New- castle to Suez. Curry then bought the ship and mort- gaged it to Gribson with notice of the charter-party. The bill was filed to restrain Gibson from interfering with the voyage contracted for : Curry was afterwards added as a defendant and the plaintiff moved for an injunction before Lord Hatherley (then Wood V.C), who refused the motion on the ground that the case was not within the principle of Lumley v. Wagner,'^ and that the whole matter sounded in damages. The Lords Justices on appeal granted an injunction, Knight Bruce L.J. holding it to be the duty and within the power of the Court to prevent the commis- sion or continuance of the breach of such a contract, when, its subject being valuable, as for instance a trading ship or some costly machine, the original owner and possessor, or a person claiming under him with notice, having the physical control of the chattel, is diverting it from the agreed object, that object being of importance to the others. Turner L.J. put his judgment upon the fitness of retaining matters as they were until at the hearing the important questions in the suit should be decided. The cause then came before Lord Hatherley (then Wood V.C.) at the hearing, who, after a full argument dismissed the bill : and his decision was brought by appeal before 1 L. E. 16 Eq. 189. 430. 2 1 De G. M. & a. 604. * 4 De G. & J. 276, where the case can be traced tkrougli its stages 3 In Whitwood Chemical Co, v. tip to the appeal from the hearing Hardman, [1891] 2 Oh. at pp. 427, of the cause, F. B B 370 OF THE DEFENCES TO THE ACTION. Lord Chelmsford, who held that a vessel under charter "ought to be regarded as a chattel of peculiar value to the charterer, and that although a Court of Equity cannot compel a specific performance of the contract which it contains, yet that it will restrain the employ- ment of the vessel in a different manner, whether such employment is expressly or impliedly forbidden, according to the principle so fully expressed in the case of Lumley v. WagnerP But he affirmed the dis- missal of the bill on the ground that neither of the defendants had done anything actively to hinder the voyage. |fimv. g 856. The case of Sevin v. Deslandes,^ before Lord Romilly M.R., followed De Maths v. Gibson,^ and there an injunction was granted, both on inter- locutory motion and at the hearing, to restrain the defendant from doing any act inconsistent with the charter-party, which did not contain any express negative clauses. Limits of § 857. It is not easy to see the limits to which trine."" ^^ doctriue of an implied negative might be carried : for as A. and not-A. include the whole world, it follows that a contract to sell to A. or to sing at A. must imply a negation of a sale to not-A. or a singing at not-A. : and if injunction is to be granted where specific performance might be impossible, the logical conclusion of the doctrine would be a great and rather formidable enlargement of the jurisdiction of Equity.^ Such an enlargement of the doctrine would be contrary to a dictum of Lord Cottenham, couched in the form of a question in Heathcote v. The North Staffordshire Railway Oo.,^ where he asked, "If A. contract with B. to deliver goods at a certain time and place, will Equity interfere to prevent A, from doing anything which may or can prevent him from so delivering the goods ? " Lord § 858. In De Mattos v. Gibson, Lord Hatherley J^y*^^jg^ (then V.C.) thought that the implication of a negative 1 30 L. J. Ch. 457; 9W. E. 218. ^ gee per Lindley L.J. in Whit- See, too, Le Blanch v. Granger, 35 wood Chemical Co. v. ffardman, Beav. 187. [1891] 2 Oh. at p. 426. 4 De G. & J. 276. -> 2 Mao. & G. at p. 112. land. INCAPACITY OF THE COUKT TO PEKFORil PART. 371 stipulation was to be confined to cases in which " the breach of a positive agreement involves specific damage beyond that of the mere non-performance of the agree- ment itself" — the special damage (in Miss Wagner's case) resulting from her singing elsewhere at a rival theatre, ultra the non-performance of her contract to sing at the plaintiff's theatre : and in another case, the same learned Judge observed that the instances in which the Court had found it possible to infer the negation were very few and special.^ § 859. In Fothergill v. Rowland^ Jessel M.R. had Jessei before him a bill, based on a contract for the sale of Foiiiergui all the coal from a particular colliery for a certain ^ ■ -S""- period, which prayed for an injunction against selling the colliery, except subject to the contract, and against disposing of the coal except for the purpose of the per- formance of the contract. His Lordship observed that he could not find or seize any distinct line dividing the two classes of cases, that is, the class in which the Court not being able to grant specific performance grants an injunction, and the class in which it does not grant the injunction : and he therefore, following the dictum of Lord Cottenham, allowed a demurrer. § 860. The doctrine in Lumley v. Wagner^ has been The doc- criticised by Lord Selborne : and after his observations XHm^fey v. it is doubtful whether the mere presence of a negative Wanner stipulation can be relied on, if the contract is not such extended. in its nature as to be the proper subject of equitable jurisdiction. " It was sought in that case," said his Lordship,* " to enlarge the jurisdiction on a highly artificial and technical ground, and to extend it to an ordinary caSe of hiring and service, which is not properly a case of specific performance : the technical distinction being made, that if you find the word ' not ' in an agreement — ' I will not do a thing ' — as well as 1 Pefo V. Brighton, Uchfidd, and National Telephone Co., [1894] 2 Gli. Tunhridge Wells Railway Co., 1 H. l*"^' at p. 153; 42 W. E. 380. & M. 468 486. ' 1 De G. M. & G. 604. ' * In Wolverhampton and Walsall ^ L. E. 17 Eq. 132. Distingmsli ^^^^^^y (j^_ ^_ ^^„^,„ „„^ j^^^,^j^ Jones V. Noi-th, L. E. 19 Eq. 426; Western Eailvmy Co., L. E. 10 Eq. and see Keith, Prowse & Co. v. 440. B b2 372 OP THE DEFENCES TO THE ACTION. the words ' I will,' even although the negative term might have been implied from the positive, yet the Court, refusing to act on an implication of the nega- tive, will act on the expression of it. I can only say, that I should think it was safer and the better rule, if it should eventually be adopted by this Court, to look in all such cases to the substance and not to the form. If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise, whether this is the Court to come to for a remedy. If it is, I cannot think that ought to depend on the use of a negative rather than an affirmative form of expression. If, on the other hand, the substance of the thing is such, that the remedy ought to be sought elsewhere, then I do not think that the forum ought to be changed by the use of a negative rather than an affirmative." Srett V. The view thus plainly expressed by Lord Selborne ^T^SMp-"' ^^^ been indicated in an earlier case before Lord pwg Co. Hatherley, when Vice Chancellor. The object of the bill in that case was to enforce the specific performance of a contract to employ the plaintiff as broker, which contained a stipulation that the plaintiff's name should appear in all advertisements of the company. To it the defendants demurred, and the only point on which the Judge entertained any serious question was whether the stipulation as to advei-tisements did not bring the case within the principle of Lumley v. Wagner : ^ but he determined that it did not, and that, as the defendants did not employ the plaintiff as broker, the Court could not restrain their issue of advertisements omitting his name.'^ Lumley^. § 861. In a casB already cited ^ (in which a com- anomahT'^ pany's manager had agreed to "give the whole of his not to be time to the company's business," and, there being no negative stipulation, an injunction was refused) ' 1 De G. M. & G. 604. decision in tliis case was considered ^ Brett V. Easl India and London and applied in Mutual Reserve Fund Shipping Co., Limited, 2 H. & M. Life Association v. New York Life ) 404. Assurance Co., 0. A. 75 L, T. 528. * WJiiiwood Chemical Co. v. Hard- See fnrtlier Peperno v. Harmiston, man, [1891] 2 Ch. at p. 429. The 31 Sol. Jo. 154. extended. INCAPACITY OF THE COURT TO PERFORM PART. 373 Lindley L.J. said he looked upon Lumley v. Wagner^ "as an anomaly which it would be dangerous to extend." In accordance with this view, Kekewich J., in Davis v. Foreman,^ declined to enforce by injunction a stipulation, contained in a contract of service, which, though negative in form, was positive in substance. And again, where a negative stipulation in such a con- tract was of so wide and general a character as to be unreasonable, Romer J. refused to enforce it.** § 863. The position of that branch of the law on Conoiu- which Lumley v. Wagner'^ is the leading authority can thTauth^ hardly be said to be very satisfactory. It may, it is rities. conceived, be concluded that the principle of this case will not be extended : that negative stipulations will not be implied except in the cases where the Courts have already done so : and that even the presence of an express negative stipulation Avill not be found a sufficient ground for jurisdiction u.nless the contract is of a kind of which specific performance can be granted. In other words, it is probable that the Court will here- after, except so far as it may be bound by existing authorities, consider whether the contract in respect of which the injunction is sought is or is not of a kind fit for specific performance : that, if it be, the Court will tend to restrain acts inconsistent with it, whether there be negative words or not : that if it be not of a kind fit for specific performance, no injunction will be granted, even though negative words may be present.* § 863. In cases where the contract on which an in- Unen- j unction is sought contains stipulations, some of which terms aii the Court can, and others which it cannot enforce, onpiaiu- and the latter are wholly on the plaintiff's part, no difficulty arises ; because, though the Court may be r '/' unable to enforce them directly, it does so indirectly, inasmuch as the moment the plaintiff fails in perform- ' 1 De G. M. & G. 604. 1 Ch. 671. Distinguisli William 2 [1894] 3 Ch. 654, 658. Com- RoUnson & Co. v. Emer, [1898] pare Metropolitan Electric Supply 2 Oh. 411, 'where a definite negative Co. V. Cinder, 49 W. E. 508 ; 84 and severable agreement was en- L. T. 818 (contract affirmative in forced by means of an injunction, form but negative in substance). * Donnell v. Bennett, 22 Ch, D, 5 Ehrman v. Bartlwlomew, [1898] 835, 3~J: OF THE DEFENCES TO TPIE ACTION. ing his part of the contract, the injunction would be dissolved.^ vii. Where § 864. (vii-) Where an arrangement come to ranglment hetwecu two porsons is intended to be of a complex is partly character, partly legal and partly honorary, the Court onorary. ^^.jj^ ^^ there be no other impediment, specifically per- form the legal contract, leaving the honorary part of the arrangement to rest, as was intended, on the honour of the parties. So that, where this latter part is malum prohibitum and not malum in se, it will not obstruct the Court in its execution of the other part of the arrangement which amounted to contract.^ viii.Where § 865. (viii.) Where the contract is in any matter tracUs" alternative, so that the parts of it are mutually exclu- aitema- give ouo of the other, and the plaintiff has a right to ^^^' ask for the performance of one part, the Court may treat this as indejoendent of the other : thus, in a con- tract to grant a lease with an option to the lessee to purchase, this option was held so far independent of the contract for a lease, that a default on the part of the plaintiff in insuring, which would have prevented his suing for a lease, did not prevent his suing on the option to purchase.^ ix. Where § 866. (ix.) In ouo case Lord Romilly M.R. ap- whioh tiie P^ars to havo expressed the opinion, that where a part Court of the contract which the Court could not perform has enforce"* been actually performed before suit, the incapacity of has heeu the Court as to this part would furnish no defence as foraied. to the other part. But the doctrine appears to have been rejected by the Court of Appeal.* • StocJcer v. Wedderbwrn, 3 K. & ^ Oreen v. Low, 22 Beav. 625. J. 393, 405. * -^"i's V. Hope, 22 Beav. 351 ; S. 0. 8 De G. M. & G. 731, 746. » Cardan v. Bralazon, 3 Jon. & gee also Wahond\. Walrond,SdkD.. L. 200, 213. 18, and § 938, infra. 375 CHAPTER XVII. OF DEFECT IN THE SUBJECT-MATTER OF THE CONTRACT. § 867. Another ground on whicli the specific Nature performance of a contract may be resisted is the exist- ^ef*moe. Bnce of some essential defect in the subject-matter of it, or some variation from the description contained in the contract. This is, of course, not a question of title ; the acceptance of the title will not prevent the defendant from setting up the defence that the title relates to a different subject-matter from that which he contracted f or.^ The cases in which this variation arises between the thing and some representation made in respect of it are considered under the head of Mis- representation ; ^ the cases in which no such repre- sentation has been made it is now proposed briefly to consider. § 868. The material distinction to be considered Defects is between defects which are patent and visible to ETteS!"'^ every one and those which are latent ; for just as at Common Law a warranty, however general, is not taken to include defects apparent at the time of the bargain, as no one could have been deceived by them ; so, whilst latent defects are a ground for refusing specific performance, patent defects are not.^ § 869. Accordingly, where a man bought a meadow Patent with a road round it and a way across it which were ^®*®°'^* not noticed in the description, Lord Rosslyn never- theless enforced specific performance with costs : * and 1 Bentley v. Craven, 11 Beav. 204. sect. 3, § 1. 2 Supra, § 650. * Oldfield v. Bound, 5 Yes. 508 ; 3 Dyer v. Hargrave, 10 Ves. 505 ; and see Fope v. Qarland, 4 T. & C. supra, § 688; cf. Pothier, Tr. du Ex. 404; Goolt y. Waugh, 2 Gifi. Oontrat de Vente, Part. II. ctap. 1, 201, 376 OF THE DEFENCES TO THE ACTION. Shackletmx \. Sutcliffe. Latent defects. Defect consisting in undis- closed liability. the circumstance that an estate, described as inclosed in a ring-fence, was not so inclosed, was held by Grrant M.R. no defence to a suit for performance.^ § 870. But where the objection taken by the pur- chaser, who was defendant, was the existence of certain water easements, and it was proved that the defendant had long lived in the neighbourhood, was well ac- quainted with the property, had in passing the road constantly seen some of the wells on the lower land supf)lied from the upper land, which was the subject of the contract, and had on the morning of the sale been upon the land ; Knight Bruce V. C. expressed his opinion, but without giving the reasons, that no such degree of knowledge or notice had been proved as to preclude the purchaser from taking the objection.^ In this case, it may be observed, the objection to the upper lands was the existence of certain rights granted with the lower lands to enter the upper lands, fetch water from a spring, and to cut and cleanse gutters for the convey- ance of the water to the lower lands and similar ease- ments. Now the wells, gutters, and all the other objects of sense might probably have existed without necessarily involving these easements; and if so, it follows that the defect was in its nature latent and not really patent. § 871. With regard to the latency of defects, it is to be observed that the Court will not demand a minute examination on the part of the purchaser, even where the vendor does not make any representation:® to render a defect patent it must, it seems, be an obvious and unmistakeable object of sense. § 872. The defect need not be in the actual physical subject-matter of the contract, it may consist in the existence of some liability of which the other party is ignorant : so a vendor of a lease described as subject to the usual covenants cannot, of course, enforce specific performance where the lease is subject to un- usual ones.* Again, the vendor of a lease who has been • ' Dyer v. Hargrave, 10 Yes. 505. ' Shackletm v. SutcUffe, 1 De Gr. & Sm. 609. ' Of. per James L.J. in Denny y. HancocJc, L. E. 6 Oh. at p. 12. * Hampshire v. Wichens, 7 Oh. D. 655 (wliere the subject of wliat are usual coTenants is fully considered, DEFECT IN THE SUBJECT-MATTER OF THE CONTRACT. 377 silent as to the existence of onerous and unusual cove- nants cannot force on a purchaser a lease containing such covenants, unless he give the purchaser before contract a fair opportunity of ascertaining for himself the terms of such covenant : ^ and so where the vendor of leasehold property had before the sale received from his landlord a notice of re-entry in default of the premises' being repaired, and did not communicate the existence of this notice to the purchaser, who however knew of the state of the premises, the con- tract was held void at the suit of the purchaser, who had been ejected;^ and at Common Law the undis- closed fact that the property in question is liable to be taken under the powers of an Act of Parliament has been held a valid ground for rescinding the contract.^ § 873. The existence of a defect, unknown at the Defect time of the contract both to the vendor and the pur- t^^otiT'^ chaser, will not, it seems, be a bar to the enforcement parties. of the contract,* unless, probably, where the defect is such as lies properly in the knowledge of the vendor. § 874. Where the variation between the thing and Variation the description of it seems rather in the nature of an ^^^^^^^ excess than of a defect, and so in favour of the pur- defect. chaser, the vendor is nevertheless disabled from en- forcing the contract on an unwilling purchaser. Thus freehold land cannot be forced on a purchaser who bought it as copyhold. "It is unnecessary," said Lord Romilly M.R.,, "for a man who has contracted as regards leaseholds) ; Re Lander Distinguish, from the cases cited in and Bagley's Contract, [1892] 1 Oh. this section, Edwards Wood v. Mar- 41 (usual covenants in lease of joribanhs (1 Giff. 384 ; 3 De G. & public house) ; cf. Tildesley v. J. 329 ; 7 H. L. 0. 806), where the Clarkson, 30 Beav. 419; Be Higgins purchaser of an advowson was held and Hitcliman, 21 Oh. D. 95. not entitled to any compensation in 1 Reeve v. Berridge, 20 Q. B. D. ^^^P^''* °* ^ '=^^^8'^ °^ ^^^ ^^^^S 523 ; Be White and Smith's Contract, :^^^''^ ^ S^^""^ ^"^""^ ^^^^^^ ^"^^^'^ [1896] 1 Oh. 637; Be Eaedicke and bounty. Lipsh€s Contract, [1901] 2 Oh. at ' -?«»• Wigram V.O. v^ Lucas v. „QQ James, 8 Ha. 418. Distinguish ^* ■ Hope V. Walter, [1900] 1 Oh. 257, 2 Stevens v. Adamson, 2 Stark, reversing S. 0. [1899] 1 Oh. 433 422. (property used as a brothel). See 3 Ballard v. Way, 1 M. & W. 520. also Parkinson v. Lee, 2 East, 314, 378 OF THE DEFENCES TO THE ACTION. Uncer- tainty in subjeot- matter, and in de- scription of it. Sale with all faults. to purchase one thing to explain why he refuses to accept another." ^ § 875. Where an uncertainty exists as to the subject-matter of the contract, but the description by which it was sold is equally uncertain, there is of course no variation or defect. Therefore where pro- perty was sold by a general description as being part freehold and part leasehold, and the exact boundary between the freehold and leasehold parts of the estate could not be ascertained, this circumstance furnished no defence to a suit for specific performance.^ § 876. A purchaser may of course contract for the purchase of a thing with all faults, and he then takes on himself the knowledge of the title and of the qualities of the subject. The cases on the effect of this clause in a contract seem to show, — first, that such a contract is binding, however many may be the defects in the subject, and whether they be latent or patent, and whether discoverable by the purchaser or not;^ secondly, that it will not protect the vendor where he takes positive means to conceal the defects,* as where a vessel was moved off her ways, where she lay dry, into the water in order to conceal her worm- eaten bottom and broken keel ; ^ and thirdly, that it will not protect the vendor when he makes a misre- presentation, and that misrepresentation is embodied in the contract,® or is both false and fraudulent.'' The Court refuses to direct any inquiry as to title where ' Ayles V. Cox, 16 Beav. 23. See tte observations of Lord St. Leo- nards on this case, Vend. 251 ; cf. also Stanton v. Tattersall, 1 Sm, & G. 529. Copyholds cannot, of couise, be forced on a purchaser of free- holds : EicJi V. FhilUps, Prec. in Oh. 575; cf. Twining v. Morrice, 2 Bro. 0. 0. at p. 331. 2 Monro v. Taylor, 3 Mac. & G. 713. As to conditions respecting such a mingling of tenures, see also Crosse V. Lawrence, 9 Ha. 462 ; Crosse V. Keene, id. 469 ; cf . Jefferys v. Fairs, 4 Ch. D. 448. Davis v. Shep- herd, L. E. 1 Oh, 410, is, of course, clearly distinguishable. ' Baglehole v. Walters, 3 Camp. 154 ; Pickering v. Dawson, 4 Taunt. 779, overruling Lord KenyonM.E.'s decisioTiinMelUshY.MotteuXf'Peake, 115, that the stipulation in question only applies to faults ■which the pur- chaser can discover or the vendor is ignorant of. * Baglehole v. Walters, 3 Camp. 154. * Schneider v. Heath, 3 Camp. 606. « Ibid. ' Early v. QarreU, 9 B. & C. 928 ; Springwell v. Allen, 2 East, 448, n. DEFECT IN THE SUBJECT-JMATTEK OF THE CONTRACT. 379 the sale is with all faults, and the vendor only sells such interest as he has.^ § 877. The effect on the specific performance of ^^^°'^°^ the contract of a defect in the thing sold, or a variation tract of from the description, is twofold, according to its mag- ^ defect. nitude. If, in the view of the Court, it be unessential, the contract may yet be performed, but with compen- sation; if it be essential, it confers on the party injured the right of rescinding the contract and defeating its performance."'^ The distinction between these two classes of cases will be considered in the chapter on Compensation.'' ^ See infra, § 1323. See also Hume G. 529 ; Turquand v. BJiodes, 16 W. V. Pocock, L. E. 1 Eq. 423 ; 1 Ch. E. 1074; cf. McKenzie v. Hesketh, 7 379. Ch. D. at p. 682. ^ Stanton v. TatfersaU, 1 Sm. & ^ Part V. chap. ii. 380 CHAPTER XVIII. OF THE WANT OF A GOOD TITLE. Title must § 878. Wheee the vendor of land sues the pur- from''^ chaser for a specific perforanance of the contract, the doubt. defendant is entitled to have the action dismissed, if it appear that the plaintiff cannot make out a good title to the land. The defendant may have the action thus dismissed at the trial, provided the defect in title has been prominently put forward in the pleadings, and the Court can then decide the question,^ or even where the objection appears on the evidence at the trial, and is a different objection from that on which the defen- dant had relied.^ But the question more usually arises after the reference of title has been made. And the title which the vendor must show must be a title in himself, or in those whom he has a legal or equitable right to require to join in the conveyance : he has no right to say that some other person is willing to enter into a contract, and to force the title of that other person on the purchaser.^ Former § 879. The old practice of the Court of Chancery, practice. ^^ ^y[ cascs of disputo as to the title of the estate sold, was to decide either for or against the validity of the title, and either to compel the purchaser to take it as good, or to dismiss the hill on the score of its being Present bad.* But the case of Marlow v. Smitli,^ before Jekyll M.R., followed by Shapland v. Smith,^ before Lord ' Lucas V. James, 7 Ha. 41 8, 425. ^ In re Bryant and Barningham, Of. Bates V. Kesterton, [1896] 1 Oh. 44 Ch. D. 218. 159 (a vendor's action). * See 1 Bro. 0. C. 76, n. 2 Bashcomh v. Phillips, 29 L. J. « 2 P. Wms. 198. Oh. 380; 6 Jur. N. S. 363. « 1 Bro. 0. 0, 75. Lord Eldon OF THE WANT OF A GOOD TITLE. 381 Thurlow, established the practice of allowing a class of titles which, without affirming them to be bad, the Court considered so doubtful as that it would not compel a purchaser to take them.* § 880. Lord Eldon, though feeling himself bound Observa- to adhere to this as an established rule, on more than tSTmle. one occasion expressed his dissent from it on principle, and bewailed the great mischiefs which had resulted from it.^ But such expressions of opinion did not shake the rule : and it has been recognized by the House of Lords as one of the established rules of a Court of Equity.^ § 881. Against the rule it has been urged that it Argu- is logically absurd, as well as practically injurious ; for ^J^^st every title is good or bad, and if so, the Court ought and for to know nothing of a doubtful title. For the rule it ^^^ ™^®" has been urged in effect that, having regard to the nature of an action for specific performance, the rule in question is necessary in point of practical justice, and correct in reasoning. It must be remembered that the judgment of the Court in such an action is in ^personam and not in rem ; that it binds only those who are parties to the action, and those claiming through them, and in no way decides the question in issue as against the rest of the world ; * and that doubts on the title of an estate are often questions liable to be dis- cussed between the owner of the estate and some third person not before the Court, and therefore not bound by its decision.® If therefore there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of was in the habit of treating this as 647 ; Willcox v. Bellaers, T. & E. the first case in •which the later rule 491. had prevailed: hut in SZoj5erv.-Fis/j, 2 in Vancouver v. Bliss, 11 Ves. 2 V. & B. 149, Grant M.E. referred 465, and in Jervoise v. Duhe of to the earlier case, and stated that Northumberland, IJ. & W. 568. the rule in question had been re- 3 See j^ar Lord Westbury in Parfer peatedly acted on by Lord Hard- ^_ y^^^^^^ ^^ ^ -^_ q_ ^^p_ ^gg_ ■wicke. 1 See also Cooper v. Denne, 4 Bro. * See per Jessel M.E. in Oshorne C. 0. 80; S. 0. 1 Ves. Jun. 565; '" Rowlett, 13 Ch. D. at p. 781. Sheffield v. Lord Mulgrave, 2 Ves. ° Seeder Turner V.O. in Glass v. Jun. 526; Roake v. Kidd, 5 Ves. Richardson, 9 Ha. at p. 701. 382 OF THE DEFENCES TO THE ACTION. the contract, the Court may consider this to be a cir- cumstance which renders the bargain a hard one for the purchaser, and one which in the exercise of its discretion it will not compel him to execute. Though every title must in itself be either good or bad, there must be many titles which the Court cannot pronounce with certainty to belong to either of these categories in the absence of the parties interested in supporting both alternatives, and without having heard the evidence they might have to produce, and the argu- ments they might be able to urge: and it is in the absence of these parties that the question is generally agitated in proceedings for specific performance. The Court, when fully informed, must know whether a title be good or bad ; when partially informed, it often may and ought to doubt. Amount § 882. It is by no means easy to express what of doutt. g^jjiQ^j^^ Qf doubt upon a point there must be, to induce the Court to refuse specific performance: and this difficulty has been increased by the ebb and flow of judicial opinion and decision for and against the rule, which has characterized the cases of the last quarter of a century. One mode of measuring the doubt has been by applying the question, whether it is such a title as that the Judge himself would lend his own money upon it. The Court " has almost gone the length," said Lord Eldon, "of saying that unless it is so confident that if it had 95,000^. to lay out on such an occasion, it would not hesitate to trust its own money on the title, it would not compel a purchaser to take it." ^ Market- § 883. In another case, Lord Eldon put the ques- abie title, ^jq^ f^j. ^]jg Court as being, "whether the doubt is so reasonable and fair, that the property is left in his (the purchaser's) hands not marketable:"^ but a marketable title being " one which, so far as its antec'edents are concerned, may at all times and under all circumstances be forced on an unwilling purchaser,"^ the observation 1 In. Jervoise v. Duhe of Northum- ^ In. Lord BrayhroJce v. Inship, 8 herland, 1 J. & W. 569, See also yeg. 428, Sheffield v. Lord Mulgrave, 2 Ves. Jun. 526; jser Turner V.O. in PyrSe ' -?«»• Turner V.O. in PyrTce y. V. Waddingham, 10 Ha. 9. Waddingham, 10 Ha. 8, OF THE WANT OP A GOOD TITLE. 383 seems not much to assist us in measuring how great the doubt must be. In Williams v. Scott,^ the Privy Council held that it would be inequitable to force upon a purchaser a title derived by the vendor by purchase from himself as trustee for sale. "It is not merely," said Sir Ford North, delivering the judgment of their Lordships, " that the purchaser would be running the risk of pro- ceedings being taken by the cestuis que trust to re-open the transaction. The purchaser would be saddled with a pro- perty which he would be unable for many years to put upon the market, unless recourse was had to some special i^estrictive condition which might seriously reduce the price a purchaser would be willing to pay for it." § 884. It was formerly held that, though the Court Formerly might entertain an opinion in favour of the title, yet if ^^03°"^°^' it were satisfied that that opinion might fairly and refused, reasonably be questioned by other competent persons, corafin it would refuse specific performance. Thus, in a case favour of before Leach V.C., he expressed the strong inclination of his opinion to be in favour of the title, and yet refused the relief sought by the plaintiff ; ^ and in the case of Ptjrke v. Waddingham,^ in which Turner V.C. discussed the subject now before us, he expressed an opinion in favour of the title, but nevertheless dismissed the vendor's bill with costs. For this reason it was held that the Com-t would not force a title on a purchaser in opposition to the decision of another Court, though it might think that decision to be wrong.* Accordingly the Court of Appeal in Chancery in one case dismissed an appeal, though thinking the title good, on the ground of the opinion of the Judge below : ^ though the same measure of deference was not extended to the opinion of a conveyancing counsel of the Court.'' § 885. It is difficult to say how far these cases can Present now be relied on ; for, since the case of Pyrke v. Wad- of"hT°'' Court. 1 [1900] A. 0. 499, 508. ^ Rose v. Galland, 5 Ves. 186. , „ . „. c T./r J -i-n ^ GoUier v. McBean, L. E. 1 Oh. 2 Price V. Strange, 6 Mad. lo9, n- -7. 7> 7 81 ; and see Hamilton v. Buckmaster, 164. L. E. 3 Bq. 323. 3 10 Ha. 1 ; cf. Rogers v. Water- Hamilton v. Buckmaster, L. E. house, 4 Drew. 329. 3 Eq. 323. 384 OF THE DEFENCES TO THE ACTION. Leonards' view. dingham^ there has been a considerable oscillation in the tendency of judicial decisions. § 886. On the one hand, the very same title -which Turner V.C. refused to force on a purchaser in Pyrke V. Waddingliam^ was forced on another purchaser by Lord Romilly M.R., not on the ground that the princi- ples laid down in that case were erroneous, but that they did not justify the decision.^ Decision § 887. Again, as regards the decision of an inferior Court!""' Court ; — the Judges of the Court of Appeal have held that they are in no wise bound by such decisions, and that where they consider that there is no reasonable doubt, the adverse decision of the inferior Court will not be a sufficient reason to refuse the plaintiff relief.^ Lord St. " With respect to the common cases of doubtful title," said Lord St. Leonards, " I cannot agree with the pro- position, that an unfavourable decision in the Court of inferior jurisdiction renders the title doubtful. The Judge of the superior Court would still be bound to exercise his own discretion and decide according to his own judgment."* This language has been cited with approval by the Court of Appeal in Chancery in England.^ § 888. On the other hand, the case of Pyrke v. Waddingham^ has received the sanction of the Earl of Selborne and Baggallay and Lush L.JJ., in a case in which they adopted the principles laid down in that case, and refused to force a purchaser to take a title in respect of which there were serious grounds for doubt.® Nature of § 889. The doubt which may prevent the Court """ " """ from compelling the purchaser to accept a title maybe 1 10 Ha. 1. 230 ; Alexander v. Mills, L. E. 6 Cli. 2 Mullmgs v. Trinder, L. E. 10 124; Radford v. Willis, L. E. 7 Oli. Eq. 449. See also BmM V. -ffwicAens, 7, reyersing S. 0. L. E. 12 Eq. 105. 32 Beay. 615 (lis pendens), and , sheppard v. Doolan, 3 Dr. & Wrigley v. Sylces, 21 Beav. 337. ^^r.atp.S. See too_per Jessel M.E. See also Higligate Archway Go. v. ^ ^sJorae to Rowlett, 13 Ch. D. at Jeahes, L. E. 12 Eq. 9; Bell v. p_ ^gj_ Consider Gooh v. Dawson, Holthy, L. E. 15 Eq. at p. 193 ; g p^ (j. p. & j. ^t p. 130. Austin V. Tawney, L. E. 2 Ch. 143 ; Oshorne to Rowlett, 13 CL. D. 774, ' In Seioley v. Carter, L. E. 4 Ch. 781 ; Wi^e v. Piper, ib. 848, 855. at pp. 236, 240. 3 Beioley v, Carter, L. E. 4 Ch. « Palmer v. Locke, 18 Ch. D. 381, the doubt. OP THE WANT OF A GOOD TITLE. 385 a doubt either of law or of fact ; and, as to law, it may be connected with the general law of the realm, ^ or with the construction of particular instruments;^ and, as to fact, it may be in reference to facts appearing on the title, or to facts extrinsic to it.^ Again, it may be about a matter of fact which admits of proof, but has not been satisfactorily proved,'' or about such a matter as from its nature admits of no satisfactory proof, as the negative proposition that there was no creditor of the vendor capable of taking advantage of an act of bankruptcy.^ § 890. It is not easy to give any perfect classifica- Cases in tion of the doubts which would and of those which court would not prevail with the Court, but the following '^°'^]^ attempt may not be useless. The Court would, it is title conceived, consider the title dou.btful in the following "loiibtf 'pl- eases : — (i.) Where the probability of litigation ensuing i. Pioba- against the purchaser in respect of the matter in utigation doubt is considerable, or, as it was put by Alderson B.," s^''^^- where there is " a reasonable decent probability of litigation." The Court, to use a favourite expression, will not compel the purchaser to buy a lawsuit.^ Thus — to mention some recent instances — the Court declined to force the title upon the purchaser where it appeared that some infants, who had by customary feoffments conveyed their sliares of gavelkind land to the vendor, might possibly, on attaining twenty- one, assert some claim against the land;^ also where a person claiming to be entitled to the benefit of a 1 Sloper V. Fish, 2 V. & B. 145 ; 165 ; Sharp v. Admok, 4 Euss. 374 ; Blosse V. Lord Clanmorris, 3Bli. 62; Heseltine y. Simmons, 6 W. E. 268 ; Be Thackwray and Young, 40 Oh.. D. Pegler v. White, 33 Beav. 403. Con- 34; but as to this see §§ 802, 803. sider Potter v. Parrij, 7 W. E. 182 ; ^ Lincoln v. Arcedeclcne, 1 Coll. Burnell v. Firth, 15 W. E. 546. 38; Bristow v. Wood, 1 Coll. 480; See, too, Williams r. Scott, [1900] per Turner V.C. in PyrJce v. Wad- A. C. 499 ; and Be New Land dingham, 10 Ha. 9. Development Association and Oray, 3 Ibid. [1892] 2 Oh. 138. * Smith V. Death, 5 Mad. 371. ° Be Mashell and Goldfinches Con- ^ Lowes V. Lush, U Yea. 54.7. tract, [1895] 2 Oh. 525, 529; of. ^ In Oattell v. Corrall, 4 T. & 0. Be Douglas and Powell's Contract, Ex. 237. [1902] 2 Oh. 296, 314 ; 71 L. J. Oh. ' Price V. Strange, 6 Mad. 159, 850. F. C C 386 OF THE DEFENCES TO THE ACTION. ii. Past adverse decision doubted. iii. Past favourable decision doubted. iv. Con- struction of in- artificial instru- ment. v. Title resting on presump- tion of doubtful fact. condition for reverter had given a notice amounting to a threat of litigation, although the Court con- sidered the condition to be obnoxious to the rule against perpetuities and therefore void ; ^ and again where a lease contained the usual qualified covenant against assigning without the lessor's consent, and the lessor had declined to consent to an assignment to the purchaser.^ The unwillingness of the Court is increased where the title depends on a question of fact to be proved by oral testimony of witnesses whom, at the time when the controversy is raised, it may be difficult to find, or who may be dead, or out of the jurisdiction. (ii.) Where there has been a decision by a Court of co-ordinate jurisdiction adverse to the title or to the principle on which the title rests, though the Court thinks that decision wrong.® (iii.) Where there has been a decision in favour of the title which the Court thinks wrong.* (iv.) Where the title depends on the construction and legal operation of some ill-expressed and inarti- ficial instrument, and the Court holds the conclusion it arrives at to be open to reasonable doubt in some other Court .^ (v.) Where the title rests on a presumption of fact of such a kind that if the question of fact were before a jury, it would be the duty of the Judge not to give a clear direction in favour of the fact, but to leave the jury to draw their own conclusion from the evidence. To this principle we may probably refer many of those cases where a doubt as to a fact has prevailed ; as where the title depended upon proof that there was no creditor who could take advantage of an act of bankruptcy committed by the vendor : ^ or where the title depended upon the absence of notice of an in- cumbrance, of which absence the vendor produced ' Be Hollia' Hospital {Trustees of) and Hague's Contract, [1899] 2 Ch. 540, 555. ^ He Marshall and Salt's Contract, [1900] 2 Oh. 202. See, too. Be VerreU's Contract, [1903] 1 Ch. 65 ; 72 L. J. Ch. 44 ; 51 W. E. 73. ' Per Lord Eomilly M.E. in Mul- Ungs V. Trinder, L, E. 10 Eq. at p. 454. * Ibid. ^ Per James L.J. in Alexander v. Uills, L. E. 6 Oh. at p. 132. " Lowes V. Lush, 14 Vea. 547. OF THE WANT OF A GOOD TITLE. 387 some evidence/ or upon the presumption arising from mere possession,^ or upon the absence of notice to the vendor of a defect in the title to a lease/ or upon the establishment of facts and dealings of a complicated, and in some instances of an ambiguous, nature.* And it has already^ been noticed that, in cases arising Voluntary under the law as it stood before the passing of the piafntiff. Voluntary Conveyances Act, 1893, the Court would not allow a voluntary settlor to force on an unwilling*^ purchaser a title depending on the invalidity of the settlement.'' " One difficulty in the way of assisting him," said Lord Eldon, "is, that he has no equity to defeat the act which he has done himself : but another consideration which has weighed in such cases is, that if you compel a purchaser to take an estate at the instance of such a man, you cannot be quite sure that there may not have been some intermediate acts, which by matter ex fost facto may have made the settlement good which in its origin was not good." ® (vi.) Where the circumstances amount to pre- tI. Pre- sumptive (though not necessarily conclusive) evidence of'feot"'^ of a fact fatal to the title ; as, e.g.^ that the exercise ^?',^^*° of a power under which the vendor claimed was a fraud upon the power.* § 891. On the contrary, it is conceived that the Cases Court would consider the title not to be doubtful in court any of the following cases ; viz., would not (i.) Where the probability of litigation ensuing title 1 JVeer v. Hesse, 4 De G. M, & Q-. Burke v. Dawson, St. Leon. Vend. 495. 592 ; ClarJce v. Willott, L. E. 7 Ex. 2 El/ton T. DicJcen, 4 Pri. 303. 313. Distinguisli SmaU v. Torley, ' Be Hanclman and Wilcox's Con- „ " " " " ^ 7 m o -n J ri/^rtm 1 m cLnn T\- i.- ■ i, * In Joliuson V. Leqard, T. & E. fraci, [1902] 1 Ch. 599. Distinguish tw „ t -.^ ,- ., „, nonon Q n-u 294. See, too, CTarA-ev. PF!?wW, L.E. Mogridge v. Glapp, [1892] 3 Ch. ^ ^ „ '„ ' . , ' 382, and {per Lindley L.J.) 395 ; ] ^^- f.^^- For an instance of a 61 L. J. Oh. 534 ; 40 W. E. 663 ; ^^"""^^ ^'"^ *^*^ ^^"""^ ^^^9 *°'' ^'^^'''^° AT T T inn performance at the suit of a pur- chaser, notwithstanding a previous * Be Douglasand PowelVs Contract, j^^tary grant by the defendant, [1902] 2 Oh. at pp. 313, 314. ^^^ j^JJ^_ ^.^.^^^^^ L. E. 20 fi Siipra, § 406. Eq. 210. 8 Peter v. Nicolls, L. E. 11 Eq. >* Warde v. Dixon, 28 L. J. Ch. 391. 315; S. 0. s. n. Warde \. Dichson, ' Smith V. Garland, 2 Mer. 123; 7 W. E, 148. doubtful, i. Proba- C C O 388 OP THE DEFENCES TO THE ACTION. bility of litigation small. ii. Past adverse decision iii. Ques- tion de- pendent on general law. against the purchaser in respect of the doubt is not great, the Court, to use Lord Hardwicke's language in one case, " must govern itself by a moral cer- tainty, for it is impossible in the nature of things, there should be a mathematical certainty of a good title." ^ Accordingly, in the case before Lord Hard- wicke, his Lordship enforced specific performance, although there was a reservation of mines, because the Court was satisfied that there was no subject- matter for the reservation to act upon, or that all legal right to exercise it had ceased.^ So in another case, Lord Romilly M.R. forced on an unwilling purchaser a title depending on the validity of a purchase by a solicitor from his client, on proof of the validity of the transaction, though given in the absence of the client, who, it was urged, might possess other evidence and ultimately set aside the sale.^ Again, where one link in the title was a voluntary conveyance, but the circumstances were such as practically to negative the suggestion of a subsequent conveyance for value by the donor, the Court adjudged specific performance.* And in cases where the circumstances led to a presumption that a restrictive covenant affecting the user of the pro- perty sold had been released or waived, the title lias 'been forced on the purchaser.^ (ii.) Where there has been a decision adverse to the title by an inferior Court, which decision the superior Court holds to be clearly wrong.^ (iii.) Where the question depends on the general law of the land. "As a general and almost uni- versal rule, the Court is bound as much between vendor and purchaser, as in every other case, to ascertain and so determine as it best may what the law is, and to take that to be the law which it has 1 In Lyddall v. Weston, 2 Atk. 19. ^ See, as to tliis case, per Grant M.E. in Seaman Y. Vawdrey, 16 Ves. 393 ; Martin y. Cotter, 3 Jon. & L. 496. ^ Spencer v. TopTiam, 22 Beav. 573. See, too, Falkner v. Equitable Reversionary Society, 4 Drew. 352. * Noyes V. Paterson, [1894] 3 Ch. 267. * Hepworth v. Pickles, [1900] 1 Ch. 108 ; Ee Summerson, Downie v. Summerson, ibid. 112, n. In the last cited case the property had teen sold under an order of the Court. « Supra, § 887. OF THE WANT OF A GOOD TITLE, 389 SO ascertained and determined."^ A striking in- stance of this is furnished by Re Carter and Kender- dineh Contract^ where the Court of Appeal compelled a purchaser to take a title which depended upon the true construction of sect. 47 of the Bankruptcy Act, 1883, although Stirling J., in Re Briggs and Spicer,^ had held a title bad which depended upon precisely the same point.* (iy.) Where the question, though one of construe- iv. Where tion, turns on a general rule of construction, unaf- fuw fected by any special context in the instrument, and construo- the Court is in favour of the title.'' (v.) Where the title depends on a presumption, v. Where provided it be such, that if the question were before yo^'J^^" a jury, it would be the duty of the Judge to give a favour of clear direction in favour of the fact, and not to leave ^^''*^°*- the evidence generally to the consideration of the jury.® So where the recital of deeds raised the presumption that they contained nothing adverse to the title, the mere loss of the deed, where the title was fortified by sixty years' undisputed posses- sion, was held not to create a reasonable doubt : '' and so again, where the validity of a title depended on no execution having been taken out under certain judgments, between the 27th September, 1769, and the 23rd May, 1770, and nothing was shown to have been done which could be referred to such an execu- tion, the Court considered the title good.* To this head may perhaps be referred the fact that, pre- viously to the passing of the Voluntary Conveyances Act, 1893, the Court would (except at the suit of 1 Per James L.J. in Alexander * See per Oozens-Hardy L.J. in V. Mills, L. E. 6 Oil. at pp. 131, Be Sandman and Wilcox's Contract, 132; Forster v. Abraham, L. E. 17 [1902] 1 Oh. at p. 609. Cf. Mog- Eq. 351 ; Osborne to Rowlett, 13 ridge v. Olapp, [1892] 3 CL. 382 ; Ch..D. n^; Be ThompsonandMcWil- 61 L. J. Ch. 534; 40 W. E. 663 ; Hams' Contract, [1896] 1 I. E. 3o6 67 L. T. 100. (power of administrator durante ^ Radford t. Willis, L. E. 7 Ch. 7. minore cetate to sell) ; but cf . Be ^ Emery v. Orococh, 6 Mad. 54 ; Thackwray and Young, 40 Oh. D. Barnwell v. Harris, 1 Taunt. 430. 39. ' Prosser v. Watts, 6 Mad. 59 ; 2 [1897] 1 Oil. 776. Magennis v. Fallon, 2 Moll. 561. 3 [1891] 2 Oh. 127. ^ Causton v. Macklew, 2 Sim. 242. 390 OP THE DEFENCES TO THE ACTION. vi. Suspi- cion of Dictum of Leaoh V.C. observed upon. the settlor)^ compel specific performance of a title depending on the invalidity of a voluntary convey- ance as against a purchaser for valuable considera- tion without notice,^ the Court, as it seems, having in cases of that kind acted on the presumption of the conveyance not having been rendered valid by subsequent dealings. (vi.) Where the doubt raised rests not on proof or presumption, but on a suspicion of mala fides. This point has given rise to some diversity of opinion. In Hartley v. Smith^ the title depended on a deed of grant of chattels, containing a stipulation for the grantor's continuing conditionally in possession ; and Leach V.C, without deciding whether such a deed was in itself fraudulent and an act of bankruptcy, declined to force the title on the purchaser, on the ground that its validity depended on its being made upon good consideration and bond fide, and that these were circumstances, the existence of which the purchaser had no adequate means of ascertaining. " My opinion therefore is," said the Vice- Chancellor, "that a Court of Equity ought not to compel this purchaser to accept this title ; because assuming the deed not to be fraudulent ex facie, it still may be avoided by circumstances extrinsic, which it is neither in the power of the purchasers nor of this Court to reach."* § 892. This dictum seems to allow no room to the presumption of lona fides, and to make the possibility of fraud in extrinsic facts a sufficient objection to the title : accordingly, it has not been accepted in all its generality. It " must not," said Alderson B. of this dictum, " be pushed to the farthest extent which the words will possibly bear:"^ and accordingly, that Judge held good a title under a deed which extrinsic evidence might have shown to be invalid, as com- prising all the property of the grantor, or as made to give a fraudulent preference to some creditors over 1 Supra, §§ 406, 469, 890. 2 Butter field t. Heath, 15 Beav. 408; Buolde y. MitcTiell, 18 Yes. 100. 3 Buck, Bankr. 0. 368. ^ P. 380. See also Boswell v. Mendham, 6 Mad. 373. 5 4 Y. & 0. Ex. 236. OF THE WANT OF A GOOD TITLE, 391 others, or as made in contemplation of bankruptcy, because there was no ground apparent for making any of these objections to it.* § 893. In Green y. Pulsford'^ the vendor claimed ^''fl^- under an appointment made by a husband and wife to their eldest daughter, under a settlement which gave them successive life estates, with remainder to their children as they shou.ld appoint, and in default of appointment between such children; and the parents had incumbered their life interests, and shortly after the appointment, they and their daughter executed a mortgage : these were circumstances which might create in every one's mind a suspicion that the ap- pointment was a fraud on the settlement, and that was strengthened by a notice from a younger son to the purchaser not to complete, and that the appointment was such a fraud : but inasmuch as the notice alleged no facts, and gave no information not apparent on the abstract, and was not followed up by any proceedings, the Court considered that the title was not open to any sufficient doubt, and forced it on the purchaser. In an earlier case, where there were somewhat similar grounds for suspecting the lona fides of an appointment. Lord Eldon pursued the same course, and enforced specific performance.^ § 894. In another case, the purchaser showed that ^i^-^mder the title was made under a sale by newly appointed trustees to a person who had previously bought the interest of the tenant for life, and who eighteen months afterwards made a profit on his purchase : but the Court held these circumstances immaterial.* § 895. Again, a purchaser is not entitled in the Title absence of circumstances of suspicion to refuse a title ™ ^'^'^^ ' made under a will, because the will has not been proved against the heir or he does not join:^ so that where, ' CaUdl Y. Corrall, 4 Y. & 0. Ex. Bq. 5. 228. * Alexander v. Mills, L. E. 6 Ch. 2 2 Beav. 71. 124. =* M'Queen v. Farquhar, 11 Ves. ^ Colton v. Wilson, 3 P. Wms. 467. See also Grove v. Bastard, 2 190 ; per Lord Bldon in Morrison t. Ph. 619; S. C. IDeG.M. &G. 69; Arnold, 19 Ves. 670; Weddall v. and Ee Huish's Charity, L. E, 10 Nixon, 17 Beav. 160. 392 OF THE DEFENCES TO THE ACTION. Costs. Bringing' in adverse claimant. Proof of perform- ance of covenants. during a litigation of thirteen years, no question had been raised impeaching the validity of the will, and a person who had claimed under another will had with- drawn from all contention against the one first men- tioned, Lord Hatherley (then Wood V.C.) compelled the purchaser to take a title under the will.^ § 896, Where the Court comes to the conclusion that a good title can be made it generally orders the purchaser to pay the costs of the litigation, so as to assure his title and show that the Court entertains no doubt upon it.^ § 897. Modern legislation affords machinery under which, in some cases at least, the person making an adverse claim may be brought into the litigation, and that, which in his absence might have remained doubtful, may receive judicial determination.^ It seems worthy of consideration whether this principle could not be further extended. § 898. In connection with the topic of title, it may be noticed that where there is an open contract for the sale and purchase of leasehold property, the purchaser is entitled (subject to the statutory pro- vision about to be mentioned) to proof of due perform- ance of all the covenants in the lease up to the date for completion. Section 3 (4) of the Conveyancing and Law of Property Act, 1881, requires him, on pro- duction of the receipt for the last payment due for rent under the lease before the date of actual com- pletion of the purchase, to assume such performance "unless the contrary appears." This leaves it open to the purchaser to show the contrary ; and, by doing so, he may, it is conceived, establish a good defence to an action for specific performance.* ^ M'Gulloch V. Gregory, 3 K. & J. 12. ^ Per Jessel M.E. in Oslorne to BoideU, 13 Ch. D. at p. 798 ; cf . Micholls Y. Corhett, 34 Beav. at pp. 381, 382; Hood v. Lord Harrington, L. E. 6 Eq. at p. 224; Woods v. Hyde, 10 W. E. at p. 340; In re Tanqueray-Willaume and Lcmdau, 20 Oh. D. 465. In Radford v. WilliB (L. E. 7 Oh. 7, 11) the pur- chaser was " exoTised " from paying costs. ' See the provisions of the Land Transfer Act, 1873, ss. 93, 94, stated infra, § 1142. * See Re Highett and Bird's Con- tract, [1902] 2 Oh. 214; 71 L. J, OF THE WANT OF A GOOD TITLE. 393 § 899. In a case where parties stated facts in the Special form of a special case, and required the opinion of the ^^^^' Court whether on these facts a good title was shown, the Court declined to consider the question of the title being doubtful : it confined itself to the question asked, whether or no a good title was shown.* Ch. 508; afid. 0. A. [1903] W. N. 6 ; 38 L. J. Not. Oas. 33 ; also s. 3 (11) of the Conveyancing, &o. Act, 1881, and Palmer v. Green, 25 L. J. Ch.. at p. 842 ; lie Higgins and Per- cival, 57 L. J. Oh. at p. 808; 59 L. T. 213, 1 Governors for Belief of Poor Widows of Clergymen, dec. v. Sutton, 27 Beav. 651, a case under Sir Geo. Turner's Act (13 & 14 Vict. c. 35), ss. 2, 18. That Act has been re- pealed (by 46 & 47 Vict. c. 49), but a similar procedure has been substi- tuted by E. S. C. Ord. XXXIV. r. 8. 394 CHAPTER XIX. OF FAILURE OF THE CONSIDERATION. Events § 900. It wiU be necessary to inquire under what affecting circumstances events which either determine the exist- Bubject- ence of the subject-matter of the contract or essentially matter. afFect it will furnish a defence in specitic performance. Events affecting the subject-matter, but not essentially, may give rise to a claim for compensation, but will not prevent performance of the contract. i. Events prior to the contract. Operation § 901. Evouts may happen before the conclusion even™.'^ of a contract which may either (1) determine the existence of its subject-matter, or (2) materially affect such subject-matter. The former class of events do not, properly speaking, avoid the contract, but prevent its ever arising, on the ground of the common mistake : the latter class of events give the party injuriously affected a right to avoid the contract.^ mtehcocTi § 902. In one case, the contract was for the sale \tf' of an estate in fee in remainder on an estate tail : a conveyance had been executed and a bond given for payment of the purchase-money, when it was dis- covered, for the first time, that at the time of the sale no such remainder existed, the tenant in tail having previously suffered a recovery : the Court rescinded the contract, and ordered the bond to be delivered up and repayment to be made of all interest which had been paid on it.^ ' Consider PrticAaj-d V. ilfercAajiis' N. S. 622. (fee. Life, Assurance Society, 3 0. B. * HitchcoclcY. Qiddinga,4'Pn, 135, OF FAILUEE OF THE CONSIDEKATION. 395 § 903. In another case, wtere, in order to preserve Cochrane the timber on an entailed estate from being cut down ^" by the assignee in the insolvency of a tenant for life, the owner of the next life-estate and the tenant in tail contracted with the assignee that he should be deemed to be entitled to the timber as if it had been cut down and carried away by him on a specified day prior to the contract, but should not actually cut it before an- other specified day ; and at the time when this contract was made, the insolvent was dead, but no party to the contract was aware of that fact : the Court of Appeal declined, on the grounds of mistake and absence of consideration, to enforce the contract.^ § 904. Again, where a contract for the sale and Emmr- purchase of shares in a company was entered into at a *"" * '"^"' time when in fact, though neither vendors nor pur- chaser knew it, a petition for winding up the company had been presented, , the Court of Appeal refused to enforce the contract.^ § 905. A contract relating to a chattel implies, at Destruo- Common Law, the existence of the chattel and its subject- existence in the form or of the description sj)ecified in matter of the contract, and consequently an event destroying the chattel before the contract is concluded puts an end to it. Therefore, where a contract for the sale of a life annuity was concluded in England on the 28th of February, and the annuitant died in New South Wales on the 6th of the same month, there was held to be no contract:^ and where a floating cargo was sold, and it subsequently appeared that at the time of the sale the captain had sold the cargo abroad, in consequence of the damage it had sustained at sea, the Exchequer Chamber and the House of Lords held the contract to be incapable of being enforced.* But no warranty being implied at Common Law as to condition, the sale of a ship at sea, which at the time happened to ' Cochrane v. Willis, L. E. 1 Ch. ^ Strickland v. Turner, 1 Exch. gg_ 208; ol. Cochrane v. Willis, L. E. 1 Ch. 58. 2 JSmmerson^s case, L. E. 1 Ch. , Coictimer v. Eastie, 8 Ex. 40; 433, reversing the order of Lord reversed in Cam. Scac. 8 Ex. 102 ; Eomilly M.E., L. E. 2 Eq. 231. the reversal affirmed 5 H. L. 0. 673. 396 OF THE DEFENCES TO THE ACTION. have been stranded, was held binding, for the subject of the contract still continued a ship.^ The impossi- bility of performing a contract of which the subject- matter is extinct would of course prevent the inter- ference of a Court of Equity in these cases, if on other grounds it could give relief.^ The ques- § 906. But a porsou may so contract as to preclude eluded by himself f rom raising any question as to the existence contract, q^ determination of the subject-matter at the time of the contract.^ When is § 907. The question of the time at which the con- tract°com- tract becamo complete frequently arose in cases of piete? sales by the Court of Chancery, because until the report had been confirmed absolute, or, according to the subsequent practice, until eight days after the certificate of the purchase had been signed by the Judge in Chambers, the biddings might be re-opened.* In these cases, the question was whether the contract was to be treated as concluded by the sale before the Master or the Chief Clerk, subject only to being de- feated by the opening of the biddings, in which case the confirmation related back to the day of sale, and that day divided events prior and events subsequent to the contract; or, on the other hand, whether the contract was to be considered concluded only when it became absolute and indefeasible by the confirmation. In the case of Vesey v. Elwood,^ Lord St. Leonards decided on the former of these views, that the sale transferred the property, subject only to the risk of its being opened. This was the view of Lord Eldon also, in Anson v. Towgood^ though it seems at variance with the previous cases ^ before him. The other view was supported by the statement of Lord Langdalo M.R. : — "by the established rule of the Court, the purchaser is to be considered as the owner of the estate ' Ban V. Qihion, 3 M. & W. 390. » See infra, §§ 990, 991. 3 Hanks v. Fulling, 25 L. J. Q. B. 375 ; S. C. (s. n. Hanks v. Palling) 4 W. E. 607. Of. infra, §§ 1323, 1324. 4 15 & 16 Vict. 0. 80, s. 34. 5 3 Dr. & War. 74. 6 IJ. & W. 637. ' Ex parte Minor, 11 Ves. 559 (wMch. may perliaps be supported by the general power of the Court in dealing with such contracts) ; Twigg v. Fifield, 13 Ves. 517. OF FAILURE OF THE CONSIDERATION. 397 from the date of the order confirming the report : but as the circumstance which in this case gave rise to the question was not only after the sale but after the confirmation also, the case is probably not of the same weight on the point now u.nder discussion, as if the circumstance had been after sale but before confirma- tion. § 908. But the former practice of opening biddings ^'^^^ °^ has now been discontinued by statute, and it has been Auction enacted that the highest bond fide bidder at the sale, ^'''^' i^^''' provided he shall have bid a sum equal to or higher than the reserved price (if any), shall be declared and allowed the purchaser, unless the Court or Judge shall, on the ground of fraud or improper conduct in the management of the sale, upon the application of a person interested in the land (such application to be made to the Court or Judge before the Chief Clerk's certificate of the result of the sale shall have become binding), either open the biddings, holding such bidder bound by his bidding, or discharge him from being the purchaser.^ Under tliis enactment it seems clear that the purchase is complete when the sale at or above the reserve price, if any, has taken place.^- ii. Events subsequent to the contract. § 909. Events subsequent to the contract will, in Some- some cases, furnish a defence to an action for specific aXnce. performance : in other cases they will not. § 910. Where from the nature of the contract it wtere appears that the contracting parties contemplated its subject to fulfilment only in the event of the continued existence '^^ ^?}^^^ t • ii* ji i-111 oondition. of some subject-matter or tmng, the contract is held to be subject to an implied condition that it shall cease with the subject-matter or thing; and if, before per- formance, the thing cease to exist, the contract goes with it. 4 1 Robertson v. SJceUon, 12 Bear. ^ Of. Newman v. Sook, 16 Oh. D. 561 260, 265: cf. Paramore v. Green- ' n o ly i. ,^ a ' ' * Taylor v. Caldwell, 3 Best & S. slade, 1 Sm. & G. 541. ggg . ^otweZZ v. €oupland, 1 Q. B. D. 2 30 & 31 Yict. c. 48, s. 7. 258. 398 OF THE DEFENCES TO THE ACTIOTST. Contracts § QH. Ill the casG of contracts for the sale of land, land. it has been laid down with regard to events happening after their being signed, that the question on whom the advantage or loss resulting from them would fall, and whether, therefore, the Court would enforce specific performance without reference to them — or whether, on the other hand, they might determine the contract — is to be decided by whether or not the title had then been actually accepted.^ But the more correct doctrine appears to be that the equitable estate passes on the signature of the contract if there be a good title, though that may not be shown till after- wards. "It is," said Plumer V.C, "the established doctrine of Equity, that if a contract to purchase is to be completed at a given period, and the title is finally made out, the parties continuing in treaty, and the purchaser not by any acts released from his bargain, the estate is considered as belonging to the purchaser from the date of the contract, and the money from that time as belonging to the vendor." ^ A con- § 912. Where the contract is in its inception ex- not per- prcssly Conditional, the transfer of the equitable estate formed, from the vendor to the purchaser takes place not on the conclusion of the contract, but on its becoming absolute by the performance of the condition, and until that event the property sold remains at the risk Counter v. of the vcudor. This is well illustrated by a case which was decided by the Judicial Committee of the Privy Council, on appeal from the Court of Chancery in Canada. A contract was entered into for a lease for five years, from the 1st of April, 1840, the landlord undertaking to erect by that time a new warehouse on part of the ground to be demised, and to put the old warehouse in repair, the amount of rent to be deter- mined with reference to the amount expended on the buildings. The new building was not completed, nor the old warehouse repaired, on the 1st of April, but no objection was made by the intended lessees, who then continued to occupy part of the premises under a ' Wymll V. BiB-ho^ of Exeter, 1 , Jn Earford y. Furrier, 1 Mad. Pri. 292, 295, n. ; and see Pawe V. MelIer,6Ye,.U9. ^^^- See too m/m, § 1392. MacpheT' son. OF FAILURE OF THE CONSIDEItATION. 399 former contract. Shortly afterwards, the whole pre- mises were destroyed by fire. The landlord brought a bill for specific performance of the contract, and for the defendants to rebuild the premises and accept a lease. It was held, in the first place, that if time were of the essence, it had been waived by the defendants, but that this did not waive the obligation on the lessor as to building, and that the defendants were not bound to accept a lease till that was performed ; and, in the second place, that, treating the contract to take a lease as a contract to purchase, the warehouse was never purchased by the lessees until it was completed by the lessor ; and, consequently, that until that was done it was not the property of the lessees, nor at their risk.' § 913. In the case of a contract legal at the time Subse- it was entered into, but subsequently and before judg- ywaiity. ment rendered illegal by statute, it seems to be clear on principle that no specific performance could be granted except where the Court could still execute the contract cy pres:"^ a contract thus rendered illegal would in the contemplation of the Court have become impos- sible.* § 914. But when the contract has been completely Events made, the thing sold is at the risk of the purchaser, quent'to who must bear all subsequent losses, and is entitled to the con- all subsequent gains : * subsequent events, therefore, beoomino- can neither determine the contract nor give either absolute. party a right to resist its performance.'' § 916. Formerly this principle does not appear to Tbe prin- have been as clearly recognized as it is now : thus, meriy mi where a great subsequent advantage accrued to one oieariy .re- party, Lord Hardwicke seems to have doubted how ''°^^^^ ■ far the Court would decree performance on the original terms of the contract.^ And where A. contracted to ' Counter v. Macpherson, 5 Moo. v. Briscoe, 8 Mod, 51, and supra, P. 0. 0. 83. § 477. « See infra, § 1001. ' Instit. 1. iii. tit. 24, sec. 3; Pothier, Tr. du Oontrat de Vente, ^ Atkinson v. Ritchie, 10 East, Part IV. 530, 534 ; Barter v. Hodgson, 3 M. ^ Per Lord Maimers in Eevell v. & S. 267; Esposito v. Bowden, 4 El. Husaey, 2 Ball & B. 287. & Bl. 963. See also Winnington " Davy v. Barler, 2 Atk. 489." 400 OF THE DEFENCES TO THE ACTION. sell his estate for an annuity during his life, the time appointed for conveyance was the 31st of October, but the annuity was to commence from the 5 th of April previous, and to be paid half-yearly : the half-year's payment, due on the 5th of October, was not paid or tendered, and on the 12th of November A. died from an accident : Lord Bathurst and the House of Lords dismissed a bill for specific performance.* Lord St. Leonards^, attributes this decision to the neglect to make or tender the payment; but it does not seem clear that the case was not considered by the Judges who decided it as one of inadequate consideration, and treated as a case of hardship. ™r*of § 916. The principle as now established is illus- the prin- tratcd by numerous cases. Thus, where money was Tif J^! left to be laid out in land to be settled to the use of A. bKshed. m tail, remainder to B. m fee, and A. and B. agreed to divide the money, and before the contract had been carried into execution A. died without issue, the con- tract was nevertheless specifically performed.^ So a contract to sell for an annuity will not be avoided by the death of the annuitant, even before any payment.* So where, subsequently to the contract for the sale of a house, the house is burnt down, the loss falls on the purchaser : ^ and in such an event the purchaser will not, in the absence of any provision in the contract, be entitled to the benefit of an existing insurance against fire effected by the vendor.® And again, where a trader agreed to take two persons into partnership for a period of eighteen years, in consideration of a sum to be paid by instalments, and before they were all paid he became See also Stent v. Bailis, 2 P. "Wms. earthquake ■wHch. destroyed the 217. houses appears to haye taken place ' Pope V. Roots, 1 Bro. P. C. 370. after the contract had been carried 2 Vp d 244 ^^^'^ effect. See Eaithby's note on ^ Carter v. Carter, Forrest, 271. the case, and 1 Bro. 0. 0. 156, n. i ,r .. r, .-D r, r, ^ "P""^" V- Adams, 12 W. E. 683 ; 4 Mortzmer v. Capper, iBro. 0. 0. ^^^^^^ ^_ j,^^^^^^^ ^^ ^^^ ^^^ 2^^^ 156; Jaclcson y. Lever, 3 Bro. 0. 0. ^^^^^^ ^ q_ ^_ ^g ^^^ j^ ^ . ^j_ 605 Edwards v. West, 7 Oh. D. 858, and « Paine Y. Meller, 6 Ves. 349. In distinguish Reynard v. Arnold, L. E. Cass V. RvddU, 2 Vem. 280, the 10 Oh. 386. OF FAILUEE OF THE CONSIDERATION. 401 a bankrupt, the assignees were held entitled to the remaining instalments.^ § 917. Another class of cases which have illus- Failure or trated the same principle has arisen from the failure or „ ™of'cfm- winding-up of a company after a contract has been pany. entered into for the purchase of shares in it but before the contract has been completed. Such an event fur- nishes no defence to an action for specific performance of the contract to buy the shares.^ § 918. Where a contract, capable of being specifi- Extinction cally executed at the time of the issuing of the writ, has matter bV by lapse of time between that and the trial become i?p^'^ °^ incapable of execution in the ordinary way, so as to issue of confer future benefits, the question arises, what course ^^ll^l^^ ought to be pursued. This question came before Plumer trial. M.R. in NesMtt v. i¥ey(??',^ where a bill was filed before the term expired for a specific performance of a contract to accept a lease, but, without fault on either side, the term expired before the hearing. The ca.se was decided upon another point, but the Judge evidently inclined to the opinion, that the Court would not decree the execution of a formal lease after the expiration of the term. In accordance with this view, Lord Cranworth expressed the opinion that it would require very special circumstances indeed to induce the Court to decree specific performance of a lease after the expiration of the term.* "What the Court," said his Lordship,'' "really would be decreeing in such case would not be the specific performance of an agreement for a lease, but merely that the lessee should make himself a specialty debtor in respect of past benefits received." 1 Akliurst v. Jachson, 1 Sw. 85. El. 888. See also per Lord Eldon in Goles v. ^ 1 Sw. 223. Trecothick, 9 Ves. 246. * WcdtersY. Northern Coalilining - Paine v. Hutchinson, L. E. 3 Eq. Co., 5 De G. M. & G. 629. 257 ; 3 Oil. 388 ; Coles v. Bristoive, ^ 5 De G. M. & G. at p. 639. See L. E. 6 Eq. 149, 159 (reversed on a also Hoyle v. Livesey, 1 Mer. 381, different ground, L. E. 4 Ch. 3); and De i(rassac v. Ifar/yH, 11 W. B. Hmuhins v. Malthy, L. E. 4 Eq. 1020, wliere the Court intimated 572 ; 3 Oh. 188 ; 6 Bq. 505 ; 4 Oh. that the plaintiff's proper course 200 ; Chapman v. Shepherd, L. E. 2 -would have been to apply to have 0. P. 228 ; Taylor v. Stray, 2 0. B. the case advanced so as to be heard N. S. 175 ; Stray v. Russell, 1 El. & before the expiration of the term, F. D D 402 OF THE DEFENCES TO THE ACTION. It is, however, to be remarked, that the circumstances of the case before Plumer M.R. and before his Lordship were different, inasmuch as in the former the delay seems to have been entirely due to the Court ; whereas in the latter no steps were taken until just before the expiration of the term, so that it was impossible for the plaintiff to obtain a decree until the term was at an end/ Opmionof § 919. On the other hand, the opinion of Alder- ■p '^'^^°^ son B. was somewhat at variance with the doctrine above stated. " The moment the bill is filed," said his Lordship,^ "the rights of the parties remain fixed, or ought so to do. I cannot accede to the doctrine in Nesbitt V. Meyer^ How can the constitution of the Court alter the rights of the parties ? " The decision in the case in the Exchequer seems, however, recon- cileable with those before stated ; for the prayer of the bill was for the specific performance of a contract for a lease, and for an account of arrears of rent on the footing of the contract, and it was held that although by the expiration of the term before the hearing the specific performance could not be granted, yet that the plaintiff was entitled to a decree for an account. V. § 920. And similarly, in a previous case, Leach V.C. held that a bill might be maintained by a pur- chaser for the specific performance of a contract for a life annuity, although the annuitant had died not only before the hearing, but before the bill was filed, where there were arrears of the annuity between the time of tlie purchase and the death of the annuitant, to which the purchaser had an equitable title under the contract : but his Honour said that it might be a question whether such a bill could be maintained if the death of the annuitant were to happen so that the purchaser took no benefit under his contract, as might happen where his title was to commence at a future time.* 1 Of. Anon.-^. White, 3 Sw. 108, u., quantum damnificavit. where, before tiie lease contracted ' Wilkinson y. Torkingion, 2 T. for was executed, events rendered & 0. Ex. 726, 728. the intended subject-matter of the ^ 1 Sw. 223. lease useless to the intended lessee ; * Kenney v. Wexham, 6 Mad. 355. and the Court directed only a See Strickland v. Turner, 7 Ex. 208. Wexham. OF FAILURE OF THE CONSIDERATION. 403 § 921. These cases perhaps left the exact state of The point the law on this point somewhat difficiilt to state. But important. now that both legal and equitable remedies may be obtained iu one proceeding, and every prudent plaintiff will ask for both, the point appears of little practical importance. DD 2 404 CHAPTER XX. OF DEFAULT ON THE PAET OF THE PLAINTIFF. Plaintiff § 922. "With regard to the matters to be done by peMonn-^ the plaintiff according to the terms of the contract, it anceand is, from obvioTis principles of justice, incumbent on neVto' him, when he seeks the performance of the contract, perform, -jq g^ow, first, tliat he has performed or been ready and willing to perform, the terms of the contract on his part to be then performed ; ^ and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done ; and a default on his part in either of these respects furnishes a ground upon which the action may be resisted.^ We will first consider cases of default in respect of terms of the contract which ought to have been already performed. I. The performance of fast acts. Of what § 923. Of what terms must the plaintiff show pil'i^tiff the performance ? The answer is that he must show must show performance of — per orm- ^.^^ ^^ Conditions precedent, (ii.) The express and essential terms of the con- tract, (iii.) Its implied and essential terms, and (iv.) All representations made at the time of the contract on the faith of which it was entered into : ' 2 Eq. Gas. Abr. 33. See also tlie jr. q]i. jj. 43. language of Lord Hardwioke and Gilbert C.B., cited infra, §§ 945, " ^^^ ''■»/'•«' § ^^S; Walker 946; and cf. GUllis y. McGhee, 13 -^e/rei/s, 1 Ha. 341. ance. OF DEFAULT ON THE PART OF THE PLAINTIFF. 405 but that he need not show performance of Of what (v.) Non-essential terms, (vi.) The terms of a collateral contract, or (vii.) Terms of which the defendant has prevented or waived the performance. Lastly, it will be necessary to consider (viii.) Terms, the performance of which has become impossible without the plaintiff's fault or default. § 924. (i.) As to conditions precedent, the plaintiff i-. Condi- must of course show their performance, and he cannot oedenr^' obtain a decree for specific performance upon an undertaking that he will perform them.^ As the non- performance of a condition precedent is only in some cases the default of the plaintiff, the subject of conditions is considered in a subsequent chapter.^ § 925. (ii.) As to the express terms nothing more ii- Express need now be said. The only important point will be ^^"^' considered when we come to the difference between essential and non-essential terms. § 926. (iii.) The performance must extend to such m. im- of the itnplied terms as are essential. Thus where an ^l^^ intended lessor agreed to finish a house for an intended lessee, who was to do the repairs during the intended term, the Court held that in such a contract was implied an undertaking to deliver it in complete tenantable repair proper for houses of the character demised : and this undertaking not having been, in the judgment of the Court, performed, the intended lessor's bill for specific performance was dismissed with costs.^ The case might probably have been determined as one rather of construction than of the implication of terms, i.e., that to finish a house means to finish so that the house shall be in proper repair. § 927. (iv.) Performance must be shown of repre- iv. Eepre- sentations of future acts made at the time of the If^i^l^l^ contract on the faith of which the contract was entered acts. ' Williams v. Brisco, 22 Ch. D. ^ Tildesley v. Clarkson, 30 Beav. - 419; cf. OxfordY. Provand,'L.'R.2 P. C. at p. 156. Distinguish Ghap- 2 Part III. chap. xxii. p^ll v. Gregory, 34 Beav. 250* 406 OF THE DEFENCES TO THE ACTION. into. These representations* need not amount to a guarantee, nor in case of non-performance give a right to an action either for damages or for cancellation of the contract : but yet, if made and not performed, they are a defence to an action for specific performance.^ Instances. § 928. Thus wherc a vendor at a sale represented that he would make improvements in the access to the property sold, and failed to do so, the Court refused specifically to perform his contract ; * and the same was the decision of the Coui't in a case where the vendor by his agent represented that a church should be erected in the immediate neighbourhood of the building ground which was the subject of the contract, and that he would complete certain streets, and the purchase was made on the faith of these representa- tions, which the plaintifE however never carried into effect." Plans. § 929. We may here briefly inquire into how far maps or plans of the property, exhibited by the vendor at the time of entering into the contract, form repre- sentations of the kind we are now considering.^ Contract § 930. Where the parties have matured their to piau.^ agreement into a contract, and that contract is silent on the subject of such map or plan, the Court will not from such exhibition infer a contract.'' This applies alike to private contracts and to special Acts of Parliament, so that notices given, and plans and sections deposited, are not to be used in construing an Act afterwards, except so far as they are referred to, and thus incorporated in the Act of Parliament itself.'^ ' As to what representations -will Oihson, 2 Do-w, 301 ; Squire v. in Equity be considered as part of Campbell, 1 My. & Or.' 459. Cf. the contract, see supra, § 312 et seq. and distinguish. Ne^ie Valley Drain- * Lamare v. Dixon, L. E. 6 H. L. age Commissioners v. Dunkley, 4 Ch. 414. D. 1, where the plan was held to be ' Beaumont v. Dukes, Jac. 422. incorporated with, though not re- * Myers v. Watson, 1 Sim. N. S. ferred to in, the contract. See, too, 523. Be Lindsay and Warder's Contract, ^ Cf. Olave T. Harding, 27 L. J. 72 L. T. 832, where a plan annexed Ex. 286, as to the effect of plans on to the particulars of sale was held (alleged) implied grants of ease- to form part of the contract, ments. '' North British Bailway Co. v. « Feoffees of Heriofs Hospital v. Tod, 12 01. & Ein. 722 ; Beardner OF DEFAULT ON THE PART OF THE PLAINTIFF. 407 But -where they are so referred to and incorporated, effect must be given to them according to the terms of the Act.^ § 931. Where the map thus exhibited delineates intended the intended division of the property by new roads, ^y roads the vendor may not afterwards divide the land in a shown on manner so different as to attract a population entirely ^ *"' different from that which would have been produced by the execution of the plan proposed by the map.^ § 932. But though the exhibition of a map may Exact per- bind to this extent, it will not oblige to an exact per- of^^eme formance of the scheme it embodies. Thus where a not obu- plan was referred to in the contract, and used as a ^'^^°^'^- description of the part of the property in question, and on this plan the measurement and width of the street were marked, but there was nothing in the contract which distinctly pointed out that part of the plan as binding the parties. Lord Langdale M.R. held that it did not form part of the contract, so as to entitle one party to relief against an encroachment on the width of the street.^ And so, if a vendor prepares a plan of a building estate, showing plots with houses marked on them, and a purchaser is shown that plan, or sees it, before contracting to purchase some of the plots, the purchaser is not entitled to assume, without any- thing more and without any inquiry, that the whole estate is governed by a building scheme that each plot shall be definitely and without variation built upon strictly in accordance with the indications on the plan.^ § 933. In another case the particulars referred Mamiaiiy. generally to an accompanying plan, and on the plan "^"^^" several roads were marked out so as to provide front- ages for all the lots, and the lines of roads were marked out on the land itself in accordance with the V. London and North Western Rail- 361. way Co., 1 Mac. & G. 112. 3 ^^^^^ ^_ ^^^^ Seymour, 13 Beav. 1 AU.-Gen. Y. Tewheslury and 254. Distinguish Rolerts r. Karr, Malvern Railway Co., 1 De G. J. & ^ ^^^^^_ 495. ^^^^^^ ^_ -^-jj.^,^^ S. 423 ; Little v. Newport, Aher- jj jj 7 Ex. 298. gavenny, and Hereford Railway Co., 12 0. B. 752. * Tuclcer v. Vowles, [1893] 1 Ch. 2 Peacock v. Penson, 11 Beay. 355, at p. 208. 408 OF THE DEFENCES TO THE ACTION. plan : Knight Bruce V.C. held that, in the absence of any clause in the particulars or conditions of sale pro- viding for any rights of way beyond a road leading into the nearest highway, such road was all that the purchaser was entitled to/ I'lan §934. Where the sale plan, instead of, as in the accurately "^. , • ^ • , ^ t t p , represent- prcvious CESOS, representing an intended and luture ing- pre- gtate of the property, accurately represents it in its of pro- actual and present state, it has been held that it will perty. j^q^ cariy the case higher than a view of the property. Therefore where a plan represented a well on lot 4 communicating with a reservoir on lot 2, and that communicating with the inn which was the lot 1 which the plaintiff purchased, and the vendor conveyed lots 2 and 4 without any reservation to the plaintiff of a right to a flow of water from the well, the plaintiff's demand for compensation for the loss of the water was refused.^ Lord St. Leonards, however, considered this case open to observation.^ v. Default § 935. (v.) In the averment of performance by of^anim- the plaintiff. Equity, as already stated, discriminates portaut between the essential and the non-essential terms of a contract ; and to furnish the defendant with a ground for resisting the action, the non-performance of the plaintiff must be of a term important and consider- able.* The Court of Chancery frequently interfered at the instance of a party who might have been debarred from relief at Common Law, because unable to allege performance in the very terms of the contract, which is by the Common Law essential.® Thus, for example, where A. contracted to sell property to B., . and by the same contract it was also stipulated that A. should continue tenant from year to year of the land, and it happened that from embarrassed circumstances he was unable to fill the tenancy, this was, from the ' IlaiidaU T. Hall, 4 De G. & Sm. 44 ; 10 "W. E. 24, afSi-ming S. 0. 29 343_ Beav. 641 ; Beeves v. The Greenwich term. 161 2 Feioster v. Turner, 11 L. J. Oh. ^'^'^""'^ ^°-' Limited, 2 H. & M. 54. ' Seeder Lord Eedesdale in 2)avi« J St. Leon. Vend. 20. y. i^g^e, 2 Set. & Lef . 347 ; supra, « Modlm T. Snowhall, 31 L. J. Ch. § 51. OF DEFAULT ON THE PART OF THE PLAINTIFF. 409 determinable nature of the holding, held to be a matter of no consideration, and so not a bar to specific per- formance of the contract for sale.^ And all the cases in which the Court grants a vendor asking for specific performance indulgence in the making out of his title, or allows him to enforce the contract with compensa- tion, are, of course, illustrative of the principle now before us. § 936. In a case before the Privy Council, the Oxford t. judgment may at first sight appear to go so far as to ^™™«'^- assert that no default of performance on the part of the plaintiff, short of that which goes to the whole consideration for the promise sued on, is available as a defence against specific performance.^ But probably such reading is incorrect, and the intention of their Lordships was to draw the distinction between essential and non-essential terms. § 937. (vi.) Where that, on the non-performance vi. Default of which by the plaintiff the defendant relies, is in its ^ coiiate- nature a collateral and separate contract, or is part of rai Con- or referable to such a contract, though between the '^^^^'^' same parties and entered into at the same time, and having relation to the same subject-matter as the con- tract which the plaintiff seeks to enforce, the Court will not consider the default by the plaintiff in respect of the one contract as any bar to the specific per- formance of the other, though such default may give the defendant a cross right of action on legal or equitable grounds.^ § 938. Thus where A. contracted with B., the instances. owner of a plot of land, to erect a villa on it, and to keep it insured in the joint names of A. and B. in the County Fire Office, and B. agreed as soon as the house should be completed, to grant a lease of the plot to A., and that if A. should not perform his part, the contract for the lease should be void ; and the contract also stipulated that A. should have the option of purchasing the fee within two years ; A. erected the villa, but insured in a wrong office, and in his own name alone, 1 Lord V. Stephens, 1 Y. & 0. Ex. 135; cf. Lamare v. Dixon, L. E. 6 222. H. L. 414. 2 Oxford v. Provand, L. E. 2 P. C. => PMpps v. Child, 3 Drew. 709. 410 OF THE DEFENCES TO THE ACTION. and then brought his bill for a sale under the option to purchase; and it was held by Lord Romilly M.R. that this option was independent of the right to a lease, and that notwithstanding the plaintiff's default in respect of the latter right, the former subsisted, and he accordingly decreed a specific pei'formance.^ Gibson y. § 939. So, whoro in a deed for the dissolution of ""' ■ partnership, one partner assigned to another certain foreign shares, and covenanted for further assurance ; and the other partner covenanted with the former for indemnity against certain liabilities : a further assur- ance of the shares became necessary, and on a bill filed to enforce specific performance of the covenant to that effect, it was held by Knight Bruce and Turner L.JJ., overruling Lord Romilly M.R., that a breach of the covenant to indemnify which the plaintiff had entered into with the defendant was no defence to the suit. The two covenants were inde- pendent, so that the performance of the one was not to be resisted by reason of the non-performance of the other.^ fOTmar' § 940. (vii.) A defendant who has waived the per- waived hj formauco by the plaintiff of what was on his part to be defendant, performed cannot, of course, use the non-performa,nce as a defence : but the burthen of proving this waiver of course rests on the plaintiff.* Non-per- § 941. Still more clearly, if possible, is non-per- thefaSit formance by the plaintiff excused when . that has dlnt^'^'^" I'ssulted from the neglect or default of the defendant.* So where the purchaser prevents the vendor from com- pleting his title, he will be compelled to forego an objection he may raise on the score of that incom- pleteness.^ ' Green v. Low, 22 Beav. 625. the tenant had made such default. Compare -Ba/e^J/ V. Schofield, [1897] See, too, supra, § 865. 1 Ch. 937, where, as it was not a ^ Gihson v. Goldsmid, 5 De G. M. condition precedent to the exercise & G. 757; reversing S. 0. 18 Beav. by the tenant of an option of pur- 584. chase given by a building agreement ^ Lamare v. Dixon, L. E. 6 H. L. that he should not have made any 414. default under that agreement, it ^ Hotham v. East India Co., 1 was held that the option had been T. E. 638. well exercised, notwithstanding that '^ Murrelly. Goodyear, IDeG, F. OF DEFAULT ON THE PART OF THE PLAINTIFF. 411 § 942, With regard to infancy, an infant heir infancy. cannot avail himself of his disability to excuse the non-assertion of his right under an executory contract made with his ancestor, when the immediate perform- ance of his part of the contract is essential to the interest of the other pai'ty ; as, for example, of a contract to lay out money in building within three years.^ § 943. (viii.) We shall now consider how far the vUi. im- impossibility of performing the plaintiff's part arising of per- ^ without any fault or default on his part furnishes an formanoe. excuse for non-performance. In those cases in which all that was to have been performed by the plaintiff has become entirely in- capable of being executed, the plaintiff cannot demand the pei'formance by the other party, because his non- performance is a total failure of the consideration which was to have moved from him. Btrt where the impossibility refers not to the sub- stantial, biit only to the exact and literal performance of the contract, the Court will struggle with matters of form in order to do complete justice between the parties ; but it will carefully avoid going so far as to make a new contract between them.^ Hence arise the cases on Compensation.^ § 944. As to the cases in which the plaintiff has Substan- performed a substantial part of his contract, and then per.^'^'^ the remaining part has become impossible by reason of formed, circumstances not dependent upon him and without his fault, a distinction has been drawn between those cases in which the plaintiff has not, by performing that part of the contract which he has performed, altered his position, and those cases in which he has so altered his position by his part performance ; Equity refusing to enforce performance of the contract by the other party in the former case, and enforcing it in the latter. § 945. This distinction rests almost entirely on the Gilbert's authority of Gilbert C.B. in a passage in his " Lex |^.^^,„^ quoted. & J. 432 (S. 0. before Stuart V.O., ^ Counter v. Macpherson, 5 Moo, 2 Gifl. 51). P. 0. C. 83, 108. ' Griffin Y. Griffin, 1 Sch. & Lef. ^ See infra, Part V. chap. ii. ; 352. also Norris y. Jackson, 3 Gifl. 396. 412 OF THE DEFENCES TO THE ACTION. Prsetoria,"' but lias been approved by subsequent writers,^ and seems worthy of attentive consideration. " Here," says his Lordship in the passage in question, " it is to be noted that the plaintiff that exhibited his bill upon the foot of performing the bargain on his part, ought to show that he has performed all that is to be done on his part, or is ready to do it ; for where any part (which he should have performed) is become impossible to be performed at the time of exhibiting his bill, then he can have no specific execution, because he cannot specifically execute on his own part : as in the case of my Lord Feversham, which was on a marriage agreement, whereby he contracted to settle the manor of Holmly on his wife and the heirs of tiieir bodies, and clear it of incumbrances, and settle a separate maintenance on his wife, and likewise sell some pensions in order to make a further provision for his wife and the issue of that marriage ; and Sir George Sandys, the father-in-law, agreed to settle 3,000/. per annum on the Lord Fevei-sham for life, remainder to the wife for life, and so to the issue of the marriage. Lord Feversham cleared the manor of Holmly, settled it accordingly, and settled the separate maintenance, but did not sell the pensions, nor settle the further provisions : the wife died without issue, and the Lord Feversham preferred his bill to have the 3,000/. per annum settled on him during his life : but decreed because Lord Feversham was in statu quo as to all that part of the agreement which he had performed, and having not performed the whole, and the other parts being now impossible, and no compensation being possible to be adjusted for it, he had no title in Equity to have performance of Sir George's part of the agree- ment, since such performance could not be mutual. But the issue of Lord Feversham might have been relieved, because in no default. Lord Feversham v. Watson, Kep. t. Finch, 445 ; 2 Freem. 35 ; Skin. 287." To make the foregoing statement perfectly clear, it should be added that, in the settlement made by the plaintiff, the reversion expectant on the default of issue 1 Pp. 240—242. ■^ 1 Fonbl. Eq. Book I. c. 6, s. 3 ; Story, Eq. Jux. s. 772. OF DEFAULT ON THE PART OF THE PLAINTIFF. 413 by his late wife was reserved to him in fee, so that the settlement had in the event operated nothing.* § 946. " But if," continues the Lord Chief Baron, where^ "a man has performed so much of his part of the rhanhave agreement as he is not in statu quo, and is in no defau.lt ^'^lief. for not performing the residue, then he shall have a specific execution from the other party of the agree- ment : as if a man has contracted for a portion with his wife, and has agreed to settle upon the wife and her issue, lands of such a value free from incum- brances, and he sells part of his land to disincumber, and is going on to disincumber and settle the rest : then if the wife dies without issue before the settle- ment be actually made, yet ho shall have a portion, because he cannot be in statu quo, having sold part of his lands, and there is no default in him, since he was going on to disincumber and settle the rest ; therefore the accident of the death of his wife doth not alter his right to his wife's portion. Meredith v. Wynne, Eq. Abr. 70, p. 15; Gilb. Eq. Rep. 70; Free. Ch. 312; 2 Vern. 448." § 947. To prevent error, it may be well to observe The rule that, as regards marriage contracts, the rule under con- app^y to sideration, as well as many other rules relating to the marriage • c f CI i 1 ; contracts. specinc periormance oi purely executory contracts, does not apply. " There is," said Lord Hardwicke, '■'■ a difference between agreements on marriage being carried into execution and other agreements ; for all agreements besides are considered as entire, and if either of the parties fail in performance of the agree- ment in part, it cannot be decreed in specie, but must be left to an action at Law: in marriage agreements it is otherwise, for though either the relations of the husband or wife should fail in the performance of their part, yet the children may compel a performance : if the mother's father, for instance, hath agreed tO give a portion, and the husband's father hath agreed to make a settlement, though the mother's father do not give the poi'tion, yet the children may compel a settle- ment, for non-performance on one part shall be no impediment to the children's receiving the full benefit ' 2 PoweU on Contracts, 22. 414 OF THE DEFEjSCES TO THE ACTION. of the settlement ; so if there be a failure on the part of the father's relations, it is the same."^ The distinctions in this respect as regards marriage contracts are numerous, but as they are not properly within the scope of this volume, they need not here be further noticed. Default in respect of acts to be done. Trustees in bank- ruptcy. Bank- ruptcy of plaintiff. II. The performance of future acts. § 948. We may now consider the obligation which lies on the plaintifE, in an action for specific perform- ance, of being ready and willing to perform all acts that on his part yet remain to be performed. § 949. On the ground of this obligation, trustees in bankruptcy are not able as plaintiffs to enforce a contract entered into by the bankrupt, which would have involved covenants on his part, unless they will personally enter into the covenants into which the bankrupt would have entered :^ whereas where specific performance is sought not by but against persons having a fiduciary interest only, they are only bound to covenant so as to bind the property and not them- selves personally.^ § 950. And so of bankruptcy : if the plaintifip be the vendor, the commission of an act of bankruptcy, though without proof of the existence of any debt to support a petition, is a bar to an action for specific performance, because the plaintiff may be incapable of conveying the estate, which may belong not to him, but to his trustee.* And, further, the commission by the vendor of an act of bankruptcy in the interval between the signing of the contract and the date for ' In Harvy v. Ashley, 3 Atk. 611. Cf. Lee V. Lee, 4 Oil. D. 175; Jeston V. Key, 19 W. E. 342, 864. " Ex parte Sutton, 2 Eose, 86 ; Willingham y. Joyce, 3 Ves. 168 ; Powell V. Lloyd, 2 Y. & J. 372 ; per Grant M.E. in WeatJierall v. Oeering, 12 Ves. 513. ^ Page T. Broom, 3 Bear. 836 ; Phillips Y. Everard, 5 Sim. 102 ; Stephens v. Hotham, 1 K. & J. 571; and see further, as to covenants by trustees, Worley v. Frampton, 5 Ha, 560 ; Onslow v. Lord Londeshorongh, 10 Ha. 67 ; Copper Mining Co. v. Beach, 13Beav. 478; Hodges Y.Bla- grave, 18 Beav. 404; Harey. Burges, 4 K. & J. 45. * Lowes y. Lush, 14 Ves. 547.' Cf. McNally y. Gradwell, 16 Ir. Ch. E. 512, 518. OF DEFAULT ON THE PART OF THE PLAINTIFF. 415 completion generally entitles the purchaser to refuse to complete, and to recover any deposit which he may have paid.^ If on the other hand the plaintiff Tdo the purchaser, he cannot enforce the contract, because he is incapable of so paying the money to the vendor, as that the vendor shall be certain of being able to retain it against the trustees.^ § 951. Bankruptcy does not of itself discharge a Dis- contract, either for the sale of an estate of inheritance by trustee or for a lease ; for, with regard to the latter, the trustee may covenant in the same manner as the bankrupt would have been bound to.* By the 146th section of the statute 12 & 13 Vict. c. 106, the vendors of lands might compel the assignees to elect whether they would abide by or decline an agreement for sale : * and now by the 5oth section of the Bankruptcy Act, 1883,® where any property of the bankrupt consists of un- profitable contracts, the trustee, notwithstanding he has endeavoured to sell, or has taken possession of such property, or exercised any act of ownership in relation thereto, may by writing signed by him, subject to certain provisions of that section, disclaim such property, and thereupon the liability is deter- mined as from the date of the disclaimer. Accordingly, specific performance cannot be enforced against a purchaser's trustee in bankruptcy without his consent.^ It may, however, be enforced against the trustee in bankruptcy of a vendor.'' § 953. The insolvency of the plaintiff is a ground insol- of defence : ® and to constitute this defence in the '^^^''^' ' Pmvell V. Marshall, ParJces & on the application of persons wlio Co., [1899] 1 Q,. B. 710. are, as agaiast the trustee, entitled 2 Franklin v. Lord Brownlow, 14 to the benefit or subject to the Ves. 550. burden of such contracts. 3 Brooke v. Hewitt, 3 Ves. 253. « Holloioay v. York, 25 W. E. * Of. Buckland v. Papillon, L. E. 627. 2 Ch. 67. ' Pearce v. Bastahle's Trustee in 5 This 55th section — ^which has Bankruptcy, [1901] 2 Ch. 122, been amended in some respects by where the subject-matter of sale sect. 13 of the Bankruptcy Act, was leasehold property, and the 1890 — also provides, by sub-sect. 6, trustee sought to disclaim the con- for the rescission by the Court of tract without disclaiming the lease, contracts made with the bankrupt, ^ Crosh'e v. Tooke, 1 My, & K, 416 OF THE DEFENCES TO THE ACTION. Subse- quent affluence. Insol- Tency after assign- ment of interest. Felony. Loss of deeds. case of a continuing contract as a lease, it is not necessary that the plaintiff should be proved to have given up all his property for the benefit of his creditors, but there must be proof of general insolvency, so as to show that the plaintiff is not in a situation to perform the covenants on his part.^ Thus Lord Eldon, remark- ing on the insolvency of an intended lessee as being an objection of more or less vs^eight depending on the circumstances, in the case then before him dissolved an injunction against an ejectment by the landlord.^ § 953. How far insolvency would be an objection, if the plaintiff had subsequently become affluent, does not appear to have been decided.^ § 954. Where the interest under a contract has been assigned, the insolvency of the original contractor, who is the assignor, is no defence, though that of the assignee would be.* § 955. On like grounds, the felony of a plaintiff would be a bar to specific performance.'' § 956. And the same principle is illustrated by a case where the deeds were destroyed. It was a suit by a vendor on an ordinary contract for sale of lands : in such a contract is implied, as an essential term on the part of the vendor, the proof of the due execution of the deeds which constitute his title, and the delivery up of them to the purchaser : the deeds having been subsequently destroyed by fire, the performance of this term by the plaintiff was rendered impossible, and the contract could not be specifically performed.'' 431 ; Price v. Assheton, 1 T. & 0. Ex. 441. ' Neale v. Mackenzie, 1 Ke. 474 ; Willingham t. Joyce, 3 Ves. 168 ; McNalhj V. Gradwdl, 16 Ir. Ch. E. 512, 519. 2 BucUand v. Hall, 8 Ves. 92. ' Price V. Assheton, 1 T. & 0. Ex. 82, 91 ; cf . Neale v. Mackenzie, 1 Ke. 474; McNally v. Gradwell, 16 Ir. Cli. E. 512, 519. * Croshie v. Tooke, 1 My. & K. 431. * Willingham v. Joyce, 3 Ves. 168. ° Bryant t. Busk, 4 Euss. 1 ; of. Moulton V. Edmonds, 1 De G. F. & J. 246, where the secondary evi- dence of the execution of the miss- ing deeds was held sufficient. 417 CHAPTER XXI. OF ACTS m CONTRAVENTION OF THE CONTRACT. § 967. In the last chapter we considered cases in Nature which the plaintiff had disentitled himself by default fJ^Ze. on his part : we shall now consider the closely allied cases where he has disentitled himself, not by default merely, but by acts in fraud or contravention of the contract, or at variance with it, or tending to its rescis- sion and the subversion of the relation established by it. For where the party to a contract who asks the intervention of the Court for its specific execution has been guilty of such conduct, that circumstance may be put forward as a defence to the action. Sometimes the facts may be evidence of a mutual agreement between the parties to rescind the contract : but even where not amounting to this, they may be sufficient to disentitle the plaintiff to ask for the intervention of the Court in specific performance. § 958. Still more plain is the case, if the acts be ^^ts such as would have worked a forfeiture of all benefit ^ouia of the contract if it had been executed ; it would be ^^™ idle for the Court to compel a grant of that which, if forfeiture. granted, would have been forfeited,^ — to create a legal relation which, if created, would be immediately dis- soluble.^ § 959. The cases by which this principle is most incases extensively illustrated are on contracts for leases, tract^for With regard to these, it is well established that where kases. a person, holding under an agreement, commits waste, treats the land in an unhusbandlike manner, or acts in ' See per Lord Eomilly M.E. in ^ Fer Turner V.O, in Gregory v. Lewis T. Bond, 18 Beav. at p. 87. Wilson, 9 Ha. 687. F. E E 418 OF THE DEFENCES TO THE ACTION. Waste. Tlie acta must he gross and "wilful. Lease ordered to bear date of contract. Cases under contracts for leases classified. breach of covenants which would be contained in the lease, and for which acts a right of re-entry would accrue to the landlord, such person cannot enforce a specific performance of the contract.^ The same has been held in respect of covenants to repair.^ § 960. It seems that even where the lease, when executed, would contain no proviso for re-entry, yet such acts, when amounting to a forfeiture, as for ex- ample, a gross case of waste, which is in all cases a forfeiture of the place wasted, would prevent a specific performance of the contract.'' § 961. In order that acts may thus be a bar to the plaintiff's relief, they must, it has been said, be gross and wilful.^ That expression seems to have been originally applied to cases in which the breaches would not work a forfeiture of the legal interest.® If appli- cable at all to cases where there would be a proviso for re-entry for breach, it seems to mean that the acts must be (1) such as would work a forfeitui'e at Com- mon Law, and (2) such as would not justify or permit relief against the forfeiture^ in a Court of Equity. § 962. Where the Court of Chancery found such a conflict of evidence as left it in doubt whether there had been such a breach of covenant as to render it proper and expedient to refuse specific performance on that ground, it took the course of directing the lease to bear the date of the contract, and leaving the par- ties to settle their legal rights at Law.'^ § 963. It follows from what has been said that three classes of cases fall to be considered as arising out of contracts for leases. (i.) Where the acts complained of have led to the refusal of relief : '■ Per Lord Bldon in ffill v. Bar- clay, 18 Yes. 63 ; Lewis v. Bond, 18 Beav. 85 ; Gregory v. Wilson, 9 Ha. 683. 2 Nunn V. TruacoU, 3 De G. & Sm. 304. ^ See per Lord Eldon in Dulce of Somerset t. Oourlay, 1 V. & B. 73. * Parlcer y. Taswell, 2 De G. & J. 559, 573. ^ ITare v. Surges, 5 W. E. 585. " For the statutory provisions now in force with, respect to relief against forfeiture of leases, see the Conveyancing, &c. Act, 1881 , s. 14, and the Conveyancing, &c. Act, 1892, ss. 2—5. ' BanM7i v. Lay, 2 De G. F. & J. 65. See infra, § 974 ef seq. OF ACTS IN CONTRAVENTION OF THE CONTRACT. 419 (ii.) Where they have not led to this refusal : and (iii.) Where the relief has been granted and the question of breach left for decision at Common Law. i. Where the acts complained of have led to refusal of specific performance. § 964. In Thompson v. Gmyon'^ a lease had been Thompson granted with a proviso for re-entry on breach of any ^' "^'"'' of the covenants, and a covenant to grant a further term at the end of the original term, if it should not have been sooner determined by the lessee's acts or defaults : the lessee paid all his rent, and continued in possession to the end of the term, but had in fact com- mitted breaches of covenant during the term, of which the lessor was not cognizant till after its determina- tion : a bill for specific performance of the covenant to renew was dismissed, and an injunction against an ejectment was refused, on the ground that the lessor ought not to be placed in a worse position at the expiration of the term than he would have been if he had known of the breach, and availed himself of it during the term. § 965. In Gregory v. Wilson'^ possession had been Gregory taken under a contract for a lease : breaches were '^" "'''™"- alleged of the covenants which should have beeh inserted in the lease to insure and also to repair : it was contended as to the first that the receipt of rent after knowledge was a waiver of all the breaches, but the Court held such waiver to have no longer operation at Law than on the breaches antecedent to the receipt, and not to preclude the effect of the subsequent breaches of the continuing covenant : as to the breaches of the covenant to repair, it was urged that they were neither wilful nor obstinate, and that accordingly they might be relieved against in Equity : but the Court held that as they were not attributable to mistake or accident and were persisted in, they were, in the con- templation of the Court, wilful and obstinate. The bill was accordingly dismissed. 1 5 Sim. 65. See also $er Lord Q. B. D. 294. Eslier M.E. in Bvmm v. Ayref., 21 ^9 Ha. 683. EE,2 420 OF THE DEFENCES TO THE ACTION. Zewis V. Bond. § 966. In another case the defendant was lessee under a restrictive covenant against carrying on a beershop : the plaintiff got a contract from the defen- dant for a sub-lease with knowledge of the defendant's title and of the covenant. The plaintiff entered under the contract and persisted in carrying on a beershop : his bill for specific performance was dismissed with costs.' Breacli trivial or waived. Breach not "work- ing abso- lute for- feiture. Walker v. Jeffreys. ii. Cases where relief has not been refused. § 967. There may be cases of breach of covenant for which merely nominal damages could be obtained, or there may be cases where a breach having been committed may have been waived : and in favour of such cases an exception may be made to the general rule that the plaintiff must prove performance of the contract on his part.^ On this principle, Jessel M.R. in the case of BesantY. Wood^ held that trifling breaches by a husband of the covenants on his part in a separation deed did not debar him from enforcing the deed. § 968. But as regards breaches of covenant under contracts for leases, it seems that the breach which the Court would neglect must be either such a breach as would not work a forfeiture at Common Law, or such that the legal forfeiture would be relieved against in a Court of Equity : for the Court will not relieve more readily whilst the whole thing rests in contract than it will after the legal relation has been actually created.^ The effect of the 14th section of the Con- veyancing Act of 1881, as amended by the Con- veyancing Act of 1892 (sects. 2 — 5), has been to enlarge the area of cases in respect of Avhich relief against forfeiture can be obtained. § 969. In one case a lessor of mines covenanted to grant a further term, and the lessee covenanted to work the mines : on a suit by the lessee for a specific performance of the covenant to grant a further term, it appeared that the lessee had not worked the mines ' Leiuis V. Bond, 18 Beav. 85. ^ Walker v. Jeffreys, 1 Ha. 341, 352. " 12 Ch. D. 605. * Gregory v. Wilson, 9 Ha. 683. OF ACTS IN CONTRAVENTION OF THE CONTRACT. -121 in consequence of their being drowned out : the Court, though it did not decide the point, inclined to think that this would be no bar to relief.^ § 970. The case of Parker v. TasweW may use- Farha-y. fully be consulted as the law bearing on this question """'' " was there much considered, but the Court came to the conclusion that according to the true construction of the contract there had been no breach of covenant. § 971. As regards all cases where the landlord is Where defendant and raises an objection on the ground of defendant breach of covenants which ought to be in the lease, if iias not the jjlaintiff shows that the landlord never complained pMned before action, the landlord must prove a strong case to '^^im^ flCtilOXl get the benefit of his objection.^ § 972. In Gordon v. Smart,'^ y^hexe a contract to GordonT. grant a building lease had been entered into, and the '^'"'"'' plaintifp, claiming under this contract, had erected a brewhouse on part of the ground, which, it was con- tended, would be an injury to the adjoining property of the lessor ; this was argued, but unsuccessfully, to be a reason for refusing specific performance. Leach V.C. saying that it was not necessarily a nuisance : he left open the question whether, if it had in itself been a nuisance, that would have been a defence in such a suit. § 973. It seems that under the Irish Tenantry Irish Acts, and perhaps even independently of them, the A.cts^"''^''' breach by the tenant of covenants in the lease will not be a bar to specific performance of a covenant for renewal.^ Certainly they will not so operate unless they be gross and perhaps also wilful.^ iii. Where specific performance tvas granted and the ques- tion of breach of covenants left for decision at Law. § 974. Where the Court of Chancery found such Practice Court of Chancery. a conflict of evidence as left it in doubt whether there court of 1 Walker v. Jeffreys, 1 Ha. 341. * 1 S. & S. 66. p n -n n * T —n ^ rrajii V. Dtwer, 2 Bli.N. S. 11. 2 2 De G. & J. oo9. c- mj. n ^ a- a- See Thompson v. (Juyon, 5 Sun.. 6o ; 3 Mundy v. JoIUffe, 5 My. & Or. supra, § 964. 167, 177. s Hare v. Biirges, 5 W. E. 585, 422 OF THE DEFENCES TO THE ACTION. Establist- meut of the prac- tice. Antici- pated practice under the Judica- ture Acts. had been sucli a breach of covenant as to render it proper and expedient to refuse specific performance on that ground, it took the course of directing the lease to bear the date of the contract, or a date anterior to the alleged breaches, and required from the plaintiff an undertaking to admit in any action which might be brought under such lease for the recovery of the demised property, or upon any breaches of covenant to be contained in such lease, that such lease was exe- cuted on the day on which it should bear date. § 975. This practice was first introduced by the case of Pain v. Coombs:^ it was followed by the Court of Appeal in Lillie v. Legh : ^ it was discussed, adopted, and approved in RanMn v. Lai/,^ and had thus become the well-established practice of the Court of Chancery. § 976. It would be presumptuous to inquire whether the Court did wisely in directing deeds to bear false dates,* or in requiring persons to admit as a fact that which was not a fact. But it may be allowable to rejoice in the expectation that, under the improved judicature now in existence, no such decrees as those last referred to will be made. The High Court will probably decide the whole case at once.^ other il- lustrations of the principle. iv. General principle further illustrated. § 977. Other cases have arisen which illustrate the general principle, in cases not arising out of con- tracts for leases. Where an estate was sold upon the condition, amongst others, that immediate possession should be given, and in the course of disputes which subse- quently arose about the title, the vendors tendered the 1 1 De G. & J. 34 (S. C. before Stuait Y.O. 3 Sm. & G. 449). ^ 3 De G. & J. 204. Of. Powell V. Lovegrove, 8 De G. M. & G. at p. 365. 3 2 De G. F. & J. 65. See, too, Poyntz V. Fortune, 27 Beav. 393; Browne y. Marquis of Sligo, 10 Ir. Oil. E. 1 ; Cartan v. Bury, id. 387. * The fraudulent making of a deed ■with a false date is, or may be, forgery. Beg. v. Bifson, L. E. 1 0. 0. E. 200. * In Ireland, however, the prac- tice was followed in a recent case. Mcllroy v. Traill, [1898] 1 I. E. 459, 460. OF ACTS IN CONTRAVENTION OF THE CONTRACT. 423 purchaser his deposit, demanded back possession, drove the purchaser's stock off the estate, and gave notice to the tenants not to pay their rent to him, — this was conduct inconsistent with the condition of the sale, and was held to operate as a bar to specific performance at the suit of the vendors.^ § 978. In another case it was thought by Lord maoieti Cran worth doubtful whether a bill could be maintained "^" ■^"''''" for the specific performance of an award after the plaintifE had taken proceedings to set it aside.^ § 979. Where a vendor had given notice of his Hoyouy. intention to resell under the contract, it was held that he had precluded himself from afterwards seeking for specific performance.^ § 980. Again, a railway company cannot first Railway enter into a contract for the purchase of land, then <=°™P^'^y- take proceedings under their compulsory powers in a way which assumes that there is no subsisting contract, and then fall back upon and seek to enforce the original contract.* § 981. Still it is not every breach of good faith smaii which will prove a bar. Where the plaintiff has been ^^''^qq^* guilty of small breaches of good faith, for which the faith. defendant had a remedy in his own hands, and where, if the interference of the Court were refused, the plaintiff would be without any adequate remedy, such breaches of good faith have been held not to be a bar to relief, though they may affect the costs .^ ' Knatehhull v. Grueber, 1 Mad. * Bedford and Cambridge Railway 153 ; S. 0. 3 Mer. 124. (7o. v. Stanley, 2 J. & H. 746. 2 Blachett v. Bates, L. E. 1 Ch. ^ „ , ^ ^ r, ^- t> -i ^,^ . o/inTTcnj- nfrn Holmes V. Eastem Uounties Mail- Ill, reversing S. 0. 2 H. & M. 270. ^ Boyou T. Paid, 28 L. J. Ch. wayOo.,3Jur.-N.&.1S1;ci.Besant 555. V. Wood, 12 Oh. D. 605. 424 CHAPTER XXII. OF THE NON-PERFORMANCE OF CONDITIONS. Contracts § 983. A CONTRACT may be originally conditional, performed ^^^ Contingent upon the performance of some act or untu abso- the happening of some event. Where that has occurred, " ^' the contract becomes absolute, and rests on the same footing for all purposes as if it had been originally made positively and vpithout reference to any con- tingency.^ But until it has thus become absolute, no person can be entitled to call for its performance, or to sue for its non-]3erformance.^ Where, therefore, the contract is in its origin conditional, it may afford a ground of defence that the condition has not been performed. Instances. § 983. A caso before Lord Romilly M.R. may be cited as an illustration of this obvious principle. The defendant agreed to take a lease of a public-house from the plaintiff, provided the retail licence were obtained, and the plaintiff agreed to use his utmost efforts to obtain this licence. The defendant entered into possession to qualify himself as a publican for the licence and obtained a licence from the justices, but under compulsion of the justices and threat of refusal, he gave to the justices a verbal jDromise that no excisable liquor should be sold for consumption on the premises. It was held that the condition was not per- formed and specific performance was refused.^ Again, ^ Per Lord Eomilly M.E. in Ahhofr. Blair, S'W.'R. 612; Douglas Regent's Canal Go. t. Ware, 23 Beav. v. Sidmouth Railway and Earlour 586. Co., 14 W. E. 361. '^ Scott Y. Corporation of Liverpool, ^ Modlen v. Snowball, 29 Beav. 1 Gie. 216; 3 DeG. & J. 334. Of. 641, affirmed 31 L. J. Oh. 44; 10 OF THE NON-PERFORMANCE OF CONDrJ'IOX.S. 425 in the case of a covenant to renew a lease it was held that the performance of the covenants to repair was a condition precedent, and the breach of them consti- tuted a defence.^ But where A. had agreed to pur- chase from B. the lease of a public-house on condition that a mortgagee of the lease would consent to accept A. as mortgagor in place of B., and the mortgagee at first refused, but afterwards before the date fixed for completion gave his consent, it was held that the con- dition had been duly fulfilled, and that A. was not justified in treating the contract as at an end, on the ground of the mortgagee's original refusal. In such a case, the condition is one which may, generally, be fulfilled at any time before completion.^ § 984. A contract may be conditional either by Condition express words of condition, or because the Court, upon ^pije^""^ a consideration of its terms, gathers that to have been the intention of the contracting parties. This is of course a question to be decided on the terms of each contract. It will, therefore, be sufiicient briefly to allude to two or three cases of practical moment. § 985. In a recent case there was a contract to grant a lease to a nominee of the plaintifit, or to a company which he intended to form : he had not formed the company : it was held that his naming a nominee and the acceptance of the lease by the nominee constituted a condition precedent for default of which he could not obtain judgment.^ § 986. In the case of contracts by railway com- Railway panics, the question has sometimes arisen how far they contracts. are conditional on the formation of the railway. In one case, where a company before incorporation con- tracted with a landowner, the contract provided for a bridge over the railway, a certain deviation of the line, and other works entirely dependent on its formation, and also for the payment of 4,500/. as purchase-money W. E. 24. Distinguish Tadcasier [1902] 1 I. E. 73. Tower Brewery Go. Y.Wihm,[l%9T\ ^ Baatin v. Bidwell, 18 Ch. D. 1 Oil. 703, -where the nature and 238. extent of the vendor's obligations ^ Smith v. Biiiler, [1900] 1 Q, B. under a contract for sale of a licensed 694, 699. public-house were discussed. See, ' Williams y. Brisco, 22 Ch. D, too, Ee Ward and Jordan's Contract, 441. 426 OP THE DEFENCES TO THE ACTION. for certain lands to be taken by the company, and for consequential damage to the landowner's estate. The contract was expressly conditional on the Act passing. It passed, but the railway was abandoned, and the time for taking the lands had expired. Nine-tenths of the contract, as Knight Bruce L.J. remarked, had become impracticable by reason of the abandonment of the railway: and the Lords Justices, though not deciding the point, evidently inclined to the opinion that the contract was conditional, not only on the pass- ing of the Act, but on the making of the railway.^ And in the subsequent case of Lord James Stuart v. London and North-Western Railivay Co., ^ Lord Cranworth L.J. expressed a similar opinion. These cases have been doubted,^ but rather on the point of jurisdiction than of the construction of the contracts : and they have certainly received great support from the case of Gage v. Newmarket Railway Co} There the company had covenanted with the plaintiff that, in the event of a Bill for extending their powers being passed in the then present session, the company should, before they should enter on any part of the plaintiff's land, pay him 4,900/. purchase-money for any portion of his land not exceeding forty-three acres, which the com- pany might require and take, and 7,100/. as landlord's compensation for damages arising by the severance thereof. It was held that the covenant was not for the payment of an absolute sum as a consideration for the plaintiff's withdrawing his opposition, but a pay- ment as purchase-money and compensation for sever- ance, which could not be due when no land was required or taken, and no severance effected for which compensation could arise. In the case of The Scottish North-Eastern Railway Co. v. Stewart^ the House of Lords arrived at a similar conclusion upon the con- tract there in question. ' Webh V. Direct London and ^ Hawkes v. Eastern Counties Bail- Portsmouth Eailway Co., IBeQ.M.. way Co., 1 De Q. M. & G. 737; & G. 521, reversing S. 0. 9 Ha. 129. S. 0. 5 H. L. 0. 331. " 1 De G. M. & G. 721. TMs case * 18 Q. B. 457. See also Edin- in the Court below is reported, 15 "burgh, Perth, and Dundee Railway Beav. 513. See also 5 H. L. 0, Co. v. Philip, 2 Macq. 514. 351. = 3 Macq. 382. OF THE NON-PEEFORMANCE OF CONDITIONS. 427 § 987. The performance of conditions precedent Waiver, may of course be waived by the persons entitled to their performance;^ but any waiver to be binding must be made intentionally and with a knowledge of the circumstances of the case.^ It may here be noticed that in Haulcsley v. Outram^ it was held by the Court of Appeal that the plaintiff (purchaser) might waive certain provisions of the con- tract which clearly were intended solely for his benefit, and thereupon might have specific performance of the rest of the contract. But in a subsequent case/ where the plaintiff (vendor) and the defendant (purchaser) had signed a memorandum of agreement for the sale and purchase of a leasehold property subject to the preparation by the vendor's solicitor and completion of a formal contract, it was held by Kekewich J. that the stipulation as to a formal contract was not neces- sarily for the benefit of the vendor alone, and accord- ingly could not be waived by him, 1 BeatsoriY. Nicholson, q:5vji:.Q2Q. ^ [1892] 3 Ch. 359, at pp. 376, 2 EarlofDarnleyy. London, Chat- 373. Of. supra, § 850. ham, and Dover Bailway Co., L. E. 2 H. L. 43 (S. 0. 1 De G. J. & S. * Lloijd v. Noivell, [1895] 2 Ch. 204 ; 3 ib. 24). 744. 428 CHAPTER XXIII. OF THE INCAPACITY OF THE DEFENDANT TO PERFORM HIS PART OF THE CONTRACT. Contract § 988. There are certain cases in whicli the con- tionai on tract is construed to be conditional on individual capa- capacity, city, Or On the continued existence of some state of facts or thing. " Contracts for personal service, for matters dependent on personal capacity, as to write a book or paint a picture, are conditional on the con- tinuance of the ability, mental or corporeal, to perform them."^ So again, where from the natui'e of the con- tract it appears that the parties contracted upon the footing of the existence at the time of performance of some particular specified thing, and there is no express or implied warranty that the thing shall exist, a con- dition is implied that the party to do the act shall be excused, in case before breach performance becomes impossible by the perishing of the specified thing with- out the default of the party. This principle has been applied to a contract to let a music hall, which was destroyed by fire before the day arrived ; ^ and to a contract to sell 200 tons of potatoes grown on par- ticular land.^ Such con- § 989. All these contracts, being conditional and nTtVe"*"' iiot positive, are not within the rule that, where there sued on. fg a positive contract to do a thing not illegal, the contractor must perform it or pay damages for not » Per Bramwell B. in Hall v. 826. Wright, El. B. & E. at p. 778; Pmis- ^ Howell v. Coupland, 1 Q. B. D. sard V. Spiers, 1 Q. B. D. 410, 414. 258. See also Appleby v. Myers, 2 Taylor Y. Caldwell, 3 B. & S. L. E. 2 0, P. 651. INCAPACITY OP DEFENDANT TO PERFORM CONTRACT, 429 doing it, though it has become impossible. On such contracts no action can be maintained, whether for damages or for specific performance. § 990. But in contracts positive and not condi- Where tional, the incapacity of the defendant to perform his of'defen/ part of the contract, whilst it furnishes no answer to ^^nt^a, an action for damages,^ affords a ground of defence against specific performance.^ This contention does not, like that in the case of conditional contracts, rest upon the nature or terms of the contracts, nor, like that grounded on the capacity of the plaintiff to per- form his part, rest upon any principle of justice that operates in favour of the defendant, but is based upon the necessity of the case arising out of the nature of the relief sought. § 991. Where a bill was filed against the provi- instances. sional committee of a projected railway company for the specific performance of a contract to deliver to the plaintiff a certain number of scrip certificates ; there being no allegation that the defendants had any scrip which they could deliver, but a statement from which the contrary might rather be inferred, a demurrer was allowed on the ground that the bill did not show any capacity in the defendants to perform the contract.^ So where a defendant showed that he had sold the property in question for a valuable consideration to a third party, no performance could be enforced : * and so again, assuming that a covenant to produce deeds can be obtained by way of specific performance of a covenant for further assurance, it seems that the Court will not attempt so to carry it into effect where the deeds are not in the proposed covenantor's power.^ So again a contract by directors to accept shares in payment of calls being legally impossible of perform- ance cannot be enforced.^ And where a charitable 1 Hall V. Wright, El. B. & E. 746 ; * Denton v. Stewart, 1 Cox, 258 ; Brown v. Royal Insurance Co., 1 El. 17 Ves. 276 n. & El. 853. ■> -r, -r 3-rT :3 ■ T ■ n ° Hallett T. Middldton, 1 Euss. 2 Per Lord Hardwicke m Oreen v- , „ Smith, 1 Atk. 573. '^'^^■ 3 Columbine v. Chichester, 2 Ph. * Mlis v. Oolman, 25 Beav. 662, 27 ; Ferguson v. Wilson, L. E. 2 Oh.. See also Seawell v. Webster, 29 L. J. 77. Ch. 71. 430 OF THE DEFENCES TO THE ACTION. corporation, which had no power of selling except under the Lands Clauses Act, contracted to sell land without having the price settled in the manner pre- scribed by the Act, the Court refused to decree specific performance.^ Lunacy. § 992. Again, luuacy supervening after the con- tract and before performance may prevent the lunatic from doing a personal act in performance of a contract, as e.g., entering into a covenant for quiet enjoyment:^ though under the Lunacy Act, 1890, the Court may vest in the plaintiff the property contracted to be sold by the lunatic.^ Defendant § 993. It is immaterial for this purpose that the Hso^°* defendant is the author of his own incapacity. " Put incapacity, the extreme case," said Kindersley V.C.,* " of a vendor burning a title-deed : the Court could not make a decree that he should deliver it up, and be imprisoned if he does not." Capacity § 994. It is not ncccssary to the specific perform- juaged°of^ 3'iice of a contract, that it should be one which the parties at the time of entering into it had the power of carrying into effect, nor one with regard to which it depends on themselves alone whether they would ever be able to perform it. For where a party enters into a contract without at the time having the power of performing it, and afterwards acquires that power, he is bound to perform the contract he entered into. Therefore a defendant cannot object at an early stage of an action for specific performance that he has not the interest he has contracted to sell, as he cannot be permitted to say that he did not mean to acquire that interest.^ And so where a defendant had contracted to give a certain indemnity to be secured on real estate, and alleged that he had not real estate of sufficient ' Wywmbe Railway Qo. v. Tton- * In Beawell v. Webster, 29 L. J. nwgton Hospital, L. E. 1 Oh. 268. Ch. at p. 73. See too Bridgend Gas and Water Co. ^ „, , ,^ , „ „^ „ V. Dunraven, 31 Oh. D. 219. Eolroydy. Marshall, 10 H. L. 0. » Coioper T. Sarmer, 57 L. J. Ch. H^' ^^} • ^"-'''^ ^- ^'^'^''^^' ^^ I-" J- 460. ^^' ^^^• " Be Pagani, [1892] 1 Oh. at ^ Per Lord Eldon in Browne v. 5 P' 238. Warnsr, 14 Yes. 412. INCAPACITY OF DEFENDANT TO PERFORM CONTRACT. 431 value, and contended that the plaintiff ought to accept a personal indemnity, it was held that he was bound to purchase real estate of sufficient value.^ § 995. The same principle is exemplified in a case lUustra- which was decided in the 34th year of Charles II. thTprin- During the civil wars, the then Duke of Newcastle had "pie. gone abroad, and whilst he was thus absent, the de- fendant, who was his heir apparent, without authority from the then Duke, sold and conveyed to the plaintiff certain estates of the Duke, and received the purchase- money, and applied it for the benefit of the family. The defendant having subsequently succeeded to the dukedom and the estates in question as heir, he was, by Lord Nottingham, held bound to make good his sale, and was decreed to do so accordingly.^ At the time of the contract, specific performance would have been impossible on the part of the defendant, but it had subsequently become possible by the devolution of the estate contracted to be sold. § 996. On the same principle, the Court will not AppU- in all cases consider as void, contracts, whether by to par- private persons or companies, Avhich require the inter- liament position of the legislature before they can be carried ^^'^^^^ into effect, and accordingly will in the meanwhile protect the property in issue.^ § 997. With regard to real estate, the statute 32 Estate Hen. VIII. c. 9 prevents the sale of a pretended right Vendor's. to land bv a person out of possession ; but if a person, instead of selling a pretended right, contracts on a certain future day to convey an estate, and he is on the day possessed of it, the contract appears not to be within th.e operation of the statute, and to be binding on both parties.* 1 Wallier v. Barnes, 3 Mad. 247. Oh. 23 ; 4 W. E. 783 (Wood V.O.) ; * Clayton v. Dul:e of Newcastle, 2 FredericJc v. Coxwell, 3 T. & J. 514. Oas. in Ch.. 112. As to contracts requiring proposed ' Oreat Western Railway Co. v. legislation to render them legal, see Birmingham and Oxford Junction Mayor of Norwicli v. Norfolk Rail- Railway Co., 2 Ph. 597 ; per Lord way Co., 4 El. & Bl. 397. St. Leonards in Hawhes y. Eastern * Be Medina v. Norman, 9 M. & Counties Railivay Co., 1 De G. M. & W. 820; and see fiirther as to this G. 756 ; Devenish v. Brown, 26 L. J. statute, supra, § 233. 432 OP THE DEFENCES TO THE ACTION. Groods not in Consent of third parties. § 998. And so also with regard to goods, the legality of contracts for the sale of such property not of vendor, g^^ ^jjg ^jj^-^g jjy ^jjg possession of the vendor is now well established ; ^ so that, notwithstanding an opposite deci- sion of Lord Macclesfield,^ such a contract would now probably be enforced, if in other respects it fell under the jurisdiction of the Court.^ § 999. As the consent of a third party is, or may be, a thing impossible to procure, a defendant who has entered into a contract to the performance of which such consent is necessary, will not, in case such consent cannot be procured, be decreed to obtain it, and thus perform an impossibility.* § 1000. Where the husband, or husband and wife, had entered into a contract to sell the estate of the wife, the Court of Chancery used formerly to decree the husband to procure his wife's consent, and in default committed him to gaol until she yielded.^ But the absurdity of such a course is obvious ; because the Court of Chancery was thus putting all the compulsion it could upon the wife to induce her to do an act, of which the essence is that it is done without compulsion ; the Court of Chancery was distressing her to give her consent, whilst the Court of Common Pleas was examining her to see that she was acting from free will alone ; and it accordingly became established that the Court would not interfere specifically to perform contracts where a wife's consent was requisite, and she refused to give it.® In a case decided in the year Sale of wife's estate. ' Eibllethwaite v. M'Morine, 5 M. & W. 462. ^ Cuddee v. EuUcr, 5 Vin. Abr, 538, pi. 21. 3 Holroyd v. Marshall, 10 H. L. C. 191. * Howell y. George, 1 Mad. 1; Grey V. Hesketh, AmU. 268; S. C. SBurn's Eccl. Law (9tli ed.) 624. See alao Weatherall v. Geering, 12 Ves. at p. 511 ; Marsh v. Milligan, 3 Jur. N. S. 979 (Wood V.C); Beestony. Stutely, 6 W. E. 206; 27 L. J. Cli. 156 ; Meara v. Meara, 8 Ir. Oh. E. 37; and WillmoU y. Barber, 15 Oh. D. 96. Distinguisli Leitch v. Simpson, I. E. 5 Eq. 613. ^ Barrington v. Horn, 5 Vin. Abr. 547, pi. 35 ; S. 0. 2 Bq. Oas. Abr. 17, pi. 7 ; Hall V. Hardy, 3 P. Wms. 187; Daniel v. Adams, Ambl. 495; Morris t. Stephenson, 7 Ves. 474. ^ Bryan t. Wooley, 1 Bro. P. 0. 1 84 ; Emery v. IVase, 8 Ves. 505 ; Frederick v. Coxwell, 3 T. & J. 514 ; Howell V. George, 1 Mad. 1 ; Buck V. Whelley, in D. P. 1 Mad. 7, n. ; Martin v. Mitchell, 2 J. & W. 413, 425; per Lord Mansfield O.J. in Davis T. Jones, 1 N. E. 269. INCAPACITY OF DEFENDANT TO PERFORM CONTRACT. 433 1869,^ where a husband, who had only an estate 'per autre vie in property with the possibility of a tenancy by the curtesy, the remainder in fee on the determina- tion of the particular life being vested in his wife, entered into a contract to sell the fee simple (of which he was at the time of the contract believed by the purchaser to be the owner), the Court held the husband bound to convey all the interest that he had, and to make compensation to the purchaser for the wife's interest, which she was not bound to convey. But in an almost contemporaneous case,^ where husband and wife agreed to sell the fee simple of an estate which on the face of the contract was clearly the wife's estate, and she afterwards refused to convey, the purchaser's bill for specific performance by the husband at an abated price was dismissed by the Court of Appeal in Chancery. § 1001. It must not however be understood that Execution the incapacity of the defendant to perform a contract 'y^^'-"- literally and exactly in all its parts will enable him to refuse to perform it in substance. The plaintiff has in many cases the right to call on the defendant to perform the contract as best he can, though the defendant's incapacity to perform it fully might be a bar to him, if he filled the position of plaintiff. All the cases in which a plaintiff enforces a contract so far as the defendant can perform it and obtains compensation from him for the part unperformed are instances of this.^ Some other cases of the same sort may be mentioned. § 1002. If two tenants in tail in common were to Death of contract to sell an estate and one of them died before tractor^ completion, the issue in tail of the one dying would tenant in not be bound by the contract ; but it seems that the purchaser might, if he chose, sue the survivor for a conveyance of his moiety on payment' of a half of the purchase-money.* 1 Barnes v. Wood, L. E. 8 Eq. = See Part V. chap. ii. § 1257 424. See infra, §§ 1263—1267. et seq. ^ Castle Y. Wilkinson, L. E. 5 Ch. * Per Lord Hard-wicke in Att.- 534. Gen. v. Bay, 1 Ves. Sen. at p. 224. F. F F 434 OF THE DEFENCES TO THE ACTION. Carey v. Stafford. Lease by copy- holder. ton' s case. Contract modelled so as to be leffal. Modelling confined to formal matters. § 1003. So in Carey v. Stafford,'^ in the Exchequer in 1725, where a man executed a deed affecting to convey lands therein described of the yearly value of 22/. to his servant, and no such lands existed, the Court compelled him to convey lands of equal value. § 1004. And so if a copyholder were to contract to grant a lease for a longer term than the custom allowed, he would, it seems, be compelled to effectuate his contract in substance, by from time to time executing leases for such terms as he could, till he had made up the term contracted for.^ § 1005. ErringtoiUs case^ though not on a specific performance, is another illustration of this principle. He had contracted for 9,000/. to build a bridge over the Tyne, and to maintain it for seven years, and had entered into a bond in that sum conditioned for performance of the contract : the bridge was built, but thrown down by a flood ; and it was found that no bridge on that site could stand. Thereupon he filed his bill for relief from the bond; and upon his building a bridge upon a neighbouring site where it could stand, and submitting to an issue of quantum damnificatus by the change of site, he was relieved from the penalty of the bond. § 1006. Where a contract is in its original form obnoxious to difiiculties on the score of illegality, but can nevertheless be lawfully performed in substance, the Court will so model it as to effectuate this purpose. Thus it having been made by statute illegal to contract for the tenant to pay the tithe rent-charge, a contract for a lease, stipulating that the tenant should pay a certain sum for rent and also the rent-charge, may be carried into effect by the Court by means of a lease reserving as rent the two sums in the contract treated respectively as rent and rent-charge.* § 1007. But such modelling can only apply to matters of form. So where an incumbent was under a statute able to grant a lease with a rent payable 1 3 Sw. 427 n. ' Paxton V. Newton, 2 Sm. & Gif. 437. ^ Per Lord Eedesdale in DavU y- Hone, 2 Sch. & Lef. 351 ; Errington y. Aynesly, 2 Bro. 0. 0. 341. * Carolan y. Brabazon, 3 Jon. & L. 200. INCAPACITY OF DEFENDANT TO PERFORM CONTEACl'. 435 quarterly, and he contracted to grant a lease with rent payable half-yearly, the Court declined to compel the lessee to take a lease with a reservation of rent payable quarterly : the mode of reservation of rent was held to be an essential part of the contract.^ § 1008. The Court will probably be anxious to Contract execute a contract cy pres, where by subsequent Pf^au- legislation a contract originally valid may have dated by become invalid in part. Thus where a Dean and tion!'^" Chapter, prior to the disabling statute of 13 Eliz., covenanted for the renewal of a lease for ninety-nine years, and the plaintiff brought his bill asking for a renewal for such term as the corporation could grant under the statute, it was ultimately decided by the House of Lords, in accordance with the opinion of Jekyll M.R., but overruling the judgments of Lord King, Lord Raymond C.J., and Price J., that the plaintiff was entitled to this cy pres relief.^ § 1009. It seems that in some cases in which the Contract contract would be incapable of being specifically ^"as^^ ^e enforced in its very terms for other reasons than possible. illegality, it may be executed by the Court cy pres^ if such a plan be feasible. In one case there was a contract entered into by the defendants within two years to procure the heir-at-law of A. B. to convey certain estates to the plaintiffs, or within the same period to petition the House of Lords for, and to use their ut- most endeavours to procure, an Act of Parliament for substituting a trustee in place of the heir, in case such heir could not be found, or there was no heir ; on a bill filed for the performance of this contract, the Court decreed the defendants to allow their names to be used in an application to Parliament for the Act.^ A contract by a person to use his utmost endeavours seems to be one which the Court could not specifically execute. § 1010. In some railway cases, the Court has Railway shown a great inclination to regard what it considers '^^^^^' 1 Jenldm v. GVeew (No. 2), 27 (Nov. 1726); 3 Bro. P.0.389; sitjjra, Beav. 440, § 60, ^ Bettesivorth v. Dean and Chapter ^ Frederick v. CoKwell, 3 Y. & J. of St. Paul's, Sel. C. in Oh. 66 514. F F 2 436 OF THR DEFENCES TO THE ACTION. as the substance of the contract. In one case, com- pany A. contracted with the plaintiff for the purchase of the lands required for their proposed line, and for the withdrawal of his opposition in consideration of 20,000/. to be paid to him, in case their Bill should pass into law: there was a rival company B., which would require different lands, of the plaintiff : by an agreement, made between the two companies during the proceedings before the Committee of the Commons, it was agreed that a reference should be made as to which of the two lines should be carried into effect, and that the successful company should take to all the engagements of the other. The line of company B. was approved, and company A.'s Bill was accordingly withdrawn ; company B. refused to pay the plaintiff the 20,000/., alleging, amongst other things, that it was conditional on the Bill of company A. passing, and that the lands required were not those contracted for ; but on a bill filed by the plaintiff against them, their demurrer was overruled by Shadwell V.C. and Lord Cottenham.^ In a subsequent case, however, the same Vice Chancellor considered the passing of a Bill of an amalgamated company sufficiently distinct from the passing of the Bill of one of the companies to relieve the amalgamated company from a contract binding in case of the Bill of the one company passing.^ The decree was affirmed by Lord Cottenham, but on a dif- ferent ground.^ impossi- § 1011. Where a contract is in the alternative, so onelitei- ^^ ^o gi^o au clcction to the party to perform it, and native. one of the alternatives is at the time of the contract, or subsequently becomes, impossible, the question arises how far the contracting party is bound to the perform- ance of the alternative that remains possible. The cases seem to divide themselves into (i.) those where one alternative is impossible at the time of the con- ' Stanley v. Chester and Birhen- = 3 My. & Or. 784. See further, head Railway Co., 9 Sim. 264; S. 0. ^s ^ t^e results of amalgamation, 3 Mv & Or 773 Earl of Lindsey v. Great Northern , „ , , , ,, , , Railway Co., 10 Ha. 664 ; Kinq v. ' (jcreenhalgh v. Manchester and mingham Railway Co., 9 Sim. ■116. M. 681. Accumulative Assurance Co., 3 0. B. Birmingham Railway Co., 9 Sim. n. S. 151 ; Kearns v. Leaf, 1 H. & INCAPACITY OF DEFENDANT TO PEEFOEM CONTEACT. -1 i^ tract, (ii.) where it becomes so subsequently to the contract, but before election, by the act of God, or (iii.) by the act of the other party to the contract, or (iv.) by the act of a stranger, and (v.) those cases where the impossibility arises after election. These different cases must be briefly considered. § 1012. (i.) Where at the time of the contract one i- One alternative is impossible or void, the party to execute origiSaUy'^ the contract is bound to the performance of the other ™p°^" alternative.^ So where the condition of a bond was to pay a certain sum, or render in execution a person who had been previously discharged, and the Court held the latter alternative illegal and void, it was decided that the obligor was bound to perform the other, and that not having done so, the bond was for- feited.^ And where an award directed that a sum of money should be paid or be secured to be paid, and did not define the security to be given, and the ques- tion was whether the award was not void for uncer- tainty : it was held not to be so, on the ground that if an award direct one of two things to be done in the alternative, and one is void for uncertainty or is im- possible, it is yet incumbent on the party to perform the other of them.® § 1013. (ii.) The leading authority on the second ii- One class of cases is Laughter^ s case^^ where it is laid down, rendered^^ " that where a condition of a bond consists of two parts impossible in the disjunctive, and both are possible at the time of o^God.'^'^ the bond made, and afterwards one of them becomes impossible by the act of God, the obligor is not bound to perform the other part." On this case it may be remarked in the first place, that the case itself did not require the enunciation of the principle,^ as both alter- natives in the bond there put in suit were rendered impossible; ^ and in the second place, it is to be observed, 1 Com. Dig. Condit. K.' 2; Wigley * 5 Eep. 2113; S. 0. «. n. Eaton's V. Blachwal, Cro. Eliz. 780. ^ase, Moore, 357 ;_ s. n. Eaton r. an^j -n-iT>PT> Laiwhter, Cro. Eliz. 398: acoord- => Da Oosta v. Davis, 1 B. & P. . / ' ' mgly Warner v. White, T. Jon. 9o. 5 Barkworth v. Young, 4 Drew. 1, ^ Simmonds v. Swaine, 1 Taunt. 24. 549. ^ See the case iu Cro. Eliz. 398, 438 OF THE DEFENCES TO THE ACTION. that subsequent decisions show that the principle was stated too broadly, and that even at Common Law the intention of the parties has been gathered from the particular language of each instrument. In the case of Studholmes v. Mandell^ the Court said that the rule and reason of Laughter's case ought not to be taken so largely as Coke has reported it, but according to the nature of the case ; and Treby C.J. quoted a case in which a bond was conditioned either to make a lease for the life of the obligee before such a day or to pay 100?., and the obligee having died before the day, it was held in the Common Pleas that the obligor should pay the 100?. And in Drummond v. Duke of Bolton,^ in aia action on a bond conditioned to pay or secure to the plaintiff or her children by William Ashe, her then intended husband, 3,000?. within six months after the defendant should become Duke of Bolton, the defendant pleaded that William Ashe died without having any children before the defendant became Duke : but the plea was overruled, on the ground that the intention of the parties must be regarded, and that it could never have been their intention that the money should not be paid to the plaintiff in case she should not have a child by William Ashe at the time of the plaintiff becoming Duke, though if she then had a child, the defendant might have had his election to whom to pay the money. Bark- § 1014. And this view of the law was fully sup- ^YmnJ.' ported in a case before Kindersley V.C, on a promise by A., on the marriage of his daughter with B., that he would at his death leave to his daughter an equal portion with his other children. The daughter died in the lifetime of her father, leaving children, and this circumstance was argued to be a discharge from the contract by an act of Grod. But the Vice Chancellor held that the contract might have been performed in either of two ways, — namely, by A.'s making a pro- vision for his daughter by will or by his dying intes- tate : and that though the death of the daughter 1 1 Lord Eaym. 279; Anon., 1 ' Say, 243. Seealso^er Walmes- „ ,, ,„. ley J. in More v. Moreoomh: Oro. ^^1^- ^^^- Eliz. 864. INCAPACITY OF DEFENDANT TO PEEFOEM CONTRACT. 439 precluded him from performing it in the first way, lie was not thereby exonerated from performing it in the second, and that the bill, by which the husband prayed for an equal share in the testator's residuary estate, was not on that ground demurrable.^ His Honour, after referring to some of the previous cases, expressed his opinion that it is impossible to lay down any universal proposition either way, and that each case must depend upon the intention of the parties : but that where this intention is clear that one of the parties shall do a certain thing, but he is allowed his option to do it in one or other of two modes, and one of these modes becomes impossible by the act of Grod, he is bound to perform it in the other mode : and that, in the case before the Court, it was manifestly the intention of the parties that, in one way or other, the daughter should have an equal share of the testator's property ; and that if the father was prevented by the act of God from performing his obligation in one way, he was bound to perform it in the other way, which was possible.^ § 1015. In Jones v. Hoiv^ a father on the marriage Jones ^. of his daughter covenanted by some act inte?' vivos or '^°^' by will to leave his daughter a certain provision : no act inter vivos was done by the covenantor, nor did his will contain any provision for her : the daughter died in the lifetime of her father : the Court of Common Pleas, on a case stated for its opinion by direction of Wigram V.C., held that the covenantee had no cause of action, on the ground, it appears, of the provision by will having failed by the death of his daughter, and a consequent exemption from liability to perform the other alternative. The Vice Chancellor, though ex- pressing an opinion that by this view the intention of the parties was disappointed, as the provision was intended to be absolute, and the mode of making it only intended to be left to the discretion of the cove- 1 Barhworthy. Young, 'kjy-r&^.l. causa dari non potest, altera ni- 2 P. 25. The rule of the Civil hilominus dabitur."— WaiiLkonig, Law seems to agree with this. "Si -^^^^^^^ j^,_ jj^^_ p^.^_ ^^_ ^^ ,,_ 2, quis illud vel illud stipulatus sit, tot obligationes sunt quot corpora : ■ > s quare, si altera res ex quicunque ^ 7 Ha. 267 ; S. C. 9 0. B, 1 . 'iiO OF THE DEFENCElS TO THE AC'J'ION, nantor, yet confirmed the certificate, and dismissed the bill with costs. iii. One § 1016. (iii. ) Where one of the alternatives becomes ^revent^r impossiblc by the act or default of the party for whose by the benefit the contract is to be executed, the other alter- °*^ty native is discharged and need not be performed.* Therefore in debt on an obligation conditioned for the delivery up by the defendant to the plaintiff of three obligations in which the plaintiff was bound to the defendant, or for the execution to the plaintiff of such release of them as should be devised by the plaintiff's counsel before Michaelmas, a plea that neither the plaintiff nor his counsel devised any release before Michaelmas was held good by a majority of the Judges in the Queen's Bench, on the ground that, where the obligee disables the obligor to perform the one part, the law discharges him from the other.^ This authority was followed by another case in the same Court, in which, in debt on a bond by the defendant conditioned to grant an annuity within six months after the death of A., and if he refused, on request then to pay 300/., a plea that no grant had been tendered within six months was held good.^ The § 1017. The principle of these cases is obvious : o"these^ the contract gives the party to perform an election, eases. and Creates an obligation to perform only the elected thing : but the other party has destroyed the election, and so has released the performing party from his obligation to do anything. iv. One § 1018. (iv.) Where one alternative is prevented alternative ][)y ^ho act of a straugor rendering his performance 131*6 VGUtGCl " • ■• Cj J. by a impossible, the other alternative must be performed. stranger. fJ^J^Jg .^g^g J^^g]^ £q g^ g^gg ^^ ^]^g ^jTj^ q£ JJgnry VII,, which decided that if one be obliged to enfeoff me of certain lands, or to marry A. S. before such a day, and a stranger marry A. S. before the day, the obligor must make a feoffment of the lands : but otherwise if the obligee married A. S. before the day, for then the other alternative is discharged.* 1 Com. Dig. Condit. K. 2. ^ Basket v. BasJcet, 1 Mod. 265 ; 2 Mod. 200. » arenningham v. Ewer, Cro. Eliz. 4 Quotedin Grenningham v. Ewer, 396, 539. Cro. Eliz. 397. INCAPACITY OF DEFENDANT TO PEEFOE.M COXTKACT. 44 L § 1019. (v.) If, after the party to perform has v. Elected elected to perform one alternative, that alternative becwniug'' becomes impossible, the effect of the impossibility is impos- precisely the same as in the case of a single contract, for by election the contract has become single. The performing party therefore is ordinarily liable in damages.^ ' Brown v. Royal Insurance Co., 1 El. & El. 853. 442 rescission. CHAPTER XXIV. OF THE RESCISSION OF THE CONTRACT, Groundsof § 1020. The rescission of a contract necessarily constitutes a bar to its performance by either of the parties to it. The rescission may result from — (i.) A simple agreement between the parties to rescind the contract ; (ii.) An agreement between the parties to new terms which put an end to the terms of the old contract ; (iii.) An agreement between the original parties and a third person, by which the third person takes the place of one of the original contractors ; (iv.) An exercise of a power to rescind reserved by the contract to one or both of the contractors ; (v.) An exercise of the right to rescind which results to the injured party from misrepresentation, fraud or mistake in relation to the contract ; (vi.) An exercise of the right to rescind which results to one party from the other party's abso- lute refusal to perform the contract or unreasonable delay in its performance ; (vii.) An exercise of the right to rescind which results to one party from the other party's having made performance impossible ; (viii.) An exercise of the right to rescind which results to one party from the want of mutuality on the part of the other contracting party ; (ix.) An exercise of a statutory power to rescind in case of bankruptcy. OF THE RESCISSION OF THE CONTRACT. 443 i. A simple agreement to rescind. § 1031. Generally speaking, the parties to a con- Agree- tract, supposing them both to continue sui juris and ^^^l^l_ capable of contracting, have a right to determine it by an agreement to rescind it, or, to use other words, a waiver and abandonment by mutual consent of the parties : and this they may do even when the contract between them affects the interests of some third person ; except, it seems, where there has been a part perform- ance of it affecting the third person. So that where A. by deed contracted with B. that A.'s son should reside with and be brought up by B., who covenanted to leave him certain property, and there was no appreciable part performance as regards the child, so that his condition in life had not been altered, and no expectation on his part was defeated, it was held that A. and B. might by agreement rescind the deed, though it would, it seems, have been different if there had been any part performance affecting the child. ^ § 1022. An agreement to rescind a contract which Parol is in writing^ or under seaP may clearly in Equity be tf resdnd* by parol. writing or § 1023. Against this conclusion various argu- objection ments have at various times been raised : it has been from rule urged that the rule of law does not allow the variation ° '™' of a contract that has been reduced to writing to be evidenced by parol ; but to this it has been replied that rescission is not variation, that the law allows parol evidence of matters collateral to the contract,* and that rescission or waiver being in its nature subsequent and collateral to the contract may therefore be proved by parol testimony.® § 1024. Again, it has been urged that the Statute Objection 1 Eill V. Oomme, 1 Beav. 540; Lord Kur/ent, oB. & Ad. 58; Harveij S. C. 5 My. & Cr. 250; supra, § 204. v. Grahham, 5 A. & E. 61. * Pym V. Omnpbell, 6 El. & Bl. ' Davis V. Symonds, 1 Cox, 402, g^^ '^'^^- ^ Davis V. Symonds, 1 Cox, 402, 3 Hill V. Gomme, 1 Beav. 540 ; 406. This seems denied, as to Lady Laneshorough v. OckshoU, 1 waiver at Common Law, by Lord Bro. P. C. 151. See, lor tlie Hardwicke in Sell v. Howard, 9 doctrine at Common Law, Goss v. Mod. 305. 444 OF THE DEFENCES TO THE ACTION. st°Tt ^^ Frauds precludes parol evidence of rescission of Frauds." Contracts relating to land: for a contract to waive a purchase of land as much relates to land as the original contract.^ But it is replied that the rescinding con- tract is not the contract on v^hich the action is brought, and that vphilst the statute provides that no action shall be brought on any contract of the descriptions there specified, except it be in writing, it does not provide that every such written contract shall support an action. In the result it is perfectly well ascertained that a contract in writing, and by law required to be in writing, may in Equity be rescinded by parol ; ^ and waiver by mutual parol agreement therefore furnishes a sufficient defence to an action for specific perform- ance.^ Agree- g 10S5- Any circumstancos or course of conduct rescind from wlieuco Can be clearly deduced an agreement to Wou"^'^ j)ut an end to the original contract will amount to a duct. rescission of it. Thus, to give one or two examples : where, on default in payment of the purchase-money, one party said to the other that there must be an end of the negotiation, and the other assented, the contract was held to have been rescinded.* And where the vendor was allowed for a long period to remain in possession, and the purchaser's representatives seven- teen years afterwards treated themselves, in a deed between the parties, as entitled to interest on the debt which had been the consideration for the sale, and not to the rents and profits of the land, the contract was held to have been waived.^ Evidence § 1026- But the Court must be satisfied of this dear. ^ total abandonment by both parties of the contract. " The Court," said Lord St. Leonards, " requires as clear evidence of the waiver as of the existence of the ' Per Lord Hardwicke in Buch- pi, 44. house V. Croshy, 2 Eq. Gas. Abr. 33. ^ Davis t. Symonds, 1 Cox, 402 ; ' Ooman v. Salishury, 1 Vern. BoW«so»i v. Pap'e, 3 Euss. 114. 240 ; Inge v. Lippingwell, 2 Dick. * Carter v. Dean of Ely, 7 Sim. 469 ; S. 0. 5 Vin. Abr. 516, pi. 22 ; 211. per Grant M. E. in Ex parte Lord ^ Earl of Itossey. Sterling, 4^7)0^, Ilrhesier,T Yes. 311. See also Back- 442. See also Hill y. G-umme, 1 Aoitsev. Jlfw7w», 3Sw. 434,n.; jSmcS- Beav. 540; Lowther v. Heaver, 41 house V. Croshy, 2 Eq. Oas. Abr. 32, Ct. D. 248, 268. OF THE RESCISSION OF THE CONTRACT. 445 contract itself, and will not act upon less."^ And in another case his Lordship said that, unless a party has by his conduct forfeited his right, " abandonment of a contract, according to the law of this Court, is a contract in itself;" and accordingly he refused to hold a loose conversation, which was alleged as a waiver of a contract for a lease, to amount to such a new contract.^ § 1027. To these cases may be likened those Absolute where an absolute refusal of one party gives rise if^f to a right to rescind in the other : the refusal must party. be clear, total, and unqualified.^ § 1038. An agreement to rescind an existing con- There tract must amount to a total abandonment of the whole ^"^1 ^^ contract, and not to a partial waiver of some of its abandon- terms : for to allow of such a proceeding in the case of "'''' ' a written contract would be to have a contract proved partly by writing, and partly by parol : * it would be a parol novation of a written contract, which is in- admissible where the law requires the contract to be evidenced by writing : * and therefore the agreement, or the circumstances from which it is inferred, must show an absolute dissolution and abandonment of the contract.* § 1029. The cases, of which many have arisen at Cases at Common Law (and which will be considered subse- Law!^°" quently"^), of the rescission of a contract by the one party, based on an absolute refusal to perform by the other, may well be brought under the head of agree- ment to rescind. § 1030. It is to be borne in mind that the conduct Conduct of one party which may debar him from insisting on a ™event 1 Carolan v. Bralazon, 3 Jon. & 714 ; 6 id. 953; infra, § 1060. L. 200, 209; Whittaker v. Fox, 14 * Oossr. Lord Nugent, 5 B. & Ad. W. E. 192 ; Harrison v. Brown, 14 58. W. E. 193, n.; Clifford y. Kelly, 7 = Lifra, § 1038. Ir. Cli. E. 333; Cartany. Bury, 10 " Price v. Dyer, 17 Ves. 356; Ir. Ch. E. at p. 400. Rohinson v. Page, 3 Eiiss. 114. Lord ^ Moore v. Crofton, 3 Jon. & L. Thurlow seems to liave thougM that 438, 445; Whittaker v. Fox, 14W.E. a part might be rescinded by parol, 192. in Jordan v. Sawhins, 1 Ves. Jun. ' Ehrensperger v. Anderson, 3 Ex. 404. 148; Avery y. Bowden, 5 El. & BI. ' See infra, § 1060. 446 OF THE DEFENCES TO THE ACTION. party's rights, yet not be a rescission. contract may yet not prevent its being enforced against him or amount to a rescission of it : ^ and further, that there are many cases in which there has been such a departure in conduct from the contract between the parties, that the Court will refuse to execute the con- tract, though the effect of that conduct may not have been .to substitute a valid contract for the old one, or absolutely to rescind the old one for all purposes.^ ii. An agreement upon new terms. Second agreement incon- sistent. § 1031- Where the parties to a contract come to a fresh agreement of such a kind that the two cannot stand together, the effect of the second agreement is to rescind the first. This is one form of novatio in the Roman Law.^ Alteration § 1032. But it is uot cvory chaugo in a term of the amountino- Original coutract which will amount to such a substitu- te nova- ° tion as to extinguish that contract. Thus where there was a contract for a lease, and a parol agreement was subsequently made for the reduction of the rent which, it was contended, worked a rescission of the original contract. Lord St. Leonards said, ''I should be sorry to hold that because a landlord abates the rent for a time or permanently, he therefore abandons the whole contract I should do a most mischievous thing were I to hold that a mere abatement of rent, which occurs every day, would altogether put an end to the existing contract, and create a new tenancy from year to year. The abatement of the rent was rather a con- firmation of the existing tenancy, with a relaxation of one of the terms of it."* Conces- § 1033. So also a Suggestion made by either party ^^°"" after contract for the purpose of obviating any diffi- ^ Price V. Aashdon, 1 T. & 0. Ex. 82. * An example of tMs seems to be afforded by the case of tbe Paris Chocolate Go. v. Crystal Palace Co., 3 Sm. & Gif. 119. 3 "Novatio est prioris debiti in aliam. obUgationem aut civilem aut naturalem transfusio et translatio : hoc est cum ex praeoedenti causa ita nova oonstituatur, ut prior perima- tur." Dig. Ub. xlvi. t. 2, o. 1. See also Instit. Ub. iii. tit. 30, s. 3. * Clarice y. Moore, 1 Jon. & L. 723, particularly 728-9. OF THE RESCISSION OF THE CONTEACT. -147 culties in the completion of it, will not be taken to amount to a novation : so to hold would be to preclude parties from endeavouring to remove objections by concessions of any kind.^ § 1034. But where, the defendant being in pos- Moore r. session of a house under a contract for a lease, the ^<"'"'^'^- plaintiff and the defendant entered into a further contract to the effect that the plaintiff would accept H. W. as his tenant in lieu of the defendant and on the same terms, the defendant undertaking to guarantee the rent during H. W.'s tenancy, and H. W. accord- ingly for several years occupied the property and paid rent, it was held that the latter contract must be considered a substitution for the former.^ § 1035. As it is the existence of the new contract Novation that works the extinction of the old, this new one ^^aiid*^ must, of course, be a valid contract : so that, for contract, instance, where a second contract is alleged, but without consideration, the original contract will remain intact, and may be executed without regard to the second.^ § 1036. This makes it requisite to consider the E-pidence. evidence of the new contract alleged. (1.) Where the original contract is by parol, the i. Original new one may, of course, be by parol also. b°^mroi § 1037. (2.) Where the original contract was in 2. original writing, though not by law required so to be, the new i^'ritlno- contract may be evidenced in any way which establishes it according to the principles of the Court. Thus a contract, though under, seal, may in the contemplation of a Court of Equity be waived by a course of conduct from whence the presumption of a new contract in substitution arises. " In ordinary partnerships," said Lord Eldon, " nothing is more clear than this, that although partners enter into a written agreement, stating the terms upon which the joint concern is to be carried on, yet if there be a long course of dealing, or a course of dealing not long, but still so long as to demonstrate that they have all agreed to change the 1 Monro y. Taylor, 8 Ha. 51, ^/^ ^°°'' ^" ^"'■'"«^^'=' ^- ^- ^ ^li. particularly 61. 3 ' Eohson y. Oollim, 7 Yes. 130, '148 OF THE DEFENCES TO THE ACTION. terms of the original written agreement, they may be held to have changed those terms by conduct."^ And accordingly, in another case, where a contract for a partnership was decreed to be specifically executed, the Court directed an enquiry whether any and what variations had been made in the original contract by the consent of the partners, and directed the deed to be settled by the Master having regard to such variations.^ 3-Origmai § 1038. (3.) "Where the original contract is by by law law required to be in writing, the new one must be in tolje^iif writing also, if the plaintiff insists on it as part of his writing, casc ; SO that, for instance, where the relation of land- lord and tenant is constituted by writing, a contract for an abatement of rent set up by the plaintiff must be in writing also.* From the principles of the Court, however, in regard to part performance, an exception naturally arises, as the new contract may in this, as in any other case, be by parol, if supported by acts of part performance. Thus, for example, where W. leased to N. a house for eleven years, and was to allow 201. for repairs, and this contract was signed and sealed by the parties, and N., finding that the repairs of the house would cost more than 201., laid out a further sum, in consequence of W.'s having pro- mised to enlarge the term, but without mentioning for what term : Jekyll M.R. carried the parol contract into effect, on the ground that it was a new contract, and that the laying out the money was a part per- formance on the one part, which made it needful to execute the parol contract on the other.* Where § 1039. But where the new contract is relied on trngulsh- only as an extinguishment of the old one, the mere fact ment of ^hat it is uot in writina:, and so could not be put in suit, contract scoms to be no ground for denying its effect in rescind- ^*- ing the original contract. The Statute of Frauds does not make the parol contract void, but only prevents 1 Const V. Harris, T. & E. 496, ' England v. Curling, 8 Beav. 129. 523; Oeddes v. Wallace, 2 Bli. 270, ■. n>/y o ■ t.^ i o i. p „ „' , „ , . ' r, ,„„ O'Connor v. Spaight, 1 Soli. & 291; Jacksony.Sedgiuick, ISw.ieO; per Lord Langdale M.E. in Smith V. Jeyea, 4 Bear. 505. « 5 Vin. Abr. 522, pi. 38. SOUff, OF THE RESCISSION OF THE CONTEACT. 449 an action upon it; and it does not seem to be necessary to the extinction of one contract by another that the second contract could be actively enforced. The point has never, it is believed, been matter of decision.^ But in point of principle it seems to stand on the same footing as a simple agreement to rescind. iii. An agreetnent ivith a third person. § 1040. An agreement between the original parties Third and a third person, by which the third person takes substu the place of one of the original contractors, creates a t»ted. new contract on the old terms between the new parties and rescinds the original contract. § 1041. So where M. agreed with a company to Morton's take certain shares, and no payment was made by M., so that according to the contention of the liquidator of the company he had no right to the shares : and M. then transferred the shares to Gr., and Gr. was re- gistered : it was held that, assuming the contention to be correct, the contract with M. was resting in fieri, and the transfer to whicla the company was a party constituted a new contract to take the same shares between the company and Gr., and that the old con- tract with M. was discharged by the new contract with G.^ S 1042. So ao^ain where A. sold shares to B., and Re-saie B. sold them to C, and A. executed a deed of transfer to C, which C. refused to register; A. brought a bill for specific performance against B., but it was held that A., having assigned the shares to C, had deter- mined the privity of contract with B., and that he could not make a title to the shares. The main question in the case was whether C. was merely the nominee of B., or there was a substantive contract between A. and C. : the latter was the view taken under the circumstances.^ ' See Vinnius, Commen. in. Inst. ^ Morton's case, L. E. 16 Eq. 104. Hb. iii. tit. 30. As to a parol con- C'f. Hx parte Beresford, 2 Mac. & tract at Common Law to vary (in G. 197; Moore v. MarraUe, L. E. 1 effect) the terms of a deed, see Oh. 217. Nash V. Armstrong, 10 C. B. N. S. ^ Shaw v. Fisher, 5 De G. M. & 259. Q-. 596; Holden y. Ilayn, 1 Mer. 47 ; F. GO 450 OF THE DEFENCES TO THE ACTION. Novation in sales of shares. Other eases of novation. § 1043. In the chapter on contracts for the sale of shares/ it will be seen that questions of novation by the introduction of a third person arise upon sales on the Stock Exchange. The reader is referred to that chapter for their bearing on the question of novation. § 1044. There are two other classes of contracts in respect of which the question of novation has fre- quently arisen — the first relating to continued dealings between A. and one set of partners and A. and another set of partners successors in trade to the former ; and the second relating to the dealings of a person insured in one company and continuing to make payments to another with which the first had amalgamated, or to which it had assigned its business. The full discussion of these classes of cases would be too remote from the subject of these pages to be here proper. Express power to rescind. Contract to be void in specified event. iv. Exercise of a power to rescind reserved ly the contract. § 1045. Generally speaking, one party to a con- tract cannot rescind it, except by consent of the other party : but this general principle is liable to exceptions. The first that falls to be noticed is where the contract reserves to one or both of the contracting parties a power in certain specified circumstances to rescind the contract.^ Such stipulations are frequent in contracts for the sale of land. It will be desirable briefly to consider these stipulations. § 1046., When a contract stipulates that on the happening of a certain event it shall be void, the con- struction put upon it by the Courts generally is, that it may on this event be rescinded by the party injured by such event. Thus a proviso that in case the vendor of an estate cannot deduce a good title, or the pur- chaser shall not pay the money at the appointed day, the contract shall be void, has been held to mean that Hall V. Laver, 3 Y. & 0. Ex. 191 ; Stanley v. Chester and Birkenhead Bailway Co., 9 Sim. 264; S. C. 3 My. & Or. 773 ; supra, § 177. 1 Infra, Part VI. chap. i. 2 S.g. Marsden v. Sambell, 28 W. E. 952; also Whiibread & Co., Limited v. Watt, [1901] 1 Ch. 911 ; [1902] 1 Oh. 835, where the pur- chaser had an option to rescind. OF THE RESCISSION OF THE CONTRACT. 451 in the former case the purchaser, and in the latter the vendor, may avoid the contract, and not that the contract is utterly void.^ § 1047. A right to rescind a contract on the non- sight, performance of an act, which act it is the duty of the exOTcised^ party invested with the right of rescission to perform if he can, will not give such party a right to refuse to perform his part of the contract, but will be held to apply where the act cannot be done. Thus, where there is a condition that, if any objection shall not be removed within a limited time, the vendor shall be at liberty to annul the contract, the vendor is not entitled to neglect to remove any objection, and then, on the strength of his own neglect, to annul the contract ; ^ but the condition will entitle him to rescind the con- tract if, having done all that is incumbent on him, he fail to show a good title.^ But where the right to rescind is limited to arise in case of his being unable or unwilling to do the act, the case is of course different, and he is generally exempted at his election from any obligation to do the act.* The person entitled to rescind is not bound to give notice of his intention so to do, nor to afford a locus poenitentice to the other side.^ § 1048. Where the power to rescind is reserved Mustthe in the event of the vendor's being unable or unwilling beTeTson- to comply with a requisition by the purchaser, can aUeP he exercise the power arbitrarily at his own will and pleasure, or can he not ? Is he at liberty to exercise it without showing some reasonable ground for refusing to comply with the requisition, or must he show such ground ? Opinions have not been uniform on this 1 BoleHs V. WyaU, 2 Taunt. 268. MorleyY. Cook, 2 Ha. 106; Duddell See also Doe d. Nash v. Birch, 1 v. Simpson, L. E. 2 Oh. 102, yary- M. & W. 402; Hyde v. Watts, 12 ing S. 0. L. E. 1 Eq. 578; Oray v. M. & W. 254. Fowler, L. E. 8 Ex. 249. See how- 2 Greaves v. Wilson, 25 Beav. 290. ever Powell v. Powell, L. E. 19 Eq. a. Be Jackson a7idOakshott,14:Gh..D. 422; Be Jackson and Oakshott, 14 851; and Smith v. Wallace, [1895] Oh. D. 851. 1 Oh. 385 393. ° Duddell y. Simpson, uhi supra; In re Dames and Wood, 29 Oh. D. 3 Page v. Adams, 4 Beay. 269. ggG; In re Starr-Bowkett Society * Tanner y. Smith, 10 Sim, 410; and Sibvn, 42 Oh. D. 375. - gg2 452 OF THE DEFENCES TO THE ACTION. reason- ableness. point. In one case' it was observed by Bacon V.C. that " the unwillingness is as much a part of the con- tract as the inability." In an earlier case ^ Turner L.J. seems to hg-ve been of a different opinion ; and it must now be considered as the result of the authorities and dicta that a vendor cannot capriciously and arbitrarily rescind.^ So where a vendor who had reserved such a power to himself, in case of requisitions on convey- ances, unreasonably insisted that certain words should be inserted in a conveyance, and the purchaser rightly resisted the insertion, it was held by Pearson J. that the vendor had no right to rescind.^ Burden ^ 1049. When the reasonableness of the exercise as to of the power is in question, on which side does the burthen of proof lie ? It may be suggested that it ought to lie on the party asserting that it has been unreasonably exercised. Instances S 1050. InstancBS of the exercise of this riffht to of exercise ".i ij> i-ji p t , ■ of right rescmd may be found in the cases referred to m this and the next section.^ In one case the con- tract stipulated that if from any cause whatever the purchase was not completed by the time specified, the vendor was to be at liberty to annul the contract. At the day appointed the parties met, and the vendor offered and the purchaser accepted the vendor's under- taking to satisfy certain unsatisfied requisitions. Nevertheless the purchaser refused to pay the purchase- money, whereupon the vendor said that he would annul the contract if the money was not paid : the purchaser refused to pay till the requisitions were satisfied : the vendor on the same day annulled the contract by notice, and successfully maintained a bill for an injunction to restrain any proceedings at Law on the contract.® jrau'sonv. 8 1051. In another case, one condition provided Fletcher. ' ^ ^ In re Dames and Wood, 27 CJi. D. 712 ; cf . In re Monckton and Oikean, 172; but cf. In re Monckton and 27 Cli. D. 555, wliere the power was Oihean, 27 Oh. D. 555. held not to include the objection * Duddell V. Simpson, 2 Ch. 102. made. ^ III re Dames and Wood, 29 Ch. D. ^ See too infra, § 1 1 96. 626; In re Starr-Bowkett Society and ^ Hudson v. Temple, 29BeaT. 536. Sihun, 42 Ch. D. 375. Distinguish TurpinY. Chambers, ib. * liardman v. Child, 28 Ch. D. 104. OF THE RESCISSION OF THE, CONTRACT. 453 that if any objection to title were persisted in, the vendor might rescind the contract : another provided that if any mistake should appear in the description of the property or of the vendor's interest therein, com- pensation should be given, A question arose as to the rights of the lord of the manor to certain mines or minerals : the purchaser claimed compensation and the vendor rescinded : the purchaser brought his bill for perfoi-mance with compensation : the vendor relied on his rescission. The Court held that the question in dispute was one of title, and that the vendor was therefore entitled to rescind.' Similarly it has been held^ that the existence of a latent right of way may be an objection to title, entitling a vendor to rescind under a condition in that behalf, though falling within another condition providing for compensation for errors of description. § 1052. A condition enabling the vendor to annul Vendor the sale if the purchaser should make any objection or Jnyytie. requisition which the vendor should be unwilling on the ground of expense or otherwise to comply with, does not enable a vendor who shows no title whatever to rescind. Such a vendor was consequently made to pay damages for his non-performance.'' But where the vendor, a mortgagee of leaseholds, had under a sub-demise a substantial interest in the term, though he could not make a title to the whole of it, he was held to be entitled to annul the sale, by virtue of a condition empowering him so to do in the event of any objection being made as to any "matter or thing relating or incidental to the sale," which words were considered by the Court to include a matter of convey- ance.^ Such a condition, however, is applicable only to an honest case.^ § 1053. Whether a right to rescind a contract mxist Within 1 Mawson v. Fletcher, L. E. 10 Part V. chap. i. § 1197. Eq. 212; 6 Ch. 91. * Be DeigMon and Harris's Oon- 2 Ashhirner v. Sewell, [1891] 3 trad, [1898] 1 Oh. 458; 46 W. E. Ch. 405, 409. 341. 3 Bowman v. Eyland, 8 Ch. D. * Re DeigMon, &c. Contract, ubi 588 ; and see Be Jackson and Oak- supra, at p. 463. Cf. Smith y. sJioU, 14 Ch. D. 851, cited infra, WaUace, [1895] 1 Oh, 385, 454 OF THE DEFENCES TO THE ACTION. T?hattime be exercised within a reasonable time after it arises, or he exer- at any time before it is Avaived or abandoned, may be cised. open to question.^ But it is conceived to be clear that a party who, having a right to rescind, either himself does some act under the contract which involves or implies the continued existence of the contract, or suffers the other party to do such act without asserting the right to rescind, has thereby lost that right. And where a vendor, being in a position to rescind, tried to play fast and loose with the purchaser, intentionally delaying to inform him whether the contract was to go on or not, while he was seeking to effect a sale to another person, the purchaser was held entitled to treat the contract as rescinded.^ Waiver § 1054. Again, where conditions of sale stipulated right to that if there was any objection which the vendor rescind. should be unable or unwilling to remove he might rescind the contract, and the purchaser should be entitled to his deposit without interest or costs, it has been held that such a condition is confined to the objections first taken after the abstract is delivered, and that a treaty between the parties for the comple- tion of the purchase is a waiver of the condition,^ it being, of course, evidence of the vendor's willingness to remove the objection. Such a condition will apply, if it be acted on by the vendor the moment the defect is known to him, but will not allow him to spend time in fruitless efforts to remove the objection, and then to rescind the contract on the terms of the condition.* And so where money is payable by instalments, and there is a power to rescind on breach of the contract, the receipt of money due on a subsequent instalment is a waiver of the right to rescind for default in respect of a previous one.^ So the receipt of royalty at a reduced rate is a bar to the exercise of a right of ' See Morrison Y. Universal Marine ' Tanner v. SmitJi, 10 Sim. 410; Insurance Co., L. E. 8 Ex. 40/ 197, Morley v. GooJc, 2 Ha. 106. See also particularly 205 ; and see Marsden Ciitta v. Thodey, 13 Sim. 206. V. Samhell, 28 W. E. 952; Ker v. . „ ^ „ , ^ ^ Croioe, I. E. 7 0. L. 181; and supra, ^ 'fGulloch y Gregory, IK & J. 286; Lane v. Beienham, 17 Jur. 1005. §739. 2 Smith V. Wallace, [1895] 1 Oh, at pp. 390, 391. ' Hunter v. Daniel, 4 Ha. 420 OF THE RESCISSION OF THE CONTRACT. 455 rescission reserved on the non-payment of royalty at a higher rate.^ And a vendor who has elected to insist on specific performance of a contract cannot afterwards turn round and rescind it.^ § 1065. Where the contract stipulates for a right of Separate rescission in respect of separate breaches, the waiver '■^reaches. of one will not waive another : so that where there was a contract for the payment of money by instalments, and that time should be of the essence, and further, a power to rescind on breach of the contract, it was held that each default of joayment of an instalment at the stipulated time was a fresh breach of the contract, on which the right to rescind arose.^ § 1056. Where there are conditions for compensa- condition tion and for rescission* the Courts will, for obvious ^°^ . . reasons, generally construe them so as to confine the limited by right to rescind to cases not within the condition for j^o'i^e'^ compensation. ihus, m a case ni which particulars penBation. of sale by error, but without fraud or gross negligence on the part of the vendor, described part of the pro- perty as a customary leasehold holden of a manor renewable every twenty-one years on payment of a customary fine, and the property was in fact holden only for a term of twenty-one years with no customary right of renewal ; the fourth condition of sale, after providing for the delivery of the abstract and of ob- jections to the title, stipulated that the vendor should be at liberty at any time after the delivery of such objections to vacate the sale, and that the deposit was thereupon to be returned without interest, costs, or other compensation ; the fifth condition of sale pro- vided that the purchaser should accept the existing lease and the assignment to the vendor as a sufficient title to this property ; and the sixth condition stipu- lated that if through any mistake the estate should be improperly described or any error or mis-statement be inserted in the particular, the same should not vitiate the sale, but that compensation should be made by either party, as the case might be. The purchaser 1 Warwich v. Hooper, 3 Mao. & ^ Gardom v- Lee, 3 H. & C. 651. G. 60. See also Langridge y. Payne, ' Hunter v. Daniel, 4 Ha. 420, 2 J. & H. 423. . * Of. infra, §§ 1292, 1293, 456 OF THE DEFENCES TO THE ACTIOK. Cannot be exercised after adverse decision. filed a bill for specific performance with compensa- tion, contending that the error was within the sixth condition : the vendor resisted performance and sought to vacate the contract, on the ground that it was within the fourth condition. Lord Hatherley (then V.C), referring to the fifth condition as explaining the use of the word "title" in the condition, held that this was rather a mis-statement of the subject-matter of the sale than of the vendor's title to it, and therefore within the sixth and not within the fourth condition of sale ; and he accordingly enforced specific perform- ance with comiDcnsation :^ and Lord Romilly M.R. put a like construction on similar conditions in a similar case.^ § 1057. A right to rescind on the ground of the vendor being unable or unwilling to meet a requisi- tion cannot be exercised after the vendor has sought to obtain a decision in his favour on the requisition, and judgment has been given against him : and this is the case even when the condition gives the power expressly, notwithstanding any previous litigation : litigation in this clause does not include adverse judi- cial decision.^ But where a condition empowered the vendor to rescind, in the event of any objection being insisted on, " notwithstanding any intermediate negotiation," but the contract said nothing about intermediate litigation, and the purchaser, having insisted on an objection, commenced an action for return of his deposit and other relief, a notice to rescind given by the vendor five days after the issue of the writ was held to be not too late.* Still, if a vendor, having power to rescind notwithstanding any pending litigation, unreasonably allows proceedings hj the purchaser to go on, and then at the last moment rescinds, he may be ordered to pay the costs of the proceedings.® ' Painter v. Newby, 11 Ha. 26; Nelthorpe v. Holgate, 1 Coll. 203. See also Mawson v. Fletcher, L. E. 10 Eq. 212 ; 6 Ch. 91. 2 Hny V, Smythies, 22 Beav. 510. ' In re Arh'h and Class's Contract, [1891] 1 Ch. 601. * Isaacs V. Towell, [1898] 2 Ch. 285. ^ Re Spindler and, Mear's Contract, [1901] 1 Ch. 908, 910, OF THE RESCISSION OF THE CONTUACT. 457 § 1058. It remains to remark that the plaintiff, ^°*|^?^„ bringing an action for the specific performance of a reaoiesiou. contract, may claim in the alternative that, if the con- tract cannot be enforced, it may be rescinded and delivered up to be cancelled,^ provided that the alter- native relief is based on the same state of facts, though with different conclusions as to law.^ When the action is brought by the vendor, and the purchaser has been in possession, this alternative claim may embi'ace an account of the rents and profits.^ But, for the reason already stated, a suit to set aside a transaction for fraud or, in the alternative, for specific performance of a compromise could not be sustained in the Court of Chancery.* And notwithstanding the provisions of the Rules of the Supreme Court as to alternative claims for relief, it seems probable that the same conclusion would still be arrived at, on the ground that the claims were inconsistent and embar- rassing. V. Rescission on the ground of fraud, misrepresentation, or mistake. § 1059. Either party to a contract who has been Deceived led into it by fraud, or fraudulent misrepresentation, '^^^^^^ may rescind the contract:® and either party to a con- tract who by the fraud of the other party has been prevented from obtaining the full benefit of it may rescind the contract.^ This right is discussed in the chapter on Fraud,^ * CawUy V. Poole, 1 H. & M. 50. Distinguish Bagot v. Easton, 7 Oh, D. 1. ^ Onions v. Cohen, 2 H. & M. ' Moseley v. Virgin, 3 Yes. 184 ; Costigan v. Hastier, 2 Sch. & Lef. 160, 166; Stapylton r. Scott, 13 Ves. 425 ; Clarke v. Faux, 3 Euss. 320 ; King v. King, 1 My. & K 442; 354^ 3qi_ Douglass v. London and North- western Bailway Co., SK. & J. 113; ' Panama, &c. Telegraph Co. v. Forster v. Great Eastern Eailway India-rubber, &c. Co., L. E. 10 Oh. Co., W. N. 1868, 122. 515. 2 JRaivlings v. Lambert, 1 J. & H. ' Supra, Part III. chap. xiv. ; 458 ; and see E. S. 0. Ord. XX. and of. Caryill v. Bower, 10 Oh. D. r. 6. 502, and per Lord Blackburn, in 3 Williams v. Shaw, 3 Euss. Brownlie v. Campbell, o App. Cas. 178, n. at p. 949. 458 OF THE DEFENCES TO THE ACTION. Mistake, and misrepresentation without fraud, are also under some circumstances grounds for rescission.^ Where, for instance, the contract had been induced by a misrepresentation of fact made, not fraudulently, by the defendant's agent, rescission was decreed, and repayment of the deposit with interest was ordered.^ Grenerally, when a person wishes to escape from his contract on the ground of misrepresentation, he must come to the Court immediately. But when a pur- chaser discovers that a representation made to him by a vendor is untrue, and thereupon the vendor suggests that, if time be given him, the misrepresentation may be cured and the purchaser put in as good a position as if the representation had been true, then the pur- chaser does not, by giving the vendor time, lose his right at the end of the time, if the vendor fails to make good his suggestion, to rely on the misrepresen- tation as a ground for determining the contract.® A party suing for rescission on the ground of mis- representation cannot consistently ask for any inter- locutory order which would have the effect of enforcing specific performance of a part of the contract.* vi. Where one party has refused to perform or unreasonably delayed performance. Refusaito § 1060. Where one party to a contract absolutely perform, refuscs to perform his part of the contract when the hour for performance has arrived,® the other party may accept that refusal and thereupon rescind the contract. So that where a man contracted to buy straw to be delivered by instalments, and to pay on delivery, and after a time refused to pay for the last ' See supra, § 782 (mistake) ; and p. 535. cf. Cullen V. O'Meara, I. E. 1 0. L. « Cook y. Andrews, [1897] 1 Oh. 640 ; 4 0. L. 537 (misdescription) ; at p. 270. In this case, however, Adam v. Neivhigging, 13 App. Cas. an interim receiver was appointed, 308 ; S. 0. 34 Oh. D. 583 (mis- in order to preserve the property representation without fraud). from forfeiture. * Wauton V. Goppard, [1899] 1 Oh. ^ Danube and Blacli Sea Railway, 92, 98. &c. Go. V. Xenos, 11 0. B. N. S. 152 ; 3 Tiilatts Y. Boulter, 73 L. T. at 13 0, B. N. 8. 825. OF THE RESCISSION OF THE CONTRACT. 469 load delivered, and insisted on always keeping one payment in arrear, the other party was held entitled to rescind the contract.^ But to justify rescission for this reason the refusal to perform must not be mere non-performance or neglect in performance: "there must have been something equivalent to saying, ' I rescind this contract' — a total refusal to perform it, or something equivalent to that which would enable the plaintiff on his side to say, 'If you rescind the contract on your part, I will rescind it on mine.'"^ § 1061. The true question is that laid down in Must be the case of Freeth v. Burr,^ viz., whether the acts and '^'^^"i^*^- conduct of the party (including no doubt the words as part of the conduct) evince an intention no longer to be bound by the contract, or, in other words, whether the conduct of the party who has broken the contract is such that the other party is entitled to conclude that the party breaking the contract no longer intends to be bound by its provisions.* The answer in every case is an inference from the facts. On this principle, that the refusal must be absolute, it was held, in a case where a defendant to a specific performance action stated by the defence that he was unwilling to com- plete, that the plaintiff was not at liberty at the hearing, at which the defendant did not appear, to ask for an immediate judgment for rescission and repay- ment of the deposit.^ § 1063. The cases go yet a step further, and Refusal ty show that even before the time for performance has f^iticipa- 11 • • • 1 tion. come there may be a breach by anticipation by reason of a wrongful repudiation before the time of per- formance.*' 1 Withers v. Reynolds, 2 B. & Ad. Co. v. Naylor, 9 Q,. B. D. 648, 882. Disjtingtdsli Cornwall v. Hen- affirmed 9 App. Cas. 434. son, [1900] 2 Ch. 298, 303. ■* Bhymney Bailiuay Co. v. Brecon, ' Ehrensperger Y. Anderson, 3 ^x. &c. Eaihuay Co., 69 L. J. Ch. at 148,_pc?-ParkeB. atp. 158; //ocAsier p. 813; S. 0. 83 L. T. Ill; 49 V. De la Tour, 2 Ell. & Bl. 678; W. E. 116; Cornwall v. Benson, Freeth v. Burr, L. E. 9 C. P. 208 ; [1900] 2 Oh. 298, 303. Mersey Steel and Iron Co. v. Naylor, ^ Stone v. Smith, 35 Oh. D. 188. 9 App. Oas. 434. " Eochster t. Be la Tour, 2 Ell. & 3 L. E. 9 0. P. 208 ; approved by Bl. 678 ; Frost v. Knight, 7 Ex. Ill ; the Court of Appeal in Mersey Steel Johnstone y. Milling, 16 Q. B. D. 460 OF THE DEFENCES TO THE ACTION. insol- g 1063. Where, on becoming insolvent, a con- ^ "^ ^' tracting party practically gives notice to his creditors and those who have contracted vrith him that he does not mean to pay any of his debts or perform any of his contracts, there is a refusal which may be accepted by the other side, and that by conduct as well as by express rescission.^ Defect of § 1064. Again, where the contract is for the sale matter." ^^ ^ thing, and the only thing which the vendor can convey is different from the thing contracted for in an essential particular, the purchaser may treat this as a non-performance by the vendor which gives a right to rescind ; and he may in some cases "do this, as we have already seen, even when a clause for compensa- tion exists in the contract.^ Delay. 1065. The right to rescind which arises from unreasonable delay in performance will be considered in the next chapter.^ vii. Where one party has made performance impossible. Election § 1066. It is a clear principle of law that if by party.^"^ any act of one of the parties the performance of a contract be rendered impossible, the other party may, at his election, rescind the contract : * so that where A. contracted with B. to supply B. with a chariot for five years, which A. was to repair, and before the five years had expired A. made over the chariot to his successor in trade, and thereby disabled himself from, performing the unperformed part of the contract, B. was held at liberty to rescind it.^ Similarly it seems clear that a contract to convey an estate may be rescinded if the vendor convey the estate to a third person : ® that a contract to pay in goods may be rescinded if the payer 460. See, too, Maconchy v. Clayton, * Panama, &c. Telegraph Co. v. [1898] 1 I. E. 291, 309. India-rubber, &c. Co., L. E. 10 Ch. ' 1 Ex parte Chalmers, L. E. 8 Ch. 515, 532. 289 ; Morgan y. Bain, L. E. 10 C P. , j^^^^^ ^_ Drumrmnd, 2 B. & 15; CI. Scnmgeour s claim, L. E. 8 ,-, ,,„„ Ch. 921. 2 See supra, § 877. * Palmer v. Temple, 9 A. & B. 3 See, too, Micholh v. Corbett, 34 508 ; Lovelock v. Franldyn, 8 Q. B. Beav. 376. 371 ; Ford y. Tilley, 6 B. & 0. 325. OF THE RESCISSION OF THE CONTRACT. 461 part with the goods : ^ that a contract to write an essay for a particular series may be rescinded if the pub- lisher finally abandon the series:^ that a contract to accept and pay for a telegraph cable on the certificate of an engineer may be rescinded if the party to deliver the cable bribe the engineer.^ § 1067. The impossibility must, it seems, arise impossi- in respect of some substantial or essential pai't of the raust^be contract ; * though it is not perhaps clear on principle ^^^^y^J'" why a contracting party who disables himself from part. performing modo et forma should be at liberty to allege that the incapacity which he has produced is in a non- essential particular. § 1068. But even though the particular in respect impossibi- of which the impossibility arises may not be of the duLdTy essence of the contract, yet if it be brought about fraud, by the fraudulent misconduct of the defendant, the plaintiff's right to rescind is clear in Equity. Thus where Compan}^ A. contracted with Company B. to lay a telegraph cable for Company B., and then bribed the engineer for whose services in certifying as to the work the contract provided, Mellish L.J. held that even if the certificate of the engineer could not be considered so much of the essence of the con- tract that the plaintiff would at Common Law have been entitled to rescind, yet that the fraudulent mis- conduct of the defendant company having made it impossible that the plaintiff company could have the full benefit of the contract, they were at liberty to rescind.^ viii. Want of mutuality. § 1069. In some cases at any rate the want of Rescission mutuality may be a ground justifying rescission. o7mutu- " Where a person," said the late Lord Romilly M.E,., aiity. " sells property which he is neither able to convey ' Keys V. Harioood, 2 0. B. 905. ■* Panama, &c. Telegraph Go. v. 2 Blanche Y. Cvlburn, 8 Bing. 14. India-ruhher, &c. Co., L. E. 10 Ch. at p. 532. 3 Panama, &o. Telegraph Co. v. , Panama, &c. Telegraph Co. v. India-ruhler, &c. Co., L. E. 10 Ch. India-rubber, &c. Co., L. E. 10 Oil. 515. 515. 462 OF THE DEFENCES TO THE ACTION. himself, nor has the power to compel a conveyance of it from any other person, the purchaser as soon as he finds that to be the case may say, * I will have nothing to do with it.' " ^ This view has been con- firmed by subsequent cases, and has been recently acted on by the Court of Appeal.^ ix. Statutory power. Bank- § 1070. Under sect. 55 of the Bankruptcy Act, Art.Tsss, 1883, the Court having jurisdiction in a bankruptcy s. 65 (5). may, on the application of any person who is, as against the trustee, entitled to the benefit of or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as to the Court may seem equitable ; and any damages pay- able under the order to any such person may be proved by him as a debt in the bankruptcy. 1 Farrar t. Nash, 35 Beav. 171. ^°^ ' ^'^^"''^y ^- -»«^^»^«™. [1891] . „ -r, •, , ^n -r^ 1 Oh.. 413. See, too, Maconchy v. ^ Brewer y. Broadiuood, 22 0)0.. T). ^, . nonon i t -d om o/mi ' Clayton, [1898] 1 I. E. 291, 309. 463 CHAPTER XXV. OF THE LAPSE OF TIME. § 1071. The lapse of time before application to Nature the Court for its interference to enforce an uncom- de/en^oe. pleted contract, or the fact that the plaintifB has not performed his part of the contract at the time speci- fied, may furnish grounds of defence to an action for specific performance. § 1072. Before the Judicature Acts, the plaintiff Time in a Common Law Court had to show that all things differently on his part to be performed had been performed regarded within a reasonable time, or, where a time was speci- and in fied in the contract, within the time so specified : and ^I'^^r- at Common Law time was thus always of the essence of the contract.^ But in Equity the question of time was differently regarded : for Courts of Equity, dis- criminating between these formal terms of a contract, a breach of which it would be inequitable in either party to insist on as a bar to the other's rights, and those which were of the substance and essence of the contract,^ and applying to contracts the principles which governed the interference of those Courts, in ' Berry v. Young, 2 Esp. 640, n. ; time is of course no bar to an action Wilde Y. Fort, 4: Taxmt. 334:; Stowell on the contract. Hall y. Oazenove, V. RoUnson, 3 Bing. N. 0. 928; 4 East, 477; Savelock y. Oeddes, 10 Alexander v. Godwin, 1 Bing. N. C. East, 555 ; Borneman v. Toohe, 1 671 ; Vernon v. Stephens, 2 P. Wms. Camp. 377 ; Lucas v. Godwin, 3 66; and cf. Nolle y. Edwardes, 5 Oh. Bing. N. 0. 737; Lamprell t. Bil- D. 378. Where a condition as to lericay Union, 3 Ex. 283. time is a mutual stipidation and not ^ Parhin y. Thorcld, 16 Beav. a condition precedent, the lapse, of 59. 464 OF THE DEFENCES TO THE ACTION. relation to mortgages/ held time to be prima facie non- essential, and accordingly granted specific performance of the contracts after the time for their performance had been suffered to pass by the party asking for the intervention of the Court, if the other party had not shown a determination not to proceed.^ " When," said Leach V.C., "a Court of Equity holds that time is not of the essence of a contract, it proceeds upon the principle that, having regard to the nature of the subject, time is immaterial to the value, and is urged only by vs^ay of pretence and evasion."^ Provision § 1073. Now, hovs^evor, stipulations in contracts Judicature ^^ '^^ time or Otherwise, which would not, before the Acts as to date of the commencement of the Judicature Act, ime. 1873, have been decreed to be or to have become of the essence of such contracts in a Court of Equity, receive in all Courts the same construction and effect as they would formerly have received in Equity.* In other words, the doctrines and rules of Equity as to the effect of lapse of time are now applicable to and "-govern every contract that falls within the jurisdiction of any of the Courts, superior or inferior,® of this country. So that, for instance, whilst before the Judi- cature Act the times fixed by a contract for payment and completion were, according to law, of the essence of the contract, so that non-payment by the default of the purchaser on the -day fixed authorized the vendor to treat the contract as rescinded, — since the Judica- ture Act the purchaser has a reasonable time after the stipulated day within which to pay before the vendor can rescind.^ These doctrines and rules, then, we now proceed to consider. ' See per Lord Eldon in 8eton v. Railway Co., 31 Beay. 504 (oom- Slade, 7 Ves. 273. pletion witliiii a reasonable time); ' Pineke v. Ourteis, 4 Bro. 0. C. 'In Doloret v. Bothschild, 1 S. & 329; RadcUffe v. Warrington, 12 S. at p. 598. Ves. 326. See per Lord Eedesdale * Jud. Act, 1873, s. 25 (7); Jud. in Lennon v. Napper, 2 Soh. & Lef. Act, 1875, s. 10. Cf. Nolle v. Ed- 684; per Lord Eomilly M.B. and toardes, 5 Oh. D. 378. Lord Cranworth (when V.C.) in ^ gee Jud. Act, 1873, s. 91. Parkin v. Thorold, 16 Beav. 59; 2 « Howe v. Smith, 27 Oil. D. 89, Sim. N. S. 1 ; Baker v. Metropolitan at p. 103. OF THE LAPSE OF TIME. 465 § 1074. It is proposed to discuss the subject in Division hand under the following heads ; viz. : — subject. (i) Cases where time was originally of the essence of the contract : (ii) Cases where time, though not originally of the essence of the contract, has been engrafted into its essence by subsequent notice : (iii) Cases where the delay has been so great as to constitute laches disentitling the party to the aid of the Court, and evidencing an abandonment of the contract irrespectively of any particular stipulation as to time : (iv) Cases where time does not run : (v) Cases where the objection on the ground of lapse of time is waived. i. Time originally of the essence of the contract. § 1076. Time is originally of the essence of the wiien contract, in the view of a Court of Equity, whenever it q™^" appears to have been part of the real intention of the essence. parties that it should be so, and not to have been in- serted as a merely formal part of the contract.^ As this intention may either be separately expressed, or may be implied from the nature or structure of the contract, it follows that time may be originally of the essence of a contract, as to any one or more of its terms, either by virtue of an express condition in the contract itself making it so, or by reason of its being- implied. It will be convenient to consider the cases separately ; premising, however, that the point that time is of the essence of the contract is one which should be made by the party insisting on it without delay. ^ § 1076. The Court of Chancery seems at one time Bye^tpress to have gone so far in its disregard of time as to con- condition. sider that it was of no consequence in Equity:^ and 1 Hipiuell V. Knight, 1 Y. & C. ^ Gibson v. Patterson, 1 Atk. 12, Tj, .„. \7Holi has been thought an erro- neous report. See Lloyd v. Colhif, 2 Monro v. TmjJor, 8 Ha. 51, 62. 4 Bro. C, 0. 469, n. (3). F. H n 466 OF THE DEFENCES TO THE ACTION. Condition must be clear. Instances. accordingly Lord Thurlow^ seems to have maintained that no expression in the contract could make time of the original essence of it. Lord Kenyon M.R., however, maintained the contraiy : ^ Lord Thurlow's doctrine was doubted by Lord Eldon :^ and accordingly express stipulations rendea'ing time of the essence have repeatedly been maintained as valid and binding in Equity/ in respect, for instance, of covenants for the renewal of leases,^ and stipulations as to the time for payment of the deposit" or the balance of the purchase-money .'^ § 1077. In order to render time thus essential, it must be clearly and expressly stipulated, and must also have been really contemplated and intended by the parties that it shall be so : it is not enough that a time is merely mentioned during which or before which something shall be done. § 1078. Therefore in a case where the contract, dated the 23rd of October, was to grant a new lease "upon condition" of the intending lessee paying on or before the end of the month a premium of 1,000 guineas. Lord Eldon nevertheless refused (on an inter- locutory application) to treat the period limited by the contract as essential, considering that, upon the facts of the case, the amount of the premium was really the only thing contemplated by the parties, and that there was nothing to show that payment at a particular day was the object,® So, again, where a day was specified for the delivery of the abstract, it was held non-essential, although the purchaser upon its expiration immediately refused to proceed : ^ and in Parkin v. Thorold^'^ where a day had ' Oregson T. Riddle, cited by Eomilly, arg. 7 Ves. 268. 2 Mackreth v. Marlar, 1 Cox, 259. 3 In Seton y. Slade, 7 Ves. 270. * Hudson Y. Bartrani, 3 Mad. 440; Lloyd v. Bippingnh, cited 1 T. & 0. Ex. 410. * Baynliam v. Ouy^s Hospital, 3 Ves. 295. " Honeymany. Marryat, 21 Beav. 14, 24. ' Barclay v. Messenger, 22 W. E. 522 ; 43 L. J. Ch. 449. 8 Hearne v. Tenant, 13 Ves. 287. ° Boberts v. Berry, 16 Beav. 31, affirmed 3 De G. M. & G. 284. Consider Venn v. Cattell, 27 L. T.' 469. '" 16 Beav. 59 ; but see the judg- ment of Jessel M.E. in Barclay v. Messenger, 22 W. E. 622 ; 43 L. J. Ch. 449. OF THE LAPSE OP TIME. 467 been specified for the completion of the contract, Lord Romilly M.R. held it to be non-essential, though in so doing he differed from the previous observations of Lord Cranworth, made (when V.C.) in the same case at an earlier stage. ^ Lapse of time in payment of the purchase-money may generally be recompensed by interest and costs.^ § 1079. Time may be implied as essential in a impHed. contract, from the nature of the subject-matter with which the parties are dealing. '-'If, therefore," said Alderson B.,® "the thing sold be of greater or less value according to the effluxion of time, it is nianifest that time is of the essence of the contract : and a stipulation as to time must then be literally complied with in Equity as M'ell as in Law." In respect of reversionary interests, therefore, it is held to be of the essence of justice, that contracts for sale should be executed immediately and without any delay,* unless indeed the terms of the contract are such as to show that the parties contemplated the possible occurrence of a delay, and intended, in the event of that delay occurring, to keep the bargain alive.^ Ordinarily, the purchaser of a reversion may not lie by until the position of the parties is altered, and then, when the reversion falls in, come and say " Give me the fund."*^ § 1080. So, again, where the subject-matter is Subjeot- from its nature exposed to daily variation, the Court ™aUT^^ inclines to hold time to be material, as in the sale of varying. the stock in a public-house,'^ in contracts for granting annuities on lives,^ and in purchases of government stock.® § 1081. And so, again, where the object of the Oommer- 1 Parkin v. Tliorold, 2 Sim. N. S. at p. 348. See infra, § 1087. 1. Distinguisli Barclay v. Measen- ^ Levy v. l^togdon, [1899] 1 Ch. ger, 22 W. E. 522; 43 L. J. Ch. 449. at p. 10, affirming the decision of 2 Vernon t. Stephens, 2 P. Wms. Stirling J. [1898] 1 Ch. 478. 66. ' Coslake v. Till, 1 Euss. 376; " In Hipwell Y. Knight, lY.&C. Weston v. Savage, 10 Ch. D. at Ex. 416. p. 741. * Newman y. Rogers, 4 Bro. C. 0. » Withy v. Cottle, T. & E. 78. 391 ; Spurrier v. Hancock, 4 Ves. ' Doloret t. Rothschild, 1 S. & S. 667, 590. See also Lewis y. Lord Lech- 5 Patrick V. Milner, 2 C. P. D. mere, 10 Mod, 503. hh2 468 OP THE DEFENCES TO THE ACTION. ciai enter- contract is a Commercial enterprise, the Court is ^™^' strongly inclined to hold time to be essential, whether the contract be for the purchase of laud for such pur- poses, or more directly for the prosecution of trade. ^ This principle has been acted on in the matter of a contract respecting land which had been purchased for the erection of mills,^ also in relation to a sale of pasture lands, required by the purchaser, as the vendor knew, for stocking,^ and in several cases of contracts for the sale of public-houses as going concerns.* For the purchaser of a public-house presumably buys it for the purpose of carrying it on, and it would be ruinous to him if he were kept out of it.** Mines. § 1082. The same principle applies with especial force to contracts relating to mines. The nature of all mining transactions is such as to render time essential : for no science, foresight, or examination can afford a sure guarantee against sudden losses, dis- appointments, and reverses, and a person claiming an interest in such undertakings ought therefore to show himself in good time willing to partake in the possible loss as well as profit." So in several cases time has been held of the essence in contracts for the sale of mines and works.'' Coal. g 1083. Again, where the contract had relation to ^ Walker Y.Jeffreys, 1 Ha. 341, of a licensed public-house were dis- 348 ; Cuslake v. Till, 1 Euss. 376. cussed. '^ Wright v. Howard, 1 S. & S. ° Per James L.J. in CowJes v. 190. (?a7e, L. E. 7 Ch. atp. 15. ' Dyas T. Rooney, 27 L. E. Ir. 4 ; * Per KnigM Bruce L.J. in Pren- afflrming S. 0. 25 L. E. Ir. 342. dergast v. Turton, 1 T. & 0. 0. 0. * Beaton v. Mapp, 2 Coll. 556 1 10, and in Clegg v. Edmondson, 8 (where the essentiality of time was De G. M. .& G. at p. 814. arrived at from the Conditions as '' ParkerY. Frith, IS. &S. 199, n.; well as from the subject-matter) : per Lord Eldon in City of London Day V. Luhke, L. E. 5 Eq. 336; y. Mit/ord, 14 Ves. 58; Walker v. Cowles Y. Q-ale, L. E. 7 Ch. 12. See, Jeffreys, 1 Ha. 341 ; AUoway v- too, the judgment of Hall V.C. in Braiue, 26 Beav. 575 ; and cf. Eads Weslvn Y. Savage, 10 Ch. D. at v. Williams, 4 De G. M. & G. 674; ■p. lil, a,n(l Claydon Y. Oreen, Jj. B:. Clegg v. Edmondson, 8 ib. 787; 3 C. P. 511; also Tadcaster Tower HuxhamY. Llewellyn, ll'W.'&.blO, Brewery Co. Y.Wilson, \_\B9''\ I Ch. 766; Olasbrook v. Richardson, 23 at p. 711, in which case (at pp. 709, W. E. 51, infra, § 1109; Nicholson 710) the obligations of the vendor v. Bmith, 22 Oh. D. 640. OF THE LAPSE OF TIME. 469 the supply of coal, and eleven months were allowed to elapse before filing the bill, the article being one fluc- tuating from day to day in its market price, the Court held the delay a ground for declining its interference : ^ and where the contract contemplated the payment of Patents. moneys to be applied towards obtaining patents, time was from the nature of the object in view held to be of the essence.^ § 1084. So, again, where a contract specified a Shares. time by which calls were to be paid up, or in default "the shares were to be forfeited;^ and where a contract gave an option to be exercised before a certain time to convert loan notes into shares : * in both these cases time was from the nature of the subject-matter of the contract held to be essential. It may here be noticed that where a contract for the sale of shares does not fix a time for the delivery of the certificates to the purchaser, the vendor's obliga- tion is to deliver them within a reasonable time ; and an unreasonable delay in performance of this obliga- tion may justify the purchaser in refusing to accept the shares.® § 1085. The case of Macbrydey. Weelces^ is a strong Madryde illustration of the principle under discussion. There ^" the plaintiff by the contract undertook to purchase a field adjoining his own, to procure an assignment of a term, and to do other things which usually require time : but the natui'O of the subject-matter of the contract, which was a colliery, was held to make time of the essence of the contract, to the extent of rendering it incumbent on the vendor to use his utmost diligence in completing the contract, and giving the purchaser a right to decline completing, if the vendor failed in so exerting himself. In this case the purchaser, after ' Pollard V. Clayton, 1 K. & J. ^ Cumjohell v. LonJun and Brir/hfon 462; per Lord Eedesdale in Oro/ton Railway Co., 5 Ha. 519, 529. V. Ormsiw, 2 Sch. & Lef. 604. Cf. „ ^ , . „ ,„ . „ , Ti 11 oi -rtr -D ^DeWaaly.Adler,12Km.Ca.a. Euxham v. Llewellyn, 21 W. E. , ,. ,.. 570, 766, infra, § 1110. ^^^' ^^• '^ Payne v. Banner, 15 L. J. Ch.. ° 22 Beav. 533, 539 ; cf . Haxham 227. V. LUa'dhjn, 21 W. E. 570, 766; 3 Sparles v. Liverpool Waterworks and, as to the notice, infia, §§ 1092 Co., 13 Ves. 428. e« seq. 470 OF THE DEFENCES TO THE ACTIOX. Surround' ing cir- cum- stanoes. Condition showing time not of the essence. little more than two months had elapsed from the date of the contract, gave the vendor notice that, unless he completed it within another month, the purchaser would rescind, and the time so limited by the pur- chaser was held to be, under the circumstances, reasonable. § 1086, The essentiality of time may also be im- plied from the surrounding circumstances connected in each case with the particular contract.^ Thus where a man purchasing a house with the object of immediately occupying it as his own residence stipu- lated in the contract that possession should be given on a specified day, and the vendor failed to show a good title by that day, it was held that the stipulation as to time was of the essence of the contract,'^ and the vendor, though he offered actual possession, failed to enforce specific performance.^ Possession in such a contract means possession with a complete title pre- viously shown.* § 1087. The case of Webb v. Hughes^ is not at variance with this principle, but illustrates a limitation of it. There, too, the house and land, the subject- matter of the contract, were required by the purchaser for immediate residential occupation, but the condi- tions of sale, after naming a day for completion, went on to provide that if, from any cause whatever, the purchase should not then be completed, the purchaser should pay interest on the unpaid purchase-money from that day until the actual completion of the pur- chase ; and it was accordingly held that, inasmuch as parties to the contract evidently contemplated the possibility of the completion being postponed beyond the day named, time was not of the essence. The }-atio decidendi of this case is obviously applicable what- ever the nature of the subject-matter of the contract, and it has accordingly been applied even to the sale of a reversionary interest.'^ 1 Per Turner L.J. in Boherts y. Berry, 3 De G. M. & G. at p. 291. ^ See Oedye v. Duhe of Montrose, 26 Beav. 45. '3 TilleyY. Thomas, L. E. 3 Ch. 61. 1 Per Eolt L.J., L. E. 3 Ch. at p. 68. As to possession, see also Lake v. Dean, 28 Beav. 607. = L. E. 10 Eq. 281. « Patrick v. Milner, 2 0. P. D. 342. -.'... OF THE LAPSE OP TIME. 471 § 1088, Again, wliere the members of a company Option of in general meeting agreed to certain conditions on from which dissenting members should be allowed to retire company. from the company, and one of those conditions fixed a date by which the option to retire was to be declared, the House of Lords held that that date was so essential a part of the arrangement, that the directors had no power to allow any member to retire who had not declared his option within the limited time.^ § 1089. Where hardship would result from con- Where sidering time immaterial, as where delay in completion ^'oufa would involve one of the parties in a serious liability j^^^^Tfj or loss, the Court will incline to consider time as being of the essence. Thus where a tenant without any definite interest, agreed for the sale of his goodwill and business to a purchaser to be completed on the 25 th of March, that day was considered essential, inas- much as if the contract were not then completed, the vendor might render himself liable as tenant for the ensuing year.^ And so, again, where the body to par- ticipate in the purchase-money, being a Chapter, was liable to variation, non-jDayment of the consideration money at the specified time was held fatal to the subsistence of the contract.^ § 1090. Where the vendor stijDulates that time Time in shall be of the essence in respect of some of the con- respects ditions in his favour, the Court inclines to hold it °**^'* essential m respect of others also against him. Ven- dors so stipulating for the essentiality of time in their favour, " cannot fairly," said Knight Bruce V.C., "complain of being held strictly to the conditions themselves The plaintiffs' proposition is that the purchaser shall be held by a cable, and the ven- dors by a skein of silk."* Accordingly where it was, by one clause of the contract, provided that the vendors should deliver the abstract to the purchaser within 1 Houldaworth y. Evans, L. E. 3 & G. at p. 292 ; St. Leon. Vend. H. L. 263. 227. ^ Codake Y. Till, 1 Euss. 376; 3 CaHer y. Dean of Ely, 1 Sim. Wells y. Maxwell (No. 1), 32 Beay. 408, affirmed 33 L. J. Oh. 44; 11 ^^^• W.'R. 842; GreenY.Sevin, 13 Ch. J). * 'S'e"*'"* v- ^^"PP> 2 Coil. 556, 589; Boberta y. Berry, 3 De G. M. 564. essence. 472 OF THE DEFENCES TO THE ACTION. twenty-one days from the date of the contract, and, by another clause, that the purchaser should send in his requisitions within twenty-eight days from the de- livery of the abstract, and in this respect time should be of the essence of the contract ; and the vendors did not deliver the abstract until more than two months after the date of the contract ; the Court refused to hold the purchaser bound to comply with the stipula- tion as to the time for sending in requisitions, holding that, in such a case, the time for taking the objections, and the mode in which they are to be considered as waived, should depend upon the general principles of the Court.* Where the § 1091. Where the contract contains stipulations contract is*r» (» . ijpn ji p unilateral. ^^ lavour oi ono party and not oi the other, — as, tor instance, an option, — or is in anywise unilateral, the Court, if it does not consider time as originally of the essence, will, as we shall hereafter see, look at it with more than usual strictness.^ When time may he engrafted. ii. Time made essential by notice. § 1093. Where time was not originally of the essence of the contract, but one party has been guilty of gross, vexatious, unreasonable, or unnecessary delay or default in relation to it, the other party becomes entitled to limit a reasonable time within which the contract shall be perfected by the other; and in default of obedience to such notice the Court will not enforce specific performance, but will leave the parties to their strictly legal rights.^ It is to be observed that it is only when such delay or default has happened that this right occurs. There is no general right in either party to limit a time. Where the right exists, 1 Upperton v. Nicholson, L. E. 6 Oh. 436. 2 See infra, § 1103. As to the exercise of options, see Moss v. Barton, L. E. 1 Eq. 4*74 (lease); Austin Y. Taivney, L. E. 2 Ch. 143 (purchase); Dibhiny. Dihhin, [1896] 2 Ch. at p. 350 ; and Friary TIol- royd and Umley's Breiueries v. Sin- gleton, [1899] 1 Ch. 86; [1899] 2 Ch. 261 (exercise of option by equit- able assignees). ' Taylor v. Brown, 2 Beay. 180 ; Benson v. Larnb, 9 Beav. 502 ; Nokea V. Lord Kilmorey, 1 De G. & Sm. 444. OF THE LAPSE OF TIME. 473 and the vendor is tlie party in default and has received a deposit, the purchaser may, after reason- ably exercising the right, maintain an action against the vendor for recovery of the deposit, with interest and the costs of investigating the title.^ § 1093. This beneficial principle is of compara- lutroduo- tively recent introduction. In a case before Leach tioiiof the V.C. in 1821, he did not consider it to be then decided that time could thus be made essential by subsequent notice ; ^ and where clear notice had been given that a purchaser would insist on completion by the time specified. Lord Erskine had previously refused to con- sider time as of moment in the contract.^ But the principle is now well established. §1094. It is not, of course, possible for either The time party arbitrarily and suddenly to put an end to nego- J,™^o^(,g tiations as to title,* or other matters pending between must be the parties. The time specified by the notice must ^bk?'^' be reasonable, i.e., long enough for the proper doing of the things required to be done : ^ if it be not so (and the question of reasonableness must be determined as at the date when the notice is given''), the notice will fail in engrafting time into the essence of the contract. Thus, in one case, six weeks, being a less time than the vendor took to furnish the abstract, were held to be an unreasonably short time for the vendor to insist on the purchaser's completing, and the notice was therefore inoperative ; '' in another case, fourteen days were held not to be a reasonable time within which to require the plaintiffs to produce a deed and complete the title ; ® and, in another, where, after negotiations 1 Compton v. Bagley, [1892] 1 Ch. ' Pegg v. Wisden, 16 Beav. 239. 313. Distinguish Smith t. Batsford, 76 2 Reynolds v. Nelson, 6 Mad. 18. L. T. 179, where a notice by the = BadcUffe v. Warrington, 12 Ves. vendor, requiring the purchaser to 326. complete in ten days, was, under ^ Taylor v. Brown, 2 Beav. 180 ; the circumstances, hold reasonable. Oreen v. 8evin, 13 Ch. D. 589. « Parkin v. Thorold, 16 Beav. 59 '^ King v. Wilson, 6 Beav. 124; (cf. S. C. 2 Sim. N. S. 1). Distin- but see Machryde v. Weekes, 22 guish Compton v. Bagley, [1892] 1 Beav. 533 ; supra, § 1085. Oh. 313. See, too. Wells v. Maxiuell 6 Crawford v. Toogood, 13 Oh. D. (No. 1), 32 Beav. 408, affirmed 33 153. L. J. Oh. 44; 11 W. E. 842; Oreen 474 OF THE DEFENCES TO THE ACTION. Previous refusal to remove objection. Condi- tional waiver of notice. Nature of the subject- matter. as to the title had been going on for upwards of three years, the purchaser gave notice that, unless a good and marketable title were shown and made out within five weeks he would treat the contract as at an end, the notice was held unreasonable and bad.^ And again when the objection is one of conveyance and not of title, and the date for the completion of the contract is not of the essence, the proper course for the pur- chaser to pursue where the vendor has made default at the day, is to give him a notice to complete within a reasonable time, and that in default the contract will be rescinded.^ § 1095. But where a vendor has previously re- fused to remove an objection, a time which would be unreasonably short in the first instance for the removal of it may then become a reasonable period, after which the purchaser may treat the contract as rescinded.^ § 1096. Again, where a notice to rescind was waived in case evidence requisite to prove the title was produced immediately, the evidence not having been produced, the bill was dismissed.* § 1097. And the nature of the contract rendering expedition obligatory, may make reasonable a notice which would otherwise be too short. Thus, where A. agreed to grant B. a mining lease, and for that purpose undertook to buy a field adjoining his own, to procure an assignment of a term, and do other acts requiring time, and nine weeks elapsed from the contract with- out any communication from A. to B. to show when the contract was likely to be completed, and B. then gave A. notice to complete within one calendar month, and in default to rescind the contract ; it was held that the nature of the subject-matter of the contract rendered expedition on the part of the lessor essential, and that the month's notice was reasonable.® And similarly, where the subject of the contract, entered into on the 25th of August, 1890, was a farm, and V. Sevin, 13 Ch. D. 589 ; Crawford V. Toogood, 13 Ch. D. 153. 1 McMurray v. Spicer, L. E. u Eq. 527. 2 Haiton Y. Russell, 38 Ch. D. 334. 2 Noit V. Biccard, 22 Beav. 30". * Stewart v. fimith, 6 Ha. 222, n. (LeaohV.O.). * Machryde v. Weekes, 22 Beav. 533. OF THE LAPSE OF TIME. 475 it was in the contemplation of the parties that the purchaser was personally going into possession, and that the purchase should be completed so as to allow of his entering into possession at or about the following Michaelmas, it was held that a notice given on the 13th of October, 1890, by the purchaser's solicitors to the vendor's solicitor, to the effect that unless a proper abstract was delivered within fourteen days the pur- chaser would treat the contract as at an end, was a reasonable notice.^ § 1098. The notice to engraft time into the con- What tract must be distinct, and unequivocal : thus, a notice re'quisite that one party would consider the non-performance by a cei'tain day as equivalent to a refusal to perform, was held not to amount to a notice that the contract would then be considered as rescinded.^ Tlie notice should, for certainty, be confined to the next act to be done by the party to whom it is given. § 1099. It does not appear to be necessary that where the notice should be in writing : for this purpose state- ^ll°lg nients made by the purchaser's agent at the time of sufficient. signing the contract, to the effect that time was essen- tial, were in one case admitted as evidence.^ iii. Lapse of time constituting laches or evidencing ahandonment of contract. § 1100. The Court of Chancery was at one time Delay as inclined to neglect all consideration of time in the i^'=i^''^- specific performance of contracts for sale, not only as an original ingredient in them, but as affecting tlieni by way of laches.* But it is now clearly established, that the delay of either party '^ in not performing its terms on his part, or in not prosecuting his right to the interference of the Court by the institution of an action, or, lastly, in not diligently prosecuting his 1 ComptoiiY. Bagley,\\%'d2']\Ck. tMs makes a diflerenoe, query. 313, 318. See per KnigM Brace V.C. at 2 Reynolds T, Nelson, 6 Mad. 18. p. 458. 3 Nokes V. Lord Kilmorey, 1 De ^ See supra, § 1076. G. & Sm. 444. In that case the ^ Rich v. Oalc, 24 L. T. N. S. purchaser was defendant. Whether 745. 476 OF THE DEFENCES TO THE ACTION. Maelcreth V. Marlar. Laches a bar to relief. Contract action, when instituted/ may constitute such laches as will disentitle him to the aid of the Court, and so amount, for the purpose of specific performance, to an abandonment on his part of the contract. § 1101. One of the earliest cases tending to esta- blish this principle was Mackreth v. Marlar'^ before Lord Kenyon M.R. : Lord Loughborough followed it, and held in one case where a vendor delivered no abstract on or before the day for completion, nor till after an action for the deposit, and the purchaser had demanded back his deposit at the date for completion, that there was evidence of an abandonment of the contract by the vendor.'' These cases were approved by Lord Alvanley M.R. ;* and finally the doctrine in question was adopted and acted on by Lord Eldon : thus, for example, in one instance he on this ground discharged a purchaser under a decree, error having been shown in the decree, though the parties were proceeding to rectify it.^ § 1102. The doctrine of the Court thus esta- blished, therefore, is that laches on the part of the plaintiff (whether vendor or purchaser), either in exe- cuting his part of the contract or in applying to the Court, will debar him from relief. "A party cannot call upon a Court of Equity for specific performance," said Lord Alvanley M.R.,*^ " unless he has shown him- self ready, desirous, prompt, and eager ; " or, to use the language of Lord Cranworth,'^ " specific perform- ance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit."^ § 1103. Where the contract is in anywise uni- 1 Moore v. Blake, 1 Ball & B. 62. » 1 Cox, 259. 3 Llnyd V. Collett, 4 Bro. 0. 0. 469 ; Harrington v. Wheeler, 4 Ves. 686. * Fordyce v. Ford, 4 Bro. 0. 0. 494. * Lechmere r. Brazier, 2 J. & W. 287 ; Coster v. Turner, 1 E. & My. 311. See also Cuhitt v. BlaJce, 19 Beav. 454. " In Milward v. Earl Thanet, 5 Ves. 720, n. ' In Fads v. Williams, 4 De G. M. & G. at p. 691 ; 24 L. J. Oh. 531. ^ See also Alley v. JDeschamps, 13 Ves. 225 ; Williams r. Williams, 17 Beav. 213; Firth v. Greenwood, 1 Jur. N. S. 866 (Wood V.O.); Mills V. Haywood, 6 Oh. D. at p. 202, OF THE LAPSE OF TIME. 477 lateral, as, for instance, in the case of an option to not purchase, a right of renewal,^ or of any other con- "^" ^^ ' dition in favour of one party and not of the other, then any delay in the party in whose favour the con- tract is binding is looked at with especial strictness.^ On this principle, the delay of a pui'chaser in deciding ■whether he will or will not accept the title is an in- justice, because the purchaser can enforce the contract against the vendor whether the title be good or bad, whereas the vendor can only do so in case of a good title. ^ § 1104. So where a railway company agreed to Dambi/ make such crossings as the landowner's surveyor J;^' ' should within one month direct, and notify in writing -ffiaife«i/ to the company or their engineer, and the surveyor did not give any such direction or notification until after the expiration of the stipulated time, it was held that the landowner's right to have the crossings made under the contract was lost.* § 1105. But where no time has been originally Option limited within which a tenant's option to have a lease lease™ must be exercised, and the landlord has never called upon the tenant to declare his option, mere lapse of time will not preclude the tenant® or his assign^ or legal personal representative'^ from exercising it. § 1106. Acquiescence in the breach of a covenant Aoquiea- will form a bar to its specific performance in Equity.^ ''^^'^'^■ ^ See Hussey v. Domvile, [1900] 1 ' Spurrier t. Hancocl-, 4 Yes. 667, I. E. 417, 445 (covenant to renew 672, 673. ■witMn a limited time upon the 4 jij^ri of Darnleij v. London, tenant nominating a new life within Chatham and Dover Railway, 1 a specified time). De G. J. & S. 204 ; 3 ib. 24 ; L. E. * Allen V. Hilton, 1 Fonbl. Bq. 2 H. L. 43. 432 ; Brooke v. Garrod, 3 K. & J. , j^^^^ ^_ j^^^^ j^ ^ ^ -^ ^^^_ 608 ; 2 De G. & J. 62 ; Lord Bane- lagh Y. Melton, 2 Dr. & Sm. 278 ; Weston V. Collins, 13 "W. E. 510. Distinguish Ward v. Wolverhampton Waterworks Co., L. E. 13 Eq. 243; ^^'^^1/' 24 Oh. D. 199; S. 0. affd. and see Austin v. Taivney, L. E. 2 27 Ch. D. 394 ; cf. Friary Ifolroyd Oh. 143, and Nicholson v. Smith, 22 ««^ Eealey's Breweries v. Singleton, Oh. D. 640, where the necessity of [1899] 1 Oh. at p. 90; [1899] 2 Oh. strict compliance with the terms of ^* P- 263. an option as to time was recognized, ^ Barret v. Blagrave, 6 Ves. 104 ; and held to haye been satisfied. Bayers v. Gollyer, 28 Oh. D. 103. ^ BucMand v. Papillon, L. E. 2 Oh. 67. ' Be Adams and Kensington 478 OF THE DEFENCES TO THE ACTION. What delay sufficient. Instances. After notice by the other party. § 1107. In many of the cases there has been a general dilatoriness in all the proceedings, so that it is almost impossible to state briefly the actual amount of delay which has been considered to bar the plaintiff's right to relief : but some notion of the present doctrine of the Court on this point will be gained from the following cases. § 1108. In the old case of The Marquis of Hertford V. Boore^ a delay of fourteen months was not con- sidered a bar to the plaintiff's bill. But in Eads v. Williams''^ (where the contract was for a lease of a coal mine), a delay of three and a half years was considered fatal : in Southcomh v. The Bishop of Exeter,^ a delay from the 17th of January, 1842, to the 30th of August, 1843, was held to have the same effect : and in Lord James Stuart v. The London and North- Western Railwaij Co.,*' Knight Bruce L.J. seemed to think that a delay from October, 1848, to July, 1850, must be fatal to such a bill. § 1109. Where one party to the contract has given notice to the other that he will not perform it, acqui- escence in this by the other party, by a comparatively brief delay in enforcing his right, will be a bar : so that in one case^ two years' delay in filing a bill after such notice, in another case" one year's, and in a third'' (where the contract was for a lease of collieries) five months' like delay were held to exclude the interven- tion of the Court. ' 5 Ves. 719. 2 4 De G. M. & G. 674 ; 24 L. J. Ch. 531; cf. supra, § 1082. 3 6 Ha. 213. * 1 De G. M. & G. 721. See also Spurrier v. Hancock, 4 Ves. 667 ; Harrington v. Wheeler, 4 Ves. 686 ; Quest V. Homfray, 5 Ves. 818 ; Thomas v. Blachman, 1 Coll. 301, 313; Sharp v. Wright, 28 Beav. 150; Moore v. Marrahle, L. E. 1 Oh. 217. 5 Heaphy v. Hill, 2 S. & S. 29. « Watson Y. Reid, 1 E. &My. 236. See also per Lord Eomilly M.E. in Parkin v. Therold, 16 Beav. 73, and Lehmann v. McArthur, L. E. 3 Oh. 496. ' Huxham v. Llewellyn, 21 W. E. 570, 766. See, too, Glasbrook v. Richardson, 23 W. E. 51 (delay of 3 months and 13 days). OF THE LAPSE OF TIME. 479 iv. Where time does not run. § 1110. Where the contract is substantially exe- Contract cuted, and the plaintiff is in possession of the property, tSluV'^" and has got the equitable estate, so that the object of executed. his action is only to clothe himself with the legal estate, time either will not run at all as laches to debar the plaintiff from his right, or it will be looked at less narrowly by the Court ;^ for the plaintiff has not been sleeping on his rights, but relying on his equitable title, without thinking it necessary to have his legal right perfected.^ § 1111. Tlierefore, where a tenant holds under a instances. contract for a lease, pays his rent, and has possession of the property and the enjoyment of all the benefits given him by the contract, the effluxion of time will not be a ground for resisting its enforcement : ^ and so, Avhere there was a contract for the lease of a shop and the sale of the stock, and the stock had been paid for, the plaintiff had been ]Dut into possession as lessee, and tlie rent had been paid, — in fact, everything had been done but the execution of the lease, which the defendant had refused to execute on a ground which was un- tenable, — specific performance of the lease was granted, notwithstanding considerable laches on the part of the plaintiff subsequent to the defendant's refusal, but therefore without costs.* § 1112. But possession, to save a purchaser from Posses- the usual consequence of delay, must be possession ^"^^^ef under the contract sought to be enforced, and the the con- vendor must have known or have been bound to know that the purchaser claimed to be in possession under the contract. Accordingly in a case where the tenant of a tavern, with an option of purchasing it during his term, duly gave notice that he elected to purchase, 1 JPer Lord Eedesdale in Crofton heard v. Walker, L. E. 20 Eq. 659. T. Ormshy, 2 Soh. & Lef. 604. '' Burke v. Smyth, 3 Jon. & L. '^ See Cartan v. Bury, 10 Ir. Ch. 193. See also jjer Lord St. Leonards E. at p. 395 ; Homan v. Skelton, 11 in Ridgway v. Wharton, 6 H. L. C. Ir. Oh. E. at p. 96. 292 ; and consider Brophy v. Con- 3 Clarke v. Moore, 1 Jon. & L. nolly, 7 Ir. Cli. E. at p. 17Y; Finu- 723 ; Sharp v. Milligan, 22 Bear. mne t. Turner, 13 Ir. Oh, E. 488, 606 (affirmed by tteL.JJ.); /SAep- 494. 480 OF THE DEFENCES TO THE ACTION. but after some correspondence allowed the subject to drop, and then for upwards of five years remained in possession without ever insisting on the effectuation of the purchase, and from time to time making payments to the lessor's mortgagee for most of which he took receipts expressing them to be for rent, it was held by the Court of Appeal that his possession had not been such as to prevent his delay being fatal to his claim for specific performance.^ Pending § 1113. Nor Will time run as laches pending a Son? '^' negotiation between the parties to the contract, even though it may be carried on without prejudice to a notice given by one party that he holds the contract rescinded.^ But where the negotiation is about a point which is not the real cause of the delay, its pendency will not prevent the effluxion of time ope- rating as laches : so where, on a sale and purchase of lands, disputes arose about the title and a valuation incident to the purchase, but from the evidence it appeared that want of means in the purchaser who had instituted the suit, and not these disputes, was the real cause of delay. Knight Bruce V.C, though after some hesitation, refused specific pei^formance, as the plaintiff in such suits must have more than a doubtful title .^ Delay § 1114. When the delay arises from an untenable from"farty objectiou taken by one party, that party cannot avail objecting, himsclf of the delay caused hy it, as a ground for the non-performance of the contract.* And generally, whenever the delay is attributable to the defendant, he will not be allowed to avail himself of it as a defence.® Zamm-eY. § 1115. In Lumare v. Dixon^ an intending lessee, relying on a verbal promise by the owner of some wine vaults that they should be made dry, signed a 1 Mills T. Eaytuood, 6 Ch. D. 196. 713, Y23. ■^ Sotithcomb v. Bishop of E.nfer, ^ ■^^"''s'' v. irerest, 6 Mad. 26 ; 6 Ha. 213' McMurray T. Spiar Shrcwshury and Birminrjliam Rail- L. E. 3 Eq.' 527 ; and cf . Lehmann «'"2/ C"- ■^- London and North Western V. McArthur, L. E. 3 Ch. at p. 504. Rail^^ay Co., 2 Mac. & G. 324, 355 ; per Lord St. Leonards in Ridgway 3 Gee V. Pearse, 2 De G. & S. 325. ^_ wharton, 6 H. L. 0. 292. * Monro y- Taylor, 3 Mac, & G. « L. E. 6 H. L. 414. Dixon. OP THE LAPSE OF TIME. 481 written contract to accept a lease of the vaults at a specified rent, and went into possession. The vaults not being made dry, the tenant constantly complained, and, though he paid rent, always paid it under pro- test ; until, finally, after having actually occupied the vaults for upwards of two years, he refused to take the lease on the ground that the owner's promise had never been fulfilled. The House of Lords held that the tenant's payments were referable merely to his actual use and occupation of the premises, that such payments and possession did not amount to such acquiescence as to debar the tenant from defending his refusal on the ground of the non-performance of the promise which had been the inducement to the contract, and that the owner's delay and conduct in the matter generally disentitled him to insist on specific performance of the contract; but the House considered the delay which had occurred so chargeable to both parties that the bill, though dismissed, was dismissed without costs. § 1116. The fact that the purchaser has allowed Leaving the deposit to remain in the hands of the vendor from ^^""^ ' the time when the former rescinded the contract until the filing of the bill, has been decided not to affect the question of laches.^ § 1117. So also continuing in possession, if under Contina- an arrangement to that effect, will not affect the p'^fse^sion. question.^ § 1118. In a case already referred to, Lord Romilly Lmd M.R. expressed the oj^inion that time does not run as ^^q^ct laches in the case of land taken under a Railway Act, Railway until the time during which the company had the jDOwer to make the railway ceased, as the fact whether the company would require the land or not could not be ascertained until that time ; ^ but this view was not adopted by Knight Bruce and Lord Cranworth L.J J, , ' Watsony. Held, ITi. &M.y. 236; ^ Lord James Stuart t. London Southcomb T. Bishop of Exeter, 6 „„^ ^^rf A Western Railway Co., 15 Ha. 213, 224. 2 Southcomh v. Bishop of Exeter, Beav. 513 ; S. C. 1 De G. M. & G. uhi supra. 721, F. II 482 OF THE DEFENCES TO THE ACTION. Mere claim. wlio seem to have thought that time would run frOm the date of the contract. § 1119. It is to be observed that a mere claim or protest by words or letters, though continual, un- accompanied by any act to give effect to them, will not prevent time operating as laches against the party making the claim, nor keep alive a right which would otherwise be precluded.^ Instances. V. Waiver of delay. Waiver ty § 1120. Objections grounded on the lapse of time con not. ^^,g ^a^iyg(j -\fyj 2, courso of conduct inconsistent with the intention of insisting on such an objection : and in this respect it is immaterial whether time was originally of the essence or was subsequently engrafted on the contract.^ § 1121. Therefore, where a title is in a state which may cause delay, or a good title has not been completely shown by the day for completion, and the purchaser goes on dealing about the title after that day, this will waive his right to insist on the time.' So the examination of the abstract after the time will prevent a defendant insisting on time as essential, for he had no right to look into the abstract if he meant to abandon his purchase.* And such .conduct will amount to a waiver, even though a formal notice to abandon the contract may have been given.® So again, insisting on the contract after the time limited for completion is an act waiving the right to insist on that time as essential.® But where a purchaser pro- tests against delay, and then under protest deals about the title, this will not, it seems, amount to a waiver.' § 1122. As a general principle, a stipulation as to time cannot be bindingly waived otherwise than by an Intention and know- ledge requisite. ' Clegg v. Edmondson, 8 De G. M. & Q-. 787, 810; Lehmann v. McArthur, L. E. 3 Ch. 496, 504. 2 King T. Wilson, 6 Beav. 124. ^ Pinche v. Curteis, 4 Bro. 0. 0. 329. * Seton Y. Blade, 7 Ves. 265. = Hipwell T. Knight, 1 T. & 0. Ex. 401. « Pegg v. Wisden, 16 Beay. 239. ' Magennis v. Fallon, 2 Moll. 561, 576. See, too, Dyas v. Rooney, 25 L. E. Ir. 342 ; 27 L. E. Ir. 4, where there was held to have been no waiver. But see St. Leon. Vend. 291. OP THE LAPSE OF TIME. 483 intentional act, done with knowledge of all material circumstances. Accordingly in a case already cited, where a railway company agreed to do certain works to be directed by the award of a surveyor, to be made within a specified time, and the award was not made within that time, the company were held not to have waived the condition as to time by having, in ignor- ance of the fact that the award was made late, taken it up and paid the surveyor's charges for it.' § 1133. Again as to time for payment: where an As to time assignor of a lease insisted on a forfeiture of the meiS?'''" assignment by reason of non-payment of part of the purchase-money at the time stipulated, he was held to have waived it by getting the assignee to pay the rent to the superior landlord, that not being consistent with the notion that the agreement was at an end.^ In another case there was a contract that if the residue of the purchase-money was not paid at a certain day, the contract should be void : it was not paid, but the vendor, allowing the purchaser to retain possession and taking from him a warrant of attorney to confess judgment in ejectment, was held to have waived the condition.^ § 1124. As to the time for the delivery of objections, As to time a subsequent correspondence as to title was in one f°4ry'of case held to work a waiver : ■* and a similar result was objections. in another case held to follow from the subsequent renewal of negotiation as to price.'' § 1125. So, again, taking possession after the Posses- default as to time may, it seems, preclude the objec- ^^°°" tion : ^ but merely giving possession before the day for payment has arrived is no waiver of a vendor's right to insist upon payment on that day.'' § 1126. The mere extension or giving of time, Extension of time. 1 EarlofBarnleyy. London, Ghat- * Cutis v. Thodey, 13 Sim. 206. ham and Dover Railway, 1 De G. ° Eads v. Williams, 4 De G. M. & J. &S. 204; Sib. 24; L.E.2H,L. G. 674. 43. ^ Boehm v. Wood, 1 J. & W. at ^ Hudsony. Bartram, 3 Mad. 440; p. 420. Webb V. Hughes, L. E. 10 Eq. 281. ' See Barclay v. Messenger, 22 3 Ex parte Gardner, 4 T. & 0. W. E. 522, at p. 523 ; 43 L. J. Oh. Ex. 503. 449. Il2 484 OF THE DEFENCES TO THE ACTION. Waiyer of time of an act no ■waiver of the act. Waiver decided at the trial. where time is of the essence of the contract, is only a waiver to the extent of substituting the extended time for the original time, and not an utter destruction of the essentiality of the time. And so where, by the terms of a contract for the sale of the benefit of a building contract, a moiety of the price was to be paid on a specified day, and the vendors afterwards by letter gave the purchaser until a later (named) day to make the payment, but the money was not paid by that day, Jessel M.R. held that time was originally of the essence of the contract, and the letter only a qualified and conditional waiver of the original stipu- lation ; and that, consequently, the vendors were entitled to treat the contract as at an end.^ § 1127. It is perhaps scarcely needful to remark, that a waiver as to the time in which an act is to be done is not necessarily in any degree a waiver of the act itself. So that where it was agreed that A. should repair some warehouses by the 1st of April, and that B. should then take a lease of them, and the repairs were not done by the day appointed, but B. continued to deal in a way which was held to amount to a waiver of the time as essential (if by the contract it had ever been so), and afterwards and before a lease was executed the warehouses were burnt down : it was held that B., though he had waived the essentiality of time, had not waived the condition that the repairs should be effected prior to his taking a lease, and con- sequently, that the proposed lessor A., and not the proposed lessee B., must bear the loss.^ § 1128. The question whether time was originally of the essence, and whether it has since been waived, is one of evidence, and can therefore be disposed of only at the trial.^ ' Barclay v. Messenger, 22 W. E. 522 ; 43 L. J. Cli. 449. In this case Jessel M.E. distinctly dissented from the view expressed by Lord Eomilly M.E. in Farldn v. Thorold (16 Beav. 59), as to the effect ol a letter extending the time for com- pletion. ^ Counter v. Macpherson, 5 Moo. P. 0. 0. 83; and see Hughes y. Jones, 3 De G. F. & J. 307. ' Levy V. Lindo, 3 Mer. 81. 485 PAUT IV. OF THE MODE OF EXERCISING THE JURISDICTION. CHAPTER I. OF THE PROCEEDINGS UP TO AND INCLUDING JUDGMENT. § 1129. At the time when the Judicature Act, The 1873, came into operation, the usual mode of proceed- pr^tloe. ing in order to obtain the specific performance of a contract was to institute a suit for the purpose by bill of complaint in the Court of Chancery. § 1130. By the 34th section of the Judicature Act, judioa- 1873, all causes and matters for the specific perform- j^l®,^''*' ance of contracts between vendors and purchasers of s. 34'. real estates, including contracts for leases, are specially assigned (subject to the Rules of the Supreme Court^) to the Chancery Division of the High Court of Justice. Causes or matters for the specific performance of other contracts are not expressly assigned to any particular Division of the High Court,^ and may accordingly, it would seem, be instituted, at the plaintifi's option, in any Division, subject to the powers of transfer exer- cisable under the Judicature Acts and the Rules of the Supreme Court. ^ ' See E. S. C. Ord. XLIX. Court of Justice in Ireland by the " I.e., in England. Actions for Supreme Court of Judicature Act tte specific performance of aU classes CTrelandl 1877 of contracts in respect of wliiclL „ , , . „ , „ -c, ■, J ■, 3 See Jud. Act, 1 873, s. 33 ; Courts of Equity entorce such per- ' ' formance are expressly assigned to J^''- -'^°''' 18'5, s. 11 ; E. S. 0. tlie Chancery Division of the High Ord, XLIX. 486 OP THE MODE OF EXERCISING THE JURISDICTION. Form of statement of claim. Transfer of action. Action properly com- menced in King's Bencli Division. § 1131. A form of statement of claim in an action for the specific performance of a contract for the sale of land is given in Appendix C, § ii., No. 12 to the Rules of the Supreme Court.^ § 1132. It is provided by the Acts and Rules ^ that any action may be transferred from one Division of the Court to another. Accordingly where, in an action for the recovery of land commenced in the Exchequer Division, the defendant set up a counter-claim for specific performance of a contract for a lease of the land to himself, and it appeared that there was a prima facie case for specific performance, the action was trans- ferred, on the defendant's application and against the plaintiff's will, to the Chancery Division.'' And a similar order was affirmed by the Court of Appeal in the case of Holloway v. York* where, the liquidation-trustee of a person who had contracted to purchase real estate having commenced an action in the Exchequer Divi- sion against the vendor for a return of the deposit, the vendor had delivered a counter-claim for specific per- formance of the contract. § 1133. The machinery of the Chancery Division is more adapted to actions for specific performance than that of the King's Bench Division ; and hence it seems that where there is an action in the last-mentioned Division for the deposit, and a bond fide counter-claim for specific performance, the cause ought usually to be transferred to the Chancery Division.^ But the mere fact that a defendant sued in the King's Bench Divi- sion sets up a counter-claim for the specific perform- ance of some contract relating to land between himself and the plaintiff will not entitle him to get the cause transferred to the Chancery Division.^ The Court will take notice of an equitable right to specific per- formance appearing incidentally in the course of an ^ The form seems to be open to criticism, in that the plaintiff is re- presented as vendor, and yet asks that the defendant may exectite a conveyance to the plaintiff. 2 Jud. Act, 1873, s. 36; Jud. Act, 1875, 8. 11; E. S. 0. Ord. XLIX. rr. 1, 3, Hillman v. May hew, 1 Ex. D. 132. 2 Ex. D. 333. 13 ^ London Land Co. v. Harris. Q. B. D. 540. « Storey v. Waddle, 4 Q. B. D. 289, OF THE PROCEEDINGS UP TO AND INCLUDING JUDGMENT, 487 ejectment action, though there be no counter-claim for such performance.^ § 1134. The determination by the Court of ques- Special tions of law between vendors and purchasers of real °^^^' or leasehold estate, and judicial declarations as to their respective rights under the contract of sale, may, it is conceived, be obtained upon a special case stated in the action.^ The Court of Chancery could not enforce specific performance in a proceeding of this nature ; * but under the present practice, where the answers to the special case dispose of the action, they may be turned into a judgment making declarations to the same effect.* § 1135. In illustration of the discretionary powers Leave to exercisable by the Court in relation to the proceedings ^f^^^^ in actions for specific performance, reference msij be standing made to Scott v. Moxon,^ which was a vendor's action "aidn'o^ to to enforce ^performance of a contract to purchase some ti^e con- leasehold houses. The defendant had by his solicitor ^''^^'^' given an undertaking to the plaintiff's solicitors not to deliver any defence ; but afterwards, before any judg- ment had been pronounced, a decision in another case showed that the lease was invalid. Thereupon the Court, on the defendant's application, gave him leave to defend, to the extent of pleading the invalidity of the lease. § 1136. A convenient mode of obtaining an autho- Vendor ritative decision of questions arising upon some of the ^^^ ^,"''" class of contracts discussed in this treatise has been Act, i874, introduced by the Vendor and Purchaser Act, 1 874, **■ ^" under which (section 9) a vendor or purchaser of real or leasehold estate or their respective representatives may at any time apply in a summary way to a Judge of the High Court in Chambers in respect of any requi- ' Williams v. Snowden, W.-N. 43, 51. The procedure by special 1880, p. 124 (C. P. Div.) ; Fiirness case under Sir George Turner's Act V. Bond, W. N. 1880, p. 78. (13 & 14 Vict. c. 35) was aboHshed ^ Compare Sabin v. Seape, 27 by 46 & 47 Vict. c. 49, but a similar Beav. 553, 561 (where the decision procedure has been substituted by was tantamount to a decree for E. S. C. Ord. XXXIV. r. 8. specific performance), and E. S. C. '' Harrison v. Cornivall Minerals Ord. XXXIV. part 1. Railway Co., 16 Ch. D. 67, 80. 3 See Evans t. Saunders, 22 L. T. ' 81 L. T. 774. 488 OF THE MOBE OF EXERCISING THE JURISDICTIOK. sitions or objections or any claim for compensation or any other question^ arising out of or connected with the contract (not being a question affecting the exist- ence or vaUdity of the contract^), and the Judge is to make such order upon the application as to him shall appear just, and to order how and by whom all or any of the costs of and incident to the application are to be borne and paid. The exception of questions affect- ing the existence or validity of the contract refers to the existence or validity of the contract in its incep- tion, and does not preclude the Court from determin- ing whether a power to rescind contained in the con- tract has been well exercised.^ And a specific question arising out of a contract — a question, for instance, as to the form of conveyance — may be determined on summons under the Act, notwithstanding that the evidence may suggest a doubt whether the contract is one which could be specifically enforced by action.* In very many of the disputes that arise between ven- dors and purchasers of realty and leaseholds an appli- cation under this section is an advantageous and efficient substitute for an action for specific perform- ance.^ The parties to such an application are in the ' But it is not proper to raise, on alleged that he had entered into a summons under this Act, a ques- the contract under a mistake, which tion as to the amount of an item of would enable him to rescind the the vendor's solicitor's costs : Be contract by means of an action for Webster and Jones' Contract, [1902] that purpose. 2 Ch. at p. 555. = E.g., Re Waddell'a Contract, 2 ^ See per Lord Halsbury L.C. Ch. D. 172; Be Coleman and Jar- in Be Sandhach and Edmondson's rom, 4 Ch. D. 165 (where, to Contract, [1891] 1 Ch. at p. 102. strengthen the purchaser's title, ^ In re Jackson and Woodburn, 37 Jessel M.E. delivered judgment Ch. D. 44. in Court) ; Be Popple and Barratt's * Be Hughes and Ashley's Contract, Contract, 25 W. E. 248 ; Be Kearley [1900] 2 Ch. 595, and the references and Clayton^s Contract, 7 Ch. D. there (at pp. 600, 604) to Be Lauder 615 ; Be Metropolitan District Bail- and Bagleifs Contract, [1892] 3 Ch. way Co. and Cosh, 13 Ch. D. 607- 41. See, too. Be Wallis and Bar- Osborne to Bowlett, 13 Ch. D. 774 • nard's Contract, [1899] 2 Ch. 515, Drapers' Co. v. McCann, 1 L. E. Ir. 520, where it was held that an 13 (summons may be served out of isolated question arising out of the jurisdiction); Re Harris and the contract might be decided on Rawlings' Contract, [1894] W. N. summons, although the respondent 19. OF THE PROCEEDINGS UP TO AND INCLUDING JUDGMENT. 489 same position as they would be under a reference as to title in such an action.^ It has, however, been judi- cially questioned whether it is proper, on such an application, to make an order that a vendor has or has not shown a good title, i.e., embracing the whole title, instead of dealing with isolated questions only.'"* § 1137. The jurisdiction to make such order as Conse- shall be just, conferred by this statute, enables the rS*^^^ Court to do all that may be just as the natural conse- quence of the point or points decided. Therefore, when the Court on a summons decided that the vendor had not shown a good title, it ordered the vendor to return the deposit with interest, and to pay the pur- chaser his costs of investigating the title.* Such an order may be made, at the instance of the purchaser, upon a vendor's summons.* Unliquidated damages, however, by way of compensation for a vendor's delay in completing, are not recoverable by a purchaser on a summons of this kind.^ § 1138. Where the purchaser seeks to recover Exception back the deposit on the ground of fraud or of such mis- °^™!'.*'^''® description as enables the j^urchaser to rescind, there theva-° the matter in controversy affects the validity of the ^jfe*Jo°! contract, and consequently it cannot be determined tract. under the statute in question.'' § 1139. A person who has availed himself of the Action provisions of the Act is not, generally, entitled after- ^'^^%^'^J'' wards to bring an action for the specific performance under the of the contract which was the subject of the summons.^ ^'^^■ But where a purchaser's summons, seeking a declara- ^ Ee Burroughs, Lynn, and Sexton, Ashley's Contract, [1900] 2 Ch. at 5 Oh. D. 601. p. 602. 2 Be millls and Barnard's Con- i j^g Wa/k-er and Oakshott's Con- tract, [1899] 2 Ch. at p. 520. trad, 70 L. J. Ch. 666 ; [1901] 2 Oh. 3 Be Eargreaves and Thompson, 32 333 (in C. A., [1902] W. N. 147), Oh. D. 454, approving Be Higgins following Be Higgins and Percival, and mtchman, 21 Ch. D. 93, and 59 L. t. 213. Be Yielding and WoodbrooJc, 31 Ch. D. 344. See, too, Be Haedicke 'J:J^''Z'\Ta -T"' ' and LipsM's Contract, [1901] 2 Ch. ^1894] 3 Ch. 546, oo2. at p. 670 ; 70 L. J. Ch. 811. Dis- ° -S« -^"^^s ^^^ Gaveij, 40 Ch. D. tinguish Be Scott and Alvarez' Con- at p. 608. tract, Scott v. Alvarez, [1895] 2 Ch. ' Thompson v. Binger, 29 W. E. 603j commented on in Be Hughes and 520. 490 OF THE MODE OF EXERCISING THE JURISDICTION. The County Courts Act, 1888. High Court retains concurrent jurisdic- tion. Mayor's Court of London. Laud Transfer Act, 1875, s. 93. tion that the title is not such as he ought to be com- pelled to accept, has failed, and he nevertheless refuses to complete the purchase, it is open to the vendor to sue for specific performance.^ In such a case, how- ever, if, since the order on the summons, the purchaser has discovered material facts, showing the title to be bad, which facts he could not with reasonable diligence have discovered earlier, he may, at all events with the leave of the Court, put in a counter-claim in the nature of an action of review.^ § 1140. By the County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 67, County Courts have all the powers and authority of the High Court in actions for specific performance of any agreement for the sale, purchase, or lease of any property, where in the case of a sale or purchase the purchase-money, or in the case of a lease the value of the property, does not exceed 500/.^ But the jurisdiction of the High Court in cases of specific performance has not been ousted by that con- ferred upon County Courts. Though the matter may be within the jurisdiction of the inferior Court, a plain- tiff is at liberty to bring his action in the High Court, subject, of course, to the statutory provisions as to transfer. § 1141. The Mayor's Court of London has a limited jurisdiction in specific performance; but where, an action for specific performance having been commenced in that Court, it appeared that the whole cause of action did not arise within the City, the proceedings were stopped by means of a writ of prohibition.* § 1142. It may here be mentioned that by the Land Transfer Act, 1875, it was enacted that (s. 93) where a suit is instituted for the specific performance of a contract relating to registered land, or a registered charge, the Court having cognizance of such suit may by summons, or by such other mode as it deems ' See e.g., Ee Scott and A/nirez' Contract, Scott v. Alvarez, [1895] 1 Ch. at pp. 609, 61 (commented on in -Be Walliscmd Barnard's Contract, [1899] 2 Oh. at p. 520). 2 Ibid, at pp. 610, 622. •* See Foster v. Ileeves, [1892] 2 Q. B. 255; 40 W. E. 695, for a curious result of this limitation of County Court jurisdiction. * Boivler v. Barherton Development Syndicate, [1897] 1 Q. B. 164. OF THE PROCEEDINGS UP TO AND INCLUDING JUDGMENT. 491 expedient, cause all or any parties who have regis- tered estates or rights in such land or charge, or have entered up notices, cautions or inhibitions against the same, to appear in such suit, and show cause why such contract should not be specifically performed, and the Court may direct that any order made by the Court in such suit shall be binding on such parties or any of them. Further, by the 94th section of the same Act, all costs incurred by any party so appear- ing in a suit to enforce against a vendor specific per- formance of his contract to sell registered land or a registered charge are to be taxed as between solicitor and client, and, unless the Court otherwise orders, paid by such vendor. § 1143. It may further be mentioned that under irisli Land sect. 22 of the Land Law (Ireland) Act, 1887 sitm!^^^' (50 & 51 Vict. c. 33), the Irish Land Commission has jurisdiction, in certain cases of contracts for sale, to decree specific performance ; but that it appears to be doubtful whether that Commission has such juris- diction in proceedings under the Redemption of Hent (Ireland) Act, 1891.^ § 1144. How far the summary jurisdiction con- Companies ferred by the 35th section of the Companies Act, 1862, ^_%'^^ ' is properly applicable to the enforcement of contracts for the sale and purchase of shares is a question which has been much discussed, but can hardly be said to be even now satisfactorily settled. That section provides that if the name of any person is without sufilcient cause entered in or omitted from the register of members of a company under the Act, or if default is made or unnecessary delay takes place in entering on the register the fact of any jjerson having ceased to be a member of the company, the person or member aggrieved may apply by motion or summons for an order of the Court that the register may be rectified, '' and the Court may either refuse such application, with or without costs to be paid by the applicant, or it may, if satisfied of the justice of the case, make an order for the rectification of the register, and may direct the company to pay all the costs of such motion, 1 See Giles v. Beausang, [1895] 2 I. E. 326, 337. 492 OF THE MODE OF EXERCISING THE JURISDICTION. application, or petition, and any damages the party aggrieved may have sustained. The Court may, in any proceeding under this section, decide on any question relating to the title of any person who is a party to such proceeding to have his name entered in or omitted from the register, whether such question arises between two or more members or alleged mem- bers or between any members or alleged members and the company, and generally the Court may in any such proceeding decide any question that it may be necessary or expedient to decide for the rectification of the register." AppUca- This enactment may seem at first sight to ofPer an the°seotion attractive and efficient substitute for an action for to cases of spocific performance in cases arising out of contracts perform- for the salo of shares, but the decisions upon it show anoe. f^at its applicability in practice to such cases is by no means universal. The jurisdiction which it confers is clearly discretionary ; and, whatever the effect of the limited power which it gives the Court over costs upon the generality of its subsequent language,^ it seems that the Court will at any rate be slow to exercise this juris- diction for the purpose of deciding questions between vendors and purchasers of shares, except where the legal title of the applicant is clear.^ Form of § 1145. The fomi of a judgment for specific per- judgment. f(ji.jj,a,nce varies, of course, according to the particular circumstances of the case.^ " Sometimes it is a vendor's action, sometimes a purchaser's action ; sometimes the title is acceptt3d, sometimes it is not." * Where judgment for specific performance is granted in favour of a purchaser, there is jurisdiction to direct that, in adjusting the accounts as between vendor and purchaser, the purchaser is to be entitled to bring into the account the amount of the costs which the vendor ' See xjer Jessel M.B. in Ex parte Buckley on tlie Companies Acts and Sargent, L. E. 17 Eq. at p. 276. in Rawlins and MaonagMen on " Ward and Henry's case, L. E. 2 Companies. Eq. 226; 2 Ch. 431 ; Musgrave and „ , T T) c -ci inQ E- See Seton (6tli ed.), pp. 2206 Hart's case, L. E. 5 Eq. 193; Ex \ /' i-f ■parte Sargent, L. E. 17 Eq. 273; ** **2'- Ex parte Shaw, 2 Q. B. D. 463. * North v. Percival, [1898] 2 Ch. See, too, the notes on the section in at p. 135. OF THE PROCEEDINGS UP TO AND INCLUDING JUDGMENT. 493 has been ordered to pay against the purchase-money. That is, in a case where the debt due to, and the debt due from, the defendant are so due to and from the defendant in the same capacity.^ This jurisdiction, however, was held not to extend to allowing a plaintiff, purchaser of leaseholds from an adminis- tratrix who was by the judgment ordered to pay the plaintiff's costs, to bring into account all or any part of an unascertained sum to which the defendant might be beneficially entitled in the administration of her intestate's estate, as against the purchase-money due to the defendant in her representative capacity.^ § 1146. If the plaintiff in an action for specific -^»» performance has registered the action as a lis pendens, ^^" ""'' and at the trial the action is dismissed with costs, an order vacating the registration of the lis pendens may be included in the judgment.^ § 1147. AVhere the judgment at the trial directs a Account simple account — not on the footing of wilful account — arirprofits of rents and profits received by the vendor, he is directed chargeable with the rents, and the proceeds of sale of crops, which he has actually received, but not with an occupation rent in respect of land unlet ; and, on the other hand, he is entitled to be allowed the necessary expenses of realizing the crops, but not any losses which he may have incurred in farming.* 1 Green v. Sevin, 13 Ch. D. at ^ Baxter v. Middleton, [1898] 1 p. 602. Ch. 313. ^ Phillips^. EotoeU, [1901] 2 Ch. * Bennett v. Stone, [1902] 1 Oh. at p. 778. at pp. 236—238. 494 CHAPTER II. OF INJUNCTIONS. SuTjjeot § 1148. It has already been in effect stated^ that chapter, executed, as distinguished from executory, contracts are not within the scope of this treatise. The present chapter will accordingly be confined to the considera- tion of the use of injunctions in connection with con- tracts of the latter kind. How in- § 1149. The jurisdiction of the Court in injunc.- is'con-'^ tion is connected with the specific performance of nected executorv contracts in three ways : — with •' •' perform- (^0 Sometimes the injunction is the instrument by anoe. which the Court specifically enforces the contract itself or some part of it ; (ii.) Sometimes the injunction is merely incident or ancillary to the performance of the contract ; and (iii.) Sometimes the injunction is used for the purpose of giving effect to rights resulting from the non-performance of the contract. i. Injunction the instrument of performance. Effect of § 1150. It is evident that whenever the Court iDgWoh grants an injunction restraining the breach of any of a term, express or implied term of a contract it thereby jt?ro tanto specifically enforces the performance of the contract.^ 1 Supra, § 38 ; cf . § 842. to the discretionary character of ^ As to injunctions restraining the jurisdiction, see ^«r Lord West- applications to Parliament, see bury in Low v. Lines, 4 De Or. J. & ■infra. Part VI. chap. x. ; and, as S. at p. 290. OF INJUNCTIONS, 495 § 1151. Where the contract contains express nega- Contract tive as well as positive terms, and the positive terms express'"^ are capable of specific performance by the Court, the negative Court may and naturally will enforce by injunction the observance of the negative terms ; for by so doing it promotes the complete performance of the contract as a whole. Thus where the Commissioners of Woods and HanUnY. Forests contracted with a Committee of the United Service Club for the grant by the Commissioners to the trustees of the club of a lease of a specified piece of ground, and further that a specified plot on the south side of this piece of ground should be laid out as an ornamental garden, .and no buildings whatever should be erected thereon, and afterwards the Commissioners began to build stables on the plot ; the Court specifically enforced the observance of the negative stipulation by restraining the Commissioners from continuing to build on the plot and also from permitting such part of the stables as had already been built to remain upon it.^ § 1153. But where part of the contract is of such Part of a nature as to be incapable of specific performance by i^ngapaUe the Court, a difficulty presents itself with respect to ofper- the Court's enforcement of any other part of it by °'^'^^°°®- injunction. For, as we have seen,^ the Court will not, as a general rule, enforce part of an executory contract unless it can perform the whole ; and, in the case supposed, the grant of an injunction would obviously be tantamount to a merely partial enforcement of the contract. § 1153. On the principle referred to in the last •^®*"^^i. preceding section, one would expect to find the Court to inter- always refusing to interfere by injunction to restrain ^'^'^'^■ the breach or non-performance of part of an executory contract where the rest of the contract is incapable of, or is not a proper subject for, specific performance : and in fact there are numerous instances of such refusal.^ ^ Ranhin v. Eualdsson, 4 Sim, 13 ^ See supra, § 852, and the cases {Shadwell V.O.). there cited : also Fothergill y. Roiv- ' Part III. chap. xvi. land, L. E. 17 Eq. 132, cited supra. 496 OF THE MODE OF EXERCISING THE JURISDICTION. Breach of express or implied term re- strained. Martin v. Nuikin. There are, however, cases in which, though the contract as a whole has been such as the Court could not or would not specifically enforce, it has neverthe- less granted an injunction restraining the breach of some express or implied term of it. These cases have already been discussed at length in a previous chapter.^ It may here be added that whenever in such cases, a person is comjDolled by injunction to observe some negative term of a contract, the whole benefit of the injunction is conditional upon the plaintifE's perform- ing his part of the contract, and the moment he fails to do any of the acts which he has engaged to do, and which were the consideration for the negative term, the injunction will be liable to be dissolved.^ § 1154. In connection with the cases referred to in the last preceding section, the old case of Martin v. Nutkin^ may be referred to. There articles were exe- cuted between the plaintiffs, who resided very near the church of Hammersmith, and the parson, church- wardens, overseers, and some of the other inhabitants of the parish, by which the plaintiffs covenanted to erect a new cupola, clock, and bell to the church, and the other parties covenanted that a bell which had been daily rung at five o'clock in the morning, to the great annoj^ance of the plaintiffs, should not be rung during the Ha^cs of the plaintiffs or the survivor of them : the plaintiffs performed their part of the contract, but the bell after about two years was rung again : the con- tract on the part of the parish authorities was speci- fically enforced against them by means of an injunc- tion ; although, as Lord St. Leonards remarked in the course of his judgment in Lumley v. Wagner,* the Court clearly could not have granted any specific perform- ance. § 859 ; per Lord Oottenliam in Bietrichsen v. Cubhurn, 2 Ph.. at p. 57 ; Rogers t. Wihnot, W. >f. 1880, p. 88. Of. Home v. Lornlnn and North Western Baihoay Co., 10 W. B. 170. ■ Part III. chap. xvi. § 852 et seq. " See per Lord Hatherley (then V.C.) in Stoclier v. Wedderhirn, .3 E. & J. at p. 405. 3 2 P. Wms. 266. ' 1 De a. M. & G. at p. 614. OF INJUNCTIONS. 497 ii. Injunction ancillary to perfoi'mance. § 1155. The jurisdiction of the Court in injunc- Object tion is often ancillary to that in specific performance, onnjunc- f or the purpose of preventing the defendant making a ^^°^ ^'°- use of some legal interest or right vested in him in a oases. way inconsistent with the equity claimed by the plaintiff, or embarrassing the plaintiff by dealing with the property during the pendency of the action, or obstructing the performance of some act incidental to the execution of the contract. " The Court will in many cases interfere and preserve property in statu quo during the pendency of a suit, in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, any opinion as to such rights."^ § 1156. In the class of cases now to be considered Granted the injunction is therefore granted, upon interlocutory '^u-ieca.L. application and until the trial, on the plaintiff showing a prima facie case for specific performance.^ It is not necessary that it should be clear that the plaintiff will succeed at the trial : it is sufficient if there is ground for supposing that relief may be given.* For on this application the Court will not decide delicate points,* nor allow it to be resisted on points, such as delay, which can only be decided at the trial. ^ § 1157. Accordingly, where an intended lessor instances was sued by an intended lessee for the specific per- of^J^^^o- formance of a contract to gi-ant a lease, he was re- tions. strained from bringing an ejectment during the suit.'' In another case, the plaintiff (purchaser) obtained an injunction to restrain the vendor from conveying away the legal estate, which might compel the plaintiff to make some other person a party to the suit.' In other ' Per Lord Oottenham in Oreat * Price v. Aasheton, 1 T. & C. Ex. Western Bailway Co. v. Birmingliam 82. and Oxford Junction Baihuay Co., 2 * Levy v. Lindo, 3 Mer. 81. Ph. 602. Cf. E. S. 0. Ord. LI. " ^ocMrZmarav. iffos<2/«, 6 Ves. 467; rr. 1—3. Bucldand v. Hall, 8 Ves. 92 ; Att- 2 Powell V. Lloyd, 1 T. & J. 427. loood v. Barham, 2 Euss. 186. Dis- ~^ Hudson V. Bartram, 3 Mad. tingnish. Fox v. PursseU, 3 Sm. & G. 440, 447; Attwood v. Barham, 2 242. Euss. 186. ' EcMiffY. Bahhvin, 16 Ves. 267. F. K K 498 OF THE MODE OF EXERCISING THE JURISDICTION. cases injunctions to restrain sale and surrender of estates as to which specific performance was sought, were granted on certificate of bill filed and afiidavit.^ And in another case, an injunction was granted to restrain a purchaser, who had .got into possession, from cutting timber on the estate.^ Vendor § 1158. On the Same principle, where the contract Lg valuer, was for the sale of a leasehold public house at a fixed price, and of the furniture, fixtures, and other effects on the premises, at a valuation to be made by a valuer named in the contract, and the vendor refused to allow the valuer to enter upon the premises for the purpose of making an inventory of the articles to be valued, Jessel M.R., upon the interlocutory application of the purchaser in a suit instituted by him for the specific performance of the contract, made an order compelling the vendor to allow the valuer to enter .^ " I have no hesitation," said his Lordship, " in saying that there is no limit to the practice of the Court with regard to interlocutory applications so far as they are necessary and reasonable applications ancillary to the due per- formance of its functions, namely, the administration of justice at the hearing of the cause."'* iis § 1159. In one case, where the validity of the pen ens. gontract was disputed. Lord Langdale M.R. refused a motion for an injunction to restrain the vendor from letting or selling the estate pending the hearing, on the ground that a lessee or purchaser pendente lite would Balance take subjoct to the plaintiff's rights.^ And in another case, where, on the plaintiff (purchaser) making his interlocutory application, it was not clear that he would be able at the hearing to establish his right to specific performance, the Court of Appeal refused, on the ground of comparative convenience, to restrain the vendor by injunction until the hearing from selling the property in dispute, it appearing that the grant of the injunction would, if the plaintiff ultimately failed, 1 Curtis V. Marquis of Bucking- son, 25 Beav. 501, 504. ham, 3 V. & B. 168 ; Sinller v. = Smith v. Peters, L. E. 20 Eq. Spiller, 3 Sw. 556. 511. Of. infra, § 1602. ^ Crookford v. Alexander, 15 Ves. * L. E. 20 Eq. at p. 513. 138. Di!iiva.gmsh.MarshallY. Wat- ^ Turner y. Wright, i Bern- 'iO, of conve- OF INJUNCTIONS. 499 do more injury to the defendant than its refusal would occasion to the plaintiff should he ultimately be suc- cessful/ Turner L.J., however, in his judgment in the last cited case, distinctly affirmed the general principle that, if there is a clear valid contract for sale, the Court will not permit the vendor afterwards to transfer the legal estate to a third person, although such third person would be affected by Us pendens."^ If, however, on interlocutory application for an injunc- tion, it appears that the case is one in which it would be wrong to grant specific performance at the trial, it follows that it would be wrong to grant the in- junction.^ § 1160. It is hardly necessary to remark that the Second Court will not restrain a person who is under contract ^"™ *^^' to buy an estate from buying another, merely on the ground that the completion of the second purchase may incapacitate him to complete the first.^ § 1161. The Court will, in some cases, restrain injunction even third persons, whose rights are independent of thM^ the contract, from acting in a manner which would persons. prejudice the plaintiff in respect of the property. For instance, where after a contract for the sale of an advowson the incumbent died, and a bill was filed against the vendor and the bishop, the Court restrained the vendor from presenting, and the bishop from in- stituting, or, in case of a lapse taking place pending the suit, from collating to the living any clerk not nominated by the plaintiff.^ Other cases in which the Court has restrained by Aotsm- . . ,. ,. • , 1 •l^ ji 1 p consistent injunction acts inconsistent with the due performance with the of the contract have been discussed in a previous contract. chapter.*' 1 Eadley v. The London Bank of Eldon in Spiller v. Spiller, 3 Sw. at Scotland, Limited, 3 De Or. J. & S. p. 557. 63. Of. Garrett v. Banstead and ^ Lumley v. Ravenscroft, [1895] 1 Epsom Doivns Raihuay Co., 4 De G. Q. B. at p. 685. J. & S. 462; Miinro v. Wivenhoe * SyersY. Brighton Brewery Co., and BrightUngsea Railway Co., 4 De 13 W. E. 220. G. J. & S. 723. = Nicholson v. Kimpp, 9 Sim. 326. ^ 3 De G. J. & S. at p. 70, -wliere See, too, Manchester Ship Canal Co. the Lord Justice also suggests a t. Manchester Racecourse Co., [1901] probable explanation of a (seem- 2 Oh. at p, 51. ingly) contrary clictum of Lord * Part III. chap. xyi. § 853 et seq. K K 2 ^^ 500 OF THE MODE OF EXERCISING THE JURISDICTION. Former § 1162. The Court of Chancery used to grant in- praoti^ junctions to restrain actions at Law for the deposit straM upon its being paid into Court ;^ and to restrain aotions'^ actions at Law for damages for delay in completion ; ^ Courtr ^^' ^^ which the defence was a contract between the parties which the Court of Law could not specifically enforce;* and it had jurisdiction to restrain parties from applying for probate or the grant of letters of administration, and would so restrain them if it were necessary for the purpose of enforcing a contract which they had entered into.^ But whether, in a suit for the specific performance of a contract for a separation deed between husband and wife, it would have been within the province of the Court of Chan- cery to interfere by injunction to restrain a suit in the Court of Probate for the restitution of conjugal rights, as incident to the main object of the suit in Equity, can hardly be said to have been determined, though it was twice discussed by the House of Lords in the case of Wilson v. Wilson,^ opposite opinions having been expressed on the point by the learned Lords by whom that case was decided. The § 1163. Under the present practice (Judicature practice Act, 1873, s. 24, sub-s. 5), no cause or proceeding (Judioa- pending before the High Court or the Court of Appeal 1873, ' can be restrained by injunction, but every matter of ®' ^^'- equity on which an injunction against the prosecution of any such cause or proceeding might, if the Judi- cature Act, 1873, had not been passed, have been ^ , obtained, either unconditionally or on any terms or conditions, may be relied on by way of defence there- to. It is by the same sub-section enacted that nothing in that Act contained shall disable either of the said Courts [the High Court and the Court of Appeal] from directing a stay of proceedings in any cause or matter pending before it if it shall think fit ; and that any ' Fordyce v. Ford, 4 Bro. C. 0. ^ Waterlow v. Bacon, L. E. 2 Eq. 494. 514. - Duke of Beaufort v. Olynn, 3 ^ Per Mellish L.J. in Wilcocka v. Sm. & G. 213, 226. See, too, Viney Carter, L. E. 10 Ch. 444. V. CliaiMn, 2 De G. & J. 468 (action = 1 H. L. 0. 538; S. 0. 5 H. L. C. for puroliase-money). 40. OF INJUNCTIONS. 501 person, whether a party or not to any such cause or matter, who would have been entitled, if that Act had not been passed, to apply to any Court to restrain the prosecution thereof, shall be at liberty to apply to the said Courts respectively by motion in a summary way for a stay of proceedings in such cause or matter either generally, or so far as may be necessary for the pur- poses of justice; and that the Court shall thereupon make such order as shall be just. § 1164. In other words, the defendant to an action Effect of who desires to avail himself of some matter which tion!''°' would formerly have been a ground for asking the Court of Chancery to restrain proceedings in another Court has now two courses only open to him : — he may plead the matter as a defence to the action, or he may make it the ground of an application to the Court in which the action is pending to stay the proceedings in the action.^ It was held in Hart v. Hart''' that the statutory provisions above referred to did not debar the Chan- cery Division of the High Court from granting specific performance of an agreement, one term of which pro- vided for the dismissal of an action which, at the time when the agreement was come to, was pending in the Probate and Divorce Division. iii. Enforcement of right resulting from non- performance. § 1165. The Court will, in a proper case, grant an when the injunction for the purpose of enforcing a right result- ^"J^fgre^ ing to the applicant from the non-performance of the contract. § 1166. Thus, where a decree had been made instance. declaring that a contract between a railway company and the rector of W. for the purchase by the company of certain glebe lands of which the company had taken possession before the institution of the. suit ought to be specifically performed, and that the plaintiff was entitled to a vendor's lien, and directing the company ' Oarlutt V. Fawcus, 1 Oh. D. 155; Re People's Garden Co., 1 Oh. D. 44. 2 18 Ola. D. 670, 680, 502 OF THE MODE OF EXERCISING THE JURISDICTION, Extent of the High Court's iurisdic- tion in injunc- tion. to pay the purchase-money by a day named, with liberty for the plaintiff, in case of default, to apply for the purpose of enforcing his lien ; and, default having been made by the company, an order had been made for the sale of the lands, but two attempts to sell had proved unsuccessful : Lord Selborne finally ordered that, in default of the company paying the purchase-money with interest and costs into Court within a month after service of the order, an injunc- tion should be awarded to restrain them from con- tinuing in possession of the lands.^ § 1167. With regard to the extent of the Court's jurisdiction in injunction, it is to be observed that the Judicature Act, 1873, enacts (s. 25, sub-s. 8) that an injunction may be granted by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made, but does not in terms extend this wide power to the grant of injunctions at the trial. The above enactment must be read in connection with the 76th section of the same Act and the Common Law Procedure Act, 1854 (ss. 79, 81, 82). These provisions give the Court a wide if not an unlimited power of granting an injunction at any stage of any case where it would, according to sufficient legal reasons or on settled legal principles, be right or just to do so.^ ' Williams v. Ayleshury & Buck- ingham Railway Co., 21 W. E. 819 ; 28 L. T. 547 ; Seton (6tli ed.) 2291, 2294 ; infra, § 1 ] 80. DistinguisliPeZi! V. Northampton and Banbury Junc- tion Railway Co., L. E. 2 Oh. 100 ; Latimer v. Aylesbury & Buckingham Railway Co., 9 Oh. D. 385; and consider Lord Nelson v. Salisbury and Dorset Junction Railway Co., 16 W. E. 1074; and Allgood v. Merryhent, &c. Railway Co., 33 Ch. D. 571. 2 Beddow v. Beddow, 9 Ch. D. 89, 93. Cf. Thomas v. Williams, 14 Oh. D. atp. 873; and^er Bacon V.O. in Dicks v. Brooks, 15 Ch. D. at p. 25. As to the jurisdiction con- ferred by Lord Cairns' Act, see infra, § 1300. 503 CHAPTER III. OF THE WEIT OF NE EXEAT. § 1168. The Court of Chancery sometimes issued j^^^g^^,!' a writ of ne exeat in suits for specific performance.^ the Court § 1169. It is conceived that this writ, though not oery. abolished, will in future probably not be often applied Use of for in actions of the kind with which this treatise is under"he concerned ; inasmuch as, under the present practice, present it is not likely to be issued excejDt in cases where the ^ party applying for the writ can satisfy the Court on all the points on which proof is required by the provisions of the 6th section of the Debtors Act, 5^*18^69 1869 ; ^ under which if the plaintiff in any action s. 6.' in the Court in which, before the year 1870, the defendant would have been liable to arrest proves, at any time before final judgment, by evidence on oath to the satisfaction of the Judge, that the plaintiff has good cause of action against the defendant to the amount of 50/. or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, the Judge may order such defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he gives security (not exceeding the amount claimed in the action) that he will not go out of England without the leave of the Court.^ ' Raynes y. Wise, 2 Mer. 472 Blaydes v. Calvert, 2 J. & W. 211 Boehm v. Wood, T. & K. 332 Jenkins v. Parker, 2 My. & K. 5 242, 243 ; Hands v. Hands, 43 L. T. 750 ; Colverson y. Blomfield, 29 Ch. D. 341. 3 32 & 33 Vict. 0. 62, s. 6; cf. Morris v. McNeil, 2 Euss. 604; and Jud. Act, 1873, s. 76. For the see Seton (6t]i ed.) 515 — 517, 2287. practice under sect. 6 of the Debtors ' See Drover v. Beyer, 13 Oh. D. Act, 1869, see E. S. 0. Ord. LXIX. 504 CHAPTER IV. OF RELIEF AFTER JUDGMENT. Such re- g 1170. It may and not unfrequently does happen necessary, that, after judgment has been given for the specific performance of a contract, some further relief becomes necessary, in consequence of one or other of the parties making default in the performance of some- thing which ought under the judgment to be per- formed by him or on his part ; as, for instance, where a vendor refuses or is unable to execute a proper con- veyance of the property, or a purchaser to pay the purchase-money. The character of the consequential relief appropriate to any particular case will of course vary according to the nature of the subject-matter of the contract and the position which the applicant occupies in the transaction ; but in every case the application must, under the present practice, be made only to the Court by which the judgment was pro- nounced,^ and the multiplicity of legal proceedings which sometimes^ occurred before the fusion of the jurisdictions of the Courts of Chancery and Common Law is now practically impossible.^ Modes of § 1171. There are two kinds of relief after judg- toelther^" ment for specific performance of which either party party. to the contract may, in a proper case, avail himself, i. Seques- § 1173. (i.) He may obtain (on motion in the 1 Jud. Act, 1873 (36 & 37 Vict. & G. 722 ; Ford v. Compton, 1 Oox, c. 66), s. 24 (5) ; Appell. Juris. Act, 296 ; Reynolds v. Nelson, 6 Mad. 1876 (39 & 40 Vict. c. 59), s. 17. '^^^' -^~"'''' ^' -SasM«, 2 My. & K. 618. 2 Phelps Y, Prothero, 1 De G. M. ^ j^^^ ^^t, 1873, s. 24 (7), OF RELIEF AFTER JUDGMl^NT. 505 action) an order appointing a definite time and place tration for the completion of the contract by payment of the ment. unpaid purchase-money and delivery over of the exe- cuted conveyance and title-deeds/ or a period within which the judgment is to be obeyed, and, if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party's estate and effects.^ Furthermore, if the default was in the payment of money, the plaintiff may issue his/./«. or elegit:^ if in some act other than or besides the payment of money, he may move, on notice to the defaulter, for a writ of attachment against him.* Indeed, in a case where a person who had agreed to accept a lease would not, though ordered by the Court to do so, execute the lease, it was held that an attach- ment was the only means to which the Court could resort for enforcing such execution.^ §1173. (ii.) He may apply to the Court (by li. Motion motion in the action) for an order rescinding the con- *° '^«^°™'^- tract. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered : otherwise, the order will be for rescission in default of completion within a limited time.** And the Court will decline to order the deposit to be returned to a defaulting purchaser.^ An order for the defendant to pay the plaintiff's costs, and a stay of further proceedings in the action, may also be obtained on this motion. A vendor plaintiff is not debarred ^ Morley v. Glavering, 30 Beav. ^ RoUnaon v. Oalland, 37 W. E. 108; Z)o?-Kny V. ^wcms, before Bacon 396; E. S. C. Ord. XLII. rr. 3, 8, V.O., 18 July, 1878 (cited Seton, 17, 24. 6th ed. 2286) ; Morgan y. Brisco, 31 i R. g. o. Ord. XLII. r. 7 ; Oh. D. 216; 32 Ch. D. 192, where Ord. XLIV. An alternative mode the forms of an appropriate order of proceeding is provided by E. S. 0. on further consideration and four- Qrd. XLII. i. 31, stated infra, day order are given. See, too, the § 1182. forms of orders made against a , araceY.Baynton,25W.Ii. 506. defaulting purchaser in Jessop v. „ t^ ,• i,r ^- -.^ -r, /7 riSQ-"l 1 T E ^08- d ' Fohgno v. Martin, 16 Beav. mi^'. Denver, Si' W. E. 'eSS; S °86; ^mpson y Terry, Z^ Beav. 423 ; Clarh v. Wallis, 35 Beav. 460 ; Henty v. Schroder, 12 Ch. D. 666. the Debtors Act, 1869, s. 8. ■ Bunn v. Vere, 19 W. E. 151. k:; L T 729 ■^ E. S. C. Ord. XLIII. r. 6. Of. ^^"^2/ v. Schroder, 12 Ch. D. 666. 506 OF THE MODE OF EXERCISING THE JURISDICTION'. Damages. Vendor's lien. from moving for an order for rescission by the fact that the judgment at the trial contained a declaration of his vendor's lien, and gave him liberty to apply as to enforcing it.^ § 1174. In some cases the order has expressly excepted from the stay of proceedings any application to the Court to award and assess damages sustained by the plaintiffs by reason or in consequence of the breach of the contract.^ In Henty v. Schroder,^ how- Jessel M.R. declined to make this exception, ever considering that the plaintiffs could not at the same time obtain an order to have the contract rescinded and claim damages for the breach of it. If this be so, it would seem that in many cases the Court must fail to give the plaintiff the full measure of relief requisite for replacing him in the position in which he stood before the contract, — the repayment, for instance, of expenses incurred by him in showing his title. In a purchaser's action,* it having been certified, on the usual inquiry as to title, that the defendant had no title at the date of the contract, Chitty J. on the further consideration ordered the defendant not only to return the deposit with interest, but also to pay to the plaintiff his costs of the contract and of the inves- tigation of title, as well as his costs of the action. § 1175. A vendor has in many cases another form of relief open to him after a judgment for specific performance, in the enforcement of his lien for unpaid purchase-money, with interest, and his costs of the action. Wherever there is a valid contract for the sale of land, and the time for completion has arrived, and the purchase -money has not been paid, an equitable lien on the land prima facie arises for the benefit of the vendor;^ but \h.\s, prima facie right may, of course, 1 Baker Y. Williams, [1893] W. N. 14; 62 L. J. Ch. 315; 41 W. E. 375. 2 Siveet V. Meredith, 4 Gifl. 207 ; Watson V. Cox, L. E. 15 Eq. 219. See, too, Corporation of Hythe v. East, L. E. 1 Eq. 620. 3 12 Ch. D. 666. See also Sutch- ings V. Humphrey, 33 W. E. 663; 54 L. J. Ch. 650; and Jeffery v. Stewart, 80 L. T. 17. ^ Pearl Life Assurance Co. v. Buttenshaw, [1893] W. N. 123. = Kettlewell v. Watson, 26 Ch. D. 50L OF RELIEF AFTER JUDGMENT. be repelled. '' Although," said Bacon V.C./ ''the rule of law upon which the doctrine of an unpaid vendor's lien depends must be very frequently in- fluenced by the particular circumstances of each case in which it is said to arise, there is one plain principle which guides and governs its application in all cases. If it be expressed, or can be safely and properly in- ferred from documentary or other evidence, or from the nature of the contract, that it was the intention of the parties that the sale or transfer, however absolute in its terms, was subject to the condition that the pur- chase-money should be paid, or that the thing con- tracted to be done by the vendee should be performed, the lien will prevail. If, on the other hand, no such inference can be properly drawn — if the performance of the thing contracted to be done by the vendee was not the condition upon which the transfer was made, but the engagement to do the thing was the considera- tion for the transfer, the vendor, having accepted that engagement, has the very thing he bargained for, and cannot say that the consideration has not passed to him. In such cases the lien cannot prevail. The rule I have mentioned and its application cannot be more pointedly illustrated nor more clearly explained than in the judgment of Lord Cranworth in Dixon v. Gay fere.'''' '^ Even though the contract be one of which specific performance is not enforceable, the vendor may, if the intended purchaser has taken and held possession of the subject-matter of the contract, be entitled to enforce a vendor's lien for the unpaid purchase- money.^ Moreover, the principle entitling a vendor to a lien for unpaid purchase-money is not confined in its application to cases of sale of land. It may be applied, for instance, where the thing sold was simply 1 In. Be Albert Life Assurance Co., (7tli ed.) 926; and of. Mycock v. L. E. 11 Bq. at p. 178. Beatson, 13 Oh. D. 384. 2 1 De G. & J. 655. See f urtter tp ■,■,■, r, Mackreth Y. Symmons, lo Yes. 329; ■' 10 E. E. 85, and tlie notes on that «,o/(ers v. Finney, [1899] 2 Ch. 729 ; case in 2 W. & T. Lead. 0. in Eq. [1900] 2 Ch. 736. 507 508 OF THE MODE OP EXERCISING THE JURISDICTION. a claim to receive a share of the money to arise from the realization of leaseholds.^ mforcinl § 1176. Where this lien exists, a vendor obtaining theiien." judgment for the specific performance of a contract for the sale of hereditaments of any tenure may have em- bodied in the judgment a declaration of the lien, and a clause giving him liberty to apply to the Court, in case of need, for its enforcement.^ Then, if default in pay- ment of the moneys payable under the judgment by the purchaser ensues, the vendor may have further relief in some or all of the foUov^ing ways as occasion may require, viz. : — (i.) By sale of the property ; (ii.) By the appointment of a receiver pending the sale ; (iii.) By means of an injunction operating to restore to him the possession of the property. i. Sale. § 1177. (i.) Upon the vendor satisfying the Court that the purchaser has made default in payment of the moneys directed by the judgment to be paid, an order will be made, on motion or petition in the action, for the sale^ by the Court of the property comprised in the contract, and the vendor may have liberty to bid.* The proceeds of the sale will be directed to be paid into Court, and leave will be reserved to the vendor to apply in Chambers for payment.® '■ Davies v. Thomas, [1900] 2 Oh. mansworth Bailway Co., 36 L. J. at p. 468. Ch. 379, an immediate sale was ^ Heath v. Metropolitan Railway directed. Co., cited Seton (6tli ed.) 2290; ^ Munns \. Isle of Wight Bailway Walker Y. Ware, Hadham and Bunt- Co., L. E. 5 Ch. 414 ; Williams v. ingford Bailway Co., L. E. 1 Eq. Ayleslury and Buckingham Bailway 195; Vyner v. Hoylahe Railway Co., Co., 21 W. E. 819; Lycett v. Stafford 17 W. E. 92 ; Wing v. Tottenham and Uttoxeter Bailway Co., L. S. 13 and Hampstead Junction Bailway Eq. 261. Co., L. E. 3 Ch. 741 ; Munns v. * Lycett v. Stafford and Uttoxeter Isle of Wight Bailway Co., L. E. Bailway Co., L. E. 13 Eq. 261 ; 5 Ch. 414 ; Bee v. Stafford and Ware v. Aylesbury and Buckingham Uttoxeter Bailway Co., 23 W. E. Bailway Co., 21 "W. E. 819; 28 868; Keane v. Athenry and Ennis L. T. 893. Junction Bailway Co., 19 W. E. 43. ^ Vyner v. Hoylake Bailway Co., In Sedgwick v. Watford and Bick- cited Seton (6th ed.) 2292. OP RELIEF AFTER JUDGMENT. 509 § 1178. A vendor of land to a railway company Railway is, with respect to his right to such an order, in no "°"'p^'^^' different position from any other vendor, and if the company fail to pay, is entitled to have the land sold, although the railway may have been actually made and may be ready or even opened for traffic.^ § 1179. (ii.) Where profit is capable of being made "-.Re- of the property pending the sale, that px'ofit ought to be made.^ The Court will accordingly, in a proper case, upon the vendor's application, appoint a receiver of the property and direct the defaulting purchaser to let him immediately into possession.^ § 1180. (iii.) In a case that came before Lord iii. in- Selborne, two attempts to sell the subject-matter of ieatorhro- the contract — land of which the purchasers, a railway posses- company, had taken possession and over which they ^'°°' had constructed their railway — having proved abortive, his Lordship, on the application of the vendor, dis- charged the order for sale and directed the defendants within a month to pay the unpaid purchase-money with interest into Court ; and the order went on to direct that, in default of such payment into Court, an injunction should be awarded restraining the defen- dants from running trains over the land and from con- tinuing in possession of it, and that the vendor should be put in possession of the land/ § 1181. Li a previous case Lord Romilly M.R. Writ of finally ordered a writ of assistance to issue to put the vendor in possession of the lands comprised in the contract.'^ ' Wing Y. Tottenham and Hamp- 21 W. E. 819; 28 L. T. 893. Dis- stead Junction Railway Co., L. E. tinguisli Latimer v. Aylesbury and 3 Ch. 741 ; Keane y. Atlienry and Buchinghrim liailimy Co., 9 Oh. D. Ennis Junction Railway Co., 19 385. W. E. 43 ; Earl of Jersey v. South . Williams v. Ayleshury and Buch- Wales Mineral Railway Co., 19 L. T. .^^^j^^^^ Anhoay Co., 21 W. E. 819 ; N- S. 446. 28 L. T. 547 ; S. C. (final order) » Per Giffard L.J. m lAcniis y. g^^^^ ^g^j^ ^^^^ 2291 ; Allyood y. Isle of Wight Raihvay Co., L. E. 5 j^^^^yj^^f, &c. Railway Co., 33 Ch. at p. 419. Ch. D. 571. 3 Munns y. Isle of Wight Raihvay Co., L. E. 5Ch. 414; Warer.Ayles- ^ Vyner v. Hoylake Railway Co., bury and Buckingham Railvjay Co., cited Seton (6th ed.) 2292. 510 OF THE MODE OF EXERCISING THE JURISDICTION. E. s. c. § 1183. It is provided by the Rules of the Supreme XLu. Court, Ord. XLII. r. 31, that if a judgment for the '■'■ ^^- specific performance of a contract be not complied with, the Court or a judge, besides or instead of pro- ceedings against the disobedient party for contempt, may direct that the act required to be done may be done, so far as practicable, by the party by whom the judgment has been obtained, or some other person appointed by the Court or judge at the cost of the dis- obedient party, and that, upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a judge may direct, and execution may issue for the amount so ascertained and costs.^ Vesting § 1183. Lastly, a purchaser who has obtained a judgment in his favour for the specific performance of a contract concerning land may, if for any reason he cannot otherwise get a proper and complete conveyance of the purchased property, apply to the Court for an order vesting it in him or appointing some one to convey it to him, with a release, Avhere necessary, of contingent rights.^ ' See Mortimer v. Wilson, 33 c. 53), ss. 31, 33; Supreme Court ■^ -g g27 °^ Judicature Act, 1884 (47 & 48 Vict. c. 61), s. 14; Seton (Gth ed.) = Trustee Act, 1893 (56 & 57 Vict. 2287, 2288. order. 511 PART Y. OF INCIDENTAL MATTEES. CHAPTER I. OP CONDITIONS OF SALE AND PARTICULARS. § 1184. The conditions of sale subject to wliicli Condi- property is sold constitute part of the contract. The of^o^^^"^* word conditions thus used, and often as used in con- tract. nection with contracts, is perhaps unfortunate. It is equivalent to terms, and does not import that the terms so described are true conditions precedent or subsequent at law. Particular conditions of sale are considered in several other parts of this treatise.^ But the general principles upon "which the Court acts in construing conditions will be here briefly stated. § 1185. In the first place, the circumstances con- How nected with the title and character of the property 'regarded. are, of course, in the knowledge of the vendor rather than of the purchaser ; secondly, subject to any stipu- lation to the contrary, the legal right of a purchaser is to have a good title, according to the rules laid down in the Vendor and Purchaser Act, 1874, and an estate free from all incumbrances.^ It follows that conditions tending to give the purchaser less than this are in restraint of a legal right.^ It is prima facie the duty ' E.g. §§ 1045 et seq. (rescission), " Phillips v. OaldcleugJi, L. E. 4 1076 et seq. (time), 1239 and 1287 Q. B. 159; Oatayes v. Flather, 34 (compensation), 1323 (title). See Beav. at p. 388. also St. Leon. Tend. eh. i., s, 2. ^ As to conditions precluding 512 OF INCIDENTAL MATTERS. of the vendor to disclose all that is necessary to protect himself, and not the duty of the purchaser to make inquiry before entering into a contract, and this is so whether the sale be by public auction or by private contract.^ Reason- § 1186. Proceeding on these principles, the Courts ness re-^" t>ave held that it is incumbent on the vendor to express quisite. himself with reasonable clearness, and, in the case of sales by auction, so to state his plans, particulars, and conditions of sale as to convey clear information to the class of persons who ordinarily frequent auctions.^ If the vendor uses terms reasonably capable of mis- construction or ambiguous words, the purchaser is not bound to take on himself the peril of ascertaining the true meaning of the statement,^ but may generally construe it in the manner most advantageous to him- self : * and it may be gathered from the case of Taylor V. Martindale^ that, where a condition of sale is so obscurely worded that, taken in connection with the particulars, it is likely to mislead an ordinary person as to the nature of the property, the Court will on that ground alone, and even on the argument of a summons to vary the certificate as to title, discharge a purchaser from his bargain. Torrame § 1187. The case of Torrufice v. Bolton^ affords a notable illustration of this principle. There the advertised particulars described property about to be offered for sale as an absolute immediate reversion of a freehold estate, to fall into possession on the death inquiry as to title, see Jones v. Cheesehorough, 4 De G. F. & J. at Clifford, 3 Cli. D. 779 ; WaddeU v. p. 384. Wolfe, L. E. 9 Q. B. 515; and infra, ^ Martin y. Cotter, 3 Jon. & L. § 1323 et seq. 496 ; Greaves v. Wilson, 25 Beav. ^ Be White and Smith's Contract, 290. Of. Torrance v. Bolton, L. E. [1896] 1 Oh. at p. 641, a case of a 8 Ch. 118. pale of leaseholds subject to onerous * Seaton t. Mapp, 2 OoU. 556. covenants. See, too, Be Haedicke See, too, Qeoghegan v. Connolly, 8 undLipsld's Co7itract, [1901] 2 Ck Ir. Cli. E. 598, 603; Gardiner t. 666. Tate, I. E. 10 0. L. 460. 2 Oihson V. d'Este, 2 T. & 0. 0. 0. M Y. & 0. 0. 0. 658. Of. Jones 542, 558—559 ; Dykes v. Blake, 4 v. Bimmer, 14 Ch. D. 588, Bing. N. C. 463, 476. See, too, per = L. E. 8 Ch. 119. Cf. Be Arnold, Lord Westlbury in Cordingley v. 14 Ch. D. 270. Boltun. OF CONDITIONS OF SALE AND PAETICULAES. 513 of a lady in her 70th year, and no conditions of sale were issued, but just before the auction the auctioneer's clerk read out from a manuscript a string of conditions, in one of which the property was stated to be subject to three mortgages, and it was stipulated that the purchaser should take a conveyance subject to them. On the purchaser proving that he bought without distinctly hearing or understanding the effect of this condition, it was held by the Court of Appeal in Chancery that he was entitled to have the contract rescinded, on the ground that the description in the particulars was misleading, and the onus was therefore on the vendor to show (which he failed to do) that the purchaser was not actually misled. § 1188. Again where, on a sale by auction in four Jones y. lots of leaseholds in Liverpool, it appeared from the '^"""'^''■ particular and conditions that three of the four lots were held under the Corporation, upon whose leases there is usually only a nominal rent reserved ; and as to the fourth lot, the particular stated the rents at which the houses comprised in it were underlet, and that it was subject to a mortgage for 500/., but by an accidental slip neither particular nor conditions mentioned the fact that the lot was subject to a ground-rent of 43/. 17s. 6d. ; upon the purchaser of this lot applying to be discharged from his purchase, deposing that he had bought under the belief that the property was not subject to any ground-rent, it was held that he was entitled to be discharged with costs. ^ "The real question, I think," said Jessel M.R., "is, Is this a fair particuilar ; is it one in which a purchaser is told what he has to buy, so as to enable him to form an idea of the value of the thing to be purchased. . . . No doubt the purchaser, if he had been a careful pur- chaser, would have inquired. But is it for the vendor who sends out such a statement as this of the nature of the property to say that the purchaser only was careless ? I think the vendor also was careless. It cannot be said to be a fair mode of drawing a parti- cular of sale of leasehold houses subject to a ground- rent of 43/. a year, to say nothing about the rent."^ 1 Jones V. Rimmer, 14 Oh. D. 588. 2 14 Oh. D. at pp. 691, 592. See Shmrd y. Vmahles, 15 W. E. 1166. r. L L 514 OF INCIDENTAL MATTERS. Instances § 1189. So where there was an ambiguity as to gu%. ^" which of two leases was referred to, the purchaser's construction was admitted by the Court, and the bill dismissed.^ So a condition that no title should be called for prior to a lease was not held so explicit as to preclude inquiry into dealings with the contract for the lease which had taken place prior to its being granted.^ And where a vendor selling a reversionary estate stipulated that a statement in a deed of 1836 that a life annuity had not been paid for eight years, and a declaration by the vendor that no claim had been made on him since 1841, and that he believed the annuity had not been claimed for the last twenty years, should be conclusive evidence that the annuity had determined ; and it appeared that the annuity was granted by a person entitled only in reversion, and was granted for the life of the survivor of four persons ; it was held that the description of it as a life annuity was likely to lead to the belief that the annuity was for one life only, and that the omission to state the facts dis- entitled the vendor to specific performance.^ And so, again, where property sold was described as subject to articles of agreement, bearing date 1804, for a lease for four lives and one year, and in fact the terms of the agreement were such that the lives were not named until 1845, this was considered so ambiguous as to amount to an objection to the performance of the contract.* FMiiipsY. § 1190. In Phillips V. Caldchuglv' the plaintiff con- oeug . ^j.g^g^g^ ^Q |-jyy ^ house, described in the particulars as " a freehold residence," subject to conditions, one of which was that the abstract should commence with a conveyance of April, 1860, and no objection should be taken in respect of the prior title, and another pro- vided that if any error should appear to have been made in the particulars it should not annul the sale. 1 Beaton v Mapp, 2 Coll. 556. 2 Eliodix V. Ihhetson, 4 De G. M. & G. 787. ' Drysdale Y. Mace, 2 Sm. & Gil. 225, afflrmed 5 De G. M. & G. 103 ; cf. Oeoghegan v. Ommolly, 8 Ii. Oh. E. 598. * Martin v. Cotter, 3 Jon. & L. 496. See too Gardiner y. Tate, I. E. 10 0. L. 460, where an equitable interest was described in language wHoh. might naturally be read as importing a legal interest. 5 L. E. 4 Q. B. 159. OF CONDITIONS OF SALE AND PARTICULARS. 615 The abstract of the deed of April, 1860, showed it to have been a conveyance of the property, subject " so far as the same premises were subject thereto " to the (unspecified) covenants and conditions on the grantee's part contained in an indenture (not abstracted) of March, 1850. It was held that, the property having been sold as freehold, neither of the above conditions protected the vendors from explaining what these covenants and conditions were, and showing that the property was unincumbered by them. § 1191. The inclination of the Courts to construe Condi- conditions of sale strictly is shown by many other co*nS;rued cases, ^ but, perhaps, it is not more strongly illustrated strictly. by any than one at the Rolls, where, on a sale of lease- holds, one of the conditions stipulated that the posses- sion under the lease should be deemed conclusive evidence of the due performance, or sufficient waiver, of any breach of the covenants in the lease up to the completion of the sale : Lord Romilly M.R. held that this condition covered all breaches up to the date of the contract, but not a breach between the contract and completion for which the lessor was entitled to enter, and that notwithstanding the express words "up to the completion of this sale."^ § 1193. Again, where one of the conditions stipu- Vendor lated that all objections should be delivered within ^f^^e^|f*° fourteen clays from the delivery of the abstract, and good title. another that "if the purchaser shall fail to comply with these conditions his or her deposit shall be there- upon actually forfeited to the vendors;" and after the expiration of the fourteen days the purchaser delivered an objection showing a fatal defect in the title ; the ground upon which the majority of the Court pro- ceeded, in holding him entitled to recover his deposit, 1 Souihhy t. Hutt, 2 My. & Or. as to rigMs of water and ease- 207 ; Symonda v. James, 1 Y. & 0. ments) ; of. Brookes y. Drysdale, 3 C. 0. 487; Adams J. Lambert, 2 ^_ p_ ^_ ^^ (construction of the Jul-. 1078; Grusey. Nowell, 25 L. J. ^ Oh. 709 (Kindersley V.O.); Brumfit ^"^'^ " °°^e>^ant " m a contract for V. Morton, 3 Jur. N. S. 1198 (Stuart sale) ; and see § 1332. V.O.) ; Cox V. Coventon, 31 Bear. " Howell v. Kightley, 21 Beav. 378; Bussell v. Harford, L. E. 2 331. See as to this case, Zaiorie v. Eq. 507 (construction of condition Lees, 7 App, Cas. 19, at p. 32. ll2 516 OF INCIDENTAL MATTERS. Out- goings. was that the latter condition did not apply to the case of vendors unable to give a good title.^ § 1193. Where, on a sale of leaseholds, the con- ditions provided that the purchaser should have posses- sion on the lith of November, all outgoings up to that day being cleared by the vendors, the purchaser was held to be entitled to insist that an apportioned part of the current rent from the last quarter-day to the llth of November was an " outgoing " within the meaning Profit ^''^ °^ ^^^® conditions.^ And a stipulation that purchasers ^'™ ^' are to receive "all rents and profits" from the day fixed for completion has been held to entitle them to an occupation rent from the vendors, on the latter remaining in possession after that day.^ Sen.se of § 1194. Tlic Court, construiug conditions thus notex'-"'' strictly, will not by implication extend the terms of tended by one Condition so as to enlarge another beyond what it ™n.'"^ actually expresses. In the case of Southby v. Hutt.^ the interpretation of conditions in this respect was fully considered. There by the conditions of sale, the vendor agreed to deliver an abstract and deduce a good title, except as to part of the estate acquired under an inclosure, as to which he was not to be required to go back beyond the award ; and by a subsequent condition it was stipulated that the vendor should deliver to the largest purchaser all deeds in his custody, but should not be required to produce any other deeds than those in his possession and set forth in the abstract : and it was held that the latter con- dition did not so affect the former as to entitle the vendor to insist on verifying his abstract only so far as could be done by deeds in his possession, but that the purchaser was entitled to a general verification. And so a condition that certain specified deeds only ' WantjL~£iallibrass, L. E. 8 Ex. 175. Cf. Soper v. Arnold, 37 Ch. D. 96, wiiere Want v. Stallihrass is discussed. Distinguisli Pryce-Jonea V. Williams, [1902] 2 Ch. 517 (objection made out of time and not going to the root of the title). ^ Lawes v. Gibson, L. E. 1 Eq. 135. ^ The Metropolitan Railway Co. v. Defries, 2 Q. B. D. 189, 387. * 2 My. & Cr. 207; Oshorne v. Harvey, 7 Jur. 229. See also Oahriel V. Smith, 16 Q. B. 847; and cf. Lord Westbury's judgment in Cordinyley v. Cheeseboronyh , 4 De Gr. F. & J. 384 et seq. OP CONDITIONS OF SALE AND PARTICULARS. 517 should be given up, does not limit the title to be shown to that disclosed by these deeds.^ § 1195. On the same principle of strict construe- Time for tion, where (as commonly happens) there is a con- objeruone^ dition that all objections to the title are to be taken within a specified number of days from the delivery of the abstract, or to be deemed waived, and that time shall, in that respect, be of the essence of the contract, the time will not begin to run against the purchaser until the vendor has delivered a perfect abstract.^ § 1196. It is a natural principle of interpretation. Good that a vendor shall never be allowed to avail himself ^^^'''■ of the conditions of sale for the purpose of acting fraudulently. The Court requires good faith in con- ditions of sale.^ Accordingly a condition for compen- sation will not apply where there has been misrepre- sentation ; ^ and under a condition giving a vendor a power of rescission in case of any objections to the abstract, he will not be permitted fraudulently to deliver an imperfect abstract to which objections would necessarily be taken, and thereupon avail him- self of his fraud to avoid his contract by means of this condition.® So it seems that a condition as to objec- tions to title being delivered by a certain time, would not apply where there had been misrepresentation ; ^ and a condition not drawn honci fide, but intended to cover difficulties arising from facts uncommunicated, will not preclude the purchaser from taking the objec- tion which it is designed to guard against.^ § 1197. So, again, a condition excluding or limit- Conditions ing a purchaser's right to title must, in order to bind tiSe."'^ the purchaser, be fair and explicit, i. e., must state all facts within the knowledge of the vendor which are ' Bick V. Donald, 1 Bli. N. S. 655. 925, 936 ; and see infra, § 1252. '^ Hohson V. Bell, 2 Beav. 17; * Per Wigram V.C. in Jforfey v. Want Y. StalUhrass, L. E. 8 Ex. Cook, 2 Ha. Ill ; and see supra, 175. Cf. Re Jackson and Oakshoit, § 1047 et seq. 14 Ch. D. 851. " Frice v. Macaulay, 2 De G. M. 3 Per Turner L.J. in Dimmock v. & G. 339, 347. Of. Boydx. Dickson, HalleU, L. E. 2 Cli. at p. 28. I. E. 10 Eq. 239. * Stewart v. Alliston, 1 Mer. 26. ' Jackson v. Whitehead, 28 Beav. Cf . Brownlie v, Campbell, 5 App. Oaa. at p. 159, 618 OF INCIDENTAL MATTEES. tion. material to enable the purchaser to determine whether he will or will not buy : therefore, a stipulation that a title should begin with a deed of 1845, stating the parties, but not stating as the fact was that the deed was a voluntary one except from the consideration to pay the rent and perform the covenants as to certain leaseholds, was held not to bind the purchaser.^ ^°^^tioi § 1198. And so a vendor selling property subject easements, to all easements, but without mentioning any, when his solicitor knew of their rumoured existence, was held to sell under a misleading condition.^ ^°nr"t § 1199. Further, though there may have been requisi- neither fraud nor misrepresentation on the vendor's part, the Court will be slow to allow him to get rid of an inconvenient but legitimate requisition by means of a condition giving him a power of rescinding the contract. Thus, where a vendor contracted to sell leasehold property under a bond fide belief that there was no charge upon it ; and the condition of sale provided that, for the purpose of any objection or requisition, the abstract should be deemed to be perfect if it supplied the information suggesting the same : the abstract delivered contained nothing showing or suggesting the existence of any incumbrance, but 'during the investigation of the title it was discovered that there was in fact a mortgage on the property, which the purchasers thereupon required the vendor to discharge : it was held that, under the circumstances, the vendor was not entitled to rescind the contract under one of the conditions, which in terms empowered him to do so in the event of the purchaser's insisting on any requisition which the vendor should be unable, or on the ground of expense should decline, to remove or comply with.^ Mislead- g 1300. A Condition of sale may, of course, with- dition. out any intentional fraud or misrepresentation, be in fact misleading or erroneous. It will be bad as mis- -1 Re Marsh and Earl Granville, ^ Be Jackson and OaJcshott, 14 24 Oh. D. 11. Ch. D. 851. Of. Greaves v. Wilson, 25 Beav. 290 ; Bowman v. Hyland, « Heywood y. Mallalieu, 25 Oh. D. 8 Oh. D. 588; and see supra, § 1047 357. et seq. OF CONDITIONS OF SALE AND PAKTICULAES. 519 leading if it require the purchaser to assume that which the vendor knows not to be true or if it assert that the state of the title is not accurately known to the vendor, when it in fact is known to him.^ § 1301. On this principle, where, one of the con- samett v. ditions being that the title to the beneficial ownership ^''^■'''■' should commence with the will of A. B., and the purchaser should assume that A. B. was at his death beneficially entitled to the property in fee simple free from incumbrances, the abstract showed that A. B. had only entered into a contract for the purchase of the property with persons whose title to sell was doubtful, and had not paid the purchase-money, it was held that the purchaser was not bound by the condition.^ § 1302. But on the other hand, a condition is not held misleading if it require the purchaser to assume certain facts for the purpose of covering a flaw in the title, provided the vendor believed the facts to be as he asked the purchaser to assume them, though he was not in a position to establish them by legal proof.^ § 1303. Where conditions state facts upon which -^^f^j^^ they are grounded, these facts must be proved.^ conditions. Where the vendor states facts, and then states that the purchaser shall take such interest as the vendor under such state of facts has, the purchaser is, it seems, bound to take the title as it is:'' but where, after stating facts, the conditions add, as a positive and 1 Be Banister, 12 Cli. D. 131. See [1891] 1 Ch. 99. See, too, Be Scott per Jessel M.R. in Camberwell and and Alvarez' Contract, [1893] 1 Ch. South London Building Society v. at pp. 605—608 ; S. 0. [1893] 2 Ch. Holloway, 13 Ch. D. at p. 762; also 603; and distinguish Manifold v. Manifold Y. Johnston {1902), 1 I. E. Johnston, [1902] 1 I. E. 7, 13; Be 7,13. QQe,ioo, Be McVichere' Gon- McVichers' Contract, 25 L. E. Ir. tract, 25 L. E. Ir. 307 (condition 307. requiring purchaser to assume that , ^^^^^^^ ^_ j^^^^^ 1 T. & C. 0. vendor derived a good title under a p .„k ■will). Distinguish Blenhhorn v. Penrose, 29 W. E. 237. ^ Cf. Smith v. Watts, 4 Drew. 2 Harnett v. Baher, L. E. 20 Eq. 338 ; Blenhhorn y. Penrose, 29 W. E. 50. 237 (condition involving neither ^ Be Sandbach and Edmondson, suppressio veri noi suggestio falsi). 520 OP INCIDENTAL MATTERS. distinct fact, and not as a conclusion of law from the preceding circumstances, that the vendor can make a good title to the fee : as this title may have arisen from independent sources, the purchaser is not bound by the title resulting from the facts, but may inquire generally whether the vendor can make out a good title.^ tions^n § 1204. With respect to sales by the Court : it sales by would bo going too far to say that, in such sales, the the Court, conditions are dealt with on different principles from those which obtain in ordinary cases. But the Court is scrupulously careful not to strain the meaning of any condition framed under its authority,^ nor to allow a purchaser to be prejudiced by any such con- dition which appears on examination to be misleading or unfair. EdicardsY. S1205. Accordiuglv whero property had boon sold under a decree, subject to conditions, one of which provided that no requisition should be made in respect of a certain underlease of 1852, or of any underlease prior to 1864, and it turned out that another under- lease (besides that of 1852) had, to the vendors' know- ledge, been made prior to 1864, the Court held that it was the duty of the vendors to give the fullest infor- mation which they themselves possessed as to the title, and therefore to disclose the underlease in question, and that the purchaser was entitled, notwithstanding the condition, to require it to be produced.^ T^'mmi § 1306. So, in another case of sale under a decree, where the conditions (settled by one of the convey- ancing counsel of the Court) stated the facts correctly, and in a manner which might have led a lawyer to the inference that the vendor had no title, but would not lead an ordinary purchaser to that conclusion. Lord Romilly M.R. refused to enforce specific perform- ance against the purchaser, saying that it was of great importance, particularly in sales by the Court, that ' Johnson v. Smiley, 17 Beav. Eq. 422. See, too, per Jessel M.E. 223. Of. Cox V. Ooventon, 31 Bear. in Ee Arnold, 14 Ch. D. at p. 273. 378. ^ Edwards v. Wickwar, L. E. 1 » E.g. Powell v. Powell, L. E. 19 Eq. 68, 70, or CONDITIONS OF SALE AND PAETICULAES. 521 conditions of sale should distinctly explain any diffi- culty of title.^ § 1207. In a later case the same Judge relieved a other purchaser from a misleading condition on the express i°^'^'^'^'=<^»- ground of the sale having taken place under the autho- rity of the Court ; but he at the same time intimated that such a condition would be bad in any sale.^ On the other hand, a condition precluding the purchaser from objecting to the Cou.rt's jurisdiction to order the sale of a reversion in which (as the condition expressly stated) infants were interested was held by the Court of Appeal in Chancery to be fair, reasonable, and binding.^ § 1308. It may here be noticed that if the con- stipuia- ditions of sale clearly stipulate that the property will ^^°^^^ '" be conveyed subject to specified liabilities, the vendor of convey- may enforce the insertion in the conveyance of apt ^'^'^®' words for giving effect to the stipulation, even though it be not shown or alleged that the property is in fact subject to any of the specified liabilities. Thus where, on a sale by auction, one of the con- ditions provided that "the property is sold and will be conveyed subject to all free rents, quit rents, and incidents of tenure, and to all rights of way, water, and other easements, if any," it was held that the vendors were entitled to have the words "subject to all free rents, &c.," inserted in the conveyance, not- withstanding the purchaser's objection that they were wholly inapplicable to the property.* And so where the contract provided for the convey- ance of the property to the purchaser subject to a specified restrictive covenant, the purchaser was held entitled to insist on having the conveyance in strict accordance with the terms of the contract, without any mention of another restrictive covenant, of which, according to the vendor, the purchaser had notice.* 1 Williams v. Wood, 16 W. E. * Gale v. Squier, 4 Oh. D. 226, 1005. affirmed 5 Ch. D. 625. Of. Sidney ^ Else V. Else, L. E. 13 Eq. 196, ^_ ^^^^^^^^^ g, ^^^^_ ^^^_ 201. 3 Nunn V. Eancocl, L. E. 6 Oh. ' ^« Wallis and Barnard's Con- 850. iract, [1899] 2 Oh. 515. 522 CHAPTEE II. OP COMPENSATION. Vendor unable to perfoim the whole of the contract. Origin of the right to com- pensation. Pleading. § 1209. Where a vendor is able to perform the contract in its substance, but unable to perform it literally in all its parts, he may yet sue the purchaser for its specific performance, On the other hand, where a vendor has not substantially all that he has contracted to sell, he cannot sue for specific performance, but the purchaser may generally insist on taking what the vendor has. § 1210. From these principles arises a right in the purchaser to compensation^ in respect of the difference between the thing which the vendor insists that he shall take, or he himself insists on taking, and the expressed subject-matter of the contract. It will be shown that the subjects of compensation in the two cases are very different, and that many defects for which the purchaser may obtain compensation will not be made the subjects of compensation at the in- stance of the vendor.^ The rights of the parties to compensation may be and frequently are qualified by the contract, which in many cases contains a condition on the point. § 1211. It is conceived that, under the present prac- 1 It is notewortliy that "the remedy of specific performance of part of a contract, with a compen- sation, which has in many cases heen given to a purchaser by English Courts of Equity, is unknown to the law of Scotland. ' ' Per Lord Watson in Stewart v. Kennedy, 15 App. Cas. at p. 102. ^ Compare Nelthorpe v. Holgate, 1 Coll. 203, with C'olUer v. Jenkins, Tou. 295. See also Wilson v. Wil- liams, 3 Jul-. N. S. 810 (Wood V.C). OF COMPENSATION. 523 tice, if either party is aware of any case for compensa- tion, and means to insist on it, he ought distinctly to raise the question on his pleading ; ^ but it seems that compensation may be granted for a defect appearing on the investigation of title, though the pleadings and judgment make no reference to compensation.^ § 1312. It will be convenient to consider separately Division (I.) the cases where the vendor is the party insisting "^^w on the performance of the contract, sub-dividing these into (a) cases where either the contract contains no condition for compensation, or at any rate no such condition enters into the question, and (b) cases where there is such a condition ; and then (II.) to deal in a similar way with the cases in which the purchaser is the party insisting on the contract. I. A. Vendor insisting on the contract, there leing no condition for compensation. § 1313. The description by which a thing is con- Vendor tracted to be sold is a matter for which the vendor is ^"g^o^ prima facie responsible. Inasmuch however as Equity perform looks to the substance rather than to the mere letter of gubSan- a contract, if the vendor shows that he can substantially tiaiiy. do what he contracted to do, he is entitled to enforce specific performance, although he may be unable to do it modo et forma according to the letter of the contract ; the difference between what he contracted to do and what he can actually do becoming the subject of com- pensation. § 1314. "Lord Thurlow," said Lord Eldon, in a Theprin- passage already cited, " used to refer this doctrine of ^jpj®^ specific performance to this ; that it is scarcely possible, by Lord that there may not be some small mistake or inac- '^'^^^'^i'''"'- curacy ; as that a leasehold interest, represented to be for twenty-one years, may be for twenty years and nine months : some of those little circumstances, that would defeat an action at Law ; and yet lie so clearly I E. S. 0. Order XIX. rr. 4, 15 ; * Wihon v. Williams, 3 Jur. N. S. Order XX. r. 6. 810 (Wood V.O.). 524 OF INCIDENTAL MATTERS. Essential and non- essential defects to be distin- guished. in compensation, that they ought not to prevent the execution of the contract."^ tii^of'the § 1S15. But " if (to quote Lord Erskine) a Court principle, of Equity can compel a party to perform a contract, that is substantially different from that which he entered into, and proceed upon the principle of com- pensation, as it has compelled him to execute a con- tract substantially difPerent, and substantially less than that, for which he stipulated, without some very dis- tinct limitation of such a jurisdiction, having all the precision of law, the rights of mankind under contracts must be extremely uncertain."^ § 1316. It falls then to be considered (i) what defects or circumstances will be considered by the Court so material or essential as to debar a vendor from enforcing the contract at all, and (ii) what, on the other hand, will be held so immaterial or non- essential as to allow of the contract being enforced at his instance, i. Material §1217. (i-) The Contract will not be enforced wanting, agaiust the purchaser with compensation where a material part of the subject-matter is wanting. For- merly the Court went far beyond what it now does in enforcing contracts substantially different from those entered into ; as where a wharfinger who contracted for a house and wharf was compelled to take the house without the wharf : but of this mode of proceeding Lord Eldon frequently expressed his disapproval, and it is now abandoned by the Court.^ " The Court," said Lord Eldon on one occasion, "is from time to time approaching nearer to the doctrine that a pur- chaser shall have that which he contracted for, or not be compelled to take that which he did not mean to have."* 1 In Mortlock v. Buller, 10 Ves. at p. 305 ; supra, Part I. chap, ii, § 50. See, too, per Lord Eldon in Calcraft v. Boebuch, 1 Ves. Jtin. at pp. 223, 224. ^ In Hahey v. Grant, 13 Ves. at p. 76. ' Drewe T. Hanson, 6 Ves. 675 ; HalseyY, Grant, 13 Ves. 73; Siapyl- ton Y. Bcott, 13 Ves. 425; Knatch- hull V. Grueber, 3 Mer. 124. See also Hoiuland v, Nor'ris, 1 Oox, 59. Tlie decision in SJiirley v. Davis, to wMcli Lord Eldon jfrequently alludes, appears to have been in fact the opposite of that which his Lordship stated. Shirley v. Strat- ton, 1 Bro. 0. 0. 440, n. (2). ^ 3 Mer. 146. See, too, the judg- OF COMPENSATION. 525 § 1318. Accordingly where a wharf and jetty were instancee. contracted to be sold, and it turned out that the jetty was liable to be removed by the Corporation of London, specific performance was refused.-^ In the case of the sale of a residence and four acres of land, a slip of ground of about a quarter of an acre between the house and the high road, to which the title was made, was held not to be a subject for compensation.^ And in one case Lord Eldon thought that a defect in title in respect of eleven out of seventy acres, which do not appear to have been peculiar in their position or character, " would probably be matei'ial to the suit.'"* § 1219. In some cases a part of the estate con- Nuisance tracted for maj^ be material because, if any one else hended. were to possess it, it would probably be turned to some purpose prejudicial to the enjoyment of the estate ; as where land near a mansion was such that it would be most profitably used for building ground or for a brick-kiln. But the nuisance thus apprehended must be probable, and not merely distant, fanciful, and conjectural.^ § 1320. Again, where the tenure of an estate con- Tenure tracted to be sold is in fact altogether, or to a sub- '^''^"'ent. stantial extent, different from that which the vendor has represented himself to be selling, he will not be able to enforce pei'formance, unless indeed the pur- chaser has waived the objection. § 1231. Thus where, on a sale by auction, the Freehold particulars described the property to be sold as a ^lt-^g_ "freehold estate with a leasehold adjoining," and it leasehold turned out that, of the seventy acres of which the ^ ^°"^^- estate consisted, sixty-two were leasehold and only eight freehold, Lord Alvanley M.R. said that, if the purchaser had objected on that ground, he should ments of the L. JJ. in Be Arnold, Bevan, 28 Sol. J. 327. 14 Oh. D. 270. ' Perkins v. Ede, 16 Beav. 193. ' Peers v. Lambert, 7 Beav. 346 ; ' Oshaldiston v. AsJcezv, 2 J. & W. see a somewiiat similar case of a 539. Of. Portman v. Mill, 2 Euss. wharf where the frontage was less 570, 574. by nearly eleven feet than the •* Seeder PlumerV.O. in ^raafcA- frontage described, and the differ- hull y. Orueber, 1 Mad. at p. 167 ence aiiected the access of barges : (the case on appeal is reported 3 Be Deptford Oreeh Bridge Co. v. Mer. 124). 526 OF INCIDENTAL MATTERS. Estate sold as tithe free. Incum- brances. Indem- nity. Purcliaser not com- pelled to take in- demnity. have thought the purchase ought not to be carried into execution. As, however, the purchaser had not taken the objection, his Lordship granted an injunction restraining an action for the deposit on the terms of the vendor bringing the money into Court.^ § 1222. Again, where an estate is sold as tithe free, or subject to a modus, and it is in fact subject to tithe, the Court will not, as a general rule,^ compel the purchaser to take it with compensation.^ § 1223. Nor, it seems, would the Court compel a person who had contracted for the purchase of an estate free from incumbrances to take, instead of that, an estate subject to an incumbrance amounting to one half of the purchase-money;* though if there is only a small incumbrance upon a considerable estate, the decision may, as ■w'ill be shown, be otherwise.^ § 1224. In some cases the compensation to be made for a defect may take the form of an indemnity ; which is a species of compensation — inasmuch as some- thing else is given in place of the very thing contracted for — applicable to cases where the defect or loss is not certain but contingent. § 1225. The Court will not, however, at a vendor's instance, compel the purchaser to take an indemnity, unless such indemnity was part of the contract between the parties.® Thus, where the sublessee of a house had contracted to grant a twenty-one years' lease of it to the defendant, but, owing to the house in question being, with five others, subject to the covenants and proviso for re-entry contained in the head lease, could not give the defendant a secure lease for the term of his contract, specific performance was refused, though the plaintifE offered to indemnify the defendant in case ' Fordyce v. Ford, 4 Bro. C. C. 494. Of. Cox Y. Coventon, 31 Beav. 378 ; and see Hughes v. Jones, 3 De G. P. & J. 307. ' See, however, infra, § 1234. ^ Ker T. Clohury, St. Leon. Vend. 267; Binhs v. Lord Boheby, 2 Sw. 222 ; Lord Stanhope's case, cited 6 Ves. 678, is explained by Lord St. Leonards, Vend. 266. * Per Lord Eldon in Wood v. Bernal, 19 Ves. at p. 221. ' See infra, § 1231 et seq. " See per- Lord Eldon in 5aZmamno V. Lumley, 1 V. & B. at p. 225, and tlie cases cited infra, §§ 1281, 1282. See too Wood v. Bernal, 19 Ves. at p. 221. OF COMPENSATION. 527 of his eviction.^ Similarly it has been held that a purchaser could not be forced to take an indemnity in respect of a misdescription,^ or of a possible liability under an ambiguoiis covenant.^ § 1326. In a case decided by Lord Hatherley (then Beesionv. Wood V.-C.) in the year 1858, the contract was that *"'''^- the defendant should procure a lease then vested in his father to be surrendered to the plaintiff, and would thereupon accept a new lease from the plaintiff and pay a premium of 300/. for it. The father refused to surrender his lease : whereupon the plaintiff filed her bill for specific performance, praying that, if the defendant could not obtain the surrender, he might be decreed to accept a lease commencing from the expira- tion of his father's lease, and in other respects in the terms of the contract, and also to make good her loss resulting fi-om the non-performance of the contract. It was held on demurrer that the Court could not interfere to decree specific performance, but would leave the plaintiff to her remedy at Common Law in damages.* § 1227. The principle of compensation will not Misrepre- be applied at the instance of a vendor who has been ^'^'^'^*'°"- guilty of misrepresentation. This point will be illus- trated hereafter.^ § 1228. Even where the circumstances are such Conduct that the vendor might originally have enforced the tent'wit'h contract with compensation, he may lose his right to contract. do so by subsequent conduct inconsistent with the contract : — as for instance where, one of the terms of the contract being that immediate possession should be given, and the purchaser having taken possession accordingly, the vendor, on a question as to compen- sation arising, turned him out of possession.'^ § 1229. (ii.) On the other hand, in each of the u. Defect following cases the defect was considered a proper y"' ^^^^'^' subject for compensation, but not so essential as to 1 Fildes V. Hooker, 3 Mad. 193. 27 L. J. Cli. 156 ; see now infra, 2 Ridgiuay v. Ch-ay, 1 Mac. & G. §§ 1300, 1306. 109. ^ Infra, §§ 1252 et seq. 3 Nouailley. Flight, 1 Beav. 521. « KnatchhuU v. Grueher, 3 Mer. * Beeston y. Stutehj, 6W. E. 206; 124, 144, 147. 528 OF INCIDENTAL MATTERS. Profits over- stated . Trifling incum- brances. Instances. debar the vendor altogether from enforcing the con- tract : — where an estate of about 186 acres was de- scribed as freehold, and in fact about two acres, part of a park, were held only from year to year ;^ where there was an objection to the title of six acres out of a large estate, and those acres do not appear to have been material to the enjoyment of the rest;^ where fourteen acres were sold as meadow, and only twelve answered that description;^ and where, on a purchase by a tenant in possession, property described as forty- six feet in depth proved to be only thirty-three feet.* § 1S30. In one case where, on a sale of colliery works, the vendors had stated the annual profits of the concern at a sum largely in excess of the actual amount, they were nevertheless allowed to enforce the contract, but on the terms of making compensation to the purchasers by submitting to an abatement from the purchase-money, bearing the same proportion to the excess as the total purchase-money bore to the capitalised value of the amount of profits stated by the vendors.^ § 1231. On the general principle already stated,® the mere fact of the existence of some small or (to the purchaser) immaterial incumbrances on the property is not enough to deprive a vendor of his right to insist on the specific performance of the contract. § 1282. Thus, where tithes contracted to be sold were subject to sundry small annual charges,'' and where the estate sold was subject to quit-rents (which may be regarded as incidents of tenure),® the Court enforced the contracts, in one case with an inquiry whether there ought to be any and what indemnity in ' Calcraft v. Roebuck, 1 Ves. Jun. 221. ° McQueen v. Farquhar, 11 Ves. 467. 3 Scott V. Hanson, 1 E. & My. 128. * King v. Wilson, 6 Beav. 124. « Powell V. Elliot, L. E. 10 Ch. 424. « Supra, § 1213. ' Ralseij V. Grant, 13 Ves. 73 Hornihlow y. Shirley, 13 Ves. 81 Cf. Brewe v. Hanson, 6 Ves. 675 and compare Me SomervilW s Estate, [1895] 1 I. E. 460, 465 (no com- pensation in respect of tithe rent- charge), with Hamilton v. Bates, [1894] 1 I. E. 1 (compensation for tithe rent-charge granted). ^ Esdaile v. Stephenson, 1 S. & S. 122, 124. OP COMPENSATION. S29 respect of tTie charge/ and in the others with com- pensation to the purchaser by way of abatement from the purchase-money. § 1333. Again, in a case where an estate sold as Taxes fen land, and so described in the particular, was sub- j^^ai Act. ject, under a local but public Act, to certain embanking and drainage taxes which were not mentioned in the particulars, the Court, on the ground apparently of the Act imposing the charges being a public Act, decreed against the purchaser specific performance of the con- tract without compensation.^ And, inasmuch as a contract for the sale of a house Access of with windows looking over the land of a third person '^ ' implies no representation or warranty that the windows are entitled to the access of light over that property, the vendor of a house so situated was held entitled to enforce the contract without compensation, notwith- standing his non-disclosure of a deed acknowledging that he was not entitled to the light : but the Court gave him no costs, considei'ing that he ought in fairness to have informed the purchaser of the deed before the contract was concluded.^ § 1234. Further, although, as we have seen,* a Tithe. man who contracts to purchase an estate which is described as tithe-free will not generally be compelled to complete his purchase, if it turn out that the land is subject to tithe, — it being considered that, as a general rule, the right to the tithe is so material to the enjoyment of the land as to have formed the inducement to the purchase, — still, where the circum- stances show that the right to the tithe is not thus material, the general rule ceases to apply. For instance, where an estate of about 140 acres was described as subject to tithe except 32 acres, and the exemption from tithe of those 32 acres was not proved ; ^ and again where the circumstances showed ' Hahey v. Orant, ubi supra. * Supra, § 1222. ' Barraud v. Archer, 2 Sim. 433 ; ^ Biuks v. Lord Hokeby, 2 Sw. aEBrmed on apjDeal (not reported : 222. In this case there appears to see 2 E. & My. 751). have been a condition that errors 3 Greeiihalgh v. Brindley, [1901] of description should not vitiate the 2~0h. 324, 328. sale. See 2 Sw. 225. F MM visible. 530 OF INCIDENTAL MATTERS. that the question whether the land was to be tithe-free or not was an immaterial one in the view of the pur- chaser;^ the Court compelled the purchaser to complete the contract with compensation. Patent § 1235. On the principle that a warranty or a representation is not binding, where in respect of some defect that is perfectly patent/ the Court will not give a purchaser compensation for defects of this nature : so that a contract was enforced, at a vendor's instance, without any compensation in respect of the misdescription of a farm described as lying within a ring fence, which did not so lie, as the purchaser had himself seen and knew ; while in the same case com- pensation was given for latent defects.^ St § 1336. But in order that this principle shall must be apply, the defect must be perfectly visible to every- body : therefore, where a representation was made by the vendor as to the dry-rot in a house, which was not a matter so perfectly visible, the Court gave compen- sation : * and where a tenant in possession purchased the property, which was represented as 46 feet in depth, but was in fact only 33 feet, he was held entitled to compensation, inasmuch as occupiers are not in the habit of measuring their premises.® Waiver 8 1237. Morcover, if the purchaser, after he knows or a defect, acts in a manner implying a waiver of it, the vendor becomes entitled to insist on the completion of the purchase without compensation. Thus, where tlie abstract, delivered in January, showed part of the estate to be subject to a right of sporting, and in the following April the purcliaser at his own request was let into possession, and afterwards several letters passed between the parties, and most of the purchase- money was paid without any objection on the score of tlie right before, in October of the same year, the pur- chaser claimed compensation ; it was held that he had waived the objection, and specific performance with- out compensation was decreed against him.^ ' Smith V. Tolcher, 4 Euss. 302. ^ Vi/er v. Margrave, 10 Ves. 505. 2 See supra, §§ 686, 687, 868, 871. '■ Grant v. Munf, Coop. 173. Cf. Eorsfall v. Thomas, 31 L. J. Ex. = King v. Wilson, 6 Beav. 124. 322 ; 10 W. E. 650. " BurneU v. Brown, 1 J. & •^. of defect. OF compensatjon;. 531 § 1238. In an Irish case specific performance was Defect im- enforced, at a vendor's instance, without compensation ™ for a deficiency of nearly one -half in acreage of pro- perty described in the contract as " about 200 acres of mountain land," the land being a waste of heath of trifling value. ^ I. B. Vendor insisting upon the contract, there being a condition for compensation. § 1339. In the cases now to be considered, while The the general principles already stated are applicable, pos^iJ^ and the rights of the vendor are usually somewhat in sucii extended by the language of the particular condition, "^^^^^ at the same time, conditions of sale being, as we have seen,^ construed strictly against the vendor, it is incumbent upon him, if he rely upon the condition to compel the purchaser to carry the contract into execu- tion, taking compensation for some defect, to show that the defect is of such a nature as properly to fall within the condition.^ § 1240. Quite apart from any consideration of Material fraud, where there is in a contract a misdescription "in ^ipyo^ a material and substantial point, so far affecting the subject-matter of the contract as that it maybe reason- ably supposed that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation."* So where there was a condition excluding compensation, and the property which the vendors offered for sale was property a material part of which they had not got, the purchaser's claim for rescission and return of deposit was allowed, and the vendor's counter-claim for specific performance was dismissed.^ 168. Distinguisli Hughes v. Jones, ingley v. Cheesehorough, 4 De Or. P. 3 De G. P. & J. 307. & J. at p. 384; Re Terry and White, 1 Oarless v. Sparling, I. E. 9 Eq. 32 Cli. D. 14. 595. * Per Tindal C.J. in Flight v. 2 Supra, § 1186 et seq. Booth, 1 Bing. N. 0. at p. 377. ■^ See ^er Lord Westbury in Tord- ' Jacohs v. Revell, [1900] 2 Ch. M M 2 632 OF INCTBENTAL MATTtlRS. Imma- terial mis- descrip- tion. Prohibited trades imper- fectly enu- merated. Copyhold described as free- bold. Tenancy An instance in which the converse of this principle was applied, and a mistake was held not to prevent specific performance, may be found in the case of In re Fawcett and Holmes} There there was a contract for the sale of a house and builder's yard, described as containing 1,372 square yards, and a clause for compensation in the event of misdescription : in fact, the contents of the property were only 1,03-'? square yards. The error was held not to affect the substance of the thing sold, and the vendor was allowed to enforce specific performance with compensation. § 1241. On the other hand, where the particulars of a leasehold house in Covent Garden stated that, by the lease, "no offensive trade was to be carried on, and that the premises could not be let to a coffee-house keeper or working hatter," and there was a condition for compensation in case of error or misstatement, and the original lease, in fact, prohibited a vast variety of other businesses than those described, including the sale of any provisions, the purchaser was held to be entitled to rescind the contract.^ § 1342. Again, where there was a condition for compensation in the case of error in the description of the premises, or of any other error whatsoever in the particulars, and tlie property which was described as copyhold turned out to be partly freehold. Lord Romilly M.R. refused to compel specific performance by the purchaser : he had contracted to purchase one thing, and he might refuse to accept another.^ § 1243. In another case a yard, which was cssen- 858, 869, in wMcli case numerous decisions on conditions for compen- sation were passed in review. See, too. Be Puckett and Smith's Contract, [1902] 2 Ch. 258, 264, 71 L. Cb. 666 (where an underground culvert constituted a latent defect) ; distin- guishing Be Brewer and Hanhins' Contract, 80 L. T. 127. 1 42 Ch. D. 150. 2 FligJd V. Booth, 1 Bing. N. 0. 370. Distinguisli r/rosveworv. Green, 7 W. E. 140. 3 Ayles V. Cox, 16 Beav. 23. In Hick V. Phillips, Free, in Ch. 575, a bill by a vendor of an estate, which, in the articles was treated as free- hold, was refused because about one- sixth in value was copyhold, but nothing is stated as to the peculiar nature of the tenure. Cf. the ob- servations of EomiUy M.E. in Hud- son V. Cooh, L. E. 13 Eq. at p. 420. See, too, Evans v. Bohins, 8 Jur. N. S. 840. OF COMPENSATION. 633 tial to the enjoyment of the property sold, was hehl yearly from year to year, instead of for the term of twenty- °" ^' three years for which the rest of the premises were held, and at a separate rent : this was considered to be a defect which the vendors were not entitled to bring within a condition for compensation for mistake in the description of the property or any other error whatso- ever in the particulars.^ § 1244. In Macleley v. BootJi^ leasehold property MadeiajY. was sold for the residue of a term of ninety -nine years, •^'"''^' which commenced on the 24th June, 1838, under con- ditions which prohibited the purchaser from calling for the lessor's title, and stipulated that any error or mis- statement of the property, term of years, or other description, should not vitiate the sale, but that a com- pensation should be given : the term sold was really not the residue described, but a derivative term less by three days than the original one : Knight Bruce V.C. held that the underlease was not substantially the same thing, the resulting rights being different, and accord- ingly dismissed with costs a bill by the vendor praying for specific performance with compensation. This decision, disapproved of by Jessel M.R.,* has received sanction from the case of Iti re Beyfiis and Masters,*' where, however, the stipulation as to errors which were to be the subject of compensation extended only to the description of the property. § 1245. The principle under consideration of Eights' course applies where, though the whole land is con- ^ecting^ veyed, it, or a part of it, is subject to rights which enjoy- materially affect its enjoyment: thus a right of way, ™°" which would render useless for building a close adver- tised as building- ground, has been held not to come within a condition for compensation ; ® so grants of rights to the owners of lower lands, to fetch water from a spring on the upper lands, to cut and cleanse drains ^ Bohell V. Hutchhiaon, 3 A. & E. Kay, at pp. 557, 558; and Hayford 355. V. Griddle, 22 Beav. 477. 2 2 De G. & Sm. 718. 439 qj^_ -^ ^^q. snowed in 3 OamherweU and South London ^^^^^ ^_ pmiipa, 74 L. T. 459. Building Society v. Holloway, 13 Oil. D. at p. 760, and infra, § 1250. ^ Dykes v. Blake, 4 Biug. N. 0. See, too, Darlington v. Hamilton, 463. ment. 534 OF INCIDENTAL MATTERS. leading the water to the lower lands, and other similar rights having reference to four and a half acres out of about thirty sold, were held to constitute a material defect in the title to the upper lands, and consequently were not the subject of compensation, notwithstanding a condition that a mistake in the description or an error in the particulars should be the subject of compensa- tion, and not annul the contract.^ Compen- § 1246. Grenerally, where there is a proper case reason- for Compensation, and the amount can be reasonably ably osti- estimated, the Court is disposed to grant it.^ Reason- § 1247. But whoro this reasonable estimate is not able esti- attainable, the Court refuses to compel the purchaser mate un- ' • i i i i i attainable, to take Compensation: thus, where a house and grounds were sold by the Court, and, j^ending the making out of the title, some ornamental timber was cut down, the purchaser was discharged, because the act affected the value of the property to the purchaser, as a residence, in a way which the Court was unable to measure.^ And where the particulars represented the average size of the timber in the wood, which was the property sold, as approaching 50 feet, but in no way specified the number of the trees ; and the witnesses for the plaintiff (the vendor) treated no trees containing less than 10 feet as timber trees, and on this basis showed an average of 3i feet inches ; whilst the defendant's witnesses, reckoning all trees containing not less than 5 feet as timber trees, showed an average of 22 feet only ; it was held by Lord Hatherley (then Wood V.C.) that the subject-matter sold fell short of the descrip- tion ; but, in the absence of any representation as to the number of trees, the Court had no data for calcu- lation, and therefore could not give compensation, but dismissed the bill.* Midgway §1248. The Same principle scems to have governed ^' ™^' another case, in which the premises were described as in the joint occupation of A. and B. as lessees, whereas ' Shadcleton v. Sutdiffe, 1 De G. ' Magennis Y.Fallon, 2MoU. 561, 6 Sm. 609. Of. NouaUle v. Flight, 584. Cf. Gox v. Coventon, 31 Beav. 7 Beav. 521. 378. ' See infra, § 1278 ; Enr/lish v. * Lord Brooke v. Rounthwaite, 5 Murray, 32 W. E. 84. Ha. 298. Of. infra, § 1294. OF COMPENSATION. 535 they M'^ere in fact in their joint occupation, but not as lessees, but A. was the assignee from C, the original lessee : it was held that this was not a case for com- pensating the purchaser, but that he could not be forced to take an indemnity.^ § 1249. On the other hand, where the conditions Copyhold provided that any misstatement of the quality, tenure, equivalent outgoings, or other particulars of the property, described !°,*^^^" by an innocent mistake as ''valuable freehold estate," should be the subject of compensation ; and one lot was in fact of copyhold tenure, but it appeared that under a composition with the lord of the manor the difference in value between copyholds in tlaat manor and free- holds was very slight ; it was held that the vendor was entitled to compel the purchaser to take the lot in question with compensation.^ § 1250. Further, although, where a man sells a Under- lease for a definite term of years, and nothing more is called said on either side, he cannot make a good title unless ^^^^®- he shows that it is an original lease,'' yet where the particulars and conditions of sale in effect tell the pur- chaser that the lease which is offered for sale is in fact an underlease, the vendor is entitled to enforce com- pletion without compensation, and that notwithstand- ing a condition for compensation in the event of any error or mistake appearing in the description, or in the nature or quality of the vendor's interest therein, or in the particulars of the sale. For joer se calling a thing a lease which is a lease is not a misdescription.'' § 1251. The cases where the defect is, from its wtere magnitude or importance, not a proper subject for pensation. compensation, have been already stated. We may 1 Ridgway v. Oray, 1 Mao. & G. 110; Broom v. Phillips, 74 L. T. 109. Distinguisli Farebrother v. 459. Of. Darlington v. Hamilton, Gihson, 1 De G. & J. 602. Kay, at p. 558; Hay/ordy. Griddle, » Price V. Macaulay, 2 De G. M. 22 Beav. 477 ; Nouaille v. Flight, 7 & G. 339. Beav. 521 ; Henderson v. Hudson, 3 ReBeyfus and Masters, 39 Oh. D. 15 "W. E. 860 ; Flood v. Pritchard, 110. 40 L. T. 873; Turner v. Turner, ^ Per Jessel M.E. in Cambenuell [1881] W. N. p. 70; Be Scott and and South London Building Society Eave's Contract, 86 L. T. 617, 618 V. Holloway, 13 Ch. D. 754, 761 ; (question of conveyance and not of Be Beijfrn and Masters, 39 Ch. D. title). 536 OF INCIDENTAL MATTERS. Misrepre- sentation. Frice i As to tenancy. DimmocJc V. Sallett. now consider some other cases, where the doctrine will not be applied, § 1353. The principle of compensation, whether arising under the general doctrine of the Court, or under a condition for compensation in case of any error or misstatement, will not be applied where there has been misrepresentation,^— even, it seems, though the differ- ence be of such a character that, if it had arisen from mere error, it would have been subject to compen- sation, as, for instance, in respect of the difference between copyholds nearly equal in value to freeholds and freeholds.^ § 1353 Thus where, on a sale by auction, one of the lots was described as to be sold with a reservoir and waterworks yielding a yearly rental of about 60^., and it turned out that this rental arose from supplying with water from the reservoir some houses between which and the reservoir lay lands of other proprietors, through which the vendor had no right to carry the water except under a license from year to year for which he paid rent ; it was held that the description contained such a misrepresentation as to debar the vendor from enforcing specific performance.^ § 1354. In another case, where there was a mis- representation as to the tenancy of a house, the Court refused to hold the purchaser to his contract and make him take compensation for the delay which would have been needed for an ejectment, although the purchaser bought for investment, and not for residence.* § 1355. Again, where the particulars of sale de- scribed a farm, which formed about one-third of the estate sold, as " lately in the occupation of A. at an annual rent of 290/. 155.," and the facts were that A. had occupied the farm for a year and a quarter only, and then at the nominal rent of 3/. for the first- quarter, ' Per Plumer M.E. in Clermont V. Tashurgh, IJ. & W. at pp. 119, 120; DuJce of Norfolk y. Worthy, 1 Camp. 337, 340 ; Powell v. Doubble, St. Leon. Vend. 23 ; Stewart v. Al- liston, 1 Mer. 26; supra, § 1196; and distinguish Powell v. Elliot, L. E. 10 Oh. 424. ^ Price V. Macaulay, 2 De G. M. & G. 339, 344. ' S. 0. See, too, LeylandY. Illing- worfh, 2 De Gr. P. & J. 248. ' Lachlan v. Reynolds, Eay, 52. OP COMPENSATION. 537 and that since his tenancy (which came to an end about sixteen months before the sale) the vendor had been willing to let the farm at 225/., and knew that nothing like 290/. a year could be obtained for it, the Court held that such misrepresentation was not a matter for compensation, but entitled the purchaser to be dis- charged altogether from his purchase.^ § 1256. But it seems that a mere flourishing de- riounsh- scription in particulars, such as that land is fertile and gofiption. improvable, whereas part of it has in fact been aban- doned as useless, cannot, except in extreme cases — as for instance where a considerable part is covered with water, or otherwise irreclaimable — be considered such a misrepresentation as to entitle a purchaser to be discharged.^ II. A. Purchaser insisting on the contract, there being no condition for compensation. § 1257. Although, as a general rule, where the Purchaser vendor has not substantially the whole interest he has ^f^j^^^^** contracted to sell, he, as we have seen, cannot enforce vendor the contract against the purchaser, yet the purchaser ^^' can insist on having all that the vendor can convey, with a compensation for the difference. * § 1258. "If," said Lord Eldon,* "a man, having The partial interests in an estate, chooses to enter into a gt""e^^'® contract, representing it, and agreeing to sell it, as his ty Lord own, it is not competent to him afterwards to say, °^' though he has valuable interests, he has not the en- tirety ; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this juris- diction, the person contracting under those circum- 1 DimmocJc v. Hallett, L. E. 2 Ch.. Lichfield, L. E. 9 Eq. 51, seems at 21. See also per Lindley L.J. in least qnestionable. Compare PAi7- i?e Terry and White, 32 Oh. D. 29. lips y. Miller, L. E. 9 0. P. 196; 10 2 S. 0. at p. 27 {per Turner L.J.). 0. P. 420, with Cahallero v. Jlenty, See, too, Johnson v. Smart, 2 Giff. L. E. 9 Oh. 447. See, ho-wever, 151 (" substantial and convenient" Keayes v. Carroll, I. E. 8 Eq. 97. dwelling-house). *■ In Mortloch v. B idler, 10 Yes. ^ See e.g. per Turner L.J. in 315. See, too, Budd v. Lascelles, Hughes v. Jones, 3 De G. E. & J. at [1900] 1 Ch. at p. 818. Distinguish p. 315. The authority of James v. Hopcraft v. Hnpcraft, 76 L. T, 341. 538 OF INCIDENTAL MATTERS. Cleaton v. Gower. Lord Boling- broke's T. Slade. stances is bound by the assertion in his contract ; and, if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement ; and the Court will not hear the objection by the vendor, that the purchaser cannot have the whole." ^ § 1259. The principle was acted on by Lord Nottingham, in the case of Cleaton v. Gower,^ where the defendant Gower was tenant for life of certain estates in Shropshire, and he and his late father agreed with the plaintiff that the plaintiff should open and work certain mines, and should enjoy the minerals raised for ten years, if the defendant or his issue male should so long live, at a yearly rent of 25/. The plaintiff sought a specific performance of this con- tract : the defendant objected that he was only tenant for life, and subject to account for waste, and that he could not execute the contract because it was incon- sistent with his power : the Court decreed the defen- dant to execute the contract so far as he was capable of doing it, and likewise to satisfy the plaintiff such damages as he had sustained in not enjoying the premises according to the contract. § 1360. The principle is also well illustrated by Lord Bolinghroke's case,^ before Lord Thurlow. The incumbent of a living had contracted with a tenant in remainder for the purchase of the advowson, and on the faith of the contract had built a much better house on the glebe than he would otherwise have done : the tenant for life refusing to concur in the sale. Lord Thurlow compelled the tenant in remainder to convey a base fee for levying a fine, with a covenant to suffer a recovery on the death of the tenant for life. § 1261. In Wheatley v. Slade' Shadwell V.C. held ' See accordingly .4Worne!/-(?eMeraZ V. Day, 1 Ves. Sen. 224 ; Milligan V. Cooke, 16 Ves. 1 ; Dale v. Lister, 16 Ves. 7 ; Hill v. Buckley, 17 Ves. 394 ; Western v. Russell, 3 V. & B. 187 ; Neale v. Mackenzie, 1 Ke. 474 ; Bennett v. Foivler, 2 Beav. 302 ; Sutherland v. Briggs, 1 Ha. 26, par- ticularly 34 ; Wilson v. Williams, 3 Jur. N. S. 810 (Wood V.C); and of. Dyas v. Cruise, 2 Jon. & L. at p. 487. 2 Finch, 164. ' 1 Soh. & Lef. 19, n., quoted by Lord Cottenham in Oreat Western Railway Co. v. Birmingham and Oxford Junction Railway Co., 2 Ph. at p. 605. * 4 Sim. 126. See the observa- tions of Lord St. Leonards on this OF COMPENSATION. 539 ■the principle under discussion not to apply where a large part of the property could not be conveyed ; and consequently, the contract in that case being for the sale of a lace manufactory, and it turning out that the vendors were only entitled to nine-sixteenths of the whole, and that those parts were subject to a debt which would exhaust nearly the whole of the purchase- money, he refused specific performance. The Vice Chancellor's decision appears to have been influenced by the circumstance that the vendors entered into the contract under a mistaken impression that they were possessed of the entirety of the property. But the case, even if it can thus or otherwise upon its own particular circumstances be supported, is not, it is submitted, likely now to be followed. For it will be shown that, thoiigh the difference between the pro- perty contracted to be sold and that which the vendor can actually convey may be great, the Court will gene- rally, notwithstanding this circumstance, enforce the contract where it sees that its intention is the sale of whatever interest the vendor has. § 1232. Indeed the tendency of the Court in Modem recent years has been to apply the principle liberally, tion oT Thus where two vendors contracted to sell two-sixths theprm- of certain leaseholds "together with all other their "^^' rights and interests therein," and it turned out that they were only entitled to two twenty-first parts each, the purchaser was held entitled to specific performance of the contract to the extent of the vendors' inte- rests, with a proportionate abatement of the purchase- money.^ And where A. had contracted to grant to B. and C. a lease of business premises, and, after they had gone into possession and laid out money in altera- tions, it was found, on investigation of the title, that A. was entitled to an undivided moiety only of the premises, the other moiety being vested in her son, a minor, the Court granted specific performance of the case, Vend. 263 ; also Maw v. Top- i J^,nes v. Evans, 17 L. J. Oh. ham, 19 Beav. 576, where the ^^^^ See, too, Leslie y. Grommdin, vendors were only entitled to three- -r t> n -o fourths. ^- ^- 2 El- 13^' 540 OF INCIDENTAL MATTERS. Wife's interest. Title to a moiety only. Moiety subject to mortgage. Purchaser aware of defect. contract to the extent of A.'s interest, with an abate- ment of one-half of the rent agreed upon.^ § 1263. Again, where A., who had only an estate pur autre vie in property, the remainder in fee belong- ing to his wife, contracted to sell the fee simple to B. (who was ignorant of the state of the title), and then got his wife to concur with him in conveying it to C. (who knew of B.'s contract), it was held that B. was entitled to have a conveyance from C. of A.'s interest, with compensation in respect of his wife's interest which he was unable to convey or bind without her consent.^ § 1264. So where vendors contracted to sell the entirety of certain freeholds, and it was afterwards discovered that they were entitled to an undivided moiety only, the purchaser obtained a decree for the specific performance of the contract by the vendors to the extent of their moiety, with an abatement from the purchase-money of one-half the amount.* § 1265. And so where A. and B. contracted to sell leasehold property to C, and on examining the title it appeared that A. was entitled to a moiety sub- ject to a mortgage for its full value, and that B. had no interest at all, — facts which were not known to C. at the time when he entered into the contract, — C. was held entitled to an assignment of A.'s moiety, on the terms of covenanting to pay the rent and perform the covenants in the lease, and also to pay the mort- gage-debt, and to indemnify A. in respect of those liabilities.* § 1266. In each of the cases referred to in the last three sections the purchaser was unaware, at the time when he entered into the contract, of the imper- fection of the vendor's title.'^ But even if the pur- chaser has from the first been aware of the state of the title, that circumstance will not necessarily exclude ' Burrow v. Scammell, 19 Oh. D. ^ Hooper v. Smart, L. E. 18 Eq. 1"5. 683. * Barnes v. Wood, L. E. 8 Eq. 424. Of. Nelthorpe v. Holgate, 1 Coll. 203. * Horrocks y. Bighy, 9 Oh. D. 180. ' See supra, § 474 et seq. OP COMPENSATION. 541 him from the benefit of the principle under considera- tion. § 1267. Thus, in a case decided in the year 1876, instance. real estate stood limited by marriage settlement to such uses as A. and his wife should appoint, and in default of appointment to the use of the trustees of the settle- ment during the wife's life, in trust for her separate use, with remainder to A. in fee. A. agreed to sell the fee simple to C. by a contract in which the wife's interest was mentioned, but which went on to say that A. would procure a proper assurance to be executed by all proper parties : afterwards the purchaser actually paid over the purchase-money to the trustees, but the wife refused to convey her interest. Bacon V.C. held that C. was entitled to have the purchase completed to the extent of A.'s reversion in fee, with compensation for the life interest of the wife and a lien on the fund in the hands of the trustees.' " If," said the Vice Chan- cellor, " a man enters into a contract to sell something, representing that he has the entire interest in it, or the means of conveying the entire interest, and receives the price of it and does not perform his contract, then the other party to the contract, who has parted with his money or is ready to pay his money, is entitled to be placed in the same position he would be in if the contract had been completed ; or if not, by compensa- tion to be placed in the same position in which he would be entitled to stand. "^ § 1268. It is obvious that, in thus proceeding, Limita- the Court is executing the contract, cii pres, or rather *i°"^ °* , . ..~ . ' '^ ■'■ ' the prm- perhaps is carrying into execution a new contract,^ — a oipie. course in which difficulties sometimes arise which put restrictions on the application of the principle under discussion. These have now to be considered. § 1269. The principle will not be applied so as to where exclude a right which the vendor may have reserved tJ^i^fght to determine the contract rather than complete with to rescind. 1 Barker v. Cox, 4 OH. D. 464 (cf. § 1272. S. C. on demurrer, 3 Oh. D. 359). j ^ q]^_ -p_ ^j^ p_ ^gg_ See, too, Wilson v. Williams, 3 Jiu'. N. S. 810. Cf . and distinguish Castle ' See per Lord Langdale M.E. in T. Wilhinson, L. E. 8 Oh. 535, infra, Thomas y, Bering, 1 Ee. at p. 746. 542 OF INCIDENTAL MATTERS. compensation. So where a contract provided that no misdescription should annul the sale or be the subject of compensation, and further, that if the purchaser should insist on any requisition which the vendor should be unable or unwilling to comply with, the vendor should have the power to rescind : and the acreage of the plot sold was by an innocent error mis- stated, the plaintiff demanded compensation, and the vendor gave notice to rescind the contract and the purchaser insisted on performance, it was held that the vendor was entitled to rescind, and that the pur- chaser could not claim the right to performance with compensation.^ Where ^ 1270. The principle will not, it seems, be applied to third where the alienation of the partial interest of the persons, yeudor might prejudice the rights of third persons interested in the estate. Thus where a tenant for life without impeachment of waste under a strict settlement had contracted for the sale of the fee, the Court refused to compel him to alienate his life interest, on the ground that a stranger would be likely to use his liberty to commit waste in a manner different from a father, and more prejudicial to the rights of those in remainder.^ Purchaser g 1271. If the purchaser is, from the first, aware vendor's of the vBudor's incapacity to convey the whole of what inoapa- ]^g coiitracts for, he cannot, generally, insist on having, at an abated price, what the vendor can convey.* castuy. § 1272. Thus where, in the year 1863, a husband and his wife signed a contract for the sale of the wife's fee simple estate to the plaintiff, who knew from the plain language of the contract the true state of the title, it was held that, as the plaintiff clearly never could have believed for a moment that the husband could sell the fee simple, he was not entitled to have a conveyance of all the husband's interest, i.e., his estate for the joint lives of himself and his wife and his estate by curtesy, with an abatement of the pur- chase-money ; and the bill was accordingly dismissed.* ' Be, Terry and White, 32 Cli. D. Of. supra, § 407 et seq. 14. 2 Cf. 3upra, § 1266. ^ Thomas v. Bering, 1 Ee. 729. * Castle v. Wilkinson, L. E. 5 Oh. Wilkinson. OF COMPENSATION. 543 § 1273. Similarly, where vendors were entitled other only to three-fourths of the property, and the purchaser ^'^*^°''^^- was at the time he filed his bill aware, or had good reason to believe, that no good title could be made to the whole of the premises. Lord Romilly M.R. held that, though he might probably have recovered damages, yet, as he chose to file a bill for specific performance, he was not entitled to any abatement ^ from the purchase-money, but that he might take without abatement the three-quarters which the vendors could convey/ And it has been decided that where a person has dealt with a tenant for life for a certain lease, being at the time aware that it would be in excess of the tenant for life's power, and so endeavouring to put a fraud upon the settlement, he will not afterwards be allowed to call for a lease from the tenant for life to the extent of his interest : the contract was not at the time it was entered into a fair and proper one, and the Court therefore would not interfere.^ § 1274. In the case of Edwards-Wood v. Marjori- Benefice hanks,^ the purchaser of an advowson discovered, after to mort- accepting the title, that the benefice was subject to a prageto mortgage to Queen Anne's Bounty which he might Anne^s have discovered before : there had been no misrepre- Bounty, sentation or wilful concealment on the part of the vendors : on bill filed by the purchaser for specific performance with compensation, Stuart V.-C. decreed specific performance, but without compensation, and ordered the purchaser to pay the costs of the suit ; and this decision was affirmed by Knight Bruce and Turner L.JJ. § 1276. Where there is a defect in the quantity Atate- of the estate, the principle on which the abatement is ?"'"*' , ' ■■• A now cal- culated. 535, 536. Cf. and distinguisn tms decision, Vend. 257 ; and it Hooper v. Smart, L. E. 18 Eq. 683 ; certainly seems diflEoult to reconcile supra, § 1264 ; Barker v. Cox, 4 it with, some of the more recent cases Oh. D. 464; supra, § 1267. See, already cited, sijpra, § 1262 e< se^- too, Eeayes v. Carroll, I. E. 8 Eq. 97 ; Fairhead v. Southee, 11 W. E. "^ Rourhe y. Perc.ival, 2 BaU & B. 58 3 1 Lord St. Leonards appears to doubt 7 H. L. 0. 806 739. 1 Maw V. Topham, 19 Beav. 576. ^ i Qig, 334; 3 De G. & J. 329 ; Hi OF INCIDENTAL MATTERS. Computa- tion im- possible. Westma- coU v. Eobins. Compen- sation approxi- calculated is prima facie acreage. But where wood- land was sold as so many acres, and the wood as having been valued at so much, the abatement was for so much as the soil covered with wood would be worth without the wood.^ Where a road was described as "made up" and it was not, compensation was assessed not at the sum it would cost to make up the road, but at the difference between the value of the property as it existed at the sale and the value it would have had if the road had been made up.^ § 1276. Where the difference in value of the interest contracted for and the interest that can actually be conveyed is incapable of computation, the Court will not, indeed cannot, enforce specific per- formance.^ But having regard to some of the decided cases already referred to,* it is conceived that the Court will seldom now consider a difficulty of this kind insuperable.^ § 1S77. In one case what was contracted to be sold was an absolute and indefeasible estate in fee, and it turned out that the vendors held under a Crown grant, containing various reservations and conditions with a proviso for re-entry on breach of condition. The Court considered that the proper amount of com- pensation was not estimable, but held that the pur- chaser was not bound to take the property without compensation, and therefore was entitled to the re- payment with interest of a part of the purchase- money that he had paid, and to a lien on the estate for the amount.^ § 1278. Although, where there are no data from which the amount of compensation can be ascertained. 1 Hill V. Buckley, 17 Ves. 394. See, too, McKenzie v. Hesketh, 7 Ch. D. 675, where tlie rent was reduced proportionately to the de- ficiency of acreage; Connor v. Potts, [1897] 1 I. E. 534, 539; a.nd. Powell Y. Elliot, L. E. 10 Oil. 424, 430. 2 C'Mfferiel v. Watson , 40 Oh. D. 45. 3 See supra, § 1247; infra, § 1294 ; and Collier y. Jenkins, You. 295, where hill by purchaser's heir for specific performance with compen- sation for an outstanding lease for life was dismissed by Lord Lynd- hurst (then) C.B. Of. Thomas v. Bering, 1 Ke. 729; Graham v. Oliver, 3 Beay. 124. * See supra, § 1262 et seq. ^ See, however, BuddY. Lascelles, [1900] 1 Oh. 815. * Westmacoit Y. Boliins, 4 De G. F. & J. 390. 'DT co:mpensation. 545 tlie Court cannot enforce the contract with compen- mateiy sation/ the objection that the compensation is unascer- able. tainable is, as has been already in substance observed, one which the Court is unwilling to entertain ; and it grants relief with compensation in many cases in which the ascertainment of the amount to be paid cannot be said to be certain or exact, but only the reasonable estimate from the evidence of competent persons ; as, for instance, where compensation was granted for the existence in a stranger of a right to dig coals in the land sold.^ § 1279. Again it may, it is conceived, be laid Enforce- down generally that, wherever the Court sees that the ™n^ra°ct enforcement of the contract with compensation would inequit- be unjust or unfair, or would disappoint the reasonable ^ expectation of the parties, there it refuses to take such a course. § 1280. Thus, where an estate which really con- instance. tained only 11,814 acres was, by a hona fide mistake of the vendor's agent, described in the contract as con- taining 21,750 acres, and it appeared that the vendor had accepted the price on a computation of the rental of the estate. Lord Romilly M.R. considered that to force him to sell the estate for little more than half the price contracted for would be a hardship, and that the case was one of mistake ; and he accordingly held that the purchaser might, at his option, either take the. actual quantity at the contract price or have the con- tract rescinded, but that he was not entitled to specific performance with an abatement for the deficiency of acreage.^ In another case, where there was an open contract for sale containing no provision for compensation, and on investigation of the title it appeared that the pro- perty was subject to restrictive covenants as to build- ^ See supra, § 1247. Abinger C.J. in Price v. North, 2 „ ^ ^-r „ Y. & 0. Ex. at p. 626; Cohjer r. Bamsden y. Hirst, 4 Jur. N. S. ^j ^ g^^^^ ^gg ^^^ ^.^^^^^ ^_ distinguish Hill v. Bucldey, 17 Ves. 2 Earl of Durham v. Legard, 34 394 {supra, § 1275), and McKenzie Beav. 611. Cf. the remarks of Lord y. ResA-eth, 7 Oh. D. 67a. F. K N 546 OF INCIDENTAL MATTERS. ing and user, Farwell J. refused to enforce the pui^- chaser's claim for specific performance with compensa- tion by way of abatement from the purchase-money, on the grounds of the great difficulty of fairly ascer- taining compensation for such covenants, and the hardship on the vendor of the altered bargain in effect proposed by the plaintiff. "In my opinion," said his Lordship, "the Court should confine this relief [specific performance with compensation] to cases where the actual subject-matter is substantially the same as that stated in the contract, and should not extend it to cases where the subject-matter is sub- stantially different."^ indem- g 1281. A purchaser cannot insist on the vendor " ^' performing the contract, giving an indemnity against a defect, unless the indemnity was contracted for.^ :Bmn- § 1282. In Bainhridge v. Kinnaird,^ a vendor (since Kinnal'd. dcceased) had contracted to sell to the plaintiff a property which was, in common with other estates-, subject to a charge of 15,000^. raiseable for the benefit of the vendor's sisters. Lord Romilly M.R. held that the plaintiff might have a simple decree for specific jDerformance against the trust devisees of the vendor, but was not entitled either to compensation in respect of the charge or to an indemnity against it. When § 1283. Within what limit of time after the con- saSm'^' elusion of the contract a claim for compensation must, must be ff made at all, be made, is a question that may obviously in many cases be very important. Claim § 1284. There is, it is conceived, no doubt that comf'' the Court will enforce compensation, at any time before pietion. the completion of the transaction by the execution of the conveyance and the payment of all the purchase- money, in respect of any matter, the fit subject of compensation, which has arisen before that time, and whether before or after the conclusion of the contract. Thus, where an estate was sold as tithe free, and, after a claim had been started by the incumbent of 1 Eudd V. Lascelles, [1900] 1 Oh. Brehner, 1 Bli. at p. 66 ; AyleU v. 815, 819. AsMon, 1 My. &Cr. 105 ; cf. supra, ^ Bahnanno v. Lumley, 1 V. & B. § 1225. 224 ; per Lord Eldon in Paton v. '' 32 Beav. 346. OF COMPENSATION. 547 one parish, the conveyance was executed, but a part of the purchase-money was set aside as an indemnity against this claim: the claim came to nothing, but, before the indemnity fund was transferred, it appeared that the land was in another parish, and was subject to tithe to its incumbent : it was held, on a bill filed by the purchaser, that he was entitled to compensation in respect of these tithes out of the fund.^ § 1285. And on the same principle the Court will Deterio- allow compensation for deterioration which may have ^^*'°°- occurred in the value of the estate, between the time when the contract ought to have been completed by the vendor, and the time when he does in fact make out the title,^ whether it have arisen by the wilful default or merely by the negligence of the vendor or his tenants.^ Thus, where stone had been subtracted from a quarry pending a suit for the specific performance of a con- tract to grant a license to work it, compensation was obtained by means of a supplemental bill.* § 1286. Whether, after conveyance has been exe- claim cuted and purchase-money paid, the Court still has ^igt[o°°™' jurisdiction to enforce compensation, is a question which has been discussed in numerous reported cases.*^ It appears that rights to compensation under the con- tract may exist even after the conveyance and payment have been executed and made ; '^ and, wherever such rights exist, they may, it would seem, now be asserted in the same action as that in which specific performance is claimed. Where the contract gives no right to com- pensation the case is, of course, different." Apart from ^ Crompton v. Lord Melbourne, o where the vendor was not to blame Sim. 353. Cf . (under the old prac- for the deterioration, tice) Cater v. Earl of Pembroke, 1 * Nelson v. Bridges, 2 Beav. 239. Bro. 0. C. 301 ; 2 Bro. 0. 0. 282 ; On the question of deterioration, Frank r. Basnett, 2 My. & K. 618 ; see further infra, Part V. cHap. v. Pheljys V. Prothero, 7 De G. M. & G. § 1431 et scq. 722. ° See, e.g., the cases cited infra, 2 Pinks V. Lord Eokeby, 2 Sw. in § 1288. 222. ° Perriam v. Perriam, 32 W. E. ' Foster v. Beacon, 3 Mad. 394. 369; Clarke v. Bamiiz, [1891] 2 Cf . per Lord Eldon in Binks v. Lord Q. B. 456. ^o/teJz/, 2 Sw. atp.226. Distinguish ' Consider Brett v, Clowser, 5 Be Sweeny's Estate, 25 L, E. It. 252, C. P. D, 376, 387, N N 2 dition. 548 oT INCIDENTAL MATTERS. C())i(lll-inii, coiupensatioii in respect of defect of title ciuinoi bo lu^covered after coriTeyance.^ II. B. Purchaser insisting on the contract, there being a condition for compensation. EflEeotof § 1387. The language of the condition must of gua^Tof course have an important effect on the subjects for the con- Compensation under any particular contract, and in every case serves at least to indicate the nature oi the matters in respect of v^^hich, and the circumstances under which, both parties intended that the purchaser should have a right to compensation. For instance, where one of the conditions of a contract provided for compensation " if any error or misstatement shall appear to have been made in the particulars of sale or these conditions," it was held, on the construction of the condition, that it did not apply, and was not intended to apply, to the case of a defect of title, but onl)^ to error or misstatement in the description of the subject-matter of the sale.^ But a purchaser claiming compensation before conveyance is not, it is conceived, bound to show that the subject-matter of his claim is of a kind oxpressl}' embraced by the words of the con- dition : except in so far as there may be anything in the contract excluding his claim, or empowering the vendor to defeat it — which are matters to be deter- mined according to the ordinary rules of construction^ — he is entitled not merely to the right expressly given to him by the condition, but to tlie full measure of relief applicable to the case according to the general principles already discussed : in other words, his right to compensation under the condition is generally cumu- lative to a purchaser's ordinary right to it: but he must, of course, submit to the corresponding limita- tions of the general principles. Delenlmm v. Saiohndge, [1901] 3 Consider the observations of 2 Ch. 98, at p. 108, referring to t ^ w ^t, • n j- ■, Clayton y. Leech, 41 Ch. D. 103 ^""'^ Westbury m Oord,.r,gley v. » Dehmham v. HawbHdge, uU C^'-^'^^^'borough, 4 De G. P. & J. at supra. P- 384. OF COMPENSATION. 549 § 1388. In accordance with a principle already Condition stated/ it has been held, in cases decided before and notwith- also since the passing of the Judicature Act, 1873, that standing j'j.- (> • 1 n 1 execution a condition lor compensation may be enforced not- of con- withstanding that the conveyance has been executed, ■^^yance. In Gann v. Cann,^ Shadwell V.C. decided that the right of the purchaser to receive compensation, under such a condition, for a misstatement (discovered after posses- sion taken) in the particulars as to the value of the property was not at all affected by the circumstances of his having paid the whole of the purchase-money into Court and taken a conveyance. Subsequently the Court of Exchequer unanimously adopted the same view:^ and the jurisdiction was re-asserted by Jessel M.R., in a case in which his Lordship held a purchaser entitled to the benefit of a condition for compensation, in respect of a deficiency of acreage discovered by measurement after the execution of the conveyance,* and again by the Court of Appeal, in a case® of error in the particulars of sale. § 1289. In consonance with the general principles Construc- on which the Court deals with conditions of sale,^ its conditions tendency is to put a liberal and comprehensive con- ^°^ com- j_ ,• T,- • ■ ,• . pensation. struction upon conditions giving compensation to a purchaser, and a strict one upon any which limit his right to it. Thus, where by an innocent mistake the particular Painters. •' ^ Newhy. 1 Supra, § 1286; and cf. per Hall too, Vlaytonw. Lnch, ■i\ Ch. D. 103, V.C. in Jones v. Clifford, 3 Ch. D. and particular!}'' the obserTations, 779, 792. in the judgments of the L.JJ. in ^ 3 Sim. 447. Cf. Horner v. Wil- that case, upon i[ansi:n v. Thucker, Hams, 1 Jones & C. 274. 7 Ch. D. 620 ; I)esli-ij v. Beslnj, 9 3 In Bos V. Helsham, L. K. 2 Ex. Ch. D. 103 ; -Mxd Alhi, t. Richard- 72. son, 13 Ch. D. 524. In JoUffe v. * Ee Tamer and Skelton, 13 Ch. Baler, 11 Q,. B. D. 255, there was D. 130. See, too, Plielpjs v. White, 5 no stipulation for compensation : L. E. Ir. 318, where the purchaser so far as it may be inconsistent was held entitled to compensation, with Palmer v. Johnson, it cannot though he had means of discovering be considered as law (see 13 Q. B. D. the error before completion ; and at pp. 356, 359). distinguish Brett v. dowser, 5 C. P. * See Part V. chap. i. § 1 185 e< sej. ; D. 376. and j)er Lord Westbury in Oording- 5 Palmer v. Johnson, 13 Q. B. D. leij v. Cheesehorough, 4 De G. P. & 351, afarming 12 Q. B. D. 32. See, J. 384 et seq. 550 OF INCIDENTAL MATTERS. described part of the estate as customary leasehold renewable every twenty-one years, whereas in fact there was no such custom to renew ; the fourth con- dition of sale empowered the vendor to vacate the sale upon objection taken to the title, and another condition stipulated that if, through any mistake, the estate should be improperly described, or any error or misstatement should be inserted in the particular, such error or misstatement should not vitiate the sale, but the vendor or purchaser should pay or allow compen- sation for it; Lord Hatherley (then Wood V.C) held that the misstatement fell within the condition for compensation, and further that it was not an objection to title, within the meaning of the fourth condition, enabling the vendor to vacate the sale/ Cousicier- S 1S90. Affaiu, wliore land was described in the 3.nlp flpfi.— • oienoyof particulars as containing 753 square yards, whereas it ^^'^^^ actually contained only 573 square yards, and one of the conditions provided that if any error, misstate- ment, or omission in the particulars should be dis- covered, the same should not annul the sale, nor should any compensation be allowed by the vendor or purchaser in respect thereof, it was held by Malins V.C. that such a condition must be construed as intended to cover small unintentional errors and inaccuracies, but not to cover reckless and careless statements, and that so large a deficiency as 180 square yards out of 753 did not come within the condition ; and that the pur- chaser was therefore entitled to compensation.^ No allow- § 1291. Where, however, the conditions stipu- deficienV- ^^^sd that (a) the admeasurements should be presumed to be correct, but if any error were discovered therein, no allowance should be made or required either way ; (b) if any error of any kind were made in the descrip- tion of the premises such error should not invalidate the sale, but a fair compensation should be given or taken; and (c) if the purchaser should make any objection as to compensation or otherwise which the vendor should be unwilling to remove or comply with, the vendor should be at liberty to vacate the sale : and 1 Painter v. Newly, 11 Ha. 26. 8 Eq. 603. Of. Portman y. Mill, ' Whitemore T. Whitemore, L. E. 2 Euss. 570, 574. OF COMPENSATIUxV. 551 the area of the property, stated in the particulars to -be 7683 square yards, was found by the purchaser upon actual admeasurement to be only 4350 square yards : and the vendor before suit offered to vacate the contract, but the purchaser refused the offer and insisted upon the performance of the contract with compensation for the deficiency : Lord Westbury held that the right of the purchaser must be determined by the operation of the conditions read in connection with one another, and that, though the Court probably would not, at the vendor's instance, have enforced the condition as to erroneous admeasurement where the error was so great, the purchaser could not, in the face of that condition, have an allowance for the deficiency of area.^ § 1292. It has also been decided that where the Vendor conditions, while providing that, if any mistake appear r^gcind. to have been made in the description of the property or the vendor's interest therein, it shall not annul the sale, but shall be the subject of compensation, at the same time provide that, if any objection is persisted in, the vendor may rescind the contract, then, if the purchaser persists in a claim for compensation which really involves an objection to the title, the vendor may rescind the contract, and, if he does, the Court will not afterwards give the purchaser any relief in respect of the condition for compensation.^ § 1293. Another illustration of the princi]3le that Eigi'tto a purchaser's right to claim compensation may be satSn"^ abrogated, notwithstanding a condition for compensa- ^^^l.^g'^ tion, by the operation of another term of the contract, of con- is afforded by the case of Williams v. Edivurds.^ There *'^^°'- A. had contracted to sell to B. certain freehold pro- perty, and the contract contained a stipulation that errors in the description of the premises should not vacate the contract, but a reasonable abatement or 1 Oordingley y. Cheesehorough, 4 De G. F. & J. 379; and Ashhuriier De G-. F. & J. 379, affirming S. 0. 3 v. Seiuell, [1891] 3 Cli. 405. Giff. 496. " 2 Sim. 78. See i^er Lord West- - Mawson v. Fletcher, L. E. 10 Eq. bury in Cordingley v. Cheesehorough, 212, affirmed L. E. 6 Oh. 91. See, 4 De G. F. & J. at p. 385 ; and cf. too, Cordinyley y. Cheesehorough, 4 Hudson t. Buck, 7 Oh.. D. 683, 687. 552 OF INCIDENTAL MATTERS. equivalent should be made or given, but it was also stipulated that, if B.'s Counsel should be of opinion that a marltetable title could not be made at the time appointed for the completion of the purchase, the con- tract should be void and be delivered up to be can- celled ; and B.'s Counsel was of opinion that a good title could be made only to two-thirds, and that one- third was held for a life only : the purchaser insisted on specific performance with compensation ; but it was refused, because the contract was by its special terms void under the circumstances. White Y. § 1294. In a case which came before the House of Lords, the particulars stated that the fines in the manor of T., which was the subject-matter of the sale, were arbitrary, and also that the clear profits of the manor for the last eight years had averaged 150^. a year ; and one of the conditions of sale provided for compensation being given for errors and misstate- ments. It turned out that by the custom of the manor only one class of fines was arbitrary; but that the clear profits of the manor exceeded 200/. a year. Their Lordships refused to give the purchaser compen- sation for the misstatement as to the fines, considering that, reading the statements in the particulars as a whole, there had been no substantial misrepresenta- tion : but it was intimated in the speeches of Lord Brougham and Lord Cottenham* that, if the misstate- ment as to the fines had been a substantial one, the impossibility of computing the proper amount of com- pensation would have prevented its being given.^ Omission § 1295. In a casc where there was a condition S'g TOiue' entitling the purchaser of some cottages to compensa- ofp™- tion if any "omission in the particulars" should be discovered, it was held by the Court of Appeal that an omission, admittedly not fraudulent, on the part of the vendor to disclose the fact that he had been served by the local authority with notices to pave, &c. the street opposite to the cottages was not such an omission as to entitle the purchaser to compensation under the 1 White V. Cuddon, 8 01. & P. at ^ jYhite v. Ouddon, 8 01. & P. pp. 786, 792. 766. See supra, §§ 1247, 1276 e^se^. perty. OF COMPENSATION. 553 condition, the Court considering that the omission to disclose had not affected the value of the property.^ § 1296. In Re Hare and 0'' Move's Contracf^ a verbal ^¥^;^^ statement, correcting a material misdescription in the verbally particulars, was made distinctly by the auctioneer at corrected. the time of sale. It was not proved that the purchaser heard the statement ; but the Court held the circum- stances to be such as to render it inequitable to grant the purchaser specific performance with compensation for the misdescription. § 1297. Damages may be said to be a sjDCcies of Damages. compensation, inasmuch as they are awarded in order to make good to the purchaser some loss or expense which he had suffered or been put to in connection with the conti'act, but they are so distinct a form of relief that they may most conveniently be discussed in a separate chapter.^ 1 Re Leyland and Taylor's Cuii- - [1901] 1 Ch. at p. 96. tract, [1900] 2 Ch. 625. ' See infra, Part V. chap. iii. 554 CHAPTER III. OF DAMAGES. Distino- § 1298. In early times, the Court of Chancery tw^en^" ^^^ i^ot entirely disclaim jurisdiction in respect of oompensa- damages, where they were incident to the subject- matter already in contention before the Court.^ Sub- sequently the jurisdiction was disowned, and a broad distinction set up between compensation and damages, the extent and measure of the one being regarded as different from that of the other, so that (to folloAV the illustration given by Lord Eldon) if A. contracted to sell to B. an estate tithe free, and B. contracted to sell it to C. on the same conditions, and it was found that A. could not convey tithe free, he might be compelled by the Court to make compensation for the difference in the value of the property, but not for the damage sustained by B. from being unable to complete his contract with C.^ § 1299. However, in a case which came before the Lords Justices in the year 1855, the jurisdiction of the Court of Chancery to award damages for the want of a literal performance of a contract which it had directed to be specifically performed was re-asserted. " It is the constant course of the Court," said Turner L.J., "in the case of vendor and purchaser, where a sufficient case is made for the purpose, to make an inquiry as to the deterioration of the estate, and in Frothero V. Phelps. ' Gleatun v. Oower, Finch, 164 ; City of London v. KasJi, 3 Atk. 512, where Lord Hardwicke refused specific performance, but relieyed by way of damages, to be ascer- tained by an issue of quantum dain- nificatus. • Per Lord Eldon in Todd v. Qce, 17 Ves. 278; Jenkins v. Parkinson, 2 My. & K. 5. OF DAMAGES. 655 SO doing, the Court is, in truth, giving damages to the purchaser for the loss sustained by the contract not Iraving been literally performed." '■ § 1300. In the year 1858 an express power of Lord awarding damages in cases of specific performance was a^™' conferred upon the Court of Chancery by the Chancery Amendment Act of that year ^ (commonly called Lord Cairns' Act), whereby it was enacted (section 2) that, in all cases in which the Court of Chancery then had jurisdiction to entei'tain an application for an injunc- tion against the^ breach of any covenant, contract, or agreement, as against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it should be lawful for the same Court, if it should think fit, to award damages to the party injured either in addition to or in substitution for such injunction or specific performance ; and that such damages might be assessed in such manner as the Court should direct. It is to be noticed that the jurisdiction given by this enactment is a discretionary one, and enables the Court to deprive a suitor of what would otherwise be his right to specific performance. It is also, however, to be borne in mind that the jurisdiction to award damages conferred by Lord Cairns' Act has not altered the established principles upon which, before the Act, Courts of Equity acted in relation to the grant of an injunction.^ § 1301. It was — as indeed the language of the condition second section of Lord Cairns' Act clearly shows — a ^J^^^Jg"* condition precedent to the Court of Chancery's award- diction ing damages under that Act that the plaintiff should that^Act. show himself to have been entitled, at the time when he commenced his suit, to some equitable relief of the nature specified in that section.* Accordingly where a plaintiff prayed for the performance of an alleged contract by a company to allot shares to him, and 1 In Prothero v. Phelps, 7 Be O. layers v. CoUyer, 28 Oh. D. 103. M. & G. at p. 73-1. _ 3 Shelfer v. City of London Ekc- .21 & 22 Viot. 27 rins ^^^ ^ statute has been repealed (46 (fe 47 _ >- -■ ' > "^^ Yict. c. 49), but without afieoting PP- 311, 315. the jurisdiction conferred by it. ■■ Proctor y. Bayly, 42 Oh, D. 390. 556 OF INCIDENTAL MATTEES. T, also, if all the shares had been allotted to other persons, for damages, and it appeared that all the shares had been allotted before the filing of the bill, it was held that, specific performance having from the first been impossible, the claim for damages also failed.! Measureof § 1302. It is apprehended that where damages amages. ^^,^ awarded under this Act in substitution for specific performance, the measure of damages would be the same as in an action at Common Law for breach of the contract.^ So, where the damages at Common Law would be nominal, they would also, it is sub- mitted, be nominal under the statute. MiddUion § 1303. In a case decided by Lord Hatherley " ^"^''"y- (when Wood V.C), the contract was that the defen- dant should grant a lease of a paper-mill to M. ; that M. should pay 122^. for sundry articles on the jDre- mises, and should execute sundry improvements ; and that, if the defendant should fail to grant a valid lease, he would repay the 122/. and all outlay on improve- ments. M. paid the 122/. and expended about 5,000/. on the premises ; but afterwards, on investigation of the title, it appeared that the defendant could not grant a valid lease according to the contract. Ujjon bill tiled by M, for specific performance, or, if the defendant could not grant a valid lease, for repayment of M.'s outlay and damages, it was argued for the defendant that there could be no specific performance of the contract to grant a lease, that the alternative contract to repay outlay was not a subject for specific performance, and that damages would not be given where specific per- formance was impossible. But these arguments were repelled by the Judge, who said " There is an implied contract in every case between vendor and purchaser, ' Ferguson Y. Wilson, 1^. E. 2 Cli. 175; and Middletoii v. Magnay, 2 77 ; Lavery v. Pursell, 39 Cli. D. u. & M. at p. 236. 508, 519. Compare Howe v. Hunt, , ^^^^^ Portland Cement Company 31 Beav. 420, and Hilton v. Tipper, ^,^., „, -„, t, ,„., . i ,, ,<. w-D ooo -4.1, p 7 7- 7- V. TFifoore, 31 W. E. 193. As to the 16 W. E. 888, -with FranMmski v. Ball, 33 Beav. 560. See also Lewers measure of damages for breach of a V. Farl of Shaftesbury, L. E. 2 Eq. contract for the sale of growing 270 ; Scott V. liayment, L. E. 7 Eq. timber, see McNiell v. Richards, 112; Rogers v. Challis, 27 Bear. [1899] II. E. 79. t>l? DAMAGTlS, S57 tliat tlie purchaser shall have a lien on the property to the extent of the purchase-money he has paid, and here there is an express stipulation that the money expended shall be repaid. This right will sustain a claim for damages just as much as the right to specific performance of the contract to grant a lease which has dropped by reason of the impossibility of per- formance." ^ § 1304. In a case decided in the year 1866, °[^«J'/j where, after specific performance of a contract had subse- been decreed, certain facts occui-red from which it ^"^^"g*" was alleged that damage had arisen to the plaintiffs, Kindersley V.C. held that the Court of Chancery had, under Lord Cairns' Act, no jurisdiction to make after decree, on motion in the cause, an order for assessing damages ; inasmuch as such an order woidd in effect be a supplemental decree founded on what had occurred since the decree was made.^ § 1305. Now, however, the jurisdiction conferred Effect of upon the Court of Chancery by Lord Cairns' Act,^ and i""to also all the powers of granting damages which before damages. the passing of the Judicature Acts were exercisable by the Common Law Courts, are by virtue of the Judicature Act, 1873 (ss. 16, 76), vested in the High Court of Justice ; and by the last-mentioned Act it is expressly enacted (s. 24 (7) ) that the High Court and the Court of Appeal, in the exercise of their respective jurisdictions, in every cause or matter pending before them respectively shall grant, either absolutely or on such reasonable terms as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to, in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter ; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. ' Middleton v. Magnay, 2 H. & M. f endant's default, see supra, Part IV. at p. 237. chap. iv. § 1174. ^ Corporation of Hythe v. East, L. E. 1 Eq. 620. As to granting ' See Fritz v. Hohson, 14 Ch. D. damages after judgment, upon de- 542. 558 OF INCIDENTAL MATTERS. Present powers of the Court. Present exercise of juris- diction under Lord Cairns' Act. UtiUty of the juris- diction in damages. § 1806. The Court therefore can now give damages in any of the following cases, viz. : — (i.) In substitution for specific performance where there is a case for specific performance, — under Lord Cairns' Act. (ii.) Where there is no case for specific perform- ance,— under the Judicature Acts. (iii.) In addition to specific performance in whole or in part, — under Lord Cairns' Act, and probably also under the Judicature Acts. Accordingly, a plaintiff may now come to the Court and say, Give me specific performance, and with it give me damages, or in substitution for it give me damages, or if I am not entitled to specific per- formance give me damages as at Common Law by reason of the breach of the agreement.^ But in order to the exercise of the peculiar juris- diction under Lord Cairns' Act, the observance of the condition imposed by that statute is, notwithstanding the Judicature Acts, still obligatory upon the Court : and damages in addition to or in substitution for specific performance will be given by virtue of that jurisdiction only when the plaintiff had a case for specific performance at the time when he issued his writ.^ Furthermore, the plaintiff cannot succeed on a claim for damages in substitution for specific per- formance when he has even after the action began disentitled himself to specific performance, as where a vendor after action sold the subject-matter of the contract to a third person.^ § 1307. The Court's jurisdiction in damages is an apt and flexible instrument for doing exact justice under the diverse and complicated circumstances of many of the cases upon which the Court has from time to time to adjudicate. For instance, where the plaintiff contracted with the defendant to take a lease of property belonging to the latter, for the purpose, as he knew, of carrying on a business which the plaintiff intended to carry on 1 Mmore v. Pirrie, 57 L. T. 333. ^ White v. Bohy, 26 W. E. 133. 3 Hipgrave y, Casf, 28 Cla. D. 356, OF DAMAGES. 559 there, and, owing to the defendant's wilful refusal to perform his part of the contract, the plaintiff was for fifteen weeks unable to commence his business ; the Court, in addition to giving judgment for the specific performance of the contract, awarded 250/. to the plaintiff by way of damages, in respect of his loss of profits during the fifteen weeks. ^ And in another case ^ it was held that damages could be recovered by a purchaser for delay in completing a contract for sale of real estate, where the delay had been caused by defaidt of the vendor, not in consequence of want of, or defect in, title, or in consequence of con- veyancing difficulties, but by reason of the vendor not having cared, or troubled, or taken reasonable pains to perform his contract. § 1308. Where the plaintiff was at the time when Suit he filed his bill entitled to specific performance, and to'hear. also to damag-es for iniury occasioned to him by the ing-for defendants' delay of performance, and before the suit could be brought to a hearing the defendants per- formed the contract ; it was held that the plaintiff was nevertheless justified in bringing his suit to a hearing for the damages." § 1309. Sometimes the Court can best do justice Partial by enforcing the specific performance of one part of ance°™/s the contract and awarding damages for breach of the damages. remainder. Where, for instance, a man contracted to pull down an old house, to rebuild, and to accept a lease of the new building, and then made default in rebuilding, Lord Hatherley (then Wood V.C.) held the intended lessor entitled to have damages for the non- building, and also specific performance of the conti^act to accept a lease.* 1 Jaques Y. Millar, 6 Cli. D. 153; ^ jg^^g y_ Gardiner, [1902] 1 Oh. S. 0. (No. 2), 26 W. E. 368, over- at p, 195. ruled on another point in Marshall ■' Cory v. The Thames Ironivorks V. Berridge, 19 Oh. D. 233, followed and Shipbuilding Co., 11 W. E. 589. as to damages in Boyal Bristol, &c. Cf. S. 0. (in Q. E.) L. E. 3 Q. B. Building Society v. Bomash, 35 Oh. D . 181. 390; Wesley r. Walker, 26 W. E. * Soames v. Edge, Johns. 669, 368. Consider Hyam t. Terry, 25 followed in Mayor and Corporation Sol. Jo. 371. of London y. Southgate, 17 W. E. 560 or INCIDENTAL MATTERS, Damages § 1310. Again it may well happen that, though tutionfor the Court has jurisdiction to enforce the specific per- perform- formanco of a contract, the iustice of the case will be flillCG better met by awarding damages in substitution. Thus where a railway company contracted with a landowner to "erect set up and construct a station" on land which they had bought from him, but the contract contained no further description of the station, and no stipulation as to the user of it when erected ; and the company afterwards refused to erect a station on the agreed site ; the Court of Appeal in Chancery, considering that it could not satisfactorily do justice by means, of a decree for specific performance, directed that the damage sustained by the landowner by reason of the non-performance of the contract should be ascertained (by an inquiiy in Chambers) and the amount paid to him by the company.-^ Where § 1311. It may happen that a purchaser finds has no himsclf unablc to obtain specific performance of a title. contract owing to some fatal defect in his vendor's title, which was unknown to him (the purchaser) at the time when he entered into the contract. In such a case^ damages are the only possible form of relief: and the vendor will not be allowed to escape from liability to pay them by purporting to rescind the contract under a condition entitling the vendor to rescind in the event of the purchaser making an}- objection or requisition in respect of the title which the vendor is unwilling to comply with : for such a condition does not apply to a case where the vendor has not any title at all.'* Theruiem § 1313. It is to be borne in mind that, according ThornMU. to an exceptional and anomalous rule, established in Flureau v. Thornhill,'^ if, upon a contract for the purchase of real estate, the vendor is, without fraud, 197. Distinguisli iVoms T. Jac/csoM, Co. v. BiittensJiaw, [1893] W. N. 1 J. & H. 319; and see Samuda v. 123. .Liiwford, 4 Giff. 42. ' Bowman v. IlyJand, 8 Ch. D. ^ Wilson Y.Northampton and Ban- 588, 590; cf. Oalcdcy v. Bamm:/, bury Junction Bailioay Co., L. E. 27 L. T. 745. See, too, supra, .9 Ch. 279. Part III. chap. xxiv. § 1052 et seq. 2 See, e.g.. Pearl Life Assurance * 2 W. Bl. 1078. OF DAMAGES. 561 and (as should, it is conceived, be added) witliotit default on his part, incapable of making a good title, the purchaser is not entitled to any compensation in damages for the loss of his bargain, beyond such expenses as he may have incurred under the contract in investigating the title. ^ However, in a case where there was a contract for the sale of leasehold property, which the vendor could not assign without a license from his lessor, it was held that the rule did not prevent the purchaser from recovering damages which he had sustained by reason of the vendor's wilful omission to do his best to procure the license.^ § 1318. Where an action is brought for specific Mistake of performance, and specific performance is refused on ^ ^'^ '^°*' the sole ground of a mistake by the defendant, the Court will now consider the question of damages, and give the same damages as would, under the old practice, have been given in an action at Law.^ § 1314. Where there was a case for damages, the Asoertain- Court of Chancery sometimes directed an issue to quantum oi ascertain the amount.'' The more usual course was to damages. direct an inquiry in Chambers as to the sum to be awarded or allowed : and this is still commonly done.'^ In many cases, however, the damages have been assessed by the judge himself at the trial, and, where the plaintiff has not been ready with his evidence as to the amount of damages, the trial has been adjourned to give time for it to be obtained. It seems clearly desirable that the assessment of damages should, wherever practicable, take place at the trial, without any separate inquiry : for otherwise the parties are 1 Bain v. Fothergill, L. E. 7 H. L. pp. 222, 223. 158, 201, 207, 208, 210. See, too, * JE.g., Gory v. The Thames Iron- Re Wilsons and Stevens' Contract, ivories and ShiphuiJding Co., 11 [1894] 3 Ck at p. 553, a case of a W. E. 589 ; S. 0. (in Q. B.) L. E. summons under tlie Vendor and 3 Q. B. 181. Cf. Nelson y. Bridges, Purchaser Act, 1874. 2 Beav. 239, and Ferguson v. Tad- 2 Bay V. Singleton, [1899] 2 Cli. man, 1 Sim. 530. 320, 327, 329. See, too, Jones v. = See Seton (6tli ed.), 2207, 2227, 'Gardiner, [1902] 1 Oh. at p. 195. 2271, 2272. As to the costs of such 3 Fer James and Cotton L.J J. in an inquiry, cf. Slack v. Midland Tamplin v. James, 15 Ch. D. at Railway Co., 16 Ch. D. 81. F. 562 OF INCIDENTAL MATTERS, virtually put to the expense of two trials of the same question.^ Damages S 1315. It may here be mentioned that a vendor, TOT iiypfl On ' ' •/ ' by vendor who offors property for sale by auction on the terms ditionsof °^ printed conditions, can be made liable in damages sale. to an intending purchaser, who accepts the offer, if those conditions are violated by the vendor — if, for instance, the vendor declines to allow the highest bidder, duly tendering the prescribed deposit, to sign the prescribed memorandum of contract. And the Statute of Frauds affords no defence to the vendor in such a case." ' Jaqiies v. Millar, 6 Cli. D. 153; but the Court declined to give the Wesktj V. Walker, 26 W. E. 368 ; plaintiff (purchaser) a Hen on the Seton (6th ed.), 2278. See, too, i j j. xr, t. ai. j ., \, ' ^ ^ „ ' land tor the amount 01 the damages. Cornwall v. Henson, [1900] 2 Ch. 298, 305, where the damages were * Johnston v. Boyes, [1899] 2 Ch. ^ assessed by the Court of Appeal ; at p. 77. 663- CHAPTER IV. OF EEFEEENCE OF TITLE. § 1316. Where the vendor of land sues the pur- Purchaser chaser for a specific performance of the contract, the defendant. defendant may, in some cases, succeed in having the action dismissed at the trial, on the ground of a defect in the plaintiff's title, provided the defect in title has been prominently put forward in the pleadings : ^ but where this is not the case, the defendant is entitled to have an inquiry^ directed as to the title of the vendor to the lands in question. This right is derived from the extraordinary nature of the jurisdiction which the vendor seeks to put in action, in consideration of which the purchaser has a right, not only to have such a title as the vender offers upon the abstract unauthenticated, but the highest assurance upon the nature of his title which can be acquired for him by the production of' deeds, the directing of inquiries, and the sifting of the vendor's conscience.^ Hence it follows that, though the purchaser may admit that he has only one particular objection,* or no objection at alP to the title, he is equally entitled to a general reference as to it. § 1317. Still whenever, in a judgment decreeing Reference the specific performance of a contract, an inquiry termT'^'^'' whether the vendor can make a good title is directed in general terms, it must be understood to mean a ^ Lucas T. James, 7 Ha. 418, 425. ^ Lesturgeon v. Martin, 3 My. & ' Por forms of this inquiry, see }j;_ 255. Seton (6th ed.), 2226, 2258. 3 Jenkins v. Mies, 6 Ves. 646, ^ Jenkins v. Hiles, 6 Ves. 646 ; 653. cf. Fleetwood v. Oreen, 15 Ves. 594. oo2 mi- OF INCIDENTAL MATTERS. Pur- chaser's costs dis- allowed. Vendor cannot except. Purchaser plaintifE In respect of what contracts the right exists. good title according to the terms of the contract : but if the vendor wishes to prevent the renewal, under the inquiry, of objections waived before the action, he should guard himself by establishing such waiver at the trial, and taking care that the judgment expressly recognizes it : for under a general inquiry as to title the Court will not enter into any question of such waiver.^ § 1318. However, where a purchaser allowed the vendor's suit for specific performance to proceed to the point of the inquiry as to title, before bringing forward an objection which was patent on the face of the abstract originally delivered, he was not allowed his costs of the inquiry, though the objection was fatal to the title.i § 1319. The right to the reference is that of the purchaser, and the vendor cannot except to the title, so as to assert his own title to be bad.^ § 1320. The purchaser is also entitled to a refer- ence of title where he is plaintiff in an action for specific performance ; but inasmuch as in this case it is he, and not the vendor, who is calling on the Court to act, he does so at his own risk ; and therefore, if he knows of objections and asks for a reference, and then waives the objections, he will have to bear the costs of investigating the title. ^ And it would seem that the same result must follow where the effect of a reference is to show that the vendor had at the due time dis- closed to the purchaser a perfect title.* § 1321. The right to this reference is not confined to sales of real estate, but extends to any species of property with regard to which the Court may enter- tain an action for specific performance, and the nature of which renders such an inquiry proper. Accord- ingly, inquiries have been directed into the title of ^ Upperton v. Niclcohon, L. E. 6 Ch. 437 ; Curling v. Austin, 2 Dr. & Sm. 129 ; McMurray v. Spicer, L. E. 5 Eq. 527. Of. Corlesa v. Sparling, I. E. 8 Bq. 335. " Bradley v. Muntdn, 15 Beav. 460. ' Bennett y. Fowler, 2 Beav. 302. Of. Freme v. Wright, 4 Mad. 364. * See Lyle v. Earl of Yarborough, Johns. 70. OF KEPERENCE OF TITLE. 565 vendors to shares in railway companies,^ and in mining concerns.^ The nature of the inquiry, of course, varies according to the nature of the property, and the essentials of a good title to it. 5 1322. But there are necessarily many contracts Where m respect of which no such' inquiry is or can be made, not di- Where the contract is not for the sale of any property, ^ected. such a reference is of course out of the question. And so, too, where a contract is rather in the nature of a compromise of disputed rights than of a contract for sale, the Court will not make the inquiry.^ In a case where a small piece of land was described as held of certain commissioners of waste lands at a rent of six shillings, it was doubted whether a purchaser could call on a vendor for the title of the commissioners.* § 1323. The Court will not direct an inquiry Vendor where, though the contract be one of sale, the vendor gu^h m- only sells such interest as he has:*^ such a contract is, terestas of course, perfectly valid, but, being in restraint of ® *^' the purchaser's implied right to a good title, it must be made clear and unambiguous to the purchaser.'' A vendor may, of course, stipulate that a purchaser shall take such title as he himself bought with,'' or such title " as the vendor has."^ § 1324. Of restrictive stipulations there are many instances, cases : thus, where a purchaser agreed to accept the vendor's title without dispute, he was held to be debarred from taking an objection on account of an incumbrance which left the legal estate outstanding.^ So, again, where conditions of sale of a fee-farm rent 1 Shaiv V. Fisher, 2 De G. & Sm. « Souihby v. Hutt, 2 My. & Or. 11. 207,212. Qqq also Anderson Y. Hig- ■ Curling v. Flight, 2 Ph. 613. gins, 1 Jon. & L. 718. 3 Godson V. Turner, 15 Beav. 46. , j^^,,^^^ ^_ ,^, j g j^^ g^ ^^^ * AshtoH V. Wood, 3 Jur. N. S. 1164 fStuart V C V ^ Be Haediclte and Lipski's Con- ° See supra, § 876. It tas b.en tract, [1901] 2 Ch. at p. 669. Cf. held that the purchaser under such ^« ^^'^h «'^'^ Jesson's Contract, 46 a purchase may require the vendor W. E. 300, where the purchaser had to clear the property from any in- agreed " to accepUhe best title the cumbrance which he can discharge. vendors can give. Goold V. Birmingham Bank, 58L.T. ' Duke v. Burnett, 2 CoU. 337; 560. Wilmot Y. Wilkinson, 6 B. & 0. 506. 566 OF INCIDENTAL MATTERS. Sest V. Samand. Contract for assign- ment of vendor's share. stated that no evidence should be required of' the receipt, or payment, or existence of the ground-rent, other than that disclosed by a conveyance mentioned, and that no objection should be taken to the title in consequence of the non-payment or non-receipt of the said rent, and the purchaser objected that the rent had not been paid for twenty years, and so vs^as ex- tinguished, and that there vras therefore no subject- matter of the contract, and therefore no contract ; the Court held that the purchaser had by the contract taken on himself the chance of being able to sub- stantiate his claim to the rent.-^ § 1335. The case of Best v. Hamand} is a remark- able instance of the upholding of such a stipulation. There, the subject-matter of the contract being land which the vendor had bought from a railway company as superfluous land, the contract contained a stipula- tion that the purchaser should assume and admit that everything (if anything were necessary) was done and performed by the company to enable them to sell and effectually convey the land as surplus land, and should not call for or require production of any evidence to that effect. The vendor all along knew (as appeared from the abstract and replies to requisitions) that the statutory offer of pre-emption had not been made to the adjoining owners ; but the Court of Appeal never- theless held that the purchaser was bound by the stipulation ; — to the extent, at any rate, that his refusal to abide by the stipulation was a breach of the contract which disentitled him to sue for the repay- ment of his deposit. Unless the decision may be limited in this way, it seems difficult to reconcile it altogether with the principles laid doM^n by the same Court in the almost contemporaneous case of In re Banister^ already referred to. § 1326. Where the vendor was entitled to one undivided third in a leasehold interest in certain collieries, and tlie purchaser to another undivided 1 Hanls V. Palliny, 6 El. & Bl. 659, supra, § 906; of. Smith T. ■Harrison, 26 L. J. Oh. 412 ; 5 W. E. 408 ; stated supra, § 393. ^ 12 Ch. D. 1. See also Rosen- berg v. OooJe, 8 Q,. B. D. 162. ' 12 Ch. D. 131 ; supra, § 1200. OF REFERENCE OF TITLE. 667 third under the same title, and the contract was for an assignment of the vendor's share and interest in the collieries ; the contract was held to be for the sale of the vendor's share and not of the land, and the vendor was held not liable to show the lessor's title. ^ § 1327. The vendor may generally by express Msiead- stipulation, as we have seen, entirely exclude any difio"™" inquiry into his title. But he will not be allowed to fall back upon such a stipulation in support of a mis- leading condition of a sale ; ^ and where, the contract containing such a stipulation, the purchaser at first under a mistake common to both parties accepted the title, but on discovering the mistake objected to com- plete, it was held that his objection was not precluded by the stipulation.^ In Re Haedicke and LipskPs Contract^ a contract for MeSae- sale of leasehold houses contained a stipulation that xi>4™ " the vendor's title is accepted by the pm^chasers." contract. Upon delivery of the abstract it was discovered that the property was subject to onerous and unusual covenants, which were not disclosed to, or in any way brought to the notice of, the purchasers before they signed the contract; and it was held that, notwith- standing the above stipulation, the purchasers were not bound to take the title. § 1338. Or the vendor may take a middle course, inquiry and, without excluding, may limit the inquiry. He may, for instance, exclude all objections in respect of a particular instrument,® or all objections to title earlier than a certain deed,® or he may sell merely an equitable and not a legal estate.' § 1329. The cases on the question whether and The cases ' Phipps V. Child, 3 Drew. 709. Ir. 388, where a condition precluded ^ Re Banister, 12 Ch. D. 131; Re inquiry in respect of a prior volun- Marsh and Earl Granville, 24 Ch. D. tary settlement by the vendor. 11 ; cf. Harnett v. Baher, L. E. 20 « Taylor v. Martindale, 1 T. & 0. Eq. 50. Distinguish Blenhliorn v. 0. 0. 658. Cf. per MaKns V.O. in Penrose, 29 W. E. 237. Harnett v. Balcer, L. E. 20 Eq. at 3 Jones V. Clifford, 3 Ch. D. 779. p. 58. * [1901] 2 Ch. 666. ' Ashivorthy. ilfoiinse?/, 9 Ex. 175. * Corrall v. Cattell, 4 M. & W. Cf. Official Manager of Sheerness 734; S. C. 3 Y. & 0. Ex. 413. Waterworks Co. y. Poison, 29 BesiY. See, too, Small v. Torley, 25 L. E. 70 ; 3 De G. F. & J. 36. 568 OF INCIDENTAL MATTEKS. faU into how far the inquiry into title has been limited fall into gories. ' two categories ; first, where the stipulations of the contract preclude the purchaser from making requisi- tions upon or inquiries from the vendor as to his title, — which relieves the vendor from the necessity of complying with or answering any such requisition or inquiry, but does not prevent the purchaser from showing, by any means in his own power, that the vendor's title is defective; and secondly, cases in which the stipulations preclude the purchaser, not only from making such requisitions upon and inquiries from the vendor, but from making any inquiry or investigation about the title anywhere; — which may quite validly be stipulated, and will generally, pro- vided that the stipulation be clear, altogether preclude inquiry and investigation for every purpose.^ ^st § 1330. Of the first of these categories an illus- iUias- ^^ tration may be found in the case of Darlwffion v. trated Hamilton,^ where there was a stipulation that the lessor's title should not be produced, and the pur- chaser discovered that the lessor's title was objection- able by reason of its being involved with the title to other property, so that the purchaser would run the risk of being ousted by reason of a breach of covenant in respect of other property ; and the Court accordingly refused specific performance. Second^ § 1331. On the other hand, where the condition provided that the lessor's title should neither be pro- duced nor inquired into,^ and the purchaser offered Acts of Parliament in evidence that the lessors (a public company) had no power to grant leases, the objection was held to be precluded.* And similarly a condition that the title should commence with a specified conveyance, "and the prior title, whether ' See Jcmes v. Clifford, 3 Ch. T>. ^ See now the Vendor and Pur- at p. 790. chaser Act, 1874, s. 2 (1) ; infra, 2 Kay, 550. Ci. Life Interest, &C. §1374. Corporation v. Hand-in-Hand Fire, i ff^me y. Bentley, 5 De G. & Sm. &c. Society, [1898] 1 Ch.^ 230 (proof ^20. Spratt y. Jeffery (10 B. & 0. Q ?? MMcZe of improper exercise of power of sale). See, too, Shepherd v. Keat- ^49), which is at variance with the ley, 1 Cr. M. & E. 117 ; Ocoghegan distinction ahove stated, must now T. Connolly, 8 Ir. Ch. E, 598, 604. be considered as overruled. category. OF REFERENCE OF TITLE. 566 appearing in any abstracted document or not, shall not be required, investigated, or objected to," was held to be binding on the purchaser.^ § 1332. But conditions restrictive of a purchaser's Defect Common Law rights are, as we have seen,^ construed ^y p°Jr.'^^'^ very strictly. Thus in Waddell v. Wolfe,^ where on a chaser sale of leaseholds held by underlease there was a con- i^qui'r'fof dition that no requisition or inquiry should be made vendor, respecting the title of the lessor, or his superior land- lord, or his right to grant the underlease, and the purchaser, in investigating the title, discovered for himself that the lessor had no power to grant the underlease, it was held that the purchaser was not precluded by the condition from insisting on the objection. The Court appears to have considered that the language of the condition pointed only to requisitions and inquiries between vendor and pur- chaser ; so that the case really fell within the principle of Darlincjton v. Hamilton.'^ § 1333. Again, in Smith v. Rolmson,^ the defen- Defect dant having in 1877 agreed to purchase freehold pro- ^y rendor pert)^, subject to a condition that the abstract should himself. commence with a deed dated in 1867, and that no earlier or other title should be required or inquired into by the purchaser, tliere happened to be, among the muniments handed to the defendant's solicitor for comparison with the abstract, a deed, of the existence of which the vendor was then ignorant, which threw grave doubt on the title ; and it was held that, the objection having arisen not from any requisition or inquiry by the purchaser but from tlie vendor's own disclosure, the condition did not apply. § 1334. Grenerally, where an estate is sold subject Title m to conditions of sale as to title, the inquiry is whether ^ncTwith conditions 1 Re National Provincial Bank of ^ L. E. 9 Q. B. 515 ; Jones v. England and Marsh, [1895] 1 Oh. Watts, 43 Oh. D. 574; Re Cox and 190. See, too, Re Scott and Alvarez' JVeawe, [1891] 2 Ch. 109. GL Mus- Contract, Scott v. Alvarez, it), at grave v. McCullagh, 14 Ir. Oh. E. p. 626; S. 0., [1895]2Cli. 603; i?e 496. Lyom and Carroll's Contract, [1896] 4 -^ -gp . ^^^^^^ ^ ^^^q_ 1 I. E. 383, 389. 2 See supra, §§ 1185 et seq. ^ 13 Oh. D. 148. 570 OF INCIDENTAL MATTERS. Instances. a good title is made in accordance with such con- ditions.^ § 1835. Accordingly, in the case of In re Banister,^ already referred to, although the purchaser was re- lieved against a misleading condition, still, as the conditions professed on their face to give only a good holding title, the reference was confined to ascertain- ing whether such a title could be made out.* So, again, where at the time of the written contract (an open one) being signed, the purchaser verbally agreed to take a limited title, and negociations went on for a long time upon that footing, the Court at the hearing limited the inquiry as to title accordingly.* And where A. contracted with B. for a lease, B. knowing the purposes for which A. wanted the house, and A. knowing that B.'s title was merely leasehold, a refer- ence was directed having regard to the covenants in the lease, and the purposes for which the premises were taken.^ § 1336. Where a judgment has been given for specific performance and the question is one of title, the Court has to consider only the question whether the title shown is in accordance with the contract, and cannot enter upon the question of the hardship imposed by any of the conditions as to title, or the question whether such conditions would have furnished a defence to the action.'^ § 1337. Grenerally, either vendor or purchaser has a right to have the inquiry in question, — the one being entitled to an opportunity of perfecting, and the other of investigating the title. But there may be, on the part of either of them, a waiver of the right. Byvendor. § 1338. Thus, if the Vendor states his title, and conclusively avers that he can make no other or better title, and the title disclosed is objected to by the pur- Hardship of condi- tion not to be then con- sidered. Waiver of the right. ' See §§ 1317, 1364; and consider Meyrich v. Laws, 34 Beav. 58. ■"■ 12 Oh. D. 131 ; supra, § 1200. ^ See, too, Smith v. Bohinson, 13 Oil. D. 148. * McMurrayy. Spicer, L. E. 5 Eq. 528. ^ Wilhraliam v. Livesey, 18 Beav. 206. For form of reference where the vendor has a power of sale with the consent of trustees, see Oraliam V. Oliver, 3 Beav. 124. " Lawrie v. Lees, 7 App. Oas. 19. OF REFERENCE OF TITLE. 571 chaser, the Court may decide without a reference ; ^ but if in such a case the decision were in favour of the vendor, it seems that the purchaser would then be entitled to call for a reference. § 1339. But it is with regard to a waiver by the Bypur- purcha.scr that this question more often arises : for a <='^^^'^'^- purchaser originally entitled to examine the vendor's title may subsequently waive that right, either ex- pressly or by implication ; and this waiver may be either as to the whole title or limited to parts :^ and in case of an express waivei', it may be either absolute or conditional.^ § 1340. An admission of title by a defendant in Express his pleading is an express waiver, which excludes the ■^'*^'^^''- right to a reference of title : for this purpose it is enough if the defendant pleads belief that at the time of the contract the plaintiff had a title;* or even if, the plaintiff having pleaded the facts constituting his title, they are not denied (specifically or by necessary implication), or stated to be not admitted, in the pleading of the defendant.^ § 1341. But this waiver, where not express, must implied be clearly implied from the acts of the purchaser, ■^^i'^'^''. " The Court," said Lord Eldon, " will at least take care that, where it is contended that the defendant has waived his right to a reference, it shall be clear that there was no surprise upon him, and that there has been a full and fair representation as to the title on the part of the plaintiff : " " and so where the vendor relies on any dealings in respect of the abstract as a waiver of objections to title, the contents of the abstract must raise the objection in question clearly and explicitly, and not merely by inference or notice.'' § 1342. It is often the case that there is only a Particular objections. 1 Rose V. Galland, 5 Ves. 186 ; 240, 261. Omerod v. Hardman, 5 Yes. 722, * Pliipps v. Child, 3 Drew. T09. explained in Jenlcins v. Hiles, 6 Ves. ^ E. S. 0. Ord. XIX. r. 13. 654,655. SieB,ioo,Austiny. Martin, * In Jen/cins v. ZTiVcs, 6 Ves. 655 ; 29 BeaT. at p. 535. Haydon v. Bdl, 1 Beav. 337 ; cf. ^ E.g., Corless v. Sparling, I. E. Re Haedicke and Lipski^s Contract, 8 Eq. 335. [1901] 2 Oh. at pp. 669, 670. " Toimley V. Bond, 2 Dr. & War. ' Blachlow r. Laws, 2 Ha. 40. 572 OF INCIDENTAL MATTERS. particular objection to the title that is of moment, and it is then frequently a question whether the purchaser has not waived all right to object to it. ciassifiea- § 1343. The cascs thus fall into three classes : (i.) ca°sra? ^ those of acts done by the purchaser after the objection is known to him, the objection being in its nature curable ; (ii.) those of similar acts where the defect is incurable; and (iii.) those of acts before the objection is known to the purchaser. It is evident that under the last we may treat of the question of a general waiver of title. i. Where § 1344. (i.) Where the defect, though known, is tiouV^"' yet one which it is, or may be, in the power of the known and yendor to remedy, acts which indicate an intention to complete may yet not amount to a waiver, because they may be done in the faith and expectation that the remedy will be applied. And a negociation about the objection between the parties after the acts is, on this principle, an evidence that it was not waived.* ii. Where R 1345. (ii-) But whorc the defect is known to the known and "^ ■. -i • • • ^ i_ • ^ ^ ,i incurable, purchaser, and IS m its nature incurable, there no such expectation can arise, and much slighter acts will operate as indications of an intention to waive the objection.^ So where an estate, sold as freehold and leaseholds attached, turned out to be nearly all leasehold, and this clearly appeared as a defect which could not be cured, and the purchaser continued to treat, up to and long after the day for concluding the purchase, on points of title irrespective of this objec- tion ; he was held to have waived it.^ So where an estate was subject as to part to a reservation of rights of sporting, which appeared on the abstract, and which the vendor could not cure, and after the delivery of the abstract the purchaser took possession ; he was held to have waived his right to object to the reserva- tion in question.* And where the invalidity of a fiat on which the title depended was known to the pur- chaser, his granting a lease of the property was held a 1 Oalcraft v. Roebuck, 1 Ves. Jun. ' Fordyce v. Ford, 4 Bro. 0. 0. 22^ 494; S. 0. 6 Ves. 679. * Burnell v. Broivn, 1 J. & W. 2 Ellis V. Rogers, 29 Ch. D. 661. 168. OF REFERENCE OF TITLE. 573 Again, where the defect alleged was an erroneous and misleading description of the situation of a house, but the purchaser had proceeded to investi- gate the title after this was known, he was held to have waived all objection on the score of mis- description.^ § 1346. So with regard to the contract itself — if Contract the defendant contends that it is a nullity, and, after s^teisti^g. having become aware of the facts on which he relies for this contention, has gone on acting as though there were a subsisting contract, he will be estopped from subsequently taking the objection.'' § 1347. Where, either by the terms of the original Where an contract, or by a subsequent arrangement, it is agreed fo/ p^'^se^! that the purchaser shall take possession and shall be sion. entitled to a good title, no waiver is worked by the possession, or by any acts which do not go beyond the acts of a person entrusted with the possession and bound to take care of the estate. So where a person purchased a share in some ironworks to which a good title was to be made in about a year, and it appeared to be the intention of both parties that the purchaser should previously take possession and act as partner, his doing so was no waiver of his right to a good title.* § 1348. In Burroughs v. Oakley^ the original con- Possession tract was silent as to possession, but possession having *endo^8*^ been taken by the purchaser, and both parties having consent. for more than a year subsequently continued nego- ciating as to title, Plumer M.R. concluded that posses- sion was prematurely taken with the consent of both parties, but without an intention of waiving the investigation of title : and so where a purchaser took possession, with the vendor's leave, pending an answer to a requisition as to the tenure of the property, he was held to have not thereby waived the requisition." ' Ex parte Sidebotham, 1 Mont. Camphdl v. Fleming, 1 A. & E. 40. & Ayr. 655 ; Ex parte Barrington, * Stevens t. Guppy, 3 Euss. 171 ; 2 Mont. & Ayr. 245. Margravine of Anspach v. Noel, 1 2 Sfantony. Tattersall, 1 Sm. & G. Mad. 310, 315. 629. The contract was, toweTer, ° 3 Sw. 159. rescinded on another ground. ^ Turquand v. Rhodes, 16 W. E. 3 Flint V. Woodin, 9 Ha. 618 ; 1074. 574 OF INCIDENTAL MATTERS.. iu. Acts § 1349. (iii.) Acts of ownership on the part of a- ship"'^*'^' purchaser may amount, in the contemplation of the Court, to a declaration that he considers himself as the owner of the property, and then they work an accept- ance of title and a waiver of all objections; or secondly, such acts, though falling short of this, may yet, by, changing the property which is subject to the yen dor's lien, affect that security, and therefore furnish a motive to the Court to order the payment into Court of the purchase-money.-' Sbe*^ § 1350. It is obvious that, for acts to amount to, strong and the waiver of an objection before it is known, they distinct. iT^ust be vory strong and distinct,^ — such acts, in short, as are equivalent to a declaration by the purchaser that he has taken the estate at all possible risks, and con- siders himself as the absolute and unconditional owner of it, and so preclude any investigation of title at all. Therefore in a case where the objections were not known, the stubbing up of an osier-bed and filling up a pond, though held to justify an order for payment of the purchase-money into Court, and for a receiver, were not held to amount to a waiver of title.^ If when possession is taken the purchaser knows of the objec- tion and that it cannot be remedied by the vendor, such possession will generally at least be a waiver. But the same will not necessarily result when the defect is one which the purchaser can cure.* Acts § 1351. Leaving the abstract unobjected to for two iQg°to^ " years, altering the property, letting it, and apolo- gizing for not paying the purchase-money, which was of course only payable if the title was accepted, have been considered strong acts of waiver.^ And where the purchaser was in possession twenty years, and, after making frivolous objections and refusing any further explanation of them, still continued in possession, the right to investigate title was held to have been waived.® The like was held in a case where a purchaser con- 1 Cutler V. Simons, 2 Met. 103. D. 320. ^ Dixon V. Astley, 1 Mer. 133. ^ Margravine of Anspach v. Noel, ' Oslormi Y. Harvey, 1 T. & 0. 0. 1 Mad. 310. C. 116; Small v. Attwood, You. 606, « Hall v. Lavtr, 3 Y. & 0. Ex. * In re Qloag and Miller, 23 Oh. 191. waiTer. OF REFERENCE OF TITLE. 575 tinued twenty-six years in possession after his requisi- tions of title were sent in, and had paid a considerable part of his purchase-money, and made alterations.-^ In another case. Lord Romilly M.R. expressed an opinion that the purchaser, having retained the abstract for five months and made no objections to the title, but simply got the vendor to verify the abstract with the title- deeds, had thereby waived all objections as to title.^ And where the purchasers of a leasehold interest, after investigating and accepting the vendor's title, delayed completion on the ground that they had since discovered an ancient lease, which they suggested (but did not attempt to prove) would override the vendor's interest; they were held to have lost the right to make any inquiry on the subject.^ § 1352. The right of investigation may sometimes Waiver be waived by the silence of a subsequent contract con- oLub-'^'^^ corning it. Thus where, by a contract for the sale of sequent an estate, the purchaser was entitled to evidence that the buildings were not on the copyhold part of the pro- perty, which, except to that extent, the vendor was not to be called on to distinguish from the freehold ; the purchaser asked for evidence of the identity of the parcels in the abstract with the estate sold : subse- quently, by a supplemental contract, the purchaser accepted the title, subject to the production of a decla- ration of the identity of the parcels in the deeds and the lands sold, — which was produced and a^jproved on the purchaser's behalf : and he subsequently objected that the buildings were on the copyhold part of the estate : it was held that this term of the original con- tract had been waived by the silence on that head of the supplemental one.* § 1858. On the other hand, the mere acquiescence Acts not of both parties in not enforcing the completion of the ^ '^'''^^'^• contract,® the continuing a treaty and at the same time 1 Wallis Y. Woodyear, 2 Jur. N. S. Her Majesty's Works, &c., 16 W. E. 179 (Wood V.O.). See, too, Bowny. 889. „. o^ -n„„„ ec(i ^ Dawson y. Brinchnan, 3 De Gr. Stmson, 24 Bear. 631. o o ot,„ « ^ „,.-!, .^ ^ , , ^ „„„ & Sm. 376; S. C. 3 Mac. & G. 53. » Pegg v. Wisden, 16 Beav. 239. , Blackford Y.KirhpaMch, 6 Beay. " Corieft y. The Commissioners of 232. 576 OF INCIDENTAL MATTERS. Waiver of lessor's title. Instances. insisting on the objection/ and the approval of the title by the purchaser's counsel/ have all been held insuffiT cient to waive the purchaser's right to investigate the title of the vendor. § 1354. By the Vendor and Purchaser Act, 1874, s. 2 (1), it is enacted that (subject to any stipulation to the contrary in the contract) under a contract to grant or assign a term of yeai-s, 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.^ This provision does not preclude the purchaser from showing aliunde that the title is bad.* But in cases where the purchaser of a lease still has a right to inquire into the title of the lessor, conduct may waive that right which does not waive the right as to the title of the lessee. § 1355. So where B. contracted with A. to take an assignment of a lease when executed, and inspected the lease and the assignment of it to A., and subsequently directed A. to cause an assignment to himself to be endorsed totidem verbis, he was held to be precluded from calling for the lessor's title.^ Again, where a pur- chaser, after transmission to him of the original lease, prepared a draft assignment, and made various objec- tions as to repairs and other matters, but did not require the production of the lessor's title, it seems that he would have been held to have waived the right, but the point was not decided.^ And in a case which came before Lord Cranworth, he, affirming a decision of Stuart V.C, held that joining in a valuation, advertis- ing the property to be disposed of, and other like acts on the part of the lessee, which implied that nothing remained to be done but the execution of the lease. ' Knatchhull T. Orueber, 1 Mad. 163. * Deverell v. Lord Bolton, 18 Ves. 603. Distinguisli Oorheit v. The Commissioners of Her Majesty's Works, &c., 16 W. E. 889. 3 See also the Conveyanciiig, &c. Act, 1881, s. 3 (1) and s. 13; and see Patman v. Harland, 17 Oh. D. 353 (position of lessee -with regard to constructive notice of lessor's title). * Jones V. Watts, 43 Ch. D. STi. ^ Smith V. Capron, 7 Ha. 185, 189. ^ Olive V. Beaumont, 1 De G. & Sm. 397. OF REFERENCE OF TITLE. 577 amounted to a waiver of his right to call for the lessor's title.^ § 1356. In analogy with the distinction established Contract by the above cases on conditions of sale as to the fo°oed,' lessor's title, it is established that acts may amount not^th- to a waiver of a right to investigate the title, and yet ^^ver!^ not compel the purchaser to take it, if it come out collaterally that the vendor has no title. Thus, in Warren v. Richardson^ the purchaser of a leasehold interest had done acts which the Court, at the hearing, held to be a waiver of the right to investigate the title ; but it appearing on the report of the Master, to whom it was referred to settle the lease and to state any special circumstances, that the vendor held this together with other leasehold property under one lease, and siibject to one proviso for re-entry, so that the vendor, who was plaintiff, could not make a good title ; the Court refused to enforce the completion of the contract on the defendant. § 1357. Where the purchaser, having discovered Defect a material defect in the title in the course of his Z^^'^^ investigation of it, gave notice to determine the con- chaser's tract, and immediately afterwards bought up the °'^'^'^°^- interest which had constituted his objection, it was held that, having thus by his own voluntary act cured the defect, he could not avail himself of this purchase for the purpose of destroying the original contract ; and specific performance was decreed against him.^ § 1358. With regard to the proper mode of plead- Heading ing that the right to investigate the title has been "waiver. waived, it was decided by Knight Bruce (then V.C.) in Olive v. Beaumont,^ that it was not enough for the party relying on such waiver to allege facts from which it is a legal inference ; but that he must allege the facts and that there had thereby been such waiver. • Simpson v. Sadd, 4 De G. M. & ^ You. 1. G. 665, wMoh see for the form of a ' Murrdl v. Goodyear, 1 De G. F. declaration that the right to call for , ". x^ ' ^ „ „ „ .. , ,.„ , , . , * 1 De Q. & Sm. 397. See, too, the lessor s title has been waived. ^^^^^^ ^_ Franhum, 2 De G. & Sm. See also Ogilvie v. Foljambe, 3 Mer. 56I. Of. Sughes v. Jones, 3 De G. 66. P. & J. at pp. 316, 317. F. P P 578 OF INCIDENTAL MATTERS. And this seems to be the proper course under the present practice of the High Court.* Practice § 1359. According to the practice of the Court Court of of Chancery, an inquiry as to title might have been Chancery, directed accordiug to circumstances : — (i.) At the hearing : or (ii.) On motion before the hearing but after answer : or (iii.) On motion before answer. The present practice is regulated by the Rules of the Supreme Court, and it does not therefore appear necessary to state in detail the former practice of the Court of Chancery as to the time of directing this inquiry. The § 1360. The inquiry as to title is now, it is con- praotice. ccived, obtainable either under Order XXXIII. rule 2, which provides that the Court or a Judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries to be made,^ notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner ; or, in an appropriate case, under the sixth rule of Order XXXII., providing that any party may, at any stage of a cause or matter where admissions of fact have been made either on the pleadings or otherwise, apply to the Court or a Judge for such order as, upon such admissions,^ he may be entitled to, without waiting for the determination of any other question between the parties. . . . And the Court or a Judge may, upon such application, make such order as the Court or Judge may think just,'' § 1361. The vendor should be alert to get the inquiry as to title directed as early as possible. " In 1 E. S. 0. Order XIX. r. 15. 512. ^ For form ol judgment where * The Judge has a discretion as the inquiry is directed, see Seton to making or refusing an order (6th ed.), 2226, 2258. under this rule. Mellor v. Side- ' See Symonds v. JenJcins, 24 W. E. hoUom, 5 Ch. D. 343 (0. A.). OF REFERENCE OF TITLE, 579 almost every case," said James L.J./ '' it is the duty of a vendor, where there is no question but that of title between him and the purchaser, to avail himself of the opportunity of having an immediate reference as to title and so saving the multiplication of unnecessary costs." § 1362. The order for reference is not necessarily inquiries confined to an inquiry whether a good title can be ^^tters made, but may extend to everything that appears to connected be connected with the title.^ It should therefore ^fj'*^^" include an inquiry as to the time at which a good title good title was shown,^ unless for some reason stated at the time, ^^°'^°- — e.g., that the contract itself,* or the plaintiff's right to specific performance,^ has been disputed — and by the express direction of the Court, this inquiry is omitted.^ As this inquiry, if to be made at all, should be directed at the original reference, the Court has refused to direct it subsequently on a second motion.'' § 1363. On the same principle, the inquiry may other extend to whether it appeared by the abstract that a ™^ good title could be made :^ and on the like ground, an inquiry was in one case added whether the defendant objected at any time to the want of evidence as to the identity of the premises ; but an inquiry whether the abstract was perfect, and if deficient, in what respects, and whether it was ever perfected, was considered to be not so connected with the title as to be added to the reference.^ § 1364. The inquiry may be limited in any inquiry manner appropriate to the circumstances of the par- ^™^*<='^- 1 PUlUpson V. G-ihhon, L. E. 6 Oh. ^ Po^ie^ y. Qrossley, 5 W. E. 35. 428, 435. » Bennett v. Reei, 1 Ke. at p. 409. ^ Jenningsr. Eopton, 1 Mad. 211 ; The old practice on this point was Bennett T. Rees, 1 Ke. at p. 408 ; somewhat variable. Moss v. Mat- Enraght v. Fitzgerald, 2 Dr. & War. thews, 3 Ves. 279; Gibson v. Clarke, 43. See, too, Oedt/ey. Commissioners 2 V. & B. 103. of Public Works, 16 W. E. 1106. ' Hyde v. WrougUon, 3 Mad. 279. 3 Seton (6th ed.), 2226—2228. See » n^^n^W v. Bond, 11 Ves. 39; Foxlowe V. Amcoats, 3 Beav. 496. Florniblowy. Shirley, &Qion[&ALBd..), * Oibbins v. North Eastern Metro- 2228 ; Jennings v. Hopton, 1 Mad. politan Asylum District, 11 Beav. 211. 1 ; Morris v. Wilson, 5 Jur. N. S. " Bennett v. Bees, 1 Ke, 405, 408, 168, 409. pp2 580 OF INCIDENTAL MATTERS. Sarnett V. Baleer. When the title may be made out. ticular case, as, for instance, by directing that regard is to be had to, or that the inquiry is to be made subject to, specified requisitions or declarations.^ § 1365. In Harnett y. Baker,^ the Court (Malins V.C.), having come to the conclusion that a condition of sale restrictive of the title was not binding on the purchaser, on the ground that it was founded on an erroneous statement of facts which the vendor was bound to know was erroneous, held that the vendor (plaintiff) must either take an open reference of title (which the Vice-Chancellor refused), or have his bill dismissed with costs. § 1866. The inquiry is whether the vendor can make a good title, not whether he could do so at the date of the contract; and therefore, when once the inquiry has been directed,^ he may make out his title at any time before the certificate, and if he can do so he will be entitled to a judgment or order in his favour,* at least where there has been no unreasonable delay, and time is not material.^ § 1367. The Court of Chancery often allowed time for the completion of the title : in an old case it pietionof niore than once allowed the vendor time to get an Act of Parliament \ ^ and where upon the face of the contract it appeared that there was a difficulty in the plaintiff's title. Lord Hatherley (then Wood V.C.) refused on demurrer to stop a suit for specific per- formance, on the ground that the Act of Parliament contemplated had not been obtained. '^ So, in another case, the Court allowed the vendor time to procure a Time allowed for com- ' Saul V. Bolton, Seton (6tli ed.), 2227 ; Remnant v. Hult, ib. 2228 ; Hume V. Pocock, L. E. 1 Eq. 423, 431; 1 Oh. 379; and aupra,^^ 1334, 1335. 2 L. E. 20 Eq. 50, 58. ^ Questions as to time and delay- may, it is conceived, be properly raised on tie application for the inquiry. * Bennet College v. Carey, 3 Bro. C. 0. 390 ; per Lord Eldon in Jen- kins V. Hihs, 6 Ves. at p. 655, and in Seton v. Slade, 7 Ves. at p. 279 ; Wynn v. Morgan, 7 Ves. 202; Mort- lock V. Buller, 10 Ves. 292, 315; Vancouver v. Bliss, 11 Ves. 458. 5 Langford v. Pitt, 2 P. Wms. 629. ^ Lord Stourton r. Meers, cited 2 P. Wms. 630. See also Lord Bray- Irohe V. TnsJHp, 8 Ves. 417, 436; Coffin V. Cooper, 14 Ves. 205. ' Devenish v. Brown, 26 L. J. Cb. 23. OF EEFEBENCE OF TITLE. 581 small part of the estate ;^ and, in another case, allowed a limited time to procure the concurrence of an assignee in insolvency.^ § 1368. The Court grants indulgence in point of Where time for getting over any difficulties in matters of pi^ntiif. conveyance, as much where the vendor is the plain- tifp, as where the proceedings are instituted by the purchaser.* § 1369. But this indulgence will not be granted Time not where the defect to be remedied was known to the vendor or his agent, and was concealed from the pur- chaser ; * nor where there has been great delay, and there is no probable chance of the difficulty being got over in a short time ; ® so that a purchaser under the Court would be discharged if it appeared requisite to his title that an account should first be taken in an action to be instituted,'' or that an action should be instituted to try whether certain devisees were trustees for the seller or not.^ It must be borne in mind too that a purchaser discovering that a vendor has no title or power to convey the estate, or require it to be con- veyed, may, at his election, refuse to have anything more to do with the contract.® § 1370. Nor will the Court grant additional time oia title where the vendor proposes, not to cure a defect in the newtitie. title which he had at the sale, or to produce fresh evi- dence in support of it, but to get an entirely new title : for the Court will not force a buyer to take an estate from a vendor who is neither owner of it, nor pos- sessed of the power by the ordinary course of legal proceedings to make himself so ; ^ for it is not the purpose of the Court to enable one man to sell another man's estate.*" As to this point, it was in one case ^ Gharaberlain v. Lee, 10 Sim. * Magennis \. Fallon, 2M.6)1. o&l. 444. ' Noel v. Hoy, St. Leon. Vend. * Sidebotham v. Barrington, 4 293. Beav. 110. See, too, on tMs point, ^ Forrer v. Nash, 35 Beay. 171 ; Re Banister, 12 Ch.. D. at p. 145. Brewery. Broadivood, 22Cli. D. 105. 3 Duke of Beaufort v. Glynn, 3 " Tendring v. London, 2 Eq. Oas. Sm. & G. 213. Abr. 680, pi. 9 ; Magennis v. Fallon, ^ Dalhy v. Pullen, 3 Sim. 29 ; 2 Moll. 561. S. 0. 1 E. & My. 296. i° Chamberlain t. Lee, 10 Sim. ' Fraaer v. Wood, 8 Beav. 339. 444, 582 OF INCIDENTAL MATTERS. decided that a title from possession defeasible by the Crown on account of the alienage of the original owner, cured by a grant from the Crown whilst the question was in the Master's office, was the same title, and the purchaser was compelled to take it/ And the fact that the vendor may have had no title to a small part of the estate at the time of sale, and subsequently purchases it, will not make the title a new one within this rule.^ Acquies- g 1371. But even where the vendor has no title at purohaser. all at the time of sale, so that the purchaser may with- draw if he choose, yet, if he acquiesce in steps taken by the vendor to get in the estate, he will thereby have waived the want of mutuality, and be bound to accept the title, if made out at the trial or other necessary time.^ Inquiry § 1372. The inquiry as to title takes place in the wm e. Q]^g^^^|jgj.g q£ ^j-^g j-^dge, and the result is embodied in a Master's certificate.^ Evidence. § 1373. Evidence by aifidavit of matters of fact material to the title is admissible under a reference of title.® Accordingly where, under such a reference, after the conveyancing counsel had given his opinion in favour of the title, but before the certificate had been actually signed, a very serious defect of title, not in any way disclosed or raised by the abstract, was discovered by the purchaser's inspecting the property, evidence of the matters so discovered was admitted.^ '^®?p°'" § 1374. Whatever can be done in Chambers upon chaser a reference as to title under a judgment where the Act, 1874, contract is established, can be done upon proceedings under the ninth section of the Vendor and Purchaser Act, 1874, already referred to.' That Act enables 1 Eyston v. Simmons, 1 T. & G. E. S. 0. Order LV. r. 65 et seq. As 0. 0. 608. to objecting to the certificate before * Chamberlain v. Lee, 10 Sim. 444. it is signed by tte Judge, see Parr ' Hoggart v. Scott, 1 E. & My. v. Lovegrove, 4 Drew, at p. 176. 293; Salisbury v. Hatcher, 2 Y. & ^ Be Burroughs, Lynn-, and Sexton, 0. C. 0. 54. See supra, §§ 468, 469, 5 Ch. D. at p. 603. and Murrell v. Goodyear, 1 De G. !F. * Phillipson v. Q-ibbon, L. E. 6 Oh. & J. 432. 428. 'Dart,Vend.(6thed.),1239e Esdaile t. Stephenson, 6 Mad. 696, 366. * See Brooke v. Anon,, 4 Mad. '" Hume v. Pococh, L. E. 1 Eq. OF EEFERENCE OF TITLE. 585 § 1381. But, generally, if the certificate is against Certificate the title, and either no application is made to discharge tfe^titie. or vary it, or such application fails, the action will be dismissed.^ § 1382. In one case, where the vendor was plaintiff Tm-ner v. and a deposit had been paid, the vendor was ordered to repay it with interest at 4 per cent., and it was declared that the purchaser was entitled to a lien on the estate for the deposit and interest, and also for his costs of the action, with liberty to apply at Chambers to give effect to the lien, and thereupon the bill was dismissed with costs. ^ § 1383. As an ordinary rule, costs are given not Costs. to, but against, a vendor up to the time at which he has first shown a good title.* But there is also another general rule, that if a purchaser has taken certain ob- jections to the title of the vendor, and those objections which have been the cause of the litigation are over- ruled, the vendor will be entitled to his costs, and the purchaser vsdll not escape paying them by reason of some evidence, the want of which was never the subject-matter of dispute between them, not having been supplied until the title was investigated in Chambers.* And where a defendant prevented the plaintiffs (vendors) from obtaining the usual reference as to title on interlocutory motion by setting up defences which, at the hearing, he failed to establish, he w^as ordered to pay the plaintiffs' costs up to and inclusive of the hearing.^ § 1384. In the inquiry as to the time when a good What is title was shown is involved the question, what is ^^f^"^ 662 ; cf . Murrell v. Goodyear, 1 De section are, however, subject to the G. F. & J. 432. general discretion with respect to 1 See Dart, Vend. (6th ed.), 1241; costs exercisable by the Court or Pretty v. Solly, 26 Beav. at p. 613. Judge by virtue of E. S. 0. Order Distinguish GedyeY. Commissioners LXX. See, too, per Cotton L.J. of Public Works, 16 "W. E. 1106. in Games v. Bonner, 54 L. J. Ch. 2 Turner v. Marriott, L. E. 3 Bq. 517 ; 33 W. E. 64, at p. 66. 744. ^ S. C. p. 434. Of. Bridges v. ' Phillipson v. Gibbon, L. E. 6 Ch. Longman, 24 Beav. 27. at p. 434. The rules stated in this * Eyde v. Dallaway, 4 Beav. 606, 586 OF INCIDENTAL MATTERS. showing a good title. ^ In relation to this, two dis- tinctions are to be borne in mind, the one between questions of title and of conveyance, the other between questions of title and of evidence. Distiuo- § 1385. As to the first, the rule was thus stated by tween^' Lord Eldou in Lord Brayhroke v. InsJcip,^ — "As to questions the questiou whether the abstract was complete, the and of abstract is complete whenever it appears that, upon convey- certain acts done, the legal and equitable estates will be in the purchaser. That may be long before the title can be completed." So that a good title is shown when it appears from the abstract that the vendor has the whole equity, and in what persons the outstanding portion of the legal estate is vested.^ The acts to be done, of which Lord Eldon speaks, must be confined to acts the performance of which the vendor can enforce in a Court of justice, as, for instance, by calling on a trustee to convey the estate vested in him. Therefore where an estate tail was outstanding in a person who had consented to bar it, but was not in any way a trustee for the vendor, the Court held that the title was not made out till the recovery had been fully perfected.* Rule laid § 1386. In EsdaiU V. Stephenson^ Leach V.C., after EMUy. consultation with Lord Eldon, laid down the rule, Stephen- '< that where a necessary party to the title was neither in Law nor Equity under the control of the vendor, but had an independent interest, unless there was pro- duced to the Master a legal or equitable obligation on the part of the stranger to join in the sale, the Master ought to report against the title ; otherwise, where a necessary party to the title was under the legal or equitable control of the vendor, as a mortgagee, where the Master might well report that upon payment of the mortgage a good title could be made." iiiustra- § 1387. The rule is further illustrated by other tiiTrde. cases. In one, it was held to be no objection to title, that a satisfied term was outstanding in a lunatic 1 See §§ 1317, 1389. ing Society v. Holloiuay, 13 Cli. D. 2 8 Ves. 436. 754, 763. 3 Avarne v. Brown, 14 Sim. 303 ; * Leivin v. Quest, 1 Euss. 325. OamheriveU and South London Build- ^ 6 Mad. 366. OF REFERENCE OF TITLE. 587 against whom no commission had issued, so that there was then no person competent to make the assign- ment ;^ and in another case, the legal estate of a moiety of the property was outstanding in a married woman or those claiming under her, but she being under the order of the Court to convey was bound by it, and became absolutely a trustee for the purchaser under the order of the Court : the title was therefore held good, but without prejudice as to the question of conveyance.^ § 1388. It appears to have been considered by Aianiev. Shadwell V.C. to be sufficient if the abstract showed ^i'"""'- that the outstanding legal estate had been formerly vested in a trustee for the vendor, and that the abstract was then complete, though a supplemental abstract was necessary to trace the legal estate.^ But this decision seems at variance with the rule enunciated by him in the same case, of which one condition is that the abstract must disclose in whom the legal estate is vested, not in whom it was formerly vested. And accordingly Lord Gilford M.R. held that where an abstract only showed that the legal estate had long since been vested in persons who would be trustees for the vendor, but did not show in whom the legal estate was then vested, the defect was one of title and not of conveyance.* In a recent case it has been held that the objection that in proceedings under the Settled Land Act trustees for the purposes of that Act had not been appointed was an objection of conveyance and not of title.^ § 1389. A distinction has also been taken between Bistino- sliowing and making a good title. A good title is tween^" shown when all the matters essential to the title are showing stated in the abstract : it is made, when those matters ^°^ title." are proved.*^ § 1390. It is evident, further, that there is a dis- Distinc- 1 Berkeley v. Dauli, 16 Ves. 380. 11 W. E. 794; and per Kindersley 2 Jumpson V. Pitcher, 1 Coll. 13. V.C. in Oakden v. Pike, 13 W. E. at 3 Avarne v. Brown, 14 Sim. 303. p. 674; 11 Jur. N. S. 666. * Wynne v. Griffith, 1 Euss. 283. '^ Hatten v. Russell, 38 Ch. D. 334. See further, as to what is a perfect * Parr v. Lovegrove, 4 Drew. 170, abstract, ^erWigram V.C. in if or% 181; Games v. -Bonjior, 33 W. E. 64 ; v.Coo/c, 2 Ha. Ill; Wardj.Ghrimes, 54 L. J. Oh, 617. 588 OF INCIDENTAL MATTERS. tion be- tinction to be drawn between matters of title and of evidence the evidence whereby that title is supported. The and title, verification of the abstract may be either the one or the other : thus, the verification of the deeds stated in the abstract is matter of evidence ; whilst, on the other hand, the proof of a fact essential to the title, which can only be proved by evidence documentary or oral, — as, for example, the identity of a person, or of parcels apparently different on the deeds, — is a matter of title.* ' Bherwin v. Shakspear, 17 Beav. 267, 275, varied on appeal, 5 De G. M. & G. 517. 589 CHAPTER V- OF INTEREST, RENTS, DETERIORATION, AND PAYMENT INTO COURT. § 1391. In the case of every contract of sale, the The pass- question arises — At what time does the property in "igof t^e ■* , A. ± J property the thing sold pass from the vendor to the purchaser? in subject- In the case of a contract for the sale of real or "^"raot* chattel real property in this country, the answer to this question involves important consequences, some of which it is proposed to discuss in the present chapter. It will be convenient, therefore, briefly to consider the effect of such a contract as between the parties to it. § 1392. Where such a contract is entered into, Difference the legal estate in the property passes, not by the J'heTe^ai contract, but only upon and by virtue of the execution and equu- of a subsequent formal deed of conveyance.^ The estates. equitable estate or beneficial ownership, however, passes, as between the contracting parties, by the contract itself^ but only sub modo, or, in other words, conditionally upon the contract being ultimately com- pleted by the fulfilment by vendor and purchaser respectively of the mutual obligations imposed on them by the contract. It follows (it is conceived) that upon the completion of the contract the condition is satisfied, and the vesting of the equitable as well as of the legal estate 1 See Austin's Jurisp. 388, 1001- Watson, 10 H. L. C. at p. 678 ; per 1002; a.TidperGTa.nt'M..B..iTiFludyer Eomer J. in Eaffety v. ScJwfield, Cocker, 12 Yes. at p. 27. ^1897] 1 Oh at p^943 Of. Edwards ^ V. West, 7 Oh. D. at p. 862 ; and ' Per Lord Westbury ia Hose y. supra, § 911. 590 OF INCIDENTAL MATTERS. Mutual obliga- tions of the con- tractors. Vendor's obliga- tions. Vendor a con- structive trustee. Pur- chaser's obliga- tions. becomes absolute ; but that upon the contract coming to an end in any other way than by completion the equitable estate revests in the vendor.^ § 1393. It is, then, important to inquire what are the mutual obligations of the parties to a contract of the kind under discussion. It is submitted that, in the absence of express stipulation, they are shortly as follows : — § 1394. The vendor is bound — 1 . To show a good title to the property contracted to be sold. ( (a) To take reasonable care of the property, 2. < and ( (b) to pay the outgoings,^ until the purchaser takes, or ought to take, possession of it. 3. Upon being paid the purchase-money, and any interest on it that may have become payable, (c) to execute and procure^ the execution by all other necessary parties (if any) of a proper deed of conveyance vesting the legal estate in the purchaser, and (d) to put him in possession of the property. § 1395. It is in regard of these or some of these obligations that the vendor has been said to be a con- structive trustee, or a trustee sub modo, of the estate for the purchaser from the time when the contract is constituted.* § 1396. On the other hand, the purchaser is bound — 1. As soon as either the vendor has shown a good ' See per Plumer M.E. in Wall v. Bright, IJ. & W. at p. 501. ' As to outgoings, see infra, § 1430, and tlie cases cited there. ^ As to the expense of procuring mortgagees' concurrence, see Be Sander and Wal ford's Contract, 81 L. T. 316 ; W. N. 1900, 183. * See per Plumer M.E. in Wall v. Brjght, 1 J. & W. 500—503; Shaw V. Foster, L. E. 5 H. L. at pp. 338, 349, 356 ; per Lord Westhury in Knox V. Oye, L. E. 5 H. L. at p. 675 ; per Jessel M.E. in Lysaght V. Edwards, 2 Oh. D. 506—510; per James L.J. in Raymer v. Preston, 18 Oh. D. 1, 12. construc- tive trus- OF INTEREST AND RENTS. 591 title, or he (the purchaser) has accepted such title as the vendor shows or has, (a) to pay the purchase-money, and any interest on it that may have become payable, and (b) to take possession of the property (that the vendor may be relieved from all future liabilities incident to the owner- ship). 2. To bear the loss resulting from any accidental injury to the property happening after the contract has been constituted.' In regard of the first of these obligations the pur- Purchaser chaser has been said to be constructively a trustee of the purchase-money for the vendor.^ tee. § 1397. In addition to the above obligations, the Liens. contract gives or may give rise to certain liens ; — of the vendor for unpaid purchase-money, and of the purchaser for the deposit or other portion of the purchase-money paid before completion : but these really result from the non-performance, in some re- spect, of the contract, rather than from the contract itself. § 1398. If the foregoing statement of the obliga- Transfer tions of the parties to a contract of the kind under gion?^^*^' discussion be correct, it follows that, where the con- tract contains no express stipulation on the point, the transfer of the possession of the estate from vendor to purchaser ought to be contemporaneous with the com- pletion of the contract. In practice, however, possession is often taken by the purchaser at an earlier date, in pursuance either of an express term of the contract, or of some extrinsic act of, or arrangement between, the parties. § 1399. Now it is obviously inequitable, in the Estate absence of express and distinct stipulation, that either rentfand party to the contract should at one and the same time interest, enjoy the benefits flowing from possession of the Sciusive. 1 See LysagU v. Edwards, 2 Ck. § 912. D. at p. 507 ; and of. Inst. iii. , „ ,, -^ a t. i.-u ^ i s> 23, 3. Distinguislx Counter y . Mac- ^^^ ^^« °^^^« ^'^^^ ^* ^^^ ^ °°* °f pherson, 5 Moo. P. 0. 0. 83, supra, § 1395, siqmi,. 592 OF INCIDENTAL MATTERS. property and those flowing from possession of the purchase-money. The estate and the purchase-money are things mutually exclusive. "You cannot," said Knight Bruce (then) V.C, in a case arising out of the sale of some slob lands in Chichester harbour, "have both money and mud." And so neither party can at the same time be entitled both to interest and to rents. ^ AppUoa- g 1400. The general principles laid down in the the above preceding section of this chapter are of primary im- principiee. portanco in determining (1) the respective rights and liabilities of vendor and purchaser in regard of interest on the purchase- money and the rents and profits and outgoings of the estate : (2) their respective rights and liabilities in regard of the deterioration of the estate after the constitu- tion of the contract : (y) the right of the vendor to have unpaid pur- chase-money paid into Court. The application of these principles to any particular case of contract may, however, be, and in practice usually is, modified by express stipulations embodied in the contract. Division § 1401. With these preliminary observations it is Bubject. proposed to consider the rather complicated questions which arise between vendor and purchaser in respect of rents, interest, outgoings, deterioration, and pay- ment into Court, under the following heads ; viz. : — I. Where the vendor is in possession of the estate, either by receipt of the rents or by personal occupa- tion. II. Where the purchaser is similarly in possession of the estate. I. Where the vendor is in possession. No time § 1402. Where the contract fixes no time for the Sample- Completion of the purchase, and is silent as to the rents tion. ^ As to manorial fines, see Qarrich y. Earl Camden, 2 Cox, 231 ; Cuddon V. Tite, 1 Gife. 395. OF INTEREST AND RENTS. 693 and interest, there prima facie the vendor, it is con- ceived, is entitled to the produce of the purchase- money, in the shape of interest, and the purchaser has a corresponding right to the produce of the estate, in the shape of tenant's rents or occupation rent, as from the time when the contract ought to have been com- pleted and the transfer of possession to have taken place as a part of such completion.^ § 1403. Where, as is usually the case, the con- Time tract fixes a time for completion, there prima facie, and compie- in the absence of stipulation, the time so fixed is the *^°'^- time from which the purchaser is liable to the payment of interest and is entitled to the rents. But this rule must be taken subject to- several exceptions. § 1404. First, where the interest is much more interest in amount than the rents, and the delay in completion ™°ts, is clearly made out to have been occasioned by the _ ^ ^^^^^^,^ ^. j.^^^^ ^ " Esdaile v. Stephenson, 1 S. & S. g-^, 260. 122. * Burton v. Tvdd, 1 Sw. 255. F. Q Q Carrodus 594 OF INCIBENTAL MATTERS. Title § 1406. Secondly, where the title is made out in S^Cham- Chambers, the day when the title is made out is the bers. (Jay on wHcli the purchaser comes under an obligation to complete. Hence, up to that day, the vendor is entitled to the rents, and the purchaser to interest on the deposit paid to the vendor ; and from that day the purchaser takes the rents and pays the vendor interest on the unpaid balance of the purchase-money.^ § 1407. Accordingly where a suit was instituted for the specific performance of a contract to buy a mill, and the decree was made in February, 1854, but a good title was not shown till December of that year, and a question arose as to who was to bear the expenses and outgoings belonging to the mill, and to the repairs and sustentation of the premises and the machinery. Lord Romilly M.R. decided that these must be borne by the vendor up to the time at which a purchaser could prudently take possession, which is the time at which a good title is shown, and after that by the purchaser.^ ^oas°oned § 1408. Where, however, the title has not been by pur- made out till after action brought, but the delay has chaser. arisen from the purchaser's raising other points which made the action necessary, then, the delay not being the fault of the vendor, interest will run from the day fixed for completion.^ Purchase- § 1409. Thirdly, where the contract leaves the be°ascer- amount of the purchase-money to be subsequently tained ascertained, interest will not begin to run until the tract. purchase-money is actually ascertained, notwithstand- ing that the time fixed by the contract for completion may have arrived before this is done. Thus in a case where the contract provided that the price should be determined by the award of a surveyor, the Court of Appeal in Chancery held that the vendor must pay the outgoings up to the date of the award, and was entitled to interest only as from that date, although the con- ' Pindce v. Curteis, 4 Bro. C. 0. See, too, Barsht v. Tagg, [1900] 1 333. Cf. JEnraght v. Fitzgerald (a QJ^, g^i p_ 235. sale of a reversion), 2 Dr. & War. 43_ ^ Monro v. Tat/lor, 3 Mac. & G. ' Carrodus v. Sharp, 20 Beav. 56. 713. OF INTEREST AND EBNTS. 595 tract also contained a clause providing that the purchase should be completed and the purchase-money paid at a time which, in the events which happened, arrived more than fourteen months before the award was made/ § 1410. Fourthly, the purchaser is discharged from Purohase- his prima facie obligation to pay interest on the unpaid ^ropnatei purchase -money where the purchase-money has been and notice appropriated by him and has been unproductive,^ and fendor. notice to this effect has been given by the purchaser to the vendor.^ " Where nothing appears to occasion the delay," said Lord Cottenham, " the rule no doubt is, that if the purchaser, who on the face of the con- tract is under the necessity of paying on a certain day, sets apart his money, and gives notice that it is ready, interest stops from that time, provided it be shown that he made no interest of it." * And even in con- tracts by railway companies taking land under their compulsory powers, where the owner makes default in completing the sale, interest will cease upon appropria- tion of the purchase-money, with notice that it is unemployed.® § 1411. The general rule which we have been dis- s^ents cussing may, of course, be excluded by express stipu- resCT^ed'to lation, as where conditions of sale reserved the rents to '^'endor. the vendor, which was held to exonerate the purchaser from the payment of interest on the unpaid purchase- money.'^ § 1413. There are many reported cases in which ^^lay ' Catling v. Great Northern Rail- ^ Powell v. Martyr, 8 Ves. 146 ; wa2/Co.,18W.E. 121; 21 L.T.N. S. Roberts v. Massey, 13 Ves- 561; 17. In this case the possession ap- Dyson v. Hornby, 4 De G. & Sm. pears to have been vacant during 481; Rowland v. Norris, 1 Cox, 59; the period in dispute. Cf. Re Ec- Regent's Canal Co. v. Ware, 23 Beav. deshill Local Board, 13 Ch. D. 365 ; 575. Of. Kershaiv v. Kershaio (pur- dieapproved of in Re Pigott and chaser in possession), L. E. 9 Eq. Oreat Western Railway Co., 18 56. Ch. D. 186. * In De Visme v. De Visme, 1 2 In Re Riley to StreatfieU, 34 Mac. & G. 352. Ch. D. 386. As to the result where ° Regenfs Canal Co. v. Ware, 23 the purchaser makes any profit on Beav. 575. the appropriated money, see infra, ° RrooJte y. Champernowne, 4 CI. §1451. & Fin. 589, 611. Q Q 2 596 OF INCIDENTAL MATTERS. from any cause ■whatever. Monk T. Sunkisson. the contract has contained a condition to the effect that the purchaser shall pay interest from the day appointed for completion from whatever cause the delay may arise. In a case decided in the year 1822, Leach V.G. held that the mere fact of the delay having arisen on the part of the vendor did not release tlie purchaser from the obligation of such a condition, and that accordingly he was bound to pay interest : ^ and in a case where the conditions of a sale under the Court stipulated for payment of the purchase-money on a certain day, and that, if from any cause whatever it should not then be paid, interest sliould be paid at 61. per cent. ; and there was great difficulty and delay on the vendor's part; Lord Langdale M.R. ordered the payment of intei-est according to the contract, but without prejudice to any application for compensa- tion.^ Where, however, the condition provided that, if from any cause whatever the completion of the pur- chase should be delayed beyond a specified date, " the purchaser in default " should pay interest, and delay occurred which was entirely owing to default on the part of the vendor, it was held that the purchaser was not liable to pay any interest.^ § 1413. In a case where there was a stipulation that if, by reason of any unforeseen or unavoidable obstacles, the purchase should not be completed by the day fixed, the purchaser should from that day pay interest at HI. per cent, on his purcliase-money and be entitled to the rents, and the vendor did not show a good title till long after the specified day. Leach V.C. held that the stipulation would not make interest run before the time when a good title was shown, but would only affect its rate.* ^ Esdaile v. Stephenson, 1 S. & S. 122. See Lord St. Leonards' ob- servations on this point, St. Leon. Vend. 529 et seq. ^ Oreenwood T. OhurchiU, 8 Beav. 413. In this case the purchaser had taken possession, hut the only ques- tion that arose was as to interest. 3 Jones V. Gardiner, [1902] 1 Oh. at p. 194; 71 L. J. Oh. 93, re- ferring to Denning v. Henderson, 1 De G. & Sm. 689 ; 17 L. J. Ch. 8. * Monh V. Hushisson, 4 Euss. 121, n. This case seems irrecon- cileahle with the same V.C.'s de- cision in Esdaile v. Stephenson, (1 S. & 8. 122), sujva, § 1412, and Lord OF INTEKEST AND KENTS. -J^' § 1414. In the case of De Visme v. Be Visme,'^ the ^evpnew. effect of such conditions was very elaborately con- sidered by Lord Cottenham, and his Lordship held that a condition for the payment, in case of delay, of interest from the day appointed for completion, from whatever cause the delay might have arisen, did not apply to a case of the vendor's own default, but that in tliat case interest ran only from the time when a good title was shown. " There are two ways," said his Lordship, " in which this case may be met in argument and upon principle. It may either be con- sidered that that which has happened is not within the contract, that is, that the party never did mean to con- tract that he would pay interest, although he might be prevented from having the benefit of his purchase by the default of the vendor, and in this A'iew it is the ordinary case of doing justice between the parties, an event having arisen which was not expressly provided for by the contract ; or it may be considered that interest must be paid upon the purchase-money, according to the terms of the contract, although the vendor has not performed his part of the contract, and the purchaser has been thereby exposed to damage (the damage being the difference between the interest and the annual value of the property), and then, although this is a departure from the terms of the previous con- tract, which the Court would not regard as a bar to decreeing a specific performance, yet that the Court will in this case regard it, by giving to the purchaser compensation for the loss he has sustained by the non- performance of the whole contract by the vendor." ^ "My opinion," said his Lordship, in conclusion,^ "is that the vendors being in default, the delay having been occasioned by their not performing their part of the contract, are not to exact from the purchaser the payment of interest until the time they showed a good title on their abstract : the effect of that is to postpone the day agreed on for the completion of the contract, St. Leonards thought it wrong, decision of Wigram V.C, 13 Jur. St. Leon. Vend. 521. ^^f', n,^ , r. . „.„ 2 1 Mac. & G. at p. 348. 1 1 Mac. & G. 336, reversing the => 1 Mac. & G. at p. 353. 598 OF INCIDENTAL MATTERS. Analogies ■with Lord Gotten - ham's decision. Such stipula- tions con- strued literally. until the time when the vendors put themselves right, and showed their title to be good on the abstract. The result therefore is, that until that time there would be no demand to be made by the vendors for the payment, and therefore the interest, which was to stand in the place of that payment, had not com- menced to run : it did run when they showed a good title, and not before." § 1415. The cases at Common Law, deciding that the exception in a charter-party as to pirates will not be held to exempt the owners from liability, where the ship has fallen into the hands of pirates by the master's negligence,' and that a stipulation in a bill of lading exempting the carrier from liability in respect of leakage and breakage will yet not comprise leakage and breakage caused by his negligence or that of his servants,^ seem to furnish close analogies with the decision in De Visme v. De Visme.^ It is in fact an instance of the general principle, that no man shall take advantage of his own wrong. § 1416. Still, the decision in De Visme v. De Visme was an innovation, and the principles which it applied to conditions of the kind now under consideration have not been accepted by co-ordinate authority* as sup- planting the former rule of the Court — which was and, it is conceived, now is, that such conditions are to have effect given to them according to the natural and literal meaning of their words, except only where there is bad faith, vexatious conduct, or gross negli- gence on the part of the vendor, disentitling him. m the view stipulation.^ of the Court, to the benefit of the ' Abbott's Lawof Merchant Ships and Seamen (14th ed.), 610, 629; De Bothschild Y. Boyal Mail Steam Packet Co., 7 Ex. 736; 21 L. J. Ex. 273. 2 Phillips V. Clarh, 26 L. J. 0. P. 168. 3 1 Mac. & G. 336. ^ Sherwin v. ShaJcspear, 5 De G. M. & G. 517 (varying S. 0. 17 Bear. 267); Williams v. Olenton, L. E. 1 Oh. 200 (S. C. 34 Beav. 528). Con- sider Birch Y. Podmore, St. Leon. Vend. 521, 523, and Oxenden v. Lord Falmouth, id. 523. In Bohertson v. Skelton (12 Beav. 363), Lord Lang- dale M.E. simply obeyed Lord Oot- tenham's decision in De Visme v. De Visme, vii supra. * St. Leon. Vend. 523. See, too, Herbert v. Salishury and Yeovil OF INTEREST AND RENTS. 599 Therefore delay arising from mere accident, or "Wiiat from something which the vendor could not have wuinot guarded against, or from difficulties occasioned by the exempt state of the title, is not enough to exempt the pur- chaser from the payment of interest in such cases, even though the difficulties may be such as to justify the purchaser in refusing to complete till they are removed.^ Indeed, it may fairly be said that the insertion of such a condition in a contract shows that the possibility of delay arising on the vendor's, no less than on the purchaser's, part is from the first contem- plated by both parties, and that there can therefore be no hardship on the jDurchaser in holding him, subject only to the admitted exceptions ali^eady mentioned, to the literal performance of the condition. § 1417. In accordance with the rule stated in the instances. last section, it has been held that the fact that a suffi- cient abstract is not delivered in time will not deprive the vendor of the interest which he has stipulated for : ^ so again in a case where there was a condition of the kind now under discussion, and delay arose from circumstances under which the Court's approbation (which was necessary to the sale) was to be obtained, and neither party was to blame, the vendors were held to be entitled to interest by force of the condition, although the interest greatly exceeded the amount of the rents of the land :^ and so where, there being a similar condition in the contract, it became necessary, in order to make a good title, that a suit should be instituted to procure the rectification of the power under which the vendors sold, the purchaser was held bound to pay interest from the day named for completion.^ § 1418. The condition of course applies where the Delay delay arises from an untenable objection taken on the tembie'" part of the purchaser : ^ it operates also where the objection r i- ^ or act oi God. Bailway Go., L. E. 2 Eq. 221; Sm. 481; Fic/c«-s v. BantZ, 26 Beav. infra, § 1448. 630. 1 8herwin v. Shahspear, Williams ^ Tewart v. Lawaon, 3 Sm. & Gif. V. Qlenton, vbi supra. 307. ' Rowley v. Adams, 12 Beav. 476. * Lord Palmerston v. Turner, 33 See also Coiwpev. -BateweW, 13 Beav. Beav. 524. 421 ; Dyson v. Hornby, 4 De G. & " Storry y. Walsh, 18 Beav. 559. 600 OF INCIDENTAL MATTERS. delay arises from the act of God, as the death of the vendor.^ Exemp- § 1419. Whether, where there is a condition of appropiia- this kind, a purchaser can nevertheless exempt himself tionof from the payment of interest by specially investing purchase- ,-, i t • • ,i i j.- money. the pm-chase-money, and giving the yendor notice that it has been thus appropriated to the purposes of the contract, seems to be at least doubtful.^ On prin- ciple there seems no reason why a contract by A. to pay interest to B. should be satisfied by A.'s placing the money at interest with C, and giving notice of the fact to B. In In re Rilei/ to Streatfield,^ North J. held that the purchaser's obligation to pay interest was not satisfied by having the money standing ready at his bankers, and giving notice of this fact to the vendor. In another case, however. Bacon V.C. declared that a purchaser could not, under circumstances of undue delay in consequence of the vendor's acts, be required to pay higlier interest than that allowed by the bank at which she had deposited the purchase- money.* wofui § 1420. A very common — perhaps nowadays the commonest — form of the condition relative to the payment of interest provides that it shall be paid by the purchaser "if from any cause whatever other than ivilful default on the part of the vendor'''' the com- pletion of the purchase is delayed beyond a specified date ; and the authorities as to what is wilful default within the meaning of such a condition are very numerous. " The result of the authorities," said Buckley J., in Bennett v. Stone,^ "I think is this: that by the word ' wilful ' is meant that the vendor, being a free agent and in a position to do either one 1 Bannerman v. Olarhe, 3 Drew. ^ 34 ch. D. 386. Note that in 632. this case the condition was for pay- ^ Compare Be Viame y. De Visine, ment of interest in case of delay 1 Mac. & G. 336, and Vickers v. "from any cause whatever except Hand, 26 Beav. 630, with Williams the wilful default or neglect of the V. Oleriton, L. E. 1 Oh., foot of vendors." p. 206, and Denning v. Henderson, * In re MoncMon and Oilzean, 2T 1 De G. & Sm. 689 ; 17 L. J. Oh. 8 ; Oh. D. 655. and Ln. re Golds and Norton, 33 ^ [1902] 1 Oh, at p. 232; 71 L.J. W. E. 333. Oh. 60. OP INTEREST AND EENTS. 601 of two acts, chooses to do the one and not to do the other ; and that ' default ' includes the case where the vendor, owing to the purchaser the duty to act reason- ably in all matters relating to completion, does an act in breach of that duty. The vendor owes to the purchaser, among other things, the duty of acquaint- ing himself with all the material facts ; and it will be a breach of his duty if, knowing the facts, he elects to do an act which is not reasonable, or if he neglects to acquaint himself with the facts, and consequently does an act which is not reasonable. It is not neces- sary to show intentional delay or wilful obstruction ; but it is necessary to show that the vendor has com- mitted an act of default. This is not satisfied by showing that by mistake or oversight he has done something which he ought not, or has omitted to do something which he ought, to have done." His Lord- ship went on to illustrate the foregoing propositions by referring to the following cases, in the first three of which the vendor was, while in the last three he was not, held to have been guilty of wilfid default. There was wilful default in Re Young and HarstorCs Contract,'^ where the vendor went abroad two davs before the date fixed for completion, Avitli the result that he could not execute the conveyance because he was not there to execute it ; in Re Hetling and Mer- ton!s Contract^ where the vendor, knowing that he had to complete, relied upon a power of attorney, which was insufficient to enable another person to sign his name for him ; and in Re Wilsons and Stevens'' Contract,^ where the vendor did not obtain admittances to certain copyholds, so as to be in a position to complete at the specified date. There was no wilful default in Re London Corporation and Tuhhs' Contract,*- where the vendor erroneously described his title to a portion of the property ; in Re Woods and Lewii Contract^ a case of an unknown defect of title ; or in North v. Percival,^ 1 31 Ch. D. 168. '^ [1894] 3 Oh. 546. » [1893] 3 Oh. 269; foUowed Re ^ [1894] 2 Oh. 524. Earl of Strafford and Maples, [1896] * [1898] 1 Ch. 433; [1898] 2 Oh. 1 Ch. 235. See, too, Re Felly and 211. JacoFs Contract, 80 L. T. 45. " [1898] 2 Oh. 128. 602 OF INCIDENTAL MATTERS. Condition as to in- terest de- pendent on condi- tion as to abstract. Interest, on what amount payable. Interest on deposit. Bate. Burnell v. Brown. where, the question being whether the contract in- cluded 36 or d2 acres, the vendor unsuccessfully resisted the purchaser's claim to specific performance. What has to be looked to in such cases is not neces- sarily solely, was there wilful default, but was the wilful default the causa causans of the delay.^ § 1421. The Court will construe a condition fixing the time from which interest is to run in connection Avith another fixing the time for the delivery of the abstract : so that where there is a condition that the abstract shall be delivered by a certain day, and interest shall begin to run from another and subse- quent day, and a joerfect abstract is in fact not delivered till after the time fixed for that purpose, interest will not run from the day specified in that behalf, but from a day so long after the actual delivery of a perfect abstract, as the day stipulated for the commencement of interest was after the day stipulated for the delivery of the abstract.^ § 1422. The amount on which the purchaser pays interest is the purchase-money less the deposit : and this applies even where the action may have been made necessary by the purchaser's conduct.^ § 1423. The vendor is not, it seems, generally liable to pay interest on the deposit, if the contract proceed.* § 1424. The rate of interest usually allowed is 4 per cent.^ But this, of course, may be varied by contract.^ In one case interest at the rate of 5 per cent, was given, where the circumstances did not justify the delay in paying the money, the then Lord Chief Baron (sitting for Plumer M.R.) observing, "that he had always been of opinion, that a party withholding money from a person entitled to it, ought to pay to the person thus injured the interest which he might 1 Bennett v. Stone, [1902] 1 Oil. at p. 236; 71 L. J. Cli. 60. - Sherunn v. Shakspear , 5 De G. M. & Gr. 517, particularly p. 536. ' Bridges v. Eohinson, 3 Mer. 694. * St. Leon. Vend. 524. * Vulcraft V. Roehuch, 1 Ves. Jun. 221. " E.g., Firth v. Midland Bailwaij Co., L. E. 20 Eq. 100, 114. OF INTEEEST AND RENTS. 603 have made of it, if it had been paid before." ^ But this does not appear to be the rule of the Court.^ § 1425. The fact that a purchaser has been ^™^' making profit by his money Avhilst it is at his risk, ^,^chaser. and he is liable to interest, is no ground for increasing the rate of interest payable to the vendor.^ § 1426. Whenever a purchaser has to pay interest iBcome to the vendor, he is entitled, on making the payment, *^^' to deduct the income tax on the amount of the interest.* § 1427. '^l^'he vendor in receipt of tenants' rents is What generally charged only with the rents he has received, vendor is but he may, under certain circumstances, be charged charged with those which without his wilful neglect or default he might have received.'^ § 1428. In a case before Plumer M.R. the vendor Vendor was so charged, where the circumstances which justified on'fcfoting this chai'ge appear to have been the facts that the of wiUui rents had been allowed to run in arrear, and that it was through the vendor's fault that the purchaser was not able safely to take possession.*^ But in a case where the vendor was similarly charged by . Lord Romilly M.R., the judgment was reversed, on appeal, by Knight Bruce and Turner L. JJ., who decided that, in the absence of special circumstances, the vendor will not be charged with the rents which he might have received without wilful default, and that he will not be subjected to any inquiry unless there be evidence that he has in some way acted otherwise than a prudent owner would have done.'' § 1429. The vendor in possession is therefore not. Vendor' as has sometimes been said, in the position of a bailiff "0° pur-^^ chaser. 1 Burnell v. Brown, 1 J. & W. at Phillips v. Silvester, L. E. 8 Oh. 173 ; p. 175. ifaZonev. -HerasAaio, 29L.E. Ir. 352; 2 St. Leon. Vend. 528. Seton (Gtli ed.), 2247. 3 Acland T. Gaisford, 2 Mad. 28. ' ^'^""^ ^- «<'J^''«™. 1 J- & W. 36. ^ See per Mahns V.O. m Crane v. , ^,;,^„„ .,^ ^_ Shakspear, 17 Beay. Kilpin, L. E. 6 Eq. at p. 335. See, 267 ; S. C. 5 De G. M. & G. 517. too, Bebh V. Bunny, 1 K. & J. 216, g^^ ^^^^ ^^^^^„ ^_ ^^^^^^_ 2 My. & cited infra, § 1473. ^r. 478, and compare St. Leon. 5 Acland v. Gaisford, 2 Mad. 28 ; . Vend. 519. gomgs. 604 OF INCIDENTAL MATTERS. at Common Law to the purchaser ; for such a bailiff is answerable not only for his actual receipts, but for what he might have made of the lands without his wilful default/ Out- g 1430. Inasmuch as the outgoings of an estate virtually represent the (or part of the) difference between the gross and the net rents, and may accord- ingly be regarded as included in the former, the liability to discharge them is, it is conceived, in the absence of stipulation, incident to and conterminous with the right to receive the rents. In a case where the conditions of sale of leaseholds stipulated that all outgoings up to the day of completion should be cleared by the vendors, it was held that an apjDortioned part, from the quarter-day last preceding to the day for completion, of the current ground-rent was an outgoing within the meaning of the condition, and must be paid or allowed to the purchaser by the vendors.^ Deterio- § 1431. If, after the contract, and before the pur- ^°^^ chaser takes, or ought to take, possession, any de- borneby tcrioration take place by the conduct of the vendor ven or. ^^ j^^^ tenants, he will be accountable for it to the purchaser.'^ " He is not entitled to treat the estate as his own. If he wilfully damages or injures it, he is liable to the purchaser ; and more than that, he is liable if he does not take reasonable care of it."'* And this liability may be enforced by action, even after a con- veyance made in ignorance of the facts.® Fergusons. g 1432. Whcro a purchasor had paid his money into Court under an order, and was held entitled to compensation for deterioration, which had taken place ' Co. Litt. 172, a; Wheeler v. Ta j.i. •«> t. \ • ,-,■, ■ -D (■(■r^ Esher (then Brett M.E.) m Slanner V. Gity of London, &c. Corporation, * Poole Y. Middleton, 29 Beav. 14 Q. B. D. at p. 887. tration. OF CONTRACTS FOR THE SALE OF SHARES. 639 § 1525. It is settled, and indeed could hardly be Transfer doubted, that when through the fault or default of the sented ' defendant the transfer had not been presented for ^'7°^/°. registration, and then a winding up had intervened, defen- and there was no evidence to show that, if the transfer '^^'^*- had been duly presented by the defendant, he would not have been accepted as transferee, the objection based on the refusal to transfer must fail.^ § 1536. The winding up of the company has in The wind- many of these cases been urged as an objection to the ihfcmn-* relief sought : here we must distinguish between cases pany. in which the presentation of a petition was before and those in which it was after the making of the contract. § 1537. (i-) Where the petition has first been pre- i. Petition sented, then the contract has been made by both tefore*^*^ parties in ignorance of that fact, and then the petition contract. has resulted in a winding up, there has been common mistake or common ignorance : and in such a case it appears that the Court could not compel the specific performance of the contract.^ § 1538. (ii.) But where the petition has been pre- ii. Petition sented after the making of the contract the defence after co'if- does not appear admissible : for the general rule, that tract. the destruction or failure of the subject-matter of a contract after it is entered into is no defence, must prevail,® and if the contract cannot be performed modo et forma, the Court can still give relief by way of indemnity.* § 1539. The point has been urged in various The de- forms. It has been said that the substitution of the theTatter one name for the other on the register of the company caseun- is part of the contract, and that by the winding up of the company this has become impossible : and further, as regard companies under the Companies Act, 1862, that the effect of the 131st and 153rd sections of that ' Evans v. Wood, L. E. 5 Bq. 9 ; 149 ; Taylor v. Stray, 2 0. B. N. S. Paine y. Hutchinson, L. E. 3 Ch. ^'^• „gg * Cruse V. Paine, L. E. 6 Eq. 641, 653. Bermingliam v. Sheridan, 33 ^ Emmerson^s case, L. E. 1 Cli. ^^^^^ ggg^ probably cannot be 433. supported. DistinguisL. Holmes v. 3 Coles V. Bristowe, L. E. 6 Eq. Szjmons, L. E. 13 Eq. 66. 640 OP SOME CONTRACTS IN PAETICULAE. Act is to render transfers after the commencement of the winding up absolutely illegal and mere waste paper.^ But neither of these arguments seems valid. As to the first, it may be replied that, unless by special contract, the vendor is not bound to procure the regis- tration, but that duty rests on the purchaser,^ and that in cases of contracts on the Stock Exchange the regis- tration of the transfer is no part of the bargain : as to the second point, it is clear that the effect of the statute is not to make the transfer illegal or void, but to give a discretion to the liquidator, or the Court, or allow them to operate or not to operate as transfers.^ In short, the question who is on the register is one between the company and the shareholder; the question who is to bear the calls and take the profits is one between the buyer and seller, with which the company is not concerned.* ' Chapman v. Shepherd and White- case, L. E. 1 Ch. 433 ; Sheppard v. head v. Izod, L. E. 2 0. P. 228; Murphy,!. E. 2 Eq. 544; 16W.E. Sheppard v. Murphy, I. E. 2 Eq. „,„ 544 ; 16 W. E. 948. » See supra, § 1524. " ^®® P'"' ^"""^ EomiUy M.E. in ^ OhapmanY. ShepherdanAWhite- HodgUnson v. Kelly,!,. E. 6 Eq. head v. Izod, uhi supra; Emmerson^s 496. 641 CHAPTER II. OF CONTEACTS RELATING TO CONTINGENT INTERESTS AND EXPECTANCIES. § 1530. At Common Law it has been laid down Suctcou- that the possibility of succession is not an object of at'^com-"^'^ disposition, and that if the heir were to dispose of the moa Law. succession during the life of the ancestor, such dis- position would be void, though the inheritance should afterwards have devolved on him.-' However, in a case before the Queen's Bench, the Court supported as valid a contract to sell an estate if it should be devised to the vendor by a person then living.^ § 1531. In Courts of Equity contracts relating to Secus in expectancies have been long upheld,^ and that although ^i*"*?- they may in some sort seem to have defeated the intentions of testators, or been in fraud of ^^arental authority. § 1533. One of the earliest cases on the subject is instances. Wiseman v. Roper,* where a covenant to settle an estate, to which the covenantor had only an expectancy as heir, was after the descent of the lands specifically enforced against him. ^ 1533. In Beckleii v. Ncwland,^ the plaintiff and ^"cideyY. ^ Per Lord Kenyon M.E. in Jismfs Carleton v. Leigldon (3 Mer. at V. Roe, 3 T. E. 93. The Eoman Law p. 671), that the expectancy of an likewise prohibited such contracts. heir could not be made the subject Pothier, Tr. des ObUg. Part I. of contract, seems an error of the chap. 1, sect. 4, § 2. reporter. Apparently the word 2 Cooh V. Field, 15 Q. B. 460. contract is written for conveyance. 3 Cf. Alexander v. Dulte of Wd- 4 ^ -g -^^ qj^_ -^^^^ lington, 2 E. & My. 35. The state- ment attributed to Lord Eldon in = 2 P. Wms. 182. V T T 642 OF SOME CONTRACTS IN PAETICULAK. the defendant had married two sisters, who were the presumptive heiresses of Mr. Turgis, a very rich man, who had made and revoked several wills, and ultimately made one leaving a great estate to the defendant, and only a small one to the plaintiff. Previously to the execution of the will, the plaintiff and the defendant had entered into a contract for the equal division between them of what should be left to each of them ; and this contract was upheld and specifically enforced by Lord Macclesfield, who said that the contract was " not disappointing the intent of the testator, for he did not design to put it out of either of the devisees' power to dispose of the estate after it should come to him ; but, on the contrary, when the testator gave it to either of them, he by implication gave that person a power to dispose of the said estate when it should come to him." The same principle was pursued by his Lordship in another like case,^ and was followed by Lord Hardwicke, in upholding the validity of the conveyance of a contingency or possibility on the death of a sister unmarried.^ Sm-wood g 1534. In Harwood v. Toohe,^ the plaintiff and the defendant, the celebrated John Home Tooke, had made a parol contract to divide what should come to them from a testator : in satisfaction of this the plaintiff had given to the defendant Tooke a note for 4,000/., which he had indorsed over to the other defendant, Sir Francis Burdett, for valuable considera- tion. All that Lord Eldon ultimately decided in the case may have been that the plaintiff had no equity to follow the note into the hands of this purchaser for value ; and it appears from one of the reports .that he expressed doubts whether the transaction between the plaintiff and the defendant Tooke was not a fraud on the testator, and whether the Court would at any rate assist in specifically performing such a contract. But the case has usually been treated as an authority for the validity of contracts relating to expectancies.* 1 Hohson V. Trevor, 2 P. Wms. ^ 2 Sim. 192, from Mr. Haddock's 191. MS. n. ; 1 My. & K. 685. » Wright v. Wright, 1 Ves. Sen. * See per Shadwell V.O. in 409. Wethered t. Wethered, 2 Sim. 191 : CONTRACTS AS TO EXPECTANCIES, 643 § 1535. In anotlier case the contract seemed, at ^°°'^'^^°* first sight, in fraud of the parental authority, but was tJdr^ide upheld on a like ground to that taken by Lord Mac- ^{""^t*^^^ clesfield. A contract had been entered into by two receive sons to divide equally between them whatever they father?'^''^ might receive from their father in his lifetime or after his decease, by will or otherwise. It was very strongly argued that this was a scheme on the part of the sons to protect themselves from the consequences of mis- conduct, and to bid defiance to parental authority. But Shadwell V.C. held that, as the testator had the power of giving an estate to his sons, so that they should have only the personal enjoyment without power of alienation, and did not choose so to give it, but gave it absolutely, he had allowed it to become liable to all their antecedent contracts, and therefore to the contract in question of which specific perform- ance was accordingly granted.' § 1536. Similar in principle is the case of Lyde v. Covenant Mynn,^ where a husband granted an annuity for his annuity^ life, and by way of further security covenanted to o^ ex- charge it on all the property he should, in the event of ^^'^ '^°''^' his wife's decease, become entitled to by her will or otherwise ; and it was held that no objection could be taken on the ground of its relating to a mere expect- ancy ; and the Court accordingly specifically performed the covenant. And so, again, contracts respecting the costs of proceedings in lunacy, or the ultimate division of a lunatic's property, are not void.^ § 1537. In a case decided hj Denman J., a hus- Flowers. band and his wife had assigned to one of the plaintiffs "^^'"' (who was held by the Judge to be a trustee for the other plaintiffs) all the interest to which the wife or the husband might become entitled under the will of C. (who had at the time, to the wife's knowledge, made his will leaving his residuary estate to her for her separate use), to secure 4,000/. borrowed by the Hyde Y.White, 5 Siva.. o24:; andjier 5 Sim. 524; Houghton v. Lees, 1 Lord Brougham in Z?/cZe V. i%nra, J^^- N. S. 862; 3 W. E. 135 1 My. & K. 693. (Stuart V.O.). '^ 1 My. & K 683. 1 Welhered v. Wethered, 2 Sim. 3 Pe^sse v. Persse, 1 01. & Fin. 183. See accordingly Syrfe V. PFMe, 279. T T 2 644 OF SOME CONTEACTS m VXRTICVLSR. Circum- stancea under ■whicli such con- tracts not enforce- able. Whether such con- tracts only- personal. husband for the payment of his debts : and' C. had died without altering his will. It was held that the wife had power to charge, and had by the contract effectually charged, her expectancy.' § 1538. The circumstances attending such con- tracts as those now under discussion are oftentimes of such a kind as to prevent the Court fi'om enforcing them. Such were the circumstances in Morse v. Faulkner^ in the Exchequer, and in the more recent case of Bi/an v. Daniel.^ In the latter case each of two young officers in the army signed and gave to the other a document, by which each charged his estate with 1,000^. in favour of the other, in case the other should survive him, the consideration of each of these documents being the otlier of them : many years sub- sequently a correspondence passed between these officers with a view to a rescission of the transaction, but that intention was never carried into effect. The Court held that, looking at the circumstances of the transac- tion, the age and condition of the parties, and their subsequent corresjoondence, there was no equitable claim which the Court would enforce, but it retained the bill for twelve months, with libertv to brins: an action to establish, if the plaintiff could, a legal debt. § 1539. It has been judicially suggested that con- tracts made by a person before the devolution of the estate or other realization of his expectancy are purely personal, and only capable of being enforced against the contractor personally during his lifetime. In Morse v. Faulkner,'^ in 1792, Eyre C.B. speaking of such a case, said, " The surrenderor not having any title whatever to the p>remises, at the time of the surrender, his agreement would not raise a lien upon the land ; and although the present plaintiffs might have been relieved if they had filed their bill against him in his lifetime, that is after his title had accrued, yet it does not follow that therefore they can be relieved against his heirs. Neither the land itself or the conscience of the present defendants is bound by this act of William the surrenderor." It is however believed that this view has not received any subsequent confii-mation. : • ' Flower v. BuUer, 15 Cli. D, 665. 2 3 8w. 429, n. 3 1 T, & C. 0. 0. 60. * 3 Sw. 429, n. 1 Anstr. 11. sliortly reported, _ 645 CHAPTER III. OF CONTEACTS FOE PAETNEESHIP. § 1540. As a general rule, the Court will not Sach con- enforce specific performance of a contract to form and ge'^ntraUy carry on a partnership.' And notwithstanding some ^^^ en- early authorities more or less to the contrary,^ it is p^rtneV- clear that the Court would in no case compel perform- ship at ance of a contract to enter into a partnership not for a ^ '" definite term : ^ for it might be dissolved as soon as entered ujjon, and the interference of the Court would thus become simply nugator}^. § 1541. Where however tlie contract defines the Where term of the partnership, and there has been part per- fii^and formance of the contract, the Court may specifically partper- execute it by decreeing the parties to execute a proper deed, and, if necessary, by restraining any partner from carrying on business under the partnership style with other joersons, and from publishing notices of dissolution.' § 1642. Whether the Court would specifically en- Contract force a contract not in terms to enter into a partner- partner^ ^ ship deed. ^ Scott V. Rai/merd, L. E. 7 Eq. hert, Collycr, Partn. 133. 112; Sichd v. Mosenthal, 30 Beav. „w, 1 rp or oir> ^ liercii V. Birch, 9 Yes. 357; 371; and see supra, §§ 95, 843. ,, c- i y n n it, ■ Of. Lisle V. Reeve, [1902] 1 Ch. 53, SheffleJd Gas Consumers Co. [Regis- Hn / , J. i_ o tered) v. Harrison, 1/ Beav. 294; 72 (aM-eement for puronase ot an ' , , ^^ ' . ,^ „ ... . . , , ,. , per lundersley V.C. m iveiu isrMjis- opt on to enter into partnership), .,.„,, ■, . -r, cf 1 n^nm A A ../.1 u!icl\ V-7 at p. 698. Reeve v. Lisle. ' See per Lord Hardwioke in * England v. Curling, 8 Beav. Buxton Y. Lister, 3 Att. a.t -p. 385 ; 129; Hibbert r. Uihbert, Collyev, Anon., 2 Ves. Sen. 629; Anon., 1 Partn. 133. Of. the pleadings in Mad. Ch. 525, n. ; Flibiert v. Hib- Bluch v. Cajpstich, 12 Ch. D. 863. 646 OF SOME CONTEACTS IN PAKTICULA.E. ship, but to execute a deed of partnership to contain terms defined or ascertainable, has never, it is believed, been decided. The argument that such a judgment should be pronounced in order to give the plaintiffs legal rights, seems of much less weight now that the Courts of Common Law and Equity are united. Where § 1543. Contracts for partnership may in some megaT cases be illegal, as amounting to sales of office, as con- travening the laws regulating trade, or otherwise.^ It is hardly necessary to observe that the Court will not in any way interfere for the benefit of parties claiming under such contracts, or in favour of contracts for partnership tainted with fraud, hardship, or improper conduct.^ Perform- Again, whero the contract had reference to the enforce^-' manufacture and sale of a patent medicine, Lord able. Eldon considered that the Court could not decree specific performance, because, if the recipe were a secret, the Court had no means of enforcing its own orders.* EeUef § 1544. There are of course a great many cases* nersMp' in which Courts of Equity give specific relief on part- articles, nership articles : but these are not cases of specific performance of executory contracts. Sale of g 1545. It may here be noticed that a contract for partner- the salo and purchase of a share in a partnership may '^P- be specifically enforced ; and in such a case the deed of assignment will contain an express covenant by the purchaser to indemnify the vendor against the lia- bilities of the business.^ ^ See Hughes v. Statham, 4 B. & See also Linyen v. Simpson, 1 S. & 0. 187; Knowles v. HaugUon, 11 S. 600. "Ves. 168. * E.g., Homfray v. Fothergill, 2 Vivers v. Tuck, 1 Moo. P. C. L. E. 1 Eq. 567. As to equitable (N. S.)516; Maxwell \. Port Ten- relief in. the event of partners nant, &c. Coal Co., 24 Beav. 495. refusing to admit a. person duly 2 Newhery v. James, 2 Mer. 446. nominated as a partner, see Byrne See also, as to secret medicines, v. Reid, [1902] 2 Ch. 735, 743; 51 Williams v. Williams, 3 Mer. 157 ; W. E. 52. Oreen v. Folgham, 1 S. & S. 398 ; * Dodson v. Downey [1901] 2 Oh. Tovatt V. Winyard, 1 J. & W. 394. 620, 623. 647 CHAPTER IV. OF CONTRACTS FOR THE SALE OF SHIPS. § 1546. Contracts for the sale of ships/ or of Present shares in ships, have long been affected by legislation, le^siation The present position of legislation is shortly this. By °^ the the Merchant Shipping Act, 1894 (57 & 58 Vict. c. Merchant 60), it is enacted (s. 24) that a registered ship, or a f'^^^ig^^ share therein (when disposed of to a person qualified ss. 2i— 26'. to own a British ship) shall be transferred by bill of sale, containing such descrijotion of the ship as is con- tained in the surveyor's certificate, or some other description sufficient to identify the ship to the satis- faction of the registrar, and which shall be in a form given by the statute, or as near thereto as circum- stances permit, and executed by the transferor before and attested by a witness or witnesses : the transferee is not entitled to be registered as owner until he, or, in the case of a corporation, the person authorized by the statute to make declarations on behalf of the corpora- tion, has made a certain declaration (s. 25) : and (s. 26) every bill of sale with the required declaration is to be produced to the registrar, who is to enter the name of the transferee as owner in the register book.^ § 1547. By the 57th section of the same Act of Merchant 189i it is declared to be the intention of that Act that, f^^^M, without prejudice to the provisions of that Act for s. 57. ' It may he mentioned that in tration of a bill of sale, whicli is in Claringhould v. Ourtis (21 L. J. Ch. fact invalid, gives no title to the , , , , , , , ,, ■■ person thereby registered. Orr v. 541) a contract to sell a barge was „. , . _ / , ^ ^r , , ' Dicianson, Johns. 1; ci. Holderness specificaUy enforced. ^_ Lamport, 9 W. E. 327 ; 30 L. J. 2 It has been held that the regis- Ch. 489. 648 OF SOME CONTRACTS IN PARTICULAR. Persons qualified to be owners of British ships. Result of the legis- lation. History of the legis- lation. The Act 26 Geo. III. c. 60. preventing notice of trusts from being entered in the register book or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by that Act on registered owners and mortg'agees, and without prejudice to the pro- visions of that Act relating to the exclusion of un- qualitied persons from the ownership of British ships, interests arising under contract or other equitable interests may be enforced by or against owners and mortgagees of ships in respect of their interest therein, in the same manner as in respect of any other personal property.^ § 1548. The definition of persons qualified to be owners of British ships is to be found in the 1st section of the Merchant Shipping Act, 1894. § 1549. The result of this legislation appears to be clear : that any person qualified to be the owner of a British ship may sue on any contract for the sale of a ship or share in a ship, and that on obtaining judg- ment he will be entitled to be registered : but that, pending entry of his name as owner on the register, no notice of his equity can appear on the register, or be noticed by the registrar : that the registered owner or mortgagee can make a good transfer and give good receipts to purchasers for value without notice of the equity under the contract : and lastly, as regards un- qualified persons, that they cannot maintain an action for the sale of a, ship or share in a ship to them. § 1550. It may be convenient very briefly to advert to the history of the legislation on this topic.^ The Act 26 Geo. ill. c. 60 required (section 17) the bill of sale on every transfer to recite the certificate of registry, and declared that otherwise such bill of sale should be utterly null and void. The Act being silent as to contracts, doubts arose which were ended by the Act 34 Geo. III. c. 68, which (sect. 14) made void both at Law and in Equity all contracts unless made in the manner prescribed by the former Act. Under ' See Stapleton v. Ilaymeit, 12 W. E. 317 ; Hughes v. Sutherland, 7 Q. B. D. 160; also Blach v. Wil- liams, [1895] 1 Ch. 408. * See Liverpool Borough Bank y. Turner, IJ. & H. at p. 166. OP CONTRACTS FOK THE SALE OF SHIPS. 649 these Acts a contract for the sale of a ship not reciting the certificate, but having a copy of the certificate annexed, was yoid.^ § 1551. These Acts were repealed : and the enact- The Act ment which then came into force was 4 Geo. IV. c. 41, l^^i°^^29'. which provided (sect. 29) that when and so often as Enact- the property in any ship, or any part thereof, belonging "^^'^^^ to any of His Majesty's subjects, should, after registry of trans- thereof, be sold to any other or others of His Majesty's *^''' subjects, the same should be ti'ansferred by bill of sale or other instrument in writing, containing a recital of the certificate of registry of such ship or vessel, or the principal contents thereof, otherwise such transfer should not be valid or effectual for any purpose what- ever, either in Law or in Equity : to which was added a proviso limiting the effect of an error in such recital. § 1553. This clause, which departed from the Re- language of the older statutes, was re-enacted by the by^sub- 6 Geo. IV. c. 110, s. 31, the 3 & 4 Will. IV. c. 55, s. 31, ^^qu^^^t and the 8 & 9 Vict. c. 89, s. 34 : and the 37th section of the last-mentioned Act further provided that no bill of sale or otiier instrument in writing should be valid or effectual to pass the property in any ship, or in any share thereof, or for any other purpose, until the same was entered on the register. § 1553. The change of language gave rise to a Contracts question : but it was determined, under the last cited ^y^non- Act, that executory contracts to transfer not com- compii- plying with the terms of the Act were avoided by them.^ § 1554. Their came the Merchant Shipping Act, The 1854 (17 & 18 Vict. c. 104), which omitted all express ^^'''V^* reference to executory contracts, and omitted also any Act^Tss^. such words as are contained in the 37th section of the previous statute (8 & 9 Vict. c. 39) ; and thereupon the question arose whether executory interests might be enforced under contracts not complying with the for- malities of the Act ; and this question was determined, 1 Brewster v. Clarke, 2 Mer. 75. mont v. Ranlein, 2 De G. M. & G. 403, 418; Coombes v. Mansfield, 3 ^ Hughes v. Morris, 2 De G. M. j^^^^_ jgg. ^,„j,„,j ^_ Tindall, 13 & G. 349; S. 0. 9 Ha. 636; McGcd- 0. B. 258. 650 OF SOME CONTRACTS IN PAETICULAE. Tie Amend- inent Act of 1862. The Merchant Shipping Act, 1894. Contracts as to money accruing from sale of ship. Foreign as to an equitable mortgage, in the negative.^ It was, however, decided (in the year 1881) that an executory contract to transfer a ship to a purchaser need not be registered, and might be enforced by the registered owner notwithstanding the non-registration.^ The Act of 1854 was amended by the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), which permitted the enforcement, under certain conditions, of equities, clearly including the equity resulting from a contract for sale not satisfying the statutory requisites for the legal transfer. § 1555. In the year 1894 the above-mentioned Acts of 1854 and 1862 were repealed, but in substance re- enacted, by the Merchant Shipping Act, 1 894, which is intituled "An Act to consolidate enactments relating to Merchant Shipping." § 1556. Independently of the Act of ] 862, it was determined that the Merchant Shipping Acts did not apply to a contract relative to the produce of the sale of a ship. A. was the registered owner of certain shares for his father's representatives : he was captain of the ship, and entered into a contract with his father's administrators that he should navigate the ship for twelve months and account for the profits, and at the end of the twelve months sell the shares and account for their proceeds. He sold the ship : and on bill filed to enforce the contract, the objection from the Merchant Shipping Acts was overruled.* This case seems to have been thought by other Judges open to doubt.* § 1557. It is needless to remark that foreign ships are entirely outside the observations hitherto made. As regards contracts for the sale of such ships, or shares in them, the case of Hart v. Henvig^ may use- fully be consulted. ' Licerpool Borough Bank v. Tur- ner, 1 J. & H. 159; 2 De G. F. & J. 502. See also Chapman v. Cullis, 9 0. B. N. S. 769. ^ Battliyany v. Bouch, 50 L. J. Q. B. 421 ; 44 L. T. 177. ^ Armstrong v. Armstrong, 21 Beav. 71, 78. * Parr v. Appkhee, 7 De G. M. & G. 585 ; Ooombes v. Mansfield, 3 Drew. 193. ■> L. E. 8 Ch. 860 ; and see obser- vations on this case, supra, § 130. 651 CHAPTER V. OF CONTRACTS BY MAEEIED WOMEN. § 1558. By the common law of England a married Common law in- capacity. woman has no capacity to bind herself by contract. i^"^i°- This was first modified by certain doctrines of Equity and has been fm-ther modified by statute law. § 1559. A married woman may now create a con- Present tractual obligation in the following ways : — the*iaw (1.) By contract relating to her realty under the Act for the abolition of Fines and Re- coveries. (2.) By means of the exercise of a power. (3.) By compromise of an actual suit pending between her husband and herself. (4.) By contract under the Married Women's Property Acts, 1882 and 1893. But with these exceptions she is still — with one other doubtful exception^ — incapable of binding herself by contract. Such is, it is believed, the present position of the law. § 1660. (i.) As regards the real estate of a married As to real woman not settled to her separate use or subject to her *^ ®' power she may, under the Act for the abolition of Fines and Recoveries, not only dispose of the land but con- tract respecting it, if not so as to render herself liable to damages, yet so as to bind her estate of inheritance.^ This is the only power of control or alienation which 1 See infra, §§ 1562, 1570. particularly 212, 219, overruling 2 3 & 4 Will. IV. c. 74. See Toler S.C. 2 K & J. 194; and cf. Pride V. Slater, L. E. 3 Q. B. 42 ; Crofts v. Bull, L. E. 7 Ch. 64, 70; Carter V. Middleton, 8 De G. M. & G. 192, y. Carter, [1896] 1 Ch. 62, 68. 652 OF SOME CONTRACTS IN PARTICULAR. Contract under power inform- ally exer- cised. Com- promise of suits between husband and wife. a married woman possesses over such real estate.^ We are not here concerned with questions arising from the fraud or election of a married woman : but it is certain that the compromise of a matrimonial suit between herself and her husband will not enable her to bind her realty not settled to her separate use.^ § 1561. (ii.) As regards the exercise of a power, if a married woman have a power to be exercised subject to certain formalities required for her pro- tection, and she affect to contract by an exercise of the power, but without these formalities, there will be no judgment against her ; for, except under these formalities, she has no power to contract, and the paper signed by her is void.^ But where the formalities omitted are immaterial for the protection of the married woman, her estate may be bound by the exercise of the power, and the contract constituted by such exercise may be specifically enforced/ § 1562. (iii.) As regards agreements to compro- mise matrimonial suits between husband and wife, Lord Hatherley, when a Vice Chancellor, in more than one case intimated his opinion that the power of a wife to contract with her husband is not confined to her sepai-ate property, but that " under any circumstances, when the wife is put in such a position that she can be regarded for the purposes of the contract as 'a. feme solej'^ she may so contract.^ The learned Judge considered that the case of Batemany. Countess ofEoss,^ supports this proposition. The last-mentioned case is not very fully reported. In the case oi Besant y. Wood,'' Jessel M.R. adopted the same view, holding that a married woman 1 Cahm r. Cahill, 8 App. Cas, 420, 428. 2 Ibid. ; Williams v. Walker, 9 Q. B. D. 576 ; and cf. Nicholl v. Jones, L. E. 3 Eq. 696. 3 Martiit V. MitchtU, 2 J. & W. 413, 434. * Hopkins v. Myall, 2 E. & M. 86 ; Dowell v. Dew, 1 T. & 0. C. 0. 345 ; Thackwell v. Gardiner, 5 De G. & Sm. 58 ; Phillips v. Edwards, 33 Beav. 440. " Vansiitart v. Vansittart, 4 K. & J. 62, 70 (S. 0. on appeal, 2 De G. & J. 249) ; Nicholl v. Jones, L. E. 3 Eq. 696 ; Gibhs v. Harding, L. E. 5 Ch. 336; affirming S. 0. L. E. 8 Eq. 490. " 1 Dow, 235. ' L.E. 12C11.D.622; ct. Marshall V. Marshall, 5 P. D. 19 ; Aldridge V. Aldridge, 13 P. D. 210; Smith y. Lucas, 18 Ch. D. 531. OF CONTRACTS BY MARRIED WOMEN. 653 must take as incident to her undoubted riglit to sue (whether by next friend or even alone) for divorce or restitution of conjugal rights, the right to contract, «.e., to compromise her suit ; that as a necessary corollary to the right to sue, she must have the right to contract not to sue ; and that, therefore, she can enter into a valid and enforceable contract to live separate and apart from her husband. Notwithstanding the case of Cahill V. Cahill,'^ in the House of Lords, which seemed to make it doubtful whether the latter case is right, and whether the competency of the wife to contract with her husband must not be confined to the cases of actual suits between them, the Court of Appeal sub- sequently accepted the doctrine of Besunt v. Wood, and applied it to a case in which a husband and wife were in litigation only by means of cross-summonses for assault ; Lord Justice Lindley observing that the wife's capacity appeared to extend to all proceedings which husband and wife are by law capable of taking against each other.^ § 1563. (iv.) By the Married Women's Property Married Act, 1882 (amended by the Married Women's Property ^o^/rty Act, 1893), a new contractual power was conferred on Act, 1882. married women. The following are the relevant provisions of the Act of 1882 : — ''A married woman shall be capable of entering Sect.i, into and rendering herself liable in respect of and ^^^-^- '^■ to the extent of her separate propei-ty on any con- tract, and of suing and being sued, either in contract or in tort or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintifp or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in. any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or jDroceeding shall be ,^8 App. Cas. 420, and partiou- See also j^er Bowen L. J. in Clark y. larly pp. 428—432. See BuUer v. Clark, 10 P. D. 195. JBuller, 14 Q. B. I). 831, and in " McGregor y. ilcGregor, 21 Q.B. 0. A. 16 Q. B. D. 374, -where this D. 424 {Cahill v. Cahill does not class of cases was much considered, appear to have been cited). 654: OF SOME CONTRACTS IN PAETICULAK. payable out of her separate property, and not other* wise." Sect. 18. '< A married woman who is an executrix or adminis- tratrix alone or jointly with any other person or persons of the estate of any deceased person, or a trustee alone or jointly as aforesaid, of property subject to any trust, may sue or be sued^ without her husband, as if she were a, feme sole.'''' Sect. 19. "Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any re- striction against anticipation at present attached or to be hereafter attached to the enjoyment of any pro- perty or income by a woman under any settlement, agreement for a settlement, will, or other instrument ; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts con- tracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors." Sect. 23. Section 23 of the Act places the legal personal repre- sentative of a wife in her place in respect of her sepa- rate estate as to rights and liabilities. Married § 1564. By the Married Women's Property Act, Propert/ 1893, sub-sections 3 and 4 of the first section of the Act, 1893. Act of 1882 — which sub-sections related to the effect ' Sc. in respect of tlie trust pro- it, in pursuance of tlie trustees' perty, whatever tlie nature of that contract for sale, to the purchaser, property may be. {Be Harhness and except with the concurrence of her Alhopp'a Contract, [1896] 2 Ch. at husband, and by a deed acknow- p. 363.) It was held in the last- t j j i, ■■ -i^- i- -it, ^ ,. ' ^ ... ledged by her. Distmguish Be mentioned case that a woman, married in the year 1889, who was ^"'""^"^ "-"^ FremlMe Contract, one of three trustees for sale of real [1898] 1 Oh. 647, where the married estate, could not effectually convey woman was a mortgagee. OF CONTRACTS BY MARRIED "WOMEN. 655 of contracts entered into by married women — were repealed, and replaced by the following enactment : — " Every contract hereafter entered into by a married Sect. i. woman, otherwise than as an agent, " (a) Shall be deemed to be a contract entered into by her with respect to and to bind her separate pro- perty, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract ; " (b) Shall bind all separate property whicli she ma}?- at that time or thereafter be entitled to ; and " (c) Shall also be enforceable by process of law against all property which she may thereafter while discovert be j)ossessed of or entitled to ; "Provided that nothing in this section contained shall render available to satisfy any liability arising out of such contract any separate property which at that time or thereafter she is restrained from anticipating." It was also provided that, "In any action or pro- Sect. 2. ceeding^ now or hereafter instituted by a woman or by her next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdiction by judgment or order from time to time to order payment of the costs of the opposite party out of property which is subject to a restraint on anti- cipation, and may enforce such payment by the ap- pointment of a receiver and the sale of the property or otherwise as may be just." § 1565. On these sections of the Acts of 1882 and 1893 the following observations may be presented to the reader's consideration, as possibly relevant to any action for specific performance on a married woman's contract : — (1.) It is presumed that the Acts may be taken as The a code of law relative to the contracts of married acode!^ women, and that as such they supersede the previously existing equitable doctrines with regard to such con- tracts — doctrines which, with considerable modifica- 1 A counterclaim by a married by her, in an action in -whicli she is woman is a "proceeding instituted" j ^ i j. • j. /rri-r, ,_-^, _ ° „ ,, , a defendant, is not. (Hood-Barrs by her [Hood-Barra v. Cat/icart, [1895] 1 Q. B. 873) ; but an appeal v. Herwt, [18971 A. 0. 177.) 656 or SOME CONTEACTS IN PARTICULAR. Apply to all married Implied contracts. Contract is only in respect of separate property. Conse- quences. tions and alterations, are adopted by the Acts. This seems to render a discussion of the old equitable doc- trines no longer of practical importance in this work. (2.) The sections relative to contract appear to apply to all married women, without reference to the time of their marriage or of the acquisition of the property Avith which they are dealing. (3.) The words " or otherwise " in the Act of 1882 (section 9 (2)) will probably be found largely to ex- tend the liability of married women, and may at least render them liable on implied contracts on which they could not before the statute have been sued.^ (4.) The married Avoman is only capable of entering into any contract in respect of and to the extent of her sGj^arate property, free from restraint on anticipa- tion : she can render herself liable only in respect of and to the extent of this separate property. These words introduce new conceptions into the law of con- tract, and have created great peculiarities in the relief granted against married women. From them flow important consequences : — (a) The separate j)roperty which can be treated as bound by a contract by a married woman must, it would appear from section 19 of the Act of 1882, be property free from the restraint on anticipation. (b) It follows from the restrictive words of the Acts that, subject to any exercise of the jurisdiction as to costs conferred by the second section^ of the Act of 1893, execution under a judgment against a married woman is limited to the separate property of the married woman not subject to any restriction against anticipa- tion, unless, by reason of sect. 19 of the Act of 1882, the property shall be liable to execution, notwithstand- ing such restriction.^ (c) It further follows from the words of sub-section (2) of the first section of the Act of 1882 that no , ^ WliiUalter v. Kershaw, 45 Ch. D. 320. - For a form of order under this section, see Davies v. Treharris Brewery Co., [1894] W. N. 198; 13 E. 219 ; Seton (6tli ed.), 886, where a marriedwoman's action for specific performance was dismissed with costs. ' Scott V. Morleij, 20 Q. B. D. 120, 132. Distinguish Robinson, King & Co. v. Lynes, [1894] 2 Q. B. 577 ; Re TurnbuU, [1900] 1 Oh. 180, 184. OF CONTRACTS BY MAEEIED WOMEN. 657 attachment for debt can be issued against the person of a married woman under the Debtors Act.' § 1566. It is obvious that these peculiai-ities of Results as the contracts of a married woman under the Act may gpfomc lead to considerable difficulties in the enforcement of a perform- Judgment for specific performance against a married ^^'^^' woman. This question does not appear yet to have received any elucidation from judicial decision. But it seems probable that the matter may stand thus : if the judgment or order be for payment of a debt, then the woman cannot be imprisoned by reason of the Debtors Act, 1869.^ On the contrary, if the judgment or order direct her to do something other than the payment of money, disobedience would be a contempt not within the Debtors Act, 1869, and the old law would apply under which an attachment might issue against the married woman. ^ It is possible that, in the event of an order for payment of money by a married woman being disobeyed by her, some relief might be obtained by proceedings against her trustees, if any. § 1567. The fetter imposed on a married woman's Removal power of contracting by the common restriction on °^'^antu^'^* anticipation may, in a proper case, be removed by cipation. means of an order under section 39 of the Conveyanc- ing and Law of Proj)erty Act, 1881, which provides that, notwithstanding that a married woman is re- strained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in any property. Thus, where two of the plaintiffs in a vendor's action for specific performance of a contract for sale of real estate were married women entitled to undivided shares of the property for their separate use but without power of anticipation, the Court, under the above 39th section, removed the restraint on anticipation, for the purpose of enabling the sale to be completed.* ' Sc. in cases of iiidgments re- ' Scott v. Morley, 20 Ci. B. D. 120. covered against married women ' Ottway t. Wing, 12 Sim. 91 ; under the Act of 1882, s. 1 (2); Taylors. Taylor, 12 Bear. 271. Scott V. Morley, 20 Q. B. D. 120. Cf. * Bates v. Kesterton, [1896] 1 Oh. Hope V. Carnegie, L. E. 7 Eq. 254. 159, 165. F. U U 658 CHAPTER VI. OF CONTEACTS FOE SEPAEATION DEEDS. Contracts for futvire separa- tion not enforced. Extent of jurisdic- tion. There must te a binding contract. § 1568. It seems clear that a contract providing for the separation of husband and wife at a future time is against public policy, and will not be enforced by the Court; and further that any instrument which provides for a present separation, but also prospec- tively looks forward to the parties living together again, and then to a future separation, is, so far as it provides for that future separation, equally unen- forceable.^ § 1569. The jurisdiction of Courts of Equity to enforce the specific performance of contracts for pre- sent separation, by the execution of proper deeds of separation, was established in the House of Lords, after a learned argument against it, in the case of Wilson V. Wilson,^ where Lord Cottenham showed that the law does not now consider a contract for present separation so contrary to public policy as to make void all arrangements of jjroperty arising out of it. § 1570. In order to enable the Court thus to inter- fere, there must of course be a valid contract. It is essential to this that the contract be between persons caj)able of contracting, and therefore, on the ground of a husband's general inability* to contract with his ' See per Lord Eldoa in West- meath v. Salishury, 5 Bli. N. S. at pp. 366, 367 ; Earl of WestmeatJi v. Gountess of Westmeath, Jao. at p. 142. Cf. Woodgate v. Watson, in 0. A. leth November, 1880. 2 1 H. L. 0. 638, affirming S. 0. 14 Sim. 405; Fletcher v. Fletcher, 2 Oox, 99 ; Oibhs v. Harding, L. E. 8 Eq. 490; 5 Ch. 336; Buchnell v. Buchnell, 7 Ir. Ch. E. 130; HartY. Hart, 18 Oh. D. 670. ^ Sc, as distinguislied from Ms statutory ability, under tbe Married OF CONTEACTS FOR SEPARATION DEEDS. 659' wife witliGut the intervention of some third person, it has been supposed that a simple contract between them to live separate will not be enforced by the Court.* And a husband and wife in actual litigation on matri- monial matters may, it seems, contract with one another for a separation.^ But it is doubtful whether they can so contract under any other circumstances.^ § 1571. There must also be a good consideration : Good con- and as in contracts for separation this is sometimes ^^'^®''**'°°- peculiar, it will be well very briefly to allude to a few of the cases. § 1572. In a case already referred to it was de- instances. cided that the staying a suit in the Ecclesiastical Court for nullity of marriage, on the ground of ira- potency of the husband, is a sufficient consideration as against him -J and where the husband had so behaved as that the wife might have obtained a divorce a mensd et tlioro, and she agreed, instead of prosecuting her right, to accept maintenance from the husband, this was held a good consideration.^ A good consideration is also afforded by an engagement by the trustees to indemnify the husband against the wife's debts ; ^ or even by a covenant to that effect conditional on an annuity, which was agi-eed to be paid, being secured ;'' or, as it seems, by a covenant of a third party to pay the husband's debts.® So, in a contract which pro- vided for the execution of a separation deed to contain all proper and usual clauses, and also a stipulation that the costs of the deed should be paid by the husband and wife's father in moieties, the Court found consideration not only, it appears, in the contract as Women's Property Acts, to contract ^ See anU, § 1562. ■witli his wife in respect of her sepa- * WUson v. Wilson, 1 H. L. 0. rate property ; as, for instance, in 538 ; S. 0. 14 Sim. 405. the case of the purchase-agreement ^ Hobbs v. Hull, 1 Cox, 445. in Ramsay v. Margrett, [1894] 2 * Stephens v. Olive, 2 Bro. 0. 0. Q. B. 18, 25, 26, 27. 90; Earl of Westineath v. Countess 1 Hope T. Hopie, 22 Beav. 351; of Westmeath, Jac. 126, 141; Hls- 8 De G. M. & G. 731, 739 ; Wilkes loortlnj v. Bird, 2 S. & S. 372. V. Wilhes, 2 Dick. 791 ; Walrond v. ' Wellesley t. Wellesley, 10 Sim. Walrond, John. 18. 256. * Macgregor v. Macgregor, 21 Q. " Wilson v. Wilson, 1 H. L. 0. B. D. 424. 538. utr2 660 OF SOME CONTEACTS IN PARTICULAR,' Care of children. Contract held in- capable of per- formance. Act to amend the law as to custody of infants. to the costs, biit also in the covenant by the father to indemnify the husband, which seems to have been held to be a usual clause.* § 1573. In many contracts for separation there have been contained provisions as to the care of the children which have been held to be at variance with the law, and so have formed a bar to the performance of the contract. For the law of England gives to the father the custody and control of his children, and casts on him the duty of caring for them and seeing to their education ; and this duty he can neither renounce nor delegate.^ § 1574. On this ground the following contracts Avere, before the passing of the Act mentioned in the next section, held incapable of performance : — a con- tract by the father to allow an infant son to remain under the care of his mother:* a contract that the mother should have tlie children above seven years of age : * and a contract to allow an infant daughter to remain under the control of and to be educated and supported by her mother.^ But a stipulation in a deed that her children should remain at such schools in England as the husband, or such schools elsewhere as the husband with the consent of the wife, should from time to time direct, and that the holidays of the children should be passed by them at such places and in su.ch manner as the trustees should from time to time direct, having regard as far as practicable to the wishes of each of them, the husband and wife, was held by Lord Hatherley, reversing the decision of Lord Romilly M.R., to be reasonable." § 1576. An alteration in this branch of the law was effected by the Custody of Infants Act, 1873 (36 & 37 Vict. c. 12). The 2nd section of that Act enacts that no agreement contained in any sepa- ration deed made between the father and mother of ' GMs V. Harding, L. E. S Eq. 131. 490 ; 5 Oh. 336. ' Lord St. John v. Lady St. John, 11 Ves. 525 ; Lord Westmeath's case, Jac. 251, n. 3 Rope V. LTope, 8 De G. M. & G. * Vansittart v. Vansittart, 4 K. & J. 62. * Walrond v. Walrond, Jolin. 18. ^ Hamilton v. Hector, L. E. 13 Eq. 511; 6 Oh. 701. OF CONTRACTS FOE SEPARATION DEEDS. 661 an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control ^ thereof to the mother ; provided always that no Court shall enforce any such agreement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto.^ § 1576. It will be observed that this enactment Effect of ai^plies in terms only to agreements contained in deeds, ^^^^ ^''** and not to contracts to execute separation deeds. But as the invalidity of the deed itself is removed, the whole objection to the specific performance of the contract falls also.^ § 1577. The questions which arise on specific Specific relief with respect to the stipulations contained in "^^ ^ ' deeds of separation do not, of course, fall within the purview of this treatise, which relates to executory contracts only. ' These words " custody and con- Per Chitty J. in Condon v. VoUum, trol" are large enough, to comprise 57 L. T. at p. 155. all the rights which a father has - See He Besard, 1 1 Ch. D. 508, over his children, including that of 518. directing their religious education. ^ Hart v. Hart, 18 Ch. D. 670. 662 CHAPTER VII. OP CONTEACTS TO COMPROMISE. Private oompro- Mistake, how affect- ing com- promises. Jurisdic- tion of the Court of Chancerv. Where immediate inter- ference necessary. § 1578. The Court will specifically enforce private compromises of rights in the way in which it will any other contracts ; ^ and, inasmuch as the comprom.ise of a bond fide claim to which a person believes himself to be liable, and of the nature of which he is aware, is a good consideration for a contract, the Court, in enforcing the compromise, will not inquire into the validity of the claim on which it is founded.^ § 1579. A mistake, therefore, of one of the parties to a compromise as to his rights would probably be unavailing as a defence to an action ; but the com- promise may be made under such mistakes as regards other matters of fact as may induce the Court to refuse perfoi-mance.^ § 1580. Where the compromise sought to be en- forced related to proceedings in another Court, it was manifest that the Court of Chancery could only enter- tain jurisdiction on a bill filed.* But where the primary litigation was also in the Court of Chancery, the ques- tion arose whether the compromise could be enforced in the original suit, by an interlocutory proceeding in it, or only by a fresh suit, based on the compromise. § 1581. It seems that where the immediate inter- ference of the Court was necessary to give effect to the contract, as where a party to the contract was, but for it, liable to an immediate attachment, there the Court ' E.g., Turner v. Oreen, [1893] 2 Oh. 205. ' AUwood-7. Anon., 1 Euss. 353; Miles V. Nciv Zealand, dec. Co., 32 Ch. D. 266. 3 The Monarch, L. E. 12 P. D. 5. * See, for example, Nicholl v. Jones, L. E. 3 Eq. 696. OP CONTRACTS TO COMPROMISE. 663 ■would to that extent interfere to execute the contract in the original suit. § 1582. Further, there is authority to show that, Where all where all the parties to the compromise were parties to before\iie the original suit, and the equity arising out of the com- Court and „ • Pii , ii'-i •, the matter promise was oi the same nature as the original equity, simple. as where an account was to be taken alike under the original suit and under the compromise, — where the whole matter was before the Court, and the acts to be done were simple, — there the Court might enforce the compromise by interlocutory proceeding in the original suit.^ § 1583. But, before the Judicature Acts, if not in in other all other cases, at least in all cases where the contract freshsuit to com]3romise went beyond the ordinary range of the requisite. Court in the existing suit, or the equity sought to be enforced was different from that on the record, or the contract was disputed, or the right to have it enforced in the suit was disputed, or the parties were not identical, there the proper course of proceeding was by bill for the specific performance of the contract to compromise.^ § 1584. In the litigation which arose out of the Swinfmy. will of Mr. Samuel Swinfen, the mode of enforcing a compromise entered into by counsel was much dis- cussed, as well as the authority of counsel to bind his client to a compromise.^ The original proceeding was a suit in Chancery by the heir of one of the next of kin, for the purpose of securing the testator's real and personal estates whilst proceedings were being taken to set aside the will on the ground of the want of 1 Daivson v. Neivsome, 2 Giff . 2Y2. G. 79 ; Pryer v. Orihhle, L. E. 10 The Court of Cliancery would not Oh. 534 ; which seem to overrule enforce a contract for compro- the dictum of Lord Eldon in Roive mise between an infant and an v. Wood, 1 J. & W. 337, and the adult, there being no mutuality : case of Tebhutt v. Potter, 4 Ha. 164. ■per Lord Langdale M.E. in Har- See also King t. PinsoneauU, L. E. grave t. Hargrave, 12 Bear, at 6 P. 0. 245. p. 411. ^ As to the authority of counsel, 2 Forsyth v. Manton, 5 Mad. 78 Wood V. Bowe, 2 Bli. 595, 617 Askew V. Millington, 9 Ha. 65 see NeaJe v. Lady Oordon Lennox, [1902] 1 K. B. 838, reversed in D. P. [1902] A. 0. 465; 71 L. J. K. B. Richardson v. Eyton, 2 De G-. M. & 536, 939 ; 51 W. R. 140. 664 OF SOME CONTRACTS IN PAETICULAR. testamentary capacity. The will gave the property to Mis. Swinfen, the widow of the testator's son. Lord Romilly M.R. directed an issue clevisavit vel non, in which Mrs. Swinfen was plaintiff and the heir was defendant. During the tibial at Stafford the leading counsel for the plaintiff and for the defendant signed a memorandum of compromise, including a stipulation for a conveyance of the land by the plaintiff at Law to the defendant, and the payment by the defendant to the plaintiff of an annuity. The memorandum of com- promise was embodied in an order at Nisi Prius, and afterwards made a rule of the Court of Common Pleas. Mrs. Swinfen declined to perform the contract, as made without her authority and against her wishes. Thereupon a rule nisi for an attachment against her was obtained, but discharged on the ground of want of evidence of demand of performance and refusal.^ A second application for an attachment was refused because one of the Judges of the Court of Common Pleas doubted the authority of counsel to bind the plaintiff at Law.^ Thereupon the defendant at Law and original plaintiff in Equity filed a supplemental bill for the specific performance of the contract, or in the alternative that another issue devisavit vel non might be directed. This bill was dismissed by Lord Romilly M.R. without costs on the ground of want of authority of counsel : ^ and this decision was affirmed by Knight Bruce and Turner L.JJ.,* on the ground that, even if the plaintiff at Law was bound at Law, the contract was not one of which, under the circumstances, specific performance should be decreed. Mrs. Swinfen subse- quently brought an action against her leading counsel Since the (then Lord Chelmsford) for damages, but failed.® toe Acts. § 1585. The Judicature Act, 1873, has introduced a great improvement in this practice. By section 24, sub-section 7, the Court has in every cause power to grant all such remedies whatsoever as any of the 1 Swinfen v. Swinfen, 18 C. B. * S. C. 2 De G. & J. 381. Of. 485. Holt V. Jesse, 3 Ch. D. 177; Davis 2 S. 0. 1 0. B. N. S. 364. V. Davis, 13 Oh. D. 861. ' Swinfen y. Siuinfen, 24 Beav. ^ Swinfen y. Lord Chelmsford, 5 549. H, & N. 890. OF CONTRACTS TO COMPROMISE. parties may appear to be entitled to in respect of any claim properly brought forward by them in such cause ; so that as far as possible all matters so in controversy between the parties may be completely and finally determined. Accordingly it has been decided that the Court has jurisdiction to stay all further proceedings in the action compromised, in cases in which an independent suit would probably have previously been necessary.^ ' Compare Eden v. NahTi, 7 Smythe v. Smythe, 18 Q. B. D. at Ch. D. 781, and Scully v. Lord p. 546. Distinguish Gilbert v. En- Dundonald, 8 Ch. D. 658, with ^ g pj^^ j^ 259; Emeris v. Fryer v. Cfribhle, L. E. 10 Ch. at 665 p. 540. See, too, Ee Oaudet Freres Woodicard, 43 Ch. D. 185 ; and of. Steamship Co., 12 Ch. D. 882; Davis y. Davis, 13 Ch. B. 861. CHAPTER VIII. OF AWARDS. Extent of the juris- diction. Lord Hard- wicke's doctrine. Where Bubmiasion made rule of Com- mon Law Court. § 1586. The Court of Chancery, in many cases, decreed the specific performance of awards, though not made rules or orders of the Court,^ for the perform- ance of some sjDecific thing, as to convey an estate, assign securities, or the like ;^ but not, it would seem, awards simply to pay money. ^ The Court thus decreed their performance "because," to use Lord Eldon's language, " the award supposes an agreement between the parties, and contains no more than the terms of that agreement ascertained by a third person." * § 1587. Lord Hardwicke*^ seems to have laid it down that a bill to carry an award into execution, where there was no acquiescence in it by the parties to the submission, or contract by them afterwards to have it executed, would not lie. But, as we have seen, subsequent cases established that the jurisdiction was not subject to these restrictions. § 1588. The fact that the submission had been made a rule of a Common Law Court created no im- pediment to its specific performance by the Court of Chancery,** though it would have been otherwise in a suit to set it aside.'' ^ See now sects. 1 and 12 of tlie Arbitration Act, 1889 ; also Russell on Arbitration and Award (8tli ed.), 320. 2 Norion v. Mascall, 2 Vern. 24 ; Hall V. Hardtj, 3 P. Wms. 187; Wiilters V. Morgan, 2 Cox, 369. ' Note of .reporter, 3 P. Wms. 190. * In Wood V. Oriffith, 1 Sw. at p. 54 ; see also per Turner L.J. in . Nickels v. Hancock, 7 De G. M. & Gr. 300. * Thompson v. Noel, 1 Atk. 60. « Wood V. Griffith, 1 Sw. 43; Haivksivorth. v. Brammall, 5 My. & Cr. 281 ; BlachcU v. Bates, 2 H. & M. 270, 610 ; reversed, on a different point, L. E. 1 Ch. 117; 35 L.J. Ch. 324. ' Aurlol V. Smith, T. & E. 121. OF AWARDS, 667 § 1589. There is an old case in which the Court Where of Chancery specifically enforced an award not bind- wlng° ing by form of law.^ But, in Blundell v. Brettargh^ at Law. Lord Eldon said he had met with no authority for the specific performance of an award by arbitrators appointed for the valuation of interests, where their acts, for the purpose of carrying into effect the con- tract for an award, were not valid at Law, as to the time, manner, or other circumstances, unless in the cases of acquiescence or part performance : and accord- ingly in the case before him he refused specific per- formance of a contract to sell at a valuation, which, on the construction of the contract, the Court held was to be made during the lives of the parties, one of them having died before the award was made. § 1590. It is however plain that by mutual aban- Abandon- donment of some provision of the submission, as, e.g.^ term of ^ that limiting the time for the award, the defendant the sub- may be precluded from raising in a Court of Equity ™ an objection which might otherwise prevail.* § 1591. The objection arising from unreasonable- Award ness, not of the submission but of the award itself, the "bk'^^"'^ Court is not willing to entertain ; for the arbitrators being judges of the parties' own choosing, it has been held that the award cannot be objected to by either of the parties, on the ground of its being unreason- able.* This principle was stated and acted on by Lord Eldon in Wood v. Griffith,^ where his Lordship enforced the specific performance of an award which ordered the sale of an estate under circumstances which greatly depreciated its value. § 1592. Where, on the other hand, the award is Award in more than unreasonable, — where the award is in excess authority. of the authority given to the arbitrator, the Court, of course, refuses to enforce it. Li a case that came before Knight Bruce and Turner L.JJ., the award ' Norton Y. Mascall, 2 Vern. 24. ^ Ilaivksworth v. BrammaU, 5 My. " 17 Ves. 232, 211. This case & Cr. 281. was not strictly one of arbitration , p^^ j^^^^^ Hardwicke in Ives v. and award, but rather of contract to ,, , , ,- CT r^- 3lekalfe, 1 Atk. bi. sell at a valuation. See Kinnee.n v. Persse, 7 Ir. Ch. E. 438. * 1 Sw. 43. See aupni, § 420. 668 OF SOME CONTEACTS IN PARTICULAR. Grounds of defence. Submis- sion un- reason- able. Award excessive or defec- tive. was objected to as unreasonable, but it was contended on the other side that the Court could not entertain the objection. Turner L.J., after expressing his dis- sent from the observations of Lord Eldon in Wood v. Griffith^ said, "If it be a fair subject of discussion and consideration, whether one course or another course be the right one to be taken by parties who have sub- mitted their differences to arbitration, and have said that they will abide by the decision of the arbitrator, I might agree that the judgment of the arbitrator upon that question must decide the point. But here the judgment of the arbitrator goes to the length of destroying the right of one of the parties to the agree- ment, though the parties never authorized Mr. Carp- mael to decide that any one of them had no right, and should acquire no interest in the subject in dispute, but only agreed that he should determine the mode in which their rights and interests should be regulated. It seems to me, therefore, that, if it was necessary to decide this question upon the point of unreasonable- ness, that point alone would be sufficient to decide it."^ § 1593. The interference of the Court in these cases being in exercise not of any jurisdiction peculiar to awards, but of its ordinary jurisdiction as applied to the specific performance of contracts, it follows that many, if not all, the principles applicable to ordinary actions of that nature must apply.^ § 1594. Where therefore the contract contained in the submission is such in its character as, whether from its unreasonableness, unfairness, or imprudence, the Court would not specifically enforce, this will pre- vent its interference in respect of the award founded on it.* § 1595. Nor can the Court interfere where the award is excessive or defective: not if it be excessive, for so far the arbitrator has gone beyond his authority, and there is no binding contract between the parties : not if it be defective, because the parties had con- 1 1 Sw. 43. ' Nickels v. Hancock, 7 De G. M. & G. at p. 325. ^ Nickels v. Hancock, 7 De G. M. & G. 300. S. C. See supra, § 420. OP AWARDS. 669 tracted to be bound by his decision on the whole, and not on part of the matters submitted to him.^ § 1596. In a case where the submission was of all ^^^^* matters in difference, and the defendant omitted to drfendant. submit questions which he alleged ought to have been decided, he was naturally held to be precluded from so doing by the course Avhich he himself had pursued.^ § 1597. Where the award is uncertain on its face, Award and that uncertainty is not removed by the arbitrator's '^ evidence, the Court refuses specific performance of the contract, though the plaintiff may waive all claims beyond the award as construed against him.^ § 1598. Where the plaintiff has first sought to set Biackettv. the award aside, it is doubtful whether he can after- ^"''^^^ wards turn round and maintain an action for the spe- cific performance of it, especially where there has been a considerable lapse of time/ § 1599. The cases which have arisen of miscon- Miscon- duct or impropriety of conduct on the part of persons '^^j'* °* appointed to value a rent, or the amount of jourchase- money, throw light on the way in which the Court would regard like misconduct on the part of persons more accurately described as arbitrators.'^ ' Nickels v. Hancock, 7 De G. M. S. 0. 2 H. & M. 270, 610. As to & G. 300; Wakefield v. LlaneUy setting aside an award, see sect. 11 Sailway and Dock Co., 3 De G. J. (2) of tte Arbitration Act, 1889. & S. 11. Consider, however, sect. 10 ° See Emery v. Wase, 8 Ves. 505 ; of the Ai'bitration Act, 1889. Chichester v. McInUre, 4 Bli. N. S. , _ , a7 T, 77 -nr 78; PorAew V. TrAi'%, T. & R. 366; 2 Hawksworth v. Bramrnall, o My. „ „ , , , ^'m , „ „ -.^ „ ' ' Ormes v. Beadel, 2 Gife. 166 ; 2 De G. F. & J. 333. Note that, under 3 Wakefield v. Llanelly Railway ^^^^_ j^ ^^^ ^^ ^j^^ Arbitration Act, and Dock Co., 3 De G. J. & S. 11. jggg^ ^^^^^ ^^ arbitrator or umpire * Blackett v. Bates, L. E. 1 Ch. has misconducted himself , the Court 117 ; 35 L. J. Ch. 324 ; reversing may remove him. valuer. 670 CHAPTER IX. OF CONTEACTS TO REFER TO ARBITRATION. Court ■will not enforce them affir- matively. Contract to buy at price to be fixed. ! V. Merest. Inequit- able re- fusal of plaintifi to refer. § 1600. With regard to contracts to refer to arbitration, it is clear that the Court will not entertain actions for their specific performance, — a principle in the first place, it seems, acted upon by Lord Thurlow in a case of Pt'ice v. Williams,^ and which has been since well established.^ In one case Knight Bruce and Turner L.JJ., upon this amongst other grounds, re- fused to compel the specific execution of a bond to refer to arbitration.^ § 1601. In like manner we have seen that, where there is a contract to buy at a price to be fixed by persons to be named, the Court can neither compel a defendant to name a valuer, nor compel a valuer to value, nor compel the defendant to sell at any other value. ^ § 1602. There is, however, a case before Leach V.C., somewhat briefly reported as to its circumstances, in which, the vendor refusing to permit the referees to come upon the land, the Court compelled him to permit the valuation.*^ § 1603. Though the Court will thus refuse speci- fically to enforce references to arbitration, an inequit- able refusal of a plaintiff to make such a reference may ' Eeferred to in 6 Ves. at p. 818. * Street v. Eighy, 6 Ves. 815; per Grant M.E. in Gourlay v. Dulee of Somerset, 19 Ves. 429; Agar v. MacMeiv, 2 S. & S. 418 ; Oervais y. Edwards, 2 Dr. & War. 80. ' South Wales Railway Co. v. WytJies, 5 De G. M. & G. 880. * Wilks V. Davis, 3 Mer. 507 Darhey v. WhitaJeer, 4 Drew. 134 Vickers v. Vickers, L. E. 4 Eq. 529 supra, § 357 et seq. ° Morse r. Merest, 6 Mad. 26. See, too, supra, § 1158. OF CONTRACTS TO EEFEE TO ARBITRATION. 671 disentitle him to the aid of the Court, on the principle that he who seeks equity must do equity. Thus, where a deed was executed which created a lien for the amount of a solicitor's bills and advances, the amount of which was to be settled by arbitration, and the arbitrator died before the award was made ; in a suit seeking the reconveyance of the property, Alderson B. held that the contract between the parties was composed of two distinct parts, — the first admitting that some balance was due to the solicitor, and the second, a contract for a specific mode of ascertaining that balance ; that the latter part alone had failed ; that the former part remained entire, and that the Court would not decree a reconveyance without the plaintiff's consenting to do equity by having the accounts taken by the Master.-' § 1604. By the 4th section of the Arbitration Act, Arbitra- 1889, every Court has power under certain circum- ^'g^g "*' stances to stay proceedings in actions in respect of any matters agreed to be referred to arbitration. A similar power had been given by the Common Law Procedure Act, 18oi, s. 11. Under this enactment orders have been made which have indirectly the effect of com- j)elling the plaintiff specifically to perform the contract to refer to arbitration.^ 1 Cheslyn v. Dalhy, 2 Y. & C. Ex. Eq. 599; Newton v. Taylor, L. E. 170. 19 Eq. 14; Laio v. Garrett, 8 Ch. D. ^ Eor cases under this section in 26 ; also Lyon v. Johnson, 40 Ch. D. the Court of Chancery and in the 579, and Be Carlisle, 44 Ch. D. 200 Chancery Division, see Willesford (discretion of the Court) ; Pini v. Y. Watson, L. E. 14 Eq. 572 ; 8 Ch. Roncoroni, [1892] 1 Ch. 633 (receiver 473; Flews y. Baleer,'L.'Ei. 16 Eq. and stay of proceedings) ; Barnesy, 564 ; Gillett y. Thornton, L. E. 19 Youngs, [1898] 1 Ch. 414. 672 CHAPTER X. OF CONTRACTS NOT TO APPLY TO PARLIAMENT. Mode of enforce- ment. Court has jurisdic- tion in a proper case. Where Court ■will not interfere. § 1605. The Court has not infrequently been asked to enforce the specific performance of a contract not to apply to Parliament, by means of an injunction restraining such application. § 1606. It is perfectly clear that a Court of Equity has power, upon a proper case being made out, to enjoin a person from petitioning Parliament; for the Court merely acts in personam, and does not therefore in any way interfere with the proceedings of Parlia- ment : ^ but what is a proper case for this interference of the Court is a question of considerable difficulty. It has even been said that it is difficult to conceive or define what are the cases in which it would be proper for the Court to exercise its undoubted power of restraining any person from making an improper application to Parliament.^ § 1607. The mere fact that the intended applica- tion to Parliament will abrogate existing rights and create new ones can give no right to such an injunc- tion ; for that would be to restrain Parliamentary interference in all such cases.^ Nor will the Court interfere, even where for the protection of private interests a contract not to apply to Parliament has been entered into, provided the party making the ^ Ware v. Grand Junction Water- loorks Co., 2 E. & My. 470, 483 ; Heathcote T. North Staffordshire Railway Co., 2 Mac. & G. 100; Lancaster and Carlisle Railway Co. T. North Wester7i Railway Co., 2 E. & J. 293. See also Att.-Gen. v. Manchester and Leeds Raihvay Co., 1 Eail. 0. 436. ^ Re London, Chatham and Dover Railway Arrangement Act, L. E. 5 Oil. 671, 679. See, too, Steele v. North Metropolitan Railway Co., L. E. 2 Oil. 237. ^ Heathcote v. North Staffordshire Railway Co., 2 Mac. & G. 100. OF CONTRACTS NOT TO APPLY TO PARLIAMENT. 673 application to the legislature may urge it upon grounds of public policy, of which Parliament can judge, but a Court of Equity cannot.^ This seems to apply to all cases in which the application is in soliciting a Bill ; for in all such cases grounds of a public nature may be urged. § 1608. Accordingly, in a case where the defen- zamas- dant company contracted with the plaintiff company ^^Ji^^y not to make any line connecting their respective rail- Co- ^• ways except one which had been already applied for ^llum by the defendants, and in consideration of this the Railway plaintiffs agreed to support, instead of opposing (as they had previously done), the application of the defendants for the last-mentioned line, and the plaintiffs performed their part of the contract, and the defendants' application was successful ; the Court nevertheless refused to restrain the defendants from applying to Parliament in contravention of their con- tract, considering that such an application, if successful, would be so on public grounds, of which the Court could not judge, and that, if it were rejected, the breach of the contract, if a legal one, might be com- pensated for in damages.^ § 1609. The only case, therefore, in which the Where Court would interfere appears to be when the applicant aoting'^on is acting on private grounds only. " It might well be private conceived," said Lord Hatherley (then Wood V.C.) in only" ^ one case, " that where a tenant for life had stipulated that he would not apply for a private Act, he might be restrained from so doing If a man had made an agreement to buy a house or field, and afterwards found the agreement inconvenient, and wished to apply to Parliament to set it aside, that possibly might be a case in which the Court would interfere, and say that this not being a matter of public policy, the man should not make the application."^ ' Lancaster and Carlisle Bailway • Lancaster and Carlisle Railway Co. V. North Western Railway Co., (jo. v. North Western Railway Co., 2 K. & J. 293. See, too, per Bacon 2 K & J 293 V.O. in Telford v. Metropolitan Board of Works, L. E. 13 Eq, at ' -S'^^^e v. North Metropolitan p. 594. Tramway Co., L. E. 2 Oh. 238 n. F, XX 674 CHAPTER XL OF CONTEACTS TO INDEMNIFY. Where exercised by the Court of The juris- §1610. AGREEMENTS for indemnity, whether taking diction, ^j^^ form of a covenant or of an executory contract, appear equally to attract the jurisdiction of the Court by way of specific relief.^ All or most of the reported cases appear to be on executed contracts. § 1611. A contract by A. to indemnify B. against a payment is not broken till the payment has been made : and when made by B., he might, before the Chancery. ju^(jjgature Acts, havo recovered the amount paid by an action at Law, and have obtained in that way all that he needed. But where the contract by A. is to indemnify B. against all claims and demands of C, there is a breach so soon as C. makes the claim,^ and B, may here use- fully invoke the aid of a Court of Equity to compel A. to satisfy his demand to the relief of B., and thus specifically to perform the contract : and accordingly, in such cases, the Court of Chancery entertained jurisdiction. § 1612. In the case of Ranelaugh v. Hayes^ the plaintiff assigned certain shares to the defendant, and the defendant covenanted with the plaintiff to in- demnify him against (amongst other things) all de- mands in respect of the shares : the plaintiff was prosecuted for a demand by the Crown, and accord- ingly prayed specific performance, which was granted. ' See per Kindersley V.O. in London and South Western Railway Co. V. Humphrey, 6 W. E. 784. - Warioich y. Richardson, 10 M. & W. 284 ; Carr v. Roberts, 5 B. & Ad. Y8 ; Taylor v. Toung, 3 B. & Al. 521 ; Penny v. Foy, 8 B. & 0. 11. 5 1 Vern. 189. OF CONTRACTS TO INDEMNIFY. 675 The decree extended not only to the claim then advanced, but to future demands, and directed the Master, toties quoties any breach should happen, to report it to the Court. It is conceived that such a judgment could not now be pronounced as regards future and repeated acts.^ § 1613. In a much more modern case. Company A. ^ngu- assigned its business to Company B., and Company B, to|."' covenanted with Company A. that the shareholders insurame of Company A. should out of the funds of Company B. British be indemnified against all liabilities in respect of Com- f^^j^ff"' pany A. Actions and suits were instituted by various su'rance persons against Company A. in respect of claims against which the indemnity had been given, and these were not paid by Company B. Company A. thereupon sued for and obtained a declaration of the liability of Company B. to perform their indemnity.'- ' See Lloyd v. Dimmach, 7 Oh. D. ^ Anglo- Australian, &c. Co. v. 398 ; Hughes - Hallett v. Indian British Provident, &c. Society, 3 Gifl. Mammoth Gold Mines Co., 22 Oh. D. 521 ; 4 De G. F. & J. 341 . See also 561. Story, Eq. Jur. § 850. Co. xx2 677 ADDITIONAL NOTE A/ The Case of Bolton Partners v. Lambert. This case, reported 41 Ch. D. 295 (followed by the Court of Appeal in In re Portuguese Copper Mines, Limited, Ex parte Badman, 45 Ch. D. 161), seems so important and so worthy of further consideration by any Court not bound by it, that I venture to offer a few respectful criticisms upon it. In the case in question an offer was made by the defendant to one Scratohley, as the managing director of the plaintiff company : Scratchley had no authority to accept the offer, but nevertheless accepted the offer; the defendant then withdrew his offer; and after the withdrawal the plaintiffs ratified Scratohley's acceptance. It was held that the withdrawal by the defendant was inoperative. The decision seems to raise some difficulties, both practical and legal. It seems to follow from it that the intervention of a mere stranger may prevent a person who has made an offer from withdrawing that offer until it be seen whether the person to whom it is made will ratify it or not, and consequently places that person in the difficult position of neither having a contract nor a right to withdraw an offer. An offer made to a principal may be withdrawn : an offer made to a person who professes to be an agent, but is not, cannot be withdrawn ; so that the person making the offer is worse off in the latter than the former case. At the time the defendant, in the case under discussion, withdrew his offer, there was nothing ' See an article ty Professor Floyd E. Meohem, intituled " A Question of Ratification," in the 24th volume of the American Law Review (1890), at p. 580. This article appears to have heen written in ignorance of the Bolton Partners' case, but agrees in its conclusions with Note A. See, too, the observations of Chitty J. in Dibbins v. Dibbins, [1896] 2 Ch. at p. 351. 678 ADDITIONAL NOTE A. but the aotiou of a stranger, and it seems diificult to suppose that that could deprive the defendant of his common law right to withdraw an ofEer before acceptance. At the time the plaintiifs ratified the action of the stranger, an act had been done by the defendant in exercise of that right, and it seems difficult to suppose that subsequent ratification could destroy the operation of an act otherwise valid. In a case in which it was unsuccessfully contended that subsequent ratification of a notice to determine a lease could make it good, Lawrence J. said, " The rule of law that omnis ratihaUtio retrotrahitur, 8{c., seems only applicable to cases where the conduct of the parties on whom it is to operate, not being referable to any agreement, cannot in the meantime depend on whether there be a sub- sequent ratification. But here the intermediate acts of the tenant referable to the terms of his lease are to be affected by relation."! And it is apprehended that in a general way ratifica- tion is not permitted to avoid and defeat prior acts validly done or rights previously vested. The effect of the act of the stranger on the offer of the defen- dant is thus explained by the Coiu't. "I think," said Cotton L. J., " the proper view is that the acceptance by Scratchley did con- stitute a contract, subject to its being shown that Scratchley had authority to bind the company." "Directly Scratchley, on behalf and in the name of the plaintiffs," said Lopes L.J., " accepted the defendant's offer, I think there was a contract made by Scratchley assuming to act for the plaintiffs, subject to proof by the plaintiffs that Scratchley had that authority." These passages seem to suggest a new view of the constitution of a contract. For at the moment of Soratohley's act (his so- called acceptance), it is said that a contract was constituted, subject, indeed, to something, but still a contract. Now, at that moment, the plaintiffs, to whom the offer was made, had exer- cised no will, and given no consent to the proposal ; so that if a contract was then made it was constituted without the will of one of the contracting parties, and at the will of a stranger. But the contract so constituted was subject to its being shown that Scratchley had authority to bind the plaintiffs: i.e., as I understand, that the contract was subject to a condition : the condition cannot be the proof that Scratchley was authorized at the moment of his so-called acceptance ; for in the case before • Right d. Fisher v. Cuthell, 5 East, 499. ADDITIONAL NOTE A. 679 the Court that was not the case, and therefore never could be proved. The condition cannot be a condition precedent, for then there would have been no contract; it must there- fore be a condition subsequent, and a condition subsequent cannot make good that to which it is appended, but may avoid it. It is apprehended, therefore, that the real meaning of the learned Judges was that the contract would be avoided if it were not shown within a reasonable time that Scratchley's act had been ratified. So that the contract was contingent upon a subsequent expression of will of one of the contracting parties, and existed as a contract before that will was exercised or expressed. If the principle of this case should ever come before a Court not bound by it, it may be worthy of consideration whether it should not receive further discussion. 680 ADDITIONAL NOTE B. French Law of Specific Pekformance. The peculiarly English character of the jurisdiction in specific performance has been adverted to above (§ 5). The following further information with regard to the French law may not be uninteresting. The following clauses of the Code Civil bear upon the point : — " 1142. Toute obligation de faire ou de ne pas faire se resout en dommages et interets, en cas d'inexecution de la part du d^biteur. "1143. Neanmoins le cr^ancier a le droit de demander, que ce qui aurait ^t^ fait par contravention ^ I'engagement soit d^truit ; et il peut se faire autoriser eI le d^truire aux depens du debiteur, sans prejudice des dommages et interets, s'il y a lieu. " 1144. Le creancier peut aussi, en cas d'inexecution, etre autoris^ a faire ex^cuter lui-meme I'obligation aux depens du debiteur." Through the kindness of Professor Holland, of Oxford, I have received the following note explanatory of the subject from M. Renault, Advocate and Professor of Law at Paris :— " Le debiteur peut-il etre tenu k une execution en nature (specific performance), ou peut-il etre seulement oondamn^ a des dommages-inter^ts ? " Les principes sont poses dans les articles 1142, 1143, et 1144, du Code Civil. Ces trois articles doivent etre combines, et il en ' In oonneotion with the subjeot-matter of this note, see an article by Mr. M. Sheldon Amos on "Specific Performance in French Law," in 17 Law Quarterly Review, 372, and the observations of "E. S." in 8 Law Quarterly Review, 252. ADDITIONAL NOTE B. resulte une doctrine qui peut 6tre r^sum^e de la maniere suivante: — " La formule de I'art. 1142 est trop generale : ce n'est pas toute obligation de faire ou de ne pas faire qui se resout n&essairement en dommages-interets, c'est celle dont I'ex^cution effective est impossible par voie de contrainte, parce que cette execution forcee ne pourrait etre obtenue sans porter atteinte k la liberte individuelle du debiteur, sans exercer une pression materieUe sur sa personne. Ainsi un acteur a promis k un directeur de cbanter sur son tbeatre, ou, au eontraire, de ne pas paraitre sur une scene rivale ; s'il refuse de tenir ses engagements, le oreancier ne pourrait obtenir I'ex^cution effective sans 6tre autoris^ £i exercer sur la personne de son debiteur des violences physiques pour I'amener de force sur son theatre, ou pour I'eoarter du theatre rival. Ces violences, cette contrainte physique dont les resultats ne pourraient etre que fort imparfaits, sont contraires a I'esprit et au texte de toute notre legislation, et c'est dans ces cas-la que I'obligation se resout necessairement en dommages- int&ets. " Un proprietaire a promis a son voisin d'abattre des arbres qu'il a sur son propre terrain, et qui font obstacle a la vue de oe voisin. Si, se repentant de cette promesse, et dispose a faire de grands sacrifices d'argent pour oonserver ses arbres, le debiteur refuse d'executer son obligation, le creanoier pourra ne pas se contenter des dommages-interets ; il obtiendra I'autorisation d'entrer sur le fond de son debiteur, et de faii'e abattre les arbres. " Pour les details, voir le Repertoire de Dalloz, SJi™"^ volume, au mot Obligation, § 702 et suivant. Pothier, Traite des Obligations, N° 146 et suivant." Sir Frederick Pollock has favom-ed me with a note on this subject, in which he expresses his belief that M. Eenault has not dealt with the entire subject, and has confined his attention to the obligation " de faire ou de ne pas faire," and omitted to consider the obligation "de donner," which would in part correspond to our doctrine of specific performance. Professor Holland has also reconsidered the subject in a note to the 5th edition of his work on Jurisprudence,^ and his 1 See pp. 308, 309 of the 9th edition of the work (Holland's Elements of Jurisprudence) . 681 682 ADDITIONAL NOTE B, conclusions tend to emphasize the distinction in this respect between the laws of the two countries. It is heyond my object and my knowledge to attempt an exact comparison of the English law with that of Eome or of France, or to ascertain how far the latter may have approxi- mated to the principles of our Equity jurisdiction in specific performance. But it would appear as if the French law was stni limited by that tenderness for the liberty of the subject which the old Common Law judges urged as an objection to the Chancery jurisdiction which might end in imprisonment. (See the case of Bromage v. Gennings, referred to in the next additional note.) 683 ADDITIONAL NOTE C. Cases Illustrative of the Early Jurisdiction of Chancery IN Specific Performance. (i) EicHARD II. — Wheler v. Suchynden (2 Calendar of Pro- ceedings in Chancery, 2). The plaintiff averred an agreement between the plaintiff and defendant that the defendant should grant to the plaintiff the reversion of certain lands ; that the defendant lent to the plaintiff the deeds to enable him to obtain advice as to the conveyance ; that the plaintiff came to London for such advice and incurred expenses, and then the defendant refused to convey, and the plaintiff accordingly sought the Chancellor's aid, alleging that, as he had no specialty or writing of the covenant he could not sue at Common Law. He asked for judgment according to that which loyalty, good faith, and conscience demanded in all parts for the love of God and in the work of Charity. It has been suggested ^ that the relief sought was not specific performance of the covenant or contract, but repayment of the plaintiff's expenses. But it may be doubted whether the plaintiff did not seek a wider reUef . Whether he obtained any or what relief does not appear. (ii) Henry YI. (no year). — John Jonesse v. John Peneley and Wm. Peneley (2 Calendar, 35), is a suit on a contract entered into between Wm. Peneley and the plaintiff for the sale of a house and garden at Berkhampstead, of which John Peneley was feoffee to the use of Wm. Peneley, in which the plaintiff alleged that the purchase-money had been partly paid. (iii) Henry VI. (no year). — Furhy v. Martin and Bamme (2 Calendar, 40). A very similar case to Jonesse v. Peneley, but in this case the sale was of a manor, and the time for comple- 1 By Prof. Ames in "The Green Bag." Vol. I. No. 1, p. 26, published at Boston, Mass. 684 ADDITIONAL NOTE C. tion at the place fixed, viz., the parish church, had passed, and no deed had been executed. (iv) 27th Henry VI. — Lord Scales v. Bame Katherine Felhrigge and John Dame (2 Calendar, 26), was a suit brought to compel the defendants to make an estate to the plaintiff in reversion, in accordance with a pm-chase on which the plaintiff alleged that he had paid the purchase-money. A decree was made. (v) Tear Book, 8th Edw. IV. 11, pi. 4 B.— The defendant had promised the plaintiff j?er_/?rfeTO to indemnify him in his occupa- tion of the defendant's benefice, as proctor for the defendant: the defendant made default, and thereupon the plaintiff sued out a subpoena in Chancery. Genney, who appeared for the defendant, raised various objections, as that by reason of the pledge of faith the proceeding ought to have been in the Court Christian, and not in Chancery, and that it was the plaintiff's own folly that the promise was not in a deed on which an action at law might have been maintained. But the Chancellor overruled all these objections, and said that the plaintiff should have relief in Chancery. Genney, in the course of the argument, admitted that if I promise you to build you a house or to make over a house to you [de fairs a vous un meason), and break the promise, you shall have remedy by subpoena.^ The case is interesting as showing the connection of the jurisdiction in specific perform- ance with the old jurisdiction of the Ecclesiastical Courts in cases of Lcesio fidei. (vi) Tear Book, 21st Henry VII. 41, pi. 66. — In this case Fineux C.J., in discussing the extent of the action on the case observed, that if one bargains with me that I shall have his land to me and my heirs for 20/., and that he will make the estate over to me, and I pay the 20/., but he will not make over the estate to me according to the covenant, I may have an action on the case and am not bound to sue out a subpoena. (vii) 1 Edw. VI. — Carrington v. Humphrey, Tothill, 14. (viii) 11 & 12 Wiz.—Pope v. Mason, Tothill, 3. (ix) 12 ISlh.—Hungerford v. Sutton, Tothill, 62. (x) 25 'Eliz.—Benther v. Benlon, Tothill, 3. (xi) 29 Eliz. — King v. Boydon (the Practice of the High Court of Chancery, 1672, p. 42 b). (xii) 41 Eliz. — Beeston v. Langford, Tothill, 14. ' This is, I believe, a fair statmuent of the case, but in points I feel some uncertainty. ADDITIONAL NOTE C. (xiii) 7th James I. — Throckmorton v. Throckmorton, Tothill, 4. This case is interesting, as the decree is said to have been made by the judges' advice. (xiv) 11th James I. — Bates v. Heard, Tothill, 4. (xv) (undated) . — Foster v. Eltonhead, Tothill, 4. (xvi) 14th James I. — Bromage v. Gennings, Eolle, 354, 368. Bromage sued Gennings in the Court of the Marches of Wales for not executing a lease according to his bargain, and from the statement of the plaintiff's counsel it appears to have been a suit for specific performance, and not to recover damages, and this, he added, is usually done in Chancery. Thereupon the defen- dant moved for a prohibition and obtained it, Coke, Doddridge, and Haughton saying that Chancery ought not to do so, for then to what purpose are the actions on the case and covenant ? and Coke added that this would subvert the interest of the covenantor, who understands that it is at his election either to lose the damages or to make the lease. Doddridge observed that if a decree was made for the execution of the lease, and he did not choose to execute it, there would be no other remedy than imprisonment. So complete was the unanimity of feeling in the Court, that Serjeant Harris, the plaintiff's counsel, said that the part he took in the matter was against his conscience. It may be added that the 10th volume of the publications of the Selden Society, intituled, "Select Cases in Chancery," contains (see especially pp. xxxv — xxxvi) particulars of several interesting cases illustrative of the early jurisdiction in specific performance. Some of these appear to be mixed cases of specific performance and trust, or specific performance and fraud. They are worthy of attention. 685 ( 1 ) INDEX [The figures refer to the pages.] ABANDONMENT, delay amounting to, 476. evidence of, 444, 476. of contract, 442, 444, 476. of right to rescind, 454. And see Eescission ; Waivee. ABATEMENT, mode of calculation of, 543, 544. purchase-money, from, 528, 539, 540. purchaser's right to enforce contract with, 538. rent, of, 446, 448. road not " made up,'' for, 544. specific performance with, 538, 539, refused, 543, 545, 546, 551, 552. And see Compensation. ABSTEACT OF TITLE, condition for delivery of, 471. delay in delivering, 472, 599. effect of delay in delivery of, 602. examination of, after time for completion, 482. perfect, 517, 518, 602. retaining, without making obiections, 574, 575. TIME (q.v.) for delivery of, 466, 471. verification of, 516, 575, 588. when complete, 586, 587. ACCEPTANCE, acts, by, 129, n., 131, 137. agent of proposer, communicated to, 131. ambiguous, 121. communicated, must be, 120, 125. conditional, 121, 122, 230. constituting contract, 120. delay, without, 120, 126. essentials of, 120. 2 [The figures refer to the pages.] ACOEPIA'NO^— continued. expression of hope, ■with., 124. formal contract, referring to, 125. goods, of, 257, 258. indulgence, granting, 125. institution of action, by, 130. marriage, evidenced by, 131, 137. must be by the party to whom offer is made, 120. new term, introducing, 121, 123. what is not, in an, 124. nugatory variation, with, 124. of one of two alternatives, 130. parol, 130, 131. plain, 120. posting letter, by, 125, 126, 131. promise or eephesentation {q.v.), by acting on, 131. receipt of, 131. EETBACTATION {q.v.) before, 120. simple, 230. subject to title being approved by solicitors, 124, 230. time of, 131. TITLE {q.v.), of, 375, 477, 567. unauthorized, by a stranger, 129, 677. unconditional, 120, 122. uneqidvocal, 120, 121. without variance from offer, 120, 122. written, 130. And see Peoposai. ACCOMMODATION WORKS, contract relating to, 43. ACCOUNT, action for, 364. decree for, 402. rents and profits, of, 493. ACQUIESCENCE, breach of covenant, in, 477. corporation, by, 219. in variance from prescribed mode of renewal, 186, 340. in vendor's proceedings for acquiring estate, 582. not amounting to waiver, 575. notice of refusal to perform, in, 478. payments and possession not amounting to, 481. possession of stranger, in, 265. self-deception of buyer, in, 312. ACEEAGE, abatement for deficiency of, refused, 545. proportioned to, 543, 544. compensation after conveyance for deficiency of, 549. [The figures refer to the pages.] ACT OF BANKEUPTOY, 414. See Banketiptoy. ACT OP GOD, alternative rendered impossible by, 437. delay arising from, 599. restoration precluded by, 326, ACT OP PARLIAMENT, vendor allowed time to obtain, 580. ACTION, after vendor and purchaser summons, 489. for specific performance, proceedings in, 485 et aeq. of review, 490. on the case, 14. special case stated in, 487. transfer of, 486. ACTOE, contract by, 166, 367, 368, 369. ACTS IN CONTEAVENTION OP THE CONTEACT, a ground of defence, 417 et seq. conduct inconsistent with condition of sale, 423. evidence of agreement to rescind, 417. forfeiture, which would have worked, 417. gross and wilful, 418. LEASE {q.v.), under contract for, 417. And see COVENANT, notice of intention to resell, 423. railway company, by, 423. repair, in respect of covenants to, 418. small breaches of good faith, 423. waste, 417. ACTS OP OWNEESHIP, acceptance of title worked by, 574. affecting vendor's lien, 574, 616. before or after knowledge of objection to title, 572, 574. EATMENT INTO CoUET {q.v.) on the ground of, 574, 616. receiver, justifying order for, 574. waiver of objections worked by, 574. ADMINISTEATOE, durante minoritate, 389 n. ADMISSION, assumed, unless denial express, 250, 251. death of party after making, 251. executors, by, 251. parol contract, of, 250. pleadings, in, 250, 276, 571. purchaser, by, 251. title, of, 571. vendor, by, 251. r. Y T 4 [The figures refer to the pages.] ADOPTION, of contract by third party, 143. ADVEESB CLAIMANT, brought into litigation, 392. ADVOWSON, compensation on sale of, 377 n., 538, 543. contract for sale of, 312, 377 n., 538, 543. injunction in connection with sale of, 499. AFFIDAVIT, . may satisfy Statute of Frauds, 226. AGENCY, 108. cases of, an exception to general rule respecting parties, 80, 108. contracts of, 48. direct evidence of, 236. fact, a question of, 241. inference of, 236. ratification in place of, 237. BEPRESENTATION (g.V.) of, 236. unauthorized, 237, 677. AGENT, appearing on face of contract as principal, 108. appointed to negotiate, 235. appointment of, 236. AUCTIONEEB (q.v.), 113, 238, 239. authority of, 109, 236. authorized to sign contract, 235, 236. breach of duty by, 181. claiming to have contracted for his own benefit, 110, 112. clerk of, 239. communication of acceptance to, 131. contracting as agent, 108. Crown, for the, 110. director, 110, 288. for proposing party, 131. FEATTD (q.v.) by, 317, 318. INCAPACITY [q.v.) of, to perform contract, 112. interest in the property, claiming, 112. letters recognizing contract, 240. MISEEPBESEITTATION {q.v.) by, 288, 290. to, 304. mistake by, 332, 334. not stakeholder, 114. personal qualities relied on, where, 109. power of attorney, appointed by, 241. EATIFICATION (q.v.) of contract of, 237. receipt of secret commission by, 182 n. [The figures refer to the pages.] 5 A-OBWI— continued. requested to find purcliaser, 236. revocation of authority of, by death of principal, 240. proved by parol, 240. signature by, 232, 235. SOLICITOB {q.V.), 240. stakeholder of deposit, 112. sued with principal, 110. ■without principal. 111. suing as principal, 90, 91. at Common Law without principal. 111. in Chancery, 111. telegraph clerk, 232, 240. unassignable, where contract is, 109. unauthorized stranger actiag as, 677. unnamed principal, of, 109, 110. when a proper party to action, 80, 90, 91, 108 et aeq. AaEEEMENT, definitions of, 1, 2. And see Contract. ALLOWANCE, contract to pay, 204. ALTEENATIVE, claims, 177, 457, 556, 622, 625. contract, 374, 436, 556. impossibility of one, 436 et seq. one, prevented by obligee, 440. by stranger, 440. proposals, 130. relief, 50, 457, 556. remedy, 30, 261. AMALGAMATION, companies, its effect on contracts of, 98, 436. contract for, 365. results of, 436 n. AMBIGUITY, COiroiTIONS OF SAliE [q.v.) or particulars, in, 514. latent, in writing used for rectification of deed, 346. vendor's statements, in, 296. AMENDMENT, 50, 279. ANCIENT LAWS, as to contracts, 4 n. ANNUITANT, death of, 400, 402. yy2 6 [The figures refer to the pages.] ~ ANNUITY, charged on expectancy, 643. contract lor, 143, 349, 395, 402. contract to sell for, 400. sale of, after death of annuitant, 395. - sold with, reversion, 200. APPRENTICE, contract to be, 48, 116. contract to teach, 88. APPEOPEIATION, of purchase-money, 595, 600, 609, 610. And see Interest. APPEOVAL, of draft, not a contract, 227 . of title, contract subject to, 227 n. AEBITEATION, contracts to refer to, 670, 671. inequitable refusal of plaintiff to refer to, 670. provisions of Arbitration Act, 1889. ..671. under Lands Clauses Act as to purchase-money, 55, 622. AEBITEATION ACT, 1889.. .671. not applicable to valuers, 153. AEBITEATOE, ascertainment of compensation by, 56. award in excess of authority of, 667. distinguished from valuer, 153. misconduct of, 174, 669. rent referred to, 174. AETICLES OF ASSOCIATION, how far a contract, 119, 235. signatures affixed to, 235. ASSENT, final and mutual, to certain terms, 229. subject to provision as to formal contract, 229. ASSIGN, cannot by notice prevent completion with his assignor, 97. enforcement of contract by, 90, 91, 97. insolvency of, 416. intended lessee, of, 93. notice of previous contract, with, 98, 99. of contract by way of mortgage, 91. recognised as tenant, 95. volunteer, 98. [The figures refer to the pages.] ASSIGNEE, BANKRUPTCY (q.v.), in, Suing, 95. in insolvency, contract for lease enforced against, 99 n., 275. lease to, 90 n. ASSIGNMENT, agreement amounting to, 27. amalgamation of companies, upon, 98. contract, of, 90 et seq. exceptions from general rule as to, 91. EXPECTANCY {q.v.), of, 96. family arrangement, where, 95. general rule as to, 90. illegal, 91. imposing increased liability upon one party, 92. MISREPRESENTATION (q.v.), of contract affected by, 304. offer, of, 97. personal contracts, of, 91 — 95. pretended rights or titles, of, 96. property, of the, 98. provision against, where, 91, 95. waived, 95. public policy, contrary to, 91, 97. right at the time undisputed, of, 96. to bring action, of, 96. set-off, where there is, 93. statutory powers, of, 97. voluntary, 98. ASSIGNOE, completion of contract with, 97. insolvent, 90. when a party, 90. ASSISTANCE, writ of, 509. ATTACHMENT, against person of married woman, 656, 657. enforcement of order by, 505. ATTOENEY'S "BUSINESS, contract for sale of, 39. AUCTION, DEPOSIT (q.v.) at, 619. sale by, before a master, 250. ordinary, 250. AUCTIONEEE, agent of vendor and of purchaser at auction, 113, 238, authority of, 238, 239. 8 [The figures refer to the pages.] ATJOTIONEEE— confcMcof. cannot bind purcliaser by signing memorandum a week after sale, •238, 239. clerk of, bow far purchaser's agent, 239. confirming contract " on bebalf of the vendor," 150. contract to employ, not enforced, 48. co-plaintiff, 113. deposit, his rights and liabilities in respect of, 113, 622. entry of contract in book, 243. interpleading, 113, party, when made a, 113, 623. receipt of, set up as a contract, 1 58. right to sue for deposit, 113. selling by private contract, 238. solicitor for vendor, 113. stakeholder, 113. substitute, may not appoint, 239. taking purchaser's I U, 113 n. AUTHOE, contract by, to complete work, 88, 92. AUTHOEITY, of counsel, 663. to sell, 236. AWAED, alternative directions, giving, 43Y. defect in, owing to defendant, 669. defective or excessive, 668. exceeding arbitrator's authority, 667. founded on unreasonable or unfair submission, 668. hard, 184. ILLEGAIilTY {q.v.) of, 214. partial execution of, 359. setting aside, 669 n. specific performance of, 666 et seq. uncertain, 437, 669. unreasonable, 184, 667. unsuccessful proceedings to set aside, effect of, 49, 423. BAILIFF, accountability of, 604. to purchaser, vendor in possession is not, 603. BANKETJPT, contracting party, 98. vendor, 98, 414. [The figures refer to the pages.] 9 BANKRUPTCY, act of, a bar to action for specific performance, 414. assignees in, suing, 95. dealing -witliout sufficient knowledge, 182. sued, 275. does not^ej" se discharge contract, 415. its effect on personal contracts, 91. trustee in, covenants by, 414. disclaimer by, 98, 415. enforcement of contract by, 414. specific performance against, 415. BANKBIJPTCY ACT, 1883, disclaimer under, 98, 415. rescission under, 415 n., 462. BEEE SHOP, carrying on, 420. BIDDINGS, opening, 396, 397. And see Puffee. BILL OF BEAOEEY AND BUYING OF TITLES (32 Henry VIH. c. 9), 95, 96, 431. BILL OF LADING, stipulation as to leakage and breakage in, 598. BILL OF SALE, transfer of ship {q.v.) by, 647 et seq. BOND, alternative conditions, containing, 437. ante-nuptial, 24. contract contained in condition of, 61. evidenced by, 60. to give, 360. relief from penalty of, 434. And see Penalty. BOUND AEIES, ascertaimnent of, 146, 147. between freehold and leasehold, 378. BEACTON, note-book, 11. BEEACH, by anticipation, of contract, 469. COVENANT {q.v.}, of, 477. duty, of, 181, 182. prejudicial to shareholders, 182. repeated, 38. separate, 455. 10 [The figures refer to the pages. J BREACH OF TEUST, assignees in bankruptcy, by, 182. contract necessitating, 178. trustees for sale, by, 179. BEOKEK, 627 et seq. contract to employ, 372. BEOTHEL, property used as, 377 n. BUILDING CONTEACT, anciently enforced, 36, 37, 41. defined work to be done, 43. house to be built and leased, 42, 144. inability of Court to enforce, 41. Lord Cairns' Act, since, 42, 144. market-house, for erection of, 44. plaintiff's interest in, material, 43. possession obtained, where, 43. uncertainty of, 41. where Court will enforce, 43. And see Eailway ; Siding. BUEDEN OF PEOOF, 118, 199, 202. See Onus. BUSINESS, attorney's, 39. contract to give whole time to, 372. contract to leave capital in, 168. sale of goodwill of, 39. CALLS, made before contract, 636. time essential in payment of, 469. CANAL, covenant to repair, 45. CANON LAW, cognizance oifidei Icssio, 10. probable origin of jurisdiction in specific performance, 9. And see Courts CHuisTLiN. CAPACITY, to contract, 115 ei seq., 651. to perform contract, 115, 430. when to be judged of, 115, 430. And see Inoapaoitt ; Inoapacity to contract. CATCHINa BAEGAINS, relief against, 201, [The figures refer to the pages.] 11 OEETAINTY, boundaries, by ascertainment of, 147. essential in contracts, 142. less required in cases of featjd (q.v.), 168. reasonable, 164. requisite amount of, 164. user and course of dealing, given by, 165. And see Uncestaintt. OEETIPICATE, against the title, but defect cured, 584. should state the defects, 583. application to discharge or vary, 583. form of, upon inquiry as to title, 583. how objected to, 583. in favour of title, 583. objecting to, before signature, 582 n. reference back of, 584. result of inquiry as to title, of, 582. scrip, contract to deliver, 429. summons to vary, purchaser discharged from contract on, 512. time for delivery of, on sale of shares, 469, 629. CESTUI QUE TRUST, contracts injurious to, 179, 180. of contracting party, 80. unfairness towards, 179, 180. And see Pabties. CHAMPERTY, contract tainted by, 214, 215. doctrine of, 96. CHANOEEY, probable origin of jurisdiction in, 14. CHANOEEY DIVISION, actions for specifio performance assigned to, 485. transfer to, 486. OHAEIOT, contract to supply, 92. CHAEITABLE COEPOEATION, contract by, to seU land, 430. CHAEITY, contracts for purposes of, 49. CHAEONDAS, principle of, 5. 12 [The figures refer to the pages.] CHAETEE-PAETY, effect of exception in, as to pirates, 598. negative term implied in, 369. specific performance of, 33 n., 370. CHATTELS, connected with, enjojonent of estate, 36. convenient, 36. delivery of, 6, 16. part of contract, 33 n. essential, 36. execution for return of, 6. generally Court refuses to interfere in respect of, 28, 33. implication of existence of, 393. instabnents, delivery of, and payment for, by, 37. negroes, 34 n. peculiar value, of, 35, 370. pretium affedionis, having, 33. price agreed on, where, 35. specific, 35. unique, 33. CHATJOEE, contracts mentioned by, 12. CHEQUE, for DEPOSIT iq.v.), 619. CHOSE IN ACTION, contract to assign, 22. CHUEOH OOtJETS, 8. And see Couets Oheistian. CICEEO, on concealment, 307 n,, 311 n. CIBCVM8PEGTE A&ATIS, 11. CLAEENDON, Constitutions of, 11. CLEEK, of auctioneer, 239. telegraph, 240. C©ACH BUILDEE, contract with, 92. COAL, contract for sale of, from particular colliery, 36, 371. supply of, 468. COAL MINES, contract to work, 42. [The figures refer to the pages.] 13 OOLLATEEAL CONTRACT, 252, 253. default by plaintiff in respect of, 409. COLLIEEY, 371, 469, 478, 528, 566. See Mines. COMMENCEMENT, of term of years, 162. COMMON LAW, action for return of deposit, 624. as to forfeiture, 21, 418, 420. averment by plaintiff of performance, 408. incapacity of married woman, 651. its approaches to specipic peefoemance (q-v.), 5. Parliamentary contract not enforced at, 56. penalty and liquidated damages, difference between, 61. performance not enforced by, 4. remedy, 20. adequate, 28 et seq., 58. inadequate, 26. lost by default of plaintiff, 21. less beneficial, 27. partial, 27. personal responsibility of defendant, dependent on, 27. unavailable, 21, 24. want of exactitude in, 28. struggle of, with. Canon Law, 11. Chancery, 14. suing ia Equity after proceeding at, 49. supplemented by equitable jurisdiction, 26. COMMON LAW PEOCEDUEB ACT, 1854, arbitration, as to, 671. delivery of chattels, as to, 6. injunctions, as to, 502. mandamus under, 6. valuers did not come under, 153. COMMUNICATION, by post, 125, 131. essential to contract, 1. of acceptance, 125, 131. COMPANIES ACT, 1862, appHoation to rectify register under, 491. transfers after winding-up, as to, 639, 640. COMPANIES ACT, 1867... 283, 310. COMPANIES ACT, 1900.. . 292 n., 310. COMPANIES CLAUSES CONSOLIDATION ACT, 1845... 282. 14 [The figures refer to the pages.] COMPANY, amalgamation of, 98. contract to form, 41 n. intra vires and iDenefioial to, 104. contracts on behalf of, 282, 283. hardship in contract of, IBS, 191. liabiKty of, on contracts, 101. Lord Cottenham's doctrine criticised, 106, 107. member of, contract to become, 40. promoters' contracts, taking benefit of, 103. recognising, 103. ultra vires, 105, 106. warranted by terms of incorporation of, 103, 105. And see Corporation ; Railway ; Ultra Vires. COMPENSATION, 522 et seq. abatement from puicbase-money, by, 528, 539, 540. rent, by, 540. acreage, for deficiency in, 544, 549. advowson, on puroliase of, 377 n. calculating, mode of, 543, 544. where no data for, 534, 544, 546, 552. . case for, should be pleaded, 523. charge for portions, in respect of, 546. completion, claimed before, 546, 548. rigbt to, after, 547, 549. condition for, 531 et seq. aflecting condition as to rescission, 455. considerable deficiency of area, in case of, 650, 551. construction of, 531, 548, 549. cumulative, 548. enforced notwithstanding execution of conveyance, 649. if any omission in particulars discovered, 662. not applicable where misrepresentation, 617, 531. purcliaser's rights, its effect on, 548 et seq. right of way not within, 533. usually extends vendor's rights, 531, 532. copyhold, in respect of, 532, 535, 536. cy-pres execution of contract, 641. DAMAGES {q.v.) a species of, 553. distinguished from, 554. defect not essential, where, 379, 627. of, or appearing on investigation of, title, for, 523, 648. DETERIORATION {q.v.), for, 647, 604, 607. difference between positions of vendor and purchaser as to, 622, 637. dry-rot, for representation as to, 630. equitable redress for non-essential breach, 21. essential and non-essential defects, 524. [The figures refer to the pages.] 15 COMPENSATION— confet, 131. 10». Chanoeet (Including Collateral Reports) (1557 to 1866). 27 Vols. Halt-bound. iVrf, iOl. 10*.' Rolls CouET (1829 to 1866). 8 Vols. Half -bound. Mf,12l. ViCB-CaufCBLLOEs' CouBTS (1815— 1866). 16 Vols. Halt-bound. Net, 2il. Now Ptjblishino. Kjnq's Bench and Queen's Bench (1378 — 1865). Complete in about 32 Vols. Net, per vol., 11. 10s. *jis* The Volumes are not sold separately. Prospectus on application. 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