^ ' t *
'
•J'',
'ij,A:C'^i
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
Univ. ot California
Witlidrawn
3KLKCXIONS
LEAKE'S ELEMENTS OF THE LAW OF CONTRACTS
FINCH'S CASES ON CONTRACTS
ARRANGED AS A TEXT-BOOK FOR LAW aTUDENTS
WILLIAM A. KEEXER,
Professor of Law, and Dean' of the Faccltt of Law is Columbia Collkok.
VOLUME I.
NEW YORK;
BAKER, VOORHIS & COMPANY.
1891.
T
COPYKIGHT, 1891
By baker, VOORHIS & CO.
JURISPRUDENCE
^
">
^ TABLE OF CONTENTS.
CHAPTER I.
The Formation of Contracts.
yol. i.— page
oection I. Simple contracts arising from agreement 1
II. Contracts under seal 26
III. Contracts of record 3q
IV . The statute of frauds :
§ 1. Contracts within the statute 43
§ 2. Forms and conditions required by the statute of frauds 56
§ 3. The effect of the statute of frauds 73
CHAPTER II.
The Matter of Contracts.
Section I. The consideration 80
II. Impossible contracts 97
CHAPTER III.
Offer and Acceptance (Cases) 113
CHAPTER IV.
Form of Contract (Cases).
Section I. Contract under seal 278
II. Statute of frauds 301
CHAPTER V.
Consideration (Cases).
Section I. Description of consideration 363
II. Necessity of consideration 359
III. Adequacy of consideration 381
IV. Compromise and forbearance 400
V. Unreal consideration 423
VI. Executory consideration 461
VII. Executed consideration 47I
671 0-74
jy TABLE OF CONTENTS.
CHAPTER VI.
Pabties to Contracts.
vol. i.— page
Section I. Of parties in general 500
II. Capacity of parties 512
CHAPTEE VII.
Capacity of Parties (Cases).
Section I. Infants 533
II. Lunatic and drunken persons 553
III. Married women 567
CHAPTER VIII.
Mistake, FRArD a>'d Duress.
/Section I. Mistake 583
II. Fraud 593
in. Duress 613
CHAPTER IX.
Reality of Consent (Cases).
vol. II.— page
Section I. Mistake 617
II. Misrepresentation 655
m. Fraud 759
IV. Undue influence 793
CHAPTER X.
Illegal Contracts 816
CHAPTER XI.
UiiLAwnTL Agbeements (Cases) 846
CHAPTER XII.
Thk Pbobuse 864
CHAPTER XIII.
The Discuaroe of Contracts.
Section I. Discharge of contracts by agreement 884
II. Alteration of written instrument 898
III. Performance of contract 902
IV. Tender 914
V. Brt-ach of contract 921
VI. Accord and satisfaction 926
VII. Payment 93O
TABLE OF CONTENTS. V.
VOL. n.— PAGE
Section VIII. Release 951
IX. Merger and estoppel 958
X. Arbitration and award 965
XI. Statutes of limitation 970
Xn. Set-off 989
XIII. Bankruptcy 998
CHAPTER XIV.
Discharge of Coxtract {Cases).
Section I. By agreement 1005
II. By breach 1052
CHAPTER XV.
Damages 1089
CHAPTER XVI.
Remedies for Breach of Contract (Cases) 1119
CHAPTER XVn.
Assignment of Contracts.
Section I. Assignment by act or agreement of the parties 1146
II. Covenants annexed to estates in land 1157
III. Assignment of contracts by marriage 1169
IV. Assignment of contracts by death 1174
V. Assignment of contracts by bankruptcy 1181
TABLE OF SELECTED CASES.
Adams v. Lindsell 225
Agra and Masterman's Bank, In re.
Ex parte Asiatic Banking Cor-
poration 135
Alderson v. Maddison 691
Alliance Bank o. Broom 413
Anonymous, Year Book, 8 Edw.IV. 1111*
" 3 Hen. VII. 1120
" 21 Hen. VIL 1120
Attwood V. 409
Bailey v. Sweeting 356
Bainbridge v. Firmstone 383
Bannerman c White 680
Bayley v. Merrel 759
Behn v. Burness 655
Bettini v. Gye 1084
Bid well V- Catton 400
Bilborough v. Holmes 1027
Bingham v. Bingham 640
Birkmyr v. Darnell 3.U
Bolton V. Madden 384
Boone v. Eyre, cited at length 1060
Boulton V. Jones GSS
Bret V. J. S. and Wife 382
Britain v. Rossiter 348
Brooks V. Haigh 386, 392
Burke v. South Eastern Railway Co. 181
Burnard v. Haggis 549
Butler V. Butler 576
Byrne v. Van Tienhoven 226
Callisher v. Bischofifsheim 415
Carpenter o. Heriot 793
Carter v. Boehm 716
Cherry v. Heming 344
Clermont v. Tasburgh 78:3
Collen V. Wright I134
Collins V. Blantern 846
Cooke V. Oxley 201
Couturier v. Hastie 635
Cundy v. Lindsay 625
Dent V. Bennett 802
Deposit Life Assurance v. Ayscough 787
Dickinson v. Dodds 215
Dunlop i\ Higgins 231
Dunmore, Countess of, v. Alexander 244
Dutton V. Thompsoii 810
Eastwood V. Kenyon 427
Edwards v. Weeks 1005
Edwards i\ Wickwar 740
Eliason v. Henshaw 153
England v. Davidson 472
Felthouse v. Bindley 148
Fenton v. Emblers 341
Fetherston v. Hutchinson 846
Fisher v. Richardson 40O
Fitch V. Sutton 443
Flight V. Booth 734
Flight V. Reed 488
Foakes v. Beer 450
Foster ». Da wber 1011
Foster v. Mackinnon 617
Foster v. Redgrave n. 539
Fowle V. Freeman 302
Franklin v. Miller 1058
Freeman v. Cooke 706
Freeth v. Burr 1061
Frost V. Knight 1067
Glaholm v. Hays 668
Goddard v. O'Brien 441
Good V. Cheesman 445
Goss V. Lord Nugent 1015
Gray v. Gardner 1033
Great Northern Railway Co. v.
Witham 396
Hadley v. Baxendale 1123
Haigh V. Brooks 386
Harris v. Great Western Railway Co. 165
Harris v. Nickerson 118
Harris's Case 251
Harrison v. Cage 461 .
Hartley v. Ponsonby 436
Harvey v. Youn^c 759
Hebb's Case 248
Henderson v. Stevenson 156
Hoadly v. M'Laine 465
vni
TABLE OF SELECTED CASES.
Holman v. Johnson
Household Insurance Co. v. Grant
Huguenin v. Baseley, Sir S. Romil-
ly's reply "•
Hyde v. Wrench
Hylton V. Hylton
Imp. Land Co. of Marseilles, In re 2-51
546
401
849
259
807
199
796
Jennings v. Rundail
Jones V. Ashburnham
Kaye v. Dutton 479
Kibble, Ex parte 53-3
King V. Gillett 1008
Kingston v. Preston 1076
Lampleigh r. Brathwait 477
Langden v. Stokes 1005
Lavthoarp v. Bryant 305
Leask v. Scott 418
Lee V. Jones 741
Lees V. Whitcomb 463
Lilley r. Doubleday 1143
London Assurance v. Mansel 727
Loyd V. Lee 401
Matthews v. Baxter 566
Mavor v. Pyne 1054
May V. King 1006
Maj-ne's Case 1052
Medina v. Stoughton 761
Molton V. Camroux 553
Montefiori v. Montefiori 702
Morton v. Lamb 1078
Mountstephen r. Lakeman 332
Moyce o. Newington 789
National Savings Bank Association,
7/1 re 248
Nichols V. Rayiibred 461
Nugent V. Smith 1040
Offord V. Davies
Parker v. Ibbetson
Payne v. Cave
Pearce v. Brooks
Piekardr. Sears
Pillaiis V- Van Mierop
Pinnt'l's Case
Pl<'vins V. Downing
Poihlll V. Walter
202
1035
114
853
703
369
440
1022
771
Pordage v. Cole
Proof V. Hines
Pybus V. Smith
Raffles V. Wichelhaus
Ramsgate Victoria Hotel Co. v.
Goldsmid
Ramsgate Victoria Hotel Co. v.
Montefiore
Rann v. Hughes
Reuss V. Picksley
Risney v. Selby
Roberts v. Watkins
Robinson v. Harman
Roscorla v. Thomas
Routledge v. Grant
Ryder v. Wombwell
Sanky v. Golding
Scotson V. Pegg
Shardlow v. Cotterell
Sidenham v. Worlington
Slim V. Croiicher
Smith V. Hughes
Smith V. Reese River Co.
Spencer v. Harding
Sturlyn v. Albany
Tarrabochia v. Hickie
Taylor v. Brewer
Taylor v. Hilary
Taylor v- Laird
Thomas v. Cook
Thomas v. Thomas
Tweddle v. Atkinson
Victors V. Davies
Ward V. Hobbs
Ware v. Chappel
Warlow V. Harrison
Watkins v. Rymill
Week V. Tibold
Welford v. Beazely
Wennall v. Adney, note to
Williams v. Carwardine
Williams v. Jordan
Winn V. Bull
Withers v. Reynolds
Wolverhampton Banking Co., Ex
parte
Xenos v. Wickham
1074
799
568
642
213
213
379
313
761
574
1121
474
207
537
567
457
324
471
709
644
778
116
381
676
195
1020
140
338
363
423
486
762
1073
121, 129
185
195
301
n. 496
113
321
196
1055
859
278
SELECTIONS ON CONTRACTS.
VOL. I.
CHAPTER I.
THE FORMATION OF CONTRACTS.
Section I. — Simple Contracts arising from Agreement.*
Agreement 1
Promise 2
Consideration ....• 3
Form of Simple Contracts by
Agreement 4
Offer and Acceptance of Term? ; ^ , ?
Contracts upon Executed Consi-
derations y. ........ 13*;
The different kinds of contract.— Contracts in the English law
are generally di\ided into three khids, distmguished by their diif erent
modes of formation, — namely, Simple Contracts, Contracts mider Seal,
and Contracts of Record. It is proposed to treat of them m the above
order, commencmg with Simple Contracts, because the rules and
principles relating to the formation of contracts of that kind are of a
less technical and more elementary character than those relating to
the other kuids of contract.
Simple contracts may be divided into two classes, according to the
sources or causes from which they arise, — namely, simple contracts
arising from agreement, and simple contracts arismg mdependently of
agreement, the latter of which classes is commonly known as contracts
implied in law (a).
Agreement. — Agreement consists in two persons being of the
same mind concerning the matter agreed upon. The state of mind or
mtention of a person, bemg impalpable to the senses, can be ascer-
tained only by means of outward expressions, as words and acts. Ac-
cordingly, the law judges of the state of mind or mtention of a per-
son by outward expressions only, and thus excludes all questions con-
cerning intentions unexpressed. It imputes to a person a state of
mind or intention corresponding to the rational and honest meanmg of
his words and actions ; and where the conduct of a person towards
another, judged by a reasonable standard, manifests an intention to
(a) Compare the terms ex contractu
and quasi ex contractu in the civil law ;
see 3 Austin's Jur 133, 223 Maine's
Ancien Law, 344, also Code Civil, 1.
Vol. I— 1 * Ch. I, Sect.
3, t. 3, " Des contrats ou des obligations
conventionnelles " and t. 4, '• Des en-
gagements qui se ferment sans conven-
tion. '
I, ?■ !, Leake.
/!
2 CHAP. I. FORMATION OF CONTRACTS.
agree in regard to some matter, that intention is established in law as
a fact, whatever may be the real but unexpressed state of his mind on
the matter (a). Agreement further imports that there should be a
mutual communication between the parties of their intentions to agree.
Consequently the law judges of an agreement between two persons exclu-
sively from those expressions of their intentions which are communicated
between them ; and an intention not so communicated though expressed
by other means, as by communication to a third person, is immaterial
to the question of agreement (b). In judging of intention from a per-
son's words and conduct, where his acts are inconsistent with his
words, the former are in general accepted as a more reliable guide to
the mtention than the latter; and the conduct may in some cases
determine the intention even in opposition to the words, — according
to. the .malim, " non quod dictum sed quod factum est mspicitur'''' (c).
.' Agi'eement, as a juridical fact, has a varied and extensive effect in
or^ajting,, modifying, and extinguishing rights throughout all branches
of 'law J and in the law of contracts it is efficacious not only in creat-
ing simple contracts, but also in varyuig and rescinding them. Agree-
ment is also an element m the formation of contracts under seal,
though it appears therein only through certain prescribed formalities.
Promise. — In an agreement as the source of a legal contract, the
matter agreed upon must import that the one party shall be bound to the
other in some act or performance, which the latter shall have a legal
right to enforce. The signification of an intention to do some act, or
observe some particular course of conduct, made by the one party to
the other, and accepted by him, for the purpose of creating a right to
its accomplishment is called a 2'>romise (d). The parties to a promis'e-^
are respectively called the pj^oim'ser and 2>^omisee, which expressions ^
also serve to designate the parties to a contract founded on an agree- '
ment containing a promise. When an action is brought upon such a
contract the promisee and promiser appear respectively in the posi-
tions of the plaintiff and the defendant and are commonly referred to
in those characters.
Promissory expressions reserving an option as to their performance
do not constitute a promise, and are not sufficient to create a contract.
Thus, where an employer engages a servant upon the terms of paymg
(rt) Corn'iHh v. Ahinqton, 4 H. & N. Browne v. ITare, 3 H. «fe N. 484, 495;
54Si; 'JS L. J. I':x. 202; Alexander v. 27 L, J. Ex. 372, 376.
Wormnn, (ill. & N. 100, 112; 30 L. J. (c) Co. Lit. 3Ga; Croft v. Lumley G
Ex. 19H, 202; Van Toll v. Sonth-J'Jast- H. L. C. 672, 722; 27 li. J. Q. B. 321,
em liy. Co., 12 C. B. N. S. 7o; 31 L. J. 337; In re Steer, 3 H. & N. 594; 28 L.
C. P. 241 ; Polhill V. Walter, 3 B. & Ad. J. Ex. 22.
114; Pickard v. .Seer>f, 6 A. «k E. 469; (d) 1 Austin's Jur. 279; Maine's An-
Frn-mnn v. Cooke, 2 Ex. 654. ciont Law, 323; Pothier, Obi, §§ 3, 4;
V>) .Sr;e CVjx v. Troy, 5 B. & Aid. 474; Code Civil, § llOL
Jleinekey v. Eurlc, b E. & B. 410;
SECT. I. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 3
the servant such remuneration as the employer shall please, the
employer is not bound in law to pay anything («). A person, in
answer to a suitor for his daughter, wrote, « I shall allow her the
interest on £2000, whether she remams single or marries ; if the lat-
ter, I may bmd myself to do it, and pay the principal at my death to
her and her heirs." This was construed not to import an intention to
give a binduig promise, and consequently was held not to create a con-
tract (b). Upon the principle that expressions not intended to be bind-
ing do not constitute a promise, it is held that commendatory expres-
sions concerning the quality of goods made upon a negotiation for sale,
without intendmg to warrant the quality, do not create a contract of
warranty; — according to the maxim of the civil law, simplex com-
mendatio non ohligat (c).
Consideration.— It is further necessary in the English law that an
agreement, m order to create a legal contract, should include in the
matter agreed upon, besides a promise, what is called a consideration
for the promise. The consideration may be described generally as
some matter agreed upon as a return or equivalent for the promise
made, showing that the promise is not made gratuitously. A gratuitous
promise, or one agreed upon without any consideration for it, imless
made with ceutain formalities to be noticed presently, is void of legal
effect {d).
The object of requirmg a consideration for a promise, as a condition
of creatmg a legal contract by agreement, seems to be to secure a test
that the parties have the intention of makmg a binding engagement,
and are not using promissory expressions without any serious inten-
tion of engaging themselves to a contract. The fact of bargaining and
giving an equivalent for the promise serves to show that the parties
act with deliberation, and in the expectation that the transaction shall
be bmding.
Gratuitous promises. — Gratuitous promises, which are excluded
by this rule from becoming contracts by mere agreement, are not
altogether prohibited by English law. They may be made legally
binding by using proper formalities, prescribed with the same view of
securing deliberation and certainty, as will be seen in treating of con-
tracts under seal, to which the doctrine of consideration does not
{a) Taylor v. Brewer, 1 M. & S. 290; Morehouse v. Calvin, 15 Beav. 341.
Boherts v. Smith, 4 H. & N. 315; 28 L. (c) Chandelor v. Lopus, Cro. Jac. 2;
J. Ex. 164; and see Bryant v. Flight, 5 1 Smith's L. C. 5tli edit. 160; and see
M. & W. 114; Parker v. Ibbetson, 4 C. Ormrod v. Ruth, 14 M. & W. 651; as to
B. N. S. 346; 27 L. J. C. P. 236. fraudulent representations see post,
(b) Randall v. Morgan, 12 Yes. 67; Chap. VHI, Sect. II, "Fraud."
and see similar examples in Maunsell v. (d) Plowden, 308; Pillans v. Mierop,
Wliite, 4 H. L. C. 1039; Money v. Jor- 3 Bvirr. 1^70.
den, 15 Beav. 372; 5 H. L. C. 185; ^
4 CHAP. I. FORMATION OF CONTRACTS.
apply. In the case of Pillcms v. Mierop {a) the question was raised
whether mere writing was a sufl&cient solemnity to create a valid con-
tract without a consideration, and was decided in the negative.
Executed and executory consideration. — The consideration of a
promise may be executed or executory. An executed consideration is
some act performed or some value given at the time of making the
promise and in return for the promise then made. An executory
consideration is a promise to do or give something in return for the
promise then made. The contract with an executory consideration con-
sists of a promise given for a promise, and comprises two promises.
— the one promise forming the consideration for the other, and con-
versely. With respect to such contracts it is only necessary at present
to observe, that either promise may be regarded for the time being
as the consideration for the other (J).
An agreement satisfymg the above-mentioned conditions, that is to
say, containing a promise made by the one party for a valid considera-
tion and agreed to by the other party, creates a contract by force of
the mere agreement without other formality. The contract so created
is a simple contract.
Form of simple contracts by agreement. — A simple contract is
not required by law to be made in any particular form or with any
particular solemnities, except in a few instances to be noticed presently
where writing and signature are required ; but it is left open to proof
by any facts which are admissible and sufficient to establish the agree-
ment according to the general rules of evidence and procedure. Hence
the words and acts of the parties, which are the evidences of their
agreement, constitute in general the only form in which the contract
created by the agreement appears. Some distinctions and observa-
tions, however, of a general character have been made respecting the
formation of agreements, which require here to be noticed.
Express and implied contracts.— Simple contracts created by
agreement are sometimes distinguished, according to the manner in
which the agreement is formed, as express and implied. The only
difference between an express and implied agreement is in the mode
of substantiating it. An express agreement is proved by express
words, written or spoken, stating an actual agreement \ an implied
(a) 3 Burr. 1670. himself to the other, as in a loan of
(6) Contracts of these two kinds are money; in the latter each of the con-
respectively distinguished in the civil tracting parties binds himself to the
law by the names unilateral and bilat- other, as in the contract of sale. Po-
eral or synallagmatic. In the former tliior, Obi. par. 9; Code Civil, § 1102,
only one of the contracting parties binds 1103; 1 Austin's Jur. 297.
SECT. I. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 5
agreement is proved by circumstantial evidence showing that the
parties intended to contract (a). Agreements may also be of a mixed
character in respect of the mode of making them, that is to say, partly
expressed in words and partly implied from acts and circumstances.
No distinction, except in the natui-e of the proof, arises from agree-
ments being express or impUed.
It is necessary here to notice that the term implied in law is used
to denote the class of simple contracts raised by law from facts and
circumstances mdependent of agreement, and in which an agreement
or promise, if implied at all, is an implication of law only, and has no
existence in fact {b). In the above passages the term « implied " is
used to describe an agreement wliich has an actual existence in fact, but
which appears from circumstantial evidence and not in express terms.
Contracts in writing. — Simple contracts arismg from agreement
are frequently expressed in writing, and are in some instances required
by law to be expressed in writing. They do not on that account con-
stitute a distinct kind of contract, but are subject to the same rules of
law as other simple contracts. The fact of their bemg written, how-
ever, renders them subject also to the rules of evidence relatuig to
written documents ; and the discussion of those rules in their bearing
upon written contracts as a class, including therem other contracts
besides simple contracts, is of sufficient importance to require treat-
ment in a separate space.
Offer and acceptance of terms. — An agreement must necessarily
be made in the form, or what is equivalent to the form, of an offer of
the matter or terms of the agreement on the one side, and an assent
to or acceptance of those terms on the other side, as in the following
examples : — At a sale by auction each bidding is an offer of a price for
the article put up for sale ; and these biddings may be successively
made until one is accepted by the fall of the hammer, when the agree-
ment is complete (c) . The sending an order for goods to a merchant
or tradesman is in effect an offer to purchase ; and the sending the
goods is an acceptance of the offer, and creates a contract of sale {d).
The publication of an advertisement offering a reward for mformation
respecting a loss or a crime is an offer to any person who is able to
give the information asked ; and the acceptance of it by giving such
mformation creates a vaUd contract (e) . The tune tables published
(a) See Marzetti v. Williams, 1 B. & (c) Payne v. Cave, 3 T. R. 148.
Ad. 415, 423, 428; and see 1 Austin's (d) See Harvey v. Johnston, 6 C. B.
Jun 356, 377; Maine's Ancient Law, 295, 304; and see Levy v. Green, 8 E. &
344. B. 575, cited post, p. 8.
(6) See ante, p. L (e) Williams v. Carwardine, 4 B. &
Ad. 621.
ij
6 CHAP. I. FORMATION OF CONTRACTS.
by a railway company are a promise that the trains will run as adver-
tised, offered to all persons who apply in a regular manner to be carried
by them (a).
A correspondence between two parties by letter may contain an
agreement which will produce a contract as bincUng as if drawn up in
articles and signed by the parties as such ; but there must be found
in the correspondence a proposal of terms, met by such final accept-
ance as imports a consent of both parties. The same construction
must be put upon a letter, or a series of letters, that would be applied
to the case of a formal instrument, the only difference between them
being, that a letter or a correspondence is generally more loose and in-
accurate in respect of terms, and creates a greater difficulty in arriv-
ing at a precise conclusion (b).
Offer unaccepted, — An offer unaccepted, or, what amounts to the
same thing, of which the acceptance is not communicated to the party
making it, does not constitute an agreement (c). The defendant sent
to the plamtiif a letter off ermg to guarantee to the plaintiff the. debt
of a third party, and the plaintiff, though he gave credit to the third
I party on the faith of such guarantee, did not communicate his accept-
I ance of it to the defendant ; it was held that there was no contract,
and that the plaintiff could not maintain an action upon the letter (d).
A person wrote a letter to another offering to purchase of him a horse,
and statmg that if he received no answer he should assume that his
offer was accepted, to which letter no answer was returned ; it was
held that the letter unanswered did not constitute an agreement, and
that a person in making an offer has no right to put upon another the
burden of notifying his refusal by letter or otherwise (e).
The contract arising from an agreement dates from the acceptance,
and not from the offer of the terms. Accordingly, under a contract
of sale passing the property in the goods sold, the title of the purchaser'
dates, not from his offer to purchase, but from the acceptance of the
offer ; and therefore he cannot sue for a conversion of the goods com-
mitted before the acceptance though after the offer (/).
Tariance between the terms offered and accepted,— Where
there is a variance between the terms offered and the terms accepted
there is no agreement, or consensus ad idem^ without which there can
(a) Denton v. Great Northern Ry. (d) M'lver v. Richardson, 1 M. & S.
Co., 5 E. & B. 8G0; 25 L. J. Q. B. 134. 557; ilozley v. Tinkler, 1 C. M. & R.
(h) Kennedy v. Lee, 3 Mer. 441, 451; 692.
and see Thomas v. lilackman, 1 Coll. (e) Felthouse v. Bindley, 11 C. B. N.
301; The Jiofj Lead Mininy Co. v. Mon- S. 869; 31 L. J. C. P. 204.
tayue, 10 C. B. N. S. 481, 491; 30 L. J. (/) Felthouse v. Bin dley, supra ; and
C. P. 380. see Stockdale v. Lxudop, 6 M. & W.
{(■) Jiumell V. Thornton, 10 Ex. 323; 224.
4 H. & N. 788; 30 L. J. Ex. 09.
SECT. I. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 7
be no contract. As in the following cases : — The defendant offered to
purchase the plaintiff's house, with possession on the 25th July, and
the plaintiff accepted the offer with possession on the 1st August (a).
The defendant offered by letter to buy a mare of the plaintiff upon
his giving a warranty of her being quiet m harness, and the plaintiff
wrote in answer agreeing to seU the mare and warranting her quiet
in double harness (b). The defendant offered by letter to sell the
plaintiff a certain quantity of " good " barley, the plaintiff by letter
accepted the offer for "fine" barley, and it appeared that by the
usage of the trade the expressions good and fine meant different
quahties of barley (c). The defendant offered to purchase the lease
of a house of the plamtiff on certam terms, and the plaintiff consented
on the same terms to grant the plaintiff an under-lease (d) . Upon a
treaty for an underlease a memorandum of terms proposed by the
lessee stipulated that it should contam all usual covenants and also
the covenants m the leases of the gromid-landlord, and the proposed
lessee wrote on the memorandum that he agreed thereto, subject to
there. being nothing unusual in the lease of the ground-landlord (e).
In all the above cases it was held that there was no binduig agreement,
because of the ^variance between the terms proposed and accepted.
The plaintiff applied by a letter in the prescribed form to the pro-
visional committee of a railway company for an allotment of shares,
undertaking to accept the shares and to pay when required the depo-
sit thereon ; the company informed the plaintiff by letter that they
had allotted him the shares upon condition that the deposit was paid
on a certain day, in default of which the allotment would be forfeited ;
it was held that the letter of allotment not being an unconditional
acceptance of the offer made by the letter of application, the two did
not constitute a valid contract (/). So, where to a similar letter of
application an answer was sent by a letter allotting the shares, but
the letter was headed " not transferable," it was held that this term
qualified the acceptance of the defendant's offer, and that there was no
contract (). Where to a similar application an answer was returned
that the shares had been allotted, and that the memorandum and
articles of association must be signed, and in default thereof the
shares and deposit would be forfeited, it was held that there was no
complete contract to take the shares (/<).
(a) Routledge\. Grant, 4 Bing. 660. (rj) Duke v. Andrews, 2 Ex. 290; and
(6) Jordan v. Norton, 4 M. & W. see Chaplin v. Clarke, 4 Ex. 403.
155. (k) Oriental Inland Steam Co. v.
(c) Hutchison v. Bowker, 5 M. & W. Brifjgs, 31 L. J. C. 241 ; and see Moore
535. V. Garwood, 4 Ex. 681. In re Leeds
(d) Holland v. Eyre, 2 S. & S. 194. Banking Co. {Howard's case), L. Rep.
(e) Lucas v. James, 7 Hare, 410. 1 Ch. Ap. 561; .36 L. J. C. 42; In re
(/) Wontner v. Shairp, 4 C. B. 404, Rolling Stock Co. of Ireland {Shackle-
441; and see AddinelVs Case, 1 L. R. ford's case), L. Rep. 1 Ch. Ap. 567; 36
Eq. 225; 35 L. J. C. 75. L. J. C. 818.
u
8 CHAP. I. FORMATION OF CONTRACTS.
In contracts of sale conducted through a broker as the agent of both
buyer and seller, if the bought and sold notes delivered by the broker
to the respective parties vary in their terms, they will not serve to
establish a contract (a), as where the two sale notes varied in the
description of the goods ((5>), and where they varied as to the mode of
payment, the one statmg it to be by ready money and the other by bill
(c). In a case where the bought and sold notes varied in several expres-
sions, evidence was admitted of the mercantile meaning of the ex-
pressions in order to reconcile the two notes {d).
The defendant sent a written order for goods addressed to a person
with whom he had been in the habit of dealing, and the plaintiff, who
had succeeded that person in the busmess, executed the order -wathout
giving notice to the defendant that the goods were not supplied by the
person to whom the order was addressed ; it was held that there was
no contract with the plaintiff, because the defendant had never in-
tended to contract with him (e). An order was sent for certain goods,
and goods were sent agreemg with the order, together with other
goods not ordered, in one parcel and with one invoice ; the court was
equally divided upon the question whether, under the circumstances,
there was a bmding contract to pay for the goods ordered, or whether
the purchaser might refuse the whole of the goods sent, and not merely
those not ordered (/).
A variance between the offer and acceptance may be caused by the
matter containmg a term of ambiguous meaning, and the two parties
accepting it with different meanings. There is then an apparent
agreement ; but each party in fact mistakes the meaning of the other,
and it is open to each party to explain the meanmg with which he ac-
cepted the term, in order to show that there was no real agreement
between them {g).
Preliminary negotiations. — Terms offered and representations
made durmg the negotiation for a contract, which are not compre-
hended in the matter of the final agreement, are excluded from the
contract. The defendant represented to the plaintiff that a horse
which he was about to sell by auction was somid, and the next day
the plaintiff, relying on the reprasentation, i:)urchased the horse at the
auction at which it was put up for sale, without a warranty ; it was
(ffl) Grant v. Fletcher, 5 B. & C. 436; (e) Boidton v. Jones, 2 H. & N. 564;
and see Sievewriyht v. Archibald, 17 Q. 27 L. J. Ex. 117; and see Ilnrdmcm v.
B. 103. Booth, 1 H. & V. S(W; 32 I.. J. Ex. 105;
(h) Thornton v. Kempster, 5 Taunt. Schmalincjv. 77;o»(/aiso?i, 6 Taunt. 147.
786. (/) Levy v. Green, 8 E. «fe B. 575; :md
(c) Grerfson v. Ruck, 4 Q. B. 737. see Levy v. Green, in the Exchequer
J:
d) Bold V. Rayner, 1 M. & W. 343; Chamber, 28 L. J. Q. B. 319.
see 7)08«, Chap. I, Sect. IV, "Contracts '7i See post, Chap. VIII, Sect. I,
and see Keinpson v. Boyle, 34 L. J Ex. "Mistake."
191.
SECT. I. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 9
held that the representation of the defendant formed no part of the
contract. Accordhig to Maule, J., "the contract commenced when
the horse was put up for sale, and ended when he was knocked down
to the highest bidder," and thus excluded the representation, which
was not made pending the contract (a). Upon the negotiation for a
sale of goods a sample was exhibited, but a contract was afterwards
made in writing describing the goods by kind and quality without
referring to the sample ; it was held to form no part of the contract
that the goods should agree with the sample (b). Upon treaty for
the sale of a ship it was represented as copper-fastened, but in the
written contract of sale it was not so described ; it was held that no
warranty to that effect could be hnplied from the previous representa-
tion (c).
But fraudulent representations made with the intention of induc-
ing the other party to enter into the agreement may become material,
as givhig ground for avoidmg the contract or for an action of fraud ;
and such representations, though not absolutely fraudulent m law,
may be material in equity, as affectmg the right of the party making
them to specific performance of the contract, or as founding a claim
against him to make them good (d).
Continuance of offer.— The offer of a contract necessarily pre-
cedes the acceptance by some interval of time ; and, as it must con-
tinue open until the acceptance, it is sometimes necessary to deter-
mme how long it contmues open, and how it may be put an end to.
An offer may in express terms limit its own continuance, and it
then comes to an end by mere lapse of time. Thus, an offer by letter
is sometimes made conditionally upon receiving an answer by return
of post (e). Offers not expressly Ihnited are m general made upon
the implied condition that they shall be accepted within a reasonable
time (/), and if not accepted within a reasonable time may be treated
as at an end ((/). Application having been made for shares in a com-
pany in accordance with their published prospectus on the 8th of June,
no allotment was made in answer to the application until the following
23rd of November ; it was held that the allotment was not made
within a reasonable time, and therefore that the applicant was not
bound to accept the shares allotted, although he had not expressly
withdrawn his application (h) .
(a) Hopkins v. Tanqueray, 15 C. B. (/) See per Lord Eldon, Kennedy v.
130; 23 L. J. C. P. 162. Lee, 3 Mer. 441, 454; Thornbury v. Be-
(b) Tye v. Fynmore, 3 Camp. 462; vill, 1 Y. & C. Ch. 554; Meynellv. Stir-
Meyer v. Everth, 4 Camp. 22. tees, 1 Jur. N. S. 737; 25 L. J. C. 257,
(c) Pickering v. Dowson, 4 Taunt. 259.
779; Kain v. Old, 2 B. & C. 627; Free- (g) Williams v. Williams, 17 Beav.
man v. Baker, 5 B. ).
The defendant by letter offered to buy goods of the plaintiff, and the
plaintiff duly posted a letter accepting the offer, but the letter never
reached its destination ; it was held that the contract was nevertheless
complete, and the defendant was bound to accept delivery of the goods
according to the contract (c). In a case before the Court of Session in
Scotland, a letter accepting a proposed contract was posted, and a sub-
sequent letter recalling the acceptance was also posted and arrived at
the same time with the previous one ; the judges of the Court of Ses-
sion, reversing the judgment of the court below, but not unanimously,
held that there was no contract (d).
Revocation of offer. — The party making an offer of a contract is
at liberty to revoke it by a notice to that effect given to the other
party at any time before it is accepted (e). Thus, in sales by auction,
(a) Dunlop v. Higgins, 1 H. L. C. arrive until after the first is received and
381 ; Duncan v. Topham, 8 C. B. 225. answered ; so that although on receipt
(b) Dunlop V. Higgins, supra. of the first letter, and in ignorance of
(c) Duncan v. Topham, 8 C. B. 225. the change of mind conveyed by tlie
{d) Dunmore v. Alexander, 9 Shaw & second, an answer is sent accepting the
Dunlop, 190. offer, there is no contract, because there
(e) According to Pothier, an offer of is no agreement. The passage from
a contract sent by letter may be with- Pothier to this effect (contrat de vente,
drawn by the mere sending of a subse- s. 32) has been cited by some writers as
quent letter stating a change of mind, in accordance with English law (see
provided only it is sent before the first Chitty, Contr. 7th edit. 12; Head v.
can have arrived, althougli it may not Dlggon, 3 M. & R. 97, 100, n. c), but it
12 CHAP. I. FORMATION OF CONTRACTS.
either seller or bidder may withdraw their respective offers before the
hammer falls (a). As an offer may be withdrawn, so it may be varied
at any time until it has been actually accepted (b). Where negotia-
tions ensued upon an offer with a view to an alteration of its terms,
the party making the offer was held entitled to withdraw pending the
negotiations before any terms had been finally acceded to (c).
An offer which in its terms allows a certain time for acceptance,
may be withdrawn during that time before acceptance (d). In the
case of Cooke v. Oxley (e) the plaintiff in his declaration stated that
the defendant proposed to the plaintiff to sell and deliver certain goods
upon certain terms, if the plaintiff would agree to purchase them upon
the terms aforesaid, and would give notice thereof to the defendant
before the hour of four in the afternoon of that day ; the plaintiff then
averred that he did agree to purchase the goods aforesaid, and did
give notice thereof to the defendant before the hour of four in the
afternoon of that day, and proceeded to charge a breach by the de-
fendant in not delivering ; after verdict for the plaintiff, the declara-
tion was held bad in arrest of judgment on the ground that it did not
contain an allegation of a contract. It was said that the defendant
was not bound to continue his offer until four o'clock because it was
not made upon any consideration, and there was no averment that he
in fact continued his offer at the time it was accepted, so that no agree-
ment was alleged as a matter of fact. It may be remarked that the
facts alleged, in the absence of proof of dissent by the defendant,
might have been sufficient for a jury to infer the fact that the defend-
ant's offer continued open when the plaintiff accepted it, so as to es-
tablish a complete agreement between them ; but such fact could not
be imported into the declaration without an allegation to that effect.
The defendant offered to purchase a house of the plaintiff and to
give him six weeks for a definite answer ; it was held that the de-
fendant might retract his offer at any time during the six weeks be-
fore it was accepted (/). The defendant made a written offer to the
plaintiff to sell him certain wool, with three days' grace from the date
to make up his mind ; within the three days the j)laintiff went to the
defendant to accept the offer, when the defendant said that he had
offered the wool to another, and declined the sale ; it was held that
there was no contract, because, when the plaintiff signified his accept-
ance of the offer, the defendant did not then agree (g) .
is here submitted that it is inconsistent (6) Honeyman v. Marryat, 21 Beav.
with tlie decisions above cited, and con- 14.
trary to principle in regarding as the (c) Thornbury v. Bevill, 1 Y. & C.
test of agreement the abstract intentions Ch. 554.
of the parties instead of the expressions (d) Cooke v. Oxley, 3 T. R. 653; Rout-
of intention communicated between ledge v. Grant, 4 Bing. 653.
them (see ante, pp. 1, 2). (e) 3 T. R. 653.
(a) Payne, v. Cfflue, 3 T. R. 148; War- (/) Routledge v. Grant, 4 Bing. 653.
low V. llarrlaon, 1 E. & E. 295; 28 L. J. (y) Head v. Digrjon, 3 M. & R. 97.
Q. B. 18.
SECT. I, SIMPLE CONTRACTS ARISING FROM AGREEMENT. 13
Revocation by death.— An offer is revoked by the death of the
party proposing it. Accordingly, a person having authorized a supply
of goods from a tradesman for the use of his family during his ab-
sence, and having died while absent, the tradesman was held to have
no claim against his executor for goods supplied after his death («).
A person authorized the plaintiff to endeavor to sell a picture upon
the terms that if he succeeded he should be paid £100, and died before
the picture was sold ; it was held that the employment was revoked,
and that the plamtiff could not upon the sale of the picture recover
the £100 against the representative of the employer (b). A person
having ordered of the plamtiff a set of artificial teeth to be made and
fitted died before they were made ; it was held that the order was
revoked by the death, and the plaintiff had no claim against the ex-
ecutor of the deceased for the work done by him in pursuance of the
order (c).
An offer is also revoked by the death of the person to whom it was
made before acceptance. In such case the offer cannot be accepted by
the representatives of the deceased (d).
Refusal of offer. — A proposal is put an end to by a refusal of it.
" If an offer made is rejected, the party makmg it is relieved from his
liability on that offer, and the party who has rejected the offer can-
not afterwards at his option convert the same offer into an agreement
by acceptance ; for that purpose he must have the renewed consent of
the person who made the offer " (e).
Offer not assignable. The offer of a contract can be accepted only
by the party to whom it is proposed, and cannot be assigned by him
to another without the consent of the proposer. " In the simple case
of an offer by A. to sell to B., an acceptance of the offer by C. can
estabhsh no contract with A." (/). The defendant sent a wiitten order
for goods addressed to a certain person, and the plaintiff, who had
succeeded to the business of that person, executed the order without
giving notice to the defendant that the goods were not sent by the
person to whom the order was addressed ; it was held that there was no
contract between them (g).
Contracts arising upon executed considerations. The process
of agreement on which the contract is founded may be effected in the
(«) Blades v. Free, 9 B. & C. 167; (e) Sheffield Canal Co. v. Sheffield ). So, contracts of forbearance are commonly made in the form of a
request of forbearance upon certain terms. The creditor is not bound
to forbear, but if he does forbear as requested, he becomes entitled to
exact the terms upon which the forbearance was asked (c).
A common example of tliis mode of contractmg occurs upon the pay-
ment of money by one person at the request of another. If one re-
quests another to pay money for him, m a manner importing an imder-
taMng to repay it, the amount paid becomes a debt due to the party
paymg from him at whose request it is paid,— the request to pay and
the payment according to the request forming a contract to pay the
amomit, which is teclmically described m law as a debt « for money
paid by the plaintiff, for the defendant at his request " (d). Money paid
by the plaintiff, agamst the payment of which the defendant has agreed
to indemnify him, may in general be recovered by the x>laintiff from
the defendant as bemg money paid at Ms request, the indemnity being
treated as equivalent to a request (e). Where the defendant requested
the plaintiff to bring an action in a matter in which the defendant was
(a) See Jeionj v. Busk, 5 Taunt. 302. (c) Morton v. Bum, 7 A. & E. 19.
(b) Per Parke, B., Kennmoay \. Tre- (d) Brittain v. Lloyd, 14 M. & W,
leavan, 5 M. & W. 498, 501; and see 762; Levnsv. Campbell, 8 C. B. 541.
Mills V. Blackall, 11 Q. B. 358, 366; (e) Westropp y. Solomon, 8 C. B. 345^
Offorcl V. Davies, 12 C. B. N. S. 748; 31 369; Leiois v. Campbell^ supra.
L. J. C. P. 319; Westhead v. Sproaon,
6 H. & N. 728; 30 L. J. Ex. 265.
16 CHAP. I. FORMATION OF CONTKACTS.
interested, and the plaintiff incurred costs in so doing, he was held
entitled to recover the amount as money paid at the request of the de-
fendant (a). Where the plamtiff has been compelled to pay an accom-
modation bill accepted by him for the accommodation of the defendant,
the payment may be considered as made at the request of the defend-
ant, and may be recovered as money paid at his request (b).
Contracts arising upon acceptance of executed consideration.
If a consideration is offered or performed m a manner importmg the
intention of being paid for it, the acceptance of the consideration im-
ports a promise to pay for it on the terms of the offer, as where goods
are offered for sale by the plaintiff and accepted by the defendant, or
where money is offered on loan by the plamtiff and accepted by the
defendant. A previous request on the part of the promiser to perform
the consideration is here immaterial, the acceptance of it showing a
sufficient agreement on his part to support a contract.
Hence, in pleadmg a contract of this kmd, the allegation of a previous
request, though formerly usual, is martificial ; such a request need
neither be alleged nor proved. The followmg observations of Serjeant
Manning on this subject, have been pronoimced by Parke, B. , to be
perfectly correct (c) :— " The statement, according to modern practice,
of the accrual of a debt for, or the making of a promise for the payment
of the price of goods sold and delivered, or for the repayment of money
lent, as being in consideration of goods sold and delivered, or money
lent to the defendant, at his request, is conceived to be an inartificial
mode of declaring. Even where the consideration is entirely past, it
appears to be unnecessary to allege a request, if the act stated as
the consideration cannot from its nature have been a gratuitous kind-
ness, but imports a consideration per se ; it being immaterial to the
right of action, whether the bargam, if actually concluded and ex-
ecuted, or the loan, if made, and the moneys actually advanced, was
proposed and urged by the buyer or by the seller, by the borrower or
by the lender."
Contracts implied from assent to performance of consider-
ation.— A mere assent to or acquiescence m the performance of the
consideration may be sufficient to import an agreement to pay for it.
Thus, where the plaintiff, a surgeon, attended a pauper belonging to a
parish of which the defendant was overseer, and therefore legally bound
to supply the pauper with medical attendance, it was held that the
knowledge of the overseers of the plamtiff 's attendance, and their allow-
' (a) Bailey v. Haines, 13 Q. B. 815, (c) Per Parke, B Victors v. Davies,
g32 12 M. & W. 758, 759, citing the note to
(b) Garrard v. Cottrell, 10 Q. B. 679; Fisher v. Pyne, lU.&G. 266.
and see Sleigh v. Sleigh, 5 Ex. 514.
SECT. I. SIMPLE CONTRACTS ARISING FROM AGREEMENT. 17
ing him to continue his attendance after such knowledge, was equiva-
lent to a request to give such attendance and imported an agreement to
pay for it (a). So, where the plaintiff, a surgeon, had attended a pauper
belonging to the parish of which the defendant was overseer, and the
latter requested the plaintiff to make out his bill to the parish and said
that he should be paid, the defendant was held liable, Bayley, J. , say-
ing, " The conduct of the defendant as the overseer of the parish
amounted to an acknowledgment on his part that the plaintiff had at-
tended at the defendant's wish, and upon his responsibility " (b).
In the above cases the consideration performed by the plaintiff, the
surgeon, discharged the defendant, the overseer, from a legal duty, so
that he in fact received the benefit of the performance, a circrunstance
which would greatly strengthen the mf erence of a promise to be di-awn
from his knowledge and acquiescence. But in the case of necessaries
supplied to a child with the knowledge of the father, but without his
order or authority, there bemg no legal duty in the father to maintain
his child from which he is thereby relieved, it is held that no inference
of a promise to pay for the necessaries can be drawn only from his
knowledge of the supply. The mere moral duty of the father to main-
tain his chUd affords no uif erence of a legal promise to pay his debts.
In order to bmd a father in pomt of law for a debt mcurred by his
chUd, it must be proved that he has contracted to be bomid just in the
same manner as such a contract would be proved against any other
person (c).
Where execnted consideration will not create a contract, — The
consideration may be executed mider such circumstances that there
can be no presumption of an agreement to pay for it, in which case it
will not create a contract.
The plamtiff havuig contracted with the defendant to command a
ship for a certain voyage, abandoned the command dui'ing the voyage,
but rendered services in assisting to navigate the ship, and claimed to
be paid for the services thus rendered ; it was held that he failed in
provmg any contract to pay for them, because they were done without
the request or knowledge of the defendant, and because the defendant
had not voluntarily accepted them. Pollock, C. B. , said, « A recogni-
tion or acceptation of services may be sufficient to show an implied
contract to pay for them, if at the time the defendant had power to
accept or refuse the services. But in this case it was not so. The de-
fendant did not know of the services mitil the return of the vessel,
and it was then something past which would not imply, perhaps would
(a) Lamb v. Bunce, 4 M. & S. 275; (c) Mortimore v. Wright, 6 M. & W.
Paynter v. WUliams, 1 C. & M. 810; 482; Hodges v. Hodrjes, Peake, Ad. C.
and see Tomlinson v. Bentall, 5 B. & 79; Seaborne v. Maddj/, 9 C. & P. 497;
^- J38. and see Law v. Wilkin, 6 A. & E.
(6) Wing v. Mill, 1 B. & Aid. 104. . 718.
18 CHAP. I. FORMATION OF CONTRACTS.
not support a promise to pay for it. The benefit of the service could
not be rejected without refusing the property itself. The ship came
home, say partly by the assistance of the plaintiff : what could the de-
fendant do but receive his ship back agam ? There was nothmg in that
to imply a contract to pay the plaintiff anythmg" (a).
The defendant having ordered goods of one person, the plamtiff, a
different person, sent the goods, and the defendant having consumed
the goods before he had notice that they belonged to the plamtiff, it
was held that he was not liable to the plaintiff for the price, on the
ground that not having had any option of returnuig the goods to the
plaintiff, no agreement with him could be inferred from the acceptance
of them (b).
In the case of buildings erected upon land under alleged contracts to
pay for them, the mference as to the acceptance of the consideration
drawn from keepmg possession of the buildings, is different from
the case of goods and chattels delivered and retained. The possession
of the land by the owner necessarily involves possession of the
buildmgs, without allowing hun any option of rejectmg them.
Mere possession of land, therefore, does not raise any mference of the
acceptance of buildmgs placed on it by another, m a sense implymg a
consent to pay for them (c) .
Still less can an agreement be presumed from a consideration per-
formed against the express consent of the other party, although he
may derive some benefit from it ( d). Accordingly, where a chattel
is detained under a claun of lien agamst the owner, and charges are
incurred in keepmg and takmg care of it durmg the detention, no claim
can be made against the owner in respect of such charges (e).
Contracts arising upon consideration obtained by wrong or
fraud. — Where the consideration has been obtained by the defendant
from the plaintiff by wrongful or fraudulent means, the defendant can-
not, in general, set up his intention to commit a wrong or a fraud in
order to contradict the inference of a contract on his part to pay for
the consideration. The defendant by fraud procured the plamtiff to
sell goods to a third person, who was insolvent, for the purpose of get-
ting them into his own possession ; it was held that the plamtiff' might
recover the value of the goods as upon a sale to the defendant, who
had obtained possession of them, and that the defendant could not be
permitted to account for the possession by setting up the sale to the
(a) Taylor v. Laird, 1 H. & N. 266; v. Field, 5 Ex. 829; Fammorth v. Gar-
25 L. J. Ex. .329. rard, 1 Camp. 38. ,„ „ ^^
(b) Boulton V. Jones, 2 H. — The execution of a deed consists of sealmg and delivery.
Signing a deed, though usual, is no part of the formality at common
law (e) . It is made necessary in some mstances by particular statutes,
and sometimes by the special terms of the authority or power in
pursuance of which the deed is executed. The Statute of Frauds,
which requires contracts relating to certain matters to be made m
writing and signed, does not apply to contracts under seal ; therefore
contracts under seal, though relating to matters within that statute,
do not require to be signed m addition to the ordinary formalities of
the execution of the deed (/).
(a) See ante, p. 4.
(b) See ante. p. 3, and post, p. 33.
(c) Sheppard's Touchstone, p. 50; Co.
Lit. .3") h.
id) See Schneider v. Norris. 2 M. «fe S.
286; Oeary v. Physic, 5 B. & C. 234, 237.
(e) Sheppard's Touchstone, by Pres-
ton, p. .56; Tupper v. Foulkes, 9 C. B.
N. S. 797, 803.
(/) Aveline v. mdsson. 4 M. & G.
801 ; and see Cooch v. Goodman, 2 Q. B.
580, ."j97; Cherry v. Ilemminy^iEx. 631,
* Ch. I, Sect. II, Leake.
SEC. II. CONTRACTS UNDER SEAL.
27
Sealing.— The ceremony of sealing is sufficiently performed if a
seal or other instrument be impressed on the deed with an intent to
seal it, although no impression appear; and a deed purporting to have
been sealed and delivered, in the absence of evidence to the contrary,
will be presumed to have been properly sealed (a). An instrument
purportmg to be signed only and not sealed, and which in fact was
signed only and not sealed, or intended to be sealed, as a deed, was
held to be merely a simple agreement, notwithstanding a seal appeared
opposite the signatures of the parties (b).
One seal will serve for several persons, if it sufficiently appears to
have been intended and used as the seal of each (c) ; but a seal used
and intended for the seal of one person only will not afterwards supply
the want of sealing by another (d). Certain parties to a deed were
described therein as members of a corporation, and the deed purported
to be made and executed by the corporation and was sealed with a
seal purporting to be the seal of the corporation ; it was held that
such seal could not be taken as the seal of those parties as individuals,
so as to entitle them to be considered as parties to the deed in their
Individual character and to sue upon the deed m their individual
capacity (e).
Delivery.— Delivery is necessary to complete the execution of a
deed and to render it bmding. Delivery may be effected by merely
handing over the possession of the deed to the other party, or by au-
thorizing the other party to take possession of the deed. It may also be
effected by giving the possession of the deed to a stranger for the use
and benefit of the other party, the intention being sufficiently ex-
pressed ; a delivery to a stranger without any explanation of intention
would be inoperative ■(/'). Delivery may also be effected by mere
words expressive of intention, although the party making the deed
retains it in his own possession {(/). A delivery may be evidenced by
an acknowledgment by the party whose deed it is that it is valid and
operative (A).
Escrow.— The delivery of a deed may be made upon a condition, so
that the delivery is not complete and the deed is not bmding until the
condition is fulfilled. A deed so delivered upon a condition is called
an escrow (scriptum or writing) (i). The condition on which the de~
(«) See B. V. St. PauVs Cotent Gar-
den, 7 Q. B. 232, 238, {d) ; Talbot v.
Hodson, 7 Taunt. 251 ; Clement v. Gun-
house, 5 Esp. 83.
(b) Clement v. Gimhouse. 5 Esp. 83.
(c) Ball V, Dunstermlle, 4 T. R. 313.
(d) Cooch V. Goodman, 2 Q. B. 580,
598.
(e) Cooch V. Goodman, 2 Q. B. 580.
(/) Co. Lit. 36 a ; Shepp. Touch. 57,
58; Doe d. Garnons v. Knight, 5 B. & C.
671.
{(/) Doe d. Garnons v. KnUjht, 5 B. &
C 671 ; and see Xenos v. Wlckham, 14
C. B. N. S. 435; 31 L.. J. C. P. 364; 33
ib. 13.
{h) Tupper v. Foulkes, 9 C E. X. S.
797; .30 L. J. C. P. 214; Sudson v. Bev-
ett, 5 Bing. 368.
(i) Co. Lit. 36 a; Shepp. To\:ch. p.
58; Murray v. Earl Stair, 2 B. *fe C. 82.
28 CHAP. I. FORMATION OF CONTRACTS.
livery depends may be expressly stated at the time of executing the
deed, or it may be inferred from the circumstances attending the ex-
ecution (a). A delivery as an escrow may be effected though the
party executing the deed retains it in his own possession, and it may
be effected by delivery of the possession of the deed to a third party ;
but it is said that it cannot be effected by delivery of the possession to
the party to whom the deed is made, because such a delivery is an
absolute delivery if made without words, and if made with words pur-
porting to control the absolute effect, the words are contrary to the
act, and therefore of no effect, according to the maxim tion quod dictum
est, sed quod /actum est mspicitur (b).
Time of deed taking effect.— A deed takes effect from the time
of delivery. A deed is presumed to have been delivered and to take
effect from its date ; but it may be shown by extrmsic evidence that
the deed was delivered and became operative on a different day from
that on which it bears date (c). Thus a deed of charterparty was
dated 6th February, and contained a covenant that the ship should
sail on or before the 12th February, but the deed was not in fact execu-
ted until the 15th March; it was held that it might be averred and
proved when the deed was in fact executed ; and that the covenant
for the ship to sail on a previous day, having then become impossible,
formed no part of the contract {d) .
Upon delivery of an escrow and performance of the condition the
deed beco mes effective fro m the date of t he original deliv ery ; so that
if a bondls^elivered as^aTTL^^ii'Ui^- uiid bclo'iethe performance of the
condition the obligor and obligee die, yet on the performance of
the condition it becomes an effective bond and charges the assets of
the deceased obligor ; and so, if a woman before marriage delivers a
bond upon condition and afterwards marries, whereby she loses her
capacity to contract, and after marriage the condition is performed,
the bond is valid and takes effect from the original delivery (e).
Execution of deed in blank— A deed executed in blank, that is
completely sealed and delivered with an omission of a material par-
ticular, is void, and cannot be made good by subsequently filling in
the blank without a re-execution, or what is equivalent thereto (/)
(a) Murray v. Earl Stair, 2 B. & C. Bale, 3 Lev. 348; Hall v. Cazenove, 4
82; Bowker V. Biirdekln, n M. & W. East, 477; Jayjie v. /fur/Zie-s 10 Ex. 430;
128; Giuhien v. Besset, 6 E. & B. 986; 24 L. J. Ex. 115; and see Reffell v. Ref-
26 L. J. Q. B. 36. fell, L. Rep. 1 Prob. 139.
(b) Co. Lit. 36 a; Shepp. Touch. .59; (d) Hall v. Cazenow, 4 East, 477.
but see Johnson v. Baker, 4 B. & Aid. (e) See Graham v. Graham, 1 Ves.
440; Uudson v. Revett, 5 Bing. 368, jun. 272, 274, citing Ferryman's case, 5
387. Co. Rep. 846, and Froset v. Walshe,
(c) Goddard's case, 2 Co. Rep. 4 b; Bridg. 51.
Taw V. Bury, Dyer, 167 b; Stone v. (/) Shepp. Touch, by Preston, 54.
SECT. II. CONTRACTS UNDER SEAL.
29
Thus, a bail bond executed originally without a condition, and having
the condition afterwards inserted, was held void (a). A deed was ex-
ecuted referring to a schedule annexed, but the schedule was omitted ;
it was held that the deed was void without the schedule, and that the
annexation of the schedule subsequently to the execution did not ren-
der it effective (b). By a railway Act the sale of shares was required
to be by writing under the hands and seals of the parties ; it was held
that a deed was necessary, which must be complete at the time of de-
livery, and consequently an instrument executed by the vendor with
the name of the purchaser left m blank, which was afterwards filled
up by a third party to whom it was delivered for that purpose was
void (c). Where a deed contained a blank for a sum of money intended
to be afterwards ascertained and inserted, which was afterwards done
with the assent and in the presence of all parties, the deed was held valid
on the gromid that there was no complete execution until the blank
was filled in (ci). An agent who is authorized to fill up and execute a
deed which is previously mcomplete, so as to render it effective, must
be appointed by deed m the same manner as an agent appointed to
execute a deed in the first mstance (e). In a recent case in which it
appeared that a person had executed a deed in blank and by his al-
leged negligence had enabled another person to fill it up and use it m
an unauthorized manner, the opmion was expressed by some of the
judges that he might be estopped by his conduct from denying the
validity of the deed, as against the parties claiming mider it ; but the
majority of the judges seemed to be of a contrary opinion, on the
ground that the doctrine of estoppel did not apply to the execution of
a deed (J).
Acceptance of contract under seal. — The acceptance of a contract
under seal is presumed, if nothing appear to the contrary ((/). Hence
a party may m general sue upon a contract under seal without hav-
ing executed it (h). The presumption of acceptance is said to be
foimded on the principle that a man will accept that which is for his
benefit ; but it has been extended to the case of deeds containing
onerous charges and liabilities on the part of the acceptor. In a re-
cent case the Court m delivering judgment said : — " Almost every con-
(a) Powell V. Duf, 3 Camp. 181.
{b} Weeks v. Malllardet, 14 East, 568.
(c) Hlbblewhite v. W Marine, 6 M. &
W. 200; and see Tayler v. Great Indian
Peninsular By. Co., 28 L. J. C. 285.
(d) Hudson v. Revett, 5 Bing. 368.
(e) Hlbblewhite v. WMorine, 6 M. &
W. 200.
(/) Exp. Sioan, 7 C. B. K S. 400;
Swan V. North British Australasian
Co., 7 H. & N. 603; 2 H. & C. 175; 31
L.J. Ex. 425; 32 ib. 27-3.
(g) See Thompson v. Leach, 2 Ven-
tris, 198; Petrie v. Bury, 3 B. & C. 353,
355 ; Doe d. Gamons v. Kniyht, 5 B. &
C. 671. 692.
(h) Rose V. Poulton, 2 B. & Ad. 822;
Morgan v. Pike, 14 C. B. 473; and see
Wetherell v. Langston, 1 Ex. 634, 643;
British Empire Ass. Co. v. Browne, 12
C. B. 723; Northampton Gas Light Co.
V. Parnell, 15 C. B. 630; and see post,
p. 33.
30 CHAP. I. FORMATION OF CONTRACTS.
veyance in truth entails some charge or obligation which might be
onerous m the way of covenant or liability ; and we think it much
safer that one general rule should prevail, than that the Courts should
be asked in each particular instance if the deed may not be considered
onerous, and that doubts should be raised as to the particular moment
at which the deed operates by the assent of the grantee " (a).
Disclaimer. — A party may disclaim the benefit of a contract under
seal (b). Such disclaimer may be made by any sufficient words or
acts, and does not require any particular form or manner of proof (c).
It must in substance be clear and unequivocal (d). If a contract is
made with two jointly and not severally, and one disclaims, the right
to sue on it is not thereby vested in the other so as to entitle him to
sue alone (e).
Deed poll. Indenture.— A deed poU is a deed made by one party
I' only ; an indenture is a deed made between two or more parties. An
i indenture is so called because it was formerly the practice to make a
part or original copy of the deed for each of the parties on the same
parchment, and then to separate them by an mdented division, so that
on subsequently comparing the parts they might be identified by the
fitting of the mdented edges (/). A deed poll was so called because
the edge was polled or cut even. By 8 «fe 9 Vict. c. 106, s. 5, it is en-
acted that a deed executed after the 1st of October, 1845, purporting
to be an indenture, shall have the effect of an mdenture although not
actually indented.
The terms indenture^ deed or writing obligatory import a deed under
seal {g). A statute required that certain contracts should be made in
writing under the hands and seals of both parties ; it was held that it
was mtended and required that they should be made by deed {h).
Covenant- — A promise contained in a deed is called a covenant, also
a sjyecial contract or contract by specialty ; and the parties to a cove-
nant are called respectively the covenantor and the covenantee.
I Bonds. Single bond and bond with condition.- A bond is a deed
Wherein a party acknowledges himself to be bound to another in a
fcertam sum of money to be paid to him. It is sometimes called an
obligation in a special sense of that word. The parties to a bond are
(a) Sigrjers v. Evans, 5 E. «& B. 367, (e) Wetherell v. Langston, 1 Ex, 634;
383. and see Petrie v. Burij, 3 B. & C. 355;
(b) See Butler and Baker's case, 3 post, Chap. VI, Sect. I.
Co. 20 6; Doe d. Garnons v. Knight, 5 (/) Shepp. Touch. 50; 2 Bl. Com. 295.
B. & C. 671, 694. (g) See 1 Wins. Saund. 291 (1); Ave-
(c) See the authorities collected in line v. Wkisson, 4 M. & G. 801, 804;
Davidson's Conveyancing, 2nd ed. 5th Phillips v. Clift, 4 H. & N. 168.
vol. p. 107.3 n. (a). (h) Uibblewhite v. M^ Marine, 6 M. &
(d) See Doe d. Smyth v. Smyth, 6 B. W. 200.
& C. 112.
SECT. II. CONTRACTS UNDER SEAL. 31
4
called respectively the obligor and the obligee (a). A bond contammg\
merely such acknowledgment is called a single bond ; but there may
be appended to it a condition that upon the performance of a certain
act the bond is to be void, otherwise to remain in full force, and it is
then called a bond with a condition (b) . The debt acknowledged by
the bond is commonly fixed at a larger sum than the equivalent of the
condition, and so operates to secure its performance, and is called the
penal sum or penalty.
Common money bond. Bond with special condition. — Cominon
money bonds are made subject to the condition to pay a sum of money
with interest at a certain day, on payment of which at the day the bond
is to be void, otherwise it is to be forfeited. In such bonds the penalty
or sum acknowledged in the bond is generally fixed at double the
amount in the condition. Any other matter may be made the subject
of the condition, as the performance of the covenants in a deed, the
faithful performance of an office by the obligor, or by a third party j
such bonds are called bonds with special conditions. \
Relief against penalty of bond.— By the common law the wholel
penalty became forfeited and was recoverable upon breach of the con-
dition, according to the literal meaning of the bond. The Courts of
Equity, however, gave relief against the forfeiture at law, upon pay-
ment of the amount really due under the condition, or of the damages
arismg from the breach of the condition. A power of granting similar
relief in certain cases has been given to the Courts of Law by statute.
Common money bonds with a penalty, which by strict law were for-
feited by non-payment of the money ad diem according to the condition,
are now subject to the statute 4 & 5 Anne, c. 16, s. 12, by which it is pro-
vided that where an action is brought upon any bond with a condition
to make void the same upon payment of a lesser sum at a day or place
certain, if the obligor have before the action brought paid the principal
and interest due by the condition, though such payment was not made
according to the condition, yet it may be pleaded in bar of such action
and shall be as effectual a bar as if the money had been paid according
to the condition. The same statute, s. 13, allows the defendant in an
action on a common money bond, who has not paid the amomit due
mider the condition of the bond before action, to bring the principal
and interest with costs into Court in full satisfaction and discharge
of the bond ; and by the 23 & 24 Vict. c. 126, s. 25, the payment into
Court may be pleaded in the action (c).
Bonds with special conditions are now subject to the statute 8 & 9
Will. III. c. 11, the effect of which is to restrict the amount recover-
able at law under the bond to the damages for the breaches of the
(a) Shepp. Touch.367;2Bl. Com.340. (c) See Bullen & Leake, 'Precedents
\h) Ibid. of Pleading,' 2nd edit. p. 96.
32 CHAP. I. FORMATION OF CONTRACTS.
conditions which can be proved to have been broken, and to allow the
judgment for the penalty to remain only as a security agamst further
breaches («) . But the obligor is not answerable in the whole for more
than the amount of the penalty {b).
., Effect of boud with conditiou- — Hence a bond with a condition,
i in effect, binds the obligor to the performance of the condition, as if
;| he had bound himself by a covenant to perform it; the bond being
y for some purposes a more convenient form for creating the liability.
No action can be maintained upon the bond until a breach of the
condition ; for the bond, it is said, "is a thing m action and executory,
whereof no advantage can be taken until there be a default in the
obhgor" (c). And accordingly it is held that a bond with a condition
creates a debt, not payable absolutely, but payable only on the con-
tingency of a breach of the condition {d) ; and in an action on the
bond, a plea showing that the condition has not been broken is a good
plea (e). So also, as a cause of action on the bond first accrues upon
a breach of the condition, the Statute of Limitations begins to run
only from that date, and only as to that breach ; and a new breach
gives a new cause of action ( /' ) .
Specific performance of condition of bond in equity— So in
equity, bonds with special conditions are considered accordmg to the
intention of the parties, as agreements havuig the primary object of
carrying out the condition, which may be enforced specifically, if the
matter of the condition is within the jurisdiction of the Court ; and
r they are not, in general, considered as giving an option of forfeitmg
I the penalty instead of performmg the condition {g) .
Consideration not necessary in contracts under seal — Contracts
under seal have certain peculiar mcidents, of which the following are
the most important : — In contracts made by deed under seal, a con-
sideration is not essential to give validity to the promise, as it is in
the case of simple contracts (h). The object of the rule with simple
contracts is to ensure an intention on the part of the promiser that
his promise should be binding, and to avoid giving effect to promissory
expressions which are not so intended. The same security is not re-
quired for contracts imder seal, because a deliberate intention to make
a binding promise seems to be sufficiently ensured by the formalities
required to be gone through in the execution of a deed {i).
{a) See (c), p. 31. (e) Beswick v. Swindells, 5 B. & Ad.
(b) Wilde V. Clarkson, 6 T. R. 303; 914; 3 A. & E. 868.
Branscoinbe v. Scarbrough, 6 Q. B. 13. (/) Scmders v. Coward, 15 M. & W.
And see as to relief against penalties, 48; Tuckey v. Haivkins, 4 C. B. 655.
post. Chap. XV, "Damages." (g) Chillinerw. Chilliner, 2 Ves. sen.
(c) Co. Litt. 206 a. 528; Howard v. Woodward, 34 L. J. C.
(d) Cagev. Acton, 1 L. Raym. 515; 47.
S. C. nora. Gage v. Astoii, 1 Salk. 325; {/t) 2 Bl. Com. 446; Fallowes v. Tay-
Milbourn v. Ewurt, 5 T. K. 381. lor, 7 T. K. 475, 477; ante, p. 3.
(/) See Plowden, 308.
SECT. n. CONTRACTS UNDER SEAL. 33
Gratuitous promises.— It follows from a consideration not being
essential in a contract under seal, that it is possible to make a gratui-
tous promise, or one without any consideration, in a manner which
shall be binding on the promiser, by using the form of a deed ; although
such a promise cannot be validly made in the form of a simple con-
tract («).
Failure of consideration. — As a consideration is not essential to
the vaUdity of a covenant or promise made under seal, the failure of
the consideration, if in fact one exists, is not, m general, material to
the validity of the covenant. Hence, in a deed between two parties
containing covenants on both sides, although the covenants on the one
side may form in fact, and may be stated to be, the consideration of
the covenants on the other side, if the one party has executed the deed
but the other party has not, the former may be bound by the cove-
nants which he has executed although he has no remedy by action
against the other party.
But in such case the mutual covenants may be so dependent on one
another, either from the nature of their matter or by the construction
of their terms, as to render the covenants on the one side conditional
on the vahdity, or the performance, of the covenants on the other
side ; and then the covenants on the one side are not absolutely bind-
ing until the fulfilment of the condition by the execution of the deed^
or by the performance of the covenants on the other side (b). Thus,
covenants in leases which depend on the interest in the lease and are
made because the covenantor has that interest — such as those to re-
pair and pay rent durmg the term, — are not obligatory if the lessor
does not execute, not because the lessor is not a party, but because
that mterest has not been created to which such covenants are an-
nexed, and during which only they operate ; the foundation of the
covenant failing, the covenant fails also. Unless there be a term
granted, a covenant to repair during the term is void ; but with re-
spect to collateral covenants not depending on the interest in the land,
it is otherwise, and they are obligatory (c).
Illegality of consideration. — Though in a contract under seal the
existence of a consideration is immaterial, yet if a consideration for
the contract in fact exists, it must be a lawful one ; and if the consid-
eration is unlawful the contract is void, and the illegality of the con-
sideration may be alleged and proved even in contradiction of the
written language of the deed (d).
(a) See a?ife, p. 3. Cardwell v. Lucas, 2 M. & W. Ill;
{b) Rose V. Poulton, 2 B. & Ad. 822; Swatmaji v. Ambler, 8 Ex. 72; and see
Pitman v, Woodbury, 3 Ex. 4, 11; Mor- Pistor v. Cater, 9 M. & W. 31-5; Cooch
ganv. Pike, 14 C. B. 473; Northamp- v. Goodman, 2 Q. B. 580J; Avelinev.
ton Gas Light Co. v. Parnell, 15 C. B. Whisson, 4 M. & G. 801 ; How v. Greek,
630; and see as to dependent covenants, 3 H. & C. 391; 34 L. J. Ex. 4.
post. Chap. XII. [d) Collins v. Blantern, 1 Smith's L.
(c) Pitman v. Woodbury, 3 Ex. 4;
Vol. 1—3
34 CHAP. I. FORMATION OP CONTRACTS.
A contract mider seal is considered as of a higher nature than a
simple contract in respect of having better remedies annexed to it.
Priority of contracts under seal in administration of assets.—
In the administration of the legal personal assets of a deceased debtor
contracts under seal are entitled to priority over simple contracts ; so
that an executor or administrator is bound to discharge bonds, cove-
nants, and other contracts under the seal of the deceased, out of sucli
assets before liabilities created by simple contract (a). In the admm-
istration of the equitable assets, that is, such assets as can be reached
only by means of a Court of Equity, there is no priority ; but such
assets are appUed in discharging all liabilities pari passu (b).
Remedy against lieir and devisee. — If in a contract under seal
the covenantor or obligor expresses that he binds himself and his
heirs, upon his death his heir becomes liable by the common law to
discharge the contract to the extent of the lands or real assets de-
scended to him from the covenantor or obligor (c). A contract which
bound the heir taking lands by descent did not at common law give
any remedy against a devisee of the lands ; this was altered by the 3
Wm, & M. c. 14, for which the statute 1 Wm. IV. c. 47 has been sub-
stituted. These statutes have given a like remedy against a devisee
to the extent of the lands devised (d) . A creditor of the deceased by
a debt binding the heir may proceed primarily against the heir or
devisee in respect of the real assets of the deceased, notwithstanding
the rule that the personal estate is the primary fund for the payment
of debts ; such rule applying only in equity, between the real and per-
sonal representatives of the deceased, and being enforced by entitlmg
the heir or devisee in equity, after payment of the debt, to stand
in the place of the creditor to reimburse himself out of the personal
estate in the hands of the executor (e).
If the covenantor or obligor binds himself only and does not particu-
larly express in the contract that he bmds his heirs also, there is no
remedy by action against the heir or devisee takmg the land of the
deceased covenantor or obligor, the only remedy by action being
against the executor or administrator m respect of the personal estate
as m the case of a simple contract, though the contract, being under
seal, is entitled to be discharged out of the legal personal assets in pri-
ority to simple contracts.
Real assets charged in equity with all simple and special con-
C. 5th cd. 310; PaxUm v. Popham, 9 Chap. XVII, Sect. IV. " Assignment of
East, 408; and see^«<, Chap. X, " lUe- Contracts by Death."
gality." (d) As to the remedies against the
in) See Wms. Ex. 5th ed. 909. heir and devisee, see Bullen & Leake,
\h) See ih. p. 1520. Free. PI. 2nd ed. 145.
(r;) IlarberVs case, .3 Co. Rep. 12 a; (e) Quarles v. Capell, Dyer, 204, 6;
Williams Ex. 5th ed. 1526; and see post, Galton v. Hancock, 2 Atk. 424, 426.
SECT. II. CONTRACTS UNDER SEAI.. 36
tracts. — But by the statute 3 and 4 Wm. IV. c. 104, the rer.l assets of
a deceased debtor are now charged in equity with the payment of all
his debts whether created by simple contract or by contracts under
seal, with a reservation of the priority of contracts under seal in which
the heirs are bound (a). The statute enacts to the effect that when
any person shall die entitled to any real estate which he shall not by
his last will have charged with the payment of his debts, the same
shall be assets to be administered in Courts of Equity for the payment
of the just debts of such persons as well debts due on simple contract
as on specialty ; and that the heir or devisee of such debtor shall be
liable to the same suits in equity at the suit of the creditors of such
debtor, whether creditors by simple contract or by specialty, as the
heir or devisee of any person was before the passing of that Act liable
to at the suit of creditors by specialty in which the heirs were bound ;
provided always that in the admmistration of assets by Courts of
Equity under that Act, all creditors by specialty in which the heirs
are bomid shall be i:)aid the full amount of the debts due to them be-
fore any of the creditors by simple contract or by specialty in which
the heirs are not bound shall be paid any part of then- demands.
Period of limitation for contracts under seal. — Another superi-
ority in contracts under seal over simple contracts in respect to their
remedies is given by the statutes of limitation. Where the cause of
action arises out of a contract under seal, the period of limitation is, in
general, twenty years ; where it arises out of a simple contract, the
period, in general, is six years (b) .
There are some peculiar doctrines affecting contracts under seal
which it is suflScient here merely to mention.
Merger. — A contract imder seal being considered as of a higher na-
ture than a simple contract operates in law in merger of a simple con-
tract on the same matter ; that is to say, if a bond or covenant under
seal is given to secure a simple contract debt, the simple contract se-
curity is merged in the contract under seal and is thereby extinguished
according to a general rule of law that a party, by acquiring a security
of a higher natui-e in legal operation than the one he already possesses,
merges and extinguishes his legal remedies upon the minor security (c).
Estoppel by deed. — The doctrine of estoppel applies to all the
recitals and statements made by a party in a deed under his hand and
seal, and by virtue of it such recitals and statements are held conclu-
sive against the party, and he is estopped from denying their truth,
in any legal proceedings taken upon the deed between the same parties
(a) See Richardson v. Jenkins, 1 " Statutes of Limitation."
Drewry, 477. (c) See post, Chap. XIII, Sect. IX,
(b) See post, Chap. XIII, Sect. XI, "Merger."
36 CHAP. I. FORMATION OF CONTRACTS.
and in the same right, or those claiming through them ; but the estop-
pel does not extend to proceedings or purposes collateral to the deed (a).
Release aud alteration of deed-— A contract under seal can be
released, rescinded, or altered only by deed (^>).
Section III.— Contracts of Record.*
Record 36
Judgments 36
Warrant of Attorney and Cog-
novit 37
Action 39
Effect in charging Land 39
Priority of Jiidgment Debt 41
Eecognizance 41
Remedies on Judgments 38 Statute Merchant and Staple 41
Effect of Judgment upon Cause of Debts created by Statute 42
Record. — A record is an entry m rolls of parchment of the acts
and proceedmgs of a Court of Record. A record is conclusive proof
of its contents, and no averment or evidence is admissible to contra-
dict it. But the existence of a record may be denied ; and the fact so
disputed is then tried, not as facts orduiarily are tried by jury, but by
inspection of the rolls of the Court, m order to see whether there is
such record as is alleged and what are its contents (c). The enrol-
ment or entry in the roll of the Court is essential to constitute the
record and to give it its peculiar efficacy (d) .
Contracts by record comprise Judgments, Recognizances, and Stat-
utes merchant and staple.
Judgments. The judgment of the Court m an action, when final,
is entered upon the roll of the Court containmg the record of the ac-
tion. Where the judgment decides that the plaintiff shall recover
agamst the defendant a certaui sum of money as debt, or damages,
or costs of suit, a contract is created by the judgment whereby the
defendant is bound to pay that sum. So, where judgment is given
for the defendant, and a sum of money is awarded by the judgment
to be i)aid by the plaintiff to the defendant for his costs of suit, the
judgment creates a contract for the payment of that sum (e).
A judgment, being a simple mode of embodying a contract, at-
tended with easy proof and convenient remedies, is sometimes used
for that purpose by agreement between the parties without any pre-
vious litigation ; also, where a suit has been commenced and is pend-
(a) Doe d. Christmas v. Oliver, 2 Co. Rep. 26 a; ««oA:e's case, 6 Co. Rep.
Smith's L. C. 5th ed. 634; Duchess of 43 6; and see post, Chap. XIII, Sect. I.
Eimjston's case, if). CA2; Petriev. Nut- (c) 3 Bl. Cora. 331; Co. Lit. 117 6;
tall, 11 Ex. 569; Metters v. Brown, 1 II. 260 a; as to what are Courts of Record,
*; C. 686; 32 L. J. Ex. 1.38; Carpenter v. see ib. ; Reg. v. Hughes, L. Rep. 1 P. C.
BuUer, 8 M. & W. 209. 81, 87.
(6) Countess of Rutland's case, 5 (3;
152 1 Smith's L. C. 5th ed. 283.
(c) Beeston v. Colly er, 4 Bing. '"OO. (y) Fenton v. Emblers, 3 Burr. 1278;
(d) Sweet v. Lee, 3 M. & G. 452. Ridley v. Ridley, 34 L. J. C. 4(52.
(e) Williaym v. Jones, 6 B. & C. 108, (k) Wells v. Rorton, 4 Bing. 40.
110 (l) Gilbert v. 8ykes, 16 East, 150, 154.
(f) Boy dell v. Drummond, 11 East, (m) Souchw. Strawbrid/) Evans v. Roberts, 5 B. & C. 829;
Garbutt V. Watson, 5 B. & Aid. 613; and see ante. p. 50.
Smith V. Surman, 9 B. & C. 561, holding (h) See ante, p. 51; Smith v. Surman,
the contrary. 9 B. & C. 561.
(6) Scot V. Eastern Counties Ry. Co., (t) Smith v. Surman, supra.
12 M. & W. 33, 38. (i ) Watts v. Friend, 10 B. & C 446.
(c) See Barman v. Reeve, 18 C. B. (k) See anf.e, p. 50; H alien \. Runder,
587; 25 L. J. C. P. 257. 1 ('• M. & K. 260; and see Uorsfall v.
Hey, 2 Ex. 778.
SECT. IV. § 1. CONTRACTS WITHIN THE STATUTE OP FRAUDS. 55
(a). A contract with a person to work up his own materials in mak-
ing an article, and to deliver it, may be a contract for work and labor
and the materials incident to the employment, or a contract for the
sale of goods, according to the circumstances (b) ; thus, a contract with
an attorney to prepare a deed (c), a contract for contriving a machine
for a certain purpose (d), a contract with a printer to prmt a book (e),
are contracts for work and labor and materials, and not for the sale
of goods, and are not within the statute. A contract for the manu-
facture of a machine (/), a contract with a tailor or shoemaker for the
making of articles of their trade (g), a contract with a miller for a
quantity of flour which he had to grmd (h), a contract to make a set
of artificial teeth to fit the mouth of the purchaser (t), a contract with
an artist for a work of art (J), are not contracts for work and labor,
but for the sale of goods when comi^leted.
A contract for the sale of goods at a certain price, mcluding the
carriage and delivery of them at a certain place, is within the statute
(k). Where a carrier was employed by a purchaser of goods to buy
them for him, and to carry and deliver them, the contract was held
not to be within the statute (I).
Auction. — A sale of g-oods by auction is within the statute (m). ]
Yalue of the goods sold. — The statute applies only to contracts
for the sale of g'oods of the value of ten pounds sterling- and up-
wards (ti). If one contract is made for the sale of several articles,
the value of which collectivel3^ is above ten pounds ; though the
value of each article separately may be less than ten pounds, the
contract is within the statute (o) .
Sales of several articles. — A purchase of various articles in a shop
on one occasion at separate prices was held to be one contract, and,
the articles together being above the value of ten pounds, within the
statute (p). At a sale by auction each lot sold is a distinct contract,
and if the same person buys several lots, each of less value than ten
pounds, his contracts are not within the statute, though collectively
(o) PerBaylev, J., Atkinson v. Bell, 11; Rondeau v. Wyatt, 2 H. Bl. 63, 67.
8 B. & C. 277, 28:3. (0 Lee v. Griffin, 1 B. & S. 272, 30 L.
(6) lb. and see Lee v. Griffin, 1 B. & J. Q. B. 252.
S. 272; 30 L. J. Q. B. 252. (j) Lee v. Griffin, supra ; but see per
(c) See per Erie, J.. Grafton v. Armit- Pollock, C. B., Clay v. Yates, 1 H. &
age, 2 C. B. 336, 339; per Blackburn, J., N. 73, 78; 25 L. .J. Ex. 237, 2.39.
Lee V. Griffin, 1 B. & S. 272, 277. (fc) Asterj v. Emery, 4 M. & S. 262.
id) Grafton v. Armitage, 2 C. B. 336. (l) Cobbold v. Gaston, 1 Bing. 399.
(e) Clay v. Tates, 1 H. & N. 73; 25 (m) Hinde v. Whitehouse, 7 East, 558;
L. J. Ex. 237. Kenworthy v. Schofield, 2 B. & C. 945;
(/) Atkinson Y. Bell, 8 B. & C. 277; overruling Simon v. Motivos, 1 W. Bl.
see Grafton v. Armitage, supra. 599. See ante, p. 49.
(g) Per Coltman, J., Grafton v. Armi- (n) See ante, p. 54.
tage, 2 C. B. 336, .341. (o) Baldey v. Parker, 2 B. & C. 37.
(h) Garbutt v. Watson, 5 B. & Aid. (p) lb; and s3, 1;)7. , ^ . ^^^ 040
mi i'^ ReuKH V. Pickxley, L. K. 1 iix. 6-i^.
(c) Allen V. Bennet, 3 Taunt. 169; (j) ^Vain \War Iters r, Kast 10; 2
Jackson V. Lowe, 1 Bing. 9. ^ ^ Sn.i.h's L. C 5th cd 20S; per Bayley,
(d) See lUdqwayy. Wharton, 3 De G. J., hmioorthy v. SchoJieM, 2 B. dc C.
\f\i- C t""! n)4 94-''< '^-il-
'(e) Bovde\l\'. Druinmond, 11 East, (k) liann v. Hughes, 7 Bro. P. C 550,
142/ 7 T. R. 350, (a).
SECT. IV. § 2. FORMS REQUIRED BY THE STATUTE OF FRAUDS. 59
of the two contracting- parties, the matter of the contract, com-
prising- the consideration and the promise, and must import an
agreement of the parties to the same terms {a).
The memorandum must contain the names of both par-
ties. — A memorandum of a contract of sale in which the
name of the buyer or of the seller does not appear is not
sufficient, nor is the other party chargeable thereby, al-
though it is signed by him (b). A memorandum as follows : — "A.
agrees to buy the marble purchased by B., etc." was held not suffi-
ciently to designate the name of B. as the seller (c). So, a written
guarantee signed by the defendant, but in which the name of the
party to whom it was made did not appear, was held insufficient (d).
A memorandum of agreement for a lease signed by the lessee, but in
which the name of the lessor did not appear, was held to be insufficient ;
but it was also held that the deficiency was supplied by a letter from
the lessee referring to the memorandum and mentioning the name of
the lessor (e). The defendant purchased goods of the plaintiff and
wrote his name in the order book of the plaintiff before the list of
articles ordered, and the name of the plaintiff appeared on the i
fly-leaf of the book ; it was held that there was a sufficient memoran- I
dum containing the names of both the parties to charge the defendant r
The memorandum must contain the consideration and the prom-
ise. — A written document which does not show either in express
terms, or by necessary implication, a valid consideration for the
promise is not a sufficient memorandum of a contract (^). Thus, a
written document in which the defendant agreed to remain with the
plaintiff for two years to learn a busmess was held insufficient, for
not stating an engagement by the plaintiff to teach, or any other con-
sideration (A). A contract of sale, not mentioning the price, would
import a sale at a reasonable price, and would be a sufficient memor-
andum, provided no other price had in fact been agreed upon (?'). So,
an order for goods " on moderate terms" is a sufficient memorandum
of a contract to that effect (/). An agreement for a lease in which
(a) See Laythoarp v. Bryant, 2 Bing. (f) Sari v. Bourdillon, 1 C. B. N. S.
N. C. 735, 742. 188; 26 L. J. C. P. 78.
(b) Champion V. Plummer, 1 B. & P. (r/) Wain v. Warlters, 5 East, 10; 2
N. R. 252; Wheeler v. Collier, M. & M. Smith's L. C. 5th ed. 208; Jenkins v.
123; Graham V. Musson, 5 Bing. N. C. Reynolds, 3B. & B. 14; Hawes v. Arm-
603. strong, 1 Bing. N. C. 761, 765.
(c) Vandenbergh v. Spooner, L. Rep. (h) Lees v. Whitcomb, 5 Bing. 34; and
1 Ex. 316. see Svkes v. Dixon, 9 A. & E. 693.
{.
Fitzmauricp v. Bai/ley, 8 E. & B. 6(54; 127.
26 L. J. Q. B. 115; 27 ib. 143. (f) See Jones v. Nanney, 1 M'Clel. 25.
Ic) Gosbcll V. Archer, 2 A. & E. .500. (7) Tomkinson v. 8tai(jht, 17 C B.
Id) White V. Proctor, 4 Taunt. 209; 697; 25 L. J. C. P. 85.
Kenworthy v. Schofield, 2 B- & C. 945; (h) Bill v. Bament, 9 M. & W. 36, 40;
and see Gra/uxm v. Musson, 5 Bing. N. ante, p. 58.
C. 603.
SECT. IV. § 2. FORMS REQCTIEED BY THE STATUTE OF FRAUDS. 67
actual acceptance by the latter, with an intention of takmg to the pos-
session as owner (a). Such delivery and acceptance are matters of
fact to be found by the jury {b) . At a sale of goods by auction upon the
conditions that the buyer was to pay 30 per cent, of the price upon
being declared the highest bidder, and the residue before the goods
were removed, a lot was knocked down to the defendant and handed
to him immediately without any payment, and the defendant shortly
after returned it, alleging that he was mistaken in the price at which
it was knocked down to him ; it was held to be a question for the jury
whether there had been a delivery by the seller and an acceptance by
the buyer with an intent to transfer the right of possession (c). Upon
a sale of goods, then being in the seller's warehouse, the buyer took
away a portion, but immediately sent it back statmg that the goods
were of inferior quality ; it was held that there was evidence for the
jury of an acceptance and receipt within the statute {d).
Acceptance of the goods. — Upon a sale of unascertained goods by
description and quantity it was formerly held that the statute intended
such an acceptance as amounted to an acknowledgment by the buyer
of a performance of the contract by the seller as to the goods delivered,
and precluded him from afterwards objectmg to the quantity and
quality of the goods (e.) But according to more recent decisions there i
may be an acceptance and receipt of goods by a buyer within the
Statute of Frauds, although he has done nothmg to preclude himself'
from objecting that they do not correspond with the contract (/). So,
there may be an acceptance of the goods sufficient to satisfy the statute,
though not sufficient to preclude the buyer from suing the seller for
non-deUvery {g); or to enable the seller to sue the buyer in an
action for goods sold and delivered {h). Upon a sale of goods by sample
the seller deUvered the goods to a carrier named by the buyer, and
the buyer resold the goods by the same sample and directed the
carrier to convey them to the sub-purchaser, who rejected them as not
accordmg with the sample ; it was held that there was sufficient evi-
dence of an acceptance within the statute to admit parol evidence of
the contract, though the buyer might still object that the goods deliv-
ered did not agree with the sample (^). So, where goods were deliv-
(a) Phillips V. Bistolli, 2 B. & C. 511; (f) Morton v. Tibhett, 15 Q. B. 428;
Maherley v. Sheppard, 10 Bing. 99, 102. Parker v. Wallis, 5 E. & B. 21 ; per
{h) lb. ; Edan v. Budfield, 1 Q. B. Crompton, J., Currie v. Anderson, 2
302, 307; Lillyivhite v. Bevereux, 15 M. E. & E. 592, 600 ; 29 L. J. Q. B. 87,
& W. 285, 291. 90. -« .
(c) Phillips V. Bistolli, 2 B. & C. 511. [g) Anderson v. Scot, 1 Camp. 235,
(d) Kershaw v. Ogden, 3H. & C. 717; note.
34 L- J; Ex. 159. (/() Per Patteson, J., Curtis v. Pugh,
(e) Hanson v. Armitaqe, 5 B. & Aid. 10 Q. B 111, 114.
9^1' III'' .^^^^^ y. Surman, 9 B. & C. (i) 3forton v. Tibbett, 15 Q. B. 428.
561, 577, (a).
68 CHAP. I. FORMATION OF CONTRACTS.
ered on board a ship to the order of the defendant who received the bill
of lading and dealt with it as owner of the goods, it was held that
there was evidence of an acceptance within the statute (a). The
buyer imder a contract for the sale of goods of a certain description
having received the goods delivered into his warehouse, unpacked the
whole and considering it inferior to the description repacked it and
returned it ; it was held that such dealing with the goods, not bemg
with the intention of taking possession, did not alone constitute an
acceptance (b).
The acceptance of the goods may be made while they remain in the
possession of the seller and before the actual delivery and receipt,
which however are also necessary to satisfy the statute (c) . Thus,
where the buyer selected the specific goods to be delivered mider the
contract, and they were afterwards dehvered to a carrier appointed
by the buyer to receive them, it was held that there was an accept-
ance within the statute before the deUvery (d).
A carrier appomted by the buyer to receive the goods from the
seller and carry them, or a warehouseman or wharfinger appomted by
the buyer to receive the goods, is not in general authorized to accept
them withm the statute ; so that upon a sale of unascertained goods
a dehvery by the seller to the carrier, or wharfinger, or warehouseman,
appointed by the buyer does not alone, without any act of acceptance
by the buyer, satisfy the statute {e). A delivery of such goods to a
railway company to be forwarded to a station specified by the buyer,
which are duly forwarded and lie at the ordemof the buyer, does not
alone satisfy the statute (/ ). The delivery and receipt of such goods
on board a ship chartered by the buyer for the purpose of carrying
them is not an acceptance by him (ff) ; but the buyer may receive and
so deal with the bill of lading as to be equivalent to an acceptance of
the goods (A).
If the buyer retains the goods for an unreasonable time after de-
livery without communicatmg to the seller his intention to refuse
them, it is evidence of his acceptance of the goods (t). Thus, where
the goods were delivered at a warehouse by the order of the buyer,
(a) Currie v. Andprson, 2 E. & E. (/) Norman v. Phillips 14 M. & W.
592; 29 L. J. Q. B. 87; and see Meredith 277; Smith y. Hudson, 34 L. J. «^) 6 B. & S. 420; 34 L. J. (Q.B.) 229.
120 HARRIS V. NICKERSON.
lar person who acts upon it before it has been withdrawn (a). He
referred to Spencer v. Harding (b).
Macrae Moir was not heard in reply.
Blackburn, J. I am of opinion that the judge was wrong. The facts
were that the defendant advertised bona fide that certain thmgs would
be sold by auction on the days named, and on the third day a certain
class of things, viz., office furniture, without any previous notice of
their withdi-awal, were not put up. The plaintiff says, masmuch as I
confided in the defendant's advertisement, and came down to the auction
to buy the furniture (which it is found as a fact he was commissioned
to buy) and have had no opportunity of buymg, I am entitled to recover
damages from the defendant, on the ground that the advertisement
amounted to a contract by the defendant with anybody that should
act upon it, that all the things advertised would be actually put up
for sale, and that he would have an opportunity of bidding for them
and buymg. This is certamly a startling proposition, and would be
excessively inconvenient if carried out. It amounts to saymg that
any one who advertises a sale by publishing an advertisement becomes
responsible to everybody who attends the sale for his cab hire or
travelling expenses. As to the cases cited ; m the case of Warloio v.
Harrison (c) ,the opmion of the majority of the judges in the Exche-
quer Chamber appears to have been that an action would lie for not
knockmg down the lot to the highest bona fide bidder when the sale
was advertised as without reserve ; m such a case it may be that there
is a contract to sell to the highest bidder, and that if the owner bids
there is a breach of the contract ; there is very plausible ground at all
events for saying, as the minority of the Court thought, that the auc-
tioneer warrants that he has power to sell without reserve. In the
present case, unless every declaration of mtention to do a thmg creates
a bmding contract with those who act upon it, and m all cases after
advertising a sale the auctioneer must give notice of any articles that
are withdrawn, or be liable to an action, we cannot hold the defend-
ant liable.
QuAiN, J. I am of the same opinion. To uphold the judge's deci-
sion it is necessary to go to the extent of saying that when an auction-
eer issues an advertisement of the sale of goods, if he withdraws any
part of them without notice, the persons attendmg may all maintain
actions against him. In the present case, it is to be observed that the
plaintiff bought some other lots ; but it is said he had a commission to
buy the furniture, either the whole or in part, and that therefore he
has a right of action against the defendant. Such a proposition seems
to be destitute of all authority : and it would be introducing an ex-
(a) See Williams v. Carwardine, 4 B. (c) 1 E. & E. at pp. 314, 318 ; 29 L. J.
»&Ad. 621. (Q. B.)14.
(P) Law Rep. 5 C. P. 56L
WAELOW V. HARRISON. 121
tremely inconvenient rule of law to say that an auctioneer is bound to
give notice of the withdrawal or to be held liable to everybody attend-
ing the sale. The case is certainly of the first impression. When a
sale is advertised as without reserve, and a lot is put up and bid for,
there is ground for saying, as was said in Warlov:i v. Harrison («), that
a contract is entered into between the auctioneer and the highest bona
fide bidder ; but that has no application to the present case ; here the
lots were never put up and no offer was made by the plaintiff nor
promise made by the defendant, except by his advertisement that cer-
tain goods would be sold. It is impossible to say that that is a con-
tract with everybody attendmg the sale, and that the auctioneer is to be
liable for their expenses if any single article is withdrawn. Spencer v.
Harding (b), which was cited by the plaintiff's counsel, as far as it
goes, is a direct authority against his proposition.
Archibald, J. I am of the same opinion. This is an attempt on
the part of the plaintiff to make a mere declaration of intention a bind-
ing contract. He has utterly failed to show authority or reason for
his proposition. If a false and fraudulent representation had been
made out, it would have been quite another matter. But to say that
a mere advertisement that certain articles will be sold by auction
amoimts to a contract to indemnify all who attend, if the sale of any
part of the articles does not take place, is a proposition without
authority or ground for supporting it.
Judgment for the defendant.
WARLOW V. HARRISON.
In the Queen's Bench, Nov. 25, 1858.
[Reported in 1 Ellis and Ellis, 295, 309.]
The declaration stated that the defendant exercised and carried on
the trade and business of an auctioneer, and was retained and em-
ployed to sell and dispose of, by public auction, divers horses : that he
advertised that the said intended sale by auction would take place on
Thursday the 24th day of June, 1858, at No. 1 Cheapside, Birmingham,
and that there would be sold by auction (amongst other horses) a cer-
tain horse, as follows, that is to say, " the property of a gentleman,
without reserve, Janet Pride^ a brown mare, Avithout white, five years
old, by lago out of Stormy Petrel ; for performances see Pacing Calen-
dar.^'' That the plaintiff attended the said sale by auction, and became
and was the highest bidder for the said mare so advertised to be sold
without reserve ; and that the defendant became and was the agent of
the plaintiff, to complete the contract, on behalf of the plaintiff, for
(a) 1 E. & E. at p. 314; 29 L. J. (Q.B.) 14. (b) Law Rep. 5 C. P. 561
122 WAELOW V. HAKRISON.
the purchase of the said mare, but wholly omitted and refused so to
do ; whereby the plaintiff was deprived of the benefit of the said con-
tract, and unable to obtain the said mare, as he otherwise would have
done, and was put to and incurred divers expenses. And he claimed
150^.
Pleas: 1. Not Guilty; 2. That the defendant was not the highest
bidder at the said sale as alleged; 3. That the defendant did not be-
come the plaintiff's agent as alleged.
On the trial, before Cockburn, C. J"., at the last Warwick Assizes, the
facts appeared to be as follows :
The plaintiff was a captain in the Royal Artillery ; and the defend-
ant was a horse-dealer and auctioneer carrymg on business in partner-
ship with a Mr. Bretherton, mider the firm of Bretherton and Harrison^
at No. 1 Cheapside^ Birmingham^ where they have a repository for the
sale of horses. In June,1858,the defendant as such auctioneer as afore-
said, with his partner, publicly advertised a sale of horses, to take
place by auction, at then- repository, on Thursday, 24th June, and
issued printed particulars of such sale, which, so far as relates to this
case, were as follows :
" The three following horses, the property of a gentleman, without
reserve ; in stall 23, Moire Antique ; stall 24, Janet Pride^ a brown mare
without white, five years old, by lago out of Stormy Petrel ; for per-
formances see Racmg Calendar ; stall 25, Captain Barclay," &c.
In consequence of these advertisements the plaintiff, on 23d June,
sent his groom and Mr. Stanley, a veterinary surgeon, to the defend-
ant's repository, to examme and report to him respectmg the horses so
advertised for sale there, who reported the mare as worth probably
from 40^. to 60^. : and, on receiving Mr. Stanley's report of the mare
Janet Pride^ for which examination and report the plaintiff paid Mr.
Stanley his charge of 10s., the plaintiff next day with one of his friends,
attended at the sale by auction, at the defendant's repository ; where,
after the preceding- lots had been disposed of, the mare Janet Pride
was put up for sale by the defendant as auctioneer. And, after several
biddings made for her, some being made on behalf of the plaintiff by a
friend of his, the mare went up to 59 guineas : the plamtiff then bid
60 guineas for her ; and immediately there was a bid made over him
of 61 guineas, by Mr. Henderson, the owner of the mare. The defendant,
on the 61 guineas being so bid as aforesaid, nodded to the plaintiff, to
see if he would bid any more : but the plaintiff, having been then in-
formed that the owner of the mare had made the last bidding of 01
guineas, shook his head and refused to make any further bid ; and the
defendant thereupon knocked down the mare to Mr. Henderson, the
owner, for 61 guineas, and entered his name as purchaser in the sale
book, which had been prepared before the sale, and which contained
the names of the horses to be sold at the sale, and the names of the
WARLOW V. HARRISON. 123
proprietors. The mare was sent back to the stables ; and defendant
went on sellmg other lots. The plamtiff went at once mto the auc-
tioneer's office. He there saw Mr. Bretherton, defendant's partner,
and Henderson the owner, and claimed the mare, as the highest bona
fide bidder for her, and as she had been advertised in the prmted bills
for unreserved sale. In the coui'se of the conversation with Mr.
Bretherton, Mr. Henderson said ; " I bought her m ; and you shall not
have her ; I gave one hundred and thirty pomids for the mare ; and it
is not likely I am gomg to sell her for sixty three." The same day,
plaintiff tendered to the defendant the sum of 63 pounds in sovereigns
as and for the price of the mare, and demanded her ; the defendant re-
fused to receive the money or to dehver up the mare to the plaintiff,
stating, at the same time, that he had knocked her down to the high-
est bidder, and he could not interfere in the matter. He also said
Henderson was the highest bidder. There was evidence that certain
printed conditions of sale were posted about the defendant's repository
where the sale took place, and that it was the practice to read them
before the sales there. A copy of these conditions, so far as relates to
this case, is as follows :
" Conditions of Sale.
" 1. The highest bidder to be the buyer ; and, if any dispute arise
between two or more bidders before the lot is returned into the stables,
the lot so disputed shall be put up again, or the auctioneer may declare
the purchaser."
"3. The purchaser, being declared, must immediately give in his
name and address, with (if required) a deposit of 5^. in the pomid on
account of his purchase, and pay the remainder before such lot or lots
are delivered."
" 8. Any lot ordered for this sale, and sold by private contract by
the owner, or advertised without reserve and bought by the owner, to
be liable to the usual commission of 5 per cent."
A verdict was taken for the plaintiff, Damages 5Z. 5s. ; and leave was
given to the plamtiff to amend the declaration if the Court should
thmk fit; and to the defendant leave was given to move as after
mentioned.
Mellor, in this term, obtained a rule to enter a verdict for defendant,
or a nonsuit, on the grounds : First, that no such duty as alleged de-
volved upon the defendant under the circumstances of the case ; sec-
ondly, that the defendant was not the agent of the plaintiff to complete
the sale, not being bound by any duty or contract so to do ; thirdly,
that there was no contract with the plaintiff in point of fact which it
became the duty of the defendant to complete ; fourthly, that, by the
bidding of the owner of the horse of a larger sum than that bid by the
plaintiff, any authority on the part of the owner to sell the horse to
124 WAUIiOW V. HAKKISON.
the plaintiff was revoked ; fifthly, that it was the duty of the plaintiff,
if he disputed the bid of the owner of the horse, to have disputed
such bidding pursuant to the conditions upon which the sale was to
be conducted.
On a former day in this term (a).
Isaac Spooner and Beasley showed cause. First, the bidding by
the owner of the horse was, in law, fraudulent, and not a bidding at
all ; Bexv)ell v. Christie {b) ; and in Sugde/i's Pr'actical Treatise on the
Law of Vendors and Purchasers, vol. i. p. 13 (11th ed.), this case is
introduced by a reference to Cicero'' s view of the immorality of em-
ploying a sham bidder (c), and to Hubert doctrine that, if a vendor
employ a puffer, he shall be compelled to sell the estate to the highest
bona fide bidder {d). The plaintiff was therefore really the highest
bidder. JBexioell v. Christie (e) has been much canvassed, especially in
equity. It was there decided that no action lay against an auctioneer,
at the suit of the vendor who employed him, for selling to the highest
bidder, contrary to the directions of the plaintiff, who had ordered the
auctioneer not to sell at a price below a sum privately named by
the vendor to the auctioneer. The vendor may, as it was there said,
fairly set up the article at a price named, or may give a notice that he
means to bid once himself. If, in the present case, after the owner
had made the biddmg, a third party had bid still higher, had been de-
clared purchaser, and had refused to complete the purchase, the owner
could not have compelled him to do so, the highest biddmg having been
produced by the fraudulent bidding of the owner. That appears from
Hoioard v. Castle ( /), where Bexicell v. Christie (e), was treated as a
conclusive authority. Crowder v. Austin (g), and Wheeler v. Collier (A)
are to the same effect : and in Thornett v. Haines (i) the Court of
Exchequer decided that this was the law, at any rate, where more than
one puffer had been employed, or where, as here, the sale is announced
to be without reserve. The principle, that the bid of a puffer does not
prevent the previous highest bidder from beiug still the highest, and
that the bidding by the puffer is illegal, and precludes the vendor from
insisting on biddings enhanced by such practice, will be fomid to have
been acted upon in two Scotch cases, Grey v. Steioart (/) and Anderson
(a) November 24th. Before Lord Camp- prsemium maxima licitationis, vulgo
bell C. J., Wightman and Erie Js. Slruyckgelt, quo nil usitatius,intercipiat,
(h) 1 Cowp. 395. dolo detecto, venditorem teneri ad prse-
(c)"Doius autem malus simulatione,iit mium vero licitatori maximo prsestan-
ait Aquillius, continetur. ToUendiim dum, quia hoc est contra fidem conven-
est igitur ex rebus contrahendis omne tionis perfectae, qUcl statutum est, ut
uiendacium: non licitatorem venditor, maximo licitatori pnemium daretur."
iiec qui contra se liceatur emptor, ap- (e) 1 Cowp. 39.5. (/ ) 6 T. K. 642.
ponet." De Off. in. 15. 61. (g) 8 Bing. 368. (/;) Moo. & M. 123.
id) Prcelectione.s, lib. xviii. tit. 2. s. 7. (i) 15 M. & W. 367.
"Hoc facilfe constabit, si venditor falsum (_;) Decisions of the Court of Session,
emptorem inde ab initio subornet, qui from the beginning of February, 1752, to
^ plus aliis offerat, ut veris emptoribus the end of the year 1756; p. 130 (7th
August, 1753).
WATIT.OW V. HAKRISON. 125
V. Stexcart (a). In the last mentioned case BexwellY. Christie (&) and
Howard Y. Castle (c) were cited. Lord Cottenham, C.^ inRohinsonv.
Wall (d), held that a sale, where the highest bidding was produced
by the employment of a party privately employed by the vendor, the
sale having been advertised as " without reserve," could not be enforced
m equity. Next, the auctioneer was, for the purpose of completing
the purchase, the agent of the plaintiff ; and, that being so, it was his
duty to knock down the article to the plamtiff, who was the highest
legal bidder. The auctioneer is, it is true, m the first instance the
agent of the seller who mstructs him : but he contracts also a duty
towards every one from whom he receives a bidding. [Lord Campbell,
C. J. When do you say that agency begms ?] As soon as the bidding
is made. In Jones v. JSfanney ( e), where an auctioneer attempted to
recover, in alleged pursuance of the conditions of sale, the auction duty
from a bidder, to whom the article had been knocked down, but whose
name had not been entered in ^\Titing by the auctioneer, and it was
held that the action did not lie because the conditions of sale made the
duty payable by the purchaser, which the defendant was not, Alex-
ander, C. B. said that the conditions of sale formed the written con-
tract between the parties. If an auctioneer improperly rescind a con-
tract, he is liable to the vendor as for breach of the duty which he has
contracted to perform; Nelson v. Aldridge {f) . [Lord Campbell, C. J.
Your difficulty will be to show such a contract between the auctioneer
and the bidder.] The language of Best, J. there seems to apply to
both cases : « It was the duty of the auctioneer to sell and not to re-
scind, to do, not to undo ; and the law would imply a contract on his
part to discharge his duty." Instructions given privately by the seller
to the auctioneer, interfering with the professed competition, are a
fraud on the public, and so is a compliance with such instructions.
[Lord Campbell, C. J. A man who commits a breach of a public duty
whereby an mdividual is damaged, is liable to an action at the suit of
the individual : but it is difficult to say that an auctioneer has a pub-
lic duty to perform, within the meaning of that rule.] A sale by
auction is not like other sales : a material difference is made by the
public announcement. This is what makes the auctioneer the agent
of the bidder. [Lord Campbell, C. J. You say that the auctioneer, in
consideration of a person bidding, undertakes to make him the pur-
chaser if the bid is the highest.] That is so. The bidder, after the
hammer is down, cannot retract his bidding, though his name has not
been entered : he may retract before the hammer is down ; which is
all that Paijne v. Cave (gj shows, though some remarks of the Court
(a) Decisions of the First and Second (c) 6 T. R. 642
Divisions of the Court of Session, from (di 2 Phill. Rep. Ca Ch. 372
>.ovembpr,lSU to November,181o, p. 108 (e) 13 Price, 76; S. C. M'CleL 25.
(i,coeiiii»eflG,1814). (/) 2 Stark, 435
(^MCowp. 395. (^)3T. R.148
126 WARLOW V. HARRISON.
are reported in that case the accuracy of which may be questionable.
In Emmerson v. Heelis {a) it was laid down that the auctioneer is
the agent of the buyer, and that the authority is conferred by the
buyer bidding aloud. That decision was acted upon m White v.
Proctor {b). And in Kemeys v. Proctor (c) specific performance was
decreed against a purchaser on the ground that the auctioneer had
written down his name, and was his agent : thereGrant,M. R. decided
in conformity with the decisions before mentioned, though indeed, it
seems, reluctantly. The same doctrine was explicitly laid down by
Bailey, J. in Kemoorthy v. Schofield (cl). Buckniaster v. Harrop (e)
&ndillinde v. Whitehouse (f) are also recognitions of it. In the Earl
of Glengal v. Barnard {g) Lord Langdale, M. R. appears to assent to
it, on the ground of the peculiar " nature of the proceeding by auction."
In his judgment reference is made to Stansfeld v. Johnson (h) and
Walker v. Constable ( i ), cases in which the doctrine was held not to
apply to the sale of lands (so as to satisfy sec. 4 of the Statute of Frauds
29 C. 2. c. 3) but which are now not considered to be law. It has been
suggested that the auctioneer's authority as agent was revoked by the
owner himself bidding; but there is nothing to support such a doctrine.
[AVightman, J. The revocation, if it was one, did not take place till
after the plaintiff had made his bidding.] Lastly, on the evidence,
there is ground for believing that the defendant knew that the highest
bidding was made on behalf of the owner himself.
Mellor and Fields contra. It is not necessary, on behalf of the pres-
ent defendant, to dispute the proposition that, on the facts of this
case, the vendee might have resisted any attempt by the vendor to
enforce the sale, supposmg the vendee had bidden a higher price than
that bidden by the vendor. In Sugden's Concise and Practical Treatise
of the Law of Vendors and Purchasers of Estates, pp. 8, 9 (ed. 1857),
most of the cases cited for the plaintiff are collected ; but they are
there brought forward for the purpose only of that question. And
this is all that the decisions on the subject of j)uffing prove ; they show
that a bidder, whose bid has been produced by puffing, cannot be held
to his bid. But here the question is whether the auctioneer can be
made liable to the bidder whom he has not declared purchaser. The
argument on the other side assumes that the bidding by the owner
took place in pursuance of an agreement between the owner and the
auctioneer ; whereas it does not appear that the auctioneer knew that
the owner was a bidder at all. Nor is it true, as a general proposition,
that the auctioneer is, ex vi termini, agent for both parties : that de-
X)ends upon the facts of the particular case ; per Lord Denman, C. J. in
Bartlett v. Purnell (J). [Lord Campbell, C. J. Clearly the auctioneer
(a) 2 Taun. 38. (b) 4 Taun. 209. (^0 3 V. & B. 57. (d) 2 B. & C. 945.
ie) 13 Ves. 456. (f) 7 East, 558. (7) 1 Keen, 769, 7SS. {h) 1 Esp. 101.
(i) 1 B. & P. 306. S. C. at N. P., 2 Esp. 059. (; ) 4 A. & E. 792.
WARLOW V. HARRISON. 127
is the agent of the vendor ; and he is the agent of the vendee at least
for the purpose of takmg down the name at the bidding.] His agency
to tlie vendor is created by the direction which he receives to sell
according to the instructions given to him : and, when the bidder makes
a bid, that is an authority to knock the article dowai to the bidder ;
after which the auctioneer, in writmg down the bidder's name, no
doubt acts as agent to both parties, so as to satisfy the Statute of
Frauds . But the auctioneer does not become the agent to the auctioneer
by the mere bidding : only, if he accepts and acts upon the authority
by knocking dowii the article and writmg the name, he then is ag-ent.
But, before such acceptance, he has not contracted with the bidder to
act as agent : that, however, is the proposition necessary to support
the allegation in the declaration. The mere offer to sell, or the mere
offer to buy, constitutes no contract. Suppose a bid for 4^. and then
another bid for 5^., at which the article is knocked down, but which
turns out to be improper : is that a sale for the 47. ? The time at which
the agency arises is defined by Sir James Mansfield's explanation of the
auctioneer's authority, in Emmerson y.Heelis (a). By what authority
does he write down the pui-chaser's name ? By the authority of the
purchaser. These persons bid, and annomice their biddings, loudly
and particularly enough to be heard by the auctioneer. For what
purpose do they do tliis ? That he may write down their names op-
posite to the lots ; therefore he writes the name by the authority of
the purchaser, and he is an agent for the purchaser." The bidder
might have constituted, as his agent, another person, mdependent of
the auctioneer, as, in BirclY. Boulter (h), the auctioneer's clerk. In the
case of brokers' notes, the broker has the authority of both vendor and
vendee, of the one to sell and of the other to buy. Bexwell v. Chris-
tie (c) shows merely that the owner cannot sue the auctioneer for dis-
obeying legal mstructions. Payne v. Cave (d) shows that, till the
hammer is down, the contract between the owner and the bidder is
not complete: how then can there be, before that, a contract between
the bidder and the auctioneer ? So the authority of a broker to insure
may be revoked at any time before the policy is subscribed ; Warwick
V. Slade (e). So a parol contract of sale of goods for a sum exceedmg
10?. may be revoked at any time before there is a signed written mem-
orandum ; Ta>/lor v. Wakefekl (/). And the general law of England
IS that an offer may be retracted before it is accepted; Routledge v.
Chant {g). And this shows that, if the bid of the owner here invali-
dated the transaction, there was a revocation of the authority before
the contract was completed. And, if the auctioneer had afterwards
professed to sell, it would not have passed the property. Is the
(a) 2 Taun. 48. {h) 4 B. & Ad. 443. (c) 1 Cowd .395 (,n " T P uq
(e) ?, Campb. 127. ' ( / ) 6 E. & B. 765. ^^ (^) 4 Bing 653. ^ ^ ^
128 WARLOW V. HARRISON.
auctioneer agent for every person in the saleroom before a bid has been
made ? [Erie, J. It has been held that, where a party offers publicly
a reward for any one who will do a particular act, and somebody does
the act in consequence, the party offering the reward has contracted
with him who does the act.] That seems to have been decided in
Williams v. Caricardine (a), a case which was much discussed in Ger-
hard y. Bates (b), where the Court said that such cases were "some-
what anomalous."
Our. adv. vult.
Lord CampbelLjC. J., now delivered the judgment of the court.
In this case, which was very learnedly and ably argued before us
yesterday, we feel bound to give judgment for the defendant, on the
short ground that the plaintiff's allegations as to the agency of the
defendant and the duty of the defendant to complete the contract on
behalf of the plaintiff are not substantiated.
The plamtiff's comisel argued that, as soon as the plaintiff had bid
for the mare, the defendant, as auctioneer, became his agent to com-
plete the contract for the purchase, and that the defendant was guil-
ty of a breach of duty m failing to do so. This mgenious reasoning
rests entirely upon the decision that, if, after an article put up to be
sold by auction is knocked down to the highest bidder, the auctioneer,
at his request, signs a memorandum of the agreement to purchase,
this is a sufficient memorandum of the agreement to bmd the pur-
chaser. But the auctioneer is the agent of the purchaser for this pur-
pose only ; and he becomes so only when there is a contract of sale by
the acceptance of the bidding, which is usually declared when the
hammer is knocked down. Then the purchaser, or his representative,
being present, authorizes the auctioneer to sign the memorandum.
But, till the hammer goes down, the auctioneer is exclusively the
agent of the vendor. Mr. Spooner contended that from the com-
mencement of a sale by auction the auctioneer is in the situation of a
broker or middleman between the vendor and the purchasers, as the
common agent of both ; that he is the agent of the bidder to receive
the bidding ; that the bidder is a conditional purchaser ; that, where
the sale by the conditions is without reserve, the bidder is absolutely
the purchaser unless there be a bona fide higher bidding ; and that
the auctioneer, m consideration of the biddmg by which commission
will come to him, promises the highest bidder to knock down the
article to him, and to do all that is necessary to complete the sale.
But this reasoning is wholly at variance with the case of Payne v.
Cave (c), which has been considered good law for nearly seventy
years. That case decided that a bidding at an auction, instead of be-
(a) 4 B. & Ad. ('.21. Northern Bailway Company, 5 E. & B.
(6) 2 E. & B. 476. See Dentm Y.Great 860. (c) 3 T. R. 14&
WARLOW V. HARRISON. 129
ing a conditional purchase, is a mere offer ; that the auctioneer is the
agent of the vendor ; that the assent of both parties is necessary to
the contract ; that the assent is signified by knocking down the ham-
mer ; and that, till then, either party may retract. This is quite in-
consistent with the notion of a conditional purchase by a bidding, and
with the notion of there being any personal promise by the auctioneer
to the bidder that the bidding of an intending purchaser shall abso-
lutely be accepted by the vendor. The vendor himself and the bidder
being respectively free till the hammer is knocked down, the auction-
eer cannot possibly be previously bound. At this auction, the mare
never was knocked down to the plaintiff ; and the relation of princi-
pal and agent between him and the defendant never had commenced.
We are not called upon to say whether there is any or what remedy
on the conditions of sale against the vendor who violates the condi-
tion that the article shall be bona fide sold without reserve ; but we
are clear that the bidder has no remedy against the auctioneer, whose
authority to accept the offer of the bidder has been determined by the
vendor before the hammer has been knocked down.
We are therefore relieved from the necessity of commenting upon
any other of the numerous authorities cited on both sides : and we
must make absolute the rule which gives the plaintiff the choice of a
nonsuit or of a verdict being entered for the defendant.
Nonsuit entered.
WARLOW V. HARRISON.
In the Exchequer Chamber, Nov. 26, 1859.
The plaintiff appealed against the above decision.
The case was argued in Easter Vacation, 1859(a), and Trinity
Vacation, 1859 (b).
Macaulay for the appellant (plaintiff below). There was in this
case a breach of duty by the auctioneer, giving to the plaintiff a right
of action. The sale was " without reserve : " under such circum-
stances, unless pubhc notice is given, a bidding by the owner is fraud-
ulent; ThornettY. Haims (c), RoUnson v. Wall (d). The principle
that the owner is not to mislead the public in this respect was laid
down in Rexwelly. Christie (e). It has been suggested that the bid-
ding by the owner was a countermand of the authority to sell ; but
the defendant did not so treat it ; he treated it as an orduiary bidding
(a) May 14th. Before Willes and Byles when the conclusion of the argument for
Js., and Martin, Bramwell and Watson the defendant and the reply for the
Bs. plaintiff were heard.
(6) June 20th. Before the same Judges. (c) 15 M. & W. 367.
Williams J. was also present on this day, (d) 2 Phill. Rep, Ca. Ch. 372.
Vol. 1-9
(e) 1 Cowp. 395.
130 WARLOW V. HARRISON.
According to Bexwell v. Christie (a) the auctioneer might, after the
bidding by the owner, liave sold to the plaintiff on his first bidding :
how then can the auctioneer's authority have been countermanded ?
[Martm, B, Supposing your general principle true, was not the
proper remedy here an action for deceit ?] There is a contract be-
tween the auctioneer and the bidder. [Martm, B. Does the auction-
eer do more than say that the owner has directed him to sell without
reserve'?] He professes to have adopted those directions. [Martm,
B. Why could not the owner stop the sale?] He might do so, but
not by such a trick as this. There can be no dispute but that, if the
article is once knocked down to a bona fide bidder, the auctioneer is
his agent. But, when the sale is " without reserve," the agency com-
mences at the biddmg, which gives the bidder a right till devested by
a higher bona fide bidder. The auctioneer is thus, successively, the
agent of every bidder, conditionally upon there being no higher bona
fide bidding. [Martm, B. The case does not show that the defend-
ant knew that it was the owner who was bidding : how is he then to
blame ?] The Court below relied upon Payne v. Cave (h). But there
it was not part of the conditions of sale that the bidding should be
" without reserve : " and the bidder had therefore a discretion to with-
draw his bidding at any time before the hammer was down : had the
sale been "without reserve" he would have been bound by his bid-
ding. The consideration on which the auctioneer enters mto the con-
tract is the mcrease of commission which will accrue to him from
each successive bidding.
Fields contra. The declaration alleges that the defendant was re-
tained and employed to sell ; that is, by the owner : and then it al-
leges that the defendant became the agent of the plaintiff, the bidder,
to complete the sale. On that agency the declaration, which com-
plains of a breach of duty, is founded. But at what time did such
agency commence? All that the defendant has done, in the way of
undertaking on his part, is to publish an announcement that he is
employed by the owner to sell. That this created no contract with the
plaintiff is plain from Payne v. Cam (b) and Cooke v. Oxley (c). In
Chitty^s Treatise on the Laxo of Contracts, p. 9, (ed. 6), it is said : " In
order, then, that a simple contract may be binding, there must first
be a definitive promise by the party charged, accepted by the person
claiming the benefit of such promise." Now, according to Payne v.
Cave {h), there was in this case no such acceptance, nothing has
passed shice the offer of the plaintiff. [Byles J. May it not bo said
that the advertisement of the defendant amounted to a promise that
he would act in compliance with the terms of the advertisement
towards any one who also acted on those terms ?] Jones v, Nanney (d)
(a) 1 Cowp. yj'j. {'>) :] T. R. 148. {<:) :] T. R. 653. (d) 10 Price, 70; S. C. M'Lel. 25.
"WAELOW V. HARRISON. 131
shows that here the plaintiff would not have been liable to the de-
fendant : and, according to Wancick v. Slade (a), nothmg had passed
which made the authority given by the owner to the defendant irrev-
ocable. Farmer v. Eobinson (b) shows the same . [Willes, J. Has it
not been decided that, where a carrier has advertised that his carriage
will start at a certam time, he is, in the event of the carriage starting
too late, liable to every one who acts on the faith of the advertise-
ment ?] The case alluded to seems to be Denton v. Great Northern
Railway Company ( c). But the complamt there was that the tram
of the defendants did not fall in with another train, as promised by
the time-table. And it appears that there the plaintiff had actually
commenced his journey by the defendants' train ; and he therefore
must have taken a ticket and paid the money ; the contract was there-
fore complete. The doctrine that, in general, any one who makes a
general offer contracts personally with each individual who accepts
it, can scarcely be relied upon after the remarks of the Court in Ger-
hard V. Bates (d) . The words in the advertisement " without reserve "
cannot affect the question as suggested on the other side. Those
words might have disqualified the owner from availmg himself, di-
rectly or mdu-ectly, of his own bid : but hoAv can they make the auc-
tioneer the agent of the bidder ? [Macaiday. According to the terms
of the reservation, the declaration may be altered], but it has not
been altered ; and the breach complamed of is the neglect of duty as
agent. Nor, if the action were shaped as an action for fraud, would
the evidence support it : there is no proof that the defendant knew
that the owner was bidding, the defendant therefore cannot be made
m any way liable for the evasion of the terms of the proposed sale.
This distmction becomes very important with reference to Gerhard v.
Bates (rt). After the owner had bid, nothing which the defendant
could have done would have bound the property. [Byles, J. No
doubt an offer may be retracted before it is accepted : but, if you offer
to sell « without reserve," is not the bidding an acceptance ?] It can-
not be so ; for it is undoubted law that the bidder may retract before
the hammer is down. Till then, the auctioneer cannot bmd the bid-
der according to the rule m Simon v. Motims (e) and other authori-
ties already cited.
Macaiday in reply. Accorduig to the facts stated, the defendant
must be liable in some form or other. [Willes, J. On this appeal,
we are to see what part of the declaration is not proved. Bramwell,
B. The defendant says that it is not proved that he was plamtiff's
agent. Willes, J. Perhaps it maybe said that this is only alleged
as a conclusion in law. Watson, B. On the view, the traverse taken
61 1 eTb.' 476. ^'^ (^riBur^lirr ^- ^^'"^'' ' ^'''^^' ^^^^ ^'^ ^^■^^' ^'^*
132' WARLOW V. HARRISON.
is not material.] " If the facts stated raise the duty,then the express
allegation of the duty is unnecessary ; if they do not, then the express
allegation will not supply the defect ; " per Lord Campbell, C. J. in
Seymour v. MacMox (a). As to the effect of the words "without re-
serve," Mobinson v. Wall (b) and Thornett v. Haines (c) are conclusive.
The notion of a revocation of authority, after a bidding made upon an
announcement that the sale was to be without reserve, cannot be sup-
ported. [ Bramwell, B. If there were such a revocation, perhaps
the auctioneer should have said : " Stop : the sale is not without re-
serve ; my authority is revoked,"]
Martin, B. The Court will take time for considering : in the mean-
while, the parties may consider whether the proper end of this case
would not be a stet processus.
Cur. adv. vult.
Martin, B., now delivered the judgment of the Court.
This is to be tmderstood as the judgment of my brothers Byles and
Watson and myself.
This is an appeal from a judgment of the Court of Queen's Bench,
reported in 28 Law Journal^ Q. B. 18. The material facts stated in
the case are these :
The defendant and a Mr. Bretherton are auctioneers in partnership
at Birmingham^ where they have a repository for the sale of horses.
In June, 1858, they advertised a sale by auction at the repository.
The advertisement contained, amongst other entries of horses to be
sold, as follows : " The three followmg horses, the property of a
gentleman, without reserved One of these was a mare called Janet
Pride. The plaintiff attended the sale, and bid sixty guineas for
her : another person immediately bid sixty-one guineas ; this person
was Mr. Henderson, the owner of the mare. The plamtiff, having
been informed that the last bidder was the owner, declined to bid
further ; and thereupon the defendant knocked down the mare to
Mr. Henderson for sixty-one guineas, and entered his name as pur-
chaser in the sale book, which contained the names of the animals
to be sold at the sale, and the names of the proprietors. The plaint-
iff went at once into the auctioneer's office and saw Mr. Bretherton
and Mr. Henderson, and claimed the mare from Mr. Bretherton as
being the highest bona fide bidder, the mare being advertised to be
sold without reserve. Mr. Henderson said, " I bought her in ; and
you shall not have her : I gave one hundred and thirty pounds for
the mare ; and it is not likely I am going to sell her for sixty-three.''
On the same day, the plaintiff tendered to the defendant sixty-three
(a) 16 Q. B. 326, 329, 330. (6) 2 Phill. Rep. Ca. Ch. 372. (c) 15 M. & W. 367.
WARLOW V. HARRISON. 133
pounds, in sovereigns, as the price of the mare, and demanded her.
The defendant refused to receive the money or deliver the mare,
stating that he had knocked her down to the highest bidder, and he
could not interfere m the matter. There was evidence that the plaint-
iff had notice that the following were amongst the conditions of
sale.
" 1. The highest bidder to be the buyer ; and, if any dispute arise
between two or more bidders before the lot is returned mto the sta-
bles, the lot so disputed shall be put up again, or the auctioneer may
declare the purchaser."
" 3. The purchaser, being declared, must immediately give in his
name and address, with (if required) a deposit of five shillmgs in the
pound on account of his purchase, and pay the remainder before such
lot or lots are delivered."
« 8. Any lot ordered for this sale, and sold by private contract
by the owner, or advertised without reserve and bought by the owner,
to be liable to the usual commission of 5 per cent."
At the trial a verdict was entered for the plaintiff for £5. 5s dam-
ages; and leave was given to amend the declaration if the Court
should thmk fit. Leave was also given to the defendant to move to
enter a nonsuit. The Court of Queen's Bench made a rule absolute
to enter a nonsuit ; and this is an appeal from their judgment.
Upon the pleadings as they stand we think the judgment of the
Court of Queen's Bench is right, and that the defendant is entitled
to the verdict upon the issue on the third plea ; but there is power
given to the Court to amend ; and it has been held that this power
extends to the Court of Appeal ; and we think we ought to exer-
cise it largely to carry out the object of the Common Law Proce-
dure Acts 1852, and 1854, viz. to determine the real question in con-
troversy between the parties in the existing suit. Upon the facts
of the case, it seems to us that the plaintiff' is entitled to recover-
In a sale by auction there are three parties, viz. the owner of the
property to be sold, the auctioneer, and the portion of the public
who attend to bid, which of course includes the highest bidder. In
this, as in most cases of sales by auction, the owner's name was not
disclosed : he was a concealed principal. The name of the auction-
eers of whom the defendant was one, alone was published : and
the sale was announced by them to be "without reserve." This,
according to all the cases both at law and equity, means that neither
the vendor nor any person in his behalf shall bid at the auction, and
that the property shall be sold to the highest bidder, whether the
sum bid be equivalent to the real value or not ; Thornett v. Bdines (a).
(ft) 15 M. & W. 367.
134 WAELOW V. HAREISON.
"We cannot distinguish the case of an auctioneer putting up
property for sale upon such a condition from the case of the loser
of property offering a reward, or that of a railway company publish-
ing a time-table statmg the times when, and the places to which
the trains run. It has been decided that the person giving the in-
formation advertised for, or a passenger taking a ticket, may sue
as upon a contract with him ; Denton v. Great Northern Baihcay
Company (a). Upon the same prmciple, it seems to us that the
highest bona fide bidder at an auction may sue the auctionee r as
upon a3)ntra ctL_that the sale shall be without reserve. We thmk
the auctioneer who putsl.lie'property up for sale upon such a condi-
tion pledges himself that the sale shall be without reserve ; or, in other
V words, contracts that it shall be so ; and that this contract is made
with the highest bona fide bidder ; "and in case of a breach of it, that
he has a right of action against the auctioneer. The case is not at
all affected by the 17th section of the Statute of Frauds, which re-
lates only to direct sales, and not to contracts relating to or connec-
ted with them. Neither does it seem to us material whether the
owTier, or person on his behalf, bid with the knowledge or privity
of the auctioneer. We think that the auctioneer has contracted that
the sale shall be without reserve; and that the contract is broken
upon a bid being made by or on behalf of the owner, whether it
be durmg the time when the property is under the hammer, or it
be the last bid upon which the article is knocked down ; in either
case the sale is not "without reserve," and the contract of the
,' auctioneer is broken. We entertain no doubt that the owner may,
i at any time before the contract is legally complete, mterfere and
• revoke the auctioneer's authority : but he does so at his peril ; and, if
i the auctioneer has contracted any liability in consequence of his em-
f ployment and the subsequent revocation or conduct of the owner, he
is entitled to be indemnified.
We do not think the conditions of sale stated in the case (assum-
ing the plaintiff to be taken to have had notice of them ) affect it.
As to the first, Mr. Henderson could not be the buyer : he was the
owner ; and, if it were material, there is ample evidence that the de-
fendant knew him to be so ; indeed we think he ought not to have
taken his bid, but to have refused it ; stating, as his reason, that the
sale »was " without reserve." We feel inclined to differ with the view
I of the Court of Queen's Bench in this, tha. twe r ather thinkjhejjjd
fUiLMiuJienderson \Ya^s_m^
I as auctioneer. The third condition has nothing to do with the case J
and the "eighth only provides that, if, upon a sale without reserve,
() 5 E. & B. 860.
In re agra and masterman's bank. 135
the owner act contrary to the conditions, he must pay the usual com-
mission to the auctioneer. For these reasons, if the plaintiff think
fit to amend his declaration, he, in our opinion, is entitled to the judg-
ment of the Court.
WiLLEs J. My brother Bramwell and myself do not dissent from
the judgment which has been pronounced. But we prefer to rest our
decision, as to the amendment, upon the ground that the defendant
imdertook to have, and yet there was evidence that he had not, au-
thority to sell without reserve, The result is the same.
Judgment of Court of Queen's Bench to be affirmed ; unless the
parties elect to enter a stet processus, or the plaintiff amend his dec-
laration ; in which latter case, a new trial to be had.
Field applied for costs in case the amendment were made. /
Per Curiam. The circumstances are such that we think the plaint-
iff ought to be at liberty to amend without costs. If the defendant
desires it, we will make them generally costs in the cause.
In re AGRA AND MASTERMAN'S BANK.
Ex parte ASIATIC BANKING CORPORATION.
In Chancery, Jan. 31 and Feb. 11, 1867.
[Reported in Law Reports, 2 Chancery Appeals, 391. ]
This was an appeal by the official liquidator of the Asiatic Banking
Corporation from an order of Vice-Chancellor Wood, refusing to ad-
mit a claim made against the estate of the Agra and Masterman's
Bank, Limited, in respect of certam bills of exchange.
On the 31st of October, 1865, Agra and Masterman's Bank gave to
Dickson, Tatham & Co., a letter of credit, addressed to them, which
was in the following terms : —
" No. 394. You are hereby authorized to draw upon this bank at
six months' sight, to the extent of £15,000 sterling, and such drafts I
undertake duly to honor on presentation. This credit will remain in
force for twelve months from this date, and parties negotiating bills
imder it are requested to indorse particulars on the back hereof. The
bills must specify that they are drawn under credit, No. 394, of
the 31st of October, 1865."
In May, 1866, Dickson, Tatham, & Co., drew bills on the Agra and
Masterman's Bank, under this letter, for £6000, and sold them to the
agent of the Asiatic Banking Corporation. The agent, on taking the
bills, duly indorsed particulars on the letter of credit. The Agra and
rL
136 In re AGRA and masterman's bank.
Masterman's Bank stopped payment before the bills were presented
for acceptance. Both banks were now m course of bemg wound up,
and the official liquidator of the Asiatic Banking Corporation, who were
still the holders of the bills, carried in a claim for their amount under
the winding up of the Agra and Masterman's Bank. This was opposed
on the ground that Dickson, Tatham, & Co. were mdebted to Agra
and Masterman's Bank to an amount exceeding what was due on the
bills.
Mr. G. 31. Giffard^ Q. C, Mr. Hannen^ and Mr. Kekeioich^ for the
Appellant : —
We contend that the Appellant is entitled to prove on three
grounds: — 1. That Dickson, Tatham, & Co., were agents authorized
by Agra and Masterman's Bank to promise that the latter would accept
the bills. 2. That the letter shown to the person advancing money
constituted, when money was advanced on the faith of it, a contract
by the bank to accept the bills. 3. That it would be a fraud on the
part of the bank to deny their liability to pay the bills after they had
been taken on the faith of the letter.
In Lord Mansfield's time, a promise like this would have constituted
an acceptance ; but we admit that even before the Mercantile Law
Amendment Act (a), it could not, according to the later decisions, have
that effect: Bank of Ireland v. Archer (b). We admit, therefore, that
the persons who took the bills could not have sued upon them as bills ;
but the promise to accept a bill gives a right of action to the person to
whom it was made; Mason v. Hunt (c); Story on Bills of Exchange (d);
Jiussellv. Wigghi (e); Marchington v. Vernon {/). Now, lookmg at the
purpose of the letter, it is clear that it was intended to be shown by
Tatham & Co., as proof of their authority to pledge Agra and Master-
man's Bank to accept the bills. Tatham & Co. were thus constituted
agents to make a promise on behalf of the bank : Pickard v. Sears (g).
Again, an open offer of this kind constitutes a contract with anyone
who complies with its terms : Williams v. Carwardine (h) ; Thatcher v.
England {i). Thus, in Dentonv. Great Northern Railway Company (J), a
promise to issue tickets by a particular train was held to give a right
of action to a person who came to the station to get one and found
that none were issued. The principle of these cases was affirmed in
Warloio V. ITarrison (k). It has been urged that there is no privity, but
that is a fallacy arising from looking to the time of writing the offer,
not to the time of the other person acting on it. In Bank of Ireland v.
Archer, the point was raised on the pleadings, but the evidence did
not support them, for there was only a private letter to the agent.
(a) 19 & 20 Vict. c. 97. s. 0. {h) 11 M. & W. 383. (c) 1 I)<)u^-,2nr, (^1) §§ m, m
M 2 Storv's Rep. 213. (/) 1 B. & P. Ii»l, n. (r/) Ad. & E. 4(.lt. (//) 4 IJ.ik A<1. O-'l.
(f) .3C. R 254.^ (j) 5 K & B. s.;o. (/.) I K. & E. 21)5, 30'... (/) 1 1 M. & W. 383.
Ex parte ASIATIC banking cohpokation. 137
Here, what we rely upon is that the letter was written for the purpose
of bemg shown. In Pillans v. Van Mierop («), the money was advanced
without any authority from the Defendants, and not on their credit ;
and the subsequent promise to accept was contended to be a mere
nudum pactum. Yet the promise was held to give a right of action.
The pomt incidentally arose in Scott v. Pilkington (b), but the case went
off on another ground, and the decision does not affect us ; there is
only an obiter dictum of Blackburn, J., which makes against us. There
is, therefore, a right of action in the person who takes a bill on the
faith of a letter like this. Whether such a right of action can pass
with the bill if it be negotiated may be a question, but if it cannot, an
equitable right is created which will pass ; and it would be agamst
conscience for the bank to set up the state of the account between
them and Tatham & Co. as a defence against repaymg moneys advanced
on the faith of a letter like this : Jeffryes v. Agra and Masterman's
Bank (c), has really no bearing on the present case.
Mr. Dickinson, Q. C, and Mr. Roxburgh, Q. C, for the official
liquidator of Agra and Masterman's Bank .• —
There is no agency ; the letter of credit was given for the benefit of
Tatham & Co., who were not acting on behalf of the bank ; and the
letter would accomplish its object of benefiting them, without attribut-
mg to it the force now contended for. In Pickard v. Sears (d), the princi-
pal was standmg by ; there is nothmg of the same kmd here. Pillans
v. Van Mierop (a), and JIason v. Hunt (e), were decisions by Lord Mans-
field, who held that a promise to accept a future bill of exchange
amounted to an acceptance of it, so that the authority of those cases
on the present question, however great his Lordship's authority may
be on other points, is but small. Johnson v. Collings {/) shows that a
promise to accept a future bill is no acceptance, and that is all the
letter amounts to in the present case. Bank of Ireland \. Archer {g) is in
our favor ; and the American cases, which Mr. Justice Story admits
to be opposed to the last-named case, are not bmding here. How can
the indorsees be entitled to claim agamst the bank ? they cannot be
supposed to have seen the letter of credit, or to have advanced money
on the faith of it. The case is disting-uishable from Denton v. Great
Northern Pailway Company (h), and the cases of that class, in this — that
there the advertisement was issued to all the world ; here the letter
was addressed to an individual firm.
[The Lord Justice Cairxs : — Was not the letter intended to be
shown ?]
No doubt ; but then we get upon the question of equitable, not legal
liability. The transferees become equitable assignees of the benefit of
(a) 3 Burr. 1663. {b) 2 B. & S. 11. (c) Law Rep. 2 Eq. 674. {d) 6 Ad. & E. 469.
(e) 1 Doug. 296. ( /" ) 1 East., 98. {g) 11 M. & W. 383. (h) 5 E. & B. 860.
138 In re AGRA and masterman's bank.
a contract between the bank and Tatham & Co., and must take, subject
to the same equities as their assignors, i. e., subject to the state of
account between the bank and Tatham & Co. No doubt the liability
to these equities might be excluded by apt words, but there is nothing
of the kind in the mstrument. Jeffries v. Agra and Masterman^s
Bank (a) supports the claim to set off. Showing the letter is no more
than telling the persons who take bills that the bank has promised
Tatham & Co. to accept them ; the liberty to communicate this promise
cannot extend its effect, which is only to give Tatham & Co. a right
of action if it is broken.
Feb. 11. Sir G. J. Turner, L. J. :—
I have had the opportunity of considering this case, with my learned
brother, since the conclusion of the argument, and we do not think it
necessary to trouble the counsel for the Appellant to reply.
The question turns upon the effect of the letter of the 31st of
October, 1865, by the Agra Bank to Dickson, Tatham, & Co. [His
Lordship read the letter, and contmued.j Now, whatever may be the
effect of that letter at law, whether there would be a right of action or
not, it seems to me to give the persons who took and paid for bills on
the faith of it a plain right in equity to compel the Agra Bank to
accept and pay the bills. The letter was written in a double form ; the
first part of it contains the authority which is given to Dickson
Tatham, & Co. to draw the bills ; the second part is evidently, though
not in terms, yet in substance, addressed to the persons who are to
negotiate the bills. It is plain that this letter was given by the bank
with a view to its bemg shown to persons who were to negotiate the
bills, and to make advances upon the faith of the letter ; and the
last passage contains these words : " Parties negotiating bills under it
are requested to indorse particulars on the back hereof." It is plain
that this part of the letter is in truth addressed to the person by whom
the bills were to be negotiated. The whole effect of the letter is, that
the Agra Bank held out to the persons negotiating the bills a promise
that it would pay the bills ; and it would be impossible, according to my
view of the doctrines of Courts of equity to allow the bank, after having
sent that letter into the world, addressed to the persons who were to
negotiate the bills, and so held out to them that it would be answer-
able for their payjnent, to say that because there was a debt due to it
from the persons to whom it had given the letter of credit, therefore 'it
would not pay the biUs. Apart, therefore, from any question as to how
(a) Law Rep. 2 Eq. 674.
Ex parte asiatlc banking corporation. 139
the case may stand at law, I think that there clearly is a perfectly good
equity to sustain a bill filed by any one of the persons by whom bills
drawn under the letter of credit had been negotiated, to compel the
Agra Bank to accept and pay these bills which were taken and paid
for upon the faith of the statement which was made in the letter.
Sir H. M. Cairns, L. J. : —
It is not disputed in tlus case that the letter of credit of the 31st of
October, 1865, from the Agra and Masterman's Bank to Dickson,
Tatham & Co., constituied a contract between those parties, based upon
a sufficient consideration, moving from Dickson, Tatham, & Co, to the
bank ; or that the Asiatic Banking Corporation, when they took and
discounted or paid for the bills upon which a claim is now made, had
notice, and took the bills on the faith, of this letter ; or that the bills
were drawn in the form prescribed by the letter. But it is contended
that the letter, being m form addressed to Dickson, Tatham, & Co.
constituted a contract with no one but them ; and that this contract
even if assignable in equity, could not be assigned otherwise than
subject to all equities between Dickson, Tatham, & Co. and the Agra
and Masterman's Bank and that Dickson, Tatham, & Co., are indebted
to that bank in an amount exceedmg the bills.
The letter of the 31st of October, 1865, is in form addressed to
Dickson, Tatham, & Co., but it is evident that it is written to Dickson,
Tatham, & Co., in order that it may be shown by them to those who
were to take the bills drawn on the Agra and Masterman's Bank ;
that it is intended by the writers to be used as an inducement to make
persons take those bills ; and that the bills were to be taken by such
persons " under " the letter, that is, upon the faith and under the
protection and security of the letter. It is a general invitation issued by i
the Agra and Masterman's Bank, through Dickson, Tatham, & Co., to
all persons to whom the letter may be shown, to take bills drawn by
Dickson, Tatham, & Co,, on the Agra and Masterman's Bank, with
reference to the letter, and to alter their position by paying for such
bills, with an assurance that, if they or any of them will do so, the |
Agra and Masterman's Bank will accept such bills on presentation.
If it be necessary to determine the question of the legal liability of
the Agra and Masterman's Bank, I am of opinion that upon the offer
in this letter being accepted and acted on by the Asiatic Banking
Corporation, there was constituted a vaUd and binding legal contract
against the Agra and Masterman's Bank, in favor of the Asiatic Banking
Corporation, The cases as to the offer of rewards, of which the case
of Williams v. Carwardine {a) is an example, followed by the somewhat
analogous cases of Denton v. Great Northern Railway Company {b)^
(a) 4 B, & Ad. 621. (b) 5 E. & B. 860.
140 TAYLOp V. LAIRD.
Warlow V. Harrison (a) and Scott v. Pilkington [b), appear to me to be
suflBcient authority to show that there may be privity of contract in
such a case ; and if the view be adopted which appears to have been
taken m tlie American Courts, that the holder of the letter of credit
is the agent of the writer for the purpose of entering into such a
contract, the same result would be arrived at by a different road.
But assuming the contract to have been at law a contract with
Dickson, Tatham, & Co., and with no other, it is clear that the con-
tract was in equity assignable, and that Dickson, Tatham, & Co. must
be taken to have assigned (if assignment were needed) to the Asiatic
Banking Corporation, and to have been by the writers of the letter
intended to assign to them, the engagement m the letter providing for
the acceptance of the bills. Generally speaking, a chose in actionjas-
signable only in equity must be assigned subject to the equities exist-
' ing between the origmal parties to the contract ; but this is a rule
"which must yield when it appears from the nature or terms of the con-
"tract that it must have been intended to be assignable free from and un-
affected by such equities. The essence of this letter is, as it seems to
me, that the person taking bills on the faith of it is to have the abso-
lute benefit of the midertakmg in the letter, and to have it in order to
obtain the acceptance of the bills which are negotiable instruments
payable accordmg to their tenor, and without reference to any collat-
eral or cross claims. Unless this is done, the letter is useless ; Dickson,
Tatham, & Co. obtain no benefit from it ; the takers of the bills ob-
tain no protection under it. In this view of the case, the Asiatic
Banking Corporation are, m myopmion, assignees of the contract with
Dickson, Tatham, & Co., free from any equities between Dickson,
Tatham, & Co. and the Agra and Masterman's Bank.
I think the claim should be allowed, and the Asiatic Banking Cor-
poration, or their liquidators, should have their costs here and m the
Court below out of the estate of the Agra and Masterman's Bank.
TAYLOR V. LAIRD.
In the Exchequer, June 10, 1856.
[Reported in 25 Law Journal Reports Ex. 329.]
Action- upon a contract to employ the plaintiff and to pay him 50?.
a month as master of a ship for a certain voyage ; with a common
count for work and labor.
Plea, to the first count, inter nlia^ that the plaintiff did not act ac-
cording to the agreement in the command of the vessel during the
(a) 1 E. & E. 295, 309. (ft) 2 B. & S, 11.
TAYLOR V, LAIRD. 141
voyage, but made default in so doing ; to the second count, nunquam
indebitatus.
At the trial, at Guildhall, before the Lord Chief Baron, at the
Sittings after Hilary term, it appeared that the defendant had written
to the plaintiff, offermg to engage liim for the command of a steamer
destmed for an exploring and tradmg voyage up the River Niger, pay-
ing him atjth&jfate of 50/. a month, commencing from a fixed date, the
1st of December,^T854, and also 20/. per cent, on the proceeds of the
trade. The plaintiff replied in writing that he accepted the proposal
" to be paid 50/. a month, and 20/. per cent, on the net proceeds of the
trade," and on the other terms mentioned m the defendant's letter.
The plaintiff received 50/. a month for several months before the voy-
age commenced, and afterwards proceeded m command of the vessel.
In the course of the voyage up the river, and before the trading part
of it commenced, disputes having arisen between the plaintiff and one
of the gentlemen sent out with him to conduct the exploring and trad-
ing business of the expedition, the plaintiff, m August (the ninth
month from his retainer), relinquished to that gentleman " the naviga-
tion and social management " of the vessel ; and from that time mitil
the end of the voyage it did not appear that he took any actual part
in the navigation or general management, although he professed
at the time his readiness to lend every assistance, and co-operated in
the trading. When the vessel on her return reached Fernando Po, he
discharged a native crew who had been engaged for the navigation of
the Niger, landed different portions of the cargo, engaged other
sailors to complete the crew, ordered repairs to be done to the ship,
and came home m her to Limerick. There was no evidence that he
had actually conducted the navigation of the vessel to Limerick ; but
when she reached that port he received a letter from the defendant
(who had previously heard of the plamtiff's relinquishment of the
actual command), desirmg him to discharge the crew, &c. The
plaintiff had received seven months' salary, and had entered on the
ninth month when he gave up the command. There was evidence of
an amount of trade, on which the 20/. per cent, commission would
come to 172/.
The jury found the plea to the second count for the defendant, being
of opinion that the plaintiff had wrongfully abandoned the command
of the vessel ; but on the indebitatus count they found for the plaintiff
for 672/., i. e. 500/. for ten months' salary, at 50/. a month, and 172/.
for commission on the net produce of the sale, at 20/. per cent.
The court, last term, granted a rule nisi to enter a verdict for the
defendant or for a new trial, on the grounds that the verdict was un-
supported by the facts, or that the amount was excessive. Against
this rule —
14- TAYLOR V. LAIRD.
Sir F. Thesiger, Montague Smith, and Maude, on a former day in
Easter term, showed cause. — First, the plaintiff was entitled to recover
upon the special contract under the indebitatus count, at all events for
one month's salary 50/. ; or, secondly, he was entitled to recover under
that count upon a new contract, either implied m law or of which
there was evidence in fact ; thirdly, the verdict was not so excessive in
amount as that it ought to be set aside solely on that ground. Ad-
mitting that the plaintiff broke his contract by relinquishmg the actual
navigation of the vessel, it by no means follows that he thereby lost all
rights under the contract ; and, at all events, he was clearly entitled
to recover the 50Z. for the last of the months he had completed before
he relinquished the navigation ; and he could recover that as a debt
imder the common count, even if he could not recover on the same
count another month's salary m lieu of notice — Hartley v. Harman {a).
[Pollock, C. B. — Clearly he could not recover anything under the
indebitatus count for the broken month. — Goodman v. Pocock (b).
And even as to the last of the months he had completed before he had
relinquished the navigation, there is this difficulty in the way of his
recovering : is not the contract entire P There was no stipulation that
the salary should be payable monthly.] —
That it is submitted, was implied in the plaintiff's acceptance of the
offer, " to be paid 50/. a month."
[Pollock, C. B. — Still, even if the payments were to be monthly,
there would be a difficulty in holding that a right of action accrued at
the end of each month for the month's salary. The plaintiff received
several months' salary before the voyage commenced at all, and before
the exploring part of it began. Now, it cannot be doubted that the con-
sideration for so large a salary as 50/. a month was mainly the naviga-
tion of the vessel during the voyage ; and yet if the argument on the
part of the plaintiff is correct, he could have refused going on the voy-
age at all, and the defendant could not have recovered back the salary he
had paid him : but the plaintiff could have recovered it if it had not
been paid.]
That might have been provided for in the contract. But another
difficulty, equally great, lies in the way of the argument on the part
of the defendant, viz.: that unless each month's salary as it was earned
constituted a separate debt and cause of action, and supposing the con-
tract, in the strictest sense, to have been entire, so that nothing could
have been recovered under it until it had been entirely performed on the
part of the plaintiff, his executors could have recovered nothing if he
had died during the last month of the voyage.
[Pollock, C. B. — It might make a difference, that the non-comple-
(a) 11 Ad. & E. 798; 9. c. 9 Law J. Rep. (h) 15 Q. B. Rep. .576; s.c. 19 Law .J.
(n.8.) Q.R. 179. Rep. (N.s.) Q.B. 410.
TAYLOR V. LAIRD. 143
tion of the contract arose, not by his own default, but by the act of
God.]
It is submitted that the distinction would not affect the principle as
to the entirety of the contract. And even if it would, and supposing
that the plamtiff had, either through loss of health, or even, as in the
present case, in consequence of disagreements, voluntarily given up
the actual navigation during the last month of the voyage, the argu-
ment for the defendant, leading as it does to the conclusion that the
plaintiff could have recovered nothing, is not the less untenable and
tends to a manifest absurdity and injustice which the parties could
not have contemplated.
[Pollock. C. B. — But upon your construction the plaintiff might
have refused to go on the voyage at all, and then recovered four or
five months' salary as due before the voyage was to commence. Sup-
pose an agricultural laborer engaged for a year left his employer just
at the begimimg of harvest-time, could he recover 2)ro raid f]
There the contract would be for a year, and would be in the strict-
est sense entire.
[Pollock, C. B. — Suppose the wages were to be paid monthly
would it make any difference ?]
It would, it is conceived, make all the difference whether he was re-
tained at yearly wages or at so much a month, as in the present case.
The analogy between the case suggested and the present would be
nearer if it were supposed that the farm-servant engaged at a yearly
salary had completed a year's service. Could he not sue for the year's
salary ?
[Pollock, C. B.— There may be a difference between cases of retainer,
simply at so much a month or a year for an mdeflnite period, as a con-
tinuing kind of contract measured merely by time and termmable by
either party at certam notice, and a contract like the present for a
specific piece of work, as a certam voyage, the claim being for salary
aUeged to have accrued before the mam object of the contract was
effected, and before the most important part of the voyage began.
Does not that more resemble the case of the farm-servant retamed on a
yearly hirmg and lea\ang in the middle of the year, at harvest-time?]
It is contended that this is merely the ordinary case of a person em-
ployed at a monthly salary, for the duration of the voyage was mdefi-
nite. The cases m which the default of the party employed has pre-
vented hun from recovermg are cases in which he has left durmg the
period for which the instalment or payment of salary became due, or for
which the contract excluded the state of things which had occurred,
as conferrmg any right to recover salary ^>ro ratd. And m the present
case it is submitted that there is no principle upon which the plaintiff
should be precluded from recovering his salary for the month he had
144 TAYLOR V. LAIRD.
completed before he relinquished the navigation. And, secondly,
there is nothing to preclude his recovering salary on the indebitatus
count, by virtue of the special contract, for any period for which the
jury might think it due. Their finding, although it estabUshes that
the plaintiff had broken the contract, by no means establishes that he
had thereby i^ut an end to it, even as the measure of remuneration
for the service actually performed, nor does it establish that he had
altogether failed to perform the contract and render service under it,
of the extent of which they were the judges. It only appeared that he
had given up the actual " navigation and social management " of the
vessel, but though this would sustain their finding, it could not put
an end to the contract, for it did not involve an utter failure of con-
sideration. The plamtiff still remained in the vessel, ready to assist
in the navigation and management, and it appeared that he did actually
take part in the management of it. It is as though he had, ostensibly,
relinquished the actual management to another, retaining the ultimate
control. This may have been strictly and technically a breach of the
contract, but no substantial failure of performance, and so the jury
may have intended by their finding on the special count, which in that
sense is not at all inconsistent with their finding on the indebitatus count.
[Pollock, C. B. — There is a difBculty in considering a contract as
broken and yet as not broken.]
It may have been technically broken, but not substantially.
[Pollock, C. B. — Then, would the finding for the defendant on the
special count be sustainable ? If so, surely the plaintiff cannot recover
on that count.]
In effect the plaintiff performed the contract, and can recover his
salary under it on the indebitatus count.
[Pollock, C. B. — If the plamtiff had said, I will not relinquish the
command, but I shall observe the advice and direction of A. B., he
would have been entitled to the verdict on the special count.]
In effect, that was what he did. Secondly, there was evidence
from which the jury were at liberty to infer a new contract to pay
the plaintiff for his services after his relinquishment of the naviga-
tion quantum meruit. There were services certainly performed at
Fernando Po, and the jury were the judges of the value of the plamt-
iff's assistance on board the vessel during the whole of the voyage.
And the defendant, after hearing that the plaintiff had relinquished
the navigation, and knowing what he had done, gave him directions
as to the discharging the cargo and the crew, thereby recognizing him
as still in his service, either under the old contract, or under a new
one to pay him quantum meruit.
[Bramwkll, B. — The breacli of the original contract had taken
place, and the subsequent services, whatever they were, were done
TAYLOK V. LAIED. 145
without the request of the defendant. Moreover, he may have be-
lieved that the plamtiff was adequately remunerated for such services
as he had actually performed by his having received a free passage
home. What evidence is there of a new contract to pay for those
services ?]
[Pollock, C. B. — Such evidence as you press of a recognition or
acceptance of services may be sufficient to show an implied contract to
pay for them, if at the time the defendant had power to accept or
refuse the services. But m this case it was not so. The defendant
did not know of the services you rely on until the return of the ves-
sel, and it was then something past, which would not imply — perhaps
would not support — a promise to pay for it.]
The defendant had the benefit of the plaintiff's services during the
voyage.
[Pollock, C. B. — Without his knowledge or request, setting aside
the special contract. Suppose I clean your property without your
knowledge, have I then a claim on you for payment ? How can you
help it ? One cleans another's shoes ; what can the other do but put
them on ? Is that evidence of a contract to pay for the cleaning ?
The benefit of the service could not be rejected without refusing the
property itself. So in the present instance. The ship came homci
say partly by the assistance of the plaintiff : what could the defendant
do but receive his ship back agam ? There was nothmg in that to
imply a contract to pay the defendant anything.]
But there was more than that. The directions to the plamtiff to do
work after the return of the vessel were evidence of a recognition of
the plaintiff as bemg m the service of the defendant, and so of his past
assistance having been in such service. Thirdly, the amount of the
verdict was not so excessive as to warrant the Court in disturbing it.
The jury were the proper judges of the value of the services per-
formed.
W. H. Watson, J. Wilde and Tomlinson, for the defendant. — The
contract was an entire and single contract, the mode of payment to
be at the rate of 50^., and is within the rule laid down in Cutter v.
Poicell{a). The right of the plamtiff to recover may be tested in this
way. Suppose, on arriving at Fernando Po, he had refused to go any
further, he would then, if the contract is to be read as the plaintiff
contends, have received seven monthly payments, amounting to 350^.
In that case the defendant would have been entitled to recover it back
as on a faUure of consideration, the object of the voyage being the
ascent of the Niger. In VUerhoom v. Chapman (b) Parke, B., in his
judgment, says, "To justify a claim for^o rata freight, there must be
(a) 6 Term Rep. 320; s. c 2 Smith's (6) 13 Mee. & W. 230; s. c. 13 Law J.
Leading Cases, 1. Rep. (n.s.) Exch. 384.
146 TAYLOR V. LAIRD.
a voluntary acceptance of the goods at an intermediate port, in such
a mode as to raise a fair inference that the further carriage of the
goods was intentionally dispensed with." So here, if the defendant,
being present, said, " I do not require you to go on any further," the
plaintiff would have been in a situation to claim for his services pro
rata ; but he was not there, and there was no agent but the plaintiff
hunself, who did as he liked. The principle upon which the present
case is to be distinguished from ordinary cases of hu-ed servants paid
by salary, montlily or quarterly, is that where the service is homoge-
neous in character, so that the value of service for one month or quar-
ter is the same as the value of another, and the value of one is not
less because subsequent service may not be performed : there a dis-
tinct cause of action may arise at the expiration of any month or quarter
of actual service, for a month or a quarter's salary ; but it is not so
where the service is not homogeneous, but is not only of very different
value to the employer at different periods, but the value of the former
part of the service is little or nothing miless the latter part of the
service is also rendered. It was so in this case, for the essence of the
consideration for the contract was the exploring part of the voyage,
and the plamtiff failed to render service at that very part. It is not
a case of imperfect performance or partial failure of consideration,
but of entire default and of total failure. The service contracted for
was not in fact rendered, viz. the service in the explormg part of the
voyage. That was the gist of the consideration, and failure in that
was failure in toto. The monthly payments were merely the measure
of remmieration. It is as though an artist had been retained to paint
a picture to be paid for at 50/. a month during the time he should be
engaged upon it. In such a case surely the artist could not sue for
any money if he stopped before he completed the picture.
[Bramwell, B. — Do you mean to contend that he could not sue for
any money before he completed the picture ?]
It is contended that he could not.
[Bramwell, B. — You must argue that in that case and the present
no cause of action would accrue mitil the completion of the contract
by the execution of a picture or the conclusion of the voyage. Then,
do you say that, supposing the plamtiff in this case had died shortly
before the completion of the voyage, he could recover nothing?]
Not unless the voyage had been substantially performed, as, for in-
stance, if the ship had been out and had finished the expedition and was
on its return home. But if the voyage had not been substantially
completed, the plaintiff's representatives could not upon his death re-
cover on the contract. This, however, is a case not of death, but of
wilful default. And as, even entire, the contract is terminated by
mutual consent, no implied contract necessarily arises to remunerate
TAYLOR V. LAIRD. 147
the party quantum onemit — Lamburn v. Cruden {a). It is a question
of fact, whether any such n&w contract has arisen, and here there was
no evidence of it. And, at all events, the damages were excessive.
[Per Curiam. — Clearly they were so : and on that ground alone
there would be a new trial, and the only question is as to whether the
verdict ought not to be for the defendant. As to that we will con-
sider.] Cur. adv. vidt.
Pollock, C. B. now delivered the judgment of the Court {b). — We
are of opmion that the plaintiff is entitled to a verdict for 50i. (c) on
the first count, upon the ground that the contract was for monthly pay-
ments of 50?., and that eight months had elapsed and only seven had
been paid for. In the defendant's letter, indeed, to the plaintiff , it was
written, " Your pay to be at the rate of 50?. per month ; " and what
would have been the effect of those words had they been unqualified
and unexplamed by anything else it is unnecessary for us to say : for,
in the plaintiff's answer, he uses the expression, " The pay to be 50?.
per month." If this does not differ from the defendant's letter, it
shows what it meant ; if it does, it was a new offer, approved and ac-
cepted by the defendant, and which is to be considered as the basis of
the contract, and thus it serves either to supersede or to explain the
original letter of the defendant. There " 50?. per month" means each'
month, and gave a cause of action as each month elapsed. And a
right of action thus once vested could not be divested by the plamtiff 's
desertmg or abandoning the voyage. The words are plain, and no
mercantile man could doubt what they meant. Moreover, if this con-
struction were not given to it, the result would be, that if the plaintiff
had died or relinquished the command at any time before the end of
the voyage, nothing would have been payable. This could not have
been mtended by the parties. It was said, mdeed, that if the plaintiff's
construction were to be adopted, he might have relinquished the com-
mand before the voyage began, and recovered his pay for the period
previous to its commencement. No doubt that consequence would
follow. But contracts should be construed as though they were made
upon the supposition that the parties would keep them, not break
them, and on that supposition the plaintiff's construction is reasonable ;
the defendant's is not. And, further, the pleadings on the other side
appear to imply that the claim could only be barred as to the period
for which the months had not run. As to the other question, we thmk
there was some evidence to goto the jury upon the part of the plamtiff,
but that the damages should be, on the special count, only nommal
(a) 2 Man. & G. 253; s. c. 10 Law J. that the Court should say, If they deemed
Rep. (n.s.) C.P. 121. the plaintiff entitled to so much, what
(^) Pollock, C.B., Alderson,B., Martin, damage he was entitled to (if any) on
B., and Brarawell, B. the special count, and so avoid a new
(c) It had been proposed to the parties trial by entering a verdict.
148 FELTHOUSE V. BINDLEY.
or next to nominal. If the plaintiff is content, he may enter a verdict
for 50/., otherwise there must be a new trial.
Hule absolute to reduce the verdict to 50/., otherwise for a new tria2.
FELTHOUSE v. BINDLEY.
In the Common Pleas, July 8, 1862.
[Reported in 11 Common Bench Reports, New Series, 869.]
This was an action for the conversion of a horse. Pleas, not guilty,
and not possessed.
The cause was tried before Keating, J., at the last Summer Assizes at
Stafford, when the followmg facts appeared in evidence : — The plaintiff
was a builder residing in London. The defendant was an auctioneer
residing at Tam worth. Towards the close of the year 1860, John
Felthouse, a nephew of the plaintiff, being about to sell his f armmg stock
by auction, a conversation took place between the uncle and nephew
respecting the purchase by the former of a horse of the latter ; and, on
the 1st of January, 1861, John Felthouse wrote to his uncle as follows : —
*' Bangley, January 1st, 1861.
" Dear Sir, — I saw my father on Saturday. He told me that you
considered you had bought the horse for 30/. If so, you are laboring
under a mistake, for, 30 gumeas was the price I put upon him, and you
never heard me say less. When you said you would have him, I con-
sidered you were aware of the price, as I would not take less.
« John Felthouse."
The plaintiff on the following day replied as follows : —
" London, January 2nd, 1862.
« Dear Nephew,— Your price, I admit, was 30 guineas. I offered 30/.,
never offered more : and you said the horse was mme. However, as
there may be a mistake about him, I will split the difference,— 30/. 15s.—
I paying all expenses from Tam worth. You can send him at your con-
venience, between now and the 25th of March. If I hear no more about
him, I consider the horse mme at 30/. 155. " Paul Felthouse."
To this letter the nephew sent no reply ; and on the 25th of Feb-
ruary the sale took place, the horse in question being sold with the rest
of the stock, and fetching 33/., which sum was handed over to Jolm Felt-
house. On the following day, the defendant (the auctioneer), being ap-
prised of the mistake, wrote to the plaintiff as follows : —
« Tam worth, February 26th, 1861.
" Dear Sir,— I am sorry I am obliged to acknowledge myself forgetful
in the matter of one of Mr. John Felthouse's horses. Instructions were
given me to reserve the horse : but the lapse of time, and a multiplicity
of business pressing upon me, caused me to forget my previous promise'
FELTHOUSE V. BINDLEY. 149
I hope you will not experience any great inconvenience. I will do all
I can to get the horse again : but shall know on Saturday if I have
succeeded,
"WiUiam Bindley."
On the 27th of February, John Felthouse wrote to the plamtiff, as
follows : —
"Bangley, February 27th, 1861.
" My dear Uncle,— My sale took place on Monday last, and we were
very much annoyed in one instance. When Mr. Bindley came over to
take an inventory of the stock, I said that horse (meaning the one I
sold to you) is sold. Mr. B. said it would be better to put it in the sale,
and he would buy it in without any charge. Father stood by whilst he
was running it up, but had no idea but he was doing it for the good of
the sale, and according to his previous arrangement, until he heard
him call out Mr. Glover. He then went to Mr. B. and said that horse
was not to be sold. He exclaimed he had quite forgotten, but would see
Mr. Glover and try to recover it, and says he will give bl. to the gentle-
man if he will give it up : but we fear it doubtful. I have kept one
horse for my own accommodation whilst we remain at Bangley : and,
if you like to have it for a few months, say five or six, you are welcome
to it, free of any charge, except the expenses of travelling : and if, at
the end of that time, you like to return him, you can ; or you can keep
him, and let me know what you think he is worth. I am very sorry
that such has happened ; but hope we shall make matters all right ;
and would have given 5/. rather than that horse should have been given
up.
"John Felthouse."
On the part of the defendant it was submitted that the letter of the
27th of February, 1861, was not admissible m evidence. The learned
judge, however, overruled the objection. It was then submitted that
the property in the horse was not vested in the plaintiff at the time of
the sale by the defendant.
A verdict was found for the plaintiff, damages 33/, leave being re-
served to the defendant to move to enter a nonsuit, if the court
should be of opinion that the objection was well fomided.
Dowdeswell, in Michaelmas Term last, accordingly obtained a rule
nisi, on the grounds that " sufficient title or possession of the horse, to
maintain the action, was not vested in the plaintiff at the time of the
wrong ; that the letter of John Felthouse of the 27th of February, 1861,
was not admissible in evidence against the defendant : that, if it was
admissible, being after the sale of the horse by the defendant, it did
not confer title on the plaintiff ; and that there was at the time of the
150 FELTHOUSE V. BINDLEY.
wrong no sufficient memorandum in writing, or possession of the
horse, or payment, to satisfy the statute of frauds." Carter v. Tous-
saint, 5 B. & Aid. 855, 1 D. & R. 515, and Bloxani v. /SanderSy 4 B. & C.
941, 7 D. & R. 396, were referred to.
Powell showed cause. There was an ample note of the contract in
writing to satisfy the statute of frauds. When the parties met in
December, 1860, it was agreed between them that the plaintiff should
become the purchaser of the horse. It is true, there was a slight mis-
understanding as to the price, the plaintiff conceiving he had bought
it for 30/., the nephew thinking he had sold it for 30 guineas. On be-
ing apprised by the nephew that he was under a mistake, the plaintiff
wrote to hun proposing to split the difference, concludmg with say-
ing, — " If I hear no more about him, I consider the horse is mme at
30/. 15s." The question is whether there has not been an acceptance
of that offer by the vendor, though nothmg more passed between the
imcle and nephew until after the 25th of February, the day on which
the sale by auction took place. Could the plaintiff after his letter of
the 2nd of January have refused to take the horse ? It is true that
letter was unanswered ; but it was proved that the nephew after-
wards spoke of the horse as bemg sold to the plamtiff, and desired
the auctioneer (the defendant) to keep it out of the sale. Although
written after the conversion, the letter of the 27th of February was
clearly evidence, and, coupled with the plamtiff's letter of the 2nd of
January, constituted a valid note m writing, even as between the
uncle and the nephew. \_Keating, J. You were bound to show a bind-
ing contract for the sale of the horse before the 25th of February.]
The letter of the nephew of the 27th is an admission by him that he
had before that day assented to the bargain with the plaintiff. [Bt/les,
J. That only shows a binding contract on the 27th of February.
What right had the plaintiff to impose upon the nephew the trouble
of writing a letter to decline or to assent to the contract?] It was
not necessary that he should assent to the contract by writmg : it is
enough to show that he assented to it. [Jit/les, J. There was no
delivery or acceptance: and there could be no admission of delivery
and acceptance. Willes, J. To be of any avail, you must make out
a valid contract between the uncle and nephew prior to the 25th of
February.] It was not necessary that the assent to the terms of the
plaintiff's letter should be in writing. In Dohell v. Hutchinson, 3 Ad.
& E. 855, 5 N. & M. 251, it was held, that, where a contract m writ-
ing, or note, exists which binds one party to a contract, under the
statute of frauds, any subsequent note in writing signed by the
other is sufficient to bind him, provided it either contains in itself the
terms of the contract, or refers to any contract which contains them.
So, in /Smith v. Neale (a), it was held that a written proposal, contaming
(a) 2 C.B., (N. s.; G7.
FELTHOUSE V. BINDLEY. 151
the terms of a proposed contract, signed by the defendant, and assented
to by the plauitiff by word of mouth, is a suflScient agreement within
the 4th section of the statute of frauds. [Willes,J. That was a very
peculiar case. The plaintiff had done all that she had agreed to do
and nothing remamed to be done but performance on the defendant's
part. But, to say that transactions between tlurd parties are to be
controlled or affected by an intermediate letter written by a person
who is no party to the record, is a somewhat startling proposition.
Byles^ J. I feel great diflBculty in seeing how the nephew's subse-
quent admission can be binding on the defendant, or even evidence
against him.] It is enough that the memorandum relied on to
satisfy the statute of frauds is made at any time before action
brought : Bill v. Bament, 9 M. & W. 36.
Montague Smithy Q. C, and Dotodesioell^ in support of the rule.
The letter of the 27th of February was clearly inadmissible. The
17th section of the 29 Car. 2, c. 3, provides that "no contract for the
sale of any goods, &c,, shall be allowed to be good, except some note
or memorandum in writing of the bargain be made and signed by the
parties to be charged by such contract," &c. At the time the sale
complained of here took place, there clearly was no binding contract
for the sale of the horse by the nephew to the plaintiff. [ Willes, J.
Could the plaintiff have msured the horse on the 25th of February '?]
He could not : he had no insurable interest. [ Willes, J. As to third
persons, one cannot see any reason for giving a relation to the sub-
sequent writing, though as between the immediate parties one can.]
Carter v. Toussaint, 5 B. & Aid. 855, 1 D. & R. 515, is a far stronger
case than the present. There, a horse was sold by verbal contract,
but no time was fixed for payment of the price. The horse was to
remain with the vendors for twenty days without any charge to the
vendee. At the expiration of that time, the horse was sent to grass,
by the direction of the vendee, and by his desire entered as the horse
of one of the vendors ; and it was held that there was no acceptance
of the horse by the vendee, withui the 29 Car. 2, c. 3, s. 17. And see
Smith's Mercantile Law, 4th edit. p. 468 et seq. Here, the plaintiff
had clearly no property m the horse on the 25th of February, the day
of the sale by the defendant. How, then, can an admission ex post
facto by a stranger affect the relative positions of the parties to this
record on that day ?
WiLLEs, J. I am of opinion that the rule to enter a nonsuit should
be made absolute. The horse in question had belonged to the plaint-
iff's nephew, John Felthouse. In December, 1860, a conversation
took place between the plaintiff and his nephew relative to the pur-
chase of the horse by the former. The uncle seems to have thought
that he had on that occasion bought the horse for 30^., the nephew
3.62 FELTHOUSE V. BINDLEY.
that he had sold it for 30 guineas : but there was clearly no complete
bargain at that time. On the 1st of January, 1861, the nephew
writes,—" I saw my father on Saturday. He told me that you con-
sidered you had bought the horse for 30/. If so, you are labormg
under a mistake, for 30 gumeas was the price I put upon hmi, and
you never heard me say less. When you said you would have him, I
considered you were aware of the price." To this the uncle replies
on the foUowmg day,— "Your price, I admit, was 30 gumeas. I
offered 30/.; never offered more: and you said the horse was mme.
However, as there may be a mistake about him, I will split the
difference. If I hear no more about huu, I consider the horse mine
at 30/. 15s." It is clear that there was no complete bargain on the 2nd
of January : and it is also clear that the uncle had no right to impose
upon the nephew a sale of his horse for 30/. 15s. unless he chose to com-
ply with the condition of writing to repudiate the offer. The nephew
might, no doubt, have bound his micle to the bargam by writmgto him :
the uncle might also have retracted his offer at any time before accept-
ance. It stood an open offer : and so things remained until the 25th
of February, when the nephew was about to sell his farmmg stock by
auction. The horse in question bemg catalogued with the rest of the
stock, the auctioneer (the defendant) was told that it was already
sold. It is clear, therefore, that the nephew in his own mmd mtended
his uncle to have the horse at the price which he (the micle) had named,
30/. 15s : but he had not commmiicated such his mtentionto his micIe,
or done anythmg to bind himself. Nothmg, therefore, had been done to
vest the property in the horse in the plamtiff down to the 25th of
February, when the horse was sold by the defendant. It appears to
me, that, independently of the subsequent letters, there had been no
bargain to pass the property in the horse to the plaintiff', and there-
fore that he had no right to complain of the sale. Then, what is the
effect of the subsequent correspondence ? The letter of the auctioneer
amounts to nothmg. The more important letter is that of the nephew,
of the 27th of February, which is relied on as showing that he intended
to accept and did accept the terms offered by his micle's letter of the
2nd of January. That letter, however, may be treated either as an
acceptance then for the first time made by him, or as a memorandum
of a bargain complete before the 25th of February, sufficient within
the Statute of Frauds. It seems to me that the former is the more
likely construction : and, if so, it is clear that the plaintiff' cannot
recover. But, assuming that there had been a complete parol bargam
before the 25th of February, and that the letter of the 27th was a
mere expression of the terms of that prior bargain, and not a bargain
then for the first time concluded, it would be directly contrary to the
decision of the court of Exchequer in iStockdale v. Dunlop^ 6 M. & ^V.
ELTASON V. HENSHAW.
153
224, to hold that that acceptance had relation back to the previous
offer ^as to bmd thir^ persons ip rp«ppf>tw.f a dealing with the prop-
erty by them m the mterim. In that case, Messrs. H. & Co., bemg
the owners of two ships, called the Antelope and the Maria, tradmg
to the coast of Africa, and which were then expected to arrive in
Liverpool with cargos of palm-oU, agreed verbally to sell the plamtiflfs
two hundred tons of oil,— one himdred tons to arrive by the Antelope,
and one hundred tons by the Maria. The Antelope did afterwards
arrive with one hundred tons of oil on board, which were delivered
by H. & Co. to the plamtiffs. The Maria, havmg fifty tons of oil on
board, was lost by perUs of the sea. The plamtiffs having msured
the oil on board the Maria, together with their expected profits thereon,
—it was held that they had no insm-able mterest, as the contract they
had entered mto with H. & Co., bemg verbal only, was mcapable of
bemg enforced.
Byles, J. I am of the same opinion, and have nothmg to add to
what has fallen from my Brother Willes.
Keating, J. I am of the same opinion. Had the question arisen
as between the uncle and the nephew, there would probably have been
some difficulty. But, as between the uncle and the auctioneer, the
only question we have to consider, is, whether the horse was the
property of the plaintiff at the time of the sale on the 25th of Febru-
ary. It seems to me that nothing had been done at that time to pass
the property out of the nephew and vest it in the plamtiff. A pro-
posal had been made, but there had before that day been no acceptance
bmding the nephew.
Willes, J. Coates v. ChajMn, 3 Q. B. 483, 2 Gale & D. 552, is an
authority to show that John Felthouse might have had a remedy
agamst the auctioneer. There, the traveller of Morrisons, tradesmen
in London, verbally ordered goods for Morrisons of the plaintiffs,
manufacturers at Paisley. No order was given as to sending the
goods. The plaintiffs gave them to the defendants, carriers, directed
to Morrisons, to be taken to them, and also sent an invoice by post to
Morrisons, who received it. The goods havuig been lost by the de-
fendants 'negligence, and not delivered to Morrisons,— it was held that
the defendants were liable to the plamtiffs.
Mule absolute.
ELIASON ET AZ.v. HENSHAW.
SuPKEME Court of the Uxited States, Feb. 17, 20, 1819.
[Rejjorted in 4 Wheaton, 225, 4 Curtis, 382.]
Error to the Circuit Court for the District of Columbia.
Jones and A'ey, for the plamtiff' jn er]
\AAA\J2^
164 ELIASON V. HENSHAW.
/Swann, for the defendant in error.
Washington, J., delivered the opmion of the Court.
This is an action, brought by the defendant in error, to recover
damages for the non-performance of an agreement, alleged to have
been entered into by the plaintiffs in error, for the purchase of a quan-
tity of flour at a stipulated price. The evidence of this contract, given
in the court below, is stated in a bill of exceptions, and is to the
followmg effect : A letter from the jDlaintiffs to the defendant, dated
the 10th of February, 1813, in which they say: " Captain Conn in-
forms us that you have a quantity of flour to dispose of. We are in
the practice of purchasing flour at all times in Georgetown, and will
be glad to serve you, either m receiving your flour in store when the
markets are dull, and disposing of it when the markets will answer to
advantage, or we will purchase at market price when delivered ; if you
are disposed to engage two or three hundred barrels at present, we will
give you 19.50 per barrel, deliverable the first water in Georgetown, or
any service we can. If you should want an advance, please write us by
mail, and will send you part of the money in advance." In a post-
script they add : " Please write by return of wagon whether you
accept our offer." This letter was sent from the house at which the
writer then was, about two miles from Harper's Ferry, to the de-
fendant at his mill, at Mill Creek, distant about twenty miles from
Harper's Ferry, by a wagoner then employed by the defendant to haul
flour from his mill to Harper's Ferry, and then about to return home
with his wagon. He delivered the letter to the defendant on the 14th
of the same month, to which an answer, dated the succeeding day,
was written by the defendant, addressed to the plamtiffs at George-
town, and dispatched by a mail which left Mill Creek on the 19th,
being the first regular mail from that place to Georgetown. In this
letter the writer says : " Your favor of the 10th instant was handed
me by Mr. Chenoweth last evening. I take the earliest opportunity to
answer it by post. Your proposal to engage 300 barrels of flour, de-
livered in Georgetown by the first water, at 19.50 per barrel, I accept
and shall send on the flour by the first boats that pass down from
where my flour is stored on the river ; as to any advance, that will be un-
necessary, — payment on delivery is all that is required."
On the 25th of the same month, the plaintiffs addressed to the de-
fendant an answer to the above, dated at Georgetown, in which they
acknowledge the receipt of it, and add : " Not having heard from you
before, had quite given over the expectation of getting your flour,
more particularly as we requested an answer by return of wagon the
next day, and as we did not get it, had bought all we wanted."
The wagoner, by whom the plaintiff's first letter was sent, informed
them, when he received it, that he should not probably return to
ELIASOlSr V. HENSHAW.
155
Harper's Ferry, and he did not in fact return in the defendant's em-
ploy. The flour was sent doAvn to Georgetown some time in March,
and the delivery of it to the plaintiffs was regularly tendered and re-
fused.
Upon this evidence, the defendants in the Court below, the plaint- "^
iffs in error, moved that Court to instruct the jury, that, if they be-
lieved the said evidence to be true as stated, the plaintiff in this ac-
tion was not entitled to recover the amomit of the price of the 300
barrels of flour, at the rate of $9.50 per barrel. The Court being di-
vided in opinion, the instruction prayed for was not given.
The question is, whether the Court below ought to have given the
instruction to the jury, as the same was prayed for. If they ought,
the judgment, which was in favor of the plaintiff m that court, must
be reversed.
It is an undeniable principle of the law of contracts, that an offer
of a bargain by one person to another imposes no obUgation upon the
former, mitil it is accepted by the latter according to the terms in
which the offer was made. Any qualification of or departure from
those terms invalidates the offer, unless the same be agreed to by the
person who made it. Until the terms of the agreement have received
the assent of both parties, the negotiation is open, and imposes no ob-
ligation upon either.
In this case, the plaintiffs m error offered to purchase from the
defendant two or three hundred barrels of flour, to be delivered at
Georgetown by the first water, and to pay for the same $9.50 per bar-
rel. To the letter containing this offer they required an answer by
the return of the wagon by which the letter was despatched. This
wagon was at that time m the service of the defendant, and employed
by him in hauling flour from his mill to Harper's Ferry, near to which
place the plaintiffs then were. The meaning of the writers was obvi-
ous. They could easily calculate by the usual length of time which
was employed by this wagon in traveling from Harper's Ferry to Mill
Creek, and back again with a load of flour, about what time they
should receive the desired answer ; and, therefore, it was entirely im-
important whether it was sent by that or another wagon, or in any
other manner, provided it was sent to Harper's Ferry, and was not
delayed beyond the time which was orduiarily employed by wagons
engaged in hauling flour from the defendant's mill to Harper's Ferry.
Whatever uncertainty there might have been as to the time when the
answer would be received, there was none as to the place to which it
was to be sent ; this was distinctly indicated by the mode pointed out
for the conveyance of the answer. The place, therefore, to which the
answer was to be sent constituted an essential part of the plaintiff's
offer.
JLA'Vvt^*-^^*
Z.
156 HENDERSON V. STEVENSON.
It appears, however, from the bill of exceptions, that no answer to
this letter was at any time sent to the plaintiffs at Harper's Ferry.
Their offer, it is true, was accepted by the terms of a letter addressed
Georgetown, and received by the plaintiffs at that place ; but an ac-
ceptance communicated at a place different from that pointed out by
the plaintiffs, and formmg a part of their proposal, imposed no obli-
gation bindmg upon them, unless they had acquiesced in it, which
they declmed doing.
It is no argument, that an answer was received at Georgetown ; the
plaintiffs m error had a right to dictate the terms upon which they
would purchase the flour ; and, unless they were complied with, they
were not bound by them. All their arrangements may have been
made with a view to the circumstance of place, and they were the
only judges of its importance. There was, therefore, no contract con-
cluded between these parties ; and the Court ought, therefore, to have
given the instruction to the jury which was asked for.
Judgment reversed. Cause remanded, with directions to award a
venire facias de novo.
HENDERSON et al. (STEAM-PACKET COMPANY) Appellants-
STEVENSON Respondent.
In the House op Loeds, June 4, 1875.
[-Beporied in Laio Reports, 2 Scotch Appeal Cases, 470.]
Lieutenant Stevenson, of the 18th Royal Irish Regiment, pur-
chased at the office of the owners of the Cotmtess of Eglinton steamer,
a ticket for his passage from Dublm to Whitehaven, and went im-
mediately on board. The ship was wrecked off the Isle of Man on
the following day, entirely through the fault of those in charge.
Lieutenant Stevenson got ashore, and found refuge m a peasant's hut,
suffering great personal inconvenience, and losmg his luggage, which
was never recovered. On the 19th of June, 1872, he brought the
present action against the above Appellants for payment of £71 and
costs.
The defence was a remarkable one ; the Appellants msisting that
they were free from all liability for injury either to the Pursuer or to
his luggage ; their allegation bemg that they had entered into no con-
tract with him ; and that, at all events, they were saved from respon-
sibility by an mdorsement on the ticket which he had received, there
being" on the back of it a printed intimation in the following- words: —
'' The company incurs no liability in respect of loss, injury, or delay
to the passenger or to his luggage, whether arising- from the act,
neglect, or default of the company or their servants, or otherwise."
The Pursuer answered that the ticket on the face of it had onlv
HENDERSON V. STEVENSON. 15T
these words : "Dublin to Whitehaven ; " and that he had never looked
at the ticket nor seen the notice on the back of it, no one having
directed his attention to either ; so that there was no assent on his
part to the alleged stipulation,
The Lord Ordinary (Lord Gifford) gave judgment in favor of the
Pursuer ; and on a reclaiming note the Second Division of the Court
of Session adhered to this decision (a).
Against this judgment the Defenders in the Court of Session ap-
pealed to the House, having for their counsel Mr. Milvmrd^ Q. C. and
Mr. E. C. ClarJcson ; who maintamed that the strandmg of the ship
was an accident of the seas, for which the Appellants were not liable ;
and insisted that upon a true construction of the contract between the
Appellants and the Respondent they were not liable for his losses.
The following cases were cited, namely : Zimz v. Soitth Eastern
Railxoay Company (b) ; Carr v. Lancashire and Yorkshire Haihcay
Company (c) ; and Stewart v. North 'Western Railxoay Company (d).
But at the close of the Appellant's argument, the Law Peers,- with-
out calling on the Respondent's counsel, Mr. Cotton^ Q. C, and Mr.
Thesiger, Q. C, delivered the following opinions : —
The Lord Chancellor {e) : —
My Lords, two questions have been argued on this appeal ; the first
being whether the contract between the parties had incorporated in it
certain conditions printed on the back of the ticket ; the other being
a question which arises only upon the supposition that those con-
ditions were so incorporated — whether they were m themselves legal
conditions, and what was theu' proper construction ? Upon the second
question, my Lords, I do not propose to make any observations ; but I
will ask your Lordships to du'ect your attention to the first question, the
answer to which apjaears to me of itself sufficient to dispose of this case.
The Respondent, an officer in Her Majesty's 18th Royal Irish Regi-
ment, desirmg to travel from Dublin to Whitehaven, took from the
above Appellants a ticket for the voyage, going into their ticket office
on the wharf, at the North Wall of Dublin, alongside of which the
steamship the Countess of Eglinton was lying. He paid the fare for
the voyage, and obtained the ticket in return.
On the face of this ticket there are letters indicating the name of
the steam packet company, and the words " Dublin to Whitehaven "
This clearly, if the matter had so rested, would have been evidence of a
contract on the part of the steam packet company to carry the person
to whom the ticket was handed, in consideration of the money which
he had paid to them, from Dublin to Whitehaven, and to use all
reasonable care in the course of their undertaking- so to carry him.
(a) Court of Session Cases, 4th Series, (c) 7 Ex. 707; 7 Eailw. Cas. 426; 21 L.
vol. i. p. 215. J. (Ex.) 261.
(6) Law Rep. 4 Q. B. 545. [d) 3 H. & C. 135. (e) Lord Cairns.
158 HENDERSON V. STEVENSON.
But, my Lords, on the back of the ticket there were printed these
words :
This ticket is issued on the condition that the company incur no liability whatever
in respect of loss, injury, or delay to the passenger, or to his (or her) luggage, whether
arising from the act, neglect, or default of the company or their servants, or other-
wise. It is also issued subject to all the conditions and arrangements published by
the company.
There were also hung up in the office a time bill ad a list of fares ;
and also a general notice (a), which I need not further refer to, inas-
much as no evidence whatever was given that the Pursuer, saw, read,
or indeed had an opportunity of reading that general notice. But the
question arises what was the effect of handing to the Pursuer a
ticket having the words which I have mentioned upon the face of it,
and having those further sentences which I have read upon the back
of it.
With regard to the knowledge of the Respondent of what was prmt-
ed upon the back of the ticket, your Lordships have his own evidence,
which is not controverted, and upon which he does not appear to
have been challenged or cross-examined, that in pomt of fact he did
not read and did not know what was prmted upon the back of the
ticket. There was nothmg upon the face of the ticket referring him
to the back, and there was nothmg said by the clerk who issued the
ticket directmg the Respondent's attention to what was printed upon
the back. Your Lordships therefore may take it as a matter of fact
that the Respondent was not aware of that which was printed upon
the back of the ticket ; consequently, so far as any intelligent knowl-
edge of what was there printed is concerned, he cannot be taken in-
telligently to have agreed to the terms prmted upon the back of the
ticket.
I asked with some anxiety what was the authority for the proposi-
tion that a member of the public was to be supposed to have con-
tracted under those circumstances in that way ; and I have listened
with great attention to all the authorities that have been cited. A
great number of those authorities are cases where there was no ques-
tion at all arising as to what the nature of the contract was. They
were cases in which it was assumed either by the admission of both
sides, or by the pleadings, that terms similar to those which I have
read in the present case as printed on the back of the ticket formed
part of the contract m those different cases. Those cases therefore
have no relation whatever to the present. There were a consideral)le
iiuml)er of other cases in whicli for the conveyance of animals or of
goods, a ticket or paper had been issued actually signed by the owner
(a) The general notice contained " an live stock, and goods, should undertake
express condition tliat the passengers, all risks whatsoever,"
and owners of the passengers' luggage,
HENDERSON V. STEVENSON. 159
of the animals or by the owner of the goods. "With regard, again, to
those cases there might indeed be a question wliat was the construc-
tion of the contract, or how far the contract was vaUd. But there
could be no question whatever that the contract, such as it was, was
assented to and was entered into by the person who received the
ticket.
But what are the cases which are analogous in any way to the pres-
ent? Aly Lords/ ^"f all that were cited there was really only one
which could be said to approach the present case. That was a case
tried in the Passage Court of Liverpool with regard to a ticket issued
upon the occasion of an excursion train {a). And even with regard to
that case, the observation is obvious that when it is examined it is
not an authority at all to decide the present case. There a ticket had
been issued to the excursionist which had upon the face of it " ticket
as per bill." Therefore on that part of the ticket which the excursion-
ist must have seen he was referred to some bill or other upon the
subject of the ticket. It was m evidence further, by the admission of
the excyf sionist himself, that he had seen and had read in the office
a large bill on the subject of the arrangements with regard to the ex-
cursion ; and that in that large bill he had seen a reference to some
smaller bill or bills, but he had not referred to the smaller biQs which
were so mentioned. In that state of things, although the jury in the
Passage Court found, and probably found rightly, that the excursion-
ist was not aware of the contents of the smaller bills, the Court above
(b) having leave to draw inferences of fact, came to the conclusion that,
under the circumstances, the excursionist must be taken to have sub-
mitted himself to all the terms contamed in the smaller bill, and to
have been content to do that without reading m detaU. what those
terms were.
I express, my Lords, no opinion upon that decision beyond saying
that it does not m any way govern or cover the present case. The
present case is a case in which there was no reference whatever upon
the face of the ticket to anything other than that which was written
upon the face. Upon that which was given to the passenger, and
which he read, and of which he was aware, there was a contract com-
plete and self-contained without reference to anythmg dehors. Those
who were satisfied to hand to the passenger such a contract complete
upon the face of it, and to receive his money upon its being so handed
to him, must be taken, as it seems to me, to have made that contract,
and that contract only, with the passenger ; and the passenger, on his
part, receiving the ticket in that form, and without knowing of any-
thmg beyond, must be taken to have made a contract according to
that which was expressed and shown to him.
(a) Stewart v. North-Western Railway (6) The Court of Exchequer.
Company, 3 H. & C. p. 135.
160 HENDERSON V. STEVENSON".
It seems to me that it would be extremely dangerous, not merely
with regard to contracts of this description, but with regard to all
contracts, if it were to be held that a document complete upon the
face of it can be exhibited as between two contracting parties, and,
without any knowledge of anythuig beside, from the mere circum-
stance that upon the back of that document there is something else
printed which has not actually been brought to and has not come to
the notice of one of the contracting parties, that contracting party is
to be held to have assented to that which he has not seen, of which
he knows nothmg, and which is not in any way ostensibly comiected
with that which is printed or written upon the face of the contract
presented to him. I am glad to find that there is no authority for
such a proposition in any of the cases that have been cited ; and I
agi-ee entirely with the observation of the Lord Ordinary (a) in the
present case, where he says in his note :
It has not been shown that the Pursuer's attention was called either to the bills
in the office or to the notice on the back of the ticket, or that he knew either of
the one or of the other. There is no reason to doubt the Pursuer's word when he
says he never read the conditions on the back of the ticket. Now it seems fixed that,
in a case like this, mere notice not brought home to and assented to by the Pm-suer
is not enough (b).
My Lords, the question does not, as it seems to me, depend upon
any technicahty of law or upon any careful examination of decided
authorities. It is a question simply of common sense. Can it be held
that when a person is entering into a contract containing terms which
de facto he does not know, and as to which he has received no no-
tice, that he ought to mform himself upon them ? My Lords, it ap-
pears to me to be impossible that that can be held. The interlocutor
of the Lord Ordinary, affirmed as it was m all respects by the Second
Division of the Court of Session, appears to me to have been entirely
correct ; and I therefore move your Lordships that this appeal be dis-
missed with costs.
Lord Chelmsford: —
My Lords, the sole question is whether the Appellants are exoner-
ated from all liability to the Respondent by reason of the notice on
the back of the ticket dehvered to him at the time of paying his
passage-money. The Lord Ordinary (c) held that there was no proof
that the Respondent assented to this notice, and therefore that the
Appellants were responsible for the loss of his luggage, the vessel
in which he was a passenger having been wrecked by the default
of the Appellants' servants. The Lord Justice Clerk (c) and Lord
IJenholme (c) also thought there was no assent to the notice. Lord
Cowan (c) and Lord Neaves (c) both thought that the terms and condi-
(a) Lord Glffonl. (c) See the several opinions of the Scotch
(6) 4th Series of Scotch Cases, vol. i. p. Judges, 4th Series of Scotch cases, vol.
216. 1. p. 218.
HENDERSON V. STEVENSON. 161
tions indorsed, upon the back of the ticket must be held to have been
assented to and to have formed part of the contract between the par-
ties. But the whole of the Judges of the Court below held that the
loss sustained by the Respondent was not embraced by the words of
the notice.
The steam packet company was established for the carriage and
conveyance of passengers, passengers' luggage, live stock and goods.
Their liability by law to a passenger is to carry and convey him
with reasonable care and diUgence, which implies the absence on
the part of the company of carelessness or negligence. Of course
any person may enter into an express contract with them to dispense
with this obligation and to take the whole risk of the voyage on
himself. And this contract may be established by a notice exclud-
ing liability for the want of care or for negligence, or even for the
wilful misconduct of the company's servants, if assented to by the
passenger. But by a mere notice, without such assent, they can
have no right to discharge themselves from performing what is the
very essence of their duty, which is to carry safely and securely, un-
less prevented by unavoidable accidents. I think that such an ex.
elusion of liability for negligence camiot be established without very
clear evidence of the notice having been brought to the knowledge
of the passenger and of his havmg expressly assented to it. The
mere delivery of a ticket with the conditions indorsed upon it is very
far, in my opmion, from conclusively bindmg the passenger.
The Lord Chief Justice m the case of Zunz v. South Eastern Bail-
way Company (a), wliich has been referred to, thought himself bound
by the authorities to hold that when a man takes a ticket with con-
ditions printed on it, he must be presumed to know the contents of
it, and must be bound by them. I was extremely anxious to be re-
ferred to the authorities which influence the judgment of the Lord
Chief Justice ; but although numerous authorities were cited by Mr.
Mihoard, none of them go the length of establishing that a presump-
tion of assent is sufficient. Assent is a question of evidence, and the
assent must be given before the completion of the contract. The
company undertake to convey passengers in their vessels for a certain
sum. The moment the money for the passage is paid and accepted,
their obligation to carry and convey arises. It does not require the
exchange of a ticket for the passage-money, the ticket being only a
voucher that the money has been paid. Or, if a ticket is necessary
to bind the company, the moment it is delivered the contract is com-
pleted before the passenger has had an opportunity of reading the
ticket, much less the indorsement. It may be a question whether, if
a passenger were to read the indorsement and decline to agree to the
(a) Law Rep. 4 Q. B. 544.
Vol. I-ll
I
162 HENDERSON V. STEVENSON.
terms, the company could refuse to take him as a passenger. Holduag
themselves out as undertaking to convey passengers by their vessels,
it might be held that they are bound to carry upon the terms of their
common law liability alone, unless a special contract be entered into
with the passenger. But it is unnecessary to consider this point.
I have expressed a view of the case which places the right of the
Respondent to an interlocutor m his favor on a different ground from
that which was assumed by the Court of Session ; but I agree m the
reasons which led them to their conclusion, because I thmk that a
Ihnitation of the legal liability of the steam packet company as car-
riers ought to be most strictly construed, as well as the assent to it
distmctly proved. Therefore, my Lords, I agree with my noble and
learned friend that the interlocutors ought to be affirmed, and the
appeal dismissed with costs.
Lord Hatherley: —
My Lords, I entirely concur with my two noble and learned friends
who have preceded me.
There are two questions and two questions only in this case. The
first is, Has there been in fact any negligence on the part of the De-
fenders ? That is a pomt upon which both the Lord Ordmary and the
learned Judges of the Second Division of the Court of Session are per-
fectly clear, and as to which we should have great hesitation in differ-
ing from them if there was any doubt upon the subject ; but as we
can have none upon the evidence before us, it is not necessary for me
to pursue the point. I assume, therefore, that the loss sustained by the
Pursuer was entirely occasioned by the negligence of the Defenders.
The other point was as to whether the Pursuer had entered into a
contract by which he agreed to be his own insurer, so to express it,
not only against loss occurring in the course of the passage, but even
against any neglect or default on the part of the servants or agents of
the Appellants with whom he contracted. Now he entered into a
contract as a passenger for the conveyance of himself and his luggage
from Dublin to Whitehaven. In the absence of any restriction, assented
to by him, to his right, he was entitled to consider himself as assured
of that passage in safety, except so far, of course, as an obstacle
might have arisen from any absolutely unavoidable accident. The
carriers were obliged to use all due precaution and due care and dil-
igence in carrying him and his luggage when once they had completed
a contract as common carriers, for the purpose of so conveying him.
They delivered to him a ticket, he having, in the first place, paid his
money for the passage from Dublin to Whitehaven.
I agree with the observation that was made by my noble and
learned friend (a), that, the money having been paid, and the ticket hav-
(a) Lord Chelmsford.
HENDERSON V. STEVENSON. 163
ing been taken up, a contract was completed upon the ordinary terms
of conveyance for himself and his luggage, unless it can be made out
that he had entered into any special contract to the contrary. A
ticket is in reality in itself nothmg more than a receipt for the money
which has been paid. Of course, terms may be imposed by the car-
riers, and parties may agree to such terms in derogation of their right.
Numerous authorities were cited by the counsel for the Appellants, but
all those authorities I may say either showed (which the majority of
them did) an actual signature by the party, bmding hun somewhat
stringently to certam conditions, or they consisted of cases in which
the pleadmg had been that whether there had been a signature or
not there was an agreement ; and that was admitted, and the cases
turned and were decided upon that admission, which was, of course,
as good as if a contract had been signed. Really, the only exception
among the authorities was that noticed by my noble and learned friend
the Lord Chancellor— the case m the Passage Court of Liverpool with
regard to an excursion train ; and I do not think it necessary to add
any further observation upon that case.
In the present case the steam packet company having received the
Pursuer's money, and having given hun a receipt for it in the shape
of a ticket which bore upon the face of it simply a heading with the
initials of the title of the company and the words " Dublin to White-
haven," what was the Respondent's position ? He was entitled to con-
sider that he had got a good and valid contract from common carriers
to carry him upon the ordmary terms from Dublin to Whitehaven-
That was his position, unless it can be shown that he had in some
way varied that position by a special contract. Now it happens in
this case, f ortmiately, that there can be no doubt as to whether he did
or did not read or inquire further into those conditions which were on
the back of the ticket. He positively swears in one part of his exam-
ination to not having read the notice printed on the back of his ticket,
and in his cross-examination he is m no wise shaken on that subject.
But not only that, your Lordships have one of the Appellants them-
selves called on the other side, namely, Mr. Robert Henderson, and
this question is put to him in his cross-examination : « Did you give
any mstructions as to directmg passengers' attention to these condi-
tions ?" And he says, "Yes ; a large notice embodying the conditions
appears on the bills we issue each month." Then he is asked, " Did
you give any instructions to the clerk who issued the tickets on your
behalf to direct the attention of passengers to what was printed on
the back?" And his answer is, « No." The clerk himself is caUed,
and he says m his cross-exammation, « I cannot say who bought the
cabm ticket for Whitehaven. I was not m the way of drawmg the
attention of passengers to the condition on the back of the ticket or to
164 HENDERSON V. STEVENSON.
the notice." That is clearly an admission of the fact that it was not
this clerk's habit to call the attention of passengers to that which the
Appellants seek to set up as part of the contract. It is an admission
that, that condition bemg printed not on the face of the ticket, but on
the back of it, he did not actually see to the passengers' attention bemg
in any way called to it.
Lord O' Hag ax : —
My Lords, two questions have been raised in this case, and have been
the subject of decision in the Court below ; but, in the view which I
take of it, the rulmg of the first wUl dispense with any consideration
of the second. The Respondent's loss, through the default of the Ap-
pellants, is plain, and now undisputed.
The Appellants reply upon a contract relieving them from liabiUty ;
but the Respondent says that he never entered in such a contract : that
the terms of it were never, in fact, made known to him ; and that his
assent to them Avas neither asked nor given. The question is one of
evidence. Did the Respondent enter mto such a contract ? With the
majority of the Judges in the Court below, and the noble and learned
Lords who have preceded me, I am of opinion that he did not. And
I have reached that conclusion substantially for the reasons which
have been lucidly stated, and which it is not needful to repeat at any
length.
Proof of the Respondent's knowledge and assent might have been
given in various ways. In certain circumstances, denial of them might
not be permissible ; in others, a jury or a Court might be satisfied of
their existence from antecedent dealings, notoriety of custom, publica-
tion of notices, verbal communication, and so forth ; but I agree with
the Lord Chancellor that the mere receipt of a ticket, under such cir-
cumstances, and with such an indorsement as we have before us, is not
shown by the authorities cited at the Bar to furnish ^jer se sufficient
evidence of such assent or knowledge. We have positive and uncon-
tradicted testimony that they did not exist ; and in declining to discard
that testimony on the strength of a false presumption, your Lordships
will act in the spirit of the legislation which would have pronounced
the contract we are asked to enforce void if the case had come within
the statute. Of course, as it does not, we must deal with the facts as
we find them : but it is satisfactory that we are enabled to decide in
harmony with the policy of Parliament (a), which has relaxed the strin-
gency of judicial decision in the interest of the public, and limited the
power of companies to escape the proper consequences of their own
misconduct or neglect.
We were asked by Mr. Mikoard^ in the course of his able argument
(a) Raihoay and Canal Traffic Act (17 & 18 Vict. c. 31), and Carriers 4ct (11 Geo.
4 & 1 Will. 4, c. 68).
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 165
what more could the Appellant have done to furnish notice of the terms
on which they proposed to contract ? One answer — and there might be
many more — was supphed by some of the cases which he cited, and in
which the signature of the passenger or consignor demonstrated con-
clusively his conscious and intelligent assent to the bargain by which
it was sought to bmd him. When a company desires to impose special
and most strmgent terms upon its customers, in exoneration of its
own liabihty, there is nothing unreasonable in requiring that those
terms shall be distmctly declared and deliberately accepted ; and that
the acceptance of them shall be miequivocally shown by the signature
of the contractor. So the Legislature have pronounced, as to cases of
canals and railways, scarcely distinguishable m substance and princi-
ple from that before us ; and if the effect of your Lordships' affirma-
tion of the interlocutor of the Lord Ordinary be to compel some pre-
caution of this kind, it will be manifestly advantageous in promoting
the harmonious action of the law, and in protecting the ignorant and
the unwary.
On the second question raised, I make no observation. The appeal,
in my opinion, should be dismissed, with costs.
Interlocutors aiTpealed from affirmed; and appeal dismissed^ with costs.
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY.
In the High Court of Justice, April 26, May 30, 1876.
[Reported in 1 Queen's Bench Division, 515.]
Action to recover the value of passenger's luggage delivered to the
defendants at their cloak-room.
At the trial before Pollock, B., without a jury, a verdict was found
for the plamtiff for 60?., with leave to move to enter judgment for the
defendants, the Court to have power to di-aw mferences of fact.
The facts are fully stated in the judgment of Blackburn, J.
April 26. Thesiger^ Q. C, and Dighy, for the defendants. The
conditions on the back of the ticket were part of the contract : Hender-
son V. Stevenson {a) ; Van Toll v. South Eastern Ry. Co. {b) ; York^
Newcastle^ and Berwick Ry. Co, v. Crisp (c) / Stewart v. London and
North Western Ry. Co. (d) ; Zunz v. South Eastern Ry. Co. {e) ; John-
son V. G?'eat Southern and Western Ry. Co. (f); Leiois w.McKee (g).
Those cases show that express assent to the conditions was not neces-
sary, and that the reference on the face of the contract, with the facts
(a) Law Rep. 2 H. L., Sc. 470. (d) .3 H. & C. 135; .3.3 L. J. (Ex.) 199.
(6) 12 C. B.(N.S.)75; 31 L. J. (C. P.) 241. (e) Law Rep. 4 Q. B. 539.
(c) 14 C. B. 527; 23 L. J. (C. P.) 125. (f) Ir. Rep. 9 C. L. 108.
(g) Law Rep. 4 Ex. 58.
166 HARKIS V. THE GREAT WESTERN RAILWAY COMPANY.
in evidence in this case, was sufficient to make the conditions part of
the contract. The conditions, bemg part of the contract, protect the
defendants from this loss : Van Toll v. South Eastern My. Co. {supra).
Sir H. James, Q. C, and Masterman^ for the plaintiff. The con-
ditions on the back of the ticket were not part of the contract. Hen-
derson V. Stevenson {supra)., is a direct authority on this pomt. But even
if they were, they do not protect the defendants ; in the first place, be-
cause the contract was that the luggage should be put into the cloak-
room, and it never was put there ; in the second place, because the
conditions cannot exempt the defendants from responsibility for gross
negligence : Birhett v. Willan {a) \ Hodges on Railways, 5th ed. p. 5-1:6,
citing Wyld v. Pickford {b).
[Blackburn, J. Hinton v. Dihhin (c) is against that contention.]
Hinton v. Dihhin (c) was a decision upon 11 Geo. 4 & "Wm. 4, c. 68,
and does not diminish the weight of Wyld v. Pickford {h) as an author-
ity upon conditions apart from statute.
[Blackburn, J. In Hinton v. Dihhin (c) the effect of conditions apart
from the statute was also considered.]
Gill V. Manchester Ry. Co.., {d) and D''Arc v. London and North West-
ern Ry. Co. (e), the latter followmg Rohinson v. Great Western Ry.
Co. (/), show that the defendants are responsible, notwithstanding
the conditions.
Digby, was heard in reply, and referred to Gallin v. London and
North Wester ti Ry, Co. {g) and Peek v. North Staffordshire Ry. Co. {h).
Cur. adv. vult.
May 30. The following judgments were delivered : —
Lush, J. I agree with my learned Brothers in holding, and for the
same reasons, that the goods in question were delivered to and were
accepted by the company, upon the terms and conditions mentioned
in the ticket, and that the contract of the company was therefore
qualified by those conditions. But upon the second question, namely,
whether, under the circumstances disclosed in the case, the company
can avail themselves of the protection intended by the first condition,
I have arrived at a different conclusion.
I think the condition is not applicable to the kind of custody in
which these packages were kept. Of course, if a package intrusted
to a warehouseman is restored to the owner in the same condition as
it was when he delivered it, it matters not to him where and how it
has been kept. The warehouseman in that case will have fulfilled his
contract, and no cause of complaint arises though he may not have
kept it in the place where he contracted to keep it. It is only when
(«) 2 B. & Aid. 356. {h) 8 M. & W. 443. (c) 2 Q. B. 646. {d) Law Rep. 8Q. B. 186.
((') Law Rep. C. P. .32.5. (/) 35 L. .1. (C. P.) 123. (y) Law Rep. lOQ. B.212.
(h) 10 H. L. C. 473; .32 L. .J. (Q. B.) 241. \J} v ^
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 167
the package has been lost or damaged, that it becomes material to
inquire where it was deposited and how the loss or damage was
occasioned, in order to ascertain whether it was attributable to any
negligence of the warehouseman, for he is not an insurer, and is only-
responsible for loss or damage happening through his default. His
contract is, to take due and reasonable care of the goods intrusted to
him, which includes the keeping them in a suitable place where they
will not be exposed to depredation, or to damage by weather, breakage,
or otherwise. If, notwithstanding such due and reasonable care the
goods are stolen, burnt, or damaged, he is not responsible ; but if these
casualties happen through his neghgence he is.
The parcels m question being of comparatively small dimensions
and weight, and therefore easily removable, ought to have been kept
out of the way of thieves. If either had happened to be of less value
than 5?., and so not within the first condition, there would, I appre-
hend, have been no doubt m the mind of any one that the company
would have been liable to make good the loss ; and the ground of their
liability would have been the not keeping it m a reasonably safe place
of deposit. They would have been told that if they chose to keep
such goods unguarded in a place of public resort, they did so at their
own risk and not at the risk of the owner. If they had kept them in
the cloak-room, and they had been stolen from thence by reason of the
door being carelessly left oj)en, or if they had been damaged by any
carelessness of their servants, in that case also, the company would
have been liable, but if, without any fault on the part of their servants»
they had been stolen, burnt, or injured, the loss would have fallen on
the owner.
The condition must, in my opinion, be read as intended to protect
the company in cases where they would otherwise have been responsi-
ble by reason of the negligence of their servants in the keeping and
management of the warehouse, and not to relieve them from the duty I
of warehousing at all. What the owner pays for is such an amount
of security as a reasonably safe warehouse affords, and not the mere
permission to leave the goods on the company's premises. In other
words, the owner who does not insure takes upon himself a warehouse
risk, the risk of his goods being stolen, burnt, or damaged while there
The argument on the part of the company casts on him a risk which
no one contemplates when he pays for warehousing, and which would
excuse the company not merely for want of care in the keeping, but
for actual exposure of the goods in the open air, not only to every
passing thief, but to damage by rain, or breakage, or otherwise, if this
was done by their servants in neglect of their duty — in fact they
would be irresponsible though no precaution whatever were taken to
secure the safety of the goods.
168 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY.
I cannot think that this is the true meaning of the condition,
because it would be utterly inconsistent with the relation of bailee
for reward and bailor, and, in mj^ view, equallj^ inconsistent with
the terms of the ticket itself.
The ticket is headed, " Luggage and cloak office." This, it is true,
may merely be meant to indicate the place where it is issued. But it
goes on to state that the sum charged is for « warehousing." It noti-
fies that the company will not be responsible, mider any circumstances
for loss of, or injury to, articles, "except left in the cloak-room," that
they will not deliver up luggage except to persons producing the
ticket ; and, lastly, that " the cloak-room is only open on Sundays at
such times as the trains arrive at, and depart from, the station."
What is this but a plain intimation that the goods are to be deposited
in the cloak-room ? Why, otherwise, should the depositor be informed
at what hours the cloak-room is open on Sunday ?
The inference is to my mind irresistible that the company, by the
very terms of the ticket, engage to keep the goods in the cloak-room ;
and, that being so, the condition in question must be read as applying
to a cloak-room custody, and as if the words had been that the com-
pany will not be responsible if they are stolen from the cloak-room, or
burnt, or delivered to the wrong person, or damaged while there,
although this may have been caused by the negligence of their ser-
vants. 3^s the goods were never in the cloak-room, the y w£Xfi-U jQt~
subject to the condition. It seems needless to say that the loss is
directly attributable to this breach of contract, for, if the articles had
been in the cloak-room, the thief could not have got at them so as to
pass them off as his own luggage.
The case closely resembles, I think, Xi/07i v. Ifells (a). There a
lighterman, who had given notice that he would not be answerable
for any loss or damage to any cargo put on board his lighter, unless
such loss or damage should be occasioned by want of ordinary care
and diligence in the master or crew, and then only to the extent of
10 per cent, upon the loss or damage, was held not entitled to any
protection where the damage was caused by the unseaworthiness of
the lighter, a breach of the condition implied by law. The notice was
construed as applicable solely to goods carried in a seaworthy vessel.
J'or these reasons I am of opinion that our judgment ought to be for
the plaintiff.
Mellor, J. In this case the facts and evidence, so far as they ap-
peared on the trial l)efore Pollock, B., without a jury, are sufficiently
set out in the judgment about to be delivered by my Brother Black-
burn, and I think it unnecessary to state them.
On the argument, two questions were made ; first, whether the plamt-
(a) 5 East, 428.
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 169
iff, under the circumstances, was bound by the terms of the ticket,
which was delivered to her agent on his depositing the portmanteau
and box in the custody of the defendants' servants in the vestibule to
the cloak and luggage room ; secondly, whether, on the true construc-
tion of the terms of the ticket, the company were relieved from liabil-
ity by the fact, that on the deposit of the portmanteau and box no
declaration was made of the true value and nature of the articles or
property therem, as required by the second condition, each article being
above the value of 51.
The ticket in question was as underneath : —
" G. 56 Great Western Railway.
« No. 999 Padduagton Station.
" (295) Luggage and Cloak OfiBce.
Friday the 29th of May, 1874.
Articles.
Amount.
s. d.
1 Portmanteau
1 Box
Insurance on £
Additional charge for
each article per day.
• • • •
• • • •
- at Id. per £ .
-days at Id. \
Total .
2
2
« Left in the name of
and subject to the conditions on the other side.
« J. L., ClerTc.
« This ticket to be given up when the luggage is taken away."
" Conditions. [On the back of the ticket. ]
" N. B. — The Great Western Railway Company appoint that the
undermentioned sums be paid them for warehousing passengers' lug-
gage, which has been, or which is about to be, conveyed on their rail-
ways, viz. : —
" For any period not exceeding three days, twopence for each pack-
age ; and after three days, one penny additional for each package per
day, or part of a day.
" And they hereby give notice that they will not be answerable for
loss of, or injury to, any such package beyond the value of five pounds,
unless at the time of the delivery of such package to them the true
value and nature thereof, and of the article or articles, or property
therein, shall have been declared by the person delivering the same,
and a sum at the rate of one penny per pound sterling of the declared
170 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY.
value be paid for such package for each day, or part of a day, for
which the same shall be left, in addition to the before-mentioned ordi-
nary warehouse charges.
" Every person depositing luggage will be furnished with a receipt,
stating the number and description of the articles deposited, which re-
ceipt must be given up to the company's servants upon their delivery
of the articles thereon described ; and the company gives notice that
they will not deliver up luggage, except to persons producing the
proper receipt for the respective articles claimed, which delivery shall
acquit the company from all further claims in respect thereof.
" The company will not be responsible, under any circumstances, for
loss of, or injury to, articles, except left in the cloak-room.
" The company's servants are prohibited, under pain of instant dis-
missal, from receiving fees or gratuities, under any pretence whatever.
" On Sundays the cloak-room is only open at such times as the trains
arrive and depart from their stations."
The counsel for the plaintiff very much relied on the authority of
the case of Henderson v. Stevenson (a) in the House of Lords, and con-
tended that the prmciple to be deduced from that case governed the
present, and unless the present case can be distinguished, we are im-
doubtedly bound to follow that decision.
I do not intend to say that we are bound by all the dicta which fell
from the learned Lords who delivered judgment seriatim in that case,
but we are bound by the ratio decidendi to be collected from those
separate judgments. In that case the Lords were judges both of law
and of fact, but by the effect of the reservations in this case, we are in
the same position, and acting in the capacity of judges we declare the
law, and of jurymen we draw inferences from the facts. In the report
of the case of Henderson v. Stevenson («), the headnote, with substan-
tial accuracy, represents the facts as follows:— "A ticket having on
its face only the words ' Dublin and Whitehaven ' was given to a pas-
senger, who, without looking at it, paid for it and went on board.
Having lost all his luggage, he brought an action against the company
for its loss. Defence of the company, that on the back of the ticket
there was an intimation that they were not to be liable for losses of
any kind or from any cause." In carefully considering the judgments
in that case, we find the Lord Chancellor thus expressing himself :
« There was nothing upon the face of the ticket referring him to the
back, and there was nothing said by the clerk who issued the ticket
directing the respondent's attention to what was printed on the back."
And further on he says : " The present is a case in which there was
no reference whatever upon the ticket to anything other than that
which was written upon the face. Upon that which Avas given to the
(a) Law li'ep. 2 H. L., iSc. 470.
HAEEIS V. THE GREAT WESTERN RAILWAY COMPANY. 171
passenger, and which he read, and of which he was aware, there was
a contract complete and self-contained without reference to anything
dehors^ And, referrmg to the case of Stewart v. North Western Hy. Co.
(a), he declined to express any opinion upon it beyond saying it did not
govern the case then under consideration.
It is true that Lord Chelmsford intimated an opinion to the effect
that " The moment the money for the passage is paid and accepted their
obligation to carry and convey arises. It does not require the exchange
of a ticket for the passage-money, the ticket being only a voucher that
the money has been paid."
Lord Hatherley's opinion seems to be in accord with Lord Chelms-
ford's as to the effect of the ticket being merely in the nature of a
voucher that the passage-money has been paid.
Lord O'Hagan's opinion is certainly more in conformity with the
reasons assigned by the Lord Chancellor, and he said « that the receipt
of a ticket under such circumstances, and with such an indorsement
as we have before us, is not shown by the authorities cited at the Bar
to furnish, per se, sufficient evidence of such assent or knowledge."
Doubtless some of the observations which fell from Lord Chelmsford
and Lord Hatherley may appear to have a bearing beyond the precise
facts of that case, but I cannot help thinkmg that they were only m-
tended to refer to the peculiar circumstances which there appeared, and
the description of the ticket upon which the matter arose.
In the present case the journey of the plaintiff was complete and the
responsibility of the company as carriers had ceased, but they had, for
the convenience of the travelling public, established a luggage and cloak
office, where passengers encumbered with luggage might, for their own
convenience, deposit it on certain prescribed payments and on certain
conditions both as to time of warehousing and re-delivery. Prima facie,
therefore, and as a matter of common sense, the person depositing the
luggage would expect to do it on some specifJ terms and conditions as
to remuneration and care. Accordingly, on the luggage being brought
to the luggage and cloak office to be deposited, and a payment of so
much per article being demanded for the temporary accommodation
required by the passenger, and the number of the articles being ascer-
tained, an entry was made in the presence of the depositor on a printed
ticket, which is not only a statement of the fees to be paid to the
company, but is also a voucher for the re-delivery of the articles de-
posited, and a statement of the conditions upon which alone the
company will accept the deposit.
A fac-simile of the ticket, and of all the matters contained on it,
are set out above, and it appears that, in order to render the ticket of
a convenient size, the paper referred to was prmted on both sides, the
(a) 3 H. & C. 1-35; 33 L. J. (Ex.) 199.
172 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY.
first side specifying the articles as kept in tlie name of , and
" subject to the conditions on tlie other side," followed by the initials
of the clerk, and then, underneath, are printed the words, " this ticket
to be given up wlien the luggage is taken away," and, on the other side,
in conformity with the notice to that effect contained on the first side,
are stated the conditions, and a notification of the times at which the
cloak-room is open for receipt and delivery of packages.
The ticket in this case much resembles a half-sheet of paper, upon
which the writer, having filled up one side, turns over the page and
continues the matter on the other.
The depositor m the present case not only was aware that the paper
ticket so filled up and handed to him, m exchange for the portmanteau
and box, contained something relating to the deposit, but believed that
it contained conditions. Drawing mferences from his evidence, I come
to the conclusion that he knew that the ticket contained terms and
conditions in which the deposit was made, although he did not choose
to read them so as to become aware of the exact contents. Under such
circumstances, it would indeed be strange to hold that he was not
bound by the terms and conditions of the ticket, which he accepted
without objection. I come, therefore, to the conclusion that he cannot
be permitted to excuse the plaintiff from the obligation of the terms
of the ticket, on any pretext that he did not actually read them so as
to become aware of the actual conditions.
I am fm-ther of opmion that the plamtiff was bound by the conduct
of her agent, and is precluded, under the circumstances, from setting
up any defence that she did not deposit the luggage on the terms which
the ticket so handed to her agent contained, or assent thereto.
On the second question I feel considerable hesitation. Assuming
that the plaintiff assented, or is precluded from objecting that the
deposit of the luggage was not made on the terms and conditions of
the ticket in question, then arises the question whether or not, on the
true construction of the terms and conditions of the ticket, the com-
pany undertake simply to warehouse the luggage for the convenience of
the passengers, usmg the machinery of the luggage and cloak office as the
office and place of business in which the matters relating to the deposit
must be made and the ticket business transacted, or did they undertake
to warehouse the articles left in their charge in the actual luggage and
cloak office, so as to give to the person making the deposit, and paymg
the prescribed sum, the additional security which the actual deposit
within the luggage and cloak office would afford ? And it is to be ob-
served that, the luggage and cloak office being locked up, except during
the arrival and departure of trains, when a servant or servants would be
present, and would probably prevent the access of strangers or thieves
to the articles deposited, it may be said that the depositor might be
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 173
"willing to pay for the accommodation offered, if accompanied by the
additional security afforded by the cloak-room, and yet not be willing
to assent to the conditions if the company were only to accept the
responsibility of warehousiag them generally.
Now, it is to be observed that the conditions on the face of them
appear to apply in terms to " the warehousing passengers' luggage ; "
and, at the end of the condition upon which the defence upon this
point rests, viz. the failure to declare the value and nature of the
articles in question on the ground that they were beyond the value of
5^., the sum, which by the condition was required to be paid on the
value declared, is described to be " in addition to the before-mentioned
ordinary warehouse chargesP
It was, however, contended that m the fourth condition it is said,
the company will not be responsible for the loss of, or injury to,
articles " except left in the cloak-room," and that those articles not
being left in the " cloak-room," the conditions do not apply to
the case. I cannot, however, but thmk that the true effect of that con-
dition with the others really is to notify that, unless the articles have
gone through the process of being ascertained, counted, and the fees
duly paid at the luggage and cloak office, the company will not be
responsible at all.
I have come, therefore to the conclusion that the limit of the com-
pany's undertaking was simply to warehouse the articles deposited on
the conditions specified, and that they did not lose the benefit and
protection of the conditions of the ticket, because the articles m ques-
tion were not actually warehoused in the cloak room but were stolen
from the vestibule.
I think, therefore, that the defendants are entitled to our judgment
on both points.
Blackburx, J. The plaintiff was a passenger by defendant's rail-
way, and arrived at the Paddington station in London with a port-
manteau and a box, which she wished to leave in the custody of the
defendants. Mr. Richard Harris, who acted for her, paid to the clerk
of the defendants, at their cloak room, four pence, and received from
him a ticket, on the terms of which much depends. He left the port-
manteau and box in the custody of the defendants' servants ; they put
on them cloak-room labels, and left them without any other protection
in the vestibule. A plan was admitted on the trial, and produced be-
fore us on the argument, which showed the position of the cloak room
and the vestibule. The vestibule is a place to which passengers have
access, and in which luggage in the custody of passengers may be
placed by them. A thief, taking advantage of this, either removed or
concealed the cloak-room tickets, treated the luggage as his own, and
with an extreme of cool impudence, applied to the defendants' police-
174 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY.
man on duty to assist in removing them, whicli the poUceman did.
The thief was subsequently convicted, but only part of the property
was recovered. Each package of Miss Harris's luggage was above the
value of bl., and her loss was 60/., and for this the action was brought.
At the trial, before my Brother Pollock without a jury, the above
facts were admitted, and neither then nor on the argument before us
was it disputed that the loss was occasioned in consequence of the
servants of the defendants having failed to exercise proper care in
and about the safe keeping of the luggage thus left with them. The
defence was rested on the ground that the plamtiff was bound by the
terms of the ticket, which, it was said, prevented the plaintiff from re-
covering for any loss to a package above the value of bl. unless the
value was declared and insurance paid at the rate of one pemiy per
pound per day.
Mr. Richard Harris was called as a witness, and his evidence, as
taken down on the judge's notes, was as follows : — " When I left the
box and portmanteau my attention was not called to the conditions on
the ticket, nor was I aware of them." Cross-examined : " I have been
m the habit of travellmg for many years, and during the last three
years have left parcels at this cloak-room perhaps once a month when
I came to town on business. I believe I have always, on those occa-
sions, received a ticket similar to this. I was not aware of the con-
ditions. I have probably seen conditions on the cloak-room tickets of
other English railways. I beheve I have seen prmting on both sides
of the Great Western tickets without reading them. I knew that I
must deliver up the ticket when I wanted the articles deposited. I
have seen the words on the ticket, ' This ticket to be given up when
the luggage is taken away.' " Question : " Were you not aware it
contained some conditions with reference to the deposit of the luggage
although you were not aware what they were ? " Answer : " I believed
that there were some conditions." Re-examined : " My attention was
not called to any condition, and I never gave it a thought. When I
say I have always received a ticket similar to this I mean similar in
general appearance." It was then admitted that the tickets used by
defendants have for several years been the same as the ticket produced.
The learned judge found for the plaintiff, 60^., reserving leave to move
to enter judgment for the defendants, the Court to draw inferences of
fact.
The ticket (or rather a fac-simile of it) was produced on the argu-
ment of the motion before us.
Two questions were discussed. First, whether the plamtiff was,
under the circumstances, bound by the terms of the ticket. Second,
whether, on the true construction of those terms, they protected thi'
defendants from liability for the loss, arising as this did. If either
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 175
question is decided in favor of the plaintiff, the verdict and judgment
for her must stand. I have, however, come to the conclusion that
both questions should be answered in favor of the defendants, who are
therefore, in my opinion, entitled to judgment.
I will, first, give my reasons for thinkhig that the plaintiff was
under the circumstances bound by the terms of the ticket.
The materials from which we are to draw inferences are, first, the
evidence of Mr. Harris, which I accept as true, and do so the more
readily because he describes himself as being in a state of imperfect in-
formation, which I think probably very common ; and, secondly, the
ticket which was produced before us. The appearance of the face of
the ticket is material in deciding this first question. The conditions
on the back only become material in decidmg the second question. It
was a paper about five and a half inches square, bearing the ordinary
appearance of having been taken out of a book in which a counterfoil
was left. The printed part was in clear, fair-sized type, such as any
one might easily read. My Brother Mellor has, in his judgment, suffi-
ciently stated its contents.
On the law governing this case, we were referred to the case of
Henderson v. Stevenso7i (a), decided by the House of Lords sitting m
appeal on a Scotch case, but on a subject in respect to which the law
of Scotland and the law of England are one and the same. The Lords
were there, in consequence of the forms of Scotch law, judges of fact,
and we, in this case, are, in consequence of the manner in which the
point is reserved, also judges of fact. I thmk that all mferior tribunals,
and the Lords themselves on any subsequent occasion, are not only
required to treat this decision with great respect as an authority, but
are bomid to follow it as a decision. If it is thought wrong, it must
be altered by the legislature. And I make no distmction between the
decision on the principle of law, as applicable to this case, and the
prmciple on which the Lords drew the mference from the facts.
I think the same inference should be drawn from the same facts, or
facts which are in substance the same. But I thmk this is only true
so far as the decision, or rather the ratio decidendi, of the House goes ;
• and that opinions expressed by one or more of the Lords m delivering
their opmions, if not part of the decision, are to be treated with great
respect as authorities, but are not bindmg either on the House itself
on a future occasion or on any other Court.
This, I think, was decided m Mersey Docks v. Gibbs (b). Lord Cot-
tenham had, in Duncan v. FincUater (c), enunciated a doctrme which
was in direct conflict with the opinion delivered by the judges in 3fer-
aey Docks v. Gibbs (b). The judges, after mentionmg what Lord Cot-
tenham's opinion was, say ( c? ) : "This is, no doubt, a very high author-
(a( Law Rep. 2 H. L., Sc. 470. (c) 6 CI. & F. 8M.
(b) 11 H. L. C. 686. {,1) 11 H. L. C. at p. 720.
173 HARRIS V. THE GREAT WESTERN RAT'^WAY COMPANY.
ity, being said by the Lord Chancellor in the House of Lords, though
in a Scotch case, but, not being the pouit decided by the House, it is
not conclusively binding, and we think that, with great deference to
his high authority, we must dissent from the position there laid down."
Lord Cranworth and Lord Wensleydale did not think it necessary to
enter into details, and merely expressed their concurrence in the
opinion delivered by the judges, thus deciding m contradiction to
what Lord Cottenham had laid down hi Dunca7i v. Findlater (a), with-
out expressly saying anything about it. But Lord Westbury (b)
thought it desirable " to say a few words with reference to the diffi-
culty felt by the learned judges in consequence of certam observations
that fell from Lord Chancellor Cottenham, and which are reported in
the case of Duncan v. Findlater (a)." He then proceeds to express
dissent from Lord Cottenham, and finally adds : " My Lords, the
learned judges observed, and with very great correctness, that it is not
everything that falls from a noble and learned lord m advising the
House which is to be considered as the opmionof the House."
I call attention to this matter particularly, because I not only
think myself bound to obey the decision of the House m Henderson v.
Stevenson (c), but I also think (if I rightly understand the judgment)
that, though that decision goes a step further than any prior decision of
which I am aware, it is a logical extension of a principle which had
been previously recognized by the courts ; and therefore I not only
obey that decision, but acquiesce in it. But there are expressions used
by the different Lords which seem to express opmions which were not,
I thuik, part of the decision of the case then before them, and which are
not, in my opinion,correct when applied to the case we have before us of a
ticket given on the deposit of goods with a company who do not hold
themselves forth as general receivers of goods to be kept for hire, but
let it be known that though they do not and will not, as a general rule,
receive or keep such goods, they will take them if the passenger brings
them to a particular office, and there receives a ticket, on the produc-
tion of which the goods will be given up to the person producing it.
On the deposit of goods with a bailee who receives reward, so as to
bring the case within the fifth head of bailments, mentioned by Lord
Holt in Coggs v. Bernard {(I), the bailee (unless he is one who has the
responsibilities of a public carrier or innkeej^cr) undertakes no further
obligation than to take proper care that the goods are safely kept from
loss or injury ; the deposit and receipt by the bailee for reward proves,
as a matter of law, that the bailee received them on the terms that he
undertakes this, and is responsible for my loss or injury occasioned
by any neglect of the duty which he has thus undertaken. But if
the bailor and bailee agree that the goods shall be deposited on other
in) 6 Cl. & F. 894. ('•) I^aw Rep. 2 H. L., Sc. 470.
(6) 11 H. L. C. at pp. 732—733. {d) 2 Ld. Kaym. 909; 1 Sm. L. C. 188, 7th Edit.
HARRIS V. THE OREAT WESTERN RAILWAY COMPANY. 177
terms than those implied by law, the duty of the bailee, and conse-
quently his responsibility, is determined by the terms on which both \
parties have agreed. Audit is clear law that where there is a writing,
into which the terms of any agreement are reduced, the terms are to be
regulated by that writing. And though one of the parties may not
have read the writing, yet in general he is bound to the other by those
terms ; and that, I apprehend, is on the ground that, by assenting to
the contract thus reduced to writing, he represents to the other side
that he has made himself acquainted with the contents of that writ-
ing and assents to them, and so mduces the other side to act
upon that representation by entering into the contract with him, and
is consequently precluded from denying that he did make himself ac-
quainted with those terms. But then the preclusion only exists when
the case is brought within the rule so carefully and accurately laid
down by Parke, B., in delivering the judgment of the Exchequer in
Freeman v. Goohe (a) that is, if he " means his representation to be
acted upon, and it is acted upon accordingly : or if, whatever a man's
real intentions may be, he so conduct himself that a reasonable man
would take the representation to be true, and believe that it was
meant that he should act upon it, and did act upon it as true." And
accordingly, in .4Zfe«v. 3Imcson (b), where the plaintiff had taken an in-
strument which on a cursory view appeared to be a draft on Sir John
Perrmg and others, bankers, London, but with the word " at " in very
small letters m closed ui the hook of the S of the Sir, so as to make it
at least doubtful whether the instrument did not purport to be a prom-
issory note, Gibbs, C, J., asked the jury whether the word " at " was
so inserted for the purpose of deception, for if so, it was to be struck
out, and the instrument was a bill of exchange m fact. A similar de-
cision, mentioned by Lord Hardwicke in 2 Atk. 32, had been come to
by Lord Macclesfield in a case where a man gave a girl a promissory
note for "20^., value received, which I promise never to pay," and the
word " never" was rejected. Both of those cases seem to me to pro-
ceed on the ground that in neither case could the defendant, as a
reasonable man, believe that the other party had read the words inserted
for the purpose of deceit, or that the other party meant to represent
to the defendant that he had done so.
The decision in Hendeh ion v, Stevenson (c) seems to me to proceed
on the same principle, but to carry it one step further. There was
no fraud or intentional deception found in that case, as there had been
in the two just cited, but there was nothing to show that the steam-
boat company, who were the r'^fendants in that case, or those who
represented them, as reasonable men, would believe, from the conduct
of the passenger, that he had represented to them that he had read
(a) 2 Ex. at p. 663; 18 L. J. (Ex.) at p. (fj) 4 Camp. 115.
119. (c) Law Rep. 2 H. L., Sc. 470.
Vol. 1—12
178 HAKIIIS V. THE GREAT WESTERN RAILWAY COMPANY.
or looked at the back of the ticket, and in point of fact he had
not.
Lord Cairns, L. C, says : " On the face of this ticket there are letters
mdicating the name of the steamboat company, and the words ' Dublin
to Whitehaven.' This clearly, if the matter had so rested, would
have been evidence of a contract on the part of the steam packet com-
pany to carry the person to whom the ticket was handed, in consid-
eration of the money which he had paid to them, from Dublin to
Whitehaven, and to use all reasonable care in the course of their un-
dertaking so to carry him." He then points out that there was. no
reference on the face of the ticket to that which was printed on the
back, and that the evidence was that the passenger had not, m fact,
read what was on the back of the ticket, and proceeds : The present is
a case in which there was no reference whatever upon the face of the
ticket to anything other than that which was written upon the face.
Upon that which was given to the passenger, and which he read, and
of which he was aware, there was a contract complete and self- con-
tamed, without anything dehors. Those who were satisfied to hand
to the passenger such a contract, complete upon the face of it, and to
receive his money upon its being so handed to him, must be taken,
as it seems to me, to have made that contract, and that contract only,
with the passenger ; and the passenger, on his receiving the ticket m
that form, and without knowing of anything beyond, must be taken
to have made a contract according to that which was expressed and
shown to hun." It certamly seems to me that this is, in other words,
to say that, though the ticket was the contract, the passenger receiv-
ing such a ticket had not so conducted himself as to justify the steam
packet company, or their servants, as reasonable men, in thmking
that he had read, or ought to have read, or otherwise made himself
acquainted with, what was on the back of the ticket, and consequent-
ly that the passenger was not precluded from showing that, m fact,
he knew nothmg of what was on the back. But, in the present case,
the ticket has on the face of it a plain and unequivocal reference to
the conditions printed on the back, of it, and any person who reads
that reference could, without difficulty, look at the back and see what
these conditions Avere ; and, that being so, the question comes to be,
whether the plaintiff is not precluded from setting up that Mr. Harris,
who acted for her in taking that ticket, never looked at the face of
the ticket or bestowed a thought on what the conditions were ; in
other words, whether, by depositing the goods and taking this ticket,
he did not so act as to assert to the defendants that he had looked at
and read the ticket and ascertained its terms, or was content to be
bound by them without ascertaining them, and so induced them to
enter into the contract with him in the belief that he had assented to
HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. J 79
its terms. I think he has so acted. It is true that Lord Chehnsford
and Lord Hatherley, in Henderson v. Stevenson (a), are reported to have
thrown out an opmion that the contract was complete on the pay-
ment of the passage money, and that the ticket was but a receipt for
that money. This certainly is no part of the decision of the House,
and, mdeed, seems to be contrary to the view taken by the Lord
Chancellor. I will not inquire at present how far what was sugges-
ted by those noble lords may or may not be just when applied to a
passenger going by a public conveyance, which was the case before
the House, but is not the case before us, and on which, therefore, we
are not required to express an opinion ; but, with every resj)ect for
their authority, I cannot think it applicable to the case of a person
depositing goods with a company who were in no way bound to re-
ceive them, and contemporaneously receivuig a ticket which he knew
was to be given up when the goods were demanded back. I think it
would be as reasonable to allow the holder of a bill of lading, or of
a wharfinger's receipt, or a dock warrant, to say that he thought this
was only a receipt for the goods, and not a contract as to their car-
riage or custody. This, I think, cannot be allowed. I will not now
inquire whether the question, whether the contract has been reduced
into writing, is one of those prelimmary questions which, according
to Bartlett v. Smithy (b) are to be decided by the judge, or one of those
to be decided by the jury. I did express an opinion in I'eek v. JVbrth
Staffordshire By. Co. (c) that it was for the judge. As we are both
judges and jurors in this case, it is not necessary to inquire in which
capacity we decide the question.
The defendants, as a railway company, are not bomid to receive goods
at all for custody ; they give notice that they will not receive them by
any of their servants in general, but any one wishing to deposit goods
with them must go to a particular office, there pay the proper remun-
eration, and receive a ticket. No man can come to that office without
knowmg so much. Few can come without knowing that the ticket is
to be kept and produced when the goods are taken away, a term which
would not be implied by law if the ticket were merely a receipt for the
money, and Mr. Harris did in fact know this.
It is clear that the defendants meant that the ticket should be the
contract ; what more could be required to justify their servants, as
reasonable men, in believing that the person bringing the goods and pay-
ing the money, as part of the same transaction, receiving and carrymg
away the ticket, meant to assent to the terms m the ticket and to m-
duce them to receive the goods on those terms ? I doubt much — inas-
much as the railway company did not authorize their servants to
receive goods for deposit on any other terms, and as they had done
\^} }fZ ^^^P^^ ^- ^•' S<^- ^'^0. (c) 10 H. L. C. 473, at pp. 517-518; 32
(b) 11 M. & W. 483. L. J. (Q. B.) 241, at p. 253.
180 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY.
nothing to lead the plaintiff to believe that they had given such author-
ity to their servants so as to preclude them from asserting, as against
her, that the authority was so limited — whether the true rule of law
is not that the plaintiff must assent to the contract intended by the
defendants to be authorized, or treat the case as one in which there
was no contract at all, and consequently no liability for safe custody :
see Belfast and Ballymena Maihcay v. Keys {a). I thmk, as at present
advised, the proper direction to a jury in such a case as this would be
that, if they believed these imdisputed facts, they ought to find that
the terms were binding on the plaintiff. This we need not decide, but
where I am to act as both judge and juror I have no hesitation in so
finding.
The second question which arises depends entirely on the true con-
struction of the conditions.
If I could agree with my Brother Lush that the meaning of the con-
tract is that the defendants are to place the luggage in some separate
warehouse to which none but the defendants or their servants had ac-
cess, so that the placing them in the vestibule was a breach of contract,
I should be mclined to agree in thinking that the defendants are liable
to make good the loss arising from that breach of contract, on the
principle of Davis v. Garrett (i), that the plaintiff could not qualify his
wrong ; or, as I should prefer to enunciate the same principle, that the
condition reheving them from liability for a loss applies to a loss oc-
curring whilst they are carrying out the contract, not to one incurred
when acting in violation of it. Lyon v. 3fells (c) seems to me to proceed
upon the ground that the condition exempting the owners of the
lighter from liability for any loss, unless such loss was occasioned by
negligence in the master and crew of the vessel, could not be construed
as exempting them from loss occasioned by their own default, and
seems to me not applicable to such a case as the present. Such was
the construction put on that decision by Coleridge and Erie, JJ., in
Chippendale v. Lancashire and Yorkshire My. Co. (d), and I think, by the
Court of Exchequer in McManus v. Lancashire and Yorkshire Ry.Co.{e).
But in the present case I read the contract as being to keep safely,
i. e. with reasonable and proper care in any way which to the defend-
ants seemed best, and to deliver up the goods on the production of the
ticket if brought at the proper office hours to the cloak-room. I do
not think that depositing the luggage in the vestibule would have
been any breach of contract, if the defendants had taken reasonable
precautions to protect the luggage whilst placed in the vestibule from
danger, as, for instance, by leaving a competent person to stand sentry
over them till it was convenient to remove them to a more secure place.
They would, if these parcels were under the value of 5^., be in my
(rt) 9 H. L. C. 556. (ft) 6Bing. 710. (c) 5 East, 428. (r?) 21 L. J. (Q.B.) 22.
(e) 2 n. & N. 702; 27 L. J. (Ex.) 201; 4 H. & N. 327; 28 L. J. (Ex.) 353.
BUEKE V. THE SOUTH EASTERN RAILWAY COMPANY. 181
opinion liable, not because they placed them in the vestibule, but be-
cause they took no care of them when there. I read the contract as
bemg to take reasonable care of the luggage, and to be responsible for
any loss occasioned by that want of care, with, in effect, a proviso that
inasmuch as the remuneration is very small and the loss may be very
great, the defendants shall not be responsible for loss if the goods ex-
ceed 5/. in value, unless the value is declared and paid for. So con-
strued, the condition protects the defendants in the present case.
This question is of much less importance than the first, as the con-
ditions can easily be altered if the intention of the defendants is not
expressed on them, but it would equally decide this particular case.
In my opinion the judgment ought to be for the defendants, and, as
Mellor, J., agrees with me, the judgment of the Court will be for the
defendants.
Judgment /or the defendants.
BURKE V. THE SOUTH EASTERN RAILWAY COMPANY.
In the High Couet of Justice, November 26, 1879.
[Reported in 5 Common Pleas Division, 1.]
Motion for judgment.
Action to recover damages for personal injury caused to the plaint-
iff through the negligence of the defendants.
The trial took place before Cockburn, C. J., and a jury, when it ap-
peared that the plamtiff had taken from the defendants an ordinary
cheap return ticket consisting of a small paper book with eight leaves.
On the cover, or outer leaf, which formed the first page, was printed
the number of the ticket, and the words, " South Eastern Railway
Cheap return ticket. London to Paris and back. Second class.
Available by night-service only. This ticket is available for 14 days,
including the day of issue and expiry. Example. A ticket issued on
the 1st of the month will be available for the return journey up to
and including the 14th. Available for the return journey by the
South Eastern or London, Chatham and Dover Railways." Inside
the cover, that is to say, on the second page, statements were printed
that "The cover without the coupons or the coupons without the
cover, are of no value," and that " Each company incurs no responsi-
bility of any kind beyond what arises in connection with its own
trains and boats, in consequence of passengers being 'booked' to
travel over the railways of other companies . . ." The inside leaves
were coupons, each of which was to be given up at a different stage
of the journey. The plaintiff while travelling under this ticket on a
railway in France was injured through the negligence of the railway
1S2 BUBKE V. THE SOUTH EASTERN RAILWAY COMPANY.
servants. He brought this action against the defendants, and gave
evidence to the effect that, although he had often made the same
journey with similar tickets, he had never read and did not know of
the condition.
The defendants did not dispute the truth of his statement, but
relied on the condition.
The learned judge directed the jury, that if it was brought to his
.notice it would be a defence, and adoptmg a form of question sug-
j gested by the Court of Appeal in Parker v. &outh Eastern Ry. Co. (a),
I asked the jury whether what was done by the company was jc^^on-
j ably sufficient to bring the conchtion^ torthe notice of t he plaintiff.,
TheTurylound'thal'if was not,""and gave their verdict for him with
250Z. damages.
Mclntyre, Q. C. {Barnard, with him), for the plaintiff. On the find-
ing of the jury the plaintiff is entitled to judgment. Henderson v.
Stevenson (b) is m point. There was in that case a contract on the
face of a ticket, with no reference to a condition on the back, and the
House of Lords held that the passenger who had not looked at the
back was not bound by the condition. The judgment of Lord Cairns,
C. (c) is conclusive in favor of the present plaintiff.
[LoED Coleridge, C. J. I thought that I followed Henderson v.
KStevenso7i (b) in Parker v. South Eastern By. Co. (d) but that case
was overruled by the Court of Appeal, where Bramwell, L. J., gave a
judgment, based on reasoniug which seems to me unanswerable, in
favor of the defendants.
The condition must be brought to the traveller's notice. The Lord
Justice agrees that if the question whether the plauatiff ought to have
read the condition is one of fact it should be left to the jury, but, no
doubt, suggests that it is a question of law. In Barker v. South East-
ern By. Co. (d) the words " See back" were on the face of the ticket.
Here, however, there was nothing to call the attention of the plaintiff
to the condition on the inside of the cover. He did not read it and
" was certainly under no obligation to read the ticket, but was entitled
to leave it unread if he pleased": see per Mellish, L. J., at p. 423.
The contract was that he was to be carried to Paris and back and to
deliver the coupons at the different stages of the journey.
[LiNDLEY, .T. Harris v. Great Western By. Co. (e) was a contempo-
raneous case, but decided contrary to Parker'' s Case {d).
Lord Coleridge, C. J. Both the Queen's Bench Division in the
one case and the Court of Appeal in the other, while admitting the
authority of Henderson v. Stevenson (6), distinguish it for various
reasons].
(a) 2 C. P. D. 410. (},) Law Rep. 2 IT. L. (Sc.) 470. (c) Law Rep. 2 IT. L. (Sc. ) 475.
(J) 1 C. P. D. GIS; 2 C. P. D. 410, at p. 426. (t) 1 Q. 13. D. 515.
BURKE V. THE SOUTH EASTERN RAILWAY COMPANY. 183
It governs the present case.
/Sir IT. Giffard^ S. G. {A. M. B. Bremner with him) for the defend-
ants was not heard.
Lord Coleridge, C. J., after stating the case and the terms of the
ticket continued : — The defendants say that the injury complained of
having happened La France, and beyond the limits of their own line,
they are not responsible. Primd facie that would be a complete an-
swer to the action, but the Lord Chief Justice, who tried the case, having
before him various decisions of this and other Courts on the subject
of the responsibility of railway companies when they issue prmted
contracts, took the opmion of the jury on certain points, one of which
was, whether there was reasonably sufficient notice of this term of the
contract given by the defendants to the plaintiff, and the jury found
in the negative. For the purposes of this decision the jury may be
taken to have fomid that the plaintiff did not know of the condition-
Certainly there was no affirmative evidence to show that he had read
or knew of this term. In my opmion it does not much matter which
form of expression, viz., " term," or " condition," is used. I will take
the finding of the jury most strongly against the defendants, and as-
sume that the plaintiff was admitted not to have read and not to know
of this condition, however improbable such a state of things was, and
I will decide as if I believed it, whether I do or do not. The ques-
tion is. Does that, under the circumstances, afford any defence ? In
my opinion it affords none. The contract, as I understand it, can
only be this little book, and the whole of this little book. This is the
contract, and these are the terms on which the defendants agreed to
take the plaintiff' to Paris and back, and in an ordinary case that
would be conceded. But it is supposed that on this peculiar subject
of railway passenger, the contrary has been decided by the decision
of the highest tribunal. I should, of course, submit to follow the au-
thority of the case of Henderson v. Stevenson (a), if it applied, whether
I agreed with it or not, and should indeed have no power to do other-
wise than to decide in accordance with it. It was attempted to
assimilate this case to Henderson v. Stevenson («), which shortly
stated was this : There was a contract to take a passenger from Dub-
lin to Whitehaven, and a condition printed on the other side. On the
same side of the paper or card on which « Dublin to Whitehaven"
was printed, there v/as no reference at all to what was printed on the
other. It was admitted that if both sides were taken as the contract,
the defendants were entitled to succeed, but it was said that one side
only was to be taken as the contract, because there was no reference
to the other side, and that the jury must be taken to have found that
the plaintiff had a right to assume, and did assume, that the one side
(a) Law Rep. 2 H. L. (Sc.) 470.
'184 BURKE V. THE SOUTH EASTERN RAILWAY COMPANY.
contained the whole contract, and the terms on which he was agree-
ing with the defendants. That case was one of a bailment of luggage
to the defendants for reward, and on the face of the paper there
would arise an ordinary common law contract. The House of Lords
held, in effect, that there was no evidence to show that any other
than the common law contract had been entered into by means of
that piece of paper. The decision is based on the view which the
House of Lords took of the facts. The House of Lords assumed that
the whole contract was contained on the one side of the one piece of
paper. Now, if the House of Lords would have come to the conclu-
sion that the contract in such a case as this was really limited by the
first side of the first leaf of these pages then- decision in Henderson v
/Stevenson (a) would be bmding on us. But I think the facts here
are entirely different, and I see the widest distinction between the
facts of the one case and the other. Here is a small book with many
pages, and it is admitted that the whole of the leaves are, during the
continuance of the contract, to be made use of, and the passenger can-
not turn over the first sheet and make use of the first coupon without
ha^ang under his eyes the condition on which the defendants rely. It
cannot be contended that the first sheet forms the whole contract be-
cause it was admitted that the coupons form part of the contract.
Then if the fii'st page and all the coupons form part of the contract,
on what ground is page two to be rejected ? The defendants might
fairly say : " This is the contract, we contract on no other terms than
these, the plaintiff has taken this contract. Fraud is not suggested,
and by the ordinary application of eyesight he might have seen the
condition." The mere fact of his not choosing to read, or even of his
not having read the term, which was not concealed from him, is no
ground whatever for rejecting that any more than any other part of
the contract. So, bond fide accepting and not presuming to doubt the
authority of Henderson v. Stevenson (a) in cases brought withm it by
their facts, I am of opinion that this case, at least, is not within it.
We are asked to say that the condition is not part of the contract, be-
cause there is not written in large letters at the bottom of the first
page, " liead the next page." This in effect is the contention of the
plaintiff. There is neither principle nor authority for such a proposi-
tion, and T think that the defendants are entitled to judgment.
LixDMOY, .1. I am of the same opinion. The question depends en-
tirely on the answer to the inquiry. What was the contract, if any,
into which the parties entered ? The only contract entered into was
thus formed : tlie plaintiff ])ai(l a sum of money for a journey to Paris
and back, and he received this ticket. The jury have not found what
the contract was, the question was not put to them in that shape, but
they may be assumed to have found that the plaintiff did not know
(a) Law Rep. 2 II. L. (Sc.) 470.
WATKINS V. RYMILL. 185
of the restrictive condition, and they have found that sufficient notice
of it was not given to him. That leaves open the question what was
the contract ? Can the plaintiff make out a contract without that
condition? I think it impossible for him to do so. If the jury had
found that the contract was what was printed on the first page or on
the coupons without the cover, the verdict would be so manifestly
against the evidence that it could not stand. But they have not so
found. I think that the answer to the question, What was the con-
tract ? is, " Here, in this small book, is the contract." The facts of
Henderson \. Stevenso7i, s^<^>ra, were different. On the face of the card in
that case was, " Dubhn to Whitehaven," and nothing else, and on the
back a condition. The House of Lords, as it were, split it in two,
and said there was room to find that the contract was what appeared
on the face of the card. But it would be impossible to split this con-
tract up. It does not admit of it. Its physical form is altogether
different. On these grounds I think that the plamtiff is not entitled
to judgment and that the defendants are, because the plaintiff cannot
sue on a contract and ignore one of the terms.
Judgment for the defendants.
WATKINS V. RYMILL.
In the High Court of Justice, December 18, 1882, January 16, 1883.
\^Beported in 10 QueerCs Bench Division^ 178.]
Rule calling on the plamtiff to show cause why the verdict found
for him in the Mayor's Court, London, should not be set aside and a
verdict entered for the defendant, or why a new trial should not be
had on the ground of misdirection.
Dec. 18. e/i «/". Sims^ showed cause.
J. A. McLeod^ Q. C. {C. Hall^ Q. C, and Dickens^ with him), in sup-
port of the rule. ^.
Cur. adn.vult.
The facts and arguments sufficiently appear in the judgment.
Jan. 16. The judgment of the Court (Hawkins, J., Stephen, J.
and Watkin Williams, J.), was delivered by
Stephen, J. This case was argued before my Brothers Hawkins
and Watkin Williams, and myself, at the last Sittmgs, on a rule to
show cause why the verdict found in the Mayor's Court for the plaint-
iff should not be set aside and a verdict entered for the defendant,
or why a new trial should not be had on the ground of misdirection.
The facts of the case were as follows : The plamtiff was the owner
of a wagonette and the defendant was the keeper of a repository for
the sale on commission of horses, carriages, and harness. On the 11th
of May, 1878, the plaintiff took the wagonette to the repository and
186 WATKINS V. RYMILL.
left it to be sold, receiving for it a receipt on a printed form which was
in these words : " Herbert Rymill's Royal Repository, Barbican, for
the sale of horses, carriages, harness, &c. Sales by auction every
Tuesday and Friday at 11. Received from , subject to the con-
ditions as exhibited 0)1 the premises " (these words were italicized). " The
proceeds paid on Monday between the hours of eleven and four upon
the production of the receipt signed by the owner, or forwarded by
post if desired."
The conditions exhibited on the premises were printed conditions,
exhibited in conspicuous positions in many parts of the premises. The
followuig were the conditions bearing uj)on the present case : —
"10. Should any horse or other property sent to this repository
remain over one month the proprietor shall be at liberty to sell the
same by public auction only, with or without notice to the owner, un-
less all expenses are previously paid. All horses, carriages, carts, &c.,
sent to this repository for sale remain at the risk of the owner."
Amongst the terms were the following : —
"Two shillings and sixpence per week standing for four wheel
carriages and Hansom cabs. . . . Two shillings and sixpence for wash-
ing each carriage.
" No horses or other property allowed to be taken away until the
keep, sale, and other expenses are paid."
The plaintiff swore that he did not read the receipt, but put it in
his pocket without noticing it. About a month after leavuig the
wagonette the plaintiff called and asked after it. He was told (but
not so far as it appeared by the manager or by any person authorized
to tell him) that the wagonette was sold, and that the settlmg day
was Monday. He returned on Monday and saw the manager, who told
him he must bring the receipt. He said he had lost it, but that they
must have his name on their books. They refused to go into the
matter without the receipt. The receipt was not fomid until the 25th
of October, 1881, and during this time the plaintiff took no steps except
calling two or three times to make inquiries. In November, 1881, the
plaintiff through his solicitor applied for the wagonette, and found
that it had shortly before been sold for 9^. 19s. 6f?., of which the whole
except 6s. lOd. was due for charges under the terms stated in the con-
ditions quoted. The defendant sent the plaintiff a post office order for
16.S. lOd., mistaking the amount of his charges, and thus considered
himself to have overpaid him.
The defendant's counsel argued that the Common Serjeant, who sat
as judge, ought to direct the jury on these facts to find for the defend-
ant, but the Common Serjeant held that the question was one " for the
jury whether th e defendant had qrJi;uijio±_givjeiL.tJ plain tiff reas on-
^le notice oi .the conditions." This (juestion tlie jury answered in the
negative, and gave a verdict for the plaintiff for 2U.
W ATKINS V. RYMILL. 187
The question whether the direction given to the jury was correct
depends upon a review of a variety of authorities which it is not
altogether easy to reconcile. We will examine them in the order of
their dates. Passing over earlier decisions which bear upon the sub-
ject indirectly, we may notice first the case of Van Toll v. Soicth Eastern
By. Co. (a), decided m 1862. In this case it was decided in substance
that a person who deposited a bag at a cloak-room was boimd by a notice
printed on the back of a ticket which she received when she made the
deposit and produced when she demanded the bag, which had been
given to another person. In this case Erie, C. J., based his judgment
for the defendants on the fact, amongst others, that the defendants had
used aU reasonable means to make known to the depositors, and among
them to the plaintiff, the terms on which they received deposits.
Willes, J., said (b): " Assuming that the plamtift' did not read the terms
of the conditions, it is evident that she knew that they were there,
and that she was satisfied to leave the goods upon those terms. The
obvious result of this is that either she must be taken to have assented i
to the terms, or, if she did not assent, she knew that there were terms 1
which the railway company intended to stipulate for."
The next is Lewis v. McKee (c). The facts of this case were dis-
similar to the other, and need not be stated ; but in the course of his
judgment upon them, which was that of the Exchequer Chamber,
Willes, J., restates the principle mvolved in Van Toll v. South Eastern
By. Co. {a) in such a way as to imply (though he does not exactly state)
that upon the delivery by one of two contracting parties to the other
of a wi'itten document stating the terms on which the party who pro-
duces it proposes to contract, the other party acts at his peril if he does \
not read it. I
The next case in order of time is Zunz v. Smith Eastern By. Co. {d)
decided in 1869. In this case the railway company sought to protect
themselves against liability for the loss of a passenger's luggage be-
tween Calais and Paris by a condition prmted on a ticket to Paris ex-
empting themselves from liability for losses off their own line. The
Court of Queen's Bench were unanimously of opinion that the condition
on the ticket was part of the contract, and Cockburn, C.J. (e), laid down
the law as follows : " However harsh it may appear in practice to hold a
man liable by the terms and conditions which may be inserted in some
small print on his ticket, which he only gets at the last moment after
he has paid his money, and when nine times out of ten he is hustled
out of the place at which he stands to get the ticket by the next
comer — still we are bound by t he authorities to hold that when a man
takes a ticket with conditions on it, he must be presumed to know the _^ \
conteSfsof Tt and to be bound by them.''
(a) 12 C B. (X. S.) 75. [h] 12 C. B. (N.S.) at p. 87. (c) Law Rep. 4 Ex. 58.
((() Law Kep. 4 Q. B. 539. ( e) Law Rep. 4 Q. B. at p. 544.
j^gg WATKINS V. RYMILL.
Cockburn, C. J., does not say to what authorities he referred: prob-
ably Van Toll v. South Eastern By. Co. and Lewis v. McKee {supra),
would be two of them. They are the strongest eases in that dkection
which we have been able to find, though they do not appear to have
been cited in the argument, which turned to a great extent upon other
*^ However this may be, the principle thus stated would be sufficient
to decide this case if the decision stood alone. It is m some respects
a stronger case agamst the defendant than the present one, as the
power of railways to impose conditions on passengers is to a considerable
extent limited by statutes which have no application to the case ot re-
positories. There have, however, been several subsequent decisions
which, though not inconsistent withZimz v. South Eastern By. Co. (a),
show that it cannot be regarded as a complete statement of the law.
The first of these which may be noticed is Henderson v. Stevenson
(b) decided m 1875. In this case a passenger by a steamboat took a
ticket on the face of which appeared the words "Dublm to White-
haven. " On the back were the words, « The company mcurs no lia-
bility m respect of loss, mjury, or delay to the passenger or to his lug-
gage, whether arismg from the act, neglect, or default of the company
orttieir servants or otherwise." There was no reference on the front
of the ticket to the back of it, and the plaintiff swore that he did not
look at it. It was held that the notice did not affect the company's
liability. The facts of the case were so pecuhar that it can hardly
form a precedent for any other. It certainly does not appear that the
steamboat company were guilty of fraud, but it does appear that they
attempted to rid themselves of a common law liabUity by annexing
to their contract to carry a condition most unusual m itself, and to
which the course adopted by them would not naturaUy call the atten-
tion of the other party to the contract. The principle upon which the
case was decided is expressed m a very few words by Lord Cairns (c),
« The question does not depend upon any technicality of law or upon
any careful exammation of authorities. It is a question simply of
common sense. Can it be held that when a person is entermg into a
contract containing terms which de facto he does not know, and as
to which he has received no notice, that he ought to inform himself
upon them ? (the words " he is to be bound by those terms," or some
equivalent, appear to have dropped out of the report). « It appears to
me impossible that that can be held." It may be added that though
the case was decided mainly on this ground, several of their Lordships,
and in particular Lord Chelmsford and Lord Hatherley, entertained
doubts as to the right of the defendants to attach such a condition as
the one in question to the contract to carry. Lord Chelmsford says
« that of course a person may if he chooses take the whole risk of the
(a) I.avv Hep. 4 Q.15. 539. {b) Law Rep. 2 H. L., Sc. 470.
(c) Law Itep. 2 H. L. Sc. at p. M'>,
WATKINS V. RYMILL. 189
voyage on himself, but the company by a mere notice without such
assent can have no right to discharge themselves from performing
what is the very essence of their duty."
The circumstances of the present case have an analogy to those of
Henderson v. Stevenson (a). The notice was printed on the face of the
receipt, and formed a prominent part of it. The circumstances of the
contract were such that any man of ordinary intelligence must
have known that special terms as to its execution must in the nature }
of things be made, and it appears to us that by handmg to the plaintiff
the receipt in question the defendants called his attention to the sub-
ject as pointedly as if their clerk had said " Read this. It expresses
the terms on which we are ready to take your wagonette."
The next case to be considered is Harris v. Gi-eat Western Ry. Co. (J),
decided in 1876. In this case the luggage of a person who had been
a passenger by the Great Western Railway was deposited by her
brother on her behalf with the servants of the railway at the cloak-
room, and the depositor received a ticket which on its face enumerated
the articles received, stated the charge at '2d. for each, and ended with
these words, " Left in the name of , and subject to the conditions
on the other side." On the back were conditions, one of which limited
the liability of the company to f>l. for each package, unless a certain
higher rate were charged. The person who deposited the articles said
that he did not read the conditions on the back of the ticket, but ad-
mitted that he " believed there were some conditions."
The judges of the Queen's Bench Division held that the plaintiff
was bound by the conditions on the back of the ticket. The judg-
ment of Lord Blackburn in this case seems specially worthy of atten-
tion, though there was no difference of opinion in the Court.
Lord Blackburn elaborately distinguishes the case from Henderson
V. Stevenson {a) on grounds similar to those which we have already
stated. The shortest expression of his view is on p. 531. He there says
that in Henderson v. Stevenson (a) there was nothing to show that the
steamboat company would believe from the conduct of the passenger
that he had represented to them that he had read or looked at the
back of the ticket, and in point of fact he had not. In the following
page Lord Blackburn states the reasons which led him to the con-
clusion that in the case then before him the plaintiff's agent, " by
depositing the goods and taking this ticket, did so act as to assert to
the defendants that he had looked at and read the ticket, and ascer-
tained its terms, or was content to be bound by them without ascer-
taining them, and so induced them to enter into the contract with
him ui the belief that he had assented to its terms." One principal
reason for this conclusion is as follows (c) : " The defendants as a
railway company are not bound to receive goods at all for custody ;
(a) Law Rep. 2 H. L., Sc. 470. (6) 1 Q. B. D. 51a (c) 1 Q. B. D. at p. 533.
190 WATKINS V. EYMILL.
they give notice that they will not receive them by any of their ser-
vants in general, but anyone wishing to deposit goods with them must
goto a particular office, there pay the proper remuneration, and receive
a ticket. No man can come to that office without knowing so much.
Few can come without knowing that the ticket is to be kept and pro-
duced when the goods are taken away, a term which would not be
implied by law if the ticket were merely a receipt for the money, and
Mr. Harris did in fact know this. JDys_clear that the defenda nts
meant that the ticket should be the contract ; what more couldHSfe
reqtIlffed"to°7iistIf5^T^f^efv^^^ "reasoiiable men in believing that
the person bringing the goods and paying the money as part of the
same transaction, receiving and carrymg away the ticket, meant to
assent to the terms in the ticket, and to induce them to receive the
goods on those terms ? "
It is obvious that, mutatis mutandis^ every word of this would
apply to the present case. The only remaining point in this case
which requires notice is that Lord Blackburn observes : " I think as
at present advised the proper direction to a jury in such a case as this
would be that if they believed these undisputed facts they ought to
find that the terms were binding on the plaintiff. This we need not
decide, but where I am to act both as judge and juror," the Court had
the power to draw inferences of fact, " I have no hesitation in so find-
ing."
This case appears to us to be precisely in point in reference to the
matter now before us, except as to the question whether the Com-
mon Serjeant ought to have directed a verdict for the defendant, as to
which Lord Blackburn's expression of opinion is only a dictum. It is
however necessary to refer to two other cases m order to show that
they do not mterfere with this view.
The first of these is Parker v. South Eastern By. Co. (a) which was
decided in 1877. GabellY. South Eastern By. Co. (a) was decided at
the same time by the same judgment, the facts and directions given to
the jury being identical in the two cases.
The facts m each case closely resembled those of Harris v. Great West,
em Ry. Go. (b). In each case a bag- was left at a cloak-room, 2d, was
paid and a ticket received, which had printed upon it the words " see
back." On the back were conditions, of which one was, " The com-
pany will not be responsible for any package exceeding the value of
10^." Each plaintiff denied that he had read the words on the ticket
or seen a printed notice to the same effect hungup in the cloak-room.
In each case the judge asked the jury (1) Did the plaintiff read or
was he aware of the condition ? (2) Was the plaintiff under the cir-
cumstances under the obligation in the exercise of reasonable andproj)-
er caution, to read or make himself aware of the condition ? In each
11 (a) 2 C. p. D. 416. (b) 1 Q. B. D. 515.
WATKINS V. KYMILL. 191
case the jury answered both questions m the negative. In each
a rule for a new trial or for judgment was refused by the Divisional
Court, and in each the case came before the Court of Appeal. Of the
three judges who heard the case, Mellish, L. J., held, that there had
been a misdirection, because the jury had not been as ked_whe thgrjfche
railway company did what waa..reasonably sufficient to give the plaint-
iff notice of the condition. Baggallay, L. J., was of the same opinion,
though he expressed it somewhat differently, but each of these learned
judges appears to have been of opinion that the importance to be at-
tached and the effect to be given to a document of this nature must
depend upon the character of the particular contract which it is alleged
to constitute. As extreme cases, Mellish, L. J., suggests on the one
hand the case of a turnj)ike ticket which a person driving through
the gate on paying the toll would naturally not read, and on the other
hand that of a bill of lading on which a person shipping goods would
be held liable, although he might swear that he had never read it and
did not believe it to contain conditions as to the terms of the contract
of carriage. Lord Bramwell, then Lord Justice, took a view much
more decisively in favor of the defendants. The case he said was pre-
cisely the same as if the defendant's servants had in so many words
asked the plaintiEfs to read the tickets, m which case as he says the
plaintiffs would have to take the consequences if they did not
read. "Why is there printmg on the paper," he said, "except
that it may be read ? " The putting of it into their hands was equiva-
lent to saymg, "Read that?" "Could the defendants practically do
more than they did." He sums up his judgment thus. " The de-
fendants put mto the hands of the plaintiff a paper with printed
matter on it which in all good sense and reason must be supposed to
relate to the matter in hand. This prmted matter the plaintiff sees
and must either read it and object to it if he does not agree to it, or if
he does read it and not object or does not read it, he must be held to
consent to it."
Lord Bramwell would upon these grounds have given judgment for
the defendants, but he agreed that there ought at least to be a new
trial. If the judgment of Lord Bramwell in Parker v. South Eastern
By. Co. (a) is accepted it appears to us to be an authority directly in
point in favor of the defendants in the present case, but the other two
judges took a somewhat different view of the subject, and Melhsh, L.
J., suggested the question which he considered proper for the jury.
This question differs considerably from the one actually put by the
Common Serjeant in this case. It is one thing to ask whether a de-
fendant has done what is reasonably sufficient to give the plamtiff
notice of a condition, and quite another to ask (as the Common Ser-
jeant did) whether he has given him reasonable notice.
The latest case on the subject, and the last which we need notice,
(a) 2 C P. D. 416.
192 WATKINS V. EYMILL.
is JSurke v. South Eastern By. Co. (a), decided in 1879. In this case
the plaintiff took a ticket from London to Paris from the defendants.
On the outside of the cover was " Cheap return ticket London to Pars
and back, second class," and other matter, but no reference to the in-
side of the cover. On the inside was a condition limiting the responsi-
bility of the defendants to then? own trams. The plamtiff was injured
while travelling in France. He sued the defendants, and said he had
not read the condition and did not know of it. Cockburn, C. J., asked
the jury the question suggested in Parker v. /South Eastern By. Co.
(supra), and they answered it in favor of the plaintiff. The defendants
moved to have judgment entered for them and this was done, the
Divisional Court holding that the book was the contract, and that the
condition was an mdivisible part of it. The judgment in this case
, can hardly be supported by any principle short of that laid down in
^ 2^mz V. /Soicth Eastern By. Co. (b), if mdeed it does not go further.
Such being the state of the authorities, the question is how they
bear on the case now to be decided. In a few words the matter ap-
pears to us to stand thus.
The cases relevant to the matter are in order of date : Zunz v. /Sotith
Eastern By. Co. (b) ; Harris v. Great Western By. Co. (c) ; Barker v.
/South Eastern By. Co.{supra) ; and Burke v. South Eastern By. Co. (a).
All of them are in favor of the defendant except Parker v. South East-
ern By. Co.{supra), and of the three judgments in this case that of Lord
Bramwell is directly in the defendants' favor. To a certain extent the
judgments of Mellish and Baggallay, L. J J., are in favor of the plaint-
iff, as they treat the question whether reasonable means to give notice
were employed by the defendants as one of fact for the jury, though
in another way they are unfavorable as they suggest as the question
for the jury one which m this case was not put to them. It must be
remembered that the precise question before the Court in Parker v.
South EdsternBy.Co. (supra) was not whether the question in that case
was one of law or of fact, but whether the questions put to the jury by
the learned judges at N^isi Prhcs were proper, which, as all the Court
agreed, they were not.
It must also be observed that ui Parker v. South Eastern By. Co.
(supra), the question before the Court related to the common law con-
tract of the bailment of goods for safe custody, the nature of which is
well known in the absence of special terms agreed to by the parties.
The present case relates to a contract of a different kind, namely, tlie
deposit of an article for sale on commission, as to which the terms must
necessarily depend upon the agreement of the parties, as none are as-
certained by the common law. Besides all the judges in Parker v.
South Eastern By. Co. (supra), agreed that the effect of the delivery of
(a) 5 C. P. D. 1. (b) Law Kep. 4 Q. B. 539. (c) 1 Q. 13. D. 515.
WATKLNS V. RYMILL. 193
a document stating terms must depend on the nature of the contract
to which it related.
We now proceed to state the principles which we deduce from this
exammation of the authorities and to apply them to the case before
us. Thrown into a general form the result of the authorities con-
sidered appears to be as follows : A great number of contracts are in
the present state of society made by the delivery by one of the con-
tractmg parties to the other of a document in a common form, stating
the terms by which the person delivermg it will enter into the pro-
posed contract. Such a form constitutes the offer of the party who
tenders it. If the form is accepted without objection by the person to
whom it is tendered this person is as a general rule bound by its con-
tents, and his act amounts to an acceptance of the offer made to him
whether he reads the document or otherwise informs himself of its
contents or not. To this general rule however there are a variety of
exceptions.
(1.) In the first place, the nature of the transaction may be such
that the person accepting the document may suppose, not unreasona-
bly, that the document contains no terms at all, but is a mere acknowl-
edg-ment of an agreement not intended to be varied by special terms.
Some illustrations of this exception may be found in the judgments
in Parker v. South Eastern By. Co. («), and in the language of some
of the Lords in Henderson v. Stevenson (b\ though these must be re-
ceived with caution for reasons given by Lord Blackburn in his judg-
ment in Harris v. Great Western My. Co. (c).
(2.) A second exception would be the case of fraud, as, if the con-l
ditions were printed in such a manner as to mislead the person ac-1
cepttng the document.
(3.) A third exception occurs, if, without being fraudulent, the I
document is misleading and does actually mislead the person who has \
taken it. The case of Henderson v. Stevenson (b) is an illustration of this. \
(4.) An exception has been suggested of conditions unreasonable
in themselves or irrelevant to the main purpose of the contract. Lord
Bramwell suggests some illustrations of this in his judgment in Par-
ker V. South Eastern By. Co. (a). One is the case of a ticket having
on it a condition that the goods deposited in a cloak-room should be-
come the absolute property of the railway if not removed in two days.
We are aware of no absolute decision on this point, nor is it material
to the present case.
We now come to apply these principles to the case before us. It is
obviously within the general rule. Can it be brought under any of
the exceptions ? The only one which can apply to it is the one which
we have put first. Can it be said that the nature of the transaction
(a) 2 C. P. D. 416. (b) Law Kep. 2 H. L., Sc. 470. (c) 1 Q. B. D. 515.
Vol. I— Ig
194 VYATKEf* V. RYMILL.
was such that the plamtiff might suppose, not unreasonably, that the
document contamed no terms at all, but was a mere acknowledg-ment
of an agreement not mtended to be varied by special terms.
It seems to us impossible to suppose that this can have been the
case. The acceptance of a carriage for sale on commission is not a
simple contract, the terms of which are established by the common
law in the absence of any special agreement by the parties. They
must, from the nature of the case, be as special as those of a contract
of lease or a bill of lading, and this consideration alone seems to us to
establish the conclusion that the receipt and conditions to which it
refers constituted the contract between the parties, and that the learned
Common Serjeant misdirected the jury when he told them that the ques-
tion was whether the defendant had given reasonable notice to the plaint-
iff of the conditions. We may observe that m no view of the case could
this direction be upheld. If any question at all were asked it ought
to have been whether the defendant took reasonable means to give
notice of the conditions to the plaintiff, which is a very different one
from that which was actually put to the jury.
This brings us to the last question in the case. Ought we to enter a
verdict for the defendant or to send the case back for a new trial in
order that the question suggested by Mellish, L. J., may be put? We
think that we ought to enter judgment for the defendant. The ques-
tion suggested by Mellish, L. J., may be proper in cases falling mider
what we have called the first exception to what we apprehend to be
the general rule, but this, in our judgment, is not one of those cases.
It resembles rather the cases of 7junz v. South Eastern My. Co. {a) and
Burke v. South Eastern By. Co. (b), in which the ticket itself was held
to be the contract. It is in some cases dhficult to say what is a question
of law and what is a question of fact, but in this case a test may be
applied which to us seems conclusive. Suppose that the case were
sent for a new trial and that the jury, on the undisputed facts, were
to find that the defendant had not taken reasonal)le means to give
notice of the conditions to the plaintiff, would it not be our duty to
set that verdict aside as being in direct opposition to the evidence ? as
being a verdict which, upon the evidence, no intelligent men could
justly return ? We think it would, and that being so, it seems to fol-
low that the question is one of law and not of fact. It is, in one sense,
a question of fact, but it is a question of fact to which, by law, one an-
swer only can be given, and this is the same thing as a question of law.
Tills may be shown by stating it specifically. The only question Avhich
can be called a question of fact is, whether giving a man a printed
paper plainly expressing the conditions on which a keeper of a reposi-
tory is willing to accept a carriage for sale on commission is or is not
(a) Law Rep. 4 Q. B. 539. . (b) 5 C. P. D. 1.
WEEK V. TIBOLD. TAYLOR V. BREWER.
195
equivalent to asking the owner of the carriage to read that paper,
with intent that he should read it when he has a fair opportunity of
doing so. This, we think, is a question of law, to be answered in the
affirmative.
As the result, the verdict and judgment for the plaintiff for 21/., will
be set aside, and the verdict entered for the defendant, with costs.
Judgment fw the defendant
WEEK V. TIBOLD.
In the King's Bench, Trinity Term, 1605.
{Rollers Abridgement, 6.]
If there be a communication between A's father and B respecting a
marriage to be had between A and the daughter of B, and B then
affirms and declares {affirme and^yublish) to A's father that he, B, will
give to the man who marries his daughter with his consent £100, and
A afterwards marries B's daughter with his consent ; yet this affirma-
tion and declaration of B does not raise a promise on which an action
of assumpsit can be maintained, for the words spoken do not include
any promise.
Yelverton, in a note of this case (a), gives as one of the grounds of
the decision, " it is not reason that the defendant should be bound by
such general words, spoken to excite suitors."
TAYLOR AND ANOTHER, ASSIGNEES OF WALSH,— A
BANKRUPT, agai7ist BREWER AND OTHERS.
In the King's Bench, May 8, 1813.
[Reported in 1 Maule and Selwyn, 290.]
Assumpsit to recover a compensation for work done by the bank-
rupt. The defendants composed a committee for the management
of the sale of lottery tickets, and the bankrupt was employed in go-
ing backwards and forwards upon their business. The plaintiffs
founded their claim to compensation on the following resolution of
the committee : 4th January, 1810, at a meeting, &c., present. Brewer
etc., Resolved, that any service to be rendered by Walsh shall after
the third lottery be take7i into consideration^ and such remuneration
he made as shall be deemed right. Lord Mle7iborough, C.J. was of opin-
ion at the trial, that under this resolution it was optional in the com-
mittee to remunerate the bankrupt or not, according as they should
t hi n k right, and therefore nonsuited the plaintiffs.
(a) Yelv. 11.
196 WINN V. BULL.
Fark moved to set aside the nonsuit, on the ground that the bank-
rupt was entitled to some recompense ; inasmuch as an agreement
with a person that he should do work, and should have what is right
for it, did not import that he should have nothmg for his trouble
if his employer should be so mmded, but that he should have a rea-
sonable reward : it should have been left therefore to the jury to
consider what was reasonable, as was done m Peacock v. Pea-
cock (a).
Lord Ellenborough, C. J. In that case the defendant expressly
told the plaintiff that he should have a share m the busuiess, leavmg
only misettled what particular share he was to have : but here, I
own it struck me, was an engagement accepted by the bankrupt on
no definite terms, but only in confidence that if his labor deserved
anything he should be recompensed for it by the defendants. This
was throwmg himself upon the mercy of those with whom he con-
tracted ; and the same thing does not unfrequently happen m con-
tracts with several of the departments of government.
Grose J. I consider the resolution to import that the committee
were to judge whether any or what recompense was right.
Le Blanc, J. It seems to me to be merely an engagement of
honor.
Bayley, J. The fair meaning of the resolution is this, that it was
to be in the breast of the committee whether he was to have anything,
and if anything, then how much.
Hule refused.
WINN V. BULL.
In the High Court of Justice, November 19, 1877.
[ Reported in 7 Chancery Division, 29.]
On the 16th of March, 1877, the Plamtiff and Defendant entered
into and signed the following agreement for a lease of a freehold
house belonging to the Plaintiff : —
"An agreement entered into between William Winn (the Plain-
tiff) of the one part, and Edward Bull ( the Defendant ) of the other
part : whereby the said William Winn agrees to let and the said
Edward Bull agrees to take on lease for the term of seven years
from the 9th day of May, 1877, the dwelling-house and premises
known as ' Westwood,' situate in the Avenue, Soutliampton, as the
same were lately in the occupation of Mrs. Sullivan, at the yearly
rent of £180, the first year's rent to be allowed to the said Edward
Bull and to be laid out by him in substantial repairs to the prop-
erty. This agreement is made subject to the preparation and ap-
proval of a formal contract."
(a) 2 Camp. N. P. C. 45.
WINN V. BULL. 197
No formal or other contract was ever entered into between the
parties.
The Plamtiff's solicitor subsequently sent the Defendant's solicitor
a draft of the proposed lease containing covenants on the part of the
Defendant to keep the premises in repair.
The Defendant objecting to take a lease in this form, a correspon-
dence passed between the parties, which resulted in the Plaintiff in-
sisting that the lease should remain substantially in its original form,
whereas the Defendant contended that its terms were contrary to the
intention of the agreement, and he ultimately refused to take a lease
at all. The Plaintiff thereupon brought this action, claiming specific
performance of the agreement.
In his statement of defence the Defendant reUed upon the Statute
of Frauds, alleging that the agreement was conditional only, and
that no final agreement for a lease was ever reduced into writmg or
signed by him or his agent withm the meaning of the statute.
The Plaintiff then joined issue, and the action now came on for
trial.
Chitty Q.C., and Jolliffe^ for the Plaintiff, contended that the agree-
ment was suflQciently clear in its terms ; that it was equivalent to an
agreement for a lease containing " usual covenants," which would in-
clude a covenant to repah* ; and that the final clause meant nothing
more than that the parties should be bound m a more formal manner.
They referred to Bossiter v. Miller («), Crossley v. May cock (6), and
Chinnock v. Marchioness of Ely (c).
Roxburgh^ Q.C., and Maidlmo^ for the Defendant, were not called
upon.
Jessel, M.R. : —
I am of opinion there is no contract. I take it the principle is
clear. If in the case of a proposed sale or lease of an estate two per-
sons agree to all the terms and say, " We will have the terms put into
form," then all the terms being put mto writing and agreed to, there
is a contract.
If two persons agree in writing that up to a certain point the terms
shall be the terms of the contract, but that the minor terms shall be
submitted to a solicitor, and shall be such as are approved of by him,
then there is no contract, because all the terms have not been settled.
Now with regard to the construction of letters which are relied
upon as constituting a contract, I have always thought that the au-
thorities are too favorable to specific performance. When a man
agrees to buy an estate, there are a great many more stipulations
wanted than a mere agreement to buy the estate and the amount of
purchase-money that is to be paid. What is called an open contract
(a) 5 Ch. D. 648. (6) Law Rep. 18 Eq. 180. (c) 4 D. J. & S. 638.
198 WINN V. BULL.
was formerly a most perilous thing, and even now, notwithstanding
the provisions of a recent Act of Parliament — the Vendor and Pur-
chaser Act, 1874 - no prudent man who has an estate to sell would sign
a contract of that kind, but would stipulate that certain conditions
should be inserted for his protection. When, therefore, you see a
stipulation as to a formal agreement put into a contract, you may
say it was not put in for nothing, but to protect the vendor against
that very thing. Indeed, notwithstanding protective conditions, the
vendor has not unfrequently to allow a deduction from the purchase-
money to mduce the purchaser not to press requisitions which the
law allows him to make.
All this shows that contracts for purchase of lands should contain
something more than can be found in the short and meagre form of
an ordinary letter.
When we come to a contract for a lease the case is still stronger.
When you bargain for a lease simply, it is for an ordinary lease and
nothing more ; that is, a lease contaming the usual covenants and
nothing more ; but when the bargam is for a lease which is to be
formally prepared, in general no solicitor would, unless actually
bound by the contract, prepare a lease not containing other covenants
besides, that is, covenants which are not comprised in or understood
by the term "usual covenants." It is then only rational to suppose
that when a man says there shall be a formal contract approved for
a lease, he means that more shall be put into the lease than the law
generally allows. Now, in the present case, the Plaintiff says in
effect, " I agree to grant you a lease on certain terms, but subject to
something else being approved." He does not say, " Nothing more
shall be required beyond what I have already mentioned," but " some-
thing else is required " which is not expressed. That being so, the
agreement is uncertain in its terms and consequently cannot be sus-
tained.
The distinction between an agreement which is final in its terms,
and therefore binding, and an agreement which is dependent upon a
stipulation for a formal contract, is pointed out in the authorities.
I will take only one of them, Chinnock v. 3Iarchioness of El;/ {a).
There Lord Westbury says {b) : " I entirely accept the doctrine. . .
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." Then he goes on, " But if to a
proposal or offer an assent be given subject to a provision as to a
(a) 4 D. J. & S. 638. CO 4 D. J. & S. 645, 646
ri. \j^o, u-*u. /
\/
HYDE V. WRENCH. 199
contract, then the stipulation as to the contract is a term of the as-
sent, and there is no agreement independent of tha^ stipulation."
That judgment of Lord Westbtiry's did not require any approval,
but it was approved of by the Court of Appeal in Rossiter v.
Miller (a).
It comes, therefore, to this, that where you have a proposal or
agreement made in writing expressed to be subject to a formal con-
tract 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 ques-
tion 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. The result is, that I must hold that there is no binding
contract in this case, and there must therefore be judgment for the
Defendant.
HYDE V. WRENCH.
In Chancery, December 8, 1840.
[Reported in 3 Beavan, 334.]
This case came on upon general demurrer to a bill for specific per-
formance, which stated to the effect following : —
The defendant, being desirous of disposing of an estate, offered, by
his agent, to sell it to the plaintiff for 1,200/., which the plaintiff, by
his agent, declined ; and on the 6th of June the defendant wrote to
his agent as follows : " I have to notice the refusal of your friend to
give me 1,200/. for my farm ; I will only make one more offer, which
I shall not alter from ; that is, 1,000/. lodged in the bank until
Michaelmas, when title shall be made clear of expenses, land tax, etc.
I expect a reply by return, as I have another application." This let-
ter was forwarded to the plaintiff's agent, who immediately called on
the defendant ; and, previously to accepting the offer, offered to give
the defendant 950/, for the purchase of the farm, but the defendant
wished to have a few days to consider.
On the 11th of June the defendant wrote to the plaintiff's agent as
follows : " I have written to my tenant for an answer to certain in-
quiries, and, the instant I receive his reply, will communicate with
you, and endeavor to conclude the prospective purchase of my farm.
I assure you I am not treating with any other person about said pur-
chase. "
The defendant afterwards promised he would give an answer about
accepting the 950/. for the purchase on the 26th of June ; and on the
(«) 5 Ch. D. 648.
200 HYDE V. WRENCH.
27th he wrote to the plaintiff's agent, stating he was sorry he could
not feel disposed to accept his offer for his farm at Luddenham at
present.
This letter being received on the 29th of June, the plaintiff's agent
on that day wrote to the defendant as follows : " I beg to acknowledge
the receipt of your letter of the 27th mstant, informing me that you
are not disposed to accept the sum of 950/. for your farm at Ludden-
ham. This being the case, I at once agree to the terms on which you
offered the farm ; viz. 1,000/. through your tenant, Mr. Kent, by your
letter of the 6th instant. I shall be obliged by your instructing your
solicitor to communicate with me without delay, as to the title, for
the reason which I mentioned to you. "
The bill stated, that the defendant " returned a verbal answer to the
last- mentioned letter, to the effect he would see his solicitor thereon ; "
and it charged that the defendant's offer for sale had not been with-
drawn previous to its acceptance.
To this bill, filed by the alleged purchaser for a specific performance,
the defendant filed a general demurrer.
Mr. Kindersley and Mr. Keene in support of the demurrer. To con-
stitute a valid agreement there must be a simple acceptance of the
terms proposed. Holland v. Eyre (a). The plamtiff, instead of ac-
cepting the alleged proposal for sale for 1,000/. on the 6th of June, re-
jected it, and made a comiter proposal ; this put an end to the defend-
ant's offer, and left the proposal of the plaintiff alone under discussion ;
that has never been accepted, and the plaintiff could not, without the
concurrence of the defendant, revive the defendant's original proposal.
Mr. Pemherton and Mr. Ereelmg, contvs^. So long as the offer of the
defendant subsisted, it was competent to the plaintiff to accept it ;
the bill charges that the defendant's offer had not been withdrawn
previous to its acceptance by the plaintiff ; there therefore exists a
valid subsisting contract. Kennedy v. Lee (/>), Johnson v. King (c),
were cited.
The Masteu of the Rolls.
Under the circumstances stated bi'this bill, I think there exists no
valid binding contract between the parties for the purchase of the
l)roperty. The defendant offered to sell it for 1,000/., and if that had
been at once unconditionally accepted, there would undoubtedly have
been a perfect binding contract ; instead of that the plaintiff' made an
offer of his o-\vn to purchase the property for 950/. and he thereby re-
jected the offer previously made by the defendant. T think that it
was not afterwards competent for him to revive the proposal of the
defendant, by tendering an acceptance of it ; and that therefore there
exists no obligation of any sort between the parties ; the denmrrer
must be allowed.
la\ 2 -bim. & St. 104. ('.) 3 Mnr. 454. (c) 2 Bing. 270.
COOKE V. OXLEY. 201
COOKE V. OXLEY.
In the King's Bench, May 14, 1790.
[Beported in 3 Term Beports, 653.]
This was an action upon the case ; and the third count in the decla-
ration, uponwhicli the verdict was taken, stated that on, etc. a certain
discourse was had, etc. concerning the buying of two hundred and
sixty-six hogsheads of tobacco ; and on that discourse the defendant
proposed to the plaintiff that the former should sell /and dehver to
the latter the said two hundred and sixty-six hogsheads [at a certam
price] ; whereupon the plaintiff desired the defendant to give him (the
plaintiff) time to agree to or dissent from the proposal till the hour of
four in the afternoon of that day, to which the defendant agreed ; and
thereupon the defendant proposed to the plaintiff to sell and deliver
the same upon the terms aforesaid, if tJie 'plaintiff would agree to pur-
chase them upon the terms aforesaid^ and would give notice thereof to
the defendant before the hour of four in the afternoon of that day ; the
plaintiff averred that he did agree to purchase the same upon the
terms aforesaid, and did give notice thereof to the defendant before
the hour of four in the afternoon of that day ; he also averred that he
requested the defendant to deliver to him the said hogsheads, and
offered to pay to the defendant the said price for the same, yet that
the defendant did not, etc.
A rule havmg been obtamed to show cause why the judgment
should not be arrested, on the ground that there was no consideration
for the defendant's promise,
Erskine and Wood now showed cause. This was a bargain and
sale on condition ; and though the plamtiff might have rescinded the
contract before four o'clock, yet, not havmg done so, the condition was
complied with, and both parties were bomid by the agreement. The
declaration considered this as a complete bargain and sale ; for the
breach of the agreement is for not delivering the tobacco, and not for
not selling it.
Lord Kenyox, Ch. J. (stopping Bearcroft, who was to have argued
m support of the rule): Nothmg can be clearer than that, at the time
of entering into this contract the engagement was all on one side; the
other party was not bound ; it was therefore nudum pactum.
BuLLER, J. It is impossible to support this declaration in any point
of view. In order to sustain a promise, there must be either a damage
to the plaintiff, or an advantage to the defendant : but here was neither
when the contract was first made. Then, as to the subsequent time,
the promise can only be supported on the ground of a new contract
made at four o'clock ; but there is no pretence for that. It has been
argued that this must be taken to be a complete sale from the time
,^ A-v-^-A. yML
202 OFFOED V. DAVIES.
when the condition was complied with ; but it was not complied with,
for it is not stated that the defendant did agree at four o' clock to the
terms of the sale ; or even that the goods were kept till that tune.
Grose, J. The agreement was not bmdmg on the plamtifif before
four o'clock ; and it is not stated that the parties came to any subse-
quent agreement; there is, therefore, no consideration for the pro-
mise.
Mule absolute (a).
OFFORD V. DAVIES AND ANOTHER.
In the Common Pleas, June 2, 1862.
[Reported in 12 Common Bench Reports^ New Series, 748.]
This was an action upon a guaranty. The first count of the decla-
ration stated, that, by a certain instrument in writmg signed by the
defendants, and addressed and delivered by the defendants to the
plaintiff, the defendants undertook, promised, and agreed with the
plaintiff m the words and figui^es f ollowmg, that is to say : " We, the mi-
dersigned, in consideration of your discomiting, at our request, bills of
exchange for Messrs. Davies & Co., of Newtown, Montgomeryshire, dra-
pers, hereby jointly and severally guarantee /or the space of twelve caU
endar months the due payment of all such bills of exchange, to the ex-
tent of 600^. And we further jomtly and severally undertake to make
good any loss or expenses you may sustain or uicui' m consequence of
advancing Messrs. Davies & Co. such moneys." Averment, that the
plamtiff, relying on the said promise of the defendants, after the making
of the said promise, and withui the space of twelve calendar months
thereafter, did discount divers bills of exchange for the said Messrs.
Davies & Co., of Newtown aforesaid, certam of which bills of ex-
change became due and payable before the commencement of this
suit, but were not then or at any other time duly paid, and the said
bills respectively Avere dishonored ; and that the plaintiff, after the
makmg of the said promise and within the said twelve calendar
months, advanced to the said Messrs. Davies & Co. divers sums of
money on and in respect of the discount of the said last-mentioned
bills so dishonored as aforesaid, certain of which moneys were due
and owing to the plaintiff before and at the time of the commence-
ment of this suit; and that all things had happened and all times had
elapsed necessary, &c. ; yet that the defendants broke their said prom-
ise, and did not pay to the plaintiff, or to the respective holders for
the time being of the said T)ills of exchange so dishonored as afore-
said, or to any other person entitled to receive the same, the respective
(a) This judgment was affirmed in the Exchequer Chamber; M. 32 G. 3.
OFFOED V. DAVIES. 203
sums of money payable by the said bills of exchange ; nor did the de-
fendants pay to the plamtiff the said sums of money so advanced by
the plaintiff as aforesaid, or any part thereof ; whereby the sums pay-
able by the said bills of exchange so dishonored as aforesaid, became
lost to the plaintiff, and he became liable to pay and take up certain
of the said bills of exchange, and did pay and take up certain of the
said bills of exchange, and was forced and obliged to and did expend
certain moneys in endeavormg to obtain part of certain of the said bills
of exchange, and the plaintiff lost the interest which he might have
made of his moneys, if the said bills had been duly paid at maturity.
Fourth plea, to the first count, — so far as the same relates to the
sums payable by the defendants in respect of the sums of money pay-
able by the said bills of exchange, and the said sums so advanced, —
that, after the making of the said guaranty, and before the plaintiff
had discounted such bills of exchange, and before he had advanced such
sums of money, the defendants countermanded the said guaranty,
and requested the plaintiff not to discount such bills of exchange, and
not to advance such moneys.
To this plea the plaintiff demurred ; the ground of demurrer stated
in the margm being « that the fourth plea offers no defence to that
part of the declaration to which it is pleaded, for that a party giv-
ing a guaranty [for a definite period] has no power to countermand it
without the assent of the person to whom it is given." Joinder.
Prentice (with whom was Brandt^) in support of the demurrer. A
guaranty like this, to secure advances for twelve months, is a contract
which cannot be rescinded or countermanded within that time without
the assent of the person to whom it is given. [Byles, J. What con-
sideration have these defendants received ?] For any thing disclosed
by the plea, the plamtiff might have altered his position in consequence
of the guaranty, by having entered into a contract with Davies & Co.,
of Newtown, to discount their bills for twelve months. In Calvert v.
Gordoyi, 1 M. & R. 497, 7 B. & C. 809, 3 M. & R. 124, it was held
that the obligor of a bond conditioned for the faithful service of A.
whilst in the employ of B., cannot discharge himself by giving notice
that after a certain period he will be no longer answerable ; nor can
the personal representative of the obligor discharge himself by such
a notice. Lord Tenterden, m giving judgment in that case, says (3 M.
and R. 128) : " The only question raised by the defendant's second
plea is, whether it is competent to the surety to put an end to his
liability by giving a notice which is to take effect from the very day
on which it is given. It would be a hardship upon the master if this
could be done. It is said that it would be a hardship on the surety
if this liability must necessarily continue during the whole time that
the principal remains in his service ; but, looking at the instrument
204 OFFORD V. DAVIES.
itself, it would appear that it was the intention of the testator to
enter into this unlimited engagement. It was competent to him to
stipulate that he should be discharged from all future liability after
a specified tune, after notice given. This he has not done." Here,
the defendants have stipulated that their liability shall discontinue at
the end of twelve calendar months. What pretence is there for re-
lieving them from that bargain ? [Byles, J. Suppose a man gives
an open guaranty, with a stipulation that he will not withdraw it, —
what is there to bind hun to that ?] If acted upon by the other party, it
is submitted that that would be a binding contract. Hassell v. Long^
2 M. & Selw. 363, is an authority to the same effect as Calvert v.
Gordon. In Pothier on Obligations, Part II. c. 6, § 7, art. 2, p. 442,
it is said, " When the obligation to which a surety has acceded must
from its nature exist a certain time, however long it may be, the
surety cannot within that time demand that the principal debtor
should discharge him from it ; for as he knew, or ought to know, the
nature of the obligation to which he acceded, he should have reckoned
upon continuing obliged during the whole of the time." Again, Part
III. c. 6, art. 4, p. 635 : « Regularly, lapse of time does not extmguish
obligations : persons who enter into an obligation oblige themselves
and their heirs until the obligation is perfectly accomplished. But
there may be a valid agreement that an obligation shall only continue
to a certain time. For instance, I may become surety for a person
upon condition that my undertaking shall not bmd me after the expi-
ration of three years."
E. James^ Q. C. (with whom was T. Jones), contra. The cases upon
bonds for guaranteeing the honesty of clerks or servants are mappli-
cable : there the contract attaches as soon as the clerk or servant en-
ters the ser^dce, and it is not separable. This, however, is not a case
of contract at all. It is a mere authority to discount, and a promise
to indemnify the plaintiff in respect of each bill discounted ; and it
was perfectly competent to the defendants at any time to withdraw
that authority as to future transactions of discount. This is more like
the rnandatum pecunice credendce treated of by Pothier — on Obligations,
Part II. c. 6, § Si tnandavero exigendam pecimiam, deinde
voluntatetn tnutavero, an sit mandati actio vel mihi, vel hmredi meo f
Et ait Marcellus, cessare mandati actionem, quia extincttnn est mandatnni,
finita vohmtate. The same principle has infused itself into the juris-
OFFORD V. DAVTES. 205
prudence of modem Europe, as, indeed, it could not fail to do, since it
is but an application of a maxim founded upon the natural rights of
men in all ages, in regard to their own private concerns, where the
law has not interfered to prohibit the exercise of them." « But," §
466, " let us suppose that the authority has been in part actually exe-
cuted by the agent ; in that case, the question will arise whether the
principal can revoke the authority, either in the whole or as to the
part which remains unexecuted. The true principle would seem to
be, that, if the authority admits of severance, or of being revoked as to
the part which is unexecuted, either as to the agent or as to third
persons, then and m such case the revocation will be good as to the
part imexecuted, but not as to the part already executed" A mutual
agreement to rescind can only be necessary where there is a mutual
contract. But in a case like this, where there is no complete contract
until somethmg is done by the mandatory, the assent of both parties
cannot be required. Suppose Davies & Co., of Newtown, had become
notoriously insolvent, would the defendants continue bound by their
guaranty, if the plamtiffs, with notice of that fact, chose to go on dis-
counting for them ? [Williams, J. Suppose I guarantee the price of
a carriage, to be built for a third party who, before the carriage is fin-
ished, and consequently before I am bound to pay for it, becomes in-
solvent,— may I recall my guaranty ?] Not after the coach-builder has
commenced the carriage. [Erle, C. J. Before it ripens into a contract,
either party may withdraw, and so put an end to the matter. But the
moment the coach-builder has prepared the materials, he would prob-
ably be found by the jury to have contracted.] In an American
work of considerable authority, Parsons on Contracts, p. 517, it is said,
" A promise of guaranty is always revocable, at the pleasure of the
guarantor, by sufficient notice, unless it be made to cover some speci-
fic transaction which is not yet exhausted, or unless it be founded upon
a continuing consideration, the benefit of which the guarantor cannot
or does not renounce. If the promise be to guarantee the payment of
goods sold up to a certain amount, and after a part has been delivered,
the guaranty is revoked, it would seem that the revocation is good,
imless it be founded upon a consideration which has been paid to the
guarantor for the whole amount ; or unless the seller has, in reliance
on the guaranty, not only delivered a part to the buyer, but bound
himself by a contract, enforceable at law, to deliver the residue."
Brochlehank v. Moore, cor. Abbott, C. J., Guildhall Sittmgs after Trmity
Term, 1823, referred to in 2 Stark. Evid., 3d edit. 610, n., is a direct
authority that " a continuing guaranty is countermandable by parol."
And the same principle is clearly deducible from Masoii v. Pritchard
12 East, 227. [Williams, J. That would have been applicable, if this
had been a guaranty for 600?., with no mention of the twelve calen-
206 OFFORD V, DAVIES.
dar months.] The mention of twelve months would not compel the
plamtiff to go on discountmg for that period. In Holland v. Teed^ 7
Hare, 50, under a guaranty given to a banking house consistmg of seve-
ral partners, for the repayment of such bills drawn upon them by one
of their customers as the bank might honor, and any advances they
might make to the same customer, within a certain time, it was held
that the guaranty ceased upon the death of one of the partners in the
bank before the expiration of the time to which the guaranty was ex-
pressed to extend ; that bills accepted before the death of the partner,
and payable afterwards, were withm the guaranty; and that the
amount guaranteed could not be increased by any act of the continu-
ing firm and the customer after the death of the partner, although such
amount might be dimmished by such act. [Byles, J. The case of a
change in the firm is now provided for by the Mercantile Law Amend-
ment Act, 19 and 20 Vict. c. 97, § 4. Erle, C. J. What meanmg do
you attribute to the words « at our request " m this guaranty '?] As
and when we request. The notice operated a retractation of the re-
quest, and any discount which took place after that notice was not a
discount at the request of the defendants.
Brandt, in reply. The Court of Exchequer have decided m this term
in a case of Brandbury v. Morgan, that the death of the surety does
not operate a revocation of a contmuuig guaranty. If that be so, it is
plain that the guaranty is not a mere ma7idatnm, but a contract. In
Gordon v. Calvert, 2 Sim. 253, 4 Russ. 581, the executrix of the de-
ceased surety gave notice to Calvert & Co., the obligees, that she would
no longer consider herself liable on the bond ; but the Vice-Chancellor
(Sir L. Shadwell) said, that, « by the original contract, the Uability of
the surety was to continue as long as Calvert & Co. kept Richard
Edwards, or he chose to remain in their sei-vice ; that after Calvert
& Co. had received the plaintiff's letter they never gave her any inti-
mation that they did not consider her as continuing hable under her
husband's bond ; that their conduct did not operate in any manner
upon her ; and that therefore the injunction ought to be dissolved."
That shows that, in the opinion of that learned Judge, the assent of the
three persons concerned and interested in the bargam would be re-
quisite to its dissolution. The fourth plea does not allege that notice
of revocation was given before any bills had been discounted by the
plaintiffs. It must therefore be assumed that some discounts had
taken place. [ T. Jones. The fact undoubtedly is so. ]
Cur. adv. vult.
Erle, C. J., now delivered the judgment of the Court («).
The declaration alleged a contract by the defendants, in considera-
tion that the plaintiff would at the request of the defendants discomit
(o) The case was argued before Erie, C. J., Williams, J., Willes, J., and Byles, J.
ROUTLEDGE V. GRANT. 207
bills for Davies & Co., not exceeding 600/., the defendants promised to
guarantee the repayment of such discounts fo7^ twelve months, and the
discount, and no repayment. The plea was a revocation of the promise
before the discount in question ; and the demurrer raised the question
whether the defendants had a right to revoke the promise. We are
of opinion that they had, and that, consequently, the plea is good.
This promise by itself creates no obligation. It is in effect condi-
tioned to be binding if the plaintiff acts upon it, either to the benefit
of the defendants or to the detriment of hmiself . But, mitil the con-
dition has been at least in part fulfilled, the defendants have the power
of revokmg it. In the case of a simple guaranty for a proposed loan,
the right of revocation before the proposal has been acted on did not
appear to be disputed. Then are the rights of the parties affected
either by the promise being expressed to be for twelve months, or by
the fact that the same discounts had been made before that now m
question, and repaid ? We think not.
The promise to repay for twelve months creates no additional liabil-
ity on the guarantor, but, on the contrary, fixes a limit in time beyond
which his liability cannot extend. And, with respect to other dis-
counts, which had been repaid, we consider each discount as a sepa-
rate transaction, creating a liability on the defendant till it is repaid,
and after repayment leaving the promise to have the same operation
that it had before any discount was made, and no more.
Judgment for the defendants.
ROUTLEDGE v. GRANT,
In the Common Pleas, May 13, 1828.
[Reported in 4 Bingham, 653.]
Assumpsit. The declaration stated (first count) that the plaintiff
was possessed of a term in a dwelling-house, to expire 25th December,
1856 ; and that defendant agreed, on the 29th April, 1825, upon receiv-
ing a lease for twenty-one years, at 250Z. a year rent, with the option
of having the time extended to thirty -one years on giving six months'
notice, and upon having possession on the 25th July then next, to pay
plaintiff 2,750/., and take the fixtures at a valuation.
Averment of plaintiff's readmess to grant the lease. Breach ; re-
fusal to accept it, and to take the fixtures at a valuation ; and non-
payment of the 2,750/.
The second comit alleged the plaintiff to be entitled to a certain
term, to wit, a term of thirty-two years, in the dwelling-house, under
a certam contract between the plaintiff and Anthony Hermon, who
208
ROUTLEDGE V. GRANT.
was authorized in that behalf ; and then stated the agreement with
the defendant, and the breach, as before.
The third count alleged plaintiff to be possessed for the residue of
a certain term, to expire 25th December, 1856; and the agreement,
tender of lease to defendant, and breach, as before.
At the trial before Best, C. J., London Sittings after Michaelmas
term, it appeared that, on the 18th March, 1825, the plaintiff received
a note from the defendant touching the premises in these terms : —
ME. grant's PKOPOSAI*.
To pay a premium of 2,750?, upon receiving a lease for twenty-one
years, with the option (upon giving six months' previous notice to the
landlord or his agent) of having the time extended to thirty-one years,
paying the same yearly rent as before, for such extended term of ten
years beyond twenty-one years. — Rent, 250/.
Mr. Grant to pay for the fixtures at a valuation, possession to be
given on or before 25th July next, to which time all taxes and out-
goings are to be discharged by Mr. Routledge ; and a definitive answer
to be given within six weeks from the 18th March, 1825.
The plaintiff, who at this time had only a term of twelve years in
the premises, had to apply to his landlord for a new lease before he
was in a condition to accept the defendant's offer. The plaintiff, hav-
ing come to an understanding with his landlord, wrote the following
note to the defendant : —
Mr. Routledge begs to say that he accepts Mr. Grant's offer for
his house, No. 59 St. James's Street, and that he will give Mr. Grant
possession on the 1st of August next.
St. James's Street, 6th April, 1825.
Mr. R. will esteem it a particular favor if Mr. Grant will not, for
the present, name the subject to any one.
The defendant returned the following answer : —
7th April, 1825.
Sir, — I received your note last night, and hasten to acquaint you,
that, having considered as confidential the negotiation respecting your
house, I had mentioned it to no one ; but upon consulting with a
friend this morning, in whose opinion I had more confidence than my
own, I am advised, for some reasons which had not occurred to my-
self, not to think of taking a house in St. James's Street for a dwell-
ing-house. May T therefore request you to permit me to withdraw
the proposal I made to you about it ? I am in hopes you will make no
hesitation to do this, when you consider the spirit of candor and
openness in which it was made to you. But should it be otherwise,
as I am the last that would willingly act with inconsistency, I will
ROUTLEDGE V. GRANT. 209
willingly refer the question to friends for decision, and abide by their
opinion of the case.
I have the honor to be, &c.,
Alex. Grant.
Mb. Thomas Routledge.
To this the plaintiff replied as follows : —
8th April, 1825.
Sir, — In answer to your letter of yesterday, I beg to state, that rely-
ing upon your performing the agreement for the purchase of my house
in St. James's Street, I have taken another house, and made arrange-
ments which I cannot, without great loss, relinquish. I hope, there-
fore, that you will not wish me to withdraw it.
I am, &c.,
Thos. Routledge.
Alexander Grant, Esquire.
The defendant rejoined : —
9th April, 1825.
Sir, — Your note of yesterday surprised me, being altogether at
variance with your conversation with me two or three hours previous
to your note, dated on the evening of 6th, in which, you must recol-
lect, you one moment declared yourself off ; and, finally, you went
away to have the opinion of Mrs. Routledge about the answer you
were to send me. How therefore you can, mider such circumstances,
suffer loss and inconvenience from my declining to proceed further m
the treaty, I am at a loss to imagine ; and I was m hopes you would
have been satisfied with what I had stated in reply to your first note,
to have had the liberality of letting the matter drop. But if that
should not be your mtention, I have only to add that you may pro-
ceed with your claim for « loss and inconvenience," as you may think
most advisable. I am, &c.,
Alex. Grant.
Mr. Thomas Routledge.
The plamtiff, after this, surrendered the existing lease to his land-
lord, and obtained from him a new one, dated 21st April, 1825, from
the 25th December, 1824, for thirty- two years, for the same clear
yearly rent of 250/., payable quarterly ; in which the covenants on
the part of the lessee were similar to those in the former ; and then
wrote the defendant the following letter : —
Sir, — Upon referring to ray letter to you of the 6th inst., accepting
your offer for my house. No. 59 St. James's Street, I perceive that I,
by mistake, stated that I would give possession on the 1st day of
August next. By your offer, you state that possession is to be given
Vol. 1—14
210 EOTJTLEDGE V. GKANT.
on or before the 25th July next ; and I inform you that I am ready to
give you possession, according to your proposal.
I am, &c.,
29th April, 1825, Thos. Routledge.
This letter, on the day it was dated, was delivered at the defendant's
house ; and the keys, and a lease of the premises in question, accord-
ing to the agreement, were tendered to him before the 25th July, but
rejected.
The six weeks, from the 18th March, 1825, within which, by the
defendant's proposal, a definitive answer was to be given, expired on
the 1st May, 1825.
Upon these facts it was objected, first, that the plaintiff being
allowed six weeks to accept or reject the defendant's offer, the defend-
ant was entitled also, until it was accepted, to retract it, at any period
before the expiration of the six weeks ; that there was no acceptance of
the terms proposed till the 29th of April, which came too late, the defen-
dant having retracted his proposal on the 9th. Secondly, that the
plaintiff had not, before the defendant withdrew his proposal, any
such interest m the premises as he was alleged to have in the declara-
tion, or as would have enabled him to accede to that proposal. The
plaintiff was thereupon nonsuited, with leave to move the Court to set
the nonsuit aside.
Taddy^ Serjt., accordingly obtained a rule nisi to set aside this non-
suit, and
Wilde, Serjt., showed cause. There was no valid contract binding
on both parties. By the terms of the defendant's proposal, the plaint-
iff had six weeks to accept or reject it, and the parties would not
have been on an equal footing if the defendant had not the privilege of
withdrawing his proposal during the same period : having finally with-
drawn it on the 9th of April, the plaintift''s acceptance on the 29th
came too late, the acceptance of the 6th being out of the question as
not acceding to the terms offered by the defendant. Kennedy v. Lee
(a), has decided that an acceptance varying in any degree from the
terms of an offer is in effect no acceptance ; and Adams v. Lindsell (b)
confirms the principle established in Cooke v. Oxley (c), that a i)arty
who allows time for the acceptance of an offer may retract before it
is accepted. lint the plaintiff, at the time of the defendant's offer
and up to the period of his withdrawing it, had no such interest in the
premises as tliat stated in the declaration, nor even such as could have
enabled him to meet the proposal ; he had only a term of twelve years
when he agreed to grant thirty -one. On the ground of variance, there-
fore, the nonsuit cannot be impeached.
Toddy and Jones, Serjts., in support of the rule. The defendant's
(a) 3 ilcriv. 454. {h) 1 B. & A. 681. (c) 3 T. R. 653.
EOUTLEDGE V. GRANT. 211
offer was made on good consideration ; namely, that the plaintiff should
procure him a term of thirty -one years in the premises ; and a party
cannot retract, during the time which he allows for deliberation, an offer
made on good consideration. Cooke v. Oxley was determined on the
ground that the bargain was ymdum. pactum^ and therefore without
consideration. Lord Kenyon said, " At the time of entering into the
contract the engagement was all on one side ; the other party was not
bound ; it was, therefore, nudum 'pactum^ And Buller, J., put it on
the ground that it ought to have been stated that the defendant (who
was allowed till four o'clock to consider whether or not he would buy
goods on the terms offered) « did agree at four o'clock to the terms of
the sale :" from which it may be inferred that if such a statement had
been made in the declaration and proved, the defendant would have
been liable for refusing to perform his contract. In the present case
there is a sufficient consideration, and a sufficient averment and proof
of the plaintiff's agreeing to the terms of the contract before the ex-
piration of the time limited. In Adams v. Lindsell the defendants
were held to be bound by an offer to sell upon receiving an answer in
course of post, although, by accident, the answer did not arrive till two
days after the next post, and the defendants had, in the mean time,
sold the goods to a third person.
With respect to the alleged variance, — it is sufficient that the plaint-
iff had a term at his disposal ; the time when it was to expire was
immaterial, and the allegation that it was to expire in 1856 may be
rejected as surplusage. . . .
It is sufficient if the party has at the time of the completion of the
contract, that which he proposes to sell. And on the 29th of April,
before which time there was no complete contract in the present case,
the plaintiff was in possession of the term he agreed to dispose of.
Best, C. J. The nonsuit was right on both grounds. I put it on
the same footing as I did at Nisi Prius. Here is a proposal by the
defendant to take property on certain terms ; namely, that he should
be let into possession in July. In that proposal he gives the plaintiff'
six weeks to consider ; but if six weeks are given on one side to accept
an offer, the other has six weeks to put an end to it. One party cannot
be bound without the other. This was expressly decided in Cooke v.
Oxley ^ where the defendant proposed to sell, at a certain price, tobacco
to the plaintiff, who desired to have till four in the afternoon of that
day to agree to or dissent from the proposal ; with which terms the
defendant complied ; and the plaintiff having afterwards sued him for
non-delivery of the tobacco, Lord Kenyon put it on the true ground, by
saying, « At the time of entering into this contract the engagement
was all on one side ; the other party was not bound." Buller, J., said,
" It has been argued that this must be taken to be a complete sale
212 ROUTLEDGE V. GRANT.
from the time the condition was complied with : but it was not com-
plied with ; for it is not stated that the defendant did agree at four
o'clock to the terms of the sale ; or even that the goods were kept tiU
that time." I put the present case on the same ground. At the time
of entering into this contract the engagement was all on one side. In
Payne v. Cave (a) it was holden that the defendant, who had bid at
an auction, might retract his bidding any time before the hammer was
down, and the Court said, " The auctioneer is the agent of the vendor,
and the assent of both parties is necessary to make the contract bind-
ing ; that is signified on the part of the seller by knocking down the
hammer, which was not done here till the defendant had retracted. An
auction is not unaptly called locus pcenUentke. Every bidding is nothing
more than an offer on one side, which is not binding on either side till
it is assented to. But, according to what is now contended for, one
party would be bound by the offer, and the other not, which can never
be allowed."
These cases have established the principle on which I decide;
namely, that till both parties are agreed, either has a right to be off.
The case of Adams v. Lindsell is supposed to break in on them ; but I
think it does not, because the Court put it on the circumstance that
the offer was made by the post, and say, " If the defendants were not
bound by their offer when accepted by the plaintiffs, till the answer
was received, then the plamtiffs ought not to be bound till after they
had received the notification that the defendants had received their
answer and assented to it. And so it might go on ad infimtum. The
defendants must be considered in law as making, during every instant
of the time their letter was travellmg, the same identical offer to the
plaintiffs ; and then the contract is completed by the acceptance of it
by the latter." If they are to be considered as making the orter
till it is accepted, the other may say, "Make no further offer, be-
cause I shall not accept it ; " and to place them on an equal footing, the
party who offers should have the power of retracting as well as the
other of rejecting : therefore I cannot bring myself to admit that a
man is bound when he says, " I will sell you goods upon certain terms,
receiving your answer in course of post." However, it is not neces-
sary to tr)uch that decision, for the reasoning of the Court cohicides
with the principle on which we now determine. As the defendant re-
pudiated the contract on the 9th of April, before the expiration of the
six weeks, he had a right to say that the plaintiff should not enforce
it afterwards.
But upon the question of variance, we are all of opinion that none
of the counts apply. It is not necessary, perhaps, that the termini of
the plaintiff's lease should be set out with precision; but the
(a) 3 T. R. 148.
RAMSGATE V. H. CO. V. MONTEFIORE. 213
variance is fatal if the plaintiff has not, at least, an interest which will
enable him to perform his contract. The variance is not in words,
but in substance. The plaintiff had no such term as that stated in
the first and third counts. In the second, he states he had a contract
for a lease ; — such a contract, to be valid, must be in writing, and he
cannot be said to have had it unless he had it in writing. But there
was no evidence of any such contract; and, therefore, upon both
grounds, the rule must be discharged.
BuRROuGH, J. (a), coincided in discharging the rule on the ground
of variance.
GASELEEf J. If this case has rested on the first point, I should have
wished for time to consider it ; but on the ground of variance, I have
no doubt that this rule must be Discharged.
RAMSGATE VICTORIA HOTEL COMPANY LIMITED
V. MONTEFIORE.
SAME V. GOLDSMID.
In the Exchequer, January 17, 1866.
[Beported in Law Reports, 1 Exchequer, 109.]
These were actions for non-acceptance of shares, and for calls, and
cross-actions for recovery of deposit, and for damages for not duly
allotting shares, turned into a special case.
The company was completely registered 6th June, 1864. By the
second article of association it was provided that the company should
continue incorporated, notwithstanding that the whole number of
shares in the company might not be subscribed for or issued, and
might commence and carry on business when, in the judgment of the
board, a sufficient number of shares had been subscribed to justify
them in so doing.
The prospectus of the company contained the following words:
"Deposit on application 11. per share, and 41. on allotment." And it
was further stated that if no allotment were made the deposit would
be returned.
The defendant Montefiore, on the StlLo f June, 186 4, filled up, signed
and sent to the directors the printed form of application annexed to
the prospectus, which was as follows : —
Gentlemen, — Having paid to your bankers the sum of 50/., I here-
by request you will allot me fifty shares of 20/. each in the Ramsgate
Victoria Hotel Company (Limited) ; and I hereby agree to accept such
shares, or any smaller number that may be allotted to me, to pay the
(a) Park, J., was abseut at Cliambers.
214 BAMSGATE V. H. CO. V. MONTEFIORE.
deposit and caUs thereon, and to sign the articles of association of the
company at such times and in such manner as you may appomt.
The defendant had so paid the sum of 50Z., and had taken from the
bankers the following receipt :—
Received, the 8th of June, 1864, on account of the directors of the
Ramsgate Victoria Hotel Company (Lunited), the sum of 50^., being
the deposit paid in accordance with the terms of the prospectus, on an
application for an aUotment of fifty shares m the same undertaking.
On the 17th of August the secretary made out and submitted to the
directors a list of applicants for shares up to that time, in which ap-
peared the name of the defendant for fifty shares. The list was headed :
"List of subscribers, August 17, 1864."
On the 2d of November the secretary again submitted a hst of sub-
scribers to the directors, but they did not deem it advisable to proceed
to an immediate allotment, and entered a mmute to that effect. On
the 8th of November, the defendant, havmg received no communication
from the company, withdrew his application.
On the 23d^iifJiiisi£iiib£r the secretary prepared another list of sub-
scribers, mcludmg the defendant's name. The directors made the first
call, and by their direction the secretary wrote the following letter to
the defendant : —
SiR,_I am mstructed by the directors to acquaint you that, m com-
pliance with your application, they have allotted to you fifty shares
in this company, and have entered your name m the register of share-
holders for the same ; and I have to request that you will pay the
balance of the first call, as noted below, on or before the 15th Decem-
ber, to the London and County Bank, 21 Lombard Street, E. C.
The defendant having refused to accept the shares or pay the call,
the company brought tlii present action agamst him.
It was contended by the company that the last-mentioned hst and
those previously mentioned, or one of them, constituted a sufficient
register of shares within the Companies' Act, 1862.
The directors had entered into an agreement for the purchase of the
site of the hotel, paid the deposit, and commenced operations.
The facts with respect to Goldsmid were the same, except that he
had never withdrawn his application, nor given any notice of his inten-
tion to do so.
Mellish, Q. C. (Digby with him), for the company, contended that,
although in ordinary cases the assent of both parties, mutually com-
municated, was necessary to form a contract, yet on the authority of
Ux parte Bloxam (a) and Bx parte Cookney (b) shares might be com-
pletely allotted without any communication to the applicant, or accept-
ance by him ; that the facts above stated showed an allotment made
(a) 33 L. J. (Ch.) rA[), 574. (6) 3 De G. & J. 170; 28 L. J. (Ch.) 12.
DICKINSON V. DODDS. 215
on the 17th of August ; but that, if not, the allotment in November was,
considering the nature of the contract, made within a reasonable time,
and, if so made, the letter of withdrawal was inoperative.
M. Chambers, Q. C. (Cohen with him), for the defendants, were not
called on.
The Court (Pollock, C. B., Martin, Channell, Pigott, B B.),
observed that, in both cases cited, the question was as to the liability
of an applicant for shares as a contributory, and they referred to the
judgment of Turner, L. J., in JSx parte Bloxam (a), as explaining the
ratio decidendi in that case ; they held that there was no allotment till
November 23, that the allotment must be made within reasonable
time, and that the interval from June to November was not reasonable,
and therefore gave
Judgment for both the defendants.
DICKINSON y. DODDS.
In the High Court of Justice, January 25, 26, 1876.
In the Court of Appeal, March 31, April 1, 1876.
[Beported in 2 Chancery Division, 463.]
Os Wednesday, the 10th of June, 1874, the Defendant John Dodds
signed and delivered to the Plaintiff, George Dickinson, a memorandum,
of which the material part was as follows : —
" I hereby agree to sell to Mr. George Dickinson the whole of the
dwelling-houses, garden ground, stablmg, and outbuildings thereto be-
longmg, situate at Croft, belongmg to me, for the sum of £800. As
witness my hand this tenth day of June, 1874.
« £800. (Signed) John Dodds.
" P.S. — This offer to be left over until Friday, 9 o'clock, a.m. J. D.
(the twelfth), 12th June, 1874.
" (Signed) J. Dodds.
The bill alleged that Dodds understood and mtended that the Plaintiff
should have until Friday 9 a.m. witliin which to determine whether he
would or would not purchase, and that he should absolutely have until
that time the refusal of the property at the price of £800, and that the
Plaintiff in fact determined to accept the offer on the morning of Thurs-
day the 1 1th of Jmie, but did not at once signify his acceptance to Dodds,
believing that he had the power to accept it until 9 a m. on the Friday.
In the afternoon of the Thursday the Plaintiff was informed by a Mr.
Berry that Dodds had been offering or agreeing to sell the property to
Thomas Allen, the other Defendant. Thereupon the Plaintiff, at about
(a) 33 L. J. (Ch.) 575, 576.
216 DICKINSON V. DODDS.
half -past seven in the evening, went to the house of Mrs. Burgess, the
mother-in-law of Dodds, where he was then staying, and left with her a
formal acceptance in writmg of the offer to sell the property. Accord-
ing to the evidence of Mrs. Burgess this document never m fact reached
Dodds, she having forgotten to give it to him.
On the foUowmg (Friday) mornhig, at about seven o'clock. Berry,
who was actmg as agent for Dickmson, found Dodds at the Darlmgton
railway station, and handed to him a duplicate of the acceptance by
Dickmson, and explained to Dodds its purport. He rephed that it
was too late, as he had sold the property. A few minutes later Dickin-
son hunself found Dodds entering a railway carriage, and handed him
another duplicate of the notice of acceptance, but Dodds declmed to
receive it, saying, " You are too late. I have sold the property."
It appeared that on the day before, Thursday, the 11th of June,
Dodds had signed a formal contract for the sale of the property to the
Defendant Allan for £800, and had received from him a deposit of £40.
The bill in this suit prayed that the Defendant Dodds might be de-
creed specifically to perform the contract of the 10th of June, 1874 ; that
he might be restramed from conveymg the property to AUan ; that
AUan^'might be restrained from taking any such conveyance ; that if
any such'conveyance had been or should be made, Allan might be de-
clared a trustee of the property for, and might be directed to convey
the property to, thePlamtiff ; and for damages.
The cause came on for hearing before Vice-ChanceUor Bacon on the
25th of January, 1876.
Kay, Q. C, and Caldecott, for the Plaintiff :—
The memorandum of the 10th of Jmie, 1874, being in writmg, satis-
fies the Statute of Frauds. Though signed by the vendor only, it is
effectual as an agreement to sell the property.
Supposing it to have been an offer only, an offer, if accepted before
it is withdrawn, becomes, upon acceptance, a binding agreement.
Even if signed by the person only who is sought to be charged, a pro-
posal, if accepted by the other party, is within the statute: Heuss v.
Picksley (a), following Warner v. WiUmffton (b). ^ ,, , .,
In Kennedy v. Zee (c) Lord Eldon states the law to be, that "if a
person communicates Tiis acceptance of an offer within a reasonable
time after the offer being made, and if, within a reasonable time of the
acceptance being communicated, no variation has been made by either
party in the terms of the offer so made and accepted, the acceptance
must be taken as simultaneous with the offer, and both together as
constituting such an agreement as the Court will execute So that
not only is a parol acceptance sufficient, but such an acceptance relates
back to the date of the offer. Tliis is further ^^^wnhy Adamsy Zmd-
(a) Law Rep. 1 Ex. 342. ^ 3 Drew. 523. (0 3 Mer. 441. 454.
DICKINSON V. DODDS. 217
sell (a), where an offer of sale was made by letter to the Plaintiffs " on
•receiving their answer in course of post." The letter was misdirected,
and did not reach the Plaintiffs, until two days after it ought to have
reached them. The Plaintiffs immediately on receiving the letter,
wrote an answer accepting ; and it was held that they were entitled
to the benefit of the contract.
The ruling in Adams v. Lindsell (a) was approved by the House of Lords
in Dimlop v. Higgins (J), as appears from the judgment of Sir G. Mellish.
L. J., in Harris^ Case (c) ; and it is now settled that a contract which
can be accepted by letter is complete when a letter containing such
acceptance has been posted. The leaving by the Plaintiff of the notice
at Dodds' residence was equivalent to the delivery of a letter by a post-
man.
That Allan is a necessary party appears from Potter v. Sanders (d) ;
and if Allan has had a conveyance of the legal estate, the Court will
decree specific performance agamst him.
Swanston^ Q. C, and Crossley, for the Defendant Dodds : —
The bill puts the case no higher than that of an offer. Taking the
memorandum of the 10th of June, 1874, as an offer only, it is well
established that, until acceptance, either party may retract ; Cooke v.
Oxley (e) ; Benjamin on Sales (/").
After Dodds had retracted by selling to Allan, the offer was no
longer open. Having an option to retract, he exercised that option :
Humphries v. Carvalho (g) ; Pollock on Contracts (h) ; Boutledge v.
Grant (i).
In delivering judgment in Marthi v. Mitchell (/), Sir T. Plumer,
M. R., put the case of a contract signed by one party only. He asked (k)
" What mutuality is there, if the one is at liberty to renounce the con-
tract, and the other not ? " and in Meynell v. Surtees (I), the distinctions
between an offer and an agreement in respect of binding land were
pointed out : Fry on Specific Performance ()n).
The postscript being merely voluntary, without consideration, is
nudum pactmn ; and the memorandum may be read as if it contained
no postscript.
Jackson^ Q. C, and Gazdar, for the Defendant Allan : —
Allan is an unnecessary party. If Dodds has not made a valid con-
tract with the Plaintiff, he is a trustee for Allan ; if Dodds has made a
binding contract, rights arise between Allan and Dodds which are not
now in controversy.
We agree with the co- Defendant that, in order that the Plaintiff
{a) 1 B. & A. 681. (b) 1 H. L. C. 381. (c) Law Rep. 7 Ch. 587, 59.5. (d) 6 Hare, 1.
(e) 3 T. R. 653. (0 2nd Ed. p. 52. (q) 16 East, 45. (//) Page 8.
(i) 4 Bing. 653. (j) 2 Jac. & W. 413. {k) Page 428. {I) 1 Jur (N.S.) 737. (»0 Page 80.
218 DICKINSON V. DODDS.
may have a locus standi, there must have been a contract. If the post-
script is a modification of the offer, it is nudum pactum^ and may be
rejected.
It may be conceded that if there had been an acceptance, it would
have related back in point of date to the offer. But there was no
acceptance. Notice of acceptance served on Mrs. Burgess was not
enough.
Even if it would have been otherwise sufBcient, here it was too late.
Dodds had no property left to contract for. The property had ceased
to be his. He had retracted his offer ; and the property had become
vested in some one else: Hebb's Case (a).
The Plaintiff would not have deUvered the notice if he had not heard
of the negotiation between Dodds and Allan. What retractation could
be more effectual than a sale of the property to some one else ?
The Defendant Allan was a bond fide purchaser without notice.
Kay in reply : —
The true meaning of the document was a sale. The expression is
not " open," but " over." The only liberty to be allowed by that was
a liberty for the Plaintiff to retract.
But, takmg it as an offer, the meaning was, that at any day or hour
within the interval named, the Plaintiff had a right to indicate to the
Defendant his acceptance, and from that moment the Defend ant would
have had no right of retractation. Then, was there a retractation before
acceptance ? To be a retractation, there must be a notification to the
other party. A pure resolve within the recesses of the vendor's own
mind is not sufficient. There was no communication to the Plaintiff.
He accepted on two several occasions. There could have been no part-
ing with the property without communication with him. He was told
that the offer was to be left over.
The grounds of the decision in Coohe v. Oxley (b) have been abun-
dantly explained by Mr. Benjamin in his work on Sales. It was de-
cided simply on a point of pleadmg.
Bacon, V. C, after remarking that the case mvolved no question of
unfairness or inequality, and after stating the terms of the document
of the 10th of June, 1874, and the statement of the Defendant's case
as given in his answer, continued : —
I consider that to be one agreement, and I think the terms of the
agreement put an end to any question of 7md>mi pactum. I think the
inducement for the Plaintiff to enter into the contract was the De-
fendant's compliance with the Plaintiff's request that there should be
some time allowed to him to determine whether he would accept it or
not. But whether the letter is read with or without the postscript,
(a) Law Kep. 4 Eq. 9, 12. (h) 3 T. R. 663.
DICKINSON V. DODDS. 219
it is, in my judgment, as plain and clear a contract for sale as can be
expressed in words, one of the terms of that contract being that the
Plaintiff shall not be called upon to accept, or to testify his acceptance,
until 9 o'clock on the morning of the 12th of June. I see, therefore,
no reason why the Court should not enforce the specific performance
of the contract, if it finds that all the conditions have been complied
with.
Then what are the facts ? It is clear that a plain, explicit accept-
ance of the contract was, on Thursday, the 11th of June, delivered by the
Plaintiff at the place of abode of the Defendant, and ought to have
come to his hands. Whether it came to his hands or not, the fact re-
mains that, within the time limited, the Plaintiff did accept and testify
his acceptance. From that moment the Plaintiff was bound, and the
defendant could at any time, notwithstandmg Allan, have filed a bill
against the Plaintiff for the specific performance of the contract which
he had entered into, and which the Defendant had accepted.
I am at a loss to guess upon what ground it can be said that it is
not a contract which the Court will enforce. It cannot be on the
gromid that the Defendant had entered into a contract with Allan,
because, gi\ing to the Defendant all the latitude which can be desired,
admittmg that he had the same tune to change his mind as he, by the
agreement, gave to the Plamtiff— the law, I take it, is clear on the
authorities, that if a contract, unilateral in its shape, is completed by
the acceptance of the party on the other side, it becomes a perfectly
vahd and bindmg contract. It may be withdrawn from by one of the
parties in the meantune, but, m order to be withdra\vn from, informa-
tion of that fact must be conveyed to the mmd of the person who is
to be affected by it. It Avill not do for the Defendant to say, « I made
up my mind that I would withdraw, but I did not tell the Plamtiff ; I
did not say anything to the Plamtiff until after he had told me by a
written notice and with a loud voice that he accepted the option which
had been left to him by the agreement." In my opinion, after that
hour on Friday, earlier than nine o'clock, when the Plaintiff and De-
fendant met, if not before, the contract was completed, and neither
party could retire from it.
It is said that the authorities justify the Defendant's contention
that he is not bomid to perform this agreement, and the case of Cooke
V. Oxley (a) was referred to. But I find that the judgment in Cooke
v. Oxley (a) went solely upon the pleadings. It was a rule to show cause
why judgment should not be arrested, therefore it must have been
upon the pleadings. Now, the pleadings were that the vendor in that
case proposed to sell to the Defendant. There was no suggestion of
any agreement which could be enforced. The Defendant proposed to
(a) 3 T. R. 653.
220 DICKINSON V. DODDS.
the Plaintiff to sell and deliver, if the Plaintiff would agree to pur-
chase upon the terms offered, and give notice at an earlier hour than
four of the afternoon of that day ; and the Plamtiff says he agreed to
purchase, but does not say the Defendant agreed to sell. He agreed
to purchase, and gave notice before four o'clock in the afternoon. Al-
though the case is not so clearly and satisfactorily reported as might
be desired, it is only necessary to read the judgment to see that it pro-
ceeds solely upon this allegation in the pleadings. Mr. Justice BuUer
says, " As to the subsequent time, the promise can only be supported
upon the ground of a new contract made at four o'clock ; but there
was no pretence for that." Nor was there the slightest allegation in
the pleadings for that ; and judgment was given against the Plamtiff.
Routledge v. Grant (a) is plamly distmguishable from this case upon
the grounds which have been mentioned. There the contract was to
sell on certam terms ; possession to be given upon a particular day.
Those terms were varied, and therefore no agreement was come to ;
and when the intended purchaser was willing to relinquish the con-
dition which he imposed, the other said, " No, I withdraw ; I have
made up my mind not to sell to you ; " and the judgment of the Court
was that he was perfectly right.
Then Warner v. Willington (b) seems to point out the law in the clear-
est and most distinct manner possible. An offer was made — call it
an agreement or offer, it is quite indifferent. It was so far an offer,
that it was not to be binding unless there was an acceptance, and be-
fore acceptance was made, the offer was retracted, the agreement was
rescmded, and the person who had then the character of vendor
declmed to go further with the arrangement, which had been begun
by what had passed between them. In the present case I read
the agreement as a positive engagement on the part of the Defendant
Dodds that he will sell for £800, and, not a promise, but, an agreement,
part of the same instrument, that the Plamtiff shall not be called
upon to express his acquiescence in that agreement until Friday at
nine o'clock. Before Friday at nme o'clock the Defendant receives
notice of acceptance. Upon what ground can the Defendant now be
let off' his contract ? It is said that Allan can sustain his agreement
with the Defendant, because at the time when they entered into the
contract the Defendant was possessed of the propertj'-, and the Plamt-
iff had nothing to do with it. But it would be openhig the door to
fraud of the most flagrant description if it was permitted to a Defend-
ant, the owner of property, to enter into a binding contract to sell,
and then sell it to somebody else and say that by the fact of such
second sale he has deprived himself of the property which he has
agreed to sell by the first contract. That is what Allan says in sub-
(a) 4 Bing. 0.>3. (b) 3 Drew. 523.
DICKINSON V. DODDS. 221
stance, for he says that the sale to him was a retractation which de-
prived Dodds of the equitable interest he had in the property, although
the legal estate remained in him. But by the fact of the agreement, and
by the relation back of the acceptance (for such I must hold to be the
law) to the date of the agreement, the property in equity was the
property of the Plaintiff, and Dodds had nothmg to sell to Allan. The
property remained intact, unaffected by any contract with Allan, and
there is no ground, in my opinion, for the contention that the contract
with Allan can be supported. It would be doing violence to prin-
ciples perfectly well known and often acted upon in this Court. I
think the Plaintiff has made out very satisfactorily his title to a decree
for specific performance both as having the equitable interest, which
he asserts is vested m him, and as bemg a purchaser of the property
for valuable consideration without notice against both Dodds, the
vendor, and Allan, who has entered into the contract with him.
There will be a decree for specific performance, with a declaration
that Allan has no interest in the property ; and the Plaintiff will be
at liberty to deduct his costs of the suit out of his purchase-money.
From this decision both the Defendants appealed, and the appeals
were heard on the 31st of March and the first of April, 1876.
JSwanston, Q. C. {Crossley with him) for the Defendant Dodds.
Sir H. Jackson^ Q. C. ( Gazdar with him), for the Defendant Allan.
Kay^ Q. C, and Calclecot% for the Plaintiff.
The arguments amounted to a repetition of those before the Vice-
Chancellor. In addition to the authorities then cited the following
cases were referred to : Thornbury v. Bevill («) ; Taylor v. Wakefield (b) ;
ITead v. Diggon (c) ; Palmer v. Scott (d).
James, L.J., after referring to the document of the 10th of June,
1874, continued : —
The document, though beginning " I hereby agree to sell," was noth-
ing but an offer, and was only intended to be an offer, for the Plaint-
iff himself tells us that he required time to consider whether he would
enter into an agreement or not. Unless both parties had then agreed
there was no concluded agreement then made ; it was in effect and
substance only an offer to sell. The Plauitiff, bemg mmded not to
complete the bargain at that time, added this memorandum — « This
offer to be left over until Friday, 9 o'clock a. m., 12th June, 1874."
That shows it was only an offer. There was no consideration given
for the undertaking or promise, to whatever extent it may be con-
sidered binding, to keep the property unsold until 9 o'clock on Fri-
day morning ; but apparently Dickinson was of opinion, and probably
Dodds was of the same opinion, that he ( Dodds ) was bound by that
(a) Y. and C. Ch. 554. (b) 6E. & B. 765. (c) 3 Man. & Ry. 97. (d) 1 Euss. & My. 391.
222 DICKINSON V. DODDS.
promise, and could not in any way witlidraw from it or retract it,
until 9 o'clock on Friday morning, and this probably explains a good
deal of what afterwards took place. But it is clear settled law, on
one of the clearest principles of law, that this promise, being a mere
nudum pactum, was not binding, and that at any moment before a
complete acceptance by Dickinson of the offer, Dodds was as free as
Dickinson himself. Well, that being the state of things, it is said
that the only mode in which Dodds could assert that freedom was by
actually and distinctly saying to Dickinson, « Now I withdraw my
offer." It appears to me that there is neither principle nor authority
for the proposition that there must be an express and actual with-
drawal of the offer, or what is called a retractation. It must, to con-
stitute a contract, appear that the two minds were at one, at the
same moment of time, that is, that there was an offer continumg
up to the time of the acceptance. If there was not such a contmuing
offer, then the acceptance comes to nothing. Of course 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 in this case, beyond all question, the Plaintiff knew that Dodds
was no longer minded to sell the property to him as plainly and
clearly as if Dodds had told him m so many words, " I withdraw the
offer." This is evident from the Plaintiff's own statements in the
bill.
The Plaintiff says in effect that, having heard and knowing that
Dodds was no longer minded to sell to him, and that he was selling
or had sold to some one else, thinking that he could not in point of
law withdraw his offer, meaning to fix him to it, and endeavormg to
bmd him, " I went to the house where he was lodging, and saw his
mother-in-law, and left with her an acceptance of the offer, knowing
all the while that he had entirely changed his mind. I got an agent
to watch for him at 7 o'clock the next morning, and I went to the
train just before 9 o'clock, m order that I might catch him and give
him my notice of acceptance just before 9 o'clock, and when that oc-
curred he told my agent, and he told me, you are too late, and he
then threw back the paper." It is to my mind quite clear that before
there was any attempt at acceptance by the Plaintiff, he was perfectly
well aware that Dodds had changed his mind, and that he had in fact
agreed to sell the property to Allan. It is impossible, therefore, to
say there was ever that existence of the same mind between the two
parties which is essential in point of law to the making of an agree-
ment. I am of opinion, therefore, that the Plaintiff' has failed to prove
that there was any binding contract between Dodds and himself.
Mellish, L. J. : —
I am of the same opinion. The first question is, whether this docu-
DICKINSON V. DODDS. 223
ment of the 10th of June, 1874, which was signed by Dodds, was an
agreement to sell, or only an. offer to sell, the property therein men-
tioned to Dickinson ; and I am clearly of opinion that it was only an /
offer, although it is in the first part of it, independently of the post- /
script, worded as an agreement. I apprehend that, until acceptance,
so that both parties are bound, even though an instrument is so word-
ed as to express that both parties agree, it is in point of law only an
offer, and, until both parties are bound, neither party is bound. It is
not necessary that both parties should be bound within the Statute
of Frauds, for, if one party makes an offer m writing, and the other
accepts it verbally, that will be sufficient to bind the person who has
signed the written document. But, if there be no agreement, either
verbally or m writmg, then, until acceptance, it is in point of law an
offer only, although worded as if it were an agreement. But it is
hardly necessary to resort to that doctrme in the present case, because
the postscript calls it an offer, and says, " This offer to be left over
until Friday, 9 o'clock a. m." Well, then, this being only an offer,
the law says — and it is a perfectly clear rule of law — that, although
it is said that the offer is to be left open until Friday morning at 9
o'clock, that did not bind Dodds. He was not m point of law bound
to hold the offer over until 9 o'clock on Friday morning. He was
not so bomid either in law or in equity. Well, that being so, when on
the next day he made an agreement with Allan to sell the property
to him, I am not aware of any ground on which it can be said that
that contract with Allan was not as good and binding a contract as
ever was made. Assummg Allan to have known (there is some dis-
pute about it, and Allan does not admit that he knew of it, but I will
assume that he did) that Dodds had made the offer to Dickinson, and
had given him till Friday morning at 9 o'clock to accept it, still in
pomt of law that could not prevent Allen from making a more fav-
orable offer than Dickinson, and entering at once into a bmding
agreement with Dodds.
Then Dickinson is informed by Berry that the property has been
sold by Dodds to Allan. Berry does not tell us from whom he heard
it, but he says that he did hear it, that he knew it, and that he in-
formed Dickinson of it. Now, stopping there, the question which
arises is this — If an offer has been made for the sale of property, and I
before that offer is accepted, the person who has made the offer enters j
into a binding agreement to sell the property to somebody else, and \
the person to whom the offer was first made receives notice in some |
way that the property has been sold to another person, can he after I
that make a binding contract by the accej^tance of the offer ? I am of I
opinion that he cannot. The law may be right or wrong in saying
that a person who has given to another a certain time within which
224 DICKINSON V. DODDS.
to accept an offer is not bound by his promise to give that time ; but,
if he is not bound by that promise, and may still sell the property to
some one else, and if it be the law that, in order to make a contract,
the two mmds must be in agreement at some one time, that is, at the
time of the acceptance, how is it possible that when the person to
I whom the offer has been made knows that the person who has made
I the offer has sold the property to someone else, and that, in fact,
he has not remained in the same mind to sell it to him, he can be at
f liberty to accept the offer and thereby make a binding contract? It
seems to me that would be simply absurd. If a man makes an offer
to sell a particular horse in his stable, and says, « I will give you un-
til the day after to-morrow to accept the offer," and the next day goes
and sells the horse to somebody else, and receives the purchase- money
from him, can the person to whom the offer was originally made then
come and say, « I accept," so as to make a binding contract, and so as
to be entitled to recover damages for the non-delivery of the horse ?
If the rule of law is that a mere offer to sell property, which can be
withdrawn at any time, and which is made dependent on the accept-
ance of the person to whom it is made, is a mere nudum pactum^ how
is it possible that the person to whom the offer has been made can by
acceptance make a binduig contract after he knows that the person
who has made the offer has sold the property to some one else ? It is
admitted law that, if a man who makes an offer dies, the offer cannot
be accepted after he is dead, and partmg with the property has very
much the same effect as the death of the owner, for it makes the per-
formance of the offer impossible. I am clearly of opinion that, just as
when a man who has made an offer dies before it is accepted it is im-
possible that it can then be accepted, so when once the person to whom
the offer was made knows that the property has been sold to someone
else, it is too late for him to accept the offer, and on that ground I am
clearly of opinion that there was no bindiag contract for the sale of
this property by Dodds to Dickinson, and even if there had been, it
seems to me that the sale of the property to Allan was first in point
of time. However, it is not necessary to consider, if there had been
two binding contracts, which of them would be entitled to priority in
equity, because there is no binding contract between Dodds and
Dickinson.
Baggallay, J. A : —
I entirely concur in the judgments which have been pronounced.
James, L. J. : — The bill will be dismissed with costs.
ADAMS V. LINDSELL. 225
ADAMS AND OTHERS v. LINDSELL AND ANOTHER.
In the King's Bench, June 5, 1818.
[Reported in 1 Barnewall & Alderson, 681.]
Action for non-delivery of wool according to agreement. At the
trial at the last Lent Assizes for the county of Worcester, before Bur-
rough, J., it appeared that the defendants, who were dealers in wool at
St. Ives, in the county of Huntingdon, had, on Tuesday, the 2nd of
September, 1817, written the following letter to the plamtiffs, who
were woollen manufacturers residing m Bromsgrove, Worcestershire :
« We now offer you eight hundi-ed tods of wether fleeces, of a good
fair quahty of our comitry wool, at 35s. Qd per tod, to be delivered at
Leicester, and to be paid for by two month's bill in two months, and
to be weighed up by your agent within fourteen days, receiving your
ansicer in course of postP
This letter was misdirected by the defendants to Bromsgrove, Lei-
cestershire, in consequence of which it was not received by the plaint-
iffs in Worcestershu-e till 7 p. m. on Friday, September 5th. On that
everdng the plaintiffs wrote an answer, agreeing to accept the wool on
the terms proposed. The course of the post between St. Ives and
Bromsgrove is through London, and consequently this answer was not
received by the defendants till Tuesday, September 9th. On the Mon-
day, September 8th, the defendants, not havuig, as they expected, re-
ceived an answer on Sunday, September 7th (which, in case their
letter had not been misdirected, would have been in the usual course
of the post), sold the wool m question to another person. Under
these circumstances, the learned Judge held that, the delay having
been occasioned by the neglect of the defendants, the jury must take
it that the answer did come back in due course of post ; and that then
the defendants were liable for the loss that had been sustained : and
the plaintiffs accordingly recovered a verdict.
Jervis, having in Easter Term obtamed a rule nisi for a new trial,
on the ground that there was no binding contract between the parties,
Dauncey^ Puller, and Richardson showed cause. They contended
that at the moment of the acceptance of the offer of the defendants
by the plaintiffs, the former became bound. And that was on Fri-
day evening when there had been no change of circumstances. They
were then stopped by the Court, who called upon
Jerviis and CampheU in support of support of the rule. They relied
on Payne v. (7«ye, (a) and more particularly on Cooke v. Oxley (b). In
that case, Oxley, who had proposed to sell goods to Cooke, and given
him a certain time, at his request, to determine whether he would
buy them or not, was held not liable to the performance of the con-
(a) 3 T. R 148. (b) 3 T. R. 653.
YoL. 1—15
226 BYllNE & CO. V. LEON VAN TIENHOVEN & CO.
tract, even though Cooke, withm the specified time, had determined
to buy them, and given Oxley notice to that effect. So here the de-
fendants who have proposed by letter to sell this wool are not to be
held liable, even though it be now admitted that the answer did
come back in due course of post. Till the plaintiffs' answer was
actually received, there could be no binding contract between the
parties ; and before then the defendants had retracted their offer by
selling the wool to other persons. But
The Court said, that if that were so, no contract could ever be com-
pleted by the post. For if the defendants were not bound by their offer
when accepted by the plaintiffs till the answer was received, then the
plaintiffs ought not to be bound till after they had received the noti-
fication that the defendants had received their answer and assented
j to it. And so it might go on ad infinUu^n. The defendants must be
{ considered in law as makmg, durmg every instant of the tune their
1 letter was travelling, the same identical offer to the plaintiffs ; and
' then the contract is completed by the acceptance of it by the latter.
( Then as to the delay in notifymg the acceptance, that arises entirely
I from the mistake of the defendants, and it therefore must be taken as
i against them, that the plaintiffs' answer was received in course of
i post.
Rule discharged.
BYRNE & Co. V. LEON VAN TIENHOVEN & Co.
In the High Court of Justice, March 6, 1880.
[Beported in 5 Common Pleas Division, 344.]
Action tried at Cardiff assizes, before Lmdley, J., without a jury.
B. T. Williams and B. Francis Williams, for the plaintiffs.
M^Intyre, Q. C, and Hughes, for the defendants.
Cur. adv. vult.
March 6. Lindley, J. This was an action for the recovery of dam-
ages for the non-delivery by the defendants to the plaintiffs of 1000
boxes of tinplates, pursuant to an alleged contract, which I will refer
to presently. The action was tried at Cardiff before myself without a
jury : and it was agreed at the trial that in the event of the plam tiffs
being entitled to damages they should be 375Z.
The defendants carried on business at Cardiff and the plaintiffs at
New York, and it takes ten or eleven days for a letter posted at either
place to reach the other. The alleged contract consists of a letter
written by the defendants to the plaintiffs on the 1st of October, 1879,
and received by them on the 11th, and accepted by telegram and letter
sent to the defendants on the lltb and 15th of October respectively.
BYKNE & CO. V, LEON VAN TIENHOVEN & CO. 227
These letters and telegram were as follows : — [ The learned judge read
the letter of the 1st of October, 1879, from the defendants to the plaint-
iffs. It contained a reference to the price of tinplates branded " Hen-
sol," and the "offer of 1000 boxes of this brand 14 x 20 at lbs. Qd. per
box f . o. b. here with 1 per cent, for our commission ; terms, four
months' bankers' acceptance on London or Liverpool against shipping
documents, but subject to your cable on or before the 15th mst.here."
The answer was a telegram from the plaintiffs to the defendants sent
on the 11th of October, 1879: "Accept thousand Hensols." On the
15th of October, 1879, the plaintiffs wrote to the defendants : " We
have to thank you for your valued letter under date 1st inst., which we
had on Saturday p. m., and immediately cabled acceptance of the 1000
boxes ' Hensol,' Ic. 14/20 as offered. Agamst this transaction we have
pleasure m handing you herewith the Canadian Bank of Commerce let-
ter of credit Xo. 78, October 13th, on Messrs. A. R. McMaster & Broth-
ers, London, for 1000^. . . . Will thank you to ship the 1000 ' Hensols'
without delay."] These letters and telegrams would, if they stood
alone, plainly constitute a contract binding on both parties. The de-
fendants in their pleadings say that there was no suflQcient writing
within the Statute of Frauds, and that they contracted only as agents ;
but these contentions were very properly abandoned as untenable, and
do not require further notice. The defendants, however, raised two
other defences to the action which remam to be considered. First,
they say that the offer made by their letter of the 1st of October was
revoked by them before it had been accepted by the plamtiff s by their
telegram of the 11th or letter of the 15th. The facts as to these are
as follows : On the 8th of October the defendants wrote and sent by post
to the plaintiffs a letter withdra-udng their offer of the 1st. The
material part of this letter was as follows : " Confirming our respects
of the 1st inst. we hasten to inform you that there havmg been a regu-
lar panic in the tinplate market during the last few days, which has
caused prices to run up about twenty-five per cent, we are reluctantlj'
compelled to withdraw any offer we have made to our constituents,
and must therefore also consider our offer to you for 1000 boxes ' Hen-
sols ' at 17s.6f?. to be cancelled from this date." This letter of the 8th
of October reached the plaintiffs on the 20th of October. On the same
day the plamtiffs telegraphed to the defendants demanding shipment,
and sent them a letter insisting on completion of the contract. [The
learned judge read the letter. In it the plaintiffs expressed astonish-
ment at the contents of the letter of the 8th, recapitulated the trans-
actions, and said "practically andm fact a contract for 1000 boxes
came into existence between you and ourselves. It requires the con-
sent of both parties to a contract to cancel same. If instead of writ-
ing to us on the 8th you had cabled ' offer withdrawn,' you would
228 BYRNE & CO. V. LEON VAN TIENHOVEN & CO.
have protected yourselves and us too. We disposed of the 1000 boxes
on the 17th at a net profit of 1,850 dollars. . . We write our friend
Philip S. Philips, Esq., of Aberkllery, requestmg him to call on you
and demand delivery as agreed." In a postscript they added, " You
speak of offer of 1000 boxes Hensol at \lsM. The only firm offer we
received from you under date 1st of October was 1000 boxes at 15s. 6c?.,
and ten per cent, f . o. b. Cardiff ; we cable you to-night ' demand ship-
ment.' "] This letter is followed by one from the defendants to the
plaintiffs of the 25th of October refusing to complete. [The learned
judge read it. The defendants acknowledged the receipt of the cable
message of the 20th, inclosed the credit note sent in the letter of the
15th, and added, "Our offer havhig been withdrawn by our letter of
the 8th inst. we now return the above credit for which we have no
further need, but take this opportunity to observe that in case of any
future business proposals between us, we must request you to conform
to our rules and principles, which require bankers' credit in this coun-
try, whereas the firm of A. R. McMaster & Brothers are not classified
as such."]
There is no doubt that an offer can be withdrawn before it is accep-
ted, and it is immaterial whether the offer is expressed to be open for
acceptance for a given time or not: Rontledge^. Grant {a). For the
decision of the present case, however, it is necessary to consider two
other questions, viz.: 1. Whether a withdrawal of an offer has any effect
mitil it is communicated to the person to whom the offer has been
sent ? 2. Whether posting a letter of withdrawal is a communication
to the person to whom the letter is sent ?
It is curious that neither of these questions appears to have been
actually decided in this country. As regards the first question,
I am aware that Pothier and some other writers of celebrity are of
opinion that there can be no contract if an offer is withdrawn before
it is accepted, although the withdrawal is not communicated to the
person to whom the offer has been made. The reason for this opinion
is that there is not in fact any such consent by both parties as is
essential to constitute a contract between them. Against this view,
however, it has been urged that a state of mind not notified cannot be
regarded in dealings between man and man ; and that an uncommuni-
cated revocation is for all practical purposes and in point of law no
revocation at all. This is the view taken in the United States : see
Tayloe v. Merchants Fire Insurance Co. (b), cited in Benjamin on Sales
pp. 56 — 58, and it is adopted by Mr. Benjamin. The same view is
taken by Mr. Pollock in his excellent work on Principles of Contract,
ed. ii., p. 10, and by Mr. Leake in his Digest of the Law of Contracts,
p. 43. This view, moreover, appears to me much more in accordance
(a) 4 Bing. 653. {b) 9 How. Sup. Ct. Rep. 390.
BYRNE & CO. V. LEON VAN TIENHOVEN & CO. 229
with the general principles of English law than the view maintained
by Pothier. I pass, therefore, to the next question, viz., whether post-
ing the letter of revocation was a sufficient communication of it to the
plaintiff. The offer was posted on the 1st of October, the withdrawal
was posted on the 8th, and did not reach the plaintiff until after he had
posted his letter of the 11th, accepting the offer. It may be taken as
now settled that where an offer is made and accepted by letters sent
through the post, the contract is completed the moment the letter
accepting the offer is posted : Harris' Case (a) Dunlop N.Higgins (b),
even although it never reaches its destination. When, however, these
authorities are looked at, it will be seen that they are based upon the
principle that the writer of the offer has expressly or impliedly as-
sented to treat an answer to him by a letter duly posted as a sufficient
acceptance and notification to himself, or, in other words, he has
made the post-office his agent to receive the acceptance and notification
of it. But this principle appears to me to be inapplicable to the case
of the withdrawal of an offer. In this particular case I can find no
evidence of any authority in fact given by the plamtiffs to the defend-
ants to notify a withdrawal of their offer by merely postmg a letter ;
and there is no legal principle or decision which compels me to hold,
contrary to the fact, that the letter of the 8th of October is to be
treated as communicated to the plaintiff on that day or on any day
before the 20th, when the letter reached them. But before that letter
had reached the plaintiffs they had accepted the offer, both by telegram
and by post ; and they had themselves resold the tm plates at a profit.
In my opinion the withdrawal by the defendants on the 8th of October
of their offer of the 1st was inoperative ; and a complete contract
binding on both parties was entered into on the 11th of October, when
the plaintiffs accepted the offer of the 1st, which they had no reason
to suppose had been withdrawn. Before leaving this part of the case
it may be as well to point out the extreme injustice and inconvenience
which any other conclusion would produce. If the defendants' con-
tention were to prevail no person who had received an offer by post
and had accepted it would know his position until he had waited such
a time as to be quite sure that a letter withdrawing the offer had not
been posted before his acceptance of it. It appears to me that both
legal principles and practical convenience require that a person who
has accepted an offer not known to him to have been revoked shall
be in a position safely to act upon the footing that the offer and ac-
ceptance constitute a contract binding- on both parties.
The defendants' next defence is that, as the plaintiffs never sent a
banker's acceptance on London or Liverpool as stipulated in the con-
tract, they cannot mamtain any action for its breach. The correspon-
(a) Law Rep.7 Ch. 587. (6) 1 H. L. 381.
230 BYRNE & CO. V. LEON VAN TIENHOVEN & CO.
dence which preceded the contract satisfies me that the defendants
attached importance to this particular mode of payment ; and although
the plaintiffs sent letters of credit which were practically as good as a
banker's acceptance, yet I cannot say that they did in fact send a
banker's acceptance according to the contract.
By the terms of the contract bankers' acceptances on London or
Liverpool were to be sent against, — i. e., were to be exchanged for —
shipping documents ; and if the defendants had been ready and will-
ing to perform the contract on their part on receiving proper bankers'
acceptances, I should have been of opinion that the plaintiffs would
not have sustained this action. But it is perfectly manifest from the
correspondence that the defendants did not refuse to perform the
contract on any such ground as this. It is true that the defendants
in their letter of the 31st of October say that, " even if we had not
withdrawn our offer we would all the same have returned youi' credit,"
and the defendants' solicitors in their letter of the 26th of November
say that, " if your clients (i. e. the plaintiffs), had fulfilled the terms
of the contract at the outset the goods were ready to be shipped ; "
but the defendants' own letters of the 8th, 13th and 25th of October
show conclusively that this was not the case and that the defendants
stood on their notice of withdrawal and would not have performed
the contract even if bankers' acceptances had been sent. Their letter
of the 25th of October in which they return the plamtiffs' first letter
of credit is explicit on this point. The defendants do not return the
letter of credit because it is not a banker's acceptance, but because
the offer was withdrawn ; and the inference I draw from that letter
is that if the offer had not been withdrawn the defendants would not
have returned the letter of credit although in future transactions they
might have been more particular. In face of this refusal, it was use-
less for the plaintiffs to send a banker's acceptance, and although
when they found their first letter of credit returned they sent another
which was declined, still the defendants never receded from their first
position, or expressed any readiness to ship the goods on receiving a
banker's acceptance ; and it is plain to my mind that they were not
prepared to do so. On the other hand, I am satisfied that if the
defendants had taken this ground the plamtiffs would have sent bank-
er's acceptances in exchange for shipping documents, and I infer as a
fact that the plaintiffs always were ready and willing to perform the
contract on their part, although they did not in fact tender proper
bankers' acceptances. It was contended that by pressing the defend-
ants to perform their contract the plaintiffs treated it as still subsist-
ing and could not treat the defendants as having broken it, and a
passage in Mr. Benjamin's book on Sales, p, 454, was referred to in
support of this contention. But, when the plaintiffs found that the
DUNLOP V. HIGGINS. 231
defendants were inflexible, and would not perform the contract at all,
they had, in my opinion, a right to treat it as at an end and to bring
an action for its breach. It would indeed be strange if theplaintiffs
by trying to persuade the defendants to perform their contract were
to lose their right to sue for its non-performance when their patience
was exhausted. The authorities referred to by Mr. Benjamin (viz.,
Avery v. Bowden {a) and others of that class), show that as the plaint-
iffs did not when the defendants first refused to perform the contract,
treat that refusal as a breach, the plaintiffs cannot now treat the con-
tract as broken at the time of such refusal. But I have found no au-
thority to show that a continued refusal by the defendants to perform
the contract cannot be treated by the plaintiffs as a breach of it by the
defendants. On the contrary Ripley v. McClure (b), and Cort v.
Ambergate, etc., My. Co. (c) show that the contmued refusal by the
defendants operated as a continued waiver of a tender of bankers' ac-
ceptances and enable the plaintiffs to sustain this action. In the
present instance it is not necessary to determine exactly when the
contract can be treated by the plaintiffs as broken by the defendants.
It is sufficient to say that whilst the plaintiffs were always ready and
willing to perform the contract on their part the defendants wrong-
fully and persistently refused to perform the contract on their part ;
and before action there was a breach by the defendants not waived by
the plaintiffs. For the reasons above stated I give judgment for the
plaintiffs for 375^. and costs.
Judgment for plaintiff's.
DUNLOP V. HIGGINS.
In the House of Lords, February 21, 22, 24, 1848.
DuNLOP AND Others, Appellants.
Vincent Higgins and Others, Respondents.
[Reported in 1 House of Lords Cases, 381.]
This was an appeal agauast a decree of the Court of Session, made
under the following circumstances : Messrs. Dunlop & Co. were iron
masters in Glasgow, and Messrs. Higgins & Co. were iron merchants
in Liverpool. Messrs. Higgins had written to Messrs. Dunlop respect-
ing the price of iron, and received the following answer : " Glasgow,
22d January, 1845. We shall be glad to supply you with 2000 tons
pigs, at 65 shilKngs per ton, net, delivered here." Messrs. Higgins
wrote the folllowing reply: "Liverpool, 25th January, 1845. You
(a) 5 E. & B. 714. (6) 4 Ex. 345. (c) 17 Q. B. 127.
Icc
'232 DUNLOP V. HIGGINS.
say 65s. net, for 2000 tons pigs. Does this mean for our usual four-
months' bill ? Please give us this information in course of post, as we
have to decide with other parties on Wednesday next." On the 28th
Messrs. Dunlop wrote, " Our quotation meant 65s. net, and not a four-
months' bill." This letter was received by Messrs. Higgins on the 30th
of January, and on the same day, and by post, but not by the first post
of that day, they despatched an answer in these terms : " We will
take the 2000 tons pigs you offer us. Your letter crossed ours of
yesterday, but we shall be glad to have your answer respecting the
additional 1000 tons. In your first letter you omitted to state any
terms ; hence the delay." This letter was dated « 31st January." It
was not delivered in Glasgow until 2 o'clock p.m. on the 1st of Feb-
ruary, and, on the same day, Messrs. Dunlop sent the following reply :
« Glasgow, 1st February, 1845. We have you letter of yesterday, but
are sorry that we cannot now enter the 2000 tons pig-iron, our offer of
the 28th not having been accepted in course." Messrs Higgins wrote
on the 2d February to say that they had erroneously dated their letter
on the 31st January, that it was really written and posted on the 30th,
in proof of which they referred to the post-mark. They did not, how-
ever, explain the delay which had taken place in its delivery. The
iron was not furnished to them, and iron having risen very rapidly in
the market, the question whether there had been a complete contract
between these parties was brought before a court of law. Messrs.
Higgins instituted a suit in the Court of Session for damages, as for
breach of contract. The defence of Messrs. Dunlop was, that their
letter of the 28th, offering the contract, not having been answered in
due time, there had been no such acceptance as would convert that
offer into a lawful and binding contract ; that their letter having been
delivered at Liverpool before eight o'clock m the morning of the 30th
of January, Messrs. Higgins ought, according to the usual practice of
merchants, to have answered it by the first post, which left Liverpool
at three o'clock p.m. on that day. A letter so dispatched would be
due in Glasgow at two o'clock p.m. on the 31st of January; another
post left Liverpool for Glasgow every day at one o'clock a.m., and
letters to be despatched by that post must be put mto the office during
the preceding evening, and if any letter had been sent by that post on
the morning of the 31st, it must have been delivered in Glasgow in the
regular course of post at eight o'clock in the morning of the 1st of
February. As no communication from Messrs. Higgins arrived by
either of these posts, Messrs. Dunlop contended that they were entitled
to treat their offer as not accepted, and that they were not bound to
wait until the third post delivered in Glasgow at two o'clock p.m. of
Saturday, the 1st of February (at which time Messrs. Higgins' letter
did actually arrive), before they entered into other contracts, the taking
H'
(4
DUNLOP V. HIGGINS. 233
of which would disable them from performing the contract they had
offered to Messrs. Higgins.
The cause came before Lord Ivory, as Lord Ordinary, who directed
an issue, which he settled in the following terms : —
"Whether, about the end of January, 1845, Messrs. Higgins pur-
chased from Messrs. Dunlop 2,000 tons of pig-u*on, at the price of 65s.
per ton, and whether Messrs. Dmilop wrongfully failed to deliver the
same, to the damage, loss, and injury of the pursuers ? Damages laid
at 6,000/." This issue was tried before the Lord Justice General,
when it appeared that the letter of Messrs. Higgins, accepting the
offer, was written on the 30th ; that it was posted a short time after
the closmg of the bags for the despatch at three o'clock p. m. on that
day, and consequently did not leave Liverpool till the despatch at one
o'clock mthe mornmg of the olst ; that, in consequence of the slippery
state of the roads, the bag then sent did not arrive at Warrmgton till
after the departure of the down train that ought to have conveyed it,
and that this circumstance occasioned it to be delayed beyond the
ordinary hour of delivery. The Lord Justice General told the jury
" that he adopted the law as duly expounded in the case of Adams v.
Lindsell^ (a) and which is as follows :'A., by a letter, offers to sell to B.
certain specified goods, receimng an answer by return of post ; the let-
ter bemg misdirected, the answer notifying the acceptance of the offer
arrived two days later than it ought to have done ; on the day follow-
ing that when it would have arrived, if the origmal letter had been
properly directed, A. sold the goods to a third person,' and in which
it was held ' that there was a contract binding the parties from the
moment the offer was accepted, and that B. was entitled to recover
against A. in an action for not completing his contract.' "
The comisel for Messrs. Dunlop tendered the following exceptions :
The first exception related to evidence, and alleged " that no evidence
to show that the letter, purporting to be dated on the 31st, was really
written on the 30th of January, ought to have been admitted." The
other exceptions related to the charge, and were as follows : —
2. In so far as his Lordship directed the jury, in point of law, that
if Messrs. Higgins posted their acceptance of the offer in due time ac-
cording to the usage of trade, they are not responsible for any casual-
ties in the post-office establishment.
3. In so far as his Lordship did not direct the jury, in point of
law, that, if a merchant makes an offer to a party at a distance by
post-letter, requiring to be answered within a certain time, and no
answer arrives within such time as it should arrive, if the party had
written and posted his letter within the time allowed, the offerer is
free, though the answer may have been actually written and posted
(a) 1 Barnewall & Alderson, 681.
234 DUNLOP V. BIGGINS.
in due time, if he is not proved to be aware of accidental circumstances
preventing the due arrival of the answer.
4. In so far as his Lordship did not direct the jury, in pomt of
law', that, m the case above supposed, if an answer arrives, bearmg a
date beyond the tune limited as above for making answer, and arrives
by a man, and is delivered at a tune correspondmg to such date, the
offerer is entitled to consider himself free to deal with the goods as
his own, either to sell or to hold, if he be not m the knowledge that
the answer received was truly wi'itten of an earlier date, and delayed
in its arrival by accident.
5 In so far as his Lordship did not direct the jury, in pomt of
law, that, m case of failure to deliver goods sold at a stipulated price
and immediately deliverable, the true measure of damage is the dif-
ference between the stipulated price and the market price, on or about
the day the contract is broken, or at or about the time when the pur-
chaser might have supphed hunself .
These exceptions were afterwards argued before the judges of the
First Division, who pronounced an interlocutor, disallowmg the ex-
ceptions ; and that mterlocutor was the subject of the present appeal.
Mr. Bethell and Mr. Anderson, for the appellants.
The question raised m this case is one of considerable importance,
and the decision of it in accordance with the judgment of the court be-
low, wUl have the effect of rendermg the acceptance of contracts a
matter of doubt and uncertainty. If the decision of the judges of the
Court ot Session is right, a contract is complete when the acceptance
of the offer to enter mto it is posted, although such acceptance may
not reach the person who made the offer till long after the tune at
which, by the usage of trade, he is entitled to expect it. Such a de-
cision, if unreversed, wHl leave the person makmg an offer under the
necessity of waiting for an mdefinite time m order to know whether
his offer has been accepted. During all this time he wiU be restrained
from freely dealmg with his own property.
The exceptions here ought to have been sustained by the Court.
The first of them relates to the evidence offered at the trial. That
evidence was improperly admitted. The Court ought not to have
received evidence to contradict a written document. When a letter
is sent to a party, he has a right to assume that it is properly written,
and is entitled to rely on its contents. He is at least entitled to do
so as against the writer of the letter. The writer is not at liberty to
show those contents to be erroneous : at all events he is not at liberty
to do so after the person receiving it has acted upon it, and thus to
affect the rights of that party, and to give himself rights to which, if
the letter had been correctly vrritten, he would not have been entitled.
To admit such evidence is to unsettle all the rules of business, and to
DUNLOP V. HIGGINS. 235"
prevent commercial men acting with that certainty and confidence
which are necessary for the proper conduct of commercial affairs.
[The Lord Chancellor. When a party sends a letter, actually
sent on the 30th, but dated by mistake on the 31st, may he not show
that that date had been put m by mistake ?]
It might be difficult to maintain the simple negative of that question,
but in considering the admissibiUty of such evidence, all the circum-
stances of the case must be referred to. In the present case, for in-
stance, as the letter was received on a day after that of its date, and
when therefore the person receivmg it had no reason to suspect
that the date was erroneously given, his rights ought not to be affected
by a subsequent explanation ; and the evidence intended to afford
that explanation ought not therefore to have been admitted.
Then as to the second exception : if a letter sent is posted in due
time, but is not received in due time, who is to bear the loss con-
sequent upon its non-delivery ? Certainly not the person to whom it
is sent. The fact that it is sent by the post-office makes no difference
in the matter. It is the same as if the letter was sent by a special
messenger, in which case it is plam that the person sendmg the mes-
senger would be responsible for any accident or delay. The appellants
are not to be made responsible for the casualties of the post-office, and
surely they cannot be made so in a case in which the persons sending
an answer to an offer which they had made, totally disregarded the
ordinary usages of commercial houses as to the time of sending such
answer.
The clear principle, set forth m the third objection, is that which
ought to be adopted in all cases of this kind. Where an individual
makes an offer by post, stipulating for, or, by the nature of the busi-
ness, havmg the right to expect, an answer by return of post, the offer
can only endure for a limited time, and the making of it accompanied
by an implied stipulation that the answer shall be sent by return of
post. If that implied stipulation is not satisfied, the person making
the offer is released from it. When a person seeks to acquire a right, *
he is boimd to act with a degree of strictness such as may not be re-
quired where he is only endeavoring to excuse himself from a liability. 0Jj,(i\^^'^
The question of reasonableness of notice, which may be admitted in \ llji^
cases of bills of exchange, cannot be introduced m a case where one' ^^^ ^^^^.
party seeks to enforce on another the acceptance of a contract. A bill , jiii^ft^T*'^
of exchange is already a binding contract ; no new right is acquired by | ^^^f^^jiyt^
notice ; it is merely a necessary proceeding to enable the party giving \ f^ ^vv*-
it to enforce a right previously created. "^
Then as to the [fourth ? ] exception. In the case of a contract, the "
acceptance of the offer creates the contract ; the acceptance implies ^
that both parties have knowledge of all the circumstances. On prin-
'236 DTJNLOP V. HIGGINS.
ciple, it is plain that the acceptance should be immediate, and that
if there is a delay in making that acceptance known, the offerer is free.
In order to make the contract perfect, there ought to have been a co-
existing assent. Countess of Diinmore v. Alexmider (a). There, a
lady having written to another to engage a servant for her, and then
sent a second letter to countermand the first, and the two letters hav-
ing been delivered to the servant simultaneously, it was held that
there was not a complete contract, and that the servant was not en-
titled to wages. The Court of King's Bench, in Head v. Diggon^ (b)
acted upon the same principle. There, A. and B. bemg together, B.
offered goods to A. at a certain price, and gave A. three days to make
up his mind. The Court held that this was not an absolute bargain,
and that within the three days B. had a right to retract.
Such are the principles which ought to govern this case. Then as
to authority. It is curious enough that this exact question seems
never to have arisen. That circumstance is some proof of the clear-
ness of the principle which is applicable to such transactions, for had
there been any question as to that prmciple, — had it been doubtful
whether delay might be excused, and whether, in spite of delay, a
party guilty of it might not still insist on a contract being complete,
cases must have arisen as to the degree of laxity permitted by the.
law in the acceptance of contracts. None such is to be found. The
case of Adams v. Undsell (c) was the authority adopted by the Lord
Justice General in his direction to the jury : but that case does not
justify his ruling. [The Loed Chancellor. If the letter of acceptance
is sent m the usual way, is the sender still responsible for its due
delivery ?] If not, then both parties are free. One cannot be bound',
while the other is free. Each party takes an equal risk. But sup-
posing delay is to be permitted, to what extent is it to be allowed ? May
the delay last one, two, or three days, or a week, or a fortnight, or a
month ? If any delay is to be permitted, the extent of it must be de-
fined. Otherwise, all commercial matters will be m a state of per-
petual uncertainty. But, in fact no delay is allowed. Each party is
bound to write by return of post, and each is hable to the consequences
of his own letter [not ?] arriving in time. Such appears to be the
mercantile usage on the subject. When an offer is made by one mer-
chant to send to another a particular commodity which varies in price,
that offer is made subject to the obligation of its being answered by
return of post. It is therefore an offer subject to a condition. It is
conditional in point both of time and manner of acceptance. As to
time, the offer enures till it can be answered by return of post. If it
is made on a condition, then it is clearly not binding till that condition
shall be accepted. Here, too, the condition is a condition precedent-
Nothing, therefore, can be substituted for it.
(a) 9 Shaw «& Dunlop, 190. {V) 3 Manning & Ryland, 97. (c) 1 Baraewall & Alderson, 681.
DUNLOP V. HIGGLNS. 237
[The Lord Chancellor. Where is this condition imposed?]
In mercantile usage, founded on law. The legal condition is to
return an answer in a particular time. Mercantile usage has fixed
that time as the return of post. No decision has ruled, as a point of
legal principle, that, if an individual addressed fails in performing this
condition, still that the person making the offer is bound. The
principle of the Scotch law, as stated in M'Douall's Institutes, is the
other way. It is there said (a), " Conditional obligations, properly so
termed, are presently binduig and irrevocable, and only the effect is
suspended, but sometimes the obligation is only to be contracted upon
a condition which affects the very substance of it. Thus an offer has
an implied condition of acceptance, whereby alone the consent of
the other party accedes and converts the offer into a contract ; so
that it is not bmding, but ambulatory or revocable, till it is accepted
and therefore either revocation by the offerer or death of either
party before acceptance, voids it. The same rule holds in mutual
contracts, — the one party subscribing is not bound till the other
subscribe likewise." The law of England is in conformity with the
principle of the Scotch law.
As the revocation by either party before acceptance makes the offer
void, the acceptance of the other side must be notified within a defi-
nite period of time ; Stair's Institutes (b). This rule of notification is a
condition precedent in the English as well as the Scotch law. This
principle was acted on by the Court of King's Bench in the case of
Damson v. Mure{c). That was the case of a ship which was captured
by the Americans while under convoy. The condition there was that
the master should make the best defense, and without it appeared to
a court-martial that he had done so, he was not to be allowed to
recover. It was held that this condition was a condition precedent.
The same doctrine was applied by that Court to the condition in a
policy of insurance against fire, that the party should obtain a certifi-
cate from the rector of his parish, and a certain number of the inhabi-
tants, before entitling himself to payment of his claim for loss ; Wor-
sley V. Wood (d). If this is a condition precedent, then it must be ex-
actly performed, and nothmg can be substituted for it. In this
respect there is a difference between a condition precedent and a
condition subsequent. The former must be performed before an
estate can vest; while the performance of the latter, which is in-
tended to defeat an existing estate, may be dispensed with. The
act of God, the king's enemies, or the impossibility of performance,
will furnish an excuse as to a condition subsequent. This is a
settled principle of our law, and the case of Brodie v. Todd {e) shows
that the law of Scotland recognizes the same rule. In that case,
(n) Bk. 1. tit. 4, p. 98, fol. ed. (6) Tit. 2, § 8. (c) 3 Douglas, 28.
(d) 6 Term Kep. 710. (e) 17 Fac. Col. Dec. 20, May, 1814.
238 DUNLOP V. HIGGINS.
Arnot, a merchant of Leitli, agreed to purchase from Todd & Co. of
Hull, goods which were to be paid for by his acceptance. They put
the goods on board a vessel at Hull ; enclosed a bill of ladhig and
a draft for the price in a letter, advismg Arnot of the shipment,
and requesting him to return the draft accepted "in course." This
letter was received by Arnot on the mornmg of the 24th of April,
and if answered by hun by return of post the answer might have
been received by Todd& Co. on the morning of the 26th. Arnot, how-
ever, did not answer it till that day, when he sent back the draft
accepted. In the course of the 26th, Todd & Co., not having received
the draft as expected, re-landed the goods. Arnot brought an
action ; and the question was, whether the request to return " in
course," meant a return by the earliest post, and constituted a con-
dition precedent. The Lords held that the words meant by return of
post, and did constitute a condition j)recedent, and consequently
that no action was maintamable by Arnot, smce he had not complied
with the condition on which the bargain was made. That case is
completely decisive as to what is the doctrine of the Scotch law,
and must govern the decision here.
[The Lord Chancellor. Is it not a question of fact, whether the
posting of the letter, in this case, on the 30th of January, was not a
compliance with the duty of the party ? Here is no distinct stipula-
tion, — it is all matter of mference. The question is whether putting
in the post is not a virtual acceptance, though by the accident of the
post it does not arrive. In the case quoted, one whole day was
allowed to intervene. But in this case, if puttmg the letter in- the
post is a compliance with the condition, there is an end of the ques-
tion.]
That would be so, if it was a condition subsequent, for then some-
thing could be substituted for actual performance. But this is a con-
dition precedent, and must be literally performed.
In considermg this question Lord Jeffrey observed, " The party
here only says, ' If I do not hear by return of post. ' I have yet to
learn that the return of post is like the return of the sun to the
meridian at a particular time. I do not think that the use of such a
phrase is equivalent to the stipulation of a particular time. I am in-
clmed to hold that the return of post means the actual return of the
post. And the species facti here was, the letter accepting the offer
having been sent m due time to the post-oflSce, that it did [not?] come
to hand at the hour at which, according to the usual time required for
its transmission, it should have come. But the actual course of that
post was not till the morning of the 1 st of February. " And the learned
Judge justifies his doctrine by referring to the case of the post coming
by sea, where a general average time is fixed, but where return of post
DUNLOP V. HIGGINS. 239
is not calculated by that average, but by the actual arrival of the post,
and then he supposes a universal snow-storm affecting the delivery
by land, and argues that if matter of that general notoriety would
affect the question, so does any other accident to the post although
not so generally known. But surely this is giving an entirely new in-
terpretation to mercantile contracts, and is making accidental circum-
stances or natural delays, always comited upon, furnish ground for
the construction of a delay occasioned by an accident which neither
party anticipated. Besides, it is clear on the facts here, that had the
letter been put into the early post of the 30th January, this accident
would not have befallen it ; so that the accidental delay in the post-
office was really the consequence of the delay in posting the letter,
and was so far attributable to the respondents.
They cannot, therefore, claim any advantage from their acceptance
of the contract, which acceptance they did not notify, nor condemn
the other parties for non-performance of a contract, the acceptance of
which they did not know. It is the acceptance which completes the
contract. The agreement is not suspended till the offerer has actually
received notice of the acceptance, but only mitil he might have re-
ceived notice, had that notice been forwarded at the earliest moment.
This is the rule declared in Bell's Principles of the Law of Scotland (a),
and this rule must be applied to, and must govern the decision of the
present case.
Mr. /Stuart Worthy and Mr. Hugh Hill^ for the respondents, were
not called on.
The Lord Chancellor. My Lords, every thing which learniag or
ingenuity can suggest on the part of the appellants, has undoubtedly
been suggested on the part of the learned counsel who have just ad-
dressed the House ; and if your Lordships concur in my view, that
they have failed m making out their case, you will have the satisfaction
of knowing that you have come to that conclusion after having had
every thing suggested to you that by possibility could be advanced in
favor of this appeal.
The case certamly appears to me one which requires great ingenuity
on the part of the appellants, because I do not think that, m the facts
of the case, there is anything to warrant the appeal. The contest
arises from an order sent from Liverpool to Glasgow, or rather a prop-
osition sent from Glasgow to Liverpool, and accepted by the house
at Liverpool. It is minecessary to go earlier into the history of the
case than the letter sent from Liverpool by Higgins, bearmg date the
31st of January. A proposition had been made by the Glasgow house
of Dunlop, Wilson. & Co. , to sell 2000 tons of pig-iron. The answer
(a) Page 85, § 78.
240 DUNLOP V. HIGGINS.
is of thai: date of the 31st of January : " Gentlemen, we will take the
2000 tons, pigs, you offer us. " Another part of the letter refers to
other arrangements ; but there is a distinct and positive offer to take
the 2000 tons of pigs. To that letter there is annexed a postscript in
which they say, " We have accepted your offer unconditionally ; but
we hope you will accede to our request as to delivery and mode of pay-
ment by two months' bill. "
That, my Lords, therefore, is an unconditional acceptance, by the
letter dated the 31st of .January, which was proved to have been put
into the post-ofQce at Liverpool on the 30th ; but it was not delivered,
owing to the state of severe frost at that time, which delayed the mail
from reaching Glasgow at the time at which, in the ordmary course, it
would have arrived there. The letter having been put in on the 30 th
of January, it ought to have arrived at Glasgow on the following day,
but it did not arrive till the 1st of February.
It appears that between the time of writing the offer and the 1st of
February, the parties making the offer had changed their minds ; and
instead of being willing to sell 2000 tons of pig-iron on the terms pro-
posed, they were anxious to be relieved from that stipulation ; and on
that day, the 1st of February, they say, " We have yours of yesterday,
but are sorry that we camiot enter the 2000 tons of pig-iron, our offer
of the 28th not having been accepted in course. "
Under these circumstances, the parties wishing to buy, and by their
letter accepting the offer, instituted proceedings in the Court of Ses-
sion for damages sustamed by the non-performance of the contract.
And the first question raised by the first exception applies not to the
summing up of the learned Judge, but to the admission of evidence
by him ; for connected with that admission of evidence is the first
exception. I need hardly say but little on this point, but as it formed
part of the proceedings on which the judgment must ultimately be
pronomiced, I will very shortly call your Lordship's attention to the
proposition presented for your decision by that first exception.
My Lords, the exception states, " that the pursuers havmg admitted
that they were bound to answer the defenders' offer of the 28th, by let-
ter written and posted on the 30th, and the only answer received by the
defenders being admitted to be dated on the 31st of January, and re-
ceived in Glasgow by the mail which in due course ought to bring the
Liverpool letters of the 31st, but not Liverpool letters of the 30th, it is
not competent in a question as to the right of the defenders to with-
draw or fall from the offer, to prove that the letter bearing date the
31st of January was written and despatched from Liverpool on the
30th, and prevented by accident from reaching Glasgow in due course,
especially as it is not alleged that the defenders were aware (previous
to the 3d of February) of any such accident having occurred."
DUNLOP V, HIGGINS. 241
The counsel for the pursuer answered that nothing had been stated,
but that the pursuers were bound mstantly to answer the defenders'
offer of the 28th of January, and that, according to the practice of
merchants, it was sufficient if that letter was answered on that day on
which it was received.
The Lord Justice General did overrule the objection, and admitted
the evidence.
The exception is that the learned Judge was wrong in permitting
the pursuer to explam his mistake. The proposition is, that if a man
is bound to answer a letter on a particular day, and by mistake puts a
date in advance, he is to be bound by his error, whether it produces
mischief to the other party or not. It is unnecessary to do more than
state this proposition m order to induce you to assent to the view I
take of the objection, and to come to the conclusion that the learned
Judge was right in allowing the pursuer to go mto evidence to show
the mistake.
I pass on then to the fourth exception which is connected with this
point, and which states that his Lordship did not direct the jury in
pomt of law, that, in the case above supposed, if an answer arrives
bearing a date beyond the time limited as above for making answer
and arrives by a mail, and is delivered at a time corresponding to such
date, the offerer is entitled to consider himself free to deal with the
goods as his own, either to sell or to hold, if he was not in the knowl-
edge that the answer received was duly written at an earlier date,
and delayed in its arrival by accident ; that is to say, that if a letter
bears a date which, on the face of it, shows that it was written erro-
neously, nevertheless the party is bomid by the date so written on the
face of the letter, and you caimot go mto the circumstances to explain
how it happened that the letter did not arrive in time, but that you
are bound to assume that it arrived on the day mentioned, and the
party cannot give any evidence in explanation.
My Lords, that falls with the other exception, and the two together
go for nothmg. I merely state it for the purpose of asking your Lord-
ships to concur in the opmion that I have formed— that the learned
Judge was correct in the mode in which he left the question to the
jury, and consequently that on that pomt the bill of exceptions cannot
be supported.
The next exception to be considered is the second, and that raises a
more important question, though not one attended with much difficulty.
The exception is, that his Lordship did direct the jury in pomt of law,
that if the pursuers posted their acceptance of the offer in due time,
according to the usage of trade, they are not responsible for any cas-
ualties m the Post Office establishment.
Now, there may be some little ambiguity in the construction of that
Vol. 1—16
242 DUNLOP V. HIGGINS.
I proposition. It proceeds on the assumption that by the usage of
/ trade an answer ought to have been returned by the post, and that the
/ 30th was the right day on which that answer ought to have been noti-
' fled. Then comes the question, whether, under those circumstances,
that bemg the usage of trade, the fact of the letter bemg delayed, not
by the act of the party sendmg it, but by an accident connected
with the post, the party so putting the letter m on the right day is to
lose the benefit which would have belonged to him if the letter had
arrived in due course ?
I cannot conceive, if that is the right construction of the direction
/ of the learned Judge, how any doubt can exist on the pomt. If a
/ party does all that he can do, that is aU that is called for. If there is
a usage of trade to accept such an offer, and to retui-n an answer to
such an offer, and to forward it by means of the post, and if the party
acceptmg the offer puts his letter into the post on the correct day, has
he not done everythmg he was bound to do ? How can he be respon-
sible for that over which he has no control? It is not the same as if
the date of the party's acceptance of the offer had been the subject of a
special contract : as if the contract had been, " 1 make you this offer,
but you must return me an answer on the 30th, and on the earliest
post of that day." The usage of trade would requu-e an answer on
the day on which the offer was received, and Messrs. Higgms, there-
fore, did on the 30th, in proper time, return an answer by the right
conveyance — the Post Office.
If that was not correct, and if you were to have reference now to
any usage constituting the contract between the parties a specific
contract, it is quite clear to me that the rule of law would necessarily
be that which has obtamed by the usage of trade. It has been so de-
cided m cases m England, and none has been cited from Scotland
which controverts that proposition ; but the cases in England put it
beyond all doubt. It is not disputed, it is a very frequent occurrence,
that a party having a bill of exchange, which he tenders for payment
to the acceptor, and payment is refused, is bound to give the earliest
notice to the drawer. That person may be resident many miles dis-
tant from him ; if he puts a letter into the post at the right time, it
has been held quite sufficient ; he has done all that he is expected
to do as far as he is concerned ; he has put the letter into the post,
and whether that letter be delivered, or not, is a matter quite imma-
terial, because, for accidents happening at the Post Office he is not
responsible.
My Lords, the case of Stockenv. Collin (a) is precisely a case of that
nature, where the letter did not arrive in time. In that case Baron
Parke says, " It was a question for the jury whether the letter was
(a) 7 Meeson & Welsby, 515.
DTJNLOP V. HIGGINS. 243
put into the post-office in time for delivery on the 28th. The post-
office mark certamly raised a presumption to the contrary, but it was
not conclusive. The jurors have believed the testimony of the wit-
ness who posted the letter, and the verdict was therefore right. If a
party puts a notice of dishonor into the post, so that hi due course of
delivery it would arrive m time, he has done all that can be required
of him, and it is no fault of his if delay occui's in the delivery." Baron
Alderson says, « The party who sends the notice is not answerable
for the blunder of the post-office. I remember to have held so in a
case on the Norfolk Circuit, where a notice adcli^essed to Norwich had
been sent to Warwick. If the doctrme that the post-office is only the
agent for the dehvery of the notice, was correct, no one could safely
avail himself of that mode of transmission. The real question is
whether the party has been guilty of laches."
There is also the other case which has been referred to, which
declares the same doctrme, the case of Adatns v. Lindsell («). That
is a case where the letter went, by the error of the party sending it,
to the wrong place, but the party receiving it answered it, so far as
he was concerned, m proper time. The party, however, who originally
sent the offer not receiving the answer in proper time, thought he was
discharged, and entered into a coutract and sold the goods to somebody
else. The question was, whether the party makmg the offer had a
right to withdraw after notice of acceptance. He sold the goods after
the party had written the letter of acceptance, but before it arrived he
said, " I withdraw my offer." Therefore he said, « before I received
your acceptance of my offer I had withdrawn it." And that raised
the question when the acceptance took place, and what constituted the
acceptance. It was argued, that " till the plamtiff's answer was actu-
ally received, there could be no bmding contract between the parties,
and that before then the defendants had retracted their offer by sellino-
the wool to other persons." But the Court said, « If that were so, no
contract could ever be completed by the post, for if the defendants
were not bound by their offer when accepted by the plaintiffs tUl the
answer was received, then the plaintiffs ought not to be bound till
after they had received the notification that the defendants had re-
ceived their answer and assented to it. And so it might go on ad
infinitum.
The defendants must be considered in law as making during every
instant of the time their letter was travellmg the same identical offer
to the plaintiffs, and then the contract is completed by the acceptance
of it by the latter."
Those two cases leave no doubt at all on the subject. Common
sense tells us that transactions cannot go on without such a rule, and
(a) 1 Bamewall & Alderson, 681.
244 COUNTESS OF DUNMORE V. ALEXANDER.
these cases seem to be the leading cases on the subject, and we have
heard no authority cited which in the least degree affects the principle
on which they proceed. The law of Scotland appears to be the same
as the law of England, for Mr. Bell's Commentary lays down the same
rule as existing in Scotland, and nothing has been stated to us in con-
tradiction of his opinion.
Now whether I take that proposition as conclusive upon the objec-
tion, or whether I consider it as a question entirely open, whether the
putting the letter into the post was, or not, in time to constitute a
valid acceptance, it appears to me that the learned Judge was right in
the conclusion to which he came, that he was right in the mode in
which he left the question to the jury, and that he was not bound to
lay down the law in the manner alleged in the bill of exceptions.
The next exception is the third, which says, « In so far as his Lord-
ship did not direct the jury in pomt of law, that if a merchant makes
an offer to a party at a distance, by post letter, requiring to be an-
swered within a certain time, and no answer arrives within such time
as it should arrive, if the party had written and posted his letter
within the time allowed, the offerer is free, though the answer may
have actually been written and posted in due time, if he is not proved
to be aware of accidental circumstances preventing the due arrival of
the answer."
That, my Lords, raises first of all a proposition that does not arise
in this case at all. It assumes a contract that requires an answer
within a certain stipulated time, and it assumes (which is already dis-
posed of by what I have said in answer to the second exception) that
the putting a letter into the post is not a compliance with the re-
quisition of the offer. But there is no special contract here, and
therefore this exception cannot be maintained.
I believe that in these remarks I have exhausted the whole of the
objections made ; and my advice to your Lordships is to affirm the
judgment of the court from which this is appealed.
It was ordered that the interlocutor complained of should be affirmed^
with costs.
COUNTESS OF DUNMORE AND HUSBAND, Advocators.
ELIZABETH ALEXANDER, Hespondent.
CouKT OF Session in Scotland, December 15, 1830.
[Reported in 9 Shaw and Dunlopy 190.]
The Countess of Dunmore, being about to change a servant, and
having heard that Elizabeth Alexander was to leave the service of
f\*
'■■■^
COUNTESS OF DUNMORE V. ALEXANDER. 245
Lady Agnew of Lochnaw, wrote to her ladyship, mentiomng the cir-
cumstance ; stating that the wages she gave were £12. 125. per annum,
and requesting to be mformed as to Alexander's character. Lady
Agnew, in answer, stated that she could recommend Alexander, who
would gratefully accept the proposed wages ; and her ladyship added
as follows ; « If Lady Dunmore decides upon taking Betty Alexander,
perhaps she will have the goodness to mention whether she expects
her at the new or the old term." On the fifth of November, the
Countess wrote to Lady Agnew, requestmg that she would « have the
goodness to engage Betty Alexander for her at the £12. 12s. a year,
but she wishes to have her at the new term, or as soon after as pos-
sible, because her present one must go at that time." The letter went
through the post-office to Lochnaw ; but as Lady Agnew had gone to
Glasserton-house, it was sent to her there. Upon receivmg it Lady
Agnew desii-ed her housekeeper, Mrs. Moore (who had accompanied
her), to notify the Countess's answer to Alexander, which was done by
Moore makuig an addition on the letter itself and puttmg it mto the
post-office, addressed to Betty Alexander at Loclinaw. In the mean-
while, on the 6th of November (the day after writing the above letter),
the Countess addressed another letter to Lady Agnew intimating that
she no longer needed Alexander. Tliis second letter, which was also
addressed to Lochnaw, was sent to Lady Agnew at Glasserton-
house, and was received immediately after the other had been des-
patched to the post-office ; but Lady Agnew sent the second one by
express to the post-office, and both the letters arrived at Lochnaw
together, and were delivered at the same moment to Alexander. Lady
Dunmore having declined to receive her, or pay her wages, Alexander
raised an action agamst her in June, 1827, before the Sheriff of Stir-
lingshire, for wages and board-wages for six months, from Martinmas,
1826, to Whit-sunday, 1827, at which time she had got a new situation.
In support of this demand, she maintained that there had been a
completed contract, and that Lady Dunmore was not entitled to resile.
On the other hand, her Ladyship contended, that as the two letters
had been received by Alexander at one and the same time, she was
made aware that her serAdces would not be required, and therefore
she could not allege a concluded contract.
The Sheriff Substitute, after finding the above facts, pronounced an
interlocutor in these terms : Finds that Lady Agnew's card, formerly
referred to, cannot from its terms be interpreted or considered other-
wise than as an offer, on the part of the pursuer, to engage as a servant
with the noble defender on the terms proposed in a communication, to
which this card is obviously an answer ;— finds it doubtful whether
the noble defender's reply to Lady Agnew, contamed in the card
libelled on, uncommunicated in any way to the pursuer, can be held
246 COUNTESS OF DUNMORE V. ALEXANDER.
to be a legal acceptance of the offer ;— but finds it very clear, abstract-
edly from the specialties of the present case, that the said card, com-
municated, in the manner it has been done, to the pursuer by Lady
Agnew through Mrs. Moore, must be held to be a legal acceptance of
the offer, an actual engagement of the pursuer, and a completion of
the contract, from which neither party was entitled to resile ;— there-
fore finds that the issue of this case depends on the solution of the ques-
tion, whether a party who accepts of an offer is entitled at the same
moment, imico co?itextu, or with the same breath, to retract his accept-
ance. And the Sheriff Substitute beuig of opinion that the mstant an
offer is accepted of the contract is completed, it is not in the power of
either party to retract or resile ;— that from the moment of acceptance,
as expressed by Mr. Bell in treatmg of the contract of sale, there is be-
tween the parties in idem placitum concursus et convention which con-
stitutes the contract ;— finds that, as in the present instance the con-
tract was completed by the transmission of the card libelled on to the
pursuer, the engagement between the parties was rendered indissoluble
without the consent of both, and that it was consequently beyond the
power of the noble defender at any time, however short the mterval,
to retract the acceptance, or resile from the engagement ; — on these
grounds repels the defense, and decerns agamst the noble defenders in
terms of the conclusion of the libel.
The Sheriff Depute havmg adhered, the Countess advocated ; and
the Lord Ordinary, having ordered cases, " advocated the cause, ap-
proved of the findings in point of fact in the Sheriff's interlocutor ; but
altered the judgment of the Sheriff, sustained the defenses, assoilzied
the advocators," and found no expenses due. (a)
Alexander reclaimed.
(a) The Sheriff, in his interlocutor of 15th February, 1828, has stated the facts cor-
rectly, but his judgment seems inconsistent with the facts he has found. He puts
his opinion on the ground that the contract was only completed by the communica-
tion to the piirsuer of Mrs. Moore's letters; yet he conceives there was some inter-
val betwixt her knowledge of the consent and of the recall which rendered the
latter ineffectual. But as the letters were delivered to the pursuer by the same per-
son and at the same moment, while it is impossible to know which was first read,
they must be held as one communication, and the notification of recall being simul-
taneous with that of the consent must do it away altogether.
The pursuer in this court has not attempted to support the Sheriff's view. But
assuming that the Lady Agnew's letter of the 2d of November contained an offer on
the i)art of the pursuer, and that LadyDunmore's letter of the 5th was an acceptance
of that offer, she contends that the contract was completed, so as to bar resiling,
either by the writing or putting that letter into the post-office, or at least by its being
received by Lady Agnew.
The Lord Ordinary thinks it doubtful if the letter of the 2d can be held as an
offer made on the pursuer's part, or any thing but an answer to Lady Dunmore's in-
quiries. But at any rate it seems clear, from the terms of her letter of the 5th. that
Lady Dunmore did not understand it as such, and that she did not mean her letter
as an acceptance communicated to Lady Agnew, as acting for the pursuer. The let-
ter plainly gives a commission to Lady Agnew to act as the writer's mandatory in
engaging the X)ursuer. conceiving that the contract was still to be made. Now, hav-
ing given such a coiiunission, it was in the power of Lady Dunmore to give contrary
instructions to her mandatory; and if these were received in such time that the man-
COUNTESS OF DUNMORE V. ALEXANDER. 247
Lord Balgray. The admission that the two letters were simul-
taneously received puts an end to the case. Had the one arrived in
the morning, and the other in the evening of the same day, it would
have been different. Lady Dunmore conveys a request to Lady Agnew
to engage Alexander, which request she recalls by a subsequent letter,
that arrives in time to be forwarded to Alexander as soon as the first-
This, therefore, is just the same as if a man had put an order into the
post-office, desiring his agent to buy stock for him. He afterwards
changes his mind, but cannot recover his letter from the post-office-
He therefore writes a second letter countermanding the first. They
both arrive together, and the result is, that no purchase can be made
to bind the prmcipal.
Lord Craigie. I take a different view. Lady Agnew, acting for
the servant, writes to Lady Dunmore, stating Alexander's readiness
to accept the proposed wages, recommending her on account of her
character, and concluding thus : " If Lady Dunmore decides on taking
datory was able to recall any step that she had taken before the contract was com-
pleted no obligation could be incurred.
Even if the letter of the 5th could be viewed as an acceptance, it seems impossible
to hold that it was sent to Lady Agnew as mandatory of the pursuer, so that the
receipt of it by her completed the bargain. The writer plainly constitutes Lady
Agnew as her mandatory in what was to be done, although it may be possible to
hold that, by "engaging the pursuer," she meant that she should communicate to
her the acceptance contained in her letter; and this communication was therefore
necessary to perfect the location.
> But the pursuer, on the authority of a passage in Mr. Bell's work, maintains that
it is not necessary, in order to complete a consensual contract, that the acceptance
should be communicated to the offerer, because the offerer having previously con-
sented, the mere consent of the person to whom the offer is made constitutes the
consensus in idem placitum, which is all that is requisite to perfect his engage-
ment. But if the learned author's meaning is to be taken in the extensive sense
here contended for, so as to bar the acceptor from resiling, it does not seem to be
supported by sufficient authority. From the reason assigned , the mere existence
of a consent in the acceptor's mind would have the effect to bind him, — a thing
which might admit of being proved by a reference to oath. The pursuer indeed
disclaims going this length, and contents herself with maintaining that any
clear expression of the consent will be sufficient.
But siu-ely the expression of consent made to a third person altogether uncon-
nected with the offerer will not do, nor will the writing of a letter of acceptance be
sufficient, if this letter is never sent. The Lord Ordinary conceives that if, after
writing such a letter, the author should add a postscript, stating, that on further con-
sideration, or in consequence of new intelligence, he did not choose to accept the
offer, and if, from the letter's referring to other matters, he still thought it necessary
to send it, the acceptance would be effectually recalled. But if this be the case, the
same effect must follow when a second letter retracting the offer is transmitted by
the same post, so as to be received at the same time, or where a communication to this
effect is made by express or otherwise to the offerer before the acceptance reaches
him. In short, each party may resile, so long as his offer or acceptance has not been
communicated to the other party.
' The pursuer may have suffered from the disappointment of her expectations ; but
the same hardship would have been felt, had Lady Dunmore written no letter but
the last, in which case, however, the pursuer could have had no claim. The different
ranks of the parties, and the great importance of the sum claimed to the one in com-
parison with the other, leads naturally to the giving all possible weight to the pur-
suer's argument. But any plea of favor of this kind is in great measure done away
by the very discreditable account which she has given as to her receipt of the letters,
particularly in her deposition when examined as a haver in the Inferior Court.
J?L 6 o< .- ^ •
i/4' V"^ - *> ' -- / /
248 hebb's case.
Betty Alexander, perhaps she will have the goodness to mention
whether she expects her at the new or old term." Now, what is the
answer of the Countess ? A request to Lady Agnew to engage the
servant at the wages mentioned, accompanied with a notice that " she
wishes to have her at the new term," &c. Lady Agnew was thus the
mandatory for both parties, the mistress and the servant ; she was on
the same footmg as a person in the well-known situation of broker for
both buyer and seller. Every letter between the prmcipals, relative
to an offer or an acceptance respectively, was, as soon as it reached
Lady Agnew, the same as deUvered for behoof of the party on whose
account it was written. I hold, therefore, that when Lady Dunmore's
letter reached Lady Agnew, the contract of hirmg Alexander was
complete, — the offer on the part of Alexander bemg met by an inti-
mated acceptance on the part of the Coimtess. Xo subsequent letter
from the Countess to Lady Agnew could aimul what had passed by
the mere cii'cumstance of its being delivered, at the same time with
the first, into the hands of Alexander. I do not thuik the servant
could have retracted after the first letter reached Lady Agnew ; and
if she was bound, it seems clear that the Countess could not be free.
Lord Gillies. I am decidedly of the opmion fii'st expressed. Lady
Agnew received a letter desirmg her to engage a servant for Lady Dun-
more. She proceeds to take steps towards this by putting a letter
into the post-office for the purpose of making the engagement. But,
before this letter reaches its destmation, her authority to hhe the
servant is recalled ; and, by the help of an express, she forwards the
recall, so that it is eventually delivered through the same post with
the former letter, and both reach the servant at once. They thus
neutralize each other, precisely as in the case put by Lord Balgray, of
an order and a countermand bemg sent through one post to an agent.
I am therefore for adhering.
Lord President. I concur with the majority. There was no com-
pleted contract here, and Lady Dunmore was at liberty to resile as
she did.
IN- RE NATIONAL SAVINGS BANK ASSOCIATION.
HEBB'S CASE.
In Chancery, May 1, 1867.
[Reporttd in Laio Reports, 4 Equity, 9.]
This was an application by Henry Kirke Hebb, that his name
might be removed from the list of contributories of the National Sav-
ings Bank Association, a company formed under the Juint Stock
(
hebb's case. 249
Companies' Act, 1856, and now being wound up under the Companies'
Act, 1862.
On the 28th of August, 1857, Hebb signed and gave to the agent of
the company at Lincoln an application for ten shares in a form pro-
vided by the company, and at the same tune paid to the agent a de-
posit of 5s. per share, for which the agent gave him a receipt, with a
memorandum that a duly authorized receipt would be forwardedT
from the head office within eight days.
"Ofi"the 4tli of'September, 1857, the directors allotted ten shares to
Hebb, and entered his name in the allotment book, and on the same
day sent to their agent at Lincoln the letter of allotment with a re-
ceipt for the deposit signed by two directors, but the agent did not
deliver the letter and receipt to Hebb until the 9th of September. In
the meantime, on the 8th of September, Hebb wrote a letter to the
directors, withdrawing his application, and requesting the return of
the deposit.
On the 26th of August, 1858, Hebb having insisted upon repudiat-
ing the allotment, and threatened to sue the company for the deposit,
the directors paid him the deposit. The allotment was not formally
cancelled, and Hebb's name remained on the register of shareholders,
but he had no further communication from the company until June,
1866, when the company was ordered to be wound up.
Mr. De Gex, Q. C, for the applicant.
First. The applicant never became a shareholder within the mean-
ing of the Joint Stock Companies' Act, 1856, § 19, inasmuch as he
never accepted any shares, having withdrawn his appUcation before
its acceptance by the directors was communicated to him. A con-
tract is not binding until the party who has made the proposal has
received from the other party notice that the latter has accepted it.
Routledge v. Grant (a). So long as the letter of allotment remained
in the hands of their agent the company might have cancelled the
allotment, and the applicant could not have compelled them to give
him the shares, and, on the other hand, he was entitled to withdraw
his application.
[Mr. Roxburgh^ Q. C, amicus curice. In Pellatt's Case (5), although
there was no decision upon the point, the Lords Justices expressed an
opinion that notice of allotment was necessary to complete the con-
tract, and that in Bloxam's Case (c) the decision must have been
founded on the assumption that Bloxham knew of the allotment,
though he had no formal notice.]
Secondly. If there was a binding contract, it was annulled when
the deposit was returned, and it has been so treated by both parties
ever since. It was competent to the company to annul it, and the di-
rectors could exercise this power on behalf of the company. Ex parte
(a) 4 Bing. 683. (6) Law Kep. 2 Cli. 527. K) 33 L. J. (Ch.) 519, 574.
250 hebb's casl%
Beresford (a) ; Ex parte Miles (b). Where there is a bond fide dispute
as to the validity of a contract to take shares, the directors may com-
promise it, or release the alleged shareholder from the contract.
Lord Belhaven's Case (c) . And even if the directors had no such
power, the consent of the shareholders would be presumed after the
lapse of so many years. Brotherhood's Case ( d) .
Mr. Baggallay^ Q. C, and Mr. J. Napier Higgins, for the official
liquidator.
First. The contract was complete as soon as the shares were
allotted. The directors could not, either as against the applicant, or
as against the other shareholders, have recalled the allotment, whether
or not it had been notified to the applicant, and the applicant might
at any time after the 4th of September, 1857, have enforced specific
performance. It has never been decided that notice of acceptance is
necessary to complete a contract. In Routledge v. Grant (e) there
was no acceptance of the offer; in Ex parte Miles (/), before any al-
lotment was made, both parties agreed to vary the contract ; in Pel-
latt's Case {g) there was no decision on this point. In Dunlop v. Ilig-
gins ( h) it was held that a contract was complete as soon as a letter
was posted acceptuig the offer. [They also referred to Chitty on
Contracts (i).
Secondly. If the contract was bmding, the apphcant, having be-
come a shareholder, could only be released by the consent of every
shareholder. Spackman's Case (/); Stanhope's Case (k). In Lord
Belhaven's Case {I) the deed of settlement expressly empowered the
directors to compromise suits, and Lord Belhaven paid a sum of
money to be released from the alleged contract ; here there was no
such power, and in fact there was no compromise.
Lord Romilly, M. R. I think that Mr. Hebb is not a contributory
of this company. The mere wi'iting of a line in a book is not, in my
opinion, an irrevocable act ; and if a person applies for shares in a
company, and the directors write down his name in the allotment
book, they may at any time before the allotment has been communi-
cated to the allottee alter or cancel the allotment ; if it were not so, a
mere accident might irrevocably bind the company.
These applications for and allotments of shares must be treated up-
on the same principles as ordinary contracts between individuals. If
A. writes to B. a letter offering to buy land of B. for a certain sum of
money, and B. accepts the offer, and sends his servant with a letter
containing his acceptance, I apprehend that until A. receives the let-
ter, A. may withdraw his offer, and B. may stop his servant on the
road and alter the terms of his acceptance, or withdraw it altogether ;
(a) 2 Mac. & G. 197. (?-) 34 L. .T. (Cli.) 12:?. (o) 3 D. J. & S. 41.
{(l) 31 Bfav. .365; on appeal, 8 Jur. (n.s.) ()-Jti. (r ) 4 lUnj;. r..":]. (f) 34 I...T. (Ch.) 123.
(<,) Law licp- 2 Ch. 527. (//) 1 H. L. C. 3si. [i) Wi'^^-s \) ct sfv;. (5th edit.).
(?) 11 Jur. (n. s.) 207. (A-) Law Kep. 1 Cb. IGl. (0 3 D. J. & S. 41.
HAKRIS' CASE. 251
he is not bound by communicating the acceptance to his own agent.
Dunlop V. Higgins (a) decides that the posting of a letter accepting an
offer constitutes a bindmg contract, but the reason of that is, that the
post-office is the common agent of both parties. In the present case,
if Mr. Hebb had authorized the agent of the company to accept the
allotment on his behalf there would have been a binding contract, but
he gave no such authority, and as he had withdrawn his original offer
before he received the letter of the du'ectors, the position of the parties
was changed, and that letter became an offer which required the
acceptance of Mr. Hebb to constitute a binding contract.
In Jfartin v. Mitchell (b) Sir T. Plumer says, " When one party, hav-
ing entered into a contract that has not been signed by the other, after-
wards repents, and refuses to proceed in it, I should have felt great
difficulty m saying that he had not a loctis pcetiitentke, and was not at
liberty to recede until the other had signed, or in some manner made
it binding upon himself. How can the contract be complete before it is
mutual ? And can it be complete as to the one, and not as to the
other?" I am of opmion that an offer does not bind the person
who makes it until it has been accepted, and its acceptance has been
communicated to him or his agent. Consequently, m my opinion, Mr.
Hebb never became a shareholder; but if he had once become a
shareholder, I should have felt a difficulty in holding that he had been
released from that position by the subsequent return of the deposit.
His name must be removed from the list of contributories, and both
he and the official liquidator must have their costs out of the estate*
IN RE IMPERIAL LAND COMPANY OF MARSEILLES.
HARRIS' CASE.
In Chancery, May 3, 24, 1872.
[Reported in Laio Reports, 7 Chancery Appeals, 587.]
In February, 1866, the prospectus of a company in London, called
the Imperial Land Company of Marseilles, Limited, was published,
requiring applicants for shares to pay £1 per share on application and
£4 on allotment and stating that interest at the rate of 10 per cent,
per annum would during the construction of the works be paid to the
shareholders.
Mr. Lewis Harris of Dublin, filled up a letter of application for
shares as follows : —
(a) 1 II. L. C. 381. (6) 2 Jac. & W. 413, 428.
/•'-.■
252. HARRIS' CASE.
« To the Directors of the Imperial Land Company of Marseilles,
Limited.
« Gentlemen, — having paid to your credit with the National Bank
the sum of 200^., being the deposit of U. per share on 200 shares m the
above company, I request that you will allot me 200 shares of 20^.
each in the Imperial Land Company of Marseilles, Limited, and I
hereby undertake to accept the same, or any smaller number which
you may allot to me, and to pay the balance, 19/. per share, thereon;
and I agree to become a member of the company, and request you to
place my name on the register of members, in respect of the shares
allotted to me.
" I am, Gentlemen,
" Your obedient servant,
" Name in full : Lewis Harris.
« Address m full : 19 Suffolk Street, Dublin.
" Profession : Bill broker.
" Usual signature : L. Harris.
"Date: 5th March, 1866."
This letter was sent by Mr. Harris to the directors through a bank,
and was duly received. The directors appointed a committee to allot
the shares, and 100 shares were allotted to Mr. Harris (a). A letter
from the secretary of the company, containing notice of this allotment,
addi'essed to Mr. Harris at his Dublin address, was put into the post-
office at Lombard Street. There was some dispute as to the exact
time of posting, but the letter was posted either on the 15th or very
early in the morning of the 16th of March, 1866, and was received by
Mr. Harris at Dublin on the 17th. This letter, after stating that the
directors had allotted to Mr. Harris 100 shares in the company, on
which a balance of 300/. was payable to the bankers of the company
not later than the 21st of March, 1866, proceeded thus: —
" As the interest warrants attached to the shares bear mterest from
the 21st of March, 1866, punctual payment of the above balance is
requisite. The bankers are instructed not to receive payments after
that day without charging interest at 10 per cent, per annum."
On the 16th of March Mr. Harris had written, and put into the post
at Dublin, the following letter addressed to the directors in London,
declining to accept shares in the company : —
" Gentlemen, — On the 5th of March instant I paid to your credit
(a) The articles of association of the company provided for the appointment
of a board of directors, and contained the following clauses: — Sect. 7 : "The
shares shall be allotted by and at the discretion of the board." Sect. 87:
"The directors may delegate any of their powers to committees consisting of
Buch number of the members of their body as the directors may think fit."
HARRIS' CASE. 253
into the National Bank, Dublin, 200^., being a deposit of \l per share
on an application for 200 shares in the above company. I hereby
give you notice that, inasmuch as up to this date I have received no
allotment, I hereby withdraw the aforesaid application, and request
you will forthwith return me my deposit of 200^., as I shall not
accept any shares now allotted, or hold myself in any way liable."
The secretary of the company answered on the 17th of March that
it was too late to withdraw the application for shares ; and Mr. Har-
ris's name was placed on the register of members as holdhig 100
shares. Mr. Harris, however, by his sohcitors contmued to deny that
he was a shareholder, and much correspondence passed on the sub-
ject.
An order was made for winding up the company and Mr. Harris,
and two other persons in a similar position, on the 23rd of July, 1869,
took out a summons to have their names removed from the list of
contributories.
The Vice- Chancellor Malins dismissed the summons (a), and Mr.
Harris appealed.
Mr. Cole, Q. C, and Mr. Everitt for the Appellant : —
(o) 1872. March 4.
Sir R. Malins, V. C, after stating the facts of the case, said, that the first seri-
ous objection which had been made on behalf of Mr. Harris was that the allotment
was altogether invalid as having been made by a committee, and not by the board of
directors ; and the 7th clause of the articles, stating that the shares were to be
allotted by and at the discretion of the board, was relied upon. This was a very
serious objection, for if it prevailed the whole allotment was invalid. But the 87th
clause provided for the delegation by the directors of their powers to committees. It
was therefore clear that the directors might so delegate the duty of allotting shares,
and it was very proper that they should do so. On this point Howard's Case (Law
Rep. 1 Ch. 561) was referred to, but in that case there was no valid delegation of
authority, and it did not affect the present case. This objection had altogether
failed. °
Then as to the question of acceptance, and as to when a letter of acceptance be-
came binding. His honor then stated the facts in the case of Diinlop v. Hiqgins (1
H. L. C. 381), and said that if it was the law that a letter was not binding until it was
received, then Dunlop & Co. could not have been held to be bound. In British and
American Telegraph Company v. Colson (Law Rep. 6 Ex. 108) the letter of allotment
was never received. The facts of the present case came to this : The offer made on the
5th of March was a continuing offer on the 1 5th, when it was duly accepted. The allot-
ment of shares was made and duly communicated to Mr. Harris by a letter posted be-
fore he wrote the letter repudiating the shares. The contract was, therefore, at all
events, complete when the letter of allotment was posted, and his letter of repudia-
tion was too late, for he was bound by his letter of acceptance.
The next point relied upon was that the letter of allotment fixed the 21st of March
tor payment of the call, and provided for payment of interest if the calls were not
punctually paid; and this, it was said, introduced a new term. But fixing the 21st
of March instead of the date of the allotment, was an extension of time in favor of
tne allottee; and as to interest, the allottee was to receive interest, and could any-
tnmg be more reasonable than tellinf airu that he must pay, or, in other words would
not receive interest unless he paid the money ? This was not the introduction
01 a new term, but a reasonable intimation. The case of the Oriental Inland
bteam Company v. Briggs (4 D. F. & J. 191) was unlike this, as a new and unusual
term was certainly introduced in that case. In Peek's Case (Law Rep. 4 Ch. 532) the
aUottee was held to his contract.
All the objections had failed, and Mr, Harris's name must remain on the list, and
he must pay the costs of the summons.
254 HARRIS' CASE.
We say that the contract to take shares was not binding until the
letter allotting them was received : British and American Telegraph
Company v. Colson{a)\ Townsend^s Case (b) ; HehVs Case (c). No
doubt there have been cases where a contract has been held complete
when the letter accepting an offer has been posted ; but these were
all mercantile cases, in which the law is necessarily different. Until
the letter has reached its destination, the acceptance may be retracted :
Dunlop V. Higgins {a).
Moreover, the letter of allotment is not a simple acceptance, but
mtroduces a condition as to interest which is a new term : Oriental
Inland Steam Company v. Briggs (e) / English and Foreign Credit
Company v. Arduin (/").
Another objection is, that the allotment is void as being made by a
committee instead of by the directors, in direct contravention of the
seventh clause of the articles.
Mr. Glasse, Q. C, and Mr. HigginSy Q. C. for the Jiquidators, were
not called upon.
SiE W. M. Jamks, L. J. : —
I feel no doubt whatever as to the propriety of the judgment of the
Vice-Chancellor in this case.
Three gromids have been taken on behalf of the Appellant. One
is, that upon the construction of the articles of association the
allotment was invalid, because it was made by a committee of the
directors. But the articles have in terms provided that the directors
might delegate anything to a committee ; and that they did delegate
this duty to this committee appears in evidence before us. It was a
proper and reasonable mode of dealing with such a thmg as the mves-
tigation of the applications for shares and the allotment of them. It
appears to me, therefore, that there is nothmg in that ground of
appeal.
The second ground is that on which the greater part of the argu-
ment has been addressed to us ; that there was a letter posted in Dublm
recaUing the application for shares before the letter posted in London
contammg the notice of the allotment was received in Dublin ; the
letter of revocation not being m the course of post capable of arriving
in London before the letter of allotment was actually posted by the
company.
Now it appears to me that the Vice-Chancellor's decision is correct,
and that the contract was completed the moment the notice of allot-
ment was committed to the post addressed to the address in Dublin
which Mr. Harris himself had given. That decision seems to me to be
entirely in accordance with a great number of cases in this Court, and
(a) Law Rep. 6 Ex. 108. (6) Ibid. 13 Eq. 148. (c) Ibid. 4 Eq. 9.
(d) 1 H. L. C. 381. (e) 4 D. F. & J. 191. (/) Law Rep. 5 H. L. 64.
HARRIS' CASE. 255
to be utterly undistinguishable, in principle or in fact, from Dunlop
V. Higgins (a), a case which is binding upon us, and in which every
principle argued before us was discussed at length by the Lord Chan-
cellor in giving judgment. He arrived at the conclusion that the
posting of the letter of acceptance is the completion of the contract ;
that is to say, the moment one man has made an offer, and the other
has done somethmg bmding himself to that offer, then the contract
is complete, and neither party can afterwards escape from it. That is
in fact the decision in HeWs Case (J), though in that particular case
a distinction was taken by the Master of the Rolls that the com-
pany chose to send the letter to their own agent, which agent had
not been authorized by the applicant to receive it on his behalf.
Against this current of authority there is the case of British and
American Telegraph Company v. Colson (c), m which the Court of
Exchequer — not disputmg the authority of the previous decisions,
because, of course, they could not dispute the authority of a case in
the House of Lords — established a distinction which does not apply to
this case at all. The Court there held that although the posting of
the letter, if the letter arrives, is a complete contract, yet if from any
cause, such as a failure of duty by the post-oflB.ce, the letter never
arrives at all, then there is a difference.
It seems to me not necessary to express any opinion as to whether
that distinction is sound or not, but that was the ground upon which
the Judges proceeded m that case. In this case the letter did arrive,
and having arrived the contract was complete, and could not be
revoked, from the time when the letter was posted. It was completed
in exactly the way which the Appellant desired, that is to say, he
gave his address in Dublin, and the company, according to the ordi-
nary usage of mankind in those matters, returned their answer through
the post. That is a complete contract. It does not signify what was
the particular hour of arrival of the one letter or the other, or which
was the first, the delivery in London or the delivery in Dublin . That
appears to me wholly immaterial, because the contract was completed
at the time when the letter of allotment was properly posted by the
company.
The other point raised was, that there was a condition annexed to
this allotment letter, and on this point the case of English and Foreign
Credit Company v. Arduin (d) was cited. Now the facts in that case
were such as persons might differ about, and the Exchequer Chamber
held one way while the house of Lords held another way. But the
principle upon which they all proceeded, which is the only thmg we
have to deal with, was, that where there is an acceirtance of an offer,
if there is to be a term or condition imposed, it must be clearly so
stated, otherwise it is to be considered simply as a notification which
(a) 1 H. L. C. 381. (6) Law Rep. 4 Eq. 9. (c) Law Rep. G Ex. lOS. (d) Law Rep. 5 H. L. 64.
256 HARRIS' CASE.
may have such effect as it ought to have in a Court of Law. Here the
acceptance was unqualified : — [His Lordship read the letter of allot-
ment.] It appears to me that the statement as to interest does not
introduce a new stipulation. It is not that the allottee is to have the
shares provided that he undertakes to pay 10 per cent., but it is that he
ought to pay exactly on the 21st of March, 1866, and that byway of
indulgence the directors have told the bankers, that if the allottee
subsequently pays the same rate of mterest which he would be
entitled to receive, then they are authorized to receive payment,
but not otherwise. It is a mere notification, not intended to be a new
stipulation, and it never was considered by the Appellant, or by any-
body who received such a letter, as a new term introduced. It would
be contrary to the usage of all mankmd to treat this as being the
introduction of a new term, altermg or affecting the express accept-
ance of the application for shares.
I am of opinion, therefore, that the order of the Vice- Chancellor is
right, that on all the grounds this appeal has failed, and must be dis-
missed with costs.
SiE G. Mellish, L. J. : —
I am of the same opinion, and I agree with what the Lord Justice
has said on the first and the last gromids, and also on the second
gromid. The only part of the case upon which I wish to add any
observations is on the second ground, which raises a question of very
great general importance, and that is this : When a person m one part
of the comitry writes to a person in another part of the country a letter
containing a.n offer, and either directly or impliedly tells him to send his
answer by post, and an answer accepting that offer is returned by post,
when is a complete contract made ? Is it made at the time when the
letter acceptmg the offer is put into the post, or is it not made until
that letter is received ? It was contended before us that it is not ruade
until the letter is received ; so that until it is received the contract
may be revoked by the person who has made the offer.
Now throughout the argument I have been forcibly struck with the
extraordinary and very mischievous consequences which would follow
if it were held that an offer might be revoked at any time until the
letter accepting it had been actually received. No mercantile man
who has received a letter making him an offer, and has accepted the
offer, could safely act on that acceptance after he has put it into the
post until he knew that it had been received. Every day, I presume,
there must be a large number of mercantile letters received which re-
quire to be acted upon immediately. A person, for instance, sends an
order to a merchant in London offering to pay a certain price for so
many goods. The merchant writes an answer accepting the offer, and
HARKIS' CASE. 257
goes that instant into the market and purchases the goods in order to
enable him to fulfil the contract. But according to the argument pre-
sented to us, if the person who has sent the offer finds that the
market is falling, and that it will be a bad bargain for him, he may at
any time, before he has received the answer, revoke his offer. The
consequences might be very serious to the merchant, and might be
much more serious when the parties are in distant countries. Suppose
that a dealer in Liverpool writes to a dealer in New York and offers to
buy so many quarters of corn or so many bales of cotton at a certain
price, and the dealer in Xew York, finding that he can make a favor-
able bargain, writes an answer acceptmg the offer. Then, according
to the argument that has been presented to us to-day, during the whole
time that the letter accepting the offer is on the Atlantic, the dealer who
is to receive it in Liverpool, if he fiinds that the market has fallen, may
send a message by telegraph and revoke his offer.
Nor is there any difference between an offer to receive shares and an
offer to buy or sell goods. And yet, if the argument is sound, then
for nearly ten days the buyer might wait and speculate whether
the shares were rismg or falling, and if he found they were falluig he
might revoke his offer. Those consequences are very extraordinary,
and I always understood the law to be the other way mitil the case of
JBritish and American Telegraph Company v. Colson (a), which has
caused some doubt on the subject.
I will shortly refer to the previous cases on the subject. The first
case is Adams v. Lindsell (b). No doubt there were two points in that
case. An offer was sent by post, but the letter was misdirected
through the mistake of the party who sent it, and therefore did not
arrive until two days afterwards. And that point was disposed of
during the argument, that inasmuch as it was the fault of the party
sending it, the answer having been written and posted as soon as it
did arrive, no advantage could be taken of the delay caused by the
misdirection. But the person who sent the offer, finding no answer
had arrived, sold the goods before the answer had arrived, and then
it was argued that mitil the answer was actually received there could
be no binding contract between the parties, and therefore no breach of
it. But the Court of King's Bench said that if the law was so, " no
contract could ever be completed by the post. For if the Defendants
were not bound by their offer when accepted by the Plaintiffs till the
answer was received, then the Plaintiffs ought not to be bound till
after they had received the notification that the Defendants had re-
ceived their answer and assented to it ; and so it might go on ad infin-
itumr That appears to me to be at any rate an expression of opinion
on the part of the Court there, that when an offer is made by letter,
(a) Law Rep. 6 Ex. 108. (6) 1 B. «fe A. 681.
Vol. 1—17
258 HAERIS' CASE.
and is accepted bj^ a letter which is posted, then there is a binding-
contract between the parties from the time when the letter is posted.
In Dunlop v. Higgins (a) the question was directly raised whether
the law was truly expounded in the case of Adams v. Lindsell, and the
House of Lords approved of the ruling in that case. The Lord
Chancellor Cottenham said, m the course of his judgment, that in the
case of a bill of exchange, notice of dishonor given by putting a letter
mto the post at the right time had been held quite sufficient, whether
that letter was delivered or not ; and he referred to Stocken v. Collin
(b) as an authority on that point, he being clearly of opmion that the
rule as to acceptmg a contract was exactly the same as the rule
as to sending notice of dishonor of a bill of exchange. He then
referred to the case of Adams v. Lindsell, (c) and quoted the observation
of Lord Ellenborough. That case therefore appears to me to be a direct
decision that the contract is made from the time when it is accepted
by post.
There is then the case of Duncan v. Topham (d), m which there
were no doubt several questions, on one of which whether postmg the
acceptance was sufficient, Mr. Justice Cresswell told the jury that if
the letter accepting the contract was put into the post-office, and lost
by the negligence of the post-office authorities, the contract would
nevertheless be complete. There was then a motion for a new trial,
and though Mr, Baron Bramwell, m British and Americaji Telegraph
Cotn2)ang v. Colson (e), has said that he thought the case not properly
reported, still it appears as if Mr. Justice Maule and Chief Justice
Wilde both assented to the ruling- of Mr. Justice Cresswell and
refused the rule on that point.
In addition to that, there is the case of Potter v. Sa7iders (/), which is
also a direct decision of a Court of Equity on the point.
Against them there is simply this case of British and American
Telegraph Company v. Colson, and that is not a direct decision on
this point. The Lord Chief Baron, in the course of his judgment, says,
it may be that if the letter arrives in time, then the contract will be
treated as having been made from the time when the letter was put
into the post ; but I do not see how there can be any relation back in
a case of this kind, as there may be in bankruptcy. If the contract,
after the letter has arrived in time, is to be treated as having been made
from the time the letter is posted, the reason is that the contract was
actually made at the time when the letter was posted. Still that case
is not a direct decision on the point before us, though I confess I have
great difficulty in reconciling it with the previous decision in IJindop
v. niqqins {g). That case was commented on at considerable length both
by the Lord Chief Baron and by Baron Bramwell, but they only com-
mented on the facts of the case, and showed— which I think they did
(a) 1 H. L. C. 3S1. (h) 7 M. & W. 515. (c) 1 B. & A 681. (d) S C. B. 225.
re) Law Rep. Ex. 108. (/•) Hare, 1. (^7) 1 U. L. C 381.
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 259
show — that according to the facts of the case the Plaintiff might very-
well have had a verdict, even if the rule of law had been that the con-
tract was not made until the letter arrived, because there the only
thing which prevented the arrival of the letter was the bad weather,
which made the mail very late. And therefore I agree, upon the
facts of that case, that the Plaintiff might have recovered, even
although the law was that the contract was not made until the letter
arrived. But then the real question before the House of Lords in
Dimlop v. Biggins was, whether the ruling of the Lord Justice Gen-
eral was correct in point of law, and the House of Lords held that it
was correct.
However, I agree with the Lord Justice that it is not necessary to
give any decisive opinion on the point, because although the contract
is complete at the time when the letter accepting the offer is posted,
yet it may be subject to a condition subsequent that if the letter does
not arrive in due course of post, then the parties may act on the
assumption that the offer has not been accepted. That, however, is
not the case before us ; the letter did arrive m due time ; and the ques-
tion is whether, under that state of circumstances, the parties are
bound by the contract.
THE HOUSEHOLD FIRE AND CARRIAGE ACCIDENT
INSURANCE COMPANY (LIMITED) v. GRANT.
In- the Couet of Appeal, May 22, July 1, 1879.
[^Reported in 4 Exchequer Division, 216.]
Action to recover 94/. 15s. being the balance due upon 100 shares
allotted to the defendant on the 25th of October, 1874, in pursuance of
an application from the defendant for such shares dated the 30th of
September, 1874.
At the trial before Lopes, J., during the Middlesex Sittings, 1878, the
following facts were proved. In 1874 one Kendrick was acting in
Glamorganshire as the agent of the company for the placing of their
shares, and on the 30th of September the defendant handed to Ken-
drick an appUcation in writmg for shares m the plamtiff's company,
which stated that the defendant had paid to the bankers of the com-
pany 51., being a deposit of Is. per share, and requesting an allotment
of 100 shares, and agreeing to pay the further sum of 19s. per share
■within twelve months of the date of the allotment. Kendrick duly
forwarded this application to the plamtiffs in London, and the secre-
tary of the company on the 20th of October, 1874, made out the letter
of allotment in favor of the defendant, which was posted addressed
to the defendant at his residence 16 Herbert Street, Swansea, Glamor-
260 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
ganshire ; his name was then entered on the register of shareholders.
This letter of allotment never reached the defendant. The defendant
never paid the bl. mentioned in his application, but the plaintiffs' com-
pany being indebted to the defendant in the sum of bl. for commission,
that sura was duly credited to his account in their books. In July,
1875, a dividend at the rate of 2^ per cent, was declared on the shares,
and in February, 1876, a further dividend at the same rate; these
dividends, amounting altogether to the sum of 5s. was also credited to
the defendant's account in the books of the plamtiffs' company.
Afterwards the company went into liquidation, and on the 7th of
December, 1877, the official liquidator applied for the sum sued for
from the defendant ; the defendant declmed to pay on the ground that
he was not a shareholder.
On these facts the learned judge left two questions to the jury.
1. Was the letter of allotment of the 20th of October m fact
posted ?
2. Was the letter of allotment received by the defendant ? The
jury found the first question in the affirmative and the last m the
negative.
The learned judge reserved the case for further consideration, and
after argument directed judgment to be entered for the plaintiffs on
the authority of Dunlop v. Higgins (a).
The defendant appealed.
May 22. Finlay and Dillwyn^ for the defendant, contended that the
defendant was not a shareholder, for it was necessary that the allot-
ment of shares should not only be made but also communicated to the
defendant ; that a letter posted but not received was not a communica-
tion to the defendant of the allotment, and that there was therefore
no contract between the parties.
Wilberforce, and G. Arbut/mot ( W. G. Harrison, Q. C, with them),
for the plaintiffs, contended that the contract was complete by accept,
ance when the letter was posted, and that the plaintiffs were not
answerable for casualties at the post-office preventing the arrival of
the letter.
In addition to the authorities mentioned in the judgment, the follow-
ing cases were cited during the argument : Jieidjxit/i's Case (b) ; Town-
semFs Case (c) ; WaWs Case (d) ; Gwvi's Case (e) ; Dumnore v. Alexander
(f) ; PellaWs Case (g) ; Mc parte Cote (h) ; Taylor v. Jo)ies (i) ; Pollock
on the Law of Contracts, p. 13.
Cnr. adv. vult.
July 1. The following judgments were delivered : —
(a) 1 H. L. C. 381. (b) Law Rep. 11 Eq. 86. (c) Law Rep. 13 Eq. 148.
(d) Law Rep. 15 Eq. 18. (e) Law Rep. 3 Ch. 40. (/) 9 Shaw & Dunlop, 19(
(j/) Law Rep. 2 €h. 527. (h) Law Rep. 9 Ch. 27. (i) 1 C. P. D. 87.
HOUSEHOLD FIRE INSTJRANCE COMPANY V. GRANT. 261
Thesigek, L.J. In this case the defendant made an application for
shares in the plaintiffs' company under circumstances from which we
must imply that he authorized the company, in the event of their allott-
ing to him the shares applied for, to send the notice of allotment by
post. The company did allot him the shares, and duly addressed to
him and posted a letter containing the notice of allotment, but upon
the finding of the jury it must be taken that the letter never reached
its destination. In this state of circumstances Lopes, J., has decided
that the defendant is liable as a shareholder. He based his decision
mainly upon the ground that the point for his consideration was covered
by authority binding upon him, and I am of opinion that he did so
rightly, and that it is covered by authority equally binding upon this
Court.
The leading case upon the subject is Dunlop v. Hxggins (a). It is
true that Lord Cottenham might have decided that case without decid-
ing the point raised in this. But it appears to me equally true that
he did not do so, and that he preferred to rest and did rest his judg-
ment as to one of the matters of exception before him upon a principle
which embraces and governs the present case. If so the Court is as
much bound to apply that principle, constituting as it did a ratio
decidendi, as it is to follow the exact decision itself. The exception
was that the Lord Justice General directed the jury in point of law
that, if the pursuers posted their acceptance of the offer m due time,
according to the usage of trade they were not responsible for any
casualties in the post-office establishment. This direction was wide
enough in its terms to include the case of the acceptance never being
delivered at all ; and Lord Cottenham, in expressing his opinion that
it was not open to objection, did so after putting the case of a letter
containing a notice of dishonor posted by the holder of a bill of ex-
change in proper time, in which case he said (^»), « "Whether that letter
be delivered or not is a matter quite immaterial, because for accidents
happening at the post-office he is not responsible." In short. Lord
Cottenham appears to me to have held that, as a rule, a contract formed
by correspondence through the post is complete as soon as the letter
accepting an offer is put mto the post, and is not put an end to in the
event of the letter never being delivered. My view of the effect of
Dunlop V. Higgins (a) is that taken by James, L.J., in Harris'' Case (c),
there (d) he speaks of the former case as " a case which is binding upon
us, and in which every principle arg-ued before us was discussed at length
by the Lord Chancellor in giving judgment," he adds, the Lord Chan-
cellor « arrived at the conclusion that the posting of the letter of
acceptance is the completion of the contract ; that is to say, the moment
one man has made an offer, and the other has done something binding
(a) 1 H. L. C. 381. (b) 1 H. L.C. at p. 399. (c) Law Rep. 7 Ch. 587. {d) At p. 592,
262 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
himself to that offer, then the contract is complete and neither party
can afterwards escape from it." Mellish, J., also took the same view, he
says (a) " in Dunlop v. Higgins {supra) the question was directly raised
whether the law was truly expounded in the case of Adams v. Lind-
sell{h). The House of Lords approved of the ruling of that case.
The Lord Chancellor Cottenham said, in the course of his judgment,
that in the case of a bill of exchange notice of dishonor, given by put-
ting a letter into the post at the right time, had been held quite sufficient
whether that letter was delivered or not ; and he referred to Stocken v.
Collin (c ) on that point, he being clearly of opinion that the rule as
to accepting a contract was exactly the same as the rule as to sending
notice of dishonor of a bill of exchange. He then referred to the
case of Adams v. Lindsell (5), and quoted the observation of Lord Ellen-
borough, C.J. That case therefore appears to me to be a direct decis-
ion that the contract is made from the time when it is accepted by
post." Leaving Harris'' Case {supra) for the moment, I turn to Duncan
V. Tophayn {d), in which Cresswell, J., told the jury that if the letter
accepting the contract was put into the post-office and lost by the
negligence of the post-office authorities, the contract would neverthe-
less be complete ; and both he and Wilde, C.J., and Maule, J., seem to
have understood this ruling to have been in accordance with Lord Cot-
tenham's opinion in Dunlop v. Higgins (supra) . That opinion therefore
appears to me to constitute an authority directly binding upon us.
But if Dunlop Y. Higgins (sujyi'a) were out of the wny, Harris^ Case {sujyra)
would still go far to govern the present. There it was held that the
acceptance of the offer at all events binds both parties from the time
of the acceptance being posted, and so as to prevent any retractation
of the offer being of effect after the acceptance has been posted. Now,
whatever in abstract discussion may be said as to the legal notion of
its being necessary, in order to the effecting of a valid and bindmg
contract, that the minds of the parties should be brought together at
one and the same moment, that notion is practically the foundation of
English law upon the subject of the formation of contracts. Unless
therefore a contract constituted by correspondence is absolutely con-
cluded at the moment that the continuing offer is accepted by the
person to whom the offer is addressed, it is difficult to see how the two
minds are ever to be brought together at one and the same moment.
This was pointed out by Lord Ellenborough in the case of Adams v.
lAndsell (b), which is recognized authority upon this branch of the law.
But on the other hand it is a principle of law, as well established as
the legal notion to which I have referred, that the minds of the two
parties must be brought together by mutual communication. An
acceptance, which only remains in the breast of the acceptor without
(a) At p. 595. ib) 1 B. & A. G81. (c) 7 M. A W. 515. (d) 8 C. B. 225.
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 263
being actually and by legal implication communicated to the offerer,
is no binding acceptance. How then are these elements of law to be
harmonized in the case of contracts formed by correspondence through
the post ? I see no better mode than that of treating the post-office
as the agent of both parties, and it was so considered by Lord Rom illy
in Hebb's Case (a), when in the course of his judgment he said : '■'■Dun-
lop V. Higgins (b) decides that the posting of a letter accepting an offer
constitutes a binding contract, but the reason of that is that
the post-office is the common agent of both parties." Alderson, B.
also in /Stockenv. Collin (c), a case of notice of dishonor, and the
case referred to by Lord Cottenham, says : " If the doctrine that the
post-office is only the agent for the delivery of the notice were correct
no one could safely avail himself of that mode of transmission." But
if the post-office be such common agent, then it seems to me to follow
that, as soon as the letter of acceptance is delivered to the post-office,
the contract is made as complete and final and absolutely bindmg as
if the acceptor had put his letter into the hands of a messenger sent
by the offerer hunself as his agent to deliver the offer and receive the
acceptance. What other principle can be adopted short of holding
that the contract is not complete by acceptance mitil and except from
the f'me that the letter containing the acceptance is delivered to the
offerer, a principle which has been distinctly negatived ? This diffi-
culty was attempted to be got over in the British and American Tele-
graph Co. V. Colson (d), which was a case directly on all fours with
the present, and in which Kelly, C. B. (e), is reported to have said, "It
may be that in general, though not in all cases, a contract takes effect
from the time of acceptance and not from the subsequent notification
of it. As in the case now before the Court, if the letter of allotment
had been delivered to the defendant in the due course of the post he
would have become a shareholder from the date of the letter. And
to this effect is Potter v. Sanders (/). And hence perhaps the mistake
has arisen that the contract is binding upon both parties from the
time when the letter is written and put into the post, although never
delivered ; whereas although it may be binding from the time of accept-
ance, it is only binding at all when afterwards duly notified." But
with deference I would ask how a man can be said to be a shareholder
at a time before he was bound to take any shares, or to put the ques-
tion in the form in which it is put by Mellish, L.J., in Harris'' Case (g)
how there can be any relation back in a case of this kind as there may
be in bankruptcy. If, as the Lord Justice said, the contract after the
letter has arrived in time is to be treated as having been made from
the time the letter is posted, the reason is that the contract was
(a) Law Rep. 4 Eq. at p. 12. (6)1 H. L. C 381. (c) 7 M. & W. at p. 516.
id) Law Rep. 6 Ex. 108. (e) At p. 115. (/) 6 Hare, 1. (g) Law Rep. 586, p. 596.
264 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
actually made at the time when the letter was posted. The principle
indeed laid down in Harris' Case (a) as well as in Dunlo2) v. Higgins
(b), can really not be reconciled with the decision in the British and
American Telegraph Co. v. Colson (c). James, L. J., m the passage I
have already quoted (a) affirms the proposition that when once the
acceptance is posted neither party can afterwards escape from the con-
tract, and refers, with approval, to Ifebb's Case (e). There a distmc-
tion was taken by the Master of the Rolls that the company chose to
send the letter of allotment to their own agent, who was not authorized
by the applicant for shares to receive it on his behalf, and who never
delivered it, but he at the same time assumed that if, instead of send-
ing it through an authorized agent they had sent it through the post-
office, the applicant would have been bound although the letter had
never been delivered. Melhsh, L. J., really goes as far, and states for-
cibly the reasons m favor of this view. The mere suggestion thrown
out (at the close of his judgment, at p. 597), when stoppmg short of
actually overrulmg the decision in the British and American Telegrajih
Co. V. Colson (c), that although a contract is complete when the letter
accepting an offer is posted, yet it may be subject to a condition subse-
quent that, if the letter, does not arrive m due course of post, then the
parties may act on the assumption that the offer has not been accepted,
can hardly, when contrasted with the rest of the judgment, be said to
represent his own opinion on the law upon the subject. The contract
as he says (/), is actually made when the letter is posted. The
acceptor, in posting the letter, has, to use the language of Lord Black-
burn, m Brogden v. Directors of Metropolitan By. Co. (g), « put it out
of his control and done an extraneous act which clenches the matter^
and shows beyond all doubt that each side is bound." How then can
a casualty in the post, whether resulting in delay, which in commercial
transactions is often as bad as no delivery, or in non-dehvery, unbind
the parties or unmake the contract ? To me it appears that in practice
a contract complete upon the acceptance of an offer being posted, but
liable to be put an end to by an accident in the post, would be nK)re
mischievous than a contract only binding upon the parties to it upon
the acceptance actually reaching the offerer, and I can see no principle
of law from which such an anomalous contract can be deduced.
There is no doubt that the implication of a complete, final, and
absolutely binding contract being formed, as soon as the acceptance of
an offer is posted, may in some cases lead to inconvenience and hard-
ship. But such there must be at times in every view of the law. It
is impossible in transactions which pass between parties at a distance,
and have to be carried on through the medium of correspondence, to
(«) Law Hop. r>m, at p. rm. (b) 1 II. L. C. 381. (r) Law Rep. 6 Ex. 108.
(d) Harris' Case, Law Rep. 7 Ch. 5'.)2. (c) Law Rep. 4 Lq. 9. (0 At p. uJ'j.
{cj) 2 App. Cas. GGO, GUI.
HOUSEHOI.D FIRE INSUKANCE COMPANY V. GRANT. 265
adjust conflicting rights between innocent parties, so as to make the
consequences of mistake en the part of a mutual agent fall equally up-
on the shoulders of both. At the same time I am not prepared to ad-
mit that the implication in question will lead to any great or general
mconvenience or hardship. An offerer, if he chooses, may always
make the formation of the contract which he proposes dependent upon
the actual communication to himself of the acceptance. If he trusts
to the post he trusts to a means of communication which, as a rule
does not fail, and if no answer to his offer is received by him, and the
matter is of importance to him, he can make inquiries of the person to
whom his offer was addi-essed. On the other hand, if the contract is
not finally concluded, except in the event of the acceptance actually
reaching the offerer, the door would be opened to the perpetration of
much fraud, and, putting aside this consideration, considerable delay
in commercial transactions, in which despatch is, as a rule, of the
greatest consequence, would be occasioned; for the acceptor would
never be entirely safe in acting upon his acceptance until he had re-
ceived notice that his letter of acceptance had reached its destination.
Upon balance of conveniences and inconveniences it seems to me
applying with slight alterations the language of the Supreme Court of
the United States in Tayloe v. Merchants' Fire Insurance Co. (a), more
consistent with the acts and declarations of the parties in this case to
consider the contract complete and absolutely binding on the trans-
mission of the notice of allotment through the post, as the medium of
communication that the parties themselves contemplated, instead of
postponing its completion until the notice had been received by the
defendant. Upon principle, therefore, as well as authority, I thmk
that the judgment of Lopes, J., was right and should be affirmed, and
that this appeal should therefore be dismissed.
Baggallay, L. J. I am of opinion that this appeal should be dis-
missed.
It has been established by a series of authorities, including Dunlop v.
Hi g gins, m the House of Lords (^), and Harris' Case (c), in the Court of
Appeal in Chancery, that if an offer is made by letter, which expressly
or impliedly authorizes the sending of an acceptance of such offer by
post, and a letter of acceptance properly addressed is posted in due
time, a complete contract is made at the time when the letter of ac-
ceptance is posted, though there may be delay in its delivery.
The question involved in the present appeal is, whether the same
principle should be applied in a case in which the letter of acceptance,
though duly posted, is not delivered to the person to whom it is
addressed. Lopes, J., was of opinion that the principle was ajiplicable
(a) 9 Howard S. Ct. Rep.390. (6) 1 H. L. C. 381. (c) Law Rep. 7 Ch. 537.
266 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
to such a case, and gave judgment in favor of the plaintiffs, and from
such judgment the present appeal is brought.
In support of his appeal the defendant reUes upon the decisions of
the Court of Exchequer in the case of the British and American Tele-
graph Co.Y. Colson (a), to which, for conciseness, I will refer as Colson's
Case (a). I propose to consider Dunlop v. Hiygins (b), and Colson'' s
Case (a) and Harris' Case (c) somewhat in detail, for the purpose of as-
certaining whether the decision of the Court of Exchequer in Colson's
Case (a) is consistent with the decisions of the House of Lords and the
Lords Justices m the other two cases, and with the principles upon
which such decisions were based.
The circumstances of Dunlop) v. Higgins (b) were as follows : After
a preliminary correspondence Messrs. Dunlop & Co., who were mer-
chants at Glasgow, addressed a letter on the 28th of January, 1845, to
Messrs. Higgins & Co., who carried on busmess at Liverpool, offering
them 2000 tons of iron pigs at 65s. per ton net. This letter reached
Higgins & Co. at 8 a. m. on the 30th of January, and on the same day
they replied by letter duly addressed to Dunlop & Co. in the following
terms : " We will take the 2000 tons pigs you offer us."
It appeared by the evidence that the first post for Glasgow, after
the receipt by Higgins & Co. of the letter of Dunlop & Co. left Liver-
pool at 3 p. M. on the 30th, and that the post next following left at 1
A. M, of the 31st, and also that a letter despatched by the former post
would in due course arrive at Glasgow at 2 p. m. on the 31st, and by
the latter in time to be delivered at 8 a. m. on the first of February.
The letter so sent by Higgins & Co. was posted after the bags were
made up for the 3 p. m. post, and was despatched by the 1 a. m. post
on the 81st. In due course it should have been delivered in Glasgow
at 8 A. M. on the first of February, but it was not in fact delivered un-
til 2 p. M. on that day, the frosty state of the weather having prevented
the train from Liverpool arriving at Warrington in time to meet the
down train to Glasgow. It appeared, also, that Higgins & Co., by
mistake, dated their letter as of the 31st of January instead of the 30th
of January. On the 1st of February, after the receipt of the letter of
Higgins & Co. accepting the offer, Dunlop & Co. wrote to Higgins &
Co., " We have your letter of yesterday's date, but are sorry that we
cannot now enter the 2000 tons, our offer not being accepted in time."
The iron was not delivered, and Higgins & Co. brought their action
for breach of contract. The defence of Dunlop & Co. was that their
letter of the 2.'-!th should have been answered by the first post, viz.,
by that which left Liverpool at 3 p. m. on the 3(»th, but that at any
rate they were not l^ound to wait for a third post delivered at Glasgow
at 2 p. M. on the 1st of P^ebruary.
(a) Law Rep. 6 Ex. 108. (h) 1 II. L. C. 381. (c) Law Rep. 7 Ch. 587.
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 267
On the trial before the Lord Justice General, he admitted evidence
to show that the letter of acceptance, though dated the 31st, was in
fact written and posted on the 30th of January, and he directed the
jmy that if Higguis & Co, posted their acceptance of the offer in due
time, according to the usage of trade, they were not responsible for
any casualties in the post-office establishment.
It is important to bear ui mmd the terms of this direction, as it
formed the substantial subject of appeal, first to the Court of Session
and thence to the House of Lords. The jury found for the plaintiffs ;
that is to say, they found as a fact that the letter of Higgins & Co. was
posted in due time accordmg to the usage of the parties in their busi-
ness transactions, and having so found they, under the direction of the
judge, gave their verdict for the plamtiffs. Exceptions were there-
fore taken by the defendants, and, amongst other grounds of excep-
tion, they objected to the admission of evidence as to the posting of
the letter on the 30th of January, and to the direction of the Lord Jus.
tice General, to which I have just referred. The exceptions were over-
ruled by the judges of the First Division, and from their decision the
defendants appealed to the House of Lords ; the appeal was dismissed,
and the ruling and direction of the Lord Justice General were upheld.
Though the question in dispute between the parties was whether
Higguis & Co. were responsible for the delay in the delivery of the
post, it is observed that the direction of the judge went further, for he
ruled that if their letter was duly posted they were not responsible for
any casualties in the post-office establishment. During the argument
Lord Cottenham said, " The question is whether puttmg in the post is
a virtual acceptance, though by the accident of the post it does not
arrive " ; and, in moving the judgment of the House, he observed, " if
a man does all that he can do, that is all that is called for ; if there is
a usage of trade to accept such an offer and to forward it by means of
the post, and if the party accepting the offer puts his letter into the
post on the correct day, has he not done everythmg he was bound to
do ; how can he be responsible for that over which he has no control ? "
There is nothmg in the language of Lord Cottenham to suggest any
distinction between a case in which there is delay in the delivery of
the letter and one in which the letter is not delivered at all. But Lord
Cottenham went on to illustrate his meaning, and did so in the follow-
mg terms : " It is a very frequent occurrence that a party having a
bill of exchange which he tenders for payment to the acceptor, and ac-
ceptance is refused, is bound to give the earliest notice to the drawer.
That person may be resident many miles distant from him ; if he puts
a letter into the post at the right time it has been held quite sufficient;
he has put the letter into the post, and whether that letter be delivered
or not is a matter quite immaterial, because for accidents happening
268 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
at the post-office he is not responsible." Having regard to the passages
in Lord Cottenham's judgment, it appears to me impossible to doubt
that the proposition which he intended to affirm, and which was in
fact his ratio decidendi, was this, that when the letter accepting the
offer was duly posted, the contract was complete, although it might be
delayed in its dehvery or might never reach the hands of the party
making the offer.
I desire however to guard myself against being considered as parti-
cipating in a view of the effect of the decision m Dunlop v. Higgins (a),
which has been sometimes adopted, and as I think without sufficient
reason, viz., that in all cases in which an offer is accepted by a letter
addressed to the party makmg the offer and duly posted, there is a
bmding contract from the time when such letter is posted. I do not
take this view of the effect of the decision in Dunlop v. Higgins (a).
On the contrary, I think that the principle established by that case is
llimited m its application to cases m which by reason of general usage,
or of the relations between the parties to any particular transactions,
or of the terms in which the offer is made, the acceptance of such offer
by a letter through the post is expressly or impliedly authorized. In
'Dunlop V. Higgins (a) the previous correspondence between the two
firms was, in my opinion, quite sufficient, not only to authorize the
sending of the acceptance by post, but to point to it as the only mode
in which, under the circumstances, such acceptance could be communi-
cated, and it was in consequence of the jury finding it as a fact that
Higgins & Co. posted their acceptance of the offer to Dunlop & Co. in
m due time, according to the usage of their business transactions, that
they found a verdict for the plamtiffs under the direction of the judge.
The prmciple involved in Dunlop v. Higgins (a) was recognized by
Cresswell, J. upon the trial of the action in Duncan v. Topham (b) ;
upon that occasion he directed the jury that, if the letter accepting the
contract was put into the post-office and lost through the negligence
of the post-office authorities, the contract would nevertheless be com-
plete ; and upon an application in the same case, to make absolute a
rule which had been obtained for a new trial, though the new trial was
ordered upon other grounds, Wilde, C. J , and Maule, J., expressed views
to the same effect as the direction of Cresswell, J. ; in that case the
letter never reached the hands of the person to whom it was ad-
dressed.
T proceed to consider the circumstances of Colson's Case (c), they were
as follows. On the 13th of February, 1867, the defendant sent an ap-
plication to the company, through the post, for an allotment of fifty
shares, undertaking by his letter to pay the sum of 21. per share on
whatever numlier should be allotted to him ; on the 15th of the same
month fifty shares were allotted to him, and a letter informing him of
(a) 1 H. L. C. 3SI. ('') S C. B. 225. {') Law Rep. Ex. 108.
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 269
such allotment was posted to his address, as given in his letter of ap-
plication for shares viz., 31 Charlotte Street, Fitzroy Square.
Now a letter of application for shares in a public company, ex-
pressed in the usual form, must, I think, having regard to the usage
in such matters, be considered as authorizing the acceptance of the
offer by a letter through the post, as was expressed by Lopes, J., in
the case now under consideration ; such would be the ordinary mode
of transmission of an allotment letter. The defendant however swore,
and there was no reason to doubt the truth of his statement, that he
never received the letter of allotment ; that another person of the same
name lived opposite to hun in the same street : about that tune the
numbers in the street were changed, his own being altered from 31 to
87 ; and that several letters then sent to him had never reached him.
On the 28th of February the plaintiffs, on bemg informed that the letter
of allotment had not reached the defendant, sent him a duplicate, which
he refused to accept ; the action was then brought by the company
to recover the 21. per share. The jury found that the letter of allot-
ment was posted to the defendant on the 14th of February but that
he never received it, and that the second notice was not sent in a reason-
able time. The learned judge, Bramwell, B., thereupon directed the
verdict to be entered for the plamtiffs, but gave the defendant leave
to move to have it entered for himself on the authority of Finucane's
Case («) which had recently been decided by Lord Romilly. A rule
nisi was a-ccordingly obtained, and cause was shown on the 17th of
November, 1870, the Court being composed of the Lord Chief Baron
and Bramwell and Pigott, BB. Judgment was reserved, and on the
31st of January, 1871, the rule was made absolute to enter the verdict
for the defendant.
The Lord Chief Baron, in the course of his judgment, expressed
himself as follows : " It appears to me that if one proposes to another
by a letter through the post to enter into a contract for the sale or
purchase of goods, or, as in this case, of shares in a company, and the
proposal is accepted by letter and the letter put mto the post, the
party having proposed to contract is not bound by the acceptance of
it until the letter of acceptance is delivered to him, or otherwise
brought to his knowledge, except in certain cases where the non-re-
ceipt of the acceptance has been occasioned by his own act or default."
Now, unless the proposition so put by the Lord Chief Baron is to be read
with some qualifications, it can hardly be considered as consistent
with the decision in Dunlop v. Higgins (6), as such decision has ordi.
narily been understood. This view, however, taken by him of that
decision does not appear to be in accordance with that generally taken*
for after alluding to the circumstances of Dunlop v. Higgins (b) he
(a) 17 W. R. 813. (b) 1 H. L. C. 381.
270 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
proceeded to express his entire concurrence with the decision of the
Court of Session and in the affirmance of it by the House of Lords, upon
the ground that, in his opmion, the acceptance of the offer reached
Dunlop & Co. m tune, and that the House of Lords had acted upon
the same view of the circumstances of the case ; the distmction which
he recognized between that case and the one then mider consideration
consisted m this, that whereas the letter of acceptance m Bimloj) v.
Higgins (a) was received by the party making the offer m due time,
that in Colson's Case (b) never reached its destmation. Pigott, B., did
did not give a separate judgment, but it was stated that he concurred
in that of the Lord Chief Baron. Bramwell, B., also commented upon
the cu-cumstances of Dtmlo}) v. ITiggins (a), and referred to several
passages m the judgment of Lord Cottenham, mcludmg those which I
have quoted, and he then expressed himself as follows : " It seems to
me that the correct way to deal with those expressions is to refer them
to the subject-matter, and not to consider them as laying down such a
proposition as the plaintiffs have contended for, but that when the
post may be used between the parties it must be subject to those de-
lays which are unavoidable." It would appear, then, that all the
judges in the Court of Exchequer treated the case of Dunlop v. Hig-
gins (a) as one decided upon special circumstances, and as not enunciat-
mg any general principle beyond what was necessary for dealing with
such circumstances. I am unable to concur m this view. It may be
that there were special circumstances in the case of Dunlop v. Higgins
{a) sufficient to have justified the decision of the House, u-respective
of the application of the principle involved in the direction of the Lord
Justice General ; but the decision was not expressed to be based, and
apparently was not intended to be based, upon any such ground, but
upon an approval and of the direction of that learned judge.
After a careful consideration of the judgments of the Lord Chief
Baron and of Mr. Baron Bramwell, I can come to no other conclusipn
than that the decision m Colson's Case (b) is inconsistent ^ith that of
the House of Lords in Dunlop v. Iliggins (a). If I am right in this
conclusion it is not for me to choose between the two ; I am bound by
the authority of the decision of the House of Lords.
But I pass on to consider the circumstances of JTarris' Case (c), which
came before the Lords Justices in 1872. On the 5th of March, 186G,
Lewi.s Harris, of Dublin, applied to the directors of the Imperial Land
Company of Marseilles, by a letter in the usual form, for an allotment
of 200 shares, undertaking by his letter to accept that or any less
immber of shares that might be allotted to him. The directors allotted
to him 100 shares, -and early on the morning of the 16th of March
{a) 1 II. L. C. 381. (h) Law Rep. 6 Ex.108. (c) Law Eep. 7 Ch. 587.
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 271
posted a letter to him at his address, as given m his letter of applica-
tion, which was received by him at Dublm. He had, however, m the
mterval between the postmg and the delivery of the letter giving him
notice of the allotment, written to the directors withdrawing his ap-
plication and declinmg to accept any shares. Upon an order being
made to wind up the company, Mr. Harris was placed upon the list
of contributories in respect of the 100 shares, and a summons having
been taken out by hun to have his name removed from the list, such
summons was dismissed by Malms, V.C. From such dismissal Mr.
Harris appealed, but the decision of the Vice-Chancellor was upheld.
In giving judgment James L.J., said that it appeared to him that the
contract was completed the moment the notice of allotment was com-
mitted to the post, and a similar view was expressed by Mellish, L.J.,
who, after referring to the decision of the Court of Exchequer in Col-
son's Case (a), and stating that he had great difficulty in reconciling
it with that of the House of Lords m Bunlop v. Higgins (b), observed,
with reference to the last mentioned case, that the real question then
before the House of Lords was, whether the ruling of the Lord .Jus-
tice General was correct, and that the 'House of Lords held that it was.
It is doubtless true, as was observed by both the Lords Justices,
that the decision in Harris^ Case (c), was not necessarily mconsistent
with that of the Court of Exchequer in Colsoti's Case (a), but it is, I
think, clear that, although the Lords Justices did not feel themselves
called upon to express any dissent from the decision of the Court of
Exchequer, as it was not necessary for the decision of the case before
them that they should do so, they by no means recognized the pro-
priety of the distuiction drawn by the Court of Exchequer between
Dunlop V. Higgins (b) and Colson's Case (a). I do not thmk it necessary
to refer to Finucane's Case (d) and other cases decided by Lord Romilly,
in which he held that the posting of a letter of allotment which never
reached its destination was not sufficient to constitute the applicant a
contributory, further than to observe that m Finucane's Case {d)
Bunlop V. Higgins (b), and Duncan v. Topham (e) were not cited, and
that in the others the circumstances were such that the Master of
the Rolls deemed himself justified in not following the decision in Dun-
lop V. Higgins (b). Indeed, in one of those cases, Hebb's Case (f), he
distinctly recognized the authority of the decision m Dunlop v. Hig-
gins (b), which he considered to have been decided upon the ground
that the post-office was the common agent of both parties. For the
reasons which I have assigned, I am of opinion that the principle
established by the decision of the House of Lords in Dunlo]) v. Higgins
(b) is applicable to the case now under consideration, and that the
decision of Lopes, J., should be affirmed, I desire, therefore, to add
(a) Law Rep. 6 Ex. 108. (b) 1 H. L. C. 3SL (c) Law Rep. 7 Ch. 587.
id) 17 W. R. 813. (e) 8 C. B. 225. (/) Law Rep. 4 Eq. 9.
272 HOUSEHOLD FIEE INSURANCE COMPANY V. GRANT.
that I have felt myself bound by authority. My own convictions
are entirely in accordance with the prmciples which I consider to
have been established by authority ; and in saymg this, I bear in
mind as well the very forcible remarks made by the Lord Chief Baron
and my present colleague upon the subject of the mischievous con-
sequences that might ensue from an adoption of these principles in
certain suggested cases, as the equally forcible remarks made by
Mellish, L. J., as to the like consequences which would ensue in other
cases if those principles were departed from.
Bramwell, L. J. The question m this case is not whether the post-
of&ce was a proper medium of communication from the plaintiffs to
the defendant. There is no doubt that it is so in all cases where
personal service is not required. It is an ordmary mode of communica-
tion, and every person who gives any one the right to communicate
with him, gives the right to communicate in an ordmary manner and
so in this way and to this extent, that if an offer were made by letter
in the morning to a person at a place within half an hour's railway
journey of the offerer, I should say that an acceptance by post, though
it did not reach the offerer till the next morning, would be in time.
Nor is the question whether, when the letter reaches an offerer, the
latter is bound and the bargain made from the time the letter is posted
or despatched, whether by post or otherwise. The question in this
case is different. I will presently state what in my judgment it is.
Meanwhile I wish to mention some elementary propositions which,
if carefully borne in mind, will assist in the determination of this
case:
First. Where a proposition to enter into a contract is made and
accepted, it is necessary, as a rule, to constitute the contract that there
should be a communication of that acceptance to the proposer, per
Brian, C. J., and Lord Blackburn : Brogden v. 3IetropoUtan By. Co. (a) .
(a) 2 App. Cas. at p. 692. The following is the passage referred to: — " But when
you come to the general proposition which Mr. Justice Brett seems to have laid
down, that a simple acceptance in your own mind, without any intimation to the
other party, and expressed by a mere private act, such as putting a letter into a
drawer, completes a contract, I must say I differ from that. It appears from the
Year Books that as long ago as the time of Edward IV., Chief Justice Brian de-
cided this very point. The plea of the defendant in that case justified the seizing
of some growing crops because he said the Plaintiff had offered him to go and look
at them, and if he liked them, and would give 2.s'. Qd. for them, he might take tliem;
that was the justification. That case is referred to in a book which I published a
good many years ago, Blackburn on Contracts of Sale, and is there translated.
Brian gives a very elaborate judgment, explaining the law of the unpaid vendor's
lien, as early as that time, exactly as the law now stands, and he consequently says:
" This plea is clearly bad, as you have not shown the payment or the tender of the
money; " but he goes farther, and says (I am quoting from memory, but I think I
I am quoting correctly), "moreover, your plea is utterly naiight, for it does not
show that when you had made up your niind to take them you signified it to the
Plaintiff, and your having it in your own mind is nothing, for it is trite law that
the thought of man is not triable, for even the devil does not know what the
thought of man is; but I grant you this, that if in his offer to you he had said, Go
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 273
Secondly. That the present case is one of proposal and acceptance.
Thirdly. That as a consequence of or involved in the first proposi-
tion, if the acceptance is written or verbal, i. e., is by letter or message,
as a rule, it must reach the proposer or there is no communication,
and so no acceptance of the offer.
Foui-thly. That if there is a difference where the acceptance is by
a letter sent through the post which does not reach the offerer, it
must be by virtue of some general rule or some particular agreement
of the parties. As, for instance, there might be an agreement that
the acceptance of the proposal may be by sendhig the article offered
by the proposer to be bought, or hanging out a flag or sign to be seen
by the offerer as he goes by, or leaving a letter at a certain place, or
any other agreed mode, and in the same way there might be an agree-
ment that drojDping a letter in a post pillar box or other place of
reception should suffice.
Fifthly. That as there is no such special agreement in this case,
the defendant, if bomid, must be bomid by some general rule which
makes a difference when the post-office is employed as the means of
comm unication .
Sixthly. That if there is any such general rule applicable to the
communication of the acceptance of offers, it is equally applicable to all
communications that may be made by post. Because, as I have said,
the question is not whether this commmiication may be made by post.
If, therefore, posting a letter which does not reach is a sufficient com-
munication of acceptance of an offer, it is equally a communication of
everything else which may be commmiicated by post, e. g., notice to
quit. It is impossible to hold, if I offer my landlord to sell him some
hay and he writes acceptmg my offer, and in the same letter gives me
notice to quit, and posts his letter which, however, does not reach me,
that he has communicated to me his acceptance of my offer, but not
his notice to quit. Suppose a man has paid his tailor by check or
banknote, and posts a letter containmg a check or banknote to his
tailor, which never reaches, is the tailor paid ? If he is, would he be
if he had never been paid before in that way ? Suppose a man is in
the habit of sending checks and banknotes to his banker by post, and
posts a letter contaming checks and banknotes, which never reaches.
Is the banker liable? Would he be if this was the first mstance of a
remittance of the sort ? In the cases I have supposed, the tailor and
and look at them, and if you are pleased with them signify it to such and such a man,
and if you had signified it to such and such a man, your plea -would have been good, \
because that was a matter of fact." I take it, my Lords, that that, which was said ;
300 years ago and more, is the law to this day, and it is quite what Lord Justice Mellish
in Ex parte Harris accurately says, that where it is expressly or impliedly stated
in the offer that you may accept the offer by posting a letter, the moment you post
the letter the offer is accepted. You are bound from the moment you post the ^letter,
not, as it is put here, from the moment you make up our mind on the subject.' Ed.
Vol. 1—18
274 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT.
banker may have recognized this mode of remittance by sending back
receipts and puttmg the money to the credit of the remitter. Are
they liable with that? Are they Hable without it? The question
then is, is posting a letter which is never received a commmiication to
the person addressed, or an equivalent, or something which dispenses
with it? It is for those who say it is to make good their contention.
1 ask why is it ? My answer beforehand to any argument that may
be urged is, that it is not a communication, and that there is no agree-
ment to take it as an equivalent for or to dispense with a communication.
That those who affirm the contrary say the thmg which is not. That
if Brian, C. J., had had to adjudicate on the case, he would deliver the
same judgment as that reported. That because a man, who may send
a communication by post or otherwise, sends it by post, he should
bind the person addressed, though the communication never reaches
him, while he would not so bind him if he had sent it by hand, is
impossible. There is no reason in it ; it is simply arbitrary. I ask
whether any one who thinks so is prepared to follow that opinion to
its consequence ; suppose the offer is to sell a particular chattel, and
the letter accepting it never arrives, is the property in the chattel
transferred ? Suppose it is to sell an estate or grant a lease, is the
bargam completed ? The lease might be such as not to require a
deed, could a subsequent lessee be ejected by the would-be acceptor of
the offer because he had posted a letter ? Suppose an article is
advertised at so much, and that it would be sent oa receipt of a post-
office order. Is it enough to post the letter ? If the word " receipt "
is relied on, is it really meant that that makes a difference ? If it
should be said let the offerer wait, the answer is, may be he may lose
his market meanwhile. Besides, his offer may be by advertisement
to all mankind. Suppose a reward for information posted does not
reach, some one else gives it and is paid, is the offerer liable to the
first man ?
It is said that a contrary rule would be hard on the would-be
acceptor, who may have made his arrangements on the footing that
the bargain was concluded. But to hold as contended would be equally
hard on the offerer, who may have made his arrangements on the
footing that his offer was not accepted: his non-receipt of any com-
munication may be attributable to the person to whom it was made
being absent. What is he to do but to act on the negative, that no
communication has been made to him? Further, the use of the post-
office is no more authorized by the offerer than the sending an answer
by hand, and all these hardships would befall the person posting the
letter if he sent it by hand. Doubtless in that case he would be the
person to suffer if the letter did not reach its destination. Why
should his sending it by post relieve him of the loss and cast it on the
HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 275,
other party. It was said, if he sends it by hand it is revocable, but'
not if he sends it by post, whicli makes the difference. But it is-
re vocable when sent by post, not that the letter can be got back, but-
its arrival might be anticipated by a letter by hand or telegram, and
there is no case to show that such anticipation would not prevent the
letter from bindmg. It would be a most alarming thing to say that
it would. That a letter honestly but mistakenly written and posted
must bind the writer if hours before its arrival he informed the person
addressed that it was coming, but was wrong and recalled ; suppose
a false but honest character given, and the mistake found out after
the letter posted, and notice that it was wrong given to the person
addressed.
Then, as was asked, is the prmciple to be applied to telegrams ?
Further, it seems admitted that if the proposer said, " miless I hear
from you by return of post the offer is withdrawn," that the letter
accepting it must reach him to bind him. There is indeed a case
recently reported in the Times, before the Master of the Rolls, where
the offer was to be accepted within fourteen days, and it is said to have
been held that it was enough to post the letter on the 14th, though it
would and did not reach the offerer till the 15th. Of course there may
have been somethmg in that case not mentioned in the report. But
as it stands it comes to this, that if an offer is to be accepted in June,
and there is a month's post between the places, posting the letter on
the 30th of Jmie will suffice, though it does not reach till the 31st of
July ; but that case does not affect this. There the letter reached,
here it has not. If it is not admitted that " unless I hear by return
the offer is withdrawn," makes the receipt of the letter a condition, it
is to say an express condition goes for nought. If it is admitted, is it
not what every letter says ? Are there to be fine distinctions, such as,
if the words are " unless I hear from you by return of post, &c.," it is
necessary the letter should reach him, but " let me know by return of
post," it is not ; or if in that case it is, yet it is not where there is an
offer without those words. Lord Blackburn says that MelUsh, L. J.,
accurately stated that where it is expressly or impliedly stated in the
offer, " you may accept the offer by posting a letter," the moment you
post this letter the offer is accepted. I agree ; and the same thing is
true of any other mode of acceptance offered with the offer and acted
on — as firing a cannon, sending off a rocket, give your answer to my
servant the bearer. Lord Blackburn was not dealing with the
question before us ; there was no doubt in the case before him that
the letter had reached. As to the authorities, I shall not re-examine
those in existence before the British and America?! Telegraph Co. v.
Colson (a). But I wish to say a word as to Dimlop v. Higgins (b) ; the
(a) Law Rep. 6 Ex. 108. (&) 1 H. L. C. 381.
276 HOUSEHOLD FIEE INSURANCE COMPANY V. GRANT.
whole difficulty has arisen from some expressions in that case. Mro
Fin lay's argument and reference to the case when originally in the
Scotch Court has satisfied me that Dunlopy . Hlggins (a) decided noth-
ing contrary to the defendant in this case. Mellish, L.J., in Harris^
Case (b), says, " That case is not a direct decision on the point before
us." It is true, he adds, that he has great difiiculty in reconciling the
case of the I^ritish and AmericanTelegraph Co.Y. Colson (c) with J)un-
lop V. Hiygins (a) . I do not share that difficulty. I think they are per-
fectly reconcilable, and that I have shown so. Where a posted letter
arrives, the contract is complete on the posting. So where a letter sent
by hand arrives, the contract is complete on the writing and delivery to
the messenger. Why not? All the extraorduiary and mischievous
consequences which the Lord Justice points out in Harrii Case (b)
might happen if the law were otherwise when a letter is posted,
would equally happen where it is sent otherwise than by the post.
He adds that the question before the Lords in Dunlop v. Higgins (a) was
whether the ruling of the Lord Justice Clerk was correct, and they
held it was. Now Mr. Finlay showed very clearly that the Lord
Justice Clerk decided nothing inconsistent with the judgment in
the British and American Telegrapjh Co. v. Colson (c). Smce the
last case there have been two before Vice-Chancellor Malins, m the
earlier of which he thought it " reasonable," and followed it. In
the other, because the Lord Justice had m Harris' Case (b) thrown
cold water on it, he appears to have thought it not reasonable.
He says, suppose the sender of a letter says, " I make you an offer,
let me have an answer by return of post." By return the letter is
posted, and A. has done all that the person making the offer re-
quests. Now that is precisely what he has not done. He has not
let him "have an answer." He adds there is no default on his
part. Why should he be the only person to suffer ? Very true.
But there is no default in the other, and why should he be the only
person to suffer? The only other authority is the expression of
opinion by Lopes J., in the present case. He says the proposer may
guard himself against hardship by making the proposal expressly con-
ditioned on the arrival of the answer within a definite time. But it
need not be express nor within a definite time. It is enough that it
is to be inferred that it is to be, and if it is to be it must be withm a
reasonable time. The mischievous consequences he points out do not
follow from that which I am contending for. I am at a loss to see how
the post-office is the agent for both parties. What is the agency as
to the sender? merely to receive? But suppose it is not an answer,
but an original communication. What then? Does the extent of the
agency of the post-office depend on the contents of the letter ? But if
(o) 1 H. L. C. 381. (b) Law Rep. 7 Ch. 506. (c) Law Rep. 6 Ex. 108.
HOUSEHOLD FIPwE INSURANCE COMPANY V. GRANT. 277
the post-office is the agent of both parties, then the agent of both
parties has failed in his duty, and to both. Suppose the offerer
says, " My offer is conditional on your answer reaching me." Whose
agent is the post-office then ? But how does an offerer make the
post-office his agent, because he gives the offeree an option of using
that or any other means of communication.
I am of opmion that this judgment should be reversed. I am of
opinion that there was no bargain between these parties to allot and
take shares, that to make such bargain there should have been an ac-
ceptance of the defendant's offer and a commmiication to him of that
acceptance. That there was no such communication. That posting
a letter does not differ from other attempts at communication in any
of its consequences, save that it is irrevocable as between the poster
and post-office. The difficulty has arisen from a mistake as to what
was decided in Dunlop v. Higgins (a), and from supposing that be-
cause there is a right to have recourse to the post as a means of com-
munication, that right is attended with some pecuUar consequences,
and also from supposing that because if the letter reaches it binds
from the time of posting, it also binds though it never reaches. Mis-
chief may arise if my opinion prevails. It probably will not, as so
much has been said on the matter that principle is lost sight of. I
believe equal if not greater, will, if it does not prevail. I believe the
latter will be obviated only by the rule being made nugatory by every
prudent man saymg, « your answer by post is only to bmd if it reaches
me." But the question is not to be decided on these considerations.
What is the law? What is the prmciple ? If Brian, C. J. , had had
to decide this, a public post being instituted in his time, he would
have said the law is the same, now there is a post, as it was before
viz., a communication to affect a man must be a communication, i. e.'
must reach him-
Judgment affirmed.
(a) 1 H. L. C. 381.
fif.-^JU l/^ *^^r^o^ ^^^-^^t^^^^ A-'tA.^ai-y '^ .
CHAPTEK IV*
FOEM OF CONTEACT,
Section I. — Contract Under Seal,
STEFANOS XENOS AND ANOTHER .... Appellants
AND*
FRANCIS D. WICKHAM Respondent.
In the House of Lords, June 25, 26, 1866, Mat 8, July 16, 1867.
[JSeporfed in Law Reports, 2 English and Irish Appeals, 296.]
This was an appeal against a decision of the Court of Exchequer
Chamber {a) which {diss. Mr. Justice Blackburn and Mr. Justice Mellor)
had affirmed a decision of the Court of Common Pleas (b) in an action
between these parties on a time policy on a ship.
The Appellants are shipowners, carrying on business under the
name of the Greek and Oriental Steam Navigation Company, and as
such were the owners of the ship Leonidas. The Respondent is the
chairman and representative of the Victoria Fu-e and Marine Insur-
ance Company. The declaration alleged, in the usual form, that the
Plaintiffs caused their vessel to be insured by this company for the
space of twelve months, from the 25th of April, 1861, to the 24th of
April, 1862, on a policy valued at £1000, upon a ship valued at £13,
000, and the loss was alleged to have occurred by perils of thg sea.
There was also a count in trover for the policy.
The Defendant pleaded several pleas, some of which alone are
material. The first denied the insurance as alleged ; the fourth stated
that after the making of the policy the same remained, with the Plaint-
iff's consent, in the hands of the Defendant, and whilst it so remained,
and before the loss, the Plaintiffs requested the Defendant, for the
purpose of putting an end to the policy, to cancel the same and make
(o) U C. B. (N.s.) 435. (6) 13 C. B. (n.s.) 381.
(2781 * ^'^' ^^' ^<^<^t- I» Finch.
J
XENOS V, WICKHAM. STO'
a return to the Plaintiffs of the premium ; that, in compliance with
such request, and before the loss, the Defendant did cancel the policy
and thereby put an end to the risk, &c. , To the count in trover the
Defendant pleaded not guilty, and not possessed.
Issue -was taken. on. all .these .pleas, and . the. cause .was .tried .before-
Lord. Chief -Justice Erie,' when -it appeared 'that, on •the-25thof- April,*
1861^ the -Plaintiff s • employed- Mr.-Lascaridi,' au/ insurance , broker,- to.
effect for.them.a.policy-on .the«ship -Zeonidas. for. £2000^ at £8 -85 .- per-
cent., from the 25th of April to the 25th of October, In the case of
private underwriters at Lloyd's, it is customary to have only one slip,
which is signed by the different underwriters for the amounts for
which they are willing to undertake the insurance. In the case of
insurance companies a separate slip is prepared by the brokers of the
assured for each company, and the policy is afterwards prepared and
filled up from the slip by the officers of the company, and is kept by
the company imtil sent for by the assured or his broker.
In accordance with the usual practice, Lascaridi prepared for the
Respondent's company a slip embodying the terms of the proposed
insurance, and got it initialed by Mr. E. J. Sprange, a clerk of the
company, for the sum of £2000. This was left at the office of the
company in order that the policy might be made out. Before the pol-
icy was made out, the Plamtiffs sent to Lascaridi a letter, dated 29th
of April, 1861, desiring him to "cancel Leonidas insurance, and in-
sure the same for all the year and for all seas at £10 10s. per cent."
On the 30th of April Lascaridi called at the Respondent's office, and
stated that he did not wish the policy ah-eady mentioned to proceed,
but desired to effect another. The shp for the insurance for £2000 for
six months was then destroyed, and another slip was prepared by him,
and initaled by the Respondent's clerk, " E.J. S., " on the Leonidas for
£1000 for twelve months, from the 25th of April, 1861, on " hull, stores,
and machinery, valued at £13,000." On the 1st of May Lascaridi sent to
the Plaintiffs an account debitmg them with the sum of £338, as pay-
able by them in respect of insurances on the Leonidas^ and drew on
them, as of that date, for that sum at three months. They accepted
the bill, and when they did so Lascaridi told them that the policy
would be ready in a day or two. This bill was paid at maturity. In
the course of a few days afterwards a policy m the usual form of the
company was filled up from the slip, and was dated the 1st of May,
1861.
The custom, as between msurance companies and insurance brokers,
is for the companies to give credit to the brokers for the premiums,
debiting them in account with the amount of such premiums, and
when insurances are effected (as this was) for cash, or on cash ac-
count, all premiums for insurances effected during each month are
280 XENOS V. WICKHAM.
payable on the 8th of the succeeding month. Just before the expira-
tion of this credit a debit note is sent to the broker, with a statement
of the amount of the premiums due, less a discount and a brokerage
at 15 per cent. On the 8th of June a debit note was sent from the
Respondent's office to that of Lascaridi. On its being presented,
Lascaridi's clerk said that no premium was due, and, upon a second
messenger bemg sent with the policy, which was expressed to be
duly " signed, sealed, and delivered," and the debit note, the clerk
repeated the statement, and said that the policy ought not to have
gone forward. In the course of the day one of the clerks of Lascaridi
called at the office of the company, and said that the policy had been
put forward m error, and requested that it should be cancelled. A
memorandum of cancellation was thereupon indorsed on the policy m
these terms : " Settled a return of the whole premium on the within
pohcy, and cancelled this insurance, no risk attaching thereto. This
memorandum was signed by two directors, witnessed, and registered
in the regular way. The debit agamst Lascaridi for the premium
was cancelled, but he Avas charged with the stamp, and the policy
was handed to his clerk, with the memorandum of cancellation there-
on, that he might, if he could, obtam from the stamp office a return
of the stamp duty. On the morning of the 2nd of September, 1861,
Lascaridi's clerk called at the office of the company with the policy,
said that the cancellation had been made by mistake, and wished the
poHcy to be reinstated. He was informed that if the ship was safe,
and not in the Baltic, there would be no objection, and he was re-
quested to call again for an answer. At twenty minutes past eight
o'clock on the morning of that day mtelligence, by telegram, had been
received at Lloyd's statmg that the Leonidas was stranded on the
Nervo, but this mtelligence was not known to the IJespondent till
three o'clock in the afternoon of that day. The reinstatement of the
policy was then refused. It was admitted that the Aiipellants had
not, in fact, authorized the cancellation of the policy, nor did they
ever receive back from Lascaridi any part of the premium, or any
credit for the same.
The Lord Chief Justice, on these facts, directed a verdict for the
DefeiKlaiit, but reserved leave to the Plaintiffs to move to enter a verdict
for them if the Court should be of opinion that the policy was binding
on the company, and had been cancelled without authority. A rule
to tliat effect liaving been ol>taiuod, it was, after argument, discharged,
and this flecisioii was confirmed on appeal to the Exchequer Chami)er.
The present appeal was then brought.
The Judges were sninmoncd, and Lord Chief liai'on Pollock, Mr.
Justice Willes, Mr. Justice F.lackl)urn, Mr. Justice Mellor, Mr. Ban)n
Piggot, and Mr. Justice Smith, attended.
XEN03 V, WICKHAM. 281
Sir George JSbnyman, Q.C., and Mr. Watkin Williams, for the Ap-
pellants : —
The Judgment m the Court below was, that there never was a com-
plete and bmdmg contract between these parties. That proposition
cannot be sustauied. The policy was treated, except by Lord Chief
Baron Pollock, as a common law deed, and it was supposed to require
actual delivery to make it effectual. Formal delivery to the appel-
lants, or even to a particular person on their behalf, is not essential
for its validity : Comyn's Digest((/) ; Rolle's Abridgment (b). In Mcton
V. /Scott (c), the grantor of a mortgage for years retained the deed hi
his own possession, and it was only discovered among his papers after
his death, yet it was held not to be an escrow, but a deed, and took
effect from its execution, and was good against his creditors. In Ball
V. I'almer (d) a bond executed for the benefit of a woman with whom
the grantor had cohabited, though retamed in the hands of the tes-
tator's solicitor, and quite unknown to her till his death, was declared
by the Vice-Chancellor Wigram to be valid for her benefit. So in
Fletcher v. Fletcher {e),vfh.QXQ a man had executed a deed m favor of
his illegitimate son, though unknown to the son, and the deed was
kept in the grantor's possession, and not discovered until after his
death, it was held to entitle the son to sue his estate for the amount.
Doe d. Richards v. Lewis (f) is to the same effect ; and in Kidner v.
Keith {g), a deed which, by arrangement, was to be executed m dupli-
cate, was executed by the grantee, but not attested, and was sent in
that state to the solicitor of the grantors to procure their execution,
and they accordingly signed and delivered it ; this was held to be
sufficient, and the whole estate passed, the arrangement not rendering
the deed a mere escrow till the duplicates should have been inter-
changed. In the case of a corporation, the act of putting the common
seal to the deed is equivalent to the delivery. The policy here was
treated by the parties themselves as having been duly delivered. It
professes to have been " signed, sealed, and delivered " in the pres-
ence of the resident secretary, by two directors of the company, who
declare themselves to have acted in accordance with the provisions of
the deed of settlement of the company. Nothing more was required
to make it a perfect and binding mstrument. The retention of the
policy by the officer of the insuring company, after it had been fully
executed, would not prevent it from being complete. Doe d. Garnons
V. Knight (A) is not distinguishable from the present. That case estab.
hshed that the execution of the deed and the formal act of delivery, by
putting the hand on the seal, and saying, " I deliver this as my act and
deed," made it binding as such, although the grantor, in fact, retained
(a) Fait, A. 2. (^>)Fait. J. 1. (c) 6 Sim. 31. [d) 13 L. J. (^^s.) Ch. 352.
(e) 14 Ibid. 66. (/) 11 C. B. 1035. {g) 15 C. B. (n. s.) 35. {h) 5 B. & C. 671.
282 XENOS V. WICKHAM.
it in his custody, and did not deliver it to the party who was to take,
or to any one for his use.
As to the liability of the broker, it is clear that if he makes himself
liable for the premiums, money had and received can be maintamed
on the pohey, although in fact the premiums have not been paid at
the time of the loss : Power v. Butcher (a) ; Arnould on Marine Insur-
ance ( b). If otherwise, it would follow that, should the ship be lost
between the day of the execution of the pohcy and that for the pay-
ment of the premium, there would be no insurance, a proposition
which could never be admitted.
The formal handing over of the policy of insurance is not necessary,
for a policy is not like a bill of exchange, which may be revoked at
any time before it is delivered ; besides which,as LordCampbell observed
in Humphrey v. Dale (c), these matters must be looked at not solely
according to the habits of lawyers, but with reference also to the
usages and concerns of trade. Here all was done accordmg to those
usages, and it cannot be necessary to the validity of a policy of msur-
ance that it should be obtained by the assured the moment the slip is
signed. As soon as the slip was signed here the contract was com-
plete, and the sUp was in truth an agreement between the Plaintiffs
and the Respondent, and not between the broker and the Respondent.
Then, as to the question whether, if the policy was completed, the
broker had not, so far as the Respondent was concerned, authority to
cancel it, and whether he had actually cancelled it. The Plauitiffs
had never authorized the cancellation ; that was admitted in the special
case. The clerk had no right, without their authority, to cancel it.
Lascaridi had never given him any authority to do so ; and Lascaridi
himself not havmg received authority from the Plaintiffs to cancel the
policy, possessed no power to give him any. The person who is au-
thorized to effect a policy does not thereby acquire authority to cancel
it. The case states that the course with insurance companies is for
the broker to prepare for each a slip, and the policy is afterwards filled
up from that slip by the officers of the company, and is kept by the
company until sent for by the assured or his broker. That very usage
assumes that the policy may contmue with the insuring company, but
yet the contract will be complete. The mere keeping possession of
the policy, even if it had still remained in the possession of the com-
pany, which it did not, would, therefore, have amounted to nothing ;
but, in fact, the actual possession remained with the broker, who must
be treated as having held it as the agent of his principals. The gen-
eral authority of a broker is stated in Story on Agency (d), where it
is shown (e), that tliougli tin; l)roker, if tlie policy remains in his hands,
may have, incidentally, authority to receive i)ayment on a loss, he will
(a) 10 B. & C. 329. (b) Vol. 1. p. IO.'j. (c) 7 E. & B. 278. (d) S. 58. (e) S. lO:;, 109.
XENOS V. WIOKHAM. 283
not have authority to receive payment except in money. It is clear,
therefore, that his authority is restricted in its nature. The policy
here was completely effected, and what was afterwards done was null
and void. The contract was complete when the slip was signed. The
Respondent thereby undertook the risk, [Lord Cranworth : — If the
Respondent had agreed to execute a policy, but had not executed it,
could there have been an action for not doing so ?] There might have
been but for the stamp laws ; they would prevent the remedy on such
a contract, for the slip is not stamped, and so there would not have
been sufficient legal evidence of it. [Lord Cranworth : — Was there
not here a cancellation indorsed on the poUcy before there was any-
thing which amounted to a delivery of it by the parties to be made
liable on it ?] That depends on the view which the House may take
of the facts of the case, and of their legal effect. The Plaintiffs sub-
mit that there was here a complete delivery — that everything was really
completed on the 1st of May, there were no terms to be considered,
or added, or rejected, the execution of the policy and its delivery were
perfect, and there had been nothing since which could impeach the
validity of the contract : Ridgway v. Wharton (a), where Fowle v. Free-
man (b) was adopted.
Mr. Bovill^ Q. C, and Mr. Archibald^ for the Defendant : —
There was no policy here under the hands and seals of the company
at the time of the loss. The declaration alleged the existence of a
policy of insurance, purporting thereby to bind the company to cer-
tain things. There was nothmg to sustain that allegation. Payment
of the premiums was to be made by the Plamtiff s through their agent,
Lascaridi. The bill to make that payment was drawn m May, it had
four months to run, and the date at which it was to become payable
was actually subsequent to the date at which the ship was lost, and
was long subsequent to the time at which the policy had been repu-
diated. The Respondent never received any payment — the broker was,
indeed, at one time debited to him in the books of the company, but
that was nothing without the broker's assent ; and so far from giving
that assent, he denied all liability to pay the premium, and stated that
the policy ought not to have gone forward. That occurred on the 8th
of June ; and as the underwriter always looks to the broker, the policy
then came to an end. A memorandum of cancellation was made on
the policy, and though the policy was left with the broker, it was left
not as a delivery of it, as a policy, to him, as the broker for the as-
sured, but merely to enable him to get a return of the stamp duty.'
This, so far from being an acknowledgment of liability, was a dis-
tinct declaration that no liability existed. The broker was the avowed
(a) G H. L. C. 238. [h) 9 Ves. 351.
284 XENOS V. WICK HAM.
agent of the Plaintiffs, and they were bound by his acts. Nothmg
farther occurred till the vessel was lost. The Defendant's company
was not a cori3oration, but even if it had been, that would not have
made the affixing of the seal to the policy binding on the company,
unless that act had been done with a distinct intent to that effect ;
The Derby Canal Company v. Wilmot (a). Nothing was done here
which would bring the case within Doe d. Gar7ions v. Knight (d),
where there had been a formal affixing of the seal, and a formal de-
livery of the document as the deed of the party. As to the delivery
of a deed, it is said in the Touchstone (c) :
" The delivery of a deed as an escrow is said to be where one doth
make and seal a deed and deliver it unto a stranger until certam
conditions be performed, and then to be delivered to him to whom
the deed is made to take effect as his deed." Here it was only pro-
posed to be delivered, and on that proposal it was repudiated. In truth,
it never was dehvered, and has never been m the possession of the
Appellants as a deed accepted by them. That acceptance was neces-
sary to make it binding on the insurers, for the. Appellants were at
liberty, up to the last moment, to object to the terms of the deed and
to repudiate it. In Tliompson v. Leach {d), three out of four Judges
were of opinion, against Ventris, that where there had been a surren-
der, though formally executed by some parties, if not agreed to by the
surrenderee it did not operate as to him. Viner (e) is to the same
effect; and in Toionson v. TicJcell (f) [i de\isee m fee was allowed to
disclaim by deed without matter of record. Here the policy wag
never mtended to be absolute till accepted by the other party, and by
him it was repudiated and rejected.
The writing of the terms on the slip was not all that was neces-
sary to constitute the contract. The premium was to be paid, and
the policy was to be accepted. Neither of these thmgs was done.
Under such circumstances, the analogy to a bill of exchange is good,
and the consideration not being paid, and the instrument not being
delivered, no liability can possibly arise upon it. So in the case of
an arbitration. The appointment of an arbitrator is not all that is
necessary to bind the parties. It cannot, therefore, be argued that
the signing and sealing of the policy rendered the policy completely
binding on all parties. The acceptance of it would have made it
binding— that acceptance was refused. The terms of the proposed
contract were not adopted l)y the Appellants, and they, not having
accepted it, cannot now claim the advantage of it.
Sir G. Jlonyman^ in reply : —
Payment in account is, in these matters, accordmg to the practice
[n) 9 East, 3f50. (?>) 5 13. & V,. 071. (c) Ch. 4, p. .58. () 2 Ventr. lt)8. This
judgment was afTinn<-(l in tln^ Kin^j's R.-iich, ?, Mod. 'JOn. but is said (2Ventr. 208)
to have beeu reversed in tlio House of r.ords. (") Ahr. Faits, K. i)l. Vl. h) W B. t\L- A. 3i.
XENOS V. TVICKHAM. 285
in London in such cases, equivalent to actual payment. The broker
here did not refuse the policy by the authority of the Plaintiffs, and
his refusal without their authority had no effect. It was executed
completely as a policy, and bemg so, delivery and acceptance of it
were not necessary to complete its validity.
The followhig question was put to the Judges : —
" Whether, on the facts stated in the special case, the Victoria Fire
and Marine Insurance Company was, when the ship Leonidas was
lost, liable as insurer to the Plaintiffs on the policy, or alleged policy,
in the pleaduigs mentioned ? It is to be assumed that the ship Leoni-
das was totally lost on the 1st of September, 1861."
Mr. Justice Smith : —
My Lords, — I answer the question of your Lordship, in the nega-
tive, on the ground that there never was, as it seems to me, a com-
plete and available contract of insurance.
I assume it to be clear that the slip does not create a valid contract
of insurance, and that it is only of avail as a proposal, or an order for
a complete contract or policy of insurance. I apprehend it to be
equally clear that the contract is not complete until the policy is ex-
ecuted, and delivered to and accepted by the assured, or some agent
for him. This policy, although executed, was not in fact delivered out
of the office of the Respondent, either to the assured or to his broker,
Lascaridi, who had ordered it, and whilst it lay in the office the mtend-
ed insurance was, by the broker, put an end to, on the ground that it
had been put forward in mistake. I assume, in favor of the Appel-
lants, that if the contract of msurance had been complete, Lascaridi
had no authority to rescind the contract ; but I assume also, in favor
of the Respondent, that, whilst it was incomplete, Lascaridi had
authority to intercept its completion.
The whole case, therefore, is reduced to the question, which is
mamly one of fact, whether, after the policy was executed, and before
it came to the hands of the assured or his broker, the contract was
perfected.
The Appellants' case, on this cardinal point, wholly rests on the
assumption that Lascaridi had made the officers of the company his
agents to accept the delivery of the policy on his behalf. I think
this is an assumption which is not warranted by the facts of the
case. It arises from the very nature of the transaction that the person
intending to insure, or his broker (when he acts through a broker),
has a right to see the terms of the policy, and to object to them,
if he thinks fit. This right may, of course, be delegated by the per-
son intenduig to insure, and, I will assume, by his broker also ; but
it seems to me that clear evidence of such delegation is necessary,
and the person intending to insure cannot, I think, with reason, be
286 XENOS V. WICKHAM.
presumed to have delegated it to the insurers, from the fact that the
policy was left m the office of the company, and not sent for ; and yet
such a presumption must be made if the argument for the Appellants
is to prevail. The right to object to the terms of the mstrument,
which may obviously be of the utmost importance, would if this pre-
sumption is made, be gone as soon as the directors have executed the
policy and handed it to their own clerks.
In the result, I think that the assumption on which the Appellants'
case rests is not warranted by the e\ddence ; and I confess it seems
to me that consequences full of real danger to the interests of persons
intending to insure would follow from a rule founded on such an as-
sumption. I agree with my learned brothers, who thmk that it is
better to adhere to plain inferences of fact, than to attempt to remedy
the inconveniences of a negligent mode of doing busmess by makmg
the facts bend to the exigencies of the negligence.
Mr. Barox Pigott : —
My Lords, — In answer to your Lordships' question, viz., " Whether,
on the facts stated in the special case, the Victoria Fire and Marine
Insurance Company was, when the ship Leonidas was lost, on the 1st
of September, 1861, liable as insurer to the Plaintiffs on the alleged
policy in the pleadings mentioned," I answer that, m my opinion, the
company was so liable.
The facts are very fully and accurately set forth in the judgment
delivered by Mr. Justice Blackburn, m which judgment I entirely
agree. It is unnecessary for me to do more than refer to the more
prominent ones in stating the grounds of my opinion.
That opinion is based upon two considerations. First, I tliink there
was a perfect and binding contract of insurance between the parties,
dated on the 1st of May; and, secondly, that it was never cancelled
or made void as between the Appellants and the Respondent.
The whole difference between the parties has obviously arisen from
the fraudulent conduct of Lascaridi, the Plaintiffs' broker ; but it is
equally clear, I think, that they are not to be held responsible for, nor
ought their rights to be affected by, it. The authority with which
Lascaridi was invested by the Plaintiffs was that of a broker em-
ployed to effect an insurance in the ordinary manner, with this addi-
tional circumstance only, that after he had bespoken the policy, and
before it was filled up from the slip, he had express authority to pro-
cure an alteration in the terras of msurance. To that alteration the
Defendant acceded, and thereupon a second slip was initialed by him
for tlie insurance in question (the former slip being destroyed).
The case states what is tlie course of proceeduig where, as in this
case, insurance companies become the insurers. It is, that *' a sep-
arate slip is prepared l;y the broker of the assured, and the policy in
XENOS V. WICKHAM. 287
afterwards prepared from it by the company, and is kept by them until
sent for by the assured or his broker." A separate slip was in fact so
prepared for this policy, and was left by Lascaridi at the Defendant's
oflace, m order that a policy might be made out in the usual course by
the Defendant. Then, with regard to the premiums, it is the custom
for msurance companies to give credit to the brokers for them, and to
debit them in account. This was done in the books of Defendant on
the 1st of May, the day of signing the slip for this policy. On the
same day Lascaridi sent to the Plaintiffs (his prmcipals) an account
in which he debited them with the premium and duty, and he also
drew upon them at the same time for the amount. This draft was
accepted by Plaintiffs, and was paid at maturity. When they ac-
cepted this bill they were told by Lascaridi that the policy would be
ready in a day or two. In a few days afterwards, a policy m the
form usually adopted by the Defendant's company was filled up from
the last slip, and was duly executed by two directors of the company.
It bears date on the 1st of May ; it purports to have been signed,
sealed, and delivered in the presence of a witness ; it was therefore in
form complete. In that state it continued in the custody of the De-
fendant until the 8th of June, when the Defendant sent a debit note
for the premium and stamp to Lascaridi's office. At the instance of
Lascaridi the Defendant was induced to cancel the policy, on the rep-
resentation that it had been " put forward in error." This (as we
now know) was a false statement on the part of Lascaridi, It is on
the circumstance of the policy remaining in the hands of the Defend-
ant, as above stated, that the question depends, whether the transac-
tion constituted a complete contract, in law and fact, or not. I am of
opinion that it was comj^lete.
What inference might have been drawn from the fact of its so re-
maining if there were no explanation about it, it is umiecessary to
consider ; for we have the reason given ; and that reason is, not that
it waited anything to be done upon it by the Defendant, or to be as-
sented to by the Plaintiffs, but that it was there only till sent for by
the assured or his broker, or, in other words, that it remained there
according to the trade usage or by tacit understanding. This reason
necessarily implies that in all other respects it was a completed tran-
saction. But farther, it is plain that the formal assent of the Plain-
tiffs was not wantmg to any of the terms of the policy, for that was
evidently intended to be, and accordingly was, made out in the Defend-
ant's usual form, filled u^) with the particulars from the slip. But far-
ther, the Defendant acted upon the policy as a perfected transaction,
when, on the 8th of June, he demanded payment of the premium for
which he had given credit to the broker. In the face of this demand,
I confess it seems startling that the Defendant can be heard to say
288
XENOS V. WICKHAM.
that there was no complete contract subsisting at that period. It was
in form complete, and was shown, by the conduct of all the parties to
it, to be believed and intended by them all (apart from Lascaridi's
fraud) to be also completely in operation.
It seems, therefore, to be reduced to this, viz.: Was it essential that
the deed should be given out of the Defendant's possession in order
to its perfect delivery as an operative instrument ? I know of no such
necessity in law or good sense.
Sheppard, m his Touchstone, writing of the requisites of a good
deed, treats, fifthly, of delivery as a matter of fact to be tried by
jurors (a), and by the whole context shows that it is a question of in-
tention. He afterwards (b) says, that » Delivery is either actual, i. e.,
by domg something and saymg nothing, or else verbal, i.e., by saying
somethmg and doing nothmg, or it may be by both : and either of
these may make a good delivery and a perfect deed."
I>oe d. Ganions v. Knight (c) is an authority most satisfactory on
this subject, and it is only necessary to quote one passage from the
judgment of the Court as delivered by Mr. Justice Bayley. He says :
" Where an mstrument is formally sealed and delivered, and there is
nothing to qualify the delivery but the keeping the deed m the hands
of the executmg party, nothing to show that he did not intend it to
operate immediately, it is a valid and effectual deed, and the delivery
to the party who is to take by it, or to any person for his use, is not
essential." This passage seems to be exactly applicable to the facts
of the present case, with this addition, that there is here not only
nothing to qualify the delivery, but, as above suggested, much to
show that the Defendant did mtend it to be unqualified, and a deed
in full operation.
The only remaining question which could arise, viz., whether the
Plaintift"s were bound by the fraudulent conduct of Lascaridi in pro-
curing the cancellation of the policy, was not much urged at your Lord-
ships' bar, although it had been relied upon at Nisi Prius and in the
Court of Common Pleas. It is a proposition clearly not sustainable.
The act was without authority, express or implied ; and it is enough
to say upon it that Lascaridi was the broker employed to procure a
policy, and from that employment it is impossible to imply an author-
ity to cancel it. Then he certainly had no express authority, as is ad-
mitted in the special case.
I therefore answer your Lordships' question in favor of the Plaintiffs,
and in the affirmative.
Mr. Justice Mellor : —
My Lords, I answer the question put by your Lordships to the
(a) Vol. i. C. 4, p. 54. {h) Ibid. p. 57. (c) 5 li. & C. G92.
XENOS V. WICKHAM. 289
Judges in the affii-mative. I carefully attended to the arguments urged
by the learned counsel who appeared for the parties in this case at the
bar of your Lordships' House, but I confess that the observations then
addressed to your Lordships did not affect the conclusion at which I
arrived when the case was heard by the Judges in the Court of Ex-
chequer Chamber. I do not venture to repeat the observations which
I then made, but I humbly refer your Lordships to the judgment which
was then read for me by my brother Blackburn.
My judgment depends upon the facts which I consider to be admit-
ted by the case, viz. , that the policy in question was prepared by the
Defendant in conformity with the instructions of the Plaintiffs, given
through their broker, Lascaridi ; that by the mode of dealmg between
the Plaintiffs' broker and the defendant, the amount of the premium
and the stamp must, as agamst the Defendant, be treated as paid ;
that the policy was duly executed and delivered as a deed by the De-
fendant, who did everythmg that he intended to do. to complete such
execution and delivery, and that it was merely kept in his custody
until called for by the assured or their broker. The Plamtiffs, as I
think, were bound by it, because it was prepared in conformity with
their mstructions. The Defendant was bound by it, because he had
accepted the terms and mode of payment of the premium and stamp,
and acted upon the instructions of the Plaintiffs, and had done every-
thing which he intended to do by way of execution and deUvery of
the policy as a deed, and retained it only for safe custody until sent
for by the assured m the ordinary course of business.
Mr. Justice Blackbukx : —
I answer your Lordships' question m the affirmative. Two questions
are involved in your Lordships' question. First, whether the policy
before the 8th of June was so executed as to bind the Defendant's
company to the Plamtiffs ; second, whether the transaction between
the Defendant's company and Lascaridi (the Plamtiffs' broker) oper-
ated so as to release the Defendant from the obligation he had con-
tracted to the Plamtiffs, supposmg the policy to have been so execu-
ted.
I have already, m the judgment I delivered in the Court below, ex-
pressed the reasons for my opinion at length (a). And as I have not
been induced, by anything I have heard at your Lordships' bar, to
alter the opinion I then expressed, I think it better to refer your
Lordships to that prmted opuiion than to repeat the opinion I there
gave.
I have had an opportunity of perusing the opinions of my brothers '
Willes and Smith, and, if I understand them rightly, they agree with
(a) 13 C. B. (N.s.) 451.
Vol. 1-19
290 XENOS V. WICKHAM.
me in thinking that if the policy was bmclmg before the 8th of June,
what occui-red subsequently would not discharge the company. I
shall, therefore, say nothing more on that branch of the question.
As to the other branch, I should wish to call your Lordships' atten-
tion to what I think are the real pomts m controversy. They are, I
thuik, two ; one of fact, the other of law.
The question of fact is, I thmk, this : Was the policy really m fact
mtended by both sides to be finally executed and bmding from the
time when the du^ectors of the Defendant's company affixed their seals
to it, and left it m their office ; or was it, m fact, mtended that the as-
sured or their brokers should exercise a subsequent discretion as to
whether they would accept it or not.
If I thought that the parties did not in fact intend it to be then
finally bmding, I do not thuik there would be any magic in the law to
make it bmdmg contrary to their intention ; but I submit to your
Lordships that the statements in the case as to what is stated to be
" always " the practice, and the statements there as to what was done
in this particular case, show that the intention of both parties was
that the policy, when drawn up by the company in conformity with
the instructions in the advice slip sent in by the broker, should be
finally binding as soon as executed by the officers of the company.
It was not intended by either side that anythmg more should be done,
but that the policy from that time should be bindmg, and should
lie in the company's office as the property of the assured till sent
for by them, and then be handed over to their messenger.
It seems that some of the Judges take a different view of the fact,
and think it really was intended that the policy should not be finally
binding till something more was done by the assured. Your Lord-
ships will decide which is the true view of the facts.
Then, assuming that the intention really was that the policy should
be binding as soon as executed, and should be kept by the company
as a bailee for the assured, the question of law arises, whether the
policy could in law be operative until the company parted with the
physical possession of the deed.
I can, on this part of the case, do little more than state to your
Lordships my opinion, that no particular technical form of words or
acts is necessary to render an instrument the deed of the party sealing
it. The mere affixing tlie seal does not render it a deed ; but as soon
as tliere are acts or words sufficient to show that it is intended by the
party to be executed as his deed presently l)in(ling on him, it is suffi-
cient. The most ai)t and expressive mode of indicating such an inten-
tion is to hand it over, saying : " I deliver this as my deed ;" but any
other words or acts that suffificntly show that it was intended to be
finally executed will do as well. And it is clear on the authorities,
XENOS V. WICKHAM. 291
as well as the reason of the thing, that the deed is binding on the
obligor before it comes into the custody of the obligee, nay, before he
even knows of it ; though, of course, if he has not previously assented
to the makmg of the deed, the obligee may refuse it. In JButler and
Baker's Case (a), it is said ; " If A. make an obligation to B., and de-
liver it to C. to the use of B., this is the deed of A. presently ; but if C.
offers it to B., there B. may refuse it in pais, and thereby the obligation
will lose its force." I caimot perceive how it can be said that the delivery
of the policy to the clerks of the Defendant, to keep till the assured
sent for it, and then to hand it to their messenger, was not a delivery
to the Defendant to the use of the assured. There is neither authority
nor principle for qualifymg the statement in Butler and Baker'' s Case,
by saying that C. must not be a servant of A., though, of course, that
is very material in determining the question whether it was " delivered
to C. to B.'s use," which I consider it to be, in other words, whether
it was shown that it was intended to be finally executed as binding
the obUgor at once, and to be thenceforth the property of B. In the
present case, the assured could not have refused the deed in pais, for
it was drawn up in strict pursuance of the authority given by them
in the slip set out in the case ; and I think a prior authority is at least
as good as a subsequent assent. That question, however, does not
arise, as they did not refuse it inp)ais.
No authority, I think, has been cited which supports the position
that there is a technical necessity for some one who is agent of the
assured taking corporal possession of a policy under seal before it can
be binding, though intended by both parties to be so. I think it would
be very inconvenient, and would work great injustice, if such were
the law. I must leave it to your Lordships to determine whether it
is so or not.
Mr. Justice Willes : —
My Lords, I answer the question in the negative, that upon the facts
stated in the special case, the Respondent (who represents the Victoria
Fire and Marine Insurance Company), was not, when the ship Leonidas
was lost, liable as insurer to the Plaintiffs on the policy, or alleged
policy, in the pleadings mentioned.
Assuming, as upon the statement it must be assumed, that the
broker had no authority to revoke this policy, if once completed, so as
to be the contract of and bmding upon both parties, the question is,
whether it ever was so completed ?
In dealing with this question as a practical one, it must be borne in
mind that albeit consent, not corporal possession, makes the contract,
yet the plain duty of the broker is not merely to bespeak, but to pro-
(a) 3 Co. Rep. 26.
292 XENOS V. WICKHAM.
cure the policy, and to procure it upon his own credit. A loose way of
business upon trust cannot abrogate any part of that duty, or make
up for the consequence of neglecting it ; and, indeed, takmg the prac-
tice alleged to prevail as a whole, it i > for the most part, viz., as to the
insurances effected at Lloyd's, consistent with the duty of the broker
to effect the policy in such a manner that his employer, or he, on behalf
of his employer, should have the policy.
In the case of msurances at Lloyd's, no difQculty can arise, for the
broker sends round the policy and procures the signatures. When
the policy is effected with a company, therefore, if analogy is to pre-
vail, the broker ought to call for the policy. A careless practice, not
stated to have grown into a known usage of trade, may exist of not ask-
ing for the pohcy, but if this be so, it is pure negligence. Nor can it be
doubted that the employer in such a case, equally as in that of msur-
ance at Lloyd's, is entitled to have the policy in his broker's hands-
Nor could the broker, in case of any damage arismg, for want of a
policy, or of a proper policy, through his default m not askmg for it,
or look ing to see that it was m order, resist an action such as was
brought by the employers in Turpin v. Bilton (a) .
The statutes requiring contracts of marine msurance to be m writ-
ing, and stamped (35 Geo. 3, c. 63, s. 11 ; 5-1 Geo. 3, c. 144, ss. 3, 4, 5),
annul contracts not so framed, consequently, a marine policy, or con-
tract for a marine policy, to be valid, must be m writing, which, by
the assent of both parties, shall represent the contract between them.
But for the decided cases, it might have been supposed that upon the
slip being completed, there was a contract on the part of the assurers
to prepare and hand over a policy according to the slip, and that ah
though, because of the statutes, no action could be maintained as upon
a policy of insurance, yet an action might be maintained for not pre-
paring a policy. And causes have even been tried, without objection,
upon the notion that the insurance is complete from the date of the slip.
But the law, as settled by the decisions upon the construction of
the statutes referred to, is, that as there can be no valid insurance, or
contract for an insurance, unless by writing with the statutory
re(iuisites, the slip by itself has no binding force. Thus, it has been
held, that, notwithstanding the slip, the proposed assured, upon the
one hand, can insist upon being off", and can retract his order, and
refuse to accept the policy : Wancick v. >Slade (/>), where the employer
retracted the broker's authority after the slip was signed, tliough
before the policy was completed ; and, on the other hand, that the
slip imposes no liability upon the proposed insurer, and there is no
remedy against him until the policy is complete : I'arri/ v. The Great
Ship (^ornjxiinj (c).
{n) :> Man. A G. 455. (6) 3 Camp. 127. (c) 4 B. & S. 556.
XENOS V. WICKHAM. -293
It follows that the slip, though complete, is no contract, nor even
part of a contract of insurance, but a mere proposal that a policy of
insurance shall be entered into infuturo^ and, in case of insurance
with a company, a request that the policy shall be prepared at the
office. Does it follow, that when a policy is prepared m alleged com-
pliance with the request, it shall be, without more, the contract of
both the parties ? That cannot be the rule, because it must be open
to the customer, or to his broker, when the negotiation takes place
through a broker, to object (and especially in the case of company
policies, which do not always follow Lloyd's form), that the policy is
wrong. In case of war, or a dangerous voyage, or, indeed, any case
with a special provision, disputes may easily arise. In this very case
a question might have been raised upon the omission of the running-
down clause, which has been so commonly added in the margin since
Devaux v. Salvador (a) ; and see also Taylor v. Dewar (b).
It is thus obvious that there must be jDOwer to object or refuse
assent to the policy when prepared by the company ; and, inasmuch
as such rejection or refusal touches the question, policy or no policy,
it lies withm the scope of the broker's authority. He may give a bad
reason for his refusal, as the broker in the principal case is said to
have done ; but the badness of the reason assigned cannot take away
from the effect of the act done, which, according to the maxim, must
depend upon the power he had to do it, not upon the soundness of
the reason he gave for doing it.
By way of removing this difficulty, various suggestions have been
made in argument. One was that the case is analogous to a convey-
ance of property, where assent is presumed until disclaimer. I am
not aware, however, that this doctrine of presumed assent has ever
been applied to the case of a mercantile contract, with something to
be done on both sides, such as to insure upon terms which may or
may not be correctly expressed, in consideration of being paid, or
allowed to debit in account, a premium which may or may not be
commensurate to the risk.
In the case o f a simple benefit conferred, to be taken as it is, or not
at all, like a bond or a release, there might be room for such a presump-
tion, though it is difficult even there to recognize a complete contract
before assent. But the presumption is out of place as applied to a
contract with mutual obligations, which must be matter of bargain,
and must be incomplete so long as either mind may dissent.
Indeed, the suggested analogy to conveyances of visible property,
if it held good, would not help the Plaintiffs, but rather tend to illus- .
trate the necessity of subsequent assent. Thus, if B. order of a watch-
maker a watch of the same make and materials as that of A., with
B's name upon it, and the watchmaker makes it accordingly, intend-
(a) 4 Ad. & E. 520. (&) 5 B. & S. 58.
294
XENOS y. WJCKHAM.
ing it for B., and puts B's name upon it, so that it is as much as it
can be the very watch bargained for, yet, without a new assent on
B's part it does not vest in him ; the watchmaker cannot make B.
take to it, nor B. compel its dehvery. See the argument in Atkinson
V. Bell (a).
And, in hke manner, as to a contract to be prepared in futuro, if
goods are bought, to be paid for by the buyer's promissory note or
check, payable to the seller or order, and the goods are deUvered and
accepted, and the buyer makes the note or check, and leaves it
with his servant, to be handed to the seller when he calls for it,
that transaction is not enough to vest the note or check in the seller,
and the buyer may, without more, retake the note or check from
his servant and put it into the fii-e.
It is clear, therefore, that the doctrine of presumed assent to a con-
veyance will not help, and that the mere previous request (even
though bindmg as part of a contract), that a contract, which, to be
valid, must be in writing, shall be prepared by one of the parties,
proposing to contract, for the other, has not the effect of vestmg a
right in any contract in writing if and when so prepared, and much
less can a previous colloquy, not binding as part of a contract, have
that effect.
As another way of getting out of the difficulty, it was suggested
to assume that the insurance company, or servants of the company,
were made agents of the employers of the broker, for the purpose of
assenting to the policy on then* part. That would, however, be simply
assuming the thing that is not, for the sake of shutting out an un-
pleasant consequence of the thing that is. To hold an auctioneer, or
common broker, or other mdependent go-between, to be authorized to
complete the contract for both buyer and seller, is but a necessary
conclusion of fact from his being their common agent. To reason
thus as to a clerk or servant of one of the parties, employed by him in
a dependent capacity to attend to his business, involves a contradic-
tion, and has no foundation of fact.
These sources of light thus failing, let the transaction itself be ex-
amined with attention. It has been observed that the slip amounts
only to a proposal that a policy shall be prepared upon certain terms.
Those terms, so far as they are to bind the insurer, commonly include
some known uniform ones, as to which there can be no question, but
also others applying to the particular transaction, sometimes obscurely
worded, sometimes imperfectly understood, and as to wliich disputes
may arise. This consideration alone keeps the policy in fieri until
()l)jection is waived. On the other hand, the terms, so far as tliey are to
bind the assured, include, besides the implied warranties, payment of
premium, either in cash, or by being credited in account.
(a) S B. & C. 277.
XENOS V. WICKHAM. 295
If, then, the Plaintiffs had ordered the policy without the interven-
tion of a broker or his obtainmg credit for himself, they could not
have insisted upon receiving it without paying the company in cash.
Had the directors offered them the policy, and had they refused to pay
for it, they might have treated the negotiation as at an end, and can-
celled the proposed policy. Had the loss happened before the Plaint-
iffs called for the policy and paid the premium, the same result would
follow, though the insurers might not choose to take advantage of a
short delay. So much for a cash transaction.
If the directors agreed to msure agamst the Plaintiffs' promissory
note at a month, like considerations would arise. Had they in such case
prepared the policy, and left it with their clerk, and the Plaintiffs had
drawn the note, and left it with their clerk, it is difficult to see why,
without more, the policy should vest m the Plaintiffs and not the note
in the company, which, without more, it clearly would not.
In the principal case the directors were content to take the broker's
credit instead of cash ; that is to say, instead of stipulating for cash
down they stipulated for the broker's allowing them to charge him in
accomit with the premium ; and this the broker, refusing to take to the
policy, refused to allow them effectually to do, and so put the directors
m the same position as if they had stipulated for cash, and cash had
not been paid.
Some confusion has arisen from an attempt to deal with this case
as if it had been that of an agent of a named principal, undoing, with-
out authority, a contract which he had completely effected m pursuance
of his authority. The case ought not to be so regarded. The broker
was an agent to procure a policy in consideration of a payment to be
made to him by his employers, with whom, directly, the Defendant
had nothing to do, he taking care that the policy was effected upon
the given terms and upon his credit, the Defendant looking to him
for payment, and havmg no claim against his employers. Inasmuch^
then, as the broker has to exercise a judgment upon the suflBciency of
the policy, it was necessarily withm the scope of his authority to reject
that prepared as not being one, or the one, ordered. When he does so
properly his employer gets the benefit; when he does so improperly his
employer has his remedy by action against the broker. But the Defend-
ant, who dealt with the broker only, and stipulated for his taking to and
being debited for such a policy, must, upon his rejecting it, and refus-
ing to be debited in account with the premium thereupon, have an
equal right to consider the negotiation at an end, and to cancel the
proposed policy, as if cash had been stipulated for and refused.
The transaction cannot properly be split up into parts. It stands
upon the same footing as if,upon one and the same occasion, the broker
had ordered the policy at the Respondent's oflQce, and whilst he waited
296 XENOS V. WICKHAM.
for it the seals had been aflaxed to a form of policy in another room,
and before he received or assented to the pohcy he had said, " Stay ;
I made a mistake. I decline to take up the policy, and you must not
charge me in accomit with the premium." Whereupon the form was
cancelled.
No subsequent protest by the principals that their agent ought to
have acted otherwise can avail them. Their payment of the premium
was not made to the msurers, but to their own ill-conducted broker,
and then- remedy must be agamst him. The Defendant has not re-
ceived, but has been refused, the premium ; and he was m no default,
because he acted upon the refusal of the broker, to whom the whole
business of effecting the policy was left.
The fallacy of the argument for the Plaintiffs consists m separating
the preparation of the pohcy from the rejection of it by the broker,
and thus splittmg up into several contracts one of which is alleged to
be authorized and the other not, what in reality, though distinct
events in point of time, constituted together but one negotiation,
which, by reason of the misconduct of the Plaintiffs' agent, was
abortive.
The question is thus answered in the negative.
July 16. The Lord Chancellor (Lord Chelmsford):
My Lords, the difference of opmion which has prevailed amongst
the learned Judges in this case must necessarily diminish the confidence
which I feel in the judgment I have formed upon it, more especially
as that judgment is not m accordance with the views of the majority
of the Judges.
The question is one more of fact than of law ; and therefore, in con-
sidering it, it will be necessary to refer to the facts contained in the
special case: — [His Lordship stated them very fully].
The usage with respect to premiums upon insurances effected by
brokers is clearly explained by Lord EUenborough in Jenkins v. Power
(«), and by Mr. Justice Bayley in Power v. Butcher (b). The latter
learned Judge says (c) : " According to the ordinary course of trade
between the assured, the broker, and the underwriter, the assured do
not, in the first instance, pay the premium to the broker, nor does th'
latter pay it to the underwriter. But, as between the assured and th{
underwriter, the premiums are considered as paid. The underwriter,
to whom in most instances the assured are unknown looks to the
broker for payment, and he to the assured. The latter pay the pre-
miums to the l)roker only, and he is a middleman between the assured
and the underwriter."
The questions which arise out of the facts of the case are : 1st.
(a) 6 M. & S. 2H2. {f>) 10 B. & C. .'329. ('•) Ibid. .']:!9.
, XENOS V. WICKHAM. 297
Whether there was a complete contract of insurance between the
parties? and 2nd. If there was a complete contract, whether it was
afterwards cancelled by the Plaintiffs' authority ?
Upon the fu-st question we have no evidence of the fact of the
execution of the policy, except that which arises upon the face of the
instrument itself, and upon the facts stated in the special case that
the policy (which must be taken to mean the executed policy) is kept
by the company until sent for by the assured or his broker. The policy
purports to be signed, sealed, and delivered by two of the directors of
the company in the presence of Reginald Scaife. resident secretary.
This statement on the face of the policy that all acts were done to
render the execution complete, which is acknowledged by the directors
who executed it, must, I thmk, be taken to be conclusive against the
company, that it was not only signed and sealed, but also delivered.
We all know the formal mode of executmg a deed by the words, " I
deliver this as my act and deed " — a form which, no doubt, or some-
thing equivalent to it, was observed upon this occasion. The policy,
most probably, was afterwards given to the secretary, to be kept till
called for. Now, although the policy was thus retained by the officers
of the company, when formal execution of it had taken place, they
held it for the Plaintiffs, whose property it became from that moment.
It is a mistake to suppose, as some of the learned Judges have done,
that the policy wanted its complete bmdmg effect till it was delivered
to and accepted by Lascaridi. The usage of insurance companies, to
keep the policy until sent for by the assured or his broker, is not for
the purpose of completing the instrument by a delivery personally to
the party or his agent, but merely as a matter of convenience. And
as to Lascaridi's acquiescence and acceptance being necessary to com-
plete the contract, I apprehend that there is no ground for such an
opinion. He was the broker and agent to the Plaintiffs, to effect an
msurance upon their vessel upon certain terms dictated by them. He
prepared the slip according to his directions. When the policy was
executed, in exact conformity to his instructions, his duty was so far
discharged ; and without the authority of the Plaintiffs he could not
refuse to accept it. They had effected, through then- agent, a complete
binding contract, which they alone could have a right to abandon.
It is hardly necessary, after the preceding observations, to say
anything upon the second question, as to the supposed cancellation of
the policy. All the Judges seem to have thought that if the contract
was bmding, Lascaridi had no authority to cancel it. The company
could not have been led from anything m the previous transaction
respecting the same vessel, to suppose that Lascaridi was authorized
to act beyond the ordinary scope of the authority of a broker. It is
one thing to cancel a slip, which is merely the mception of a contract,
298 XENOS V. WICKHAM.
and to change the terms of the proposal for an insurance ; and an en-
tirely different thing to release the underwriters from their liability
upon a policy. It is quite clear that Lascaridi had no authority from
the Plaintiffs to relinquish on their behalf the benefit of a contract to
which they were entitled, and that the company had no reason to sup-
pose that he possessed any such authority.
I think that the judgment of the Exchequer Chamber was wrong
and ought to be reversed, and that judgment shoiild be entered for
the Plaintiffs.
Lord Cranworth : —
My Lords, my noble and learned friend has gone so fully into the
facts of this case, that I shall not farther advert to them, but shall
assume that they are present to the minds of your Lordships.
There is one part of this case which seems to me to admit of no
doubt. If the policy was so executed as to have become a complete
instrument, bmding on the Respondent, and giving a good right of ac-
tion to the assured in the event of a loss, I thmk it clear that he could
not cancel it at the instance of Lascaridi. The insurers had a right
to consider him as having authority to do all which a broker can do in
discharge of his duty m effecting a policy, and they might safely settle
with him in case of a loss, if that be the ordmary mercantile usage ;
but there is no suggestion that it is part of the ordinary duty or power
of a broker to cancel agreements once validly and completely entered
into.
The only semblance of plausibility in support of such an argument
was, in this case, the fact that on a previous occasion he had an
authority expressly delegated to him by the Plamtiffs to cancel some-
thing — ^but that was an authority, not to cancel a policy, but to cancel
a slip. They had originally proposed, through Lascaridi, to effect a
policy on the Leonidas with the Kespondent, on terms materially dif-
fering from that ultimately acted on, and a slip had been signed, and
handed to the Respondent for that purpose, five days before the sign-
ing of the slip on the 30th of April ; but on that latter day, and before
anything had l)een done, Lascaridi called on the Respondent, at tlie
instance of the Appellants, expressing their desire to substitute the
terms of insurance ultimately acted on, instead of those originally
proposed. To tliis the Respondent agreed, and the slip dated the 30th
of April, 1S61, was accordingly prepared, and left with the Respondent
as the gi'oiiiidwork of the policy to be prepared by the company. It
was suggested tliat as the Appellants had thus authorized Lascaridi to
make this important change in the nature of the contract to be entered
into, the Respondent iniglit reasonably sui»pose lie had authority to
sanction the cancellation of a i>olicy already validly bhiding on the
assurers. To tliis I cannot accede — as it is admitted that Lascaridi
XENOS V. WICKHAM. 299
had not, in fact, any authority to cancel the poHcy of the 1st of May.
If it was a bmding instrument, his act cannot affect the Appellants,
unless it was done according to some ordinary course of busmess
which would warrant it. I can see nothing whatever to warrant
such an assumption. And, indeed, the point was not much insisted
on. The point really argued was, that the circumstances are not such
as to show that any absolute liability ever attached on the company.
The policy, it is said, did not become a binding contract on the
company until it had been taken from the office by the Appellants or
their broker, and been accepted by them as the terms by which they
were to be bound.
There is no direct evidence as to what actually took place when
the poUcy was, according to the practice (as stated in the language
of the special case), filled up from the sUp by the officers of the com-
pany ; but as the policy purports to have been signed, sealed, and
delivered by two directors of the company in the presence of the
registrar, in pursuance of the powers and directions contamed in the
deed of settlement of the company, the fair inference is, that this was
the course prescribed by the deed, and that that course had been duly
followed.
But, as to the effect of what was so done, the parties differ. The
Appellants contend that by thus signing, sealmg, and delivermg the
poUcy, the directors made it an instrument thenceforth binding on the
company. On the other hand, the Respondent contends, that until
the policy was taken away by the assured, or his broker, it did not
become bindmg on the company. This latter view is that which has
been taken by the great majority of the learned Judges ; and it is
therefore not without some hesitation that I have arrived at a differ-
ent conclusion, and that I concur with the opinions of the small
majority of the Judges who heard the case when it was argued at
your Lordships' bar. I am of opmion that from the moment when
the directors, acting, as I infer they did, in pursuance of the powers
and duties conferred and imposed on them by the deed of settlement,
executed the policy, it became absolutely binding on the company ;
and that it was not necessary, in order to give it binding efficacy, that
it should be taken away by the Appellant or his broker.
I come to this conclusion on the following grounds : — In the first
place, the efficacy of a deed depends on its bemg sealed and delivered
by the maker of it ; not on his ceasing to retam possession of it. This,
as a general proposition of law, cannot be controverted. It is not
affected by the circumstance that the maker may so deliver it as to
suspend or qualify its binding effect. He may declare that it shall
have no effect until a certain time has arrived, or till some condition
has been performed, but when the time has arrived, or the condition
300 XENOS V, WICKHAM.
has been performed, the dehvery becomes absohite, and the maker of
the deed is absolutely bound by it, whether he has parted with the
possession or not. Until the specified time has arrived, or the con-
dition has been performed, the instrument is not a deed. It is a
mere escrow.
If, therefore, the directors who executed this policy, delivered it
only conditionally, t.e., to take effect only when taken away by the
Appellants or their broker, then, as it was not so taken away, it never
became operative. But I can discover nothing leadmg to the mference
that there was any such condition attached to the delivery. The ex-
pression m the case that the policy is kept by the company until it is
sent for by the assured or his broker, can only mean that this is
the ordinary course of practice. But such a practice cannot, without
more, have the effect of converting that which would otherwise be an
absolute, mto a conditional delivery ; of convertmg delivery as a deed
into delivery as an escrow. The practice referred to is, at least, as con-
sistent with the hypothesis of delivery as a deed as of delivery as
an escrow. A policy of this company can only be executed (as I
presume) when certain of the directors and officers of the company
are assembled : and this explains why it is executed m the absence
of the party assured. The practice assumes the previous assent on the
part of the assured to the policy to be executed. It is not the practice
that the assured should call for or examine the policy before he takes
it away, but that he should send for it, evidently treating it as an
instrument complete before it is taken away from the oflSce. If, when
it has been sent to him, he should discover that it is not conformable
with the slip, his only remedy would be a remedy in equity to get it
corrected according to the real meaning of the parties.
I know of nothing intermediate between a deed and an escrow. If
the policy, when signed, sealed, and delivered by the directors, does
not thereby immediately become the deed of the company, I do not
see when and how it afterwards acquires that character. The prac-
tice is, that it should be kept by the company till sent for by the
assured or his broker ; not till the assured has had an opportunity of
examining it so as to ascertain that it is conformable to the slip.
It can hardly be argued that after the assured has sent for and
obtained possession of it, the company is not bound by it, even if it is
not in conformity with the slip. Suppose the liul)ility of the company,
according to the slip, was to endure for a year, but that by the policy
it is restricted to six months, the assured on receiving the i)olicy and
discovering the error might well ol)ject, and hisist on having a differ-
ent policy; l)ut yet if a loss sliould happen within the six months, it
surely cannot be doubted that the company would l^e liable on the
policy actually executed. So if a loss should occur while the policy
WELFORD V* BEAZELY;. 301
remains in the oflBce, in consequence of the assured having carelessly
forgotten to send for it. This can only be, because it had been com-
pletely executed, though never seen and approved by the assured.
And if executed, I am of opinion that it became complete when
signed, sealed, and delivered. If the usage had been that it should,
after being signed, sealed and dehvered, remain in the hands of the
secretary till the assured or his broker had done some act signifying
his approbation of it, that might have raised a question whether, until
that approbation had been expressed, it was more than an escrow. But
no such usage is stated. On the contrary, the thing sent for by the
assured or his broker is, as I have already stated, clearly looked to as
something complete before it is taken from the office, not as a docu-
ment to be made perfect afterwards by some act of the assured.
On these grounds I have come to the conclusion, after much con-
sideration, that the three learned Judges who were the majority giv-
ing their opinions to your Lordships were right ; and so, that judg-
ment ought to be for the Appellants.
Judgment reversed ; and judgment given for the Plaintiff.
Lords' Journals., 16th July, 1867.
'Section" II.' — Statute of Frauds.*
WELFORD V. BEAZELY.
In Chancery, May 23, 1747.
{Reported in 3 Atkyns, 503J
A QUESTION arose upon the statute of frauds and perjuries, whether
a person subscribing a deed as a witness only, which she knew the
contents of, could be said to have signed it within the meaning of that
statute.
LoKD Chancellob,
The meaning of the statute is to reduce contracts to a certainty, in
order to avoid perjury on the one hand, and fraud on the other, and
therefore, both in this court and the courts of common law, where an
agreement has been reduced to such a certainty, and the substance of
the statute has been complied with in the material part, the forms have
never been insisted upon.
* Ch. I, Sect. II, Finch.
302
FOWLE V. FREEMAN.
The word party in the statute is not to be construed party as to a
deed, but person in general, or else what would become of those decrees
where signing of letters, by which the party never intended to bind
himself, has been held to be a signing withm the statute.
There have been cases where a letter written to a man's own
ag-ent, and setting- forth the terms of an agreement as concluded
by him, has been deemed to be a sig-nin^ within the statute, and
ag-reeable to the provision of it.
Lord Chancellor denied the general doctrine as laid down in Proc.
in Chan. 402, Bawdes versus Amhurst {a), though true as applied to
that case by Lord Cowper, and said the difference betwixt the two
cases was, that the writing there, though all m the father's hand, was
only a sketch of an agreement not settled or confirmed by the parties ;
but here the defendant signed it as a complete agreement, and, as she
knew the contents, is to be bomid by it in the present case *.
* The defendant previous to the marriage of her daughter with Welford agreed to
give her a marriage portion of 1000/. By marriage articles (to which the defendant
was not a party), it was agreed that the lOOOi. should be vested in trustees for certain
purposes therein mentioned. The defendant was a witness to the articles. After-
wards the defendant took Welford into partnership with her, and the above lOOOZ
was agreed between Welford and herself to be a part of his share of the capital, and
she gave him credit for it. It was decreed, that the lOOOi. should be paid to the trus-
tees upon the trusts declared by the marriage articles. Reg. Lib. B. 1746 fol 355
FOWLE V. FREEMAN.
In Chancery, Ma.rch 8, 1804.
[Reported in 9 Vesey, 351.]
The defendant having advertised a freehold estate for sale, the
plaintiff wrote to him ; offermg £27,500 ; which produced a letter from
the defendant, dated the 1st of March, 1803 ; statmg, that, provided the
plaintiff would agree with the tenant as to the terms, upon which he
should quit, the defendant would accept the offer, and would close his
agreement with the plaintiff, notwithstanding any more advantageous
offer in the mterim ; and that the defendant would come upon the spot
with his attorney to draw up the agreement properly any day after
that, which the plaintiff would appoint.
The plaintiff and the tenant not coming to terms, a meeting after-
wards took place between the plaintiff and defendant, at which, after
some negotiation, the defendant wrote and signed a paper as follows :
(a) On a marriage treaty, the intended husband, and the young lady's father, went
to a counsellor soliambers toliavo, in consideration of the portion the father proposed
to give, a settlement drawn; minutes of agreement were taken down in writin'^ by
the counsel, and given by him to liis elerk, to be drawn up in form; the next'day
the father dies, and the day following the marriage was solemnized: this agreement
notwithstanding these preparations, was Iieid by Lord Cowper to be within the stat-
ute of frauds aud perjuries. Bawdes versus Amhurst, Pr. Ch. 402. 2 Ch. Rep 284
FOWLE V. FREEMAN. 303
"March 12th, 1803. I agree to sell to Mr. Fowle, my estate, tithes,
and manor at Chute Lodge, together with the woods, trees, and fixtures,
(except Cadley Cottage,) for the sum of £27,000, upon the following
conditions."
Then followed the conditions in favor of Mr, Cooke, the tenant.
This paper was not signed by the plamtiff. It was signed by the
defendant : who, in the same paper, subjoined a letter to his solicitor ;
desirmg him to prepare a proper agreement for Mr. Fowle and him to
sign, and to deliver to the bearer an abstract of his title deeds.
The defendant afterwards refusing to complete the purchase, and
countermanding his direction to the solicitor, the bill was filed ; pray-
ing a specific performance.
The defendant resisted the performance ; first, on the ground that
the memorandum and letter were signed by him, not as an agreement
for the sale, but merely as instructions for such agreement ; the plaint-
iff not having signed the memorandum, nor done any other act on his
part to bind himself. The second ground was, that the memorandum
was signed by him under the effect of the misrepresentation of the
plaintiff as to Cooke's claims.
Mr. Romilly^ for the plaintiff, contended upon the Statute of Frauds
(«), that, if the agreement was signed by the party to be bound, it would
do ; according to Coleman v. Duck (b).
Mr. Alexander and Mr. StarileyioT the defendant. — Independent of the
misrepresentation, there is no agreement in this case. Upon all the
circumstances the defendant never meant to be bound alone ; nor, till
an agreement should be signed by both parties, according to the direc-
tions at the bottom of this paper. He never meant this to be delivered
as an agreement. It is clear from the letter, he meant to have an
agreement binding on both parties, and to have the aid of his solicitor.
This is no more an agreement than the paper in Mathews v. Warner (c)
was a will. Prima facie it is not to be taken that a man means to
bind himself, leaving the other party at liberty ; and circumstances,
showing that the paper was only a plan, are strong to show he did not
mean to bind himself. He had a right to introduce many stipulations ;
but according to the plaintiff's argument he could not have added any
thing ; or made even the slightest variation. If this paper was to be a
binding agreement, why did not the plaintiff, who was present, sign
it : why did it remain as a mere paper of instructions in the defendant's
possession ?
Mr. J?omi*% in reply. — This Court will decree a specific performance,
though there is no agreement in writing ; if there is evidence in writing,
containing all the terms of the agreement : in the case even of a mere
letter to an agent, saying, he had agreed to sell the estate. If this doea
(a) Stat. 29 Ch. 2, c. 3. {h) 5 Vin. 527. (c) 4 Ves. 186.
304 rowLE y, freeman,
not bind, innumerable decisions, upon letters, by which the parties did
not mean to be bound, as agreements, must be set aside.
The Master of the Rolls.
The objections made by the defendant are, 1st, that there is no agree-
ment binding the parties : 2dly, that, supposing there is a binding agree-
ment, the defendant is not to perform it ; because a term was omitted,
which he would have inserted but for the misrepresentation of the
plaintiff. As to the fii-st objection, it is clear that early in the negotia-
tion they had agreed upon all but the terms to which the tenant was
to be entitled from the purchaser. The price was agreed upon. A
meeting took place in order to settle those terms ; the only thmg re-
maining : that is, for the purpose of settling the agreement. At that
meeting the terms are settled ; and, if there is no objection upon the
Statute of Frauds, what passed would have amomited to an agreement.
Then the terms are reduced to writing. The whole was copied out
fairly by the defendant, and he signs it. There is no doubt, it was a
complete agreement so far. The question is, whether the whole effect
of it is suspended by adding to it a letter to his attorney ; desirmg him
to prepare a more formal mstrument. It is impossible that letter could
have such an effect. If it had, though that formal agreement had been
prepared, he would not have been obliged to sign it. He might have
sold the estate the next day for a higher price. At least it amounts
to this ; that, if prepared, he should execute that more formal agree-
ment. The attorney could not introduce the least variation by his
direction. He had bound himself so far, that these should be the terms
introduced ; just like a letter, intended to be carried into execution by
a more formal agreement ; but he repents ; he is bound by his letter,
by his proposal. There have been decrees, founded merely upon letters,
proposals, never intended at the time to be a complete, final, agreement.
It might as well be contended, that, if there was a reference to deeds,
to be formally executed, there is no agreement ; but that is to be by
the deed.
Upon the other point the Master of the Rolls declared his opinion
upon the evidence, that the charge of misrepresentation was not made
out.
The cause ended in a reference to the Master, to see whether a good
title could be made.
4'j c ^"-^ ay/d.
LAYTHOARP V. BRYANT. 305
LAYTHOARP v. BRYANT.
In the Common Pleas, April 30, 1836.
[Reported in 2 Binghain, Neio Cases, 735.]
This was an action against the Defendant to recover damages fof
loss occasioned to the Plaintiff by the Defendant's refusing to pay for
certain leasehold premises he had purchased at an auction, on the 3d
of December 1833, for 441/.
The particulars and conditions of sale announced, that the lease and
goodwill of the premises, situate in Stoke Newington, in which the
coke, coal, and seed trades had been carried on, would be peremptorily
sold by auction by Mr. Thomas Ross, at the Auction Mart, on the 3d
of December, by order of Mr. W. Laythoarp, the proprietor, retiring
from the trade.
The Defendant signed a memorandum of the purchase at the back
of a paper containing the particulars and conditions of sale, but, being
known to the auctioneer, was not required to pay any deposit. On
the 12th of December the Plaintiff's solicitor sent Defendant an ab-
stract of the Plaintiff's title, and by letter called on him to proceed
with the purchase, when the Defendant, saymg he had only bid at the
Plaintiff's request, refused to complete the purchase, and returned the
abstract. An assignment of the lease, prepared by the solicitor of the
ground landlord, accompanied with a letter from the Plaintiff's solici-
tor, was then sent to the Defendant : this he also returned, still re-
fusing to complete the contract, but making no objection to the title.
The Plaintiff thereupon sold the premises again, for 194/. 5s. and brought
this action to recover the difference between that sum and 441/., the
price which the Defendant had agreed to pay.
A verdict havmg been found for the Plaintiff,
Atcherley, Serjt., pursuant to leave reserved at the trial, moved to
set aside the verdict, and enter a nonsuit instead, on the ground that
the Plaintiff's name was not m the contract, which appeared to be
made with Ross the auctioneer : that it was not binding on the Plaintiff ;
that therefore, for want of mutuality, the contract was inoperative ;
and also as not being signed pursuant to the fourth section of the
Statute of Frauds. He relied on Laiorenson v. Butler (a), where Lord
Redesdale refused to enforce a specific performance, on the ground that
without a signature to bmd the vendor there was no mutuality in the
contract ; and said, « I confess I have no conception that a Court of Equi-
ty ought to decree a specific performance in a case where nothing has
been done in pursuance of the agreement, except where both parties had
by the agreement a right to compel a specific performance according to
the advantages which it might be supposed that they were to derive
(a) 1 Sch. & Lefr. 13.
Vol. 1-20
306 LAYTHOAKP V. BRYANT.
from it ; because otherwise it would follow that the Court would decree
a specific performance where the party called upon to perform might be
in this situation, that if the agreement was disadvantageous he would
be liable to the performance, and yet, if advantageous to him, he could
not compel a performance. This is not equity as it seems to me. If,
indeed, there was a concealment, or an ignorance of the facts on the
one part, and that thereby the other party was led into a situation
from whence he could not be extricated, then he would have a right
to have the agreement executed cypres ; that is, a new agreement is
to be made between the parties."
In O'Bourke v. Perceval (a). Lord Manners approved of that decision;
and m Martin v. Mitchell (b), Sir W. Grant says, « When one party
having entered into a contract that has not been signed by the other
party afterwards repents, and refuses to proceed in it, I should have
felt great difficulty in saymg that he had not a locus penite^itiw^ and
was not at liberty to recede until the other had signed, or m some
manner made it bmding upon himself. How can the contract be com-
plete before it is mutual ; and how can it be complete as to the one
and not as to the other ? "
A rule nisi having been granted,
Botnpas, Serjt. and Steere showed cause. It sufficiently appears
from the particulars of sale, that Ross was actmg as agent to the
Plaintiff, and that the Plamtift' was a party to the contract. The
contract is complete when the auctioneer's hammer falls ; Payne v.
Cave (c). And a court of equity will enforce specific performance,
where there is an express undertaking on the part of the purchaser :
Palmer v. Scott (d). Under the fourth section of the Statute of
Frauds, all that Is requisite is, that the agreement should be in writ-
ing, and signed by the party to be charged. It is true that to con-
stitute an agreement, the consideration must ai)pear ; Wain v. Warl-
ters (c) ; but an objection on the ground of want of mutuality has
never been made before. Agreements similar to the present have
been repeatedly enforced in courts of equity, even under the 17th sec-
tion of the Statute of Frauds, which enacts that no contract for the
sale of merchandise shall be good, unless upon a part delivery, a pay-
ment of earnest, or a note in writmg of the bargain " made and signed
by the parties to be charged by such contract, or their agents : whereas
the 4th section only enacts that no action shall be brought upon any
sale of lands, unless the agreement on which such action shall be
brought, or some note thereof shall be in writing, and signed l)y the
party to l)e chiirged therewith, or some person thcu'cuiito by Idni law-
fully authorized. In Buckhouse v. Crosby (/), the Lord Chancellor
(a) 2 Ball & Beatty. 58. (h) 2 .lac. & Walk. 428. (') :? T. R. 148.
(d) 1 Ru33. & Mylue, 391. (c) 5 East, 10. (/) 2 Equ. Cas. Abr. 33.
LAYTHOAEP V. BRYANT. 307
said, " he had often known the objection taken, that a mutual con-
tract in writing ought to appear on both sides ; but that that objec-
tion had as often been overruled." In Seton v. /Slade (a), Lord Eldon
said, " This agreement is signed by the defendant only ; but that
makes him within the statute a party to be charged." In Coles v.
Trecothick (b), it is said to have been laid down by Lord Hardwicke,
" that it is not necessary the identical agreement should be signed ;
but any note or memorandum will do." Tawney v. Crowther (c), and
Hatton V. Grey (c?), establish the same principle. Lawrenson v. Butler
goes only to the point of specific performance, not to the validity of
the contract, and it is the first case m which any doubt has been
raised. But in Lord Ormond v. Anderson (e) Lord Manners says, " an
objection has been made to the execution of this agreement, on the
ground that it has not been signed by the plaintiff, and that the
defendant could not have enforced it agamst the plaintiff. I am very
well aware that a doubt has been entertained by a judge in this Court
of very high authority, whether courts of equity would specifically
execute an agreement where one party only was bound. There exists
no provision in the Statute of Frauds to prevent the execution of such
an agreement ; and Sir James Mansfield, who certainly had great ex-
perience in courts of equity, lays it down in the case of Alleri v. Ben-
nett, that a contract signed by one party would be enforced in equity
against that party, and that such was the daily practice of that
Court." And the same view was taken by Sir W. Grant, who says in
Western v. Russell, (/) " after the cases that have been determined, I
should hardly be at liberty, notwithstandmg the considerable doubt
thrown upon that point by Lord Redesdale, to refuse a specific per-
formance upon the ground that there was no agreement signed by the
party seekmg a performance." In courts of law the name of the pur-
chaser, written by the auctioneer acting as his agent, has always been
held sufficient to bind him : Mmnei'son v. JSeelis (g) : and here, the
Plaintiff's name was in the conditions of sale. In Allen v. Bennett (h)
it was held that an order for goods, written and signed by the seller
in a book of the buyers, but not naming the buyers, might be con-
nected with a letter of the seller to his agent, mentioning the name
of the buyer, and with a letter of the buyer to the seller, claiming
the performance of the order, to constitute a complete contract
within the Statute of Frauds. And Sir J. Mansfield C. J. said,
" It was then objected, that one party who has not signed, is not
bound ; but the fact was the same in the cases of Egerton v. Matthews,
and Champion v. Plummer, and the objection was never taken in
either of those cases ; but the whole of this case supposes that the
(a) 7 Ves. 275. (6) 9 Ves. 250. (c)3 Br. Ch. Cas. 161— ?.18. {d) 2 Br. Ch. Cas. 164.
(e) 2 Ball & Beatty, 370. (/) 2 Ves. ife Beanies, 192. (g) 2 Taunt. 38. (/j) 3 Taunt. 169.
308 LAYTHOARP V. BRYANT.
plaintiff had agreed. Suppose he has not contracted bj'- writing, he
has by parol, and he is bound in honor ; and it has never yet been
decided that an obligation in honor would not be a good considera-
tion. All these cases, Egerton v. Mattheios^ Saunclerson v. Jackson
and Champion v. Phimmer^ suppose a signature by the seller to be
sufficient, and every one knows it is the daily practice of the Court of
Chancery to establish contracts signed by one person only ; and yet a
court of equity can no more dispense with the Statute of Frauds than
a court of law can : there is no reason therefore to set aside the ver-
dict, and the rule must be discharged."
In the present case, the letters of the Plaintiff's attorney upon send-
ing the abstract and the assignment may, according to the foregoing
decision, be connected with the Defendant's signing the particulars of
sale, and constitute an agreement binding on the Plaintiff, even accord-
ing to the view taken by the Defendant's counsel.
Atcherley and Bushy, in support of the rule.
In order to bind a purchaser of real estate, there must, under the
4th section of the Statute of Frauds, be a mutuality in the contract,
as well as a consideration expressed in writing. Without those in-
gredients, there can be no agreement ; and though the 17th section of
the statute requires only a note of the bargain upon a sale of
chattels, the 4th section, on a sale of real property, requires
a note of the agreement. Here, upon the face of the particulars,
the property appears to be sold by Ross the auctioneer, not by
the Plauitiff, and the Plaintiff, having omitted to sign, there is
no agreement between him and the Defendant. There is nothing to
fix the Plaintiff ; nothmg on which the Defendant could have sued
him for a breach of contract. The letters of the Plamtiff's attorney
accompanying the abstract and the assignment of the lease, are mere
offers, and not an engagement to sell. The authorities relied on for
the Plaintiff are either cases in equity where the question has turned
on specific performance, or questions on the 17th section of the statute.
Now, upon a demand for specific performance, if the Plaintiff alleges
a contract in his bill, the Defendant, unless he puts himself upon the
statute in his answer, admits the existence of the contract : Roberts
on Frauds, p. 106 ; Whitchurch w.Bevis («). But even in equity it is
required that the writing the Plain tiff seeks to enforce should import
the privity and assent of both parties : (Jharhcood v. Duke of Bedford
(b). And in Championw. Plummer (c), Sir James Mansfield said, " How
can that be said to be a contract, or memorandum of a contract, which
does not state who are the contracting parties r* By this note it does
not at all appear to whom the goods were sold. It would prove a sale
to any other person as well as to the plaintiffs ; there cannot be a
(a) 2 Br. Ch. Cas. 564. (6) 1 Atk. 497. (c) 1 N. R. 254.
LAYTHOAEP V. BRYANT. 309
contract without two parties, and it is customary in the course of
business to state the name of the purchaser, as well as of the seller, in
every bill of parcels. This does not appear to me to amount to any
memorandum in writing of a bargain." Gosbell v. Archer (a) shows
that the coui-ts are not disposed to construe the statute away. Even,
independently of the statute, no agreement can be enforced without
an actionable mutuality between the parties. In Zees v. Whitcomb (b)
it was held that a written agreement " to remain with A. B. two years
for the purpose of learning a trade," was not binding for want of an
engagement in the same instrument by A. B. to teach.
TixDAL, C. J. This case comes before the Court on two objections.
First, that when the contract is inspected it does not contain the
name of one of the parties. I admit that an agreement is not perfect
unless m the body of it or by necessary mference it contain the names
of the two contracting parties, the subject-matter of the contract, the
consideration, and the promise. Looking at this contract, as it may
be collected from the particulars of sale, it appears to be an agreement
by which Ross sells property on behalf of Laythoarp. When, in the
outset, it says that the property will be sold, subject to conditions, we
are referred to the conditions in the same paper ; and there we see that
Ross is an auctioneer who sells for Laythoarp. That gets rid of the
objection therefore, that Laythoarj^'s name is not contained in the con-
tract.
The second objection is of great importance : that the contract has
not been signed by the vendor. In order to determine the validity of
the objection we must look to section 4 of the Statute of Frauds.
That section directs that " no action shall be brought, whereby to
charge any executor or administrator, upon any special promise, to
answer damages out of his own estate ; or to charge the defendant up-
on any special promise to answer for the debt, default, or miscarriage
of another person; or to charge any person upon any agreement
made upon consideration of marriage ; or upon any contract or sale of
lands, tenements, or hereditaments, or any mterest in or concernino-
them ; or upon any agreement that is not to be performed within the
space of one year from the making thereof, unless the agreeme7it upon
which such action shall be brought, or some memorandum or note
thereof shall be in writing, and signed by the party to be charged
therewith, or some other person theremito by him lawfully authorized."
And the object of the statute was, that no action should lie imless
where it could be proved at the trial that the agreetnent had been signed
by the party to be charged. First, no action agamst any executor or
administrator ; that is, where an executor is defendant ; then, " or to
charge the defendant upon any special promise, &c.,"— there, the term
(a) 4 Xev. & Man. 435. (6) 5 Bingh. .34.
810 LAYTHOARP V. BRYANT.
is, expressly, defendant, — " unless the agreement upon which such ac-
tion shall be brought, or some memorandum or note thereof, shall be in
writing, and signed by the party — " By what party ? By « the party
to be charged therewith," — the defendant in the action.
But then it is said, unless the plaintiff signs there is a want of mut-
uahty. Whose fault is that ? The defendant might have required
the vendor's signature to the contract ; but the object of the statute
was to secure the defendant's. The preamble runs, " For prevention
of many fraudulent practices, which are commonly endeavored to be
upheld by perjury and subornation of perjury." And the whole object
of the legislature is answered when we put this construction on the
statute. Here, when this party who has signed is the party to be
charged, he cannot be subject to any fraud. And there has been a
little confusion in the argument between the consideration of an agree-
ment and mutuality of claims. It is true the consideration must
appear on the face of the agreement. Wain v. Warlters was decided
on the express ground that an agreement under the fourth section
imports more than a bargam under the seventeenth. But I find no
case, nor any reason for saying that the signature of both parties is
that which makes the agreement. The agreemen t, in truth, i s^oadg
ap, M^i.4^ /v^. before _any signature.
-p. j^ ^^j. Let us apply this to several of the cases pointed out in the fourth
■^ I * section. I agree that the same prmciple must be applied to all ; but
let us see whether in any it has been dreamed of that there must be a
signature by both parties. In the first place, take the case of a letter
from an executor. Who ever heard that in order to charge him there
must also be a letter from the party addressed ? If the executor's
letter contain merely an offer, that offer indeed must be accepted be-
fore it can be binding; but if it contain a promise on adequate
consideration, no further signature is wanting to its validity. Let us
look at the next case, — an engagement to pay the debt of a third per-
son. Is it not every day's practice to put in a guaranty signed by the
surety ? but I never heard it objected that unless you show also the
signature of the other party the guaranty is void. No such objection
was made in Wain v. Warlters, although it would have afforded an
easy answer to the Plaintiff's claim.
The word agreement, therefore, is satisfied, if the writing states the
subject-matter of the contract ; the consideration ; and is signed by
the party to be charged.
Among the several authorities cited, I will only refer to two, which
seem to decide this cause. In Emnierson v. Ileelis there was a sale
by auction of some growing turnips. Upon a bidding l)y tlie defend-
ant's servant, on the j)art of the defendant, the lot was knocked down
to him ; the auctioneer wrote the defendant's name opposite the de-
LAYTHOARP V. BRYANT. 311
scription of the lot in the particulars of sale ; and the contract was
held valid notwithstanding there was no signature on the part of the
vendor. Alle^i v. Bennett was a decision on the seventeenth section,
but it was held that there was no occasion for a signature by the vendor,
although the word in that section is parties \ in section ^^ party.
Zees V. Whitcomb does not bear out the point for which it has been
cited. For, first, it turned on the want of consideration ; and, secondly,
on a variance between the record and the evidence. As to the
decisions in courts of equity, I can only say that in the greater
number of them there has not been a signature by both parties, and
notwithstanding the dicta of Lord Redesdale and Sir T. Plummer, —
no doubt great authorities, — courts of equity have continued the same
stream of decision as before.
Park, J. I put out of view the decisions in courts of equity, although
the greater proportion of them is in favor of the construction we now
adopt, and those courts have not followed the dicta of Lord Redesdale
and Sir Thomas Plummer. And the cases on the seventeenth section
of the statute might very much be put out of question, because the
language of that section is different from the language of the fourth.
But even in those cases, where the language of the section is parties^
not party ^ it was not held necessary that the contract should be signed
by both. In Saunderson v. Jackson (a) the name of the buyer was
not at first inserted in the contract ; but a letter was found referring
to it, and it was held the two papers might be connected together. And
Boioen v. Morris (b) confirms that decision. Then, with respect to the
construction of the fourth section, it is best not to make fanciful dis-
tinctions, but to look at the words of the statute : " No action shall
be brought, unless the agreement upon which such action shall be
brought, or some memorandum or note thereof, shall be m writing,
and signed by the party to be charged therewith, or some other person
thereunto by him lawfully authorized."
This is signed by the party to be charged ; the consideration is duly
stated, and the name of the auctioneer and of the vendor appears in
the conditions. In Zees v. W7iitcomb the only question was, whether
the contract was truly set out in the declaration.
Vaughan, J. All the essential requisites of sect. 4, both according
to the letter and spirit of the act, have been complied with. The argu-
ment has proceeded on a fallacy arising out of a misconception of
the case of Wain v. Wai^lters. That decision never turned on the
ground that the mutuality of a contract must appear, but only that
the note or a memorandum must show the consideration as well as the
promise, otherwise all the inconveniences would prevail which the
statute was meant to obviate.
(a) 2 B. & P. 238. (b) 2 Taunt. 374.
'V'^^^^^.^ ^-^W-v , i_ H . M . ^-r <^-v^->^< a.p' l^&:^^.
312 LAVTHOAllP V. BRYANT.
The present objection has not been taken before, and is not sanctioned
by any of the great authorities. In Seton v. Slade (a) a signature by one
party was held sufficient ; and If'owle v. Freeman {b) is a decision to
the same effect. In Bowen v. Morris (c) Sir J. Mansfield said, " In
equity, a contract signed by one party would be enforced, and it was
not clear that it was different in law."
The courts of equity, with the exception of the dicta of Lord Redes -
dale and Sir T, Plummer, present one uniform stream of authority.
There is nothing contrary at law ; and looking at the words of the
statute, they are, « No action shall be brought, unless the agreement
upon which such action shall be brought, or some memorandum or
note thereof, shall be in writing, and signed by the party to be charged
therewith, or some other person thereunto by him lawfully authorized."
Is not this an agreement which fulfils the requisites of the statute,
inasmuch as it states the consideration for the contract, and the
promise, and is signed by the party to be charged ?
BosANQUET, J. My opinion is founded on the words of the fourth
section of the statute, as well taken by themselves as contrasting them
with sect. 17. It is said there has been some difference of opinion on
the subject in coui'ts of equity ; although the preponderance of authority
is in favor of the construction we now adopt ; I find no doubt in courts
of law ; but if there be any, we must revert to the language of the
statute : " No action shall be brought, unless the agreement upon
which such action shall be brought, or some memorandum or note
thereof, shall be in writing, and signed by the party to be charged
therewith, or some other person thereunto by him lawfully authorized.''
This fourth section does not avoid contracts not signed in the manner
prescribed ; it only precludes any right of action. The seventeenth sec-
tion is stronger, and avoids contracts not made as the section prescribes :
(c7) yet even under that section it has been held sufficient if a contract
be signed by the party to be charged. In the fourth section, the language
is, expressly, the j)arty to he charged. It is said there must be an agree-
ment, and, to be binding, it must be signed. No doubt that is so ;
and the question is, is this an agreement ? It states the particulars
of the property to be sold ; it incorporates the name of the purchaser,
the seller, the property and the price ; it includes all the requisites of
an agreement, and the Defendant testifies by his signature that such
an agreement exists. The question is, can the vendor enforce it, if it
be not signed by himself ?
The statute requires that it shall be signed by the party to be
charged ; and it was not intended to impose on the vendor the bur-
den of the proof of some other paper in the hands of the opposite
(rt) 7 Ves. 275. {}>) Ves. Z'A. (c) 2 Taunt. .'?S7.
(tZ) See contra per Lord Blackburn in 'Maddinon v. Alde.r&ony 8 App. Cas. 483.
EEUSS V. PICKSLEY. 313.
party, and which the vendor may have no means of producmg ; for it
often happens that each party deUvers to the other the part signed by
himself. A common case is, where an agreement arises out of a corre-
spondence ; it often happens that a party is miable to give evidence of
his own letter ; and he is not to be defeated because he camiot produo
a formal agreement signed by both the parties to the contract.
My opinion being formed on the language of the statute, it is un-
necessary to observe on the letters written on the part of the Plaintiff?
but if there had been any doubt as to the extent of what the statute
requhes, I should have thought those letters would have supplied the
^ Hule discharged.
REUSS AND ANOTHER v. PICKSLEY AND ANOTHER.
Tjf THE Exchequer Chamber, June 19, 1866.
[Beported in Law Reports, 1 Ex., 342.1
Appeal by the defendants against a judgment of the Court of Ex-
chequer discharging a rule to enter a nonsuit or for a new trial on the
ground of misdirection and that the damages were excessive (b).
The cause was tried at the Manchester winter assizes before Pigott,
B., when the following facts were proved :— At the time of the alleged
agreement the plaintiffs carried on busmess at Manchester, and the
defendants carried on busmess as agricultural implement makers, at
Leigh near Manchester, imder the style of Picksley, Suns, and Co.
In the autumn of 1864 an mdustrial exhibition was fixed to be held
at Moscow, and the defendants were desirous of exhibiting some of
their machmes there. Accordingly they entered mto negotiations
with the plaintiffs, with the view of the plaintiffs undertakmg to look
after the goods sent by the defendants whilst at the exhibition. The
-)lamtiffs at first declmed the responsibility, but upon the defendants
proposmg to make an agency for ten years with them if they would
bear a part of the expense of the exhibition, one of the plamtiffs, Mr.
Ernst Reuss, stated that he would go to Moscow and himself superm-
tend the arrangements necessary for exliibiting the defendants' goods.
With that mtention he went to Moscow in July, 1864, and remamed
there for a month. Meantime a quantity of goods were sent by the
defendants to the plamtiffs for the purpose of being forwarded to the
exhibition. On Mr. Reuss's return he requested an mterview with
Mr Suns, one of the defendants, with reference to the Russian agency.
An mter^ew thereupon was had at which the terms of the agency
(a) See Knight v. Crockford, 1 Esp. 190. {b) The pleadings are omitted. Ed.
o-'l , T ^ t
314 REUSS V. PICKSLEY.
were discussed, and afterwards the plaintiffs wrote to the defendants
the following letter :
"Manchester, 8th September, 1864.
Messrs. Picksley, Sims, & Co., Leigh.
Referring to our conversation with Mr. Sims, respecting the ma-
chinery for the Moscow exhibition, it was arranged that we take charge
of all the machines &c., in Hull, and pay for your accoimt all freight
charges, insurances &c,, till delivered in Moscow. That we sell in
Moscow as many of the machmes as possible, and that after the close
of the exhibition the unsold remainder be at your risk and expense,
either to keep ui Moscow or return home as you think fit at your
expense. That we pay you here cash for all machines sold during
the exhibition, the price to be calculated at list price less the full
trade discount for cash, that you pay the travelling expenses there
and back of Mr. Smith, but that we pay his additional salary whilst
in Moscow of \0s. per day, and his hotel bill. That the agency for
Russia be for ten years from date on following conditions. You to
allow us full discount f oj cash on all orders received by us direct, and
that you hand over to us to be dealt with in the same way all orders
you receive from Russia (excepting those from Odessa). On all
orders executed by you from Russia, excepting Odessa, that may
come through any other agent in Great Britain, you allow us a com-
mission of 5^. per cent. That we act as and are hereby appomted
your sole agents for the kingdom of Italy on the same conditions as
for Russia. Awaiting your reply we are &c.,
Ernst Reuss & Co."
To that letter the defendants replied as follows ;
« Bedford Foundry, Leigh, Lancashire,
September 9th, 1864.
Our Mr. Sims desires me t(Facknowledge the receipt of your favor
dated the 8th inst., and to say as far as the agency for Russia goes he
considers it satisfactory, except that you must confuie yourselves to
us for every description of machinery we manufacture, and which you
sell in Russia. With respect to Italy, Mr. Sims cannot at present say
anything about it, in consequence of the change which is likely to
take place in our firm shortly. — I am, &c.
p. p. Picksley, Sims, & Co. Joseph Smith.
Messrs. Ernst Reuss & Co."
The plaintiffs sent no reply to this letter, but after the date of it
goods were sent to them by the defendants, and were forwarded by
the plaintiffs to Moscow, where they were shown at the exhibition,
which took place on the 7th September, 1864. At the close of the ex-
hibition a great proportion of the goods remained unsold, and in re-
KEUSS V. PICKSLEY. 315
spect of these, as well as in respect of those sold, the plamtiffs mcurred
considerable expenses.
On the 8th December, 1864, the defendants transferred then- busi-
ness to a Jomt Stock Company, and in the Februaiy followmg, the
plaintiffs' Moscow agent died. Shortly afterwards the plamtiffs and
defendants entered into a correspondence with a view to a settlement
of the matters connected with the Moscow exhibition, but the parties
were unable to come to any agreement. The plaintiffs thereupon
brought this action. No orders for machinery from England had been
received by either plaintiffs or defendants for Russia (except Odessa),
at the time of the alleged breach.
Upon the trial the learned judge directed the jury that the Moscow
and Russian stipulations in the letters of the 8th and 9th September
were parts of one and the same contract, and the jury found that the
plamtiffs did accept and accede to the terms of that contract. A ver-
dict was accordmgly entered mider the direction of the learned judge
for the plaintiffs, damages 850?. Leave was reserved to the defendants
to move to set aside the verdict and enter a nonsuit on the ground that
there was no sufficient memorandum in writmg of the contract under
the Statute of Frauds (29 Car. 2, c. -3), s. 4, which enacts, amongst
other thmgs, that no action shall be brought upon any agreement that
is not to be performed withm the space of one year from the making
thereof, unless the agreement upon which such action shall be brought,
or some note or memorandum thereof, shall be in wi'itmg and signed
by the party to be charged therewith, or his agent. A rule nisi was
obtained in Hilary Term last pursuant to leave reserved, and also for
a new trial, on the ground of misdirection by the judge in ruling that
the Moscow and Russian stipulations were one contract, and of the
damages being excessive. The Court (Feb. 8) discharged this rule
(the plaintiffs consentmg to reduce the damages to 650?,), holding
themselves bound by the authority of Smith v. Neale (a). Pollock, C.
B., however, stated that had the question been res Integra he should
have been disposed to come to a contrary conclusion. Against this
decision the defendants appealed, and the question for the opmion of
the Court was, whether the defendants were entitled to have the ver-
dict found for the plaintiffs set aside, and a nonsuit entered.
Brett^ Q. C. {Hayman with him), for the defendants. There is no
evidence of an assent by the plaintiffs sufficient to bind the defendants
to the terms of the contract or contracts contamed in the letters of the
8th and 9th September. In Warner v. WilUngton (b), Kindersley, V.
C, says that for " an act to constitute a sufficient acceptance of a
written proposal, it must be an unambiguous act ; and an acceptance
of a written proposal must be an unconditional acceptance." Now, the
(a) 2 C. B. (n.s.) 67; 26 L. J. (C. P.) 143. (b) 3 Drew, at p. 533.
316 REUSS V. PICKSLEY.
present case may be regarded in two ways ; either the letter of the 9th
may be regarded as an assent, with certain modifications, to the terms
contained in the letter of the 8 th, so as to constitute an entire contract,
or else the two letters may be taken to constitute a proposal to which
the plaintiffs assented by conduct without writing. As to the fijst
alternative, the letter of the 9th was not an assent but a counter- pro-
posal. The letter of the 8th in reality contamed the terms of three
separate contracts, as to the Russian agency, as to the Moscow exhibi-
tion, and as to the Italian agency. Then the reply is silent as to the
Moscow exhibition, modifies the terms suggested as to the Russian
agency, and declines the Italian agency altogether. The acceptance,
thereof, as far as this reply goes, was neither unequivocal nor uncon-
ditional. As to the second alternative, if the contracts ought to be
considered as three and not one, the plaintiff's conduct does not amount
to an assent as far as the Russian agency is concerned. But granting
that the two letters do contain a memorandum of a proposal signed by
the party sought to be charged, that cannot be accepted by parol.
Warner v. WilUngton (a), is an authority to the contrary, but with
that exception there has been no case on the subject. Kmdersley,
Y.C. (p. 532), says, " I cannot find any case in which it is determined
that parol acceptance of a written proposal is sufficient."
[Blackburn", J., referred to Colegrave v. Upcot (6), cited in Sugden,
Vendors and Purchasers, 10th ed. vol. i. p. 161, as decisive of the
point.]
The Vice-Chancellor could not have considered that case in point,
for it was cited in the argument before him. Smith v. Neale (c), on
which the Court below acted, merely follows Warner v. Willingtoyi (a) .
It is moreover not an express decision on this question though Willes,
J., expresses an opinion in conformity with that of Kindersley, V.C.
The Liver^yool Borough Bank v. Eccles (d), also followed the same
case.
[Willes, J., referred to Mozleg v. Tinkler (e), where Parke, B., in-
dicates that a proposal in writing need not be accepted by writing.]
The principle of the sufficiency of a parol acceptance ought to l)e
confined to a case where the writing assented to is in itself a memor-
andum of an agreement and not a mere offer. If it is the latter a sub-
sequent acceptance without writing cannot be enough ; it cannot turn
a proposal into an agreement or memorandum sufficient to satisfy the
Statute of P'rauds. Kindersley, V.C. in the case already referred to
recognizes l)ut does not act upon the distinction between a memoran-
dum of agreement and of offer. " The one," he says (/), "supposes
that the two parties have verbally made an actual contract with each
(a) 3 Drew. 523. {b) 5 Vin. Abr. 527. (c) 2 C. B. (n.s.) 67; 20 L. J. (C. P.) 143.
\d) 4 H. *& N. 109. (e) 1 C. M. & l\. U'J2. (/) 3 Drew, at p. 531.
KETJSS V. riCKSLEY. 317
other, and when the terms of such contract are reduced to writmg and
signed that is sufficient to bind the party signing, but if the memo-
randum is of an offer only, that assumes there has been no actual con-
tract between the parties." This distinction is also recognized in the
decisions on the Stamp Acts. A proposal accepted by parol requires
no stamp, i.e., it is not considered a memorandum of agreement.
3Ianisti/, Q. C. {Holker and Baylis with him), for the plaintiffs. That
the contract contained m the letters was one and not threefold is suffi-
ciently shown from the negotiations which preceded it. As to the letters
themselves they constitute an entire proposal, and the defendants
must be taken to have approved of and adopted the terms from which
they do not dissent. Then assuming the contract to be one, the authori-
ties and dicta, from Colegrave v. Upcot (a) downwards, are all in favor
of the proposition, that a written proposal signed by one party may
be assented to without writing by the other.
Brett, Q. C, in reply.
The judgment of the Court (Willes, Byles, Blackburn, Mellor, Shee,
and Montague Smith, JJ. ) was delivered by
WiLLEs, J., who after referring to the pleadings, proceeded as fol-
lows : — We are all of opinion that the judgment of the Court of Exche-
quer should be affirmed. It appears that the plaintiffs, through a mem-
ber of their firm, had some negotiations with the defendants, through
a member of their fu'm, with reference to so much of the contract de-
clared upon as related to the Moscow exliibition. In the course of
these negotiations, the plaintiffs refused to encounter the expenses of
this exhibition unless the defendants would undertake m some way or
other to reimburse them, and accordingly communications as to the
manner in which this object could be effected were entered into between
the parties. It was suggested by the plaintiffs that they should be
employed for a term of ten years as agents in Russia for the sale of
machinery. But when first broached, that negotiation did not come
to a head. One of the plaintiffs went abroad, and on his return sent
word that he wished to see one of the defendants, Mr. Sims, on busi-
ness, that business being with reference to the agency in Russia. An
interview was thereupon had, at which the terms of the agency were
discussed, and letters afterwards passed relating to the Moscow exhi-
bition, the agency in Russia, and an agency which the plaintiffs desired
in- Italy. On the 8th September, 1864, one letter was written by the
plaintiffs, and on the 9th an answer was sent by the defendants. The
letter of the plamtiffs was to this effect. [ The learned judge read so
much of the letter as refers to the Moscow exhibition.] Then the let-
ter proceeds to speak of the Russian agency in terms not applicable
to a distinct or separate contract. Having dealt with the matters
(a) 5 Vin. Abr. 527.
318 EEUSS V. PICKSLEY.
connected with the Moscow exhibition, which was to operate as acces-
sory to the general agency, and as an advertisement, the letter goes
on to detail the terms of the agency for Russia ; and as to this part of
the arrangement the plaintiffs do not state that they are to abstain
from taking orders from other persons. To this, and to this alone, the
defendants objected in the letter of the 9th. Then follows, in the
letter of the 8th, the paragraph respecting the Italian agency.
In answer to this letter comes the letter of the 9th September.
[The learned judge read the letter.] So far, therefore, as the Russian
agency goes, the letter of the 8th was otherwise satisfactory to the de-
fendants. Now, the letter of the 8th dealt with the Russian agency
and also with the arrangement respecting the Moscow exhibition.
There was no reference to the one as distinct from the other, and the
conclusion is, that as to the Moscow exhibition no observation was
required, and as to the Russian agency the sole objection was that the
plaintiffs, mstead of having the agency given to them without limita-
tion, were to be prevented from being agents for any one else. As to
the Italian agency, that is put out of the question. The meaning,
therefore, of the whole is this : — " True we made a certam arrangement
yesterday as to Russia, but we meant it to be with a limitation, and as
to Italy we made no arrangement at all."
Now, this was either a memorandum of agreement, or at least a pro-
posal with the terms of the letter of the 8th as a basis ; a proposal,
that is, that the plaintiffs should act as agents at Moscow, and become
agents for Russia, pledging themselves to take no other agency. There-
fore, I say these letters constitute either an agreement or at least a
proposal. Assume it in favor of the defendants to be the latter.
We must now consider what followed. The Moscow exhibition took
place, and the goods intended for exhibition were forwarded and dealt
with by the plaintiffs as they undertook to deal with them. Exj)enses
were incurred by the plaintiffs which they certainly would not have
mcurred without a promise of the Russian agency ; and these expenses
were incurred with reference to the Moscow exhibition. Was this evi-
dence of assent on the part of the plaintiffs to the terms of the letter
of the 9th September ? The defendants maintain that it was not,
and their argument depends on a dissection of the terms of the letter
of the 8th. But we see no reason for dissevering those terms. The
whole appears to have been one arrangement. Wlien taking tlie two
letters together we find the second silent as to the Moscow exhibition,
and when we find moreover that the exhibition was accessory to and
connected by way of advertisement with the rest of the Russian agency
we conclude that the whole transaction, between the parties was one and
indivisible. Therefore there Avas a performance of their part l)y the
plaintiffs, which was evidence of an assent to the terms of the letters
RETJSS V. PICKSLEY. 319
of the 8th and 9th September, or treating the letter of the 9th as a
modified proposal, there was evidence that the plaintiffs assented to it.
Now in point of law what was the effect of this assent ? Putting
for the moment the Statute of Frauds out of the question, no inquiry
would be made as to the precise time at which the different parts of
one single transaction took place. The question would be, was it or
was it not one transaction, and was an assent contamed in it ; and in
this case we are of opinion that the transaction was one, and did
contain an assent. But the Statute of Frauds introduces a new ele-
ment, because it makes it necessary by section 4 that an agreement
not to be performed by either party withm a year must be in writ-
ing, signed by the party to be charged therewith. Now all that was
signed here was not a formal agreement but a proposal on one side,
and there was an assent to that proposal on the other. All difficulty
as to the terms of the proposal is out of the case. It contained the
names of t h e parties and all the terms bv reference to the letter of
th ^ 8th Seijte mber, which must be .taken to'be r ecited in the letter of
the 9t h. The only question is, whether it is sufficleuL To i^SilLiyfy the
statute that the party charged should sign what he proposes as an
agreement, and that the other party should afterwards assent without
writing to the proposal ? As to this it is clear, both on reasoning and
authority, that the proposal so signed and assented to does become a
memorandum or note of an agreement within the 4th section of the
statute.
Many cases might be put in illustration of this proposition, but one
or two will be sufficient. Take for example a case arising under the
Joint Stock Companies Act (19 & 20 Vict. c. 47), whereby it is pro-
vided that no person shall be deemed to have accepted any share in
the company miless he testifies his acceptance by writmg under his
hand [Schedule Table B]. It was at first supposed that something
must be done by the shareholder in writing after allotment, and that
otherwise he would not be a shareholder because he proposed in writ-
ing to become one and to accept his shares upon allotment. But the
Court of Common Pleas, when the case was brought before them, said
that it was a mistake to suppose that mider these circumstances there
was no acceptance in writmg. The true mode, they say, of regarding
such a transaction was that it was from beginning to end one transac-
tion, and accordingly they held that the acceptance was complete, and
the statute satisfied by a proposal in wi'iting to accept the shares,
followed by an allotment. The Court there acted on a judgment
delivered in the Court of Queen's Bench by my Brother Blackburn to
the effect that the " acceptance " of goods to satisfy the Statute of
Frauds, s. 17, may be prior to the actual delivery of them (a). It is
indeed quite a fallacy to suppose that because certain acts happen at
(a) The cases referred to are Cusackv. Robinson, 1 B. 17. (h) 3 Drew. 523. (c) Batty, 608. (d) Law Rep. 18 Eq. 4.
{e) 5Ch. D. 648. (/) Ibid. 660.
WILLIAMS V. JORDAN.
323
There is an offer to take a lease, signed by the parties to be charged,
and an acceptance of that offer by the agent of the Plaintiff by the
description or reference of the owners. In Potter v. Duffield (a) your
Lordship observed : " The statute will be satisfied if the parties are
sufficiently described, so that their identity cannot be fairly disputed, "
which is the case here (b).
Jessel, M. R. : —
I must most reluctantly allow the objection, but I think that I am
bomid to do so. First of all, the letter contaming the offer was not
addressed to anybody. It begms " Sir," but who « Sir" was does not
appear from the letter. It is signed by the Defendants, and that is
all. There was a letter of acceptance sent to and received by the
Defendants, but that letter is not signed by the Defendants, nor is it
referred to m any subsequent letter or document bearmg theh signa-
ture. Now, as I understand the Statute of Frauds, or rather the de-
cisions on that statute, there must be a memorandum or note m writ-
ing of some agreement. But the letter of the 29th of February is not
an agreement ; it is an offer by the Defendants to somebody, I cannot
tell who. The letter of acceptance does not show who that some-
body is, for there is nothmg in it to uacorporate it with the original
offer, and no document referrmg to it of subsequent date with the
Defendants' signature. In the case of Warner v. Willington (c), just
as m this case, the lessor's name was not signed, and Vice-Chancellor
Kmdersley held that because the name of the lessor did not appear
the memorandum was not sufficient to mamtam an action or bill for
specific performance. He said : " But though this is the general rule,
there is this exception, that if it can be ascertained who is the vendor
or mtended lessor from some other document which is sufficiently
connected with the memorandum by clear reference " (of course he
(a) Law Rep. 18 Eq. 4, 7. . , . , r .u
(5) In the case of Rossiter v. Miller, 3 App. Cas. 1124, 1140, in winch one of the
questions raised was whether the expression "the proprietors' was a sufficient
description of one of the parties, Lord Cairns said, " I own I was somewhat surprised
to hear that question argued, for I am sure your Lordships have frequently seen
conditions of sale not merely by auction but by private contract, in which it is stated
that the sale is made, sometimes by the owTiers, and sometimes by the mortgagees, and
a form of contract is annexed in which an agent signs for the vendors, and no other
specification upon the vendor's part is inserted, and 1 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 certwn est
quod cerium reddi potest. If I enter into a contract on behalf of my client, on behalf
of my principal, on behalf of my friend, on behalf of those whom 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 ; and I should be
surprised if any authority could be found, and certainly none has been produced, to
say that a contract under those circumstances would not be valid." Ed.
(c) 3 Drew. 325, 530.
324 SHARDLOW V. COTTERELL.
meant some other document previously existing) " that will cure the
defect of the memorandum." There is, I have already said, no such
document. I am of opinion that I am bound by Warner v. Willing-
ton to give effect to this objection, and there must be judgment for
the Defendants, with costs.
SHARDLOW V. COTTERELL.
In the Court of Appeal, December 3, 1881.
[Reported in Law Reports, 20 Chancery Division, 90.]
This was an appeal by the Plaintiff from a decision of Mr. Justice
Kay (a).
Migby^ Q. C, and J. G. Alexander, for the Appellant : —
If in a contract there is a reference to property in such a way that
the subject-matter can be rendered certain by extrinsic evidence, that
is sufficient. The whole frame of the conditions shows that some
real estate was the subject of sale, and the question is merely of par-
cel or no parcel ; it is impossible ever to describe property in such a
way as wholly to dispense with parol evidence. In Macdonald v.
Longhottom (h) " your wool " was held a sufficient description ; in
OgilvieY. Foljamhe {c) "Mr. Ogilvie's house "and in WoodY. Scarth
(d) "the premises." There is no uncertainty, the only question is,
What property was put up for sale at a certain time ? A description
which would be sufficient in a will must be sufficient in a contract,
and a devise of " the property which I bought from Mr. Cotterell at
the Sun Inn on the 29th of March, 1880," would certainly be a good
devise.
W7ntehorne, Q. C, and Fooks, contra : —
This is a patent ambiguity, and parol evidence is not admissible to
explain it : Dart's Vendors and Purchasers (e). The word " property "
is of the vaguest description, and defines nothing. We do not dis-
pute that, as in Long v. Millar (./), parol evidence is always admissible
to show to what property a description applies, but it cannot be
called in to make a description where there is none. As regards the
case of a devise, the Courts have always shown more liberality to
wills than to contracts : Williams v. Lake (g).
[Lush, L. J., referred to Ridgwag v. WJiarton (A).]
That establishes only that, if a document is referred to, parol evi-
dence is admissible to show what document is referred to, and Cave
in) Ift Ch. D. 280. The facts are stated in the judgment of the Master of the Rolls.
(6) 1 E. & E. 977. (c) 3 Mer.53. (d) 2 K. & .J. 33. (e) 4th Ed. p. 882.
(f) 4 C. P. D. 450. (y) 2 E. & E. 349. (h) G H. L. C. 238, 257.
SHABDLOW V. COTTERELL. 325
V. Hastings (a) so explains it. To make this case come within Xongy,
Millar there is required some description in the particulars of sale.
[Jessel, M. R. : — The memorandum is not in form a complete con-
tract ; no price is named. Does not Zotig v. Millar authorize us to
join the several documents ? Suppose a memorandum m this form : " I
agree to buy for £450 the property which was put up for sale at the
Smi Inn on the 29th day of March, 1880, by Mr. Cotterell, and which
was not then sold." Would not that be enough ?]
In that case there would be a description, Blagden v. Bradhear (b)
decides the point which arises here : it was held that the receipt could
not be connected with the conditions of sale. The principles appli-
cable to the case are illustrated by Sale v. Lambert (c) ; Potter v. Duf-
fieldid) ; Rossiter v. Miller (e) ; Sugden's Vendors and Purchasers (/) .
Baggallay, L. J., referred to Bleakley v. Smith (^).]
Suppose the conditions and memorandum turned into a formal
document, we should have nothmg but " property " as a description
and how can that be held to satisfy the statute ; it is a mere reference
to a verbal agreement to sell. In Monro v. Taylor (h) it was taken
for granted that there must be some description. In Brice v. Griffith
(i) the description was " coals, etc.," which is not nearly so vague as
" property," but yet was held insufficient. In Caddick v. Skidmore (;)
a better description than we have here was held insufficient. As
regards the analogy of a devise, this is like a devise to A. B. of
" all that property which I verbally promised yesterday to leave to
him ; " and that, we submit, would not be valid.
Jessel, M. R. : —
This case has been argued at some length, but I cannot bring my
mind to doubt as to the sufficiency of the description. The case is a
short one, and a very remarkable one, as illustrating our law. The
Plaintiff bought by auction a house at the Sun Inn, Pinxton, on the
29th of March, 1880, and paid his deposit, for which the auctioneer
gave him a receipt in these terms : — " Received of Mr. A. Shardlow the
sum of £21 as deposit on property purchased at £420 at Sun Inn, Pmx-
ton, on the above date. Mr. George Cotterell, Pinxton, owner." It
has not been contested that if the receipt had said " on a house pur-
chased" there would have been a sufficient description, but it has been
argued that because the word " property " is used the description is
insufficient, and Mr. Justice Kay has so decided. There were con-
ditions of sale containing no description of the property, but headed
" Property sale at Sun Inn, Pinxton, March 29th, 1880." At the bot-
tom was the following memorandum, signed by the auctioneer : " The
(a) 7 Q. B.D, 125. (6) 12 Ves. 466. (c) Law Rep. 18 Eq. 1. (d) Law Rep, 18 En. 4.
(e) 3 App. Cas. 1124. (0 14th Ed. p. 136. (r/) 11 Sim. 150. Ih) 8 Hare, 51.
(i) 1 D. M. & G. 80. ( j) 2 De G. & J. 52.
326 SHARDLOW V. COTTERELL.
I property duly sold to Mr, Arthur Shardlow, butcher, Pinxton, and
h deposit paid at close of sale." It was held by the learned Judge in
p l;he Court below, and I think rightly held, that having regard to the
'word "purchased" in the receipt, there was suflBcient connection be-
tween the two documents to allow them to be read together as saying
what was sold, but he came to the conclusion that even taking them
together there was not a sufficient description to satisfy the require-
ments of the Statute of Frauds. Now, I am of opinion that the receipt
alone contained a sufficient description, and when we read the two
documents together, which I agree with the learned Judge in the
Court below in saying that we are at liberty to do, the case of the
purchaser is greatly strengthened.
Now, what is necessary to make a binding contract within the
Statute of Frauds ? In considering this it is well to go back to the
statute, because the decisions sometimes gradually drift away ( so to
speak ) from the Statute, and if we rely on them alone we are likely
to be misled. The Statute of Frauds, 29 Car. 2, c. 3, enacts by sect.
5 that all devises of land shall be in writing, and signed by the party
demising the same, or by some other person in his presence and by
his express directions. The -1th section provides that no action shall
be brought upon any contract or sale of lands, or any interest in or
concerning them, unless the agreement on which such action shall be
brought, or some memorandum or note thereof, shall be in writing,
and signed as therem mentioned. There appears to me to be no dis-
tmction between these two sections as to the description required,
and a decision as to what is a sufficient description in the one case
must be an authority as to what shall be a sufficient description in
the other case. What, then, is a sufficient description in writmg ? No
one can say beforehand. You cannot have a description in writing
which will shut out all controversy as to parcels, even with the help
of a map. I have known a most bitter and long-continued litigation
in a case where both sides had most beautiful maps, the contest being
between two neighboring proprietors as to the ownership of a ditch.
No description can be framed that will prevent all dispute, and the
framers of the Statute of Frauds knew very well that they could not
prevent perjury altogether, but could only go some way towards it ;
and it was considered that to require a note in writing was a useful
I check. It could be nothing more : it could not entirely prevent perjury,
/ for parties may suborn witnesses to swear to the existence, destruc-
jl tion, and contents of a memorandum which never in fact existed.
/ Looking at the statute in that light, what is a sufficient description?
I consider that any two specific terms are enough to point out suffi-
ciently what is sold. For instance, " the estate of A. B. in the county
of C," or " the estate of A. B. which he bought of C. D.," or "the
SHARDLOW V. COTTERELL. 327
estate of A. B. which was devised to him by C. D.," would be suffi-
ciently specific. If so, why should not " the property which A. B.
bought of C. D. on the 29th of March, 1880 " be sufficient ? Would
anybody doubt that in a will " the property which I bought of C. D.
on the 29th of March, 1880, " would be a sufficient description? If it
is so in a will why not in a contract ? I am at loss to understand the
reasoning on which the learned Judge in the Court below proceeded.
Let us look at the words in the present case. " Property purchased
at £420 at the Sun Inn, Pinxton, on the above date " (that is the 29th
of March, 1880), "Mr. George Cotterell, Pmxton, owner." There are
here not two, but three specific terms, that on a given day it was sold
at a given place, and that it belonged to Mr. George Cotterell. It ap-
pears to me that this is an amply sufficient description. True there
may be a dispute about what the property was, but so there always
may be. It is admitted that the word " house " would have been
sufficient, but that term would no more have excluded a dispute than
the word " property." I am of opmion, therefore, that the receipt
alone contains enough to determine what the thing sold was. When
we come to look at the conditions of sale we find a good deal more.
[His Lordship then made observations to the effect that the conditions
though not expressly showing that the subject of the sale was real
estate contained indications that it was.] Then we have at the foot
the memorandum, " The property duly sold to Mr. A. Shardlow,
butcher, and deposit paid at close of sale." It therefore appears to me
there is sufficient description of the property, and with great defer-
ence to the learned Judge in the Court below I think his reasons for
commg to the contrary conclusion not sufficient. He says that to his
mind the word " property" is quite as vague as the word " vendor."
In this I cannot agree with him. It is, he says, because of the vague-
ness of the word that he does not allow parol evidence to be intro-
duced to show what the thmgsold was. The learned Judge seems to
have forgotten that the word " property " is the word used in the statu-
tory form of conveyance by a debtor for the benefit of his creditors.
No one ever doubted that the statutory form was valid, for " property "
is sufficiently definite when you mention all the property of the man,
though parol evidence is necessary to show what it was. There is no
rule requiring an inseparable incident as part of the description ; a
separable incident is quite sufficient. Has anybody ever doubted that
" all that farm formerly in the tenancy of A., which was devised by B.
to C," is a sufficient description, even though the farm was not men-
tioned in the will, and passed as part of the residue. Then those of
us who are old enough to remember common recoveries, may remem-
ber the form in the grant to make a tenant to t\\G prcecipe, " All the
lands, tenements, hereditaments, estate whatsoever of which A. B. is
328 SHARDLOW V. COTTERELL.
tenant for life," &c. This required extrinsic evidence to show what
the properties were, but no one ever doubted that it passed all the
lands of which A. B. was tenant for life. The learned Judge says(a),
" Suppose for example the vendor were to say, ' I sold at the Sun Inn
a certam house, certain plant, certain loose materials upon the ground,
and I say what I sold were all these things,' and he gives a list. Sup-
pose the purchaser says, ' I did not buy these things, I did not buy
so many,' or ' I bought those things and something else :' is not that
the danger which the Statute of Frauds was intended to prevent ? "
Suppose these words put mto a will, " I leave all the property which
I bought of George Cotterell on the 29th of March, 1880, to John
Smith." Would the learned Judge say that John Smith would not
take the property then bought '? There may be a contest as to what
belonged to Mr. George Cotterell, and when the learned Judge goes
on to say, " You must have on the face of the contract a sufficient
definite description of the things sold to enable you to introduce
parol evidence to show what the articles were to which that des-
cription refers," I agree with him, but when he further says that
" a mere description of the thing sold as ' property ' is not to my mind
sufficiently definite to enable any such parol evidence to be ad-
duced," I think that he makes a remark not applicable to the present
case, because he takes the word " property " alone, whereas the de-
scription is in fact " property of which Mr. George Cotterell is owner,
and which was sold on March the 29th, 1880," and that to my mmd
is a sufficiently definite description. In this particular instance
there was only one property which Mr. Cotterell put up on that
day for auction, and which was the house in question, and I think
for the reasons I have given that the judgment of the Court below
must be reversed, and that this appeal must be allowed.
Baggallay, L. J.: —
I also agree in thinking that the receipt was a sufficient memoran-
dum to satisfy the requirements of the Statute of Frauds. If we look
at that document we find the name of the vendor, the name of the
purchaser, the price, and the signature of an agent who signed on be-
half of the vendor, but it is argued that it is too indefhiite as regards
the description of the property, which is merely described as " property
purchased at £420 at Sun Inn, Pinxton, on the above date." In Dart's
Vendors and Purchasers {h), it is laid down that " a general descrip-
tion of the estate is sufficient if parol evidence can be produced to
show what property was intended," and he refers to Ogilvie v. Foljamhe
(c), in which the description of » I\Ir. Ogilvie's house " was held to be
sufficient, and BleaJdey v. Smith (d), where it was held that the " prop-
la) 18 Ch. D. 293. (b) 5th Ed. p. 219. (c) 3 Mer. 53. (d) 11 Sim. 150.
SHAllDLOW V. COTTEKELL. 329
erty in Cable Street" was a sufficient description. Lord St. Leonards
(a) lays down the rule in the same way. I see no difficulty in apply-
ing that doctrine here, and in my opinion the receipt alone contains a
sufficient description. But, as has been pointed out by the Master of
the Rolls, the receipt and the conditions with the memorandum at
their foot may be read together, as the learned Judge in the Court be-
low held, and so reading them we have evidence that there was a sale
by auction under conditions of sale which mdicate that what was sold
was real property, and I think that the two documents together are
more than sufficient to furnish a description. I do not assent to the
proposition that letters only can be read together. Ltakejtthatjaijy^^
documents, whether .lj^tteiS^,or„JM:it, one of which to tlie other,
canHSe^ read "together, and the authority oi Zofigj. J^^ was
hardly required in suppqrt-of^htit proposition.
Lush, L. J. : —
I regard this case as one of considerable importance. The ques-
tion presented to us is whether the two papers taken together, the
receipt and the conditions of sale with the memorandum at the foot
of the conditions of sale, contain the essentials of a perfect contract.
Now in these two documents we have first the name of the buyer
and the name of the seller, we have the price to be paid, and the
time when the bargain is to be completed, but it is objected that
there is no sufficient description of the thing sold. The argument
is that the word " property " is a term used for all kinds of chattel
property as well as real estate, and that here we cannot tell whether
it be one or the other. But on the face of the documents it
is clear that it is property that can only pass by conveyance, be-
cause the expenses of the transfer are to be paid by the purchaser.
There is no transfer if you buy a horse or anything of that kind.
Therefore it is property which requires a conveyance. Then the
day is fixed on which possession is to be given up, and this points
not to the sale of horses or anything of that kmd, but to the sale of
real property. I therefore come to the conclusion that a reasonable
interpretation of the word " property " in these documents is " real
property." If this is so, we have the nature of the property, the name
of the seller, the name of the buyer, the price to be paid, and the time
when the purchase is to be completed, but it is urged that the property
is not described with sufficient certainty. I have been for a long time
puzzling myself to know what can be the meaning of this objection.
Suppose a horse-dealer having a great number of horses offers one
of them for sale ; the horse is trotted out and approved of, but the
parties differ about the price. Suppose the next day the seller writes
(a) Sug. V. & P. 14th Ed. p. 134. (b) 4 C. P. D. 450,
330 SHARDLOW V. COTTEHELL.
and says, » I will let you have that horse for £50," and the buyer
writes to accept the otfer, would not parol evidence be admissible
to show what horse was meant ? Or suppose a landowner were to
write to another, " I will sell you all my property in Regent Street
for £10,000," and the other writes to accept the offer, could it be
argued that this was a void contract because the number of the houses
was not specified? The ordinary form of a conveyance by the debtor
for the benefit of his creditors has been already referred to as show-
ing that a general description is suflBcient.
The learned Judge in the Court below reasons on the case of Ogilvie
V. Foljamhe (a). That was a contract by which « Mr Ogilvie's house,"
with all the fixtures, was to be bought for £14,000. The objection
was taken that there was no certain description of the property.
The Master of the Rolls said (b), " The defendant speaks of ' Mr.
Oglivie's house,' and agrees 'to give £14,000 for the premises,' and
parol evidence has always been admitted in such a case to show
to what house and to what premises the treaty related." This has
always been considered a leading authority. The learned Judge at-
tempts to distinguish that case by reference to the previous corre-
spondence which had taken place between the parties, but the Master
of the Rolls does not put his decision on that ground. In the pres-
ent case we have " property purchased at £420 at Sun Inn, Pinxton,
on the 29th of March, 1880," real property, which was knocked down
to the Plaintiff as the highest bidder for £420. Yet the learned
Judge, after stating that in Ogilme v. Foljamhe there was a descrip-
tion of specific property, goes on to say, « I have not got anything
like that here. I have no description ; I do not know on the face of
the contract, or by anything I am entitled to look at, whether it
was real or personal estate, or partly one and partly the other, and
I have nothing except the vague description ' property,' and that it
belonged to Mr. Cotterell the owner." So that the learned Judge
overlooked the conditions of sale which, to my mind, show clearly
that the property was real estate. Then in the concluding part of
the judgment he says that he is not prepared to carry the law on
this subject one hair's breadth beyond the decided cases, and that he
thinks he should be doing so if he held the description in the pres-
ent case to be sufficient. I cannot help thinking that this conclu-
sion is opposed to legal principle. The general rule is, " Id certum
est quod certum reddi potest'' and I am of opinion that this maxim
applies here. In Ogilme v. Foljamhe parol evidence was wanted
just as much as here to show what was the sul)ject-matter of the
contract, and the judgment below, if carried to its legitimate results,
would establish tliat no contract can be good within the statute un-
(a)3Meiv53. (?>) ^ Mer. 01.
BIRKMYK V. DAKNELL. 331
less it describes the property in such a way that it is wholly unneces-
sary to resort to parol evidence (a).
BIRKMYR V. DARNELL.
In the King's Bench, Michaelmas Teem, 1704.
[Reported in 1 Salkeld, 27.]
Declaration, That in consideration the plaintiff would deliver his
gelding to A. the defendant promised that A. should re-deliver him
safe ; and evidence was, that the defendant undertook that A. should
re-deliver him safe ; and this was held a collateral undertaking for
another : For where the undertaker comes in aid only to procure a
credit to the party, in that case there is a remedy against both, and
both are answerable according to their distinct engagements; but
where the whole credit is given to the undertaker, so that the other
party is but as his servant, and there is no remedy against him, this is
not a collateral undertaking ; but it is otherwise in the prmcipal case,
for the plaintiff may maintain detinue upon the bailment, against the
original hirer, as well as an assumpsit upon the promise against this
defendant. This was upon a case stated at the trial for the opinion
of the Court ; judgment was given for the defendant.
M jjer Cur, If two come to a shop, and one buys, and the
other, to gain him credit, promises the seller, if he does not pay you, I
(a) In considering cases in which the contract, or the note or memorandum of
the terms of the contract, has to be found in a series of documents, it is important to
bear in mind the considerations insisted upon by Lord Selborne in the case of
Hussey v. Home-Payne, 4 App. Cas. 311, 322. He said : — "I cannot agree with what
appeared to be suggested by part of the Appellant's argument, that, because two let-
ters were written, by which the conditions required by the Statute of Frauds would
have been satisfied, if there were nothing outside those letters to the contrary, therefore
there is here such a concluded agreement as a Court of Equity ought specifically to
perform, without regard to what preceded or what followed . The observation has
often been made, that a contract established by letters may sometimes bind parties
who, when they wrote those letters, did not imagine that they were finally settling the
terms of the agreement by which they were to be bound; and it appears to me that
no such contract ought to be held established, even by letters which would otherwise
be sufficient for the purpose, if it is clear, vipon the facts, that there were other condi-
tions of the intended contract, beyond and besides those expressed in the letters, which
were still in a state of negotiation only, and without the settlement of which the parties
had no idea of concluding any agreement. I adhere to what I said, when sitting in
the Court of Chancery, in the case of JerrAs v. Berridge {b), that the Statute of Frauls
' is a weapon of defence, not offence,' 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 ; ' and I think it especially important to keep that
principle in view when, as in the present case, it is attempted to draw a line at one
point of a negotiation, conducted partly by correspondence and partly at meetings
between the parties, without regard to the sequel of the negotiations, which to my mind
plainly shows that terms of the intended agreement, which were of great practical
importance, and were so regarded on both sides, then remained unsettled and were
still the subject of negotiation between them." Ed.
(b) L. R. S Gh. at p. 360.
332 MOUNTSTEPHEN V. LAKEMAN".
will ; this is a collateral undertaking, and void without writing, by
the Statute of Frauds : But if he says, Let him have the goods^ I will
be your paymaster, or Itoill see you paid, this is an undertaking as for
himself, and he shall be intended to be the very buyer, and the other
to act but as his servant.
MOUNTSTEPHEN v. LAKEMAN (a).
In the Exchequer Chamber, November 17, 1871.
[Reported in Law Reports, 7 (^ueeri's Bench, 196.]
Appeal by the plaintiff from the decision of the Court of Queen's
Bench, making absolute a rule to enter a nonsuit.
The following is the substance of the pleadings and case : —
First count : That defendant was chairman of the local board of
health of Brixham, and in consideration that plaintiff would do certain
work for the board at request of defendant, as and assuming to be
agent of the board, defendant promised plaintiff that he was author-
ized by the board to make such request ; that plaintiff did the work
accordingly, but defendant turned out not to be authorized, and plaint-
iff was unable to make the board pay.
Second count : Alleging defendant's promise to be that he would
procure a contract from the board, whereby they should be bound to
pay for the work.
Money comits : For work and labor, &c.
Count, added at the trial, alleging defendant's promise to be that,
in consideration that plaintiff would do the work for the board, defend-
ant promised to pay for the work, if the board should at any time
refuse to pay.
Pleas to the money counts : Never indebted, and to the other counts,
1. That defendant did not promise as alleged, 2. That plaintiff did
not do the work at defendant's request as alleged.
At the trial before Kelly, C. B., at the Devon Summer Assizes, 1870,
the following facts were proved : — The defendant was chairman of
the Brixham Local Board of Health. The plaintiff, a builder and con-
tractor, was employed, in 1866, by the board to construct certam
main sewage works in the town. On the 19th of March, 1866, notice
was given by the board under the Public Health Act, 1848 (11 & 12
Vict. c. 63), s. 69, to the owners of certain houses to connect their
house drains with the main sewer within twenty-one days. Before
the expiration of the twenty-one days, Robert Adams, the surveyor
of the board, proposed to the plaintiff that he should construct the
(a) Affirmed L. R. 7 H. L. 17, nom. Lakeman v. Mountstephen. Ed.
MOUNTSTEPHEN V. LAKEMAN. 333
connections between the house drains and the main sewer. The
plaintiff said that he was willing to do the work if the board would
see him paid. On the 5th of April, that is, before the expiration of
the twenty-one days, the construction of the connections was com-
menced by the plamtiff.
The plaintiff stated in evidence that on the day on which the con-
struction of the connections was commenced, and about an hour previ-
ous to the commencement, he was leaving Brixham with his carts and
men, after the completion of the main sewer, when Adams stopped
him, and requested him not to go away as there was more work to be
done. The plaintiff asked who was to be responsible for the payment,
and Adams said that the defendant was waitmg to see the plaintiff
about it. The plaintiff then had an interview with the defendant, at
which the following conversation took place : The defendant said,
" What objection have you to making the connections ? " Plaintiff
said, " I have none ; if you or the board will order the work or be-
come responsible for the payment." The defendant replied, " Go on,
Mountstephen, and do the work, and I will see you paid."
The plaintiff constructed and completed the connections in question
in the months of April and May, 1866, under the general superintend-
ence of the surveyor of the board ; and the plaintiff, on the 5th of
December, 1866, sent in an account to the board debiting them with
the amomit. The board disclaimed responsibility on the ground that
they had never entered into any agreement with the plaintiff, nor by
any resolution or order authorized any officer of the board to agree
with him for the performance of the work in question.
The plaintiff, for the first time, on the 20th of November, 1869,
through his solicitor, applied to the defendant for payment of the
work, and the defendant having refused to pay him, commenced this
action.
At the close of the plaintiff's case, the counsel for the defendant
claimed a nonsuit on the ground that there was no evidence of any
liability on the part of the defendant. The learned judge declined to
nonsuit, statmg his opinion there was evidence to support a count
in the form above given, and which he gave the plaintiff leave to add.
The defendant's case was then entered upon, and the defendant
denied that any conversation of the kind deposed to by the plaintiff
had ever taken place.
The Chief Baron left it to the jury to say whether the conversation
did take place ; and the jury returned a verdict for the plaintiff for
the amount claimed.
Leave was reserved to the defendant to move to enter a nonsuit, if it
should appear that there was no evidence, either upon the original
declaration or upon the declaration as amended, which ought to have
been left to the jury.
334 MOUNTSTEPHEX V. LAKEMAN.
The defendant obtained a rule accordingly, to enter a nonsuit, on
the ground that there was no e%-idence of anj- original liability on the
part of the defendant to the plamtiflf for the work to be done ; or for
a new trial, on the ground that the verdict was agamst the evidence.
The Court of Queen's Bench afterwards made the rule absolute to
enter a nonsuit, on the ground that the defendant's engagement did
not amount to an undertaking to be primarily liable for the work ; but
only to a promise, that if the plaintiff would do the work on the credit
of the board, the defendant would pay if the board did not ; and that
this was a promise to be answerable for the debt of another within
§ 4 of the Statute of Frauds, and not bemg in writing was void (a).
The question for the Court of Appeal was, whether the defendant is
entitled to have a nonsuit entered.
Xov. 28. A. Charles (Zopes, Q. C, with him), for the plamtiflf . The
decision of the Court of Queen's Bench, makmg the rule absolute to en-
ter a nonsuit, was erroneous. All that was left to the jury was, whether
the conversation spoken to by the plamtiff took place or not ; this
they found m the affirmative ; and therefore the question is, what was
the contract which this conversation evidenced, coupled ^ith the other
circumstances of the case ? There was ample e%'idence from which the
jury might have fomid either an original liability m the defendant,
in which case the plamtiff would be entitled to a verdict on the added
count, or the money counts ; or else there was evidence to sustain a
verdict on the first and second counts. But the main argument in the
court below proceeded on the question under the Statute of Frauds.
The court were wrong in holding such a promise to be within s. 4 of
the Statute of Frauds. In order to make a contract a promise to be
answerable for the debt, default, or miscarriage of another, there must
be a debt, default, or miscarriage of a thu'd person, for which
that person has already or does thereafter become liable, and
it is not sufficient, as the Coui-t of Queen's Bench held, that the
promiser and promisee both expect that by possibility a third party
will eventually become liable. [On this point he cited the following
authorities : Chitty on Contracts, 8th ed., p. 475 ; 2 Parsons on Con-
tracts, p. :^U1 ; Brown on the Statute of P^auds, ss. 11, 155, 156 ("ind
ed.) ; Birkmyr v. Darnell {b)\ Read \. Nash (c); Kirkham v. Marter
(d) ; Harris v. Hunthach (e) ; Hargreaves v. Parsons (/) ; Couturier v.
Hastie ( (/)\ Cripps y. ILirtnoll {h)\ Green y . Cressivell (i) ; 1 Williams'
Xotes to Saunders, pp. 231) — 234 ; and Goodman v. Chase (J) ; Ijut the
judgment of the Court renders it unnecessary to do more than refer to
them.] Secondly, the promise of the defendant, coupled with the sur.
(a) Law Rep. .'i Q. B. dVi. (h) 1 Sm. L. C. 274 (6th ed.). (c) 1 Wils. 30.3.
(d) 2 H. * A. «13. {») 1 Htirr. 37-3. (r) Vi M. & VV. otil, 570. (7) S Ex 40-
22 L. J. (Ex.) <»7. (/<) 4 B. & b. 414; 32 L. J. (Q. B.) 331. (t) 10 A. & E. 4.>J.
(j ) 1 B. & Aid. 297.
MOUXTSTEPHEN V. LAKEMAN". OOO
rounding circumstances, proved the first or second counts within the
prmcipleof Colhn\. Wright (a), Simons v. Patchett {b), and Cherry \.
Colonial Bank of Australasia (c).
Nov. 29. H. T. CoU, Q. 0. {Pinckir with him), for the defendant.
The contract to be deduced from the conversation, coupled with the
position of all parties at the time, is, that the o^^-ners or occupiers of
the houses were the parties to be primarily liable, and the promise of
the defendant, " I will see you paid," amounted to no more than a
guarantee: Keate v. Temple {d). Why should the defendant make
himself primarily liable ? The conversation could only import what
the judges in the coui't below said it did. [He cited notes to Birkmyr v.
Darnell {supra) ; Throop on Verbal Contracts, vol. i., cc. 7 and 8, pp.
214, 256; Beckham v. Faria (e).]
Charles, in reply. The supposed liability of the householders would
put the contract of the defendant precisely on the same footmg as the
supposed liability of the local board, which was assumed by the Court
of Queen's Bench ; and the arguments already addressed to the latter
state of facts are equally applicable if the supposed liabihty be that
of the householders ; in either case it is not within the Statute of
Frauds.
[WiLLEs, J. Suppose this to be put down in writing, but not signed
by C: " A. having ordered a house to be built by B,, B. is desirous of
having the security of some third person, and C. is willing to become
surety for A., and requests B. to go on with the house accorduigly."'
B. builds the house ; but it turns out, when the house is built, that
the order supposed by B. and C. to have been given by A. was not
by A. but by X., who had no authority from A., and, consequently,
there was no liability of A. The contract would be void, independ-
ently of the Statute of Frauds, because C. never meant to become
liable unless A. was primarily liable ; both parties being mistaken,
there is no contract at all.]
In the present case there was no such common error ; both parties
knew that neither the owners nor the local board had given any
orders at the time the conversation between the plamtiff and defend-
ant took place.
"WnxES, J. [after going minutely through the facts of the case.]
At the time the conversation took place it was known, both to the
plaintiff and the defendant, that the owners were not liable, and had
not interfered in the matter. The plaintiff did not doubt the re-
sponsibility of the board in respect of abihty to pay, and he wanted
no guarantee for this work any more than for the work which he had
already done for the board ; but lie knew he had not got the order of
(a) S E. ct B. 6-tT; 27 L. J. (Q. B.) 215. {h) 7 E. & B. SOS: 26 L. J. (Q. B.) 195.
(c) Law Rep. 3 P. C. 24. {,) 1 C. M. & R. 20. (c) Law Rep. 10 Q. B. 97. (fl) 12 C. B. SOI.
(fi) 2 C. B. a'J.5. (/) 2 M. & W. 24S. (7) Ex. 130. (/() 1 Stark. 12
(i) 10 B. & C. 664. (j ) 2 Y. & C. (Ch.) 249. (k) 3 D. M. & O. 914
(0 1 Sch. & Lef. 413. (m) 1 Swaa. 172.
BRITAIN V. EOSSITER. 351
fendant is wholly against good conscience. And now by the Judica-
ture Act, 1873 (36 & 37 Vict. c. 66), s. 25, subs. 7, the doctrme of
equity may be applied to cases decided in the Common Law Divisions.
Brett, L. J. Upon the best consideration which I can give to this
case, it seems to me that this rule should be discharged. I think that
Hawkins, J., was right, and that the Exchequer Division was also
right. It was clearly established that on Saturday, the 21st of April,
a contract of service was in express terms entered into between the
plaintiff and the defendant that the plamtiff should serve the defend-
ant for one year, the contract to commence the Monday following. It
cannot be disputed that a contract of that kind is within the 4th sec-
tion of the Statute of Frauds, that is to say, it is a promise founded
upon a sufficient consideration, but it bemg only verbal neither party
can bring an action upon it so as to charge the other. It is, however,
contended that as the plaintiff did on Monday, the 23rd of April, en-
ter into the defendant's service and continue in it for some months,
another contract to serve for a year ought to be implied, attended
with the same consequences as the original contract, but outside the
Statute of Frauds. It is alleged that this contract can be imphed, be-
cause the contract originally entered into is void. But, according to
the true construction of the statute, it is not correct to say that the
contract is void ; and, in my opinion, no distinction exists between the
4th and 17th sections of the statute: at all events, the contract is not
void under the 4th section ; the contract exists, but no one is liable
upon it. It seems to me impossible that a new contract can be im-
plied from the doing of acts which were clearly done in performance
of the first contract only, and to infer from them a fresh contract
would be to draw an inference contrary to the fact. It is a proposi-
tion which camiot be disputed that no new contract can be implied
from acts done under an express contract, which is still subsisting ;
all that can be said is that no one can be charged upon the
original contract because it is not in writing. At the bar reliance
was placed upon Carrington v. Roots (a), and Reade v. Lamh (b) ; in
the former case Parke, B., said : " I think the right interpretation of "
the 4th section of the Statute of Frauds " is this, that an agreement
which cannot be enforced on either side is as a contract void alto-
gether ; " in the latter. Pollock, C. B., said : " Carrington v. Roots (a) is
iu effect a decision that, for the purposes of the present question, there is
no distinction between the 4th and 17th sections of the Statute of
Frauds, and that not only no action can be brought upon an agree-
ment within the 4th section of that statute if it be not reduced mto
writing, but that the contract is also void." With regard to these
dicta it is enough to say that the doctrine thereby laid down was un-
(o) 2 M. & W. 248. (6) 6 Ex. 130.
352 BRITAIN V. ROSSITER.
necessary for the decisions in those cases : for it being clear that no
action can be brought on the verbal contract itself, it is also clear
that neither party can be held liable upon it indirectly in any action,
which necessitates the admission of the existence of the contract. The
two cases which I have mentioned were considered in Leroux v. Brown
(a), and Jervis, C. J., undoubtedly took the same view of them as I do
and gave the interpretation necessary for that case, namely, that the
contract is not void, but only incapable of being enforced, and that
any claim which depends upon the contract as such cannot be main-
tained. If the contrary view had prevailed, it would have been de-
cided in that case that the Statute of Frauds, s. 4, had a territorial
operation ; whereas if it applies merely to the enforcement of the con-
tract, then it is a statute with respect to the procedure of the Eng-
lish Courts, and it is applicable to contracts made abroad as well as
in England. Moreover, the case of Smiling v. Lord Huntingfield (b)
has not been overruled by subsequent cases, but the doctrine there
laid down has been strongly supported by subsequent cases, and in
my opinion it certainly ought not to be overruled now. In my view
the contract entered into on the 21st of April was not void but ex-
isting, and from a part performance of it a fresh contract ought not
to be implied. The plaintiff, therefore, is driven to rely upon the
original contract, but he cannot mamtain an action upon that, inas-
much as it is not in wiiting.
It has been further contended that as the contract of the 21st of April
has been partly performed, it may be enforced, notwithstandmg the
Statute of F'rauds, and that the equitable doctrme as to part perfor-
mance may be applied to it. It is well known that where a contract
for the sale of land had been partly performed. Courts of Equity did
in certain cases recognize and enforce it ; but this doctrine was exer-
cised only as to cases concerning land, and was never extended to con-
tracts like that before us, because they could not be brought within
the jurisdiction of Courts of Equity. Those Courts could not entertain
suits for specific performance of contracts of service, and therefore a
case like the present could not come before them. As to the applica-
tion of the doctrine of part performance to suits concerning land, I
will merely say that the cases in the Court of Chancery were bold
decisions on the Avords of the statute. The doctrine was not extended
to any other kind of contract before the Judicature Acts : can we so
extend it now? I think that the true construction of the Judicature
Acts is that they confer no new rights; they only confirm the riglits
which previously were to be found existing in the Courts either of
Law or of Equity ; if they did more, they would alter the rights of
parties, whereas in truth tliey only change the procedure. Before
{(t) 12 C. B. SOL a) ] C. M. A- K. 20.
BRITAIN V. EOSSITER. 353
the passing of the Judicature Acts no one could be charged on this
contract either at law or in equity ; and if the plamtiff could now
enforce this contract, it would be an alteration of the law. I am of
opinion that the law remains as it was, and that the plamtiff cannot
maintain this action for breach of contract.
CoTTOx, L.J. We refused to grant a rule on the ground that the
contract entered mto on Saturday, the 21st of April, was to be per-
formed withm a year, and therefore not within the operation of the
4th section of the Statute of Frauds : the contract clearly was within
that enactment : on the other points we granted a rule, but after
having heard the arguments on behalf of the plamtiff, I thmk that
the rule for a new trial must be discharged. It has been contended
that although the ^express contract cannot be enforced, nevertheless a
contract which can be enforced may be unplied from conduct of the
parties, and it has been argued that the rule does not apply which
forbids a contract to be implied where an express contract has been
concluded, because the contract was void under the provisions of the
Statute of Frauds, s. 4 : but m my opmion that is not the true con-
struction of the enactment, which provided that no action shall be
broLighc to charge any person upon the verbal contract.
In the first place, I may observe that to hold that this enactment
makes void verbal contracts falling withm its provisions, would be
inconsistent with the doctrine of the Courts of Equity with regard to
part performance in suits concerning land. If such contracts had
been rendered void by the legislature. Courts of Equity would not
have enforced them ; but their doctrme was that the statute did not
render the contracts void, but required written evidence to be given
of them : and Courts of Equity were accustomed to dispense with that
evidence in certain instances. During the argimient some decisions
were relied upon as showing that the contract m the present case was
void. In Carringtoii v. Boots (a), certain expressions were used by
the judges which indicated that in their opinion a verbal contract
falling within s. 4 was void ; but I think that their language when
carefully analyzed merely means that the contract was not enforceable
either directly or indirectly by action at law. I think it unnecessary
to go into the case of Beade v. Lamb (b) : it was a case decided upon
special demurrer, and the question to which the attention of the judges
was directed, was whether the pleadings were correct in point of form.
It has been further argued that the contract may be enforced, be-
cause it has been in part performed. Let me consider what is the
nature of the doctrine as to part performance. It has been said
that the principle of that doctrine is that the Court will not allow
(o) 2 M. & W. 248. (6) 6 Ex. 130.
Vol. 1-23
854 BRITAIN V. ROSSITER.
one party to a contract to take advantage of part performance of the
contract, and to permit the other party to change his position or incur
expense or risk under the contract, and then to allege that the con-
tract does not exist ; for this would be contrary to conscience. It is
true that some dicta of judges may be found to support this view,
but it is not the real explanation of the doctrme, for if it were, part-
payment of the purchase-money would defeat the operation of the
statute. But it is well established and cannot be denied that the re-
ceipt of any sum, however large, by one party under the contract,
will not entitle the other to enforce a contract which comes within
the 4th sect. What can be more contrary to conscience than that
after a man has received a large sum of money in pursuance of a
contract, he should allege that it was never entered into? The true
ground of the doctrine in equity is that if the Court found a man in
occupation of land, or doing such acts with regard to it as would,
prima facie, make him liable at law to an action of trespass, the Court
would hold that there was strong evidence from the nature of the
user of the land that a contract existed, and would therefore allow
verbal evidence to be given to show the real circumstances under
which possession was taken. Does this doctrine, when so explained,
apply to the present case? I will first mention the provisions of the
Judicature Act, 1873, s. 24, subs. 4, 7. These provisions enable the
Courts of Common Law to deal with equitable rights and to give
relief upon equitable grounds : but they do not confer new rights : the
ditterent divisions of the High Court may dispose of matters
within the jurisdiction of the Chancery and the Common Law Courts ;
but they cannot proceed upon novel principles. Could the present
plaintiff have obtained any relief m equity before the passing of
the Judicature Acts ? I think that he could not. The doctrine as to
part performance has always been confined to questions relating to
land ; it has never been applied to contracts of service, and it ought
not now to be extended to cases in which the Court of Chancery
never interfered.
Thesiger, L. J. Two questions must be considered in this case
—first, whether the plamtilf could maintain an action at law : secondly,
whether, if he could not mamtain an action at law, he could maintain
a suit in equity. I am compelled to subscribe to the opinion that the
plaintiff had no remedy either at law or in equity. I have been un-
willing to come to this conclusion, because it is manifestly unjust that
where a contract of hiring has been acted on for a certain time, one
party who has had the advantage of it should be al)le to put an end to
it ; and I should have been glad to decide that the plaintiff was entitled
to a reasonable notice of dismissal.
First, has the plaintitt" a riglit of action at law? It is clear that a
contract was made on Saturday, the 21st of April, and it cannot be
BRITAIN V. ROSSITER. 355
contended that a contract made at that date to commence from the
23rd of April is not within the 4th section of the Statute of Frauds. It
is necessary to consider what is the effect of the statute upon such a
contract; is it that the contract is wholly null so that it does not
prevent the proof of any other contract, or is it that the contract exists
but cannot be enforced ? Certain dicta are to be found in the books
from which it might appear that some of the judges have considered
the verbal contract as absolutely void. But if those dicta are carefully
examined, it will be found that they are not necessary for the decision
of the cases in which they appear, and upon referring to subsequent
cases it will be found that it has been decided in clear terms that the
verbal contract is not actually void. It is impossible to say that the
words of the statute make the verbal contract void. That a verbal
contract is not void, is proved by the circumstance that where one
party has signed the contract and the other has not, the party who
has signed may be charged upon it, but that the party who has not signed
cannot be charged. It may also be urged with some show of reason
that though there is a difference in language between the 4th and 17th
sections of the Statute of Frauds, they are substantially identical in
construction, and Garnngton v. Roots (a) and Beade v. Zamb (b) may
perhaps be cited in support of that argument. And it is plain that
verbal contracts under the 17th section are not absolutely void for all
purposes, for the section provides that part performance by payment or
acceptance and receipt of goods shall authorize the court to look at the
terms of the contract, although it is not in writing. But I need not
discuss this question further, for in Snelling v. Lo7'd Himting field, (c)
which has never been overruled^ but on the contrary has been often
followed, it was held that a contract not enforceable by reason of the
Statute of Frauds, sect. 4, nevertheless existed, and no contract can be
implied where an express contract exists. I thmk that we are bound
by the authority of that case. There was, therefore, in existence a
contract made m express terms on Saturday, the 21st of April, and the
plaintiff cannot sue upon it, as it is not in writing. It appears to
have been held that, though there may be no right to recover on an
executory contract, nevertheless, if it has been executed to the extent of
the contractee entering upon the service, that is enough to entitle him
to be paid for his services, and if we were not bound by authority it
would be diflBcult to understand why if the plaintiff can sue for
services rendered, he should not equally be entitled to allege that he
shall not be dismissed without notice or without such notice as was
stipulated for in the contract. But in Snelling v. Huntingfield (c) the
Court of Exchequer appears to have thought that the contractee can
recover for services rendered but not for dismissal without notice. This
seems to have been the construction at Common Law.
(a) 2 M. & W. 248. (6) 6 Ex. 130. (c) 1 C. M. & R. 20.
356 BAILEY V. SWEETING.
If we turn to Equity, we find that it has been held as regards a sale
of land, that when there has been an entry by one party to the contract,
that is an overt act apparently done under a contract which entitles the
Coui't to look at the contract to see to what contract the overt act
is really referable. I confess that on prmciple I do not see why a similar
doctrine should not be applied to the case of a contract of service, and
as the doctrine of Equity is based upon the theory that the Court
will not allow a fraud on the part of one party to a contract on the faith
of which the other party has altered his position, I do not see why a
similar doctrine should not comprehend a contract of service. At the
same time I feel that doctrines of this nature are not to be miwarrant-
ably extended, and that we ought not to go further than the decisions
of Courts of Equity as to the prmciples of relief, and as to the instances
to which the doctrine of part performance is to be applied. Therefore,
as we cannot clearly see that the equitable doctrine of part perform,
ance ought to be extended to contracts of service, I thmk that we
ought to keep within the limits observed by the Court of Chancery
before the passing of the Judicature Acts, 1873, 1875 *.
Mule discharged.
* See Maddison v. Alderson, 8 App. Cas. 467. Ed.
BAILED AND ANOTHER v. SWEETING.
In the Common Pleas, January 17, 1861.
[Reported in 9 Common Bench, JVeio Series, 843.]
This was an action brought to recover a sum of 761. 14s. Sd. for
goods bargamed and sold. The defendant paid 38Z. 3s. dd. into court,
and as to the rest of the claim pleaded never indebted.
At the trial before Erie, C. J., at the sittings in London after last
Easter Term, the following facts appeared in evidence :— The defend-
ant was a furniture-dealer at Cheltenham : the plaintiffs were manu-
facturing upholsterers and cabinet-makers in London. In July, 1859,
the defendant called at the plaintiffs' place of business in London, and
then purchased five chimney-glasses (a " job lot," as it was called),
ichich were to be paid for by check on delivery. lie at the same time
purchased other goods on credit to the amount of 39/. lOs. 9f?., some of
which had to be made for him. The chimney-glasses were packed
and sent by carrier, addressed to the defendant at Cheltenham. They
were, however, found to be so damaged when they reached their des-
tination that tlie defendant refused to receive them, and at once com-
municated such refusal to the i)laiutitls.
BAILEY V. SWEETING. 357
The other goods were subsequently forwarded at three different
times, with separate invoices, and were duly received by the defend-
ant. The value of these parcels was covered by the payment into
court : and the question was, whether the defendant was liable in
respect of the chimney-glasses, the value of which with the cases was
38/. 10s. 6d.
On the part of the plaintiffs it was insisted that the whole of the
goods were sold under one contract, and that the case was taken out
of the Statute of Frauds (29 Car. 2, c. 3, s. 17) by the acceptance of
part. They also relied upon the following letter addressed to them
by the defendant, as being a sufficient memorandum to satisfy the
requirements of that statute ;
"Cheltenham, December 3rd, 1859.
Gentlemen, — In reply to your letter of the 1st instant, I beg to say
that the only parcel of goods selected for ready money was, the chim-
ney-glasses, amounting to 38/. 10s. 6d., which goods I have never re-
ceived, and have long since declined to have, for reasons made known
to you at the time. With regard to the other items, viz. 11/. 4s. 9c?.,
14/. 135. andl3/. 13s., for goods had subsequently (less cases returned),
those goods are I believe subject to the usual discount of 5/, per cent. :
and I am quite ready to remit you cash for these parcels at once, and,
on receipt of your reply to this letter, will instruct a friend to call on
you and settle accordingly."
For the defendant it was insisted that the contract for the chimney-
glasses was a separate and distinct contract, and void for want of a
suflBcient memorandum.
His lordship (at counsel's request) left it to the jury to say whethei
the bargain for the chimney-glasses was a separate and distinct bar-
gain from that for the rest of the goods, tellmg them, that, if they
were of that opinion, they must find for the defendant.
The jury found that the two were separate and distinct transac-
tions, and accordingly returned a verdict for the defendant.
Haickins, Q.C., in Trinity Term last, pursuant to leave reserved to
him at the trial, obtained a rule nisi to enter a verdict for the plaint-
iffs for 38/. 10s. 6(7., on the ground that the defendant's letter of the
3rd of December, 1859, was a sufficient memorandum or note in writ-
ing to satisfy the statute, or for a new trial on the gromid that the
verdict was against evidence.
H. James and Tompsoti Chitty showed cause. The whole was not
necessarily one contract because all the goods were purchased at one
and the same visit to the warehouse. In truth, the contract for the
chimney-glasses for ready money was totally distinct from that for
the other goods, which were bought on credit. It was clearly a ques-
tion for the jury. The more important question, however, is, whether
358
BAILEY V. SWEETING.
the defendant's letter of the 3rd of December, 1859, was a sufficient
note or memorandum of the bargain to satisfy the statute. The sub-
ject is adverted to in Mr. Justice Blackburn's treatise on the Con-
tract of Sale, p. 66, where the learned author says : " It sometimes
happens, that, after a dispute has arisen, a party in a letter signed by
him recapitulates the whole terms of the bargain, for the purpose of
saying that the bargain is at an end for some reason which is evi-
dently^insufficient in law. It has never been decided whether such an
admission of the terms of the bargain, signed for the express purpose
of repudiation, can be considered a memorandum to make the contract
good ; but it seems difficult on principle to see how it can be so con-
sidered. The parties may either of them put an end to the contract
at any time whilst it is not good, with cause or without cause ; and a
memorandum of the terms comes too late to make a contract good
which is already put an end to. There is evidently a great difference
between a writing which after the dispute has arisen mentions the
terms of the contract for the purpose of showing that the bargain is
at an end, and one which recognizes them as still subsisting. I know
only of three cases in which this point could have been decided ; and,
though in each of them the memorandum was held insufficient, they
seem to have been decided on special grounds.
Hawkins, Q. C. , and Kemplay, in support of the rule (a).
Erle, C. J. This was an action for goods sold and delivered. There
was an oral contract for the sale and delivery of the goods in question:
but the defendant relies upon the Statute of Frauds, and contends
that there was no note or memorandum of the bargain in writing to
satisfy that statute. After the making of the oral contract, however,
there was a letter written by the vendee to the vendors, which con-
tains this statement, — " The goods selected for ready money was the
chimney-glasses, amounting to 38^. 10s. 6f?." (the goods in dispute),
which goods I have never received, and have long since declined to
have, for reasons made known to you at the time, " — the reason being,
that, in consequence of the negligence of the carrier through whom
they were sent, the goods were damaged. Now, the first part of that
letter is unquestionably a note or memorandum of the bargain : it con-
tains a description of the articles sold, the price for which they were
sold, and all the sul)stantial parts of the contract. If it had stopped
there, there could be no dispute as to its being a sufficient note or mem-
orandum to satisfy the statute. It is clear that the note or memo-
randum may be made after the time at which the oral contract takes
place ; and, to my mind, that which passed orally between the parties
on the subject of the bargain in July, was in the nature of an inchoate
(a) Tho arguments are omitted. Ed.
BAILEY V. SWEETING. 359
contract, and the subsequent letter had a retroactive effect, making
the contract good and binding. The latter part of the defendant's
letter in effect says, " I decline to take the goods because the carrier
damaged them in theii' transit : " and it is contended, on his part that
the acknowledgment at the beginning of the letter does not constitute
a sufficient memorandum within the statute, because the latter part
contams a repudiation of his liability, — relying much on the passage
cited from my Brother Blackburn's book on the Contract of Sale, where
it is suggested that a subsequent acknowledgment in writing has not
the effect of makmg the contract good, if it is accompanied by a repudi-
ation of the defendant's liability under it. A case is referred to of
Itondeau v. Wyatt, 2 H. Bl. 63, where an answer to a bill of discovery,
in which the defendant admitted the agreement, was held not to pre-
clude him from takmg the objection that there was no note or memo-
randum to satisfy the Statute of Frauds. "VVe have adverted to the au-
thorities cited in Mr. Justice Blackburn's book, and to the case of
Rondeau v. Wyatt ; but we find no decided authority upon the point
in judgment. In that state of the authorities, we are remitted to the
Statute of Frauds itself : and, upon reference to its language, we think
the defendant's letter does amount to a sufficient memorandum in
writing, and makes the contract good. The purpose of the statute was,
to prevent fraud and perjury. Now, the danger of perjury in this
case is effectually prevented by the letter of the defendant ; for, he
distinctly admits that he made the contract, and at the price alleged.
I do not consider that the defendant intended to deny his liability by
reason of the absence or insufficiency of the contract : but that the only
question which he intended to raise, was whether he or the plaintiffs
should settle with the carriers for the damage done to the goods. I
think that constitutes a material distmction between the present case
and those cited, in which the defendant, admitting the contract, has
rested his defence on the non-compliance with the statute. But, if
there be no such distinction, and we are called upon to consider
whether the doctrine suggested in my Brother Blackburn's book cor-
rectly represents the law upon this subject, with the highest respect
for that clear-headed and highly eminent judge, I must say that I am
unable to give my assent to his proposition (a). I think the purpose
of the Statute of Frauds is answered by the defendant's letter, and
that the plaintiffs are entitled to recover.
(rt) In the case of Buxton v. Rust, L. R. 7 Ex., at p. 282, Mr. Justice Blackburn re-
marked with regard to the passage here commented upon: " I may add with refer-
ence to the statement read from" Blackburn on tlie Contract of Sale, p. 66, to the
effect that ' it seems difficult on principle to see how an admission of the terms of a
bargain signed for the express pui-pose of repudiation can be considered a memo-
randum to make the contract good,' that the point has been clearly settled since the
publication of that book bv the decisions of the Court of Common Pleas, which
have been referred to, and from which I do not see any reason to dissent; the rule
they establish is as logical and more convenient than that suggested by myself." Ed.
360 BAILEY V. SWEETING.
Williams, J. I am entirely of the same opinion. It cannot for a
moment be controverted here, that m point of fact tliere was a good
and lawful contract between the plaintitf s and the defendant for the
sale of the goods m question. But it is equally clear, that, as the
price of the goods bargained for exceeded the value of 10^., the con-
tract was not an actionable one unless the requisites of the 17th sec-
tion of the Statute of Frauds were complied with ; that section enact-
ing, "that no contract for the sale of any goods, wares, and merchan-
dizes for the price of 10^. sterling or upwards, shall be allowed to be
good, except (1) the buyer shall accept part of the goods so sold and
actually receive the same, or (2) give something in earnest to bind the
bargain or in part of payment, or (3) that some note or memorandum
in writing of the said bargain be made and signed by the parties to be
charged by such contract, or their agents thereunto lawfully author-
ized. "
The effect of that enactment is, that, although there is a contract
which is a good and valid contract, no action can be maintained upon
it, if made by word of mouth only, unless somethmg else has happened,
ex. gr. , unless there be a note or memorandum in writing of the bar-
gain signed by the party to be charged. As soon as such a memo-
randum comes mto existence, the contract becomes an actionable con-
tract. The question, therefore, in the present case, is, whether such a
memorandum has come into existence. It is plain to my mind that
the terms of the defendant's letter of the 3rd of December do consti-
tute such a memorandum as the statute contemplated. It completely
recites all the essential terms of the bargain : and the only question
is whether it is the less a note or memorandum of the bargain, because
it is accompanied by a statement that the defendant does not consider
himself liable in law for the performance of it. There is nothing in
the statute to warrant that. I tlunk the statute is satisfied, and that
the contract is an actionable contract. It is said that there may be a
difficulty in maintammg this doctrme, m consequence of the incon-
venience which may arise from the property not passing by the con-
tract until it has become capable of being enforced by action. That
may be true : Ijut the same may l)e said as to part acceptance or the
payment of earnest, and yet nobody ever suggested a doubt that an
action might l>e brought upon a verbal contract Avliere either of these
things has taken place. I entirely agree with my Lord in his appre-
ciation of my IJrotlier IJlackburn's l)0()k : but, after fully considering
the proposition which has Ijeen cited from it, and the reasoning upon
which that proposition is based, I feel bound to say that I do not con-
sider it satisfactory. The right of the defendant to put an end to the
contract, if any su(;li li^lit existed, ouglit not to atfect the question
whether there was a \ alid contract or not. There was a valid con-
BAILEY V. SWEETING. 361
tract, and the meraoranduin was a sufficient memorandum. The in-
tention of the defendant to repudiate or abandon the contract cannot
affect the question as to the sufficiency or hisufficiency of it.
WiLLEs, J. I am of the same opmion. Xo doubt there was a con-
tract between the plamtiffs and the defendant for the purchase of the
goods in question by the latter, and, assuming it to be a good contract,
the defendant would be bound to pay the price. At common law, it is
clear that the plaintiffs would have a good cause of action : but it is
msisted that no action can be maintamed,by reason of the 17th section
of the Statute of Frauds. I found my opmion in favor of the plaint-
iffs entirely upon the construction of that section ; for there is no
authority on either side, except the passage quoted from my Brother
Blackburn's book. It is impossible that anybody can attribute more
weight than I do to any thmg that falls from that learned judge : but,
whatever distrust I may under the circumstances be disposed to enter-
tam, I must still act upon my owti opuiion. Look at the words of the
statute. They are, " no contract for the sale of any goods, &c., shall be
allowed to be good except,— that some note or memorandum in writmg
of the saidbargam be made and signed by the parties to be charged by
such contract, or their agents thereunto la^vfuUy authorized." It fol-
lows from these words, that, if there be any note or memorandum m
writmg of the bargain signed by the party to be charged, the contract
is allowed to be good as at common law. Unquestionably there is m
the present case a note or memorandum in writmg ; and upon the
true construction of the statute, I thmk, a sufficient note. The defend-
ant in the letter says,—" I selected the goods for ready money ; and
the price agreed on was 38^. 10s. 6f?." That clearly is a memorandum
containing the terms of the bargam. It is urged that this letter was not
a sufficient note or memorandum to satisfy the statute, because it is
accompanied by a statement showing that the defendant did not wish
to be bomid by the contract. It seems to me that to hold that that
circumstance is to operate to prevent the letter bemg such a memo-
randum as the statute contemplated, would be depri\ing the word
» some," or the correlative word « any " of its natural meaning and
effect. The requisites of the statute have been complied with : and
there is nothing m the statute to say that the note or memorandum is
to be defeated by any collateral circumstances. Upon that sunple
groimd, it seems to me that this contract stands good, and that the
plaintiffs are entitled to recover.
Keating, J. I am of the same opinion. No doubt the contract in
this case was good if evidenced by wi'itmg. The object of the Statute
of Frauds was, to provide the certamty of written evidence for the un-
certamty of oral evidence of contracts. The defendant's letter of the
3rd of December does contam all the terms of the bargam between
362 BAILEY V. SWEETING.
these parties. It is said that that letter ceases to he a note or mem-
orandum of the contract, because the defendant has thought fit to add
to it an intimation that he does not wish or intend to be bound by it. It
seems to me, however, that that statement cannot be allowed to vary
the operation of the previous words of the letter, which amount to a
clear acknowledgment of the terms of the bargain. I should not have
entertained the slightest doubt upon the subject, but for the passage
quoted from Mr. Justice Blackburn's book. But the learned author
merely throws it out as an intimation of opinion, which he admits to
have no authority or even dictum in its favor. For these reasons I
concur with the rest of the court in thinking that the rule to enter a
verdict for the plaintiffs for BSl. 10s. 6(1 should be made absolute.
Jiule absolute accordingly.
CHAPTER V.
CONSIDERATION.
Section I, — Description of Consideration".*
ELEANOR THOMAS v. BENJAMIN THOMAS.
In the Queen's Bench, February 5, 1842.
[Reported in 2 Queen's Bench Reports, 851.]
Assumpsit. The declaration stated an agreement between plaint-
iff and defendant that the defendant should, when thereto required by
the plamtiff, by all necessary deeds, conveyances, assignments, or other
assurances, grants, &c., or otherwise, assure a certam dwelling-house
and premises, in the county of Glamorgan, unto plaintiff for her life,
or so long as she should continue a widow and unmarried ; and that
plaintiff should at all times during which she should have possession of
the said dwelling-house and premises, pay to defendant and one Samuel
Thomas (since deceased), their executors, administrators, or assigns,
the sum of 11. yearly towards the ground-rent payable in respect to the
said dwelling-house and other premises thereto adjoinmg, and keep
the said dwelling-house and premises in good and tenantable repair.
That the said agreement being made, in consideration thereof and of
plamtiff's promise to perform the agreement, Samuel Thomas and
the defendant promised to perform the same ; and that although
plaintiff afterwards and before the commencement of the suit, to wit,
&c., required of defendant to grant, &c., by a necessary and suflBcient
deed, &c., the said dwelling-house, &c., to plaintiff for her life, or
while she continued a widow ; and though she had then continued,
&c., and stiU was, a widow and unmarried, and although she did, to
wit, on, &c., tender to the defendant for his execution a certain necessary
and sufficient deed, &c., proper and sufficient for the conveyance, &c.,
and although, &c., (general readiness of plaintiff to perform), yet de-
fendant did not nor would then or at any other time convey, &c.
Pleas : 1. Non assumpsit. 2. That there was not the considera-
tion alleged in the declaration for the defendant's promise. 3. Fraud
and covin. Issues thereon.
At the trial before Coltman, J., at the Glamorganshire Lent assizes,
* Ch. Ill, Sect. II, Finch. (363)
3/ n/u>^,^v<;^.
364
THOMAS V, THOMAS.
1841, it appeared that John Thomas, the deceased husband of the
plamtiff, at the time of his death, in 1S37, ^yas possessed of a row of
seven dwelling-houses in Merthyr Tydvil, in one of which, being the
dwelling-house in question, he was himself residing ; and that by his
will he appomted his brother Samuel Thomas (since deceased) and the
defendant executors thereof, to take possession of all his houses, *fec.,
subject to certain payments in the will mentioned, among which were
certain charges in money for the benefit of the plaintiff. In the even-
ing before the day of his death he expressed orally a wish to make
some further provision for his wife : and on the following morning he
declared orally, in the presence of two witnesses, that it was his will
that his wife should have either the house in which he lived and all
that it contained, or an additional sum of lOOZ. instead thereof.
This declaration being shortly afterwards brought to the knowledge
of Samuel Thomas and the defendant, the executors and residuary
legatees, they consented to carry the intentions of the testator so ex-
pressed into effect ; and after the lapse of a few days they and the
plaintiff executed the agreement declared upon, which, after statmg the
parties and briefly recitmg the will, proceeded as follows : —
« And whereas the said testator, shortly before his death declared,
- in the presence of several witnesses, that he was desirous his said wife
"Hv co^'i'-**^ should have and enjoy during her life, or so long as she should con-
* -^^..Jjui UU ^^^ -ti^u6 his widow, all and singular the dwelling-house," &c., or 100^. out
t A I o^ ^^s personal estate," in addition to the respective legacies and be-
TXv/^ t^-M>p*^^ ' quests given her in and by his said will ; » but such declaration and
.^,^^^^^^^.(1^ desire was not reduced to writing m the lifetime of the said John
ULi v^^^ *i^/^tention should be carried into full effect : Now these presents witness,
/xwJ7/« V- 4 ^^^ ^^ ^* hereby agreed and declared by and between the parties, that in
7 consideration of such desire and of the premises," the executors would
convey the dwelling-house, &c., to the plaintiff and her assigns during
her life, or for so long a time as she should continue a widow and un-
married : '< provided nevertheless, and it is hereby further agreed and
declared, that the said Eleanor Thomas or her assigns shall and will,
at^all times during which she shall have possession of thg ^ald j lwelf:
ing-houser&c., pay to the saicf Sa^huelTlioniasahd Eeiijiunin Thomas,
tlR'ir executors, tfec, the sum of 1/. yearly towards the ground-rent
})ayal)le in respect of the said dwelling-house and other ]iremises there-
to adjoining, and shall and will keep the said dwelling-house and
premises in good and ten antal)le repair;" with other provisions not
affecting tlu; questions in this case.
The plaintiff was left in possession of the dwelling-house and uremises /,
[. ..A. <.i /^.:.. ^..^.^.. hir^ yLcl> %^ • ^. 4^'i
I
THOMAS V. THOMAS. 365
for some time ; but the defendant, after the death of his co-executor,
refused to execute a conveyance tendered to him for execution pursu-
ant to the agi-eement, and shortly before the trial brought an ejectment,
under which he turned the plaintiff out of possession. It was objected
for the defendant that, a part of the consideration proved bemg omitted
m the declaration, there was a fatal variance. The learned judge over-
ruled the objection, reserving leave to move to enter a nonsuit. Ulti-
mately a verdict was found for the plaintiff on all the issues ; and m
Easter term last a rule nisi was obtained pursuant to the leave re-
served.
Chilton and W. M. James now showed cause. It is sufficient if there be
any legal consideration for this agreement. [E. V. Wilhams conceded
that, in a court of law, he could not go mto the adequacy of the con-
sideration, and that, if the consideration was in part a legal and in
part only a moral one, the latter part need not be stated m the decla-
ration (a).] The objection taken at the trial was, that the considera-
tion for the agreement, instead of being that which is alleged m the
declaration, was, as stated in the agreement itself, a respect for the
testator's intentions, in which case this would be a mere voluntary
agreement : the defendant now appears to contend that respect for the
testator's intentions is a part of the legal consideration, and ought to
have been set out. But it could not be so characterized. All that a
plaintiff is required to do is to set out the legal effect of the contract
and to show performance on the plamtiff's part : here she was in pos-
session for three or four years paying rent, under an undertaking to
pay rent and keep the premises in repair : that is a good consideration ;
and if so, it cannot be necessary m pleading it to allege additional
motives, which in the eye of the law do not enter into the considera-
tion. Thus, in debt for rent on a demise of a messuage with the furni-
ture, though in fact the furniture forms an important item m estimat-
ing the rent, yet as in point of law the rent issues out of the real proj)-
erty, and not out of the furniture, it is sufficient to allege a demise of
the real property. Fareicellw. Dickiiison (b). Parties are often mflu-
enced by motives which form no part of the legal consideration, such
as the character of a tenant, or the merits or distresses of the party
intended to be benefited ; and the circumstance that such motives hap-
pen to be stated in the agreement camiot affect the legal rights of the
parties, nor make it necessary to state those motives in the declara-
tion.
M V. Williams, contra. The consideration alleged in the declara-
tion is solely the promise to pay rent and repair : therefore it lay on
the plaintiff to prove that to have been the true and sole consideration.
Beech v. White (c). But the evidence shows that the testator's decla-
(a) On this point Chilton cited Bui. N. P. 147, and 1 Chitt. Plead. 295, 300, 6th ed.
(6) 6 B. & C. 251. (c) 12 A. & E. 668.
366
THOMAS V. THOMAS.
ration, as brought before and recognized by the executors, was part, if
not the whole, of the consideration. It is conceded that where there is
a good legal consideration conjoined with a moral one, it is not neces-
sary to state both ; but here regard for the testator's intentions was
not, under the circumstances, a mere moral consideration ; for the
declaration had been made and reduced to writmg so formally that it
might well be thought valid m law, and so the agreement be made by
the executors and residuary legatees to buy peace (a). If the testa-
tor's expressed wish was part or the whole of the consideration, the
declaration should have so alleged it, and a nonsuit ought to be entered.
But in fact, if it be not the consideration, there is no legal considera-
tion at all : this is a mere gift ciwi onere ; and had it been stated truly,
the declaration would have been bad on general demurrer. [Patte-
soN, J. The rent, if issuing out of the house, might follow the gift ;
but the obhgation to repair does not. ] The expressions in the agree-
ment with reference to the ground- rent, and the evidence of one of
the witnesses, show that the property was held under a superior land-
lord : the assignee's obligation to pay rent and repair would therefore
be implied from the very nature and state of thmgs which existed be-
tween the parties. Bayley, J., in Burnett v. Lynch (b). [Lord Den-
man, C, J. There is nothing to show who was liable to pay the ground-
rent. Coleridge, J. The 11. is reserved payable to the executors : it
is quite different from an assignee's Hability.] Still the annexing of
such a payment cannot be regarded as the consideration. What is
meant by the consideration for a promise, but the cause or inducement
for making it ? Plowden (c), commenting on Sharrington v. Strotton
says, " Note : That by the civil law nudum pactum is defined thus :
Nudum pactum est ubi nulla subest causa prseter conventionem ; sed
ubi subest causa, fit obligatio, et parit actionem." In Chitty on Con-
tracts (d) the following passage is cited from the Code Civil : " L'obli-
gation sans cause, ou sur une fausse cause, ou surune cause illicite,ne
pent avoir aucun eftet." The rent and repairs cannot be said to have
been the cause or motive which induced the executors to make this
agreement : it must have been such a belief as is recited in the agree-
ment itself, which, though a good moral consideration, and perhaps
sufficient to raise a use, is not sufficient to support a promise. The
proviso merely causes the donee to take the gift charged with the bur-
then of paying the rent and keeping the premises in repair; and she
cannot turn these conditions mto a consideration. It is clear that if
the proviso had not existed, the executors might have retracted at
any moment ; their right to do so cannot be qualified by the circum-
(a) See Haigh v. Brooks, 10 A. & E. 309, and Brooks v. Eaigh,10 A. &E. 323.
(6) 5 B. «fc C. 589, 605. See also the judgments of Holroyd, J., and Littledale, .1.
in the same case. (r) N"ote to Sharrington v. Strotton, Plowd. 309
{(l) P. 28, 3d ed. 18U. Code Civil, liv. 3, tit. 3,ch. 2, §§ 4 and 1131.
THOMAS V. THOMAS. 367
stance that the gift was cum onere; otherwise, when carried out to
conveyance, it would be a conveyance on good, as distinguished from
valuable, consideration. Suppose a subsequent sale ; a purchaser for
value would have been entitled, though he had purchased with notice
of the gift. A consideration, to be sufficient against such a purchaser
within the saving clause of the 27 Eliz. c. 4, s. 4 (a), must be such a
consideration as would support an assumpsit. Were it otherwise,
donees by voluntary gift would confkm their estates by covenanting
to repair a monument, mamtain a plantation, or the like. Here the
donors in effect say, that the donee is to pay no purchase-money, but
is to do what a purchaser for full consideration would have to do — pay
the rent and maintain in repair. And it is to be observed that, in that
part of the agreement where the purchase- money is usually mentioned,
instead of any valuable consideration there is a mere reference to the
testator's wishes ; which is followed in a different part of the deed by
a simple provision for the burthens commonly belongmg to and incident
to the subject-matter. The defendant is therefore entitled to a ver-
dict on the first issue.
Lord Denman, C. J. There is nothing in this case but a great deal
of ingenuity, and a little wilful blindness to the actual terms of the
instrument itself. There is nothmg whatever to show that the ground-
rent was payable to a superior landlord ; and the stipulation for the
payment of it is not a mere proviso, but an express agreement. (His
Lordship here read the proviso). This is in terms an express agree-
ment, and shows a sufficient legal consideration quite mdependent of
the moral feeling which disposed the executors to enter into such a
contract. Mr. Williams's definition of consideration is too large ; the
word causa m the passage referred to means one which confers what
the law considers a benefit on the party. Then the obligation to re- i
pair is one which might impose charges heavier than the value of the \
life estate.
Patteson, J. It would be giving to causa too large a construction
if we were to adopt the view urged for the defendant : it would be
confounding consideration with motive. Motive is not the same thing ^ a
with consideration. Consideration means something which is of some y l^, , 'Ciivw
value in the eye of the law, movmg from the plaintiff : it may be some L '
detriment to the plaintiff, or some benefit to the defendant ; but at all ^
events it must be moving from the plaintiff (6). Now that which is
suggested as the consideration here, a pious respect for the wishes of
(a) See Newland on Contracts, c. 24, p. 392, et seq. , . .
(b) In the case of Currie v. 3fisa, L. R. 10 Ex. at p. 162, the followinscdeseription i ,
of consideration is given by the Exchequer Chamber: " A HiiilBMg consideration, in ^^
the sense of the law, may consist either in some right, interest, profit, or benefit | ^
accruing to one party, or some forbearance, detriment, loss, or responsibility, given,
suffered, or undertaken by the other." Ed.
U^
A-^-i
^■*>
■dU
368
THOMAS V. THOMAS.
the testator, does not in any way move from the plamtiff : it moves
from the testator ; therefore, legally speaking, it forms no part of the
consideration. Then it is said that, if that be so, there is no consid-
eration at all, it is a mere volmitary gift : but when we look at the
agreement we find that this is not a mere proviso that the donee shall
take the gift with the burthens ; but it is an express agreement to pay
what seems to be a fresh apportionment of a gromid-rent, and which
is made payable not to a superior landlord but to the executors. So
that this rent is clearly not somethmg incident to the assignment of
the house ; for m that case, instead of bemg payable to the executors,
it would have been payable to the landlord. Then as to the repairs :
these houses may very possibly be held under a lease contaming cov-
enants to repair ; but we know nothmg about it : for any thing that
appears, the hability to repair is first created by this mstrument. The
proviso certamly struck me at first as Mr. Williams put it, that the
rent and repairs were merely attached to the gift by the donors ; and
had the instrument been executed by the donors only, there might
have been some ground for that construction ; but the fact is not so.
Then it is suggested that this would be held to be a mere voluntary
conveyance as agamst a subsequent purchaser for value : possibly that
might be so : but suppose it would : the plaintiff contracts to take it,
and does take it, whatever it is, for better for worse : perhaps a bond
fide purchase for a valuable consideration might override it ; but that
cannot be helped.
Coleridge, J. The concessions made in the course of the argument
have in fact disposed of the case. It is conceded that mere motive
need not be stated ; and we are not obliged to look for the legal con-
sideration in any particular part of the instrument, merely because the
consideration is usually stated in some particular part : ut res magis
vcdeat, we may look to any part. In this instrument, in the part
where it is usual to state the consideration, nothing certamly is ex-
pressed but a wish to fulfill the intentions of the testator ; but in
another part we find an express agreement to pay an annual sum
for a particular purpose, and also a distinct agreement to repair. If
these had occurred in the first part of the instrument, it could hardly
have been argued that the declaration was not well drawn and sup-
ported by the evidence. As to the suggestion of this being a volun-
tary conveyance, my impression is that this payment of IZ. annually is
more than a good consideration : it is a valuable consideration : it is
clearly a thing newly created, and not part of the old ground-rent.
Hide discharged {<().
(a) In a commentary on tlie Code Civil, in Codes Frangais Expliques, &c., by J. A.
Rogron, Paris, 18"50, the words of tlie Code, *' L' obligation sans cause, ou surune
faiisse cause, on siir une cause illicite, ne pout avoir aucun effct" {(tnte, p. 3G0), are
discussed; aud the note upon " sans cause " is as follows :
P1LLA^'S y. VAN iUEEOP. 369'
Sectox II.— Necessity of Coxsideration/
PILLANS AND ROSE v. VAN MIEROP AND HOPKINS.
Ix THE Kixg's Bench, April 30, 1765.
[Reported in 3 Burrow, 1663.] •
Ox Friday 25th of January last, Mr. Attorney-General Norton, on
behalf of the plaintiffs, moved for a new trial. He moved it as upon
a verdict against evidence : the substance of which evidence was as
follows :
One White, a merchant in Ireland, desired to draw upon the plaint-
iffs, who were merchants at Rotterdam m Holland, for 800^. payable
to one Clifford ; and proposed to give them credit upon a good house
in London, for their reimbursement ; or any other method of reimburse-
ment.
The plaintiffs, in answer, desired a confirmed credit upon a house of
rank in London ; as the condition of their acceptmg the bill. White
names the house of the defendants, as this house of rank ; and offers
credit upon them. Whereupon the plaintiffs honored the draught,
and paid the money ; and then wi"ote to the defendants Van Mierop
and Hopkms, merchants m London, (to whom White also wrote, about
the same time,) desirmg to know whether they would accept such billa
as they, the plamtiffs, should in about a month's time draw upon tht;
said Van Mierop's and Hopkms's house here in London, for 800^. upon
the credit of White : and they, having received their assent, accordingly
drew ufton the defendants. In the mterim White failed before their
draught came to hand, or was even drawn ; and the defendants gave
notice of it to the plaintiffs, and forbid their drawing upon them>
" La cause est ce qui determine 1' engagement que prend ime partie dans un con-
trat; il ne faut pas la confondre avec la cause implicite du contrat, autrement le
motif qui porte a contracter. La cause de 1' engagement d'une partie est le fait
ou la promesse de I'autre partie ; elle peut aussi consister dans une pure liberalite-
de la part de I'une des parties: ainsi, lorsque je m' oblige a payer mille francs a Paul,
pour tels services que son pere m'arendus, la cause d6terminante du contrat, ce sont
les services qui m'ont ete rendus; le motif qui m'a porte a contracter, c'est le desir
de m'acquitter envers lui des ser\ices de son pere; si celui-ci ne m'a jamais rendu
les services dont il a ete parle dans I'acte, le contrat est sans cause. Je m'oblige
a donner mille francs a Paul pour qu'il suive une affaire pendante devant le tri-
bunal de la Seine: la cause determinante est la promesse de Paul qu'il suivra mon
affaire; si elle est jug^e irrevocablement au moment ou nous avons stipule, le
contrat est sans cause. Autre exemple: je vous vends ma maison; la cause de la
vente est, d'un c6t6, la maison elle-meme, de I'autre, le prix. Enfin je donne, dans la
forme de dispositions entre vifs, ma maison a Paul, qui I'accepte: ma liberalite est
ici la seule cause du contrat." P. 209."
Vol. 1—24 * Ch. Ill, Sect. II, Finch. /j
370 PILLANS V. VAN MIEROP.
"WTiich they, nevertheless, did : and therefore the defendants refused
to pay their bills.
On the trial, a verdict was found for the defendants.
Upon showing cause, on Monday 11th February last, it turned upon
the several letters that had respectively passed between the plaintiffs,
and defendants, and White. The letters were read : 1st, those (a)
from White and Co. in Ireland, to the plaintiffs in Holland ; (by which
it appeared that Pillans and Rose had then accepted the bills drawn
upon them by White, payable to Clifford ;) then those of the plaintiffs
to the defendants ; and also White's to the defendants ; then those of
the defendants to the plamtiffs (b) agreeing to honor their bill drawn
on account of White ; the letter from the defendants to the plaintiffs,
informing them that White had stopped payment, and desiring them
not to draw, as they could not accept their draught ; and lastly that
which the plamtiffs wrote to the defendants, that they should draw
on them, holding them not to be at liberty to withdraw from their
engagement.
The counsel for the defendants were Mr. Serjeant Davy and Mr.
Wallace. They observed that the plaintiffs had given credit to White
above a month before the defendants had agreed to accept their draught.
For it appears by White's letter of 16th February, 1762, that Pillans
and Rose had then actually accepted Clifford's bills : but Van Mierop
and Hopkins did not agree to honor their draughts till 19th of March,
1762. Therefore the consideration was past and done, before their
promise was made. And they argued, and principally insisted, that
for one man to undertake to pay another man's debt, was a void under-
taking unless there was some consideration for such undertaking :
and that a mere general promise, without benefit to the promiser, or
loss to the promisee, was a nudum pactum. And they cited 1 Bulstr.
120, Thorner v. I^iekl Dyer, 272, pi. 31, Jlunt v. Bate. 2 Vern. 224,
225. Cecil et al. v. Earl of /Salisbury. 1 Ro. Abr. 11, pi. 1, Letter Q.
"Consideration executed." Yelv. 40, 41, and 2 Strange, 933. Hayes
V. Warren ; where a past consideration was holden insuflacient to raise
an assumpsit (c).
The counsel for the plaintiffs were Mr. Attorney- General, Mr. Wal-
Tcer and Mr. Dunnmg. They denied this to be a past consideration ;
and insisted that the liberty given to the plaintiffs, to draw upon a
confirmed house in London, (which was prior to the undertaking by
the defendants,) was the consideration of the credit given by the plain-
tiffs to White's draughts : and that this was a good and sufficient con-
sideration for the undertaking made by the defendants. It relates
back to the original transaction. If any one promises to pay for goods
delivered to a third person ; such promise, being in writing, is a good
{a) Dated 16th Feb. 1762. (6) Dated 19th March, 1762. (c) See likewise Hardres,
72, 73, 74.
m^ /7
PILLANS V. VAN MIEROP. 371
one. And here White had had 800^. from the plaintiffs, upon this as-
surance : and the defendants undertake in writing, in pursuance and
completion of this origmal assurance, to be answerable for White's
reimbursing the plaintiffs. And a promise in writing is out of the
statute.
This case does not fall within those that have been cited : for Van
Mierop and Hopkms have made themselves originally liabit;. An ex
post facto event camiot alter the nature of an origuial promise. Their
original promise made them liable, and bound them. And they are
obliged, both by law, and in honor and honesty, to perform it. It is
a mercantile transaction ; and it must be considered, upon the whole of
it, as an admittance that the defendants either had or soon would have
effects of White's in their hands.
Lord Mansfield. The objection is, that the letter whereby Van
Mierop and Hopkins undertake to honor the plaintiff's bills, is
nudum pactum. The other side deny it. This is the only question,
here.
But this is quite different from what passed at the trial ; the nudum
pactum was not mentioned at that time. The grounds it was argued
upon there, were : 1st, that this imported to be a credit given to Pillans
and Rose, m prospect of a futui-e credit to be given by them to White ;
and that this credit might well be countermanded before the advance-
ment of any money ; and this is so. 2dly, that there was a fraud : for 'l
that Van Mierop and Hopkms had reason to think that White had j
sent goods to Pillans and Rose ; whereas, this was a mere lendmg of
credit. 3dly,that if Pillans and Rose had received goods from White,
and retained them till he failed, the defendant's undertakmg was
revocable.
I was then of opinion that Van Mierop and Hopkins were bound by
their letter unless there was some fraud upon them : for that they
had engaged imder their hands, in a mercantile transaction, to give
credit for Pillans and Rose's reimbursement. And I did not see it to
be future, as had been objected ; nor did I see any fraud. And nothing
was then urged about its being nudum pactum. I have no idea that
promises for the debt of another are applicable to the present case.
This is, as Mr. Walker said, a mercantile transaction ; and it depends
upon these letters from merchant to merchant about honoring bills,
to such an amount : and this credit is given upon a supposition that
the person who is to draw upon the midertakers within a certain time
has goods in his hands, or will have them. Here, Pillans and Rose
trusted to this undertakmg : and there is no fraud. Therefore it is
quite upon another fomidation than that of a naked promise from one,
to pay the debt of another.
Mr. Justice Wilmot. I own, the want of consideration, at first.
«a-«^c rt'i f- ' >.
372 PILLANS V. VAN MIEROP.
occurred to me. But I now am satisfied, that this case has nothing to
do with the cases of undertakings "by one to pay the debt of another.
In those cases it is settled, that where the consideration is past, the
action will not lie : and yet this seems a hard case. The mere promise
to pay the debt of another without any consideration at all, is nudum
pactum : but the least spark of a consideration will be sufficient. It
seems almost implied, that there must be some consideration ; but if there
be none at all it is nudum pactum. The statute must mean such a'
special promise as would have supported an action. But all this is
out of the present case. So also, I think, is all the precedent corre-
spondence. It lies in a narrow compass. White, Pillans and Rose,
and Van Mierop and Hopkins had all a correspondence together : they
have intercourse together, mutually in mercantile transactions. Pillans
and Rose write to Van Mierop and Hopkins, to know whether they
will honor their draughts for 800?. hi about a month's time. They say,
they will. Now it strikes me, as Mr. Walker said, that it admits that
they either have assets or effects of White's in their hands, or that
they have credit upon him. Now by this undertaking of a good house
in London, and relymg upon it, they are deluded and diverted from
using any legal diligence to pursue White, or even not to part with
any effects of his which they might have in their hands. Therefore
this seems to be an irrevocable undertaking by Van Mierop and
Hopkins: and they ought to be bound by it. Consequently, there
ought to be a new trial.
Lord Mansfield. A letter of credit may be given as well for money
already advanced, as for money to be advanced in future. Let it be
argued again the next term : and you shall have the opinion of the
whole court.
Vlterius Conciliwni.
Yesterday, this matter accordingly came on again ; and was argued
by Mr. Wallace, for the defendants ; and by the same counsel as aj-gued
last term for the plaintiffs.
The latter repeated and enforced their arguments. They said the
consideration moved from White to the defendants ; not from the plain-
tiffs Pillans and Rose, to the defendants : and as the defendants have
undertaken for White, they can't revoke or retract their engagement.
This case is not like the cases cited : some of which are strange cases
and not founded on solid or sufficient reasons ; and in others of them
there was no meritorious consideration at all. And Mr. Walker cited
Hardres, 71, Reynolds v. Frosser; where the consideration was ad-
judged sufficient, notwithstanding all the reasoning of Sir Thomas
Hardres, and all the cases cited by him. That was an assumpsit by
a stranger, in consideration that the plaintiff would forbear to prose-
cute Lord Abergavenny upon a judgment, in the name of the original
PILLANS V. VAN MIEllOP. 373.
plaintiff, by virtue of a letter of attorney to receive it to his own use.
Serjeant Davy was heard, this morning, on behalf of the defendants ;
and urged that the plamtiffs gave credit to White, upon his promis-
ing to reimburse them : and he said, there was a fraudulent conceal-
ment of facts. White's first letter could have no influence on the
plaintiffs. For they afterwards desired a confirmed credit upon a
house of rank in London : so that they did not rely on White's first
letter which offered credit on the defendants, or any other method of
reimbursement. And nothing had then passed between White and
the defendants. For the first letter between them was on the 16th of
February (a fortnight after) : and then the defendants were deceived
mto a false opinion that it was for a future credit, and not to secure
a past acceptance of White's bills by the plamtiffs. And this con-
cealment of circumstances is sufiBcient to vitiate the contract. The
plaintiffs had accepted a bill of 800^. of White's, a fortnight before the
defendant's letter of 16th February : which bill the plaintiffs had ac-
cepted upon assurance of credit on a house in London, to reimburse
them. And this transaction was fraudulently concealed, both by
White and the plaintiffs, from the defendants. If this had been dis-
closed, the defendants would have plamly seen that the plaintiffs
doubted of White's sufficiency ; by their requiring further security for
his alrea;dy contracted debt. All letters of credit relate to future
credit ; not to debts before incurred : nor can the advancer of money
thereupon include an old debt before mcurred. A bill cannot be
accepted before it is drawn. This is only a promise to accept ; for it
is only a promise to honor the bill ; not a promise to pay it. A prom-
ise to pay a past debt of another person is void at common law, for
want of consideration ; unless there be at least an implied promise
from the debtee to forbear suing the original debtor. But here was a
debt clearly contracted by White with the plaintiffs on the credit of
White : and there is no promise from the plamtiffs to forbear suing
"VVliite, A naked promise is a void promise : the consideration must be
executory, not passed or executed.
Lord Mansfield asked, if any case could be found, where the under-
taking holden to be a nudwn pactum was m writing.
Serjeant Davy, It was anciently doubted whether a written ac-
ceptance of a bill of exchange was binding, for want of a considera-
tion. It is so said, somewhere m Lutwyche.
Lord Maxsfield. This is a matter of great consequence to trade
and commerce, in every light. If there was any kind of fraud in this
transaction, the collusion and mala fides would have vacated the con-
tract. But from these letters, it seems to me clear, that there was
none. The first proposal from White, was to reimburse the plaintiffs
by a remittance, or by credit on the house of Van Mierop : this was
374 PILLANS V. VAN MIEROP.
the alternative he proposed. The plaintiffs chose the latter. Both
the plaintiffs and White wrote to Van Mierop and company. They
answered that they would honor the plaintiffs' draughts. So thatthe_,^_
defendants assent to the proposal made by W]iite,aiitl-xatify It.^^Sid
it does not s'eem at ull, that tlic plaintiffs then doubted of White's
sufficiency, or meant to conceal anythmg from the defendants. If
there be no fraud, it is a mere question of law. The law of mer-
chants, and the law of the land, is the same : A witness cannot be ad-
mitted, to prove the law of merchants. We must consider it as a
point of law. A nudum pactum does not exist, in the usage and law
of merchants. " ' "^
I take it, that the ancient notion about the want of consideration
was for the sake of evidence only : for when it is reduced into writ-
ing, as in covenants, specialties, bonds, «fec. («), there was no objec-
tion to the want of consideration. And the statute of frauds proceeded
upon the same principle. In comme rcial cases amongst merchant s,
the want of consideration is not an objection.
This is just the same thmg as if White had drawn on Van Mierop
and Hopkms, payable to the plamtiffs : it had been nothing to the
plaintiffs, whether Van Mierop and Co. had effects of White's in their
hands, or not ; if they had accepted his bill. And this amounts to
the same thing :— I will give the bill due honor, is, in effect, accept-
ing it. If a man agrees that he will do the formal part, the law looks
upon it (in the case of an acceptance of a bill) as if actually done.
This is an engagement to accept the bill, if there was a necessity to
accept it ; and to pay it, when due : and they could not afterwards re-
tract. It would be very destructive to trade, and to trust in commer-
cial dealing, if they could. There was nothing of nudum pactum
mentioned to the jury ; nor was it, I dare say, at all in their idea or
contemplation. I think the point of law is with the plaintiffs.
Mr. Justice Wilmot. The question is, whether this action can be
supported, upon the breach of this agreement. I can find none of
those cases that go upon its being nudum pactum^ that are in writing :
they are all upon parol. I have traced this matter of the nudum pac-
tum : and it is very curious.
He then explained the prmciple of an agreement bemg looked upon
as a malum pactum ; and how the notion of a nudum j)actum first came
into our law. He said, it was echoed from the civil law : Ex nudo
pacto non oritur actio. Vinnius gives the reason, in lib. 3, tit. Be
Ohligationihus, 4to edition, 596. K by stipulation, (and ct fortiori, if
by writmg), it was good without consideration. There was no radi-
cal defect in the contract, for want of consideration. But it was
made requisite, in order to put people upon attention and reflection,
(a) Vide 3 Burr. 1639. It is there said that " a man may without consideration
enter into an express covenant under hand and seal." Ed,
PILLANS V. VAN MIEEOP. 375
and to prevent obscurity and uncertainty : and in that view either
writing or certain formalities were required. Idem, on Justinian, 4to
edit., 614.
Therefore it was intended as a guard against rash, mconsiderate
declarations : but if an undertaking was entered into upon deliberation
and reflection, it had activity ; and such promises were binding. Both
Grotius and Puffeniddrff, tiold them obligatory by the law of nations.
Grot., lib. 2, c. 11, De Promissis. Puffend. hb. 3, c. 5. They are
morally good ; and only require ascertainment. Therefore there is no
reason to extend the principle, or carry it further.
There would have been no doubt upon the present case, according
to the Roman law ; because here is both stipulation ( m the express
Roman form ) and writing. Bracton ( who wrote {a) temp. Hen. 3, )
is the first of our lawyers who mention this. His writmgs inter-
weave a great many things out of the Roman law. In his third book
cap. 1, De Actionibus, he distmguishes between naked and clothed
contracts. He says that obligatio est m,ater actionis ; and that it may
arise ex contractu, inultis modis ; sicut ex conventione, c&c. / sicut sicnt
ixmta, conventa, qiice nuda sunt aliquando, aliquando vestita, &c., <&c.
Our own la\vyers have adopted exactly the same idea as the Ro-
man law. Plowden, 308. b. (b) in the case of Sheryngton and Pledal
V. Strotton and others, mentions it ; and no one contradicted it. He
lays down the distinction between contracts or agreements in words
(which are more base), and contracts or agreements in writing (which
are more high ) ; and puts the distinction upon the want of delibera-
tion in the former case, and the full exercise of it in the latter. His
words are the marrow of what the Roman lawyers had said. Words
pass from men lightly : but where the agreement is made by deed,
there is more stay ; &c., Ac. For, first, there is, &c., &c. ; and thirdly,
he delivers the writing as his deed, the delivery of the deed is a
ceremony in law, signifying fully his good will that the thing in the
deed should pass from him who made the deed, to the other. And
therefore a deed, which must necessarily be made upon great thought
and deliberation, shall bmd, without regard to the consideration.
The voidness of the consideration is the same, in reality, in both
cases : the reason of adopting the rule was the same, m both cases .
though there is a difference in the ceremonies required by each law
But no inefficacy arises merely from the naked promise. Therefore,
if it stood only upon the naked promise, its being, in this case, re-
duced into writing, is a sufficient guard against surprise : and there-
fore the rule of n itdum pactum does not apply in the present case.
I cannot find that a nudum pactum evidenced by writing has been
(a) Subultima tempora Kegis H. 3.
(b) This probably was Plowden's own argument. I suppose he was himself that
apprentice of the Middle Temple who argued for the defendants.
376 PILLANS V. VAN MIEROP.
ever holclen bad: and I should think it g'OQd.^.iJAQUg h, where jjt is
merely verbal, it is bad. Yet I give no opinion upon itS- being.^od^
always, Avhen in writing. Many of the old cases are strange and
absurd : so also are some of the modern ones ; particularly, that of
Hayes Y. Warren (a). It is now settled, that where the act is done
at the request of the person promising, it will be a suflScient founda-
tion to graft the promise upon. In another instance, the strictness
has been relaxed : As for instance, burymg (b) a son ; or curing (c)
a son ; the considerations were both past ; and yet holden good. It
has been meltmg do^vn mto common sense, of late times.
However, I do here see a consideration. If it be a departure from
any right, it will be sufficient to graft a verbal promise upon. Now
here. White, living in Ireland, writes to the plamtiffs to honor his
draught for 800/. (d) payable ten weeks after. The plaintiffs agree
to it, on condition that they be made safe at all events. White
offers good credit on a house in London ; and draws : and the plaint-
iffs accept his draught. Then White writes to them, to draw on
Van Mierop and Hopkms ; to whom the plamtiffs write, to inquire
if they will honor their draught : they engage that they will. This
Jiransaction has prevented, stopped, and disabled^the plamtiffs fro m
calling upon White, for the perforhiahce of his engagementTTFor,
White's engageiuent is coffiplied^^vitST'so'Tliat the plamtiffs could
not call upon him for his security, I do not speak of the money :
for that was not payable till after two usances and a half. But the
plaintiffs were prevented from calling upon White for a performance
of his engagement to give them credit on a good house in London,
for reimbursement : so that here is a good consideration. The law
does not weigh the qua^itum of the consideration. The suspension
of the plaintift"'s right to call upon White for a compliance with his
engagement is sufficient to support an action ; even if it be a suspen-
sion of the right, for a day only, or for ever so little a time.
But to consider this as a commercial case. All nations ought to
have their laws conformable to each other, m such cases. ' Fides
servanda est: simjylicitas Juris gentium ^;r«?ya/ea^. Ilodierni mores
are such, that the old notion about the nudum pactum is not strictly
observed, as a rule. On a question of this nature, whether by the
law of nations, such an engagement as this shall bind, the law is to
judge.
The true reason why the acceptance of a bill of exchange shall
bind, is not on account of the acceptor's having, or being supposed
{a) vide 2 Sir J. S. OV,. I have a very full note of this case The reason of the
reversal of the judirmcnt was, that it did not appear by the declaration to be either
for the benefit or at tlie rcHjuest of tiio defendant.
(h) Church and Church's Case, cited in llayiu. 2(50. (c) Vide 2 Leon. HI. ,!
(ti) For between Ireland and Holland each, usance i* one month. ; i
'S^X3iu^-v
PILLANS V. VAN MIEllOP. 377
to have, effects in hand ; but for the convenience of trade and com-
merce. Mdes est servanda. An acceptance for the honor of the
drawer shall bmd the acceptor ; so shall a verbal acceptance. And
whether this be an actual acceptance, or an agreement to accept, it
ought equally to bind. An agreement to accept a bill to be drawn
in future would (as it seems to me) by connection and relation, bind>
on account of the antecedent relation. And I see no difference be-
tween its bemg before or after the bill was drawn. Here was an agree-
ment sufficient to bind the defendants to pay the bill : agreemg to
honor it is agreeing to pay it. I see no sort of fraud. It rather seems
as if the defendants had effects of White's in their hands. And it does
not appear to me, that the defendants would not have honored the
plaintiffs' draughts, even though they had known that it was future
credit. But whether the plamtiffs or the defendants had effects of
White's in then- hands, or not ; we must determine on the general
doctrme. And I am of opinion, that there ought to be a new trial.
Mr. Justice Yates was of the same opinion. He said it was a case
of great consequence to commerce : and therefore he would give both
his opmion and his reasons. The arguments on the side of the defend-
ants terminate m its being a nudum pactum^ and therefore void.
This depends upon two questions. 1st question, — whether this be a
promise without a consideration ; 2d question, — if it is, then, whether
this promise shall not be bincUng, of itself, \vithout any considera-
tion.
First,— the draught drawTi by White on the plaintiffs, payable to
Clifford, is no part of the consideration of the midertaking by the
defendants. The draught payable to Clifford is never mentioned to
the defendants. They are asked whether they will answer a draught
from the plamtiffs upon them : they answer they will honor such a
draught on them. Wliether the defendants had or had not effects of
White's in their hands, is immaterial. Any damage (a) to another,
or suspension or forbearance of his right, is a foundation for an under-
taking, and will make it bindmg, though no actual benefit accrues to
the party undertaking. Now here the promise and undertaking of
the defendants did occasion a possibility of loss to the plaintiffs. It
is plain that the plaintiffs would not rely on White's assurance only,
but wrote to the defendants to know if they would accept their
draughts. The credit of the plaintiffs might have been hurt by the
refusal of the defendants to accept White's bills. They were, or
might have been, prevented from resorting to him, or getting further
security frdnniim." It comes within the cases of promises where the
debtee forbears suing the original_debtor.
Second question,— Whether, by the law of merchants, this contract
(a) Vide Coygs v. Bernard, 2 Lord Raym. 919.
/
378- PILLANS V. VAN MIEKOP.
is not binding on the defendants, though it was without consideration.
The acceptance of a bill of exchange is an obhgation to pay it. The
end of their institution, their currency, requires that it should be so.
On this principle, bills of exchange are considered and are declared
upon as special contracts, though legally they are only simple con-
tracts. The declaration sets forth the bill and acceptance specifically,
and that thereby the defendants, by the custom of merchants, became
liable to pay it. Tliis agreement to honor tlieir bill was a virtual
acceptance of the bill. \n acceptance needs nut be upon the bill it-^
self : it may be by collateral writmg. Wilkinson v. Lutioidge, 1
Strange, 648. A promise to accept is the same as an actual accept-
ance, and a small matter amounts to an acceptance; and so says
Molloy, lib. 2, c. 10, § 20. And an acceptance will bind, though the
acceptor has no effects of the drawer in his hands, and without any
consideration. Synions v. Parminter (a) Hil. 1747, 21 G. 2, B. R.
And a bill accepted for the honor of the drawer will also bmd.
Then he applied these positions to the present case. It was an
acceptance of this very draught by relation and coimection, though
the bill was not then drawn by the plamtiffs on the defendants. But
even if it did not amount to an actual acceptance, yet it would equally
bmd the defendants ; they would be equally obliged to perform the
effect of their undertaking. The plaintiffs apprised the defendants of
their intention to draw, and the defendants promised to honor their
draught ; and the plaintiffs of course would regulate their conduct
accordingly. Therefore, upon the whole circumstances of this tran-
saction : 1st, There is a consideration ; and, 2d, If there was none, yet
in this commercial case the defendants would be bound.
Mr. Justice Aston. I am of opinion that there ought to be a new
trial. If there be such a custom of merchants as has been alleged, it
may be found by a jury ; but it is the court, not the jury, who are to
determine the law. This must be considered as a commercial transac-
tion, and is a plain case. The defendants have undertaken to honor
the plaintiffs' draught ; therefore they are bound to pay it. This can-
not be called a nudum paction. The answer returned by the defend-
ants is an admission of having effects of White's in their hands, if
that were necessary. Andjifter this promise to accept (w hich is an
implied acceptance), they mighf lia'vejipplied anything of White's
that they had in their hands to this engageraent7even"th?5trgh" White
had drawn other bills upon them in the interim. The defendants vol-
untarily engaged to the plTrintitf s, and they could not recede from their
engagement. As to its being a nudum pactum (which matter has been
already so well explained), if there be turpitude or illegality in the
(o) This was on a motion in arrest of judgment. The judginent was affirmed (ex
parte) in Dom. Proc. with £100 costs, upon or soon after 20th Feb. 17-48.
I BA>"N y. HUGHES* ^ * ^•
consideration of a note, it will make it void, and may be given in
evidence. But here nothing of that kind appears, nor any thmg like
fraud in the plaintiffs. Here was full notice of all the facts ; a clear
apprehension of them by the defendants; a question put to them,
whether they would accept: and their answer, that they would.
Upon the whole he concurred, that an action will lay for the plamtitts
against them; and that the plaintiffs ought to recover.
By the Court vmanimously the rule to set aside the verdict, and
for a new trial, was made absolute.
RANN AKD Another, Executors of MaeyJJughes, v. ISABELLA
HUGHES, Administratrix of J^ Hughes.
In the House of Lords, May 14, 1778.
• [Eeported in 7 Term Reports, 350, note (a).]
The declaration stated that on the 11th of June, 1764, divers dis-
putes had arisen between the plaintiff's testator and the defendants
Lestate, which they referred to arbitration; that the arbitrator
awarded that the defendant's intestate should pay to the plaintiff ^
testator 983Z. ; that the defendant's intestate afterwards died possessed
of effects sufficient to pay that sum ; that administration was gmnted
to the defendant; that Mary Hughes died, havmg appomted the
plaLiffs her executors ; that at the time of her dea.h, the -id s^^
■ of 983Z. was unpaid: by rea_son of which premises the defendant ..^^
administratrix, became liable to pay to the plamtiffs, as executors the
Tl sum ; and being so liable, she, in consideration thereof, imdertook
and promised to pay, &c. The defendant pleaded nonass^onpsU,ple>^e
adJnistravit, ^ndplene ad^ni^ustravit except as to ^^^^am good.^^^^^^
which were not sufficient to pay an outstandmg bond-debt of the m-
Ltate's therein set forth, &c. The replic^.tion took ^^^ll^^^l
pleas Verdict for the plaintiff on the first issue, and for the defend-
ant on the two last ; and on the first a general judgmen was entered
Tb R agamst the defendant de bonis propriis. This judgment was
reversed in the Exchequer Chamber ; and a writ of error was after-
wTd brought in the Aouse of Lords, where, after argumeivt, the fo
™ing question was proposed to the judges by the Lord Chancelloi
Whethe^r sufficient matter appeared upon the declaration to warrant
after verdict the judgment against the defendant m error in he per-
fnrcapaclirnpon which the Lord Chief Baron Skynner delivered
Topers the' judges to this effect: It is ^^.^^^^fllJ:::^
everv man is, by the law of nature, bound to fulfil his engagements
Zl^2y\Z that the law of this country supplies no means, nor
i t . ■ ■ -^^* H^ ^^
'i/~>^t-Q.<^^U
^i-KP Cr.'>^-0~
^ ^yC*, -mJi^-^JK^w
^ ^/^^
380
RANN V. HUGHES.
t
affords any remedy, to compel the performance of an agreement made
without sufficient consideration. Such agreement is nudum pactum,
ex quo 7ion oritur actio ; and whatsoever may be the sense of this
maxim in the civil law, it is in the last-mentioned sense only that it
is to be understood in our law. The declaration states that the de-
fendant, being indebted as administratrix, promised to pay when re-
quested ; and the judgment is agamst the defendant generally. Thei
bemg mdebted is ofjtself a„sufficient considei:atiQiktaglimndja.^xQiaiseTj
but the promise nuist be coextensive with the consideration, unless
some particular consideration of fact can be found here to warrant the
extension of it against the defendant in her own capacity. If a per-
son indebted in one right, m consideration of forbearance for a partic-
ular time, promise to pay in another right, this convenience will be a
sufficient consideration to warrant an action against him or her in the
latter right ; but here no sufficient consideration occurs to support this
demand against her m her personal capacity, for she derives no ad-
vantage or convenience from the promise here made. For if I promise
generally to pay upon request what I was liable to pay upon, request
in another right, I derive no advantage or convenience from this
promise, and therefore there is not sufficient consideration for it. But
it is said that if this promise is in writing, that takes away the iieces-
sity of a consideration, and obviates the objection of nudum pactum,
for that cannot be where the promise is put in writing ; and that, if it
were necessary to support the promise that it should be in wrTtlng^ it
will, after verdict, be presumed tfeat it wrisin writing f and this last is
certainly true ; but that there cannot be nudum pabtum in writing,
whatever may be the rule of the civil law, there is certainly none such
in the law of England. His Lordship observed, upon the doctrine of
nudum pactum delivered by Mr. J. Wilniot in the case of Pillans v.
Yan Mierop and HopMns, 3 Burr. 1663, that he contradicted himself,
and was also contradicted by Vimiius in his comment on Justinian.
All contracts are by the laws of England distinguished into agree-
ments by specialty, and agreements by parol ; nor is there any such
third class, as some of the counsel have endeavored to maintain, as
contracts in writing. If they be merely written and not specialities,
they are parol, and a consideration must be proved. But it is said
that the Statute of Frauds has taken away the necessity of any con-
sideration in this case : the Statute of Frauds was made for the relief
of personal representatives and others, and did not intend to charge
them further than by common law they were chargeable. His Lord-
ship here read those sections of that statute which relate to the pres-
ent subject. He ol)served that the words were merely negative, and
that executors and administrators should not be liable out of their own
estates, unless the a jrceuient upon which the action was brought, or
<> U
r*-V 4i>**
y^^ A*[/%^tp(j^
^9 A tc-'^i. ^-./ Ac*-dM/^*
/^
STURLYN v. ALBANY. 381
some memorandum thereof, was in writing and signed by the party.
But this does not prove that the agreement was still not liable to be
tried and judged of as all other agreements merely in writing are by
the common law, and does not prove the converse of the proposition,
that when in writing the party must be at all events liable. He here
observed upon the case of Pillans v. Van Mierop, in Burr., and the
case of Zosh v. Williamsofi, Mich. 16 G. 3, in B. R. ; and so far as these
cases went on the doctrine of nudum pactum, he seemed to intimate that
they were erroneous. He said that all his brothers concurred with
him that in this case there was not a sufficient consideration to sup-
port this demand as a personal demand against the defendant, and that
its being now supposed to have been in writing makes no difference.
The consequence of which is that the question put to us must be an-
swered in the negative.
And the judgment in the Exchequer Chamber was afiBrmed,
Section- III.,— Adequacy of ConsiderationJ"
SIR ANTHONY STURLYN v. ALBANY.
In the Queen's Bench^ichaelmas Teem, 1587.
[Reported in Croke Elizabeth, 67J
Assumpsit. The case was, the plaintiff had made a lease to J. S.
of land for life, rendering rent, J. S. grants all his estate to the
defendant ; the rent was behind for divers years ; the plamtiff demands
the rent of the defendant, who assumed that if the plaintiff could
show to him a deed that the rent was due, that he would pay to him
the rent and the arrearages ; the plaintiff allegeth that upon such a
day of, &c., at Warwick, he showed unto him the mdenture of lease by
which the rent was due, and notwithstanding he had not paid him the
rent and the arrearages due for four years. Upon non assumpsit
pleaded, it was found for the plaintiff, and damages assessed to so
much as the rent and arrearages did amount unto. And it was moved
in arrest of judgment, that there was no consideration to ground an
action : for it is but the showing of the deed, which is no consideration.
2. The damages ought only to be assessed as for the time the rent
was behmd, and not for the rent and the arrearages ; for he hath
other remedy for the rent ; and a recovery in this action shall be no
bar in another action. But it was adjudged for the plaintiff ; for when
* Ch. Ill, Sect. III. Finch.
^^2 BRET V. J. S. AND WIFE.
a thing is to be done by the plaintiff, be it never so small, this is a
suflacient consideration to ground an action ; and here the showing of
the deed is a cause to avoid suit ; and the rent and arrearages may be
assessed all in damages. But they took order that the plamtiff should
release to the defendant all the arrearages of rent before execution
should be awarded.
N'ota. In this case it was alleged that it hath been adjudged, when
one assumeth to another, that if he can show liim an obligation in
which he was bound to him, that he would pay him, and he did show
the obligation, &c., that no action lieth upon this assumpsit ; which
was affirmed by the justices.,
^tw4Lt^:io (w>^ Ui^-
u
BRET V. J. S. AND Wife.
In the Common Pleas, Easter Term, 1600.
[Reported in Croke Elizabeth, 756.]
Assumpsit. The case was, that William Dracot, first husband to
the feme, sent his son to table with the plamtiff for three years, and
agreed to give unto him for every year 8/., and died within the year.
The feme, durmg her widowhood, in consideration of her natural
affection to the son, and in consideration that the son should contmue
during the residue of the time with the plaintiff, promised to the
plaintiff to pay unto him G^. 13s. 4c?. for the tabling of the son for the
time past, and SI. for every year after that he should contmue there
with the plaintiff. Afterwards she married the defendant, and the
plaintiff brought his action as well for the Ql. 13s. 4c?. as for the tabling
for the two years following.
WarburtoH moved, that this action lay not. First, because it was
an entire contract by her first husband for the entire year, which can-
not be apportioned. Secondly, because natural affection is not suffi-
cient to gromid an assumpsit without quid pro quo. Thirdly, that this
is a contract for which action of debt lies, and not this action.
But all the Court held, that it well lay. For as to the first, it is well
apportionable ; because, being for tabling which he had taken, there
ought to be a recompense, although he departed within the year, or
that the contractor died within the year. To the second, they agreed
that natural affection of itself is not a sufficient consideration to ground
an assumpsit ; for although it be sufficient to raise a use, yet it is not
sufficient to ground an action, without an express quid fir o quo. But
it is here good, because it is not only in consideration of affection, but
that her son should afterwards continue at his tal)le, which is good as
well for the money due before, as for what should afterwards become
BAINBRIDGE V. FIRMSTONE. 383
due. And as to the third, true it is that if the contract had been only
ror the tabling afterwards, then debt would have lain, and not this
action ; but in regard it is conjoined with another thing for which he
could not have an action of debt (as it is here for this 6^. 13s. 4c?. ), an
action upon the case lies for all (as debt with other things maybe put
into an arbitrament). Wherefore it was adjudged for the plaintiff.
BAINBRIDGE v. FIRMSTONE.
In the Queen's Bench, November 2, 1838.
[Reported in 8 Adolphus & Ellis, 743.]
Assumpsit. The declaration stated that, whereas heretofore, to wit
&c., in consideration that plaintiff, at the request of defendant, had
then consented to allow defendant to weigh divers, to wit two, boilers
of the plaintiff, of great value, &c., defendant promised that he would,
within a reasonable time after the said weighing was effected, leave
and give up the boilers in as perfect and complete a condition, and as
fit for use by plaintiff, as the same were in at the time of the consent
so given by plaintiff ; and that, although m pursuance of the consent
so given, defendant, to wit on, &c., did weigh the same boilers, yet
defendant did not nor would, withm a reasonable time after the said
weighing was effected, leave and give up the boilers in as perfect, &c.,
but wholly neglected and refused so to do, although a reasonable time
for that purpose had elapsed before the commencement of this suit ;
and, on the contrary thereof, defendant afterwards, to wit on, &c.,
took the said boilers to pieces, and did not put the same together again,
but left the same in a detached and divided condition, and in many
different pieces, whereby plaintiff hath been put to great trouble, &c.
Plea, Non assumpsit.
On the trial before Lord Denman, C. J., at the London sittuags after
last Trinity term, a verdict was found for the defendant.
John Bayley now moved in arrest of judgment. The declaration
shows no consideration. There should have been either detriment to
the plaintiff, or benefit to the defendant; 1 Selwyn's N. P. 45 (a). It
does not appear that the defendant was to receive any remuneration.
Besides, the word " weigh" is ambiguous.
Lord Denman, C. J. It seems to me that the declaration is well
enough. The defendant had some reason for wishmg to weigh the
boilers ; and he could do so only by obtaming permission from the
plaintiff, which he did obtain by promising to return them in good
condition. We need not enquire what benefit he expected to derive.
The plaintiff might have given or refused leave.
(a) 9th ed.
384 BOLTON V. MADDEN.
Patteson, J, The consideration is, that the plaintiff, at the defend-
ant's request, had consented to allow the defendant to weigh the
boilers. I suppose the defendant thought he had some benefit ; at any
rate, there is a detriment to the plaintiff from his parting with the
possession for even so short a time.
Williams and Coleridge, JJ., concurred.
Mule refused.
BOLTON V. MADDEN.
In the Queen's Bench, November 25, 1873.
\^Reported in Law Reports, 9 Queen's Bench, 55.]
Declaration for money paid by the plaintiff for the defendant at
his request. Plea, never indebted. Issue thereon.
At the trial of the Lord Mayor's Court, before the Common Ser-
jeant, the judge ordered a nonsuit, with leave to the plaintiff to
move to enter a verdict for 71. 7s.
A rule was afterwards obtained accordingly on the ground that the
Common Serjeant had ruled that the facts proved constituted only an
imperfect obligation and did not amount to a legally binding con-
tract.
The facts of the case, the course of the trial, and the arguments
sufficiently appear in the judgment of the Court.
Nov. 20. Templeton showed cause.
F. Turner in support of the rule.
The following cases were cited : Blachford v. Preston (a) ; Ilaigh v.
Brooks (b) ; Bainhridge v. Firmstone (c) ; ShadioellY. Shadwell (d) ;
Sterry v. Clifton (e).
Cur, adv. vult.
Nov. 25. The judgment of the Court (Blackburn, Mellor, and
Quain, .J.J., was delivered by
BLArivBURN, .L In this case, tried in the Lord Mayor's Court, the
plaintiff was nonsuited, but the jury, under the direction of the Com-
mon Serjeant, assessed the damages at 71. 7s., and leave was given to
the plaintiff to move to enter a verdict for that amount ; the pleadings
to be amended if necessary*
From the notes, it appears that there was no dispute as to the facts-
The plaintiff and defendant were both subscribers to a charity, the
objects of wliicli are elected l)y tlie subscribers who have votes pro-
fa) H T. R. H9. ('-) 10 Ad. & E. 309. (') S Ad. & E. 743.
(d) 9 C. 13. (N.8.) 159; 30 L. J. (C. P.) 145 (e) 9 C. B. 110.
BOLTON V. MADDEN. 385
portioned in number to the amount they have subscribed. The plaint-
iff and defendant expressly agreed that if the plaintiff would give
twenty-eight votes for an object of the charity whom the defendant
favored, the defendant would at the next election give twenty-eight
votes for such object of the charity as the plaintiff should then favor.
The plaintiff performed his part of this agreement, and voted for
the candidate favored by the defendant ; but the defendant made de-
fault, and did not furnish any votes for the candidate favored by the
plaintiff at the next election. The plamtiff in consequence subscribed
71. 7s. to the charity so as to obtam twenty-eight more votes in his
own right, which he used in lieu of those which the defendant had
promised to supply him.
There can be no doubt that there was an express promise by the
defendant and a breach of that promise ; but the doubt raised was,
whether the consideration was such as to make that promise enforce-
able at law.
The general rule is, that an executory agreement, by which the
plaintiff agrees to do something on the terms that the defendant agrees
to do something else, may be enforced, if what the plamtiff has agreed
to do is " either for the benefit of the defendant or to the trouble or
prejudice of the plaintiff: " see Com. Dig. Action on the Case in As-
sumpsit, B. 1. If it be either, the adequacy of the consideration is
for the parties to consider at the time of making the agreement, not
for the Court when it is sought to be enforced.
The argument for the defendant was that the subscriber to a charity
is under an obligation to give his votes for the best object, and that
the plaintiff, if he gave his votes at the first election to what he thought
the best candidate, incurred neither trouble nor prejudice, so that there
was in that point of view no consideration ; and if he gave his votes
to the candidate whom he did not think the best, the whole agreement
was void as against public policy.
But though some of us, at leasts much disapprove of this kind ot
traffic, we can find no legal principle to justify us in holding that the
subscriber to a charity may not give his votes as he pleases, answering
only to his own conscience and reputation for the way he exercises
his power.
We think, therefore, the nonsuit cannot be supported, and as there
was evidence justifying the jury in assessing the damages as they
have done, the rule must be made absolute to enter the verdict for the
nlaintiff.
Mule absolute.
Vol. 1. 25
«J?^-Y iX.-x,,^/v
•J ' Li
/9 &^l^ ^^'^-^ \^'-^-
386 HAIGH V. BROOKS.
HAIGH AND ANOTHER v. BROOKS.
In the Queen's Bench, June 6, 1839.
BROOKS y. HAIGH AND ANOTHER.
In the Exchequer Chambee, June 29, 1840.
[Reported in 10 Adolphus & Ellis, 309, 323.]
Assumpsit. The fli'st count of the declaration stated that hereto-
fore, to wit on, &c., " in consideration tliat the said plaintiffs, at the
special instance and request of the said defendant, would give up to
him a certain guarantee of £10,000 on behalf of Messrs. John Lees
and Sons, Manchester, then held by the said plaintiffs, he the said de-
fendant undertook, and then faithfully promised the said plamtiffs, to
see certam bills, accepted by the said Messrs. John Lees and Sons,
paid at maturity ; that is to say, a certain bill of exchange " bearmg
date, &c., drawn by plaintiffs upon and accepted by the said Lees and
Sons, payable three months after date, for £3466 13s. 7d., and made
payable at, &c. : and also a certain other bill, &c. : describing two other
bills for £3000 and £3200 drawn by plamtiffs upon and accepted by
Lees and Sons, and made payable at, &c. : Averment, that plamtiffs,
relying on defendant's said promise, did then to wit on, &c., " give up
to the said defendant the said guaranty of £10,000." Breach, non-
payment of the bills, when they afterwards came to maturity, by Lees
and Sons, or the parties at whose houses the bills respectively were
made payable, or by defendant, or any other person, &c.
Third plea, to the first count : " That the said supposed guaranty of
£10,000, in consideration of the giving up whereof the defendant
made such supposed promise and undertaking as therein mentioned,
and which guaranty was so given up to the said defendant as therein
mentioned, was a special promise to answer the said plaintiff's for the
debt and default of other persons, to wit the said Messrs. John Lees
and Sons in the said first count mentioned ; and that no agreement in
respect of, or relating to, the said supposed guaranty or special promise,
or any memorandum or note thereof, wherein any sufficient consider-
ation for the said guaranty or special promise was stated or shown,
was in writing and signed by the said defendant, or any other person
l)y him thereunto lawfully authorized. And the said defendant fur-
ther saith that the said su])posed guaranty, in consideration of the
giving up whereof the defendant made the said supposed promise
and undei'taking in the said first count mentioned, and which was so
given up as tlierein mentioned, was and is contained in a certain mem-
orandum in writing signed by the defendant, and which was and is
in the words and figures and to the effect following, that is to say :
HAIGH V. BROOKS. 387
Manchester, 4th February, 1837.
Messrs. Haigh & Franceys.
Gext., — In consideration of your being in advance to Messrs. John
Lees and Sons, in the sum of £ 10, 000 for the purchase of cotton, I do
hereby give you my guaranty for that amount (say £ 10, 000), on their
behalf.
John Brooks.
And that there was no other agreement or memorandum or note
thereof, in respect of, or relating to, the said last-mentioned supposed
guaranty or special promise : wherefore the said defendant says that
the supposed guaranty, in consideration whereof the said defendant
made the said supposed promise and midertakmg in the said fii"st count
mentioned, was and is void and of no effect ; and therefore that the
said supposed promise and undertaking in the said first count men-
tioned was and is void and of no effect." Verification.
Demurrer, assigning for cause, " that it is admitted by the plea that
the memorandum, the giving up of which was the consideration of the
guaranty in the said declaration mentioned, was actually given up to
the said defendant by the said plamtiffs. and the consideration was
therefore executed by the said plaintiffs, and that, even if the original
memorandum was not binding in point of law, the giving up was a
suflBlcient consideration for the promise in the declaration mentioned."
Jomder. The demurrer was argued in last Hilary term (a) .
Sir W. W. Follett for the plaintiffs. The undertaking declared up-
on is, on the face of it, sufficient to satisfy the Statute of Frauds, 29
Car. 2, c. 3, § 4. It is said, however, that the consideration is really
insufficient, because the guarantee deUvered up was one which could
not have been sued upon consistently with the statute. But, assum-
ing that to be so, a promise in consideration of delivering up such a
guaranty might still be good. The defendant might, for substantial
reasons, wish to have the guaranty back. His mercantile character
was pledged by it. It might, on various other accounts, be important
to him that such a paper should not remain in the plamtiff's hands ;
and, if the bargain was made upon any consideration, the Court will
not uaquire into its adequacy. This prmciple was lately recognized
in Hitchcock v. Coker (b). Such a promise might be made in consider-
ation of dehvering up a letter ; no one but the defendant might be able
to judge how far the possession of it was valuable ; but, if the letter
was given up at his request, the rule would apply, that any thmg so
given, to the plaintiff's detrunent, or the benefit of the defendant, is
consideration for an assumpsit. Suppose the undertaking given up
had been one rendered unavailing by the Statute of Limitations, no
(a) January 18th. Before Lord Denman, C J.; Littledale, Williams, and Coleridge,
J J- (6) 6 A. & E. 438. And see Archer v. Marsh, 6 A. & E. 959.
4rL
388 HAIGH V. BEOOKS.
action would have lain upon it, but the attempt to enforce it could not
perhaps have been resisted without injury to the defendant's mercan-
tile character ; the relmquishment of it, therefore, would have been
good consideration for a promise. The present is a similar case.
Release from a moral obligation is consideration enough for an express
promise. If it were necessary that something should be foregone to
which there was a legal right, the delivery of the mere written paper,
which contnined the first guaranty, was sufficient in this case. The
plaintiffs are entitled to put some value on the possession of such a
paper, though not legally available ; as they might on the possession of
a cancelled bond, or bills accepted by the defendant on wrong stamps.
It is not, mdeed, clear in this case that the first guaranty was void.
In Boehm v. Campbell («) a similar guaranty was held to show a suffi-
cient consideration, though the advance for which the security was
given had been already made, and it did not appear more distinctly
than in the present case that time was to be granted. Supposing it
even questionable whether the former undertaking bound the defend-
ant, yet the discharge from a claim, or waiver of a defence, on which
the promisee might or might not have been legally entitled to succeed,
is consideration enough to support an assumpsit ; Longridge v. DormUe
(*), Stracy v. The Bank of England (c). Here, however, it appears,
at all events, that the original guaranty may have been given under
circumstances which rendered it morally bmding ; and that brings it
within the principle of Lee v. Muggeridge (d) and other cases in which
promises supported by moral obligation have been held sufficient.
Sir J. Campbell, Attorney General, contra. First, the original
guaranty was void ; and, if so, then, secondly, the promise declared up-
on is without consideration. . . . Secondly, the guaranty being void,
the undertaking substituted for it, without any new consideration, is
void also. The case is no better than if a second guaranty had been
given in the words of the first. A consideration, to support a promise,
must have some value in point of law ; Smith and Smith's Case ( e),
and other authorities cited in note (b) to Barbery. Fox (/). Rami v.
Iluqhes (r/) illustrates the same point. A man may have in his posses-
sion a letter of which improper use might be made ; but his delivering
it up is no legal consideration. An unfounded action may create an-
noyance ; but the renouncing it is no consideration in law for a promise.
Where, indeed, there is a reasonable doubt, in point of law, wlietlier
the promisee would or would not succeed if the litigation were prose-
cuted, the case is different : that was so in Longridge v. Dormlle and
(a) 3 B. Moore, 15; 8. c 8 Taunt. 679. (M 5 B. A Alfl. 117. (o) <5 Bing. 754.
(iV) 5 Taunt. 36. ('•) 3 I^,^^"; ^;- . ,. ^.
(0 2 Wms. Saund. 1^,7 <■. nth edit. See Jon^s v. II atte, 6 N'jw Oa. d41.
(jr) Note («) to MitcUiiuHon v. Ilewson, 7 T. li- iiJO. ^
HAIGH V. BROOKS. 389
Stracy v. The Bank of England. In Shortrede V. Cheek (a) the con-
sideration disclosed was, that the plaintiff should withdraw a promis-
sory note, on which he had an unquestioned right of action : and Parke,
J. said, " There is no doubt that the givmg up of any note upon which
the plamtiff might have sued, would be a sufficient consideration." It
is argued that foregomg a security upon which the Statute of Limit-
ations had attached would be a consideration ; but there an action would
lie on the security if the statute were not pleaded. Whether the giv-
ing up a bill drawn on a wrong stamp would be a consideration or not
may be questionable ; but the objection is not one of which the Court
would take judicial notice : here the Court must take notice that the
guaranty is invalid. It is contended here that the promise is binding,
because grounded on a moral obligation ; but that obligation rests on
a promise which is itself not binding ; the new engagement, then, can-
not have more force than the original one. In the cases where a moral
obligation has been held sufficient ground for an express promise, the
obligation has been something more than a nudum, pactum : thus, in
Lee V. Muggeridge money had been advanced by the plaintiff at the
request of the promisor. But the doctrme, that a moral obligation is
sufficient consideration for a subsequent promise, is not free from doubt.
Lord Tenterden said, m LittlefieldY. Shee (b), that it must be " received
with some limitation." The instances which have been considered as
establishing that doctrine are brought together in note (a) to We)i7iall
V. Adney (c), and seem to resolve themselves into these classes. First,
where there has been a legal obligation antecedent to the promise ; as
the duty of overseers to provide for the poor. Secondly, where
there was an antecedent equitable liability, as that of an executor to
pay legacies ; but the doctrine, as applicable to these cases, appears
to have been overruled. Thirdly, where a debt existed before the
promise, but the remedy was barred by statute ; as in the cases of
certificated bankrupts or discharged insolvents ; or where the Statute
of Limitations has attached : in these instances the party indebted
may waive the statutory bar and oblige himself, by a promise, to pay
the debt. Fourthly, where a promise merely voidable has been ratified ;
as in the case of a person of full age promising to pay a debt contracted
during his infancy {d). In all these cases, so far as the doctrme is
estabhshed, there has been an actual benefit received, or a debt, or
other groimd of legal obligation, antecedent to the promise relied
upon : not merely a nudum, pactum^ as in the present instance, where
the party originally promising had received no benefit, nor had the
plaintiffs incurred any loss or prejudice at his request. The money
had been advanced when the guaranty was given ; then the defendant
(a) 1 A.&E. 57. See Wilkinson v. Byers, 1 A. & E. 106.
(6) 2 B. «fe Ad. 811. (c) 3 Bos. & P. 249. {d) See Meyer v. Haworth, 8 A. & E. 467.
390 HAIGH V. BROOKS.
says, « Forego the guaranty, and I will see you paid." The prior
moral obligation was only that which every man is under to keep his
word. JVash v. Brotcn (a) Holliday v. Atkinson (*), and Bret v. J. S.
and his wife (c) cited in note {h) to Barber v. Fox, all show that moral
considerations, where no actual benefit has been received by one party,
or prejudice sustained by the other, and no legal duty has attached,
are not sufficient ground for an assumpsit. As to the delivery, in this
case, of the mere paper, it is not pretended that the paper had any
value : the contract of guaranty, not the paper containing it, was the ob-
ject really in question.
Sir W. W. Follett in reply. ... If it was only doubtful whether
such a guaranty was not available, the giving it up was a good con-
sideration. If the invalidity of it was not a point as clear as that the
eldest son inherits, the Court will not measure the degree of doubt. It
has scarcely been disputed that the giving up of bills drawn on wrong
stamps, or a contract on which the Statute of Limitations had attached,
would be sufficient consideration : but those cases do not essentially
differ from the present. The bills are void from the first, and cannot
be made valid ; though the promisor may have good reason for wish-
ing to get them into his possession. It is suggested that the bar
created by the Statute of Limitations may be waived ; but so also may
that under the Statute of Frauds. It is clear that, to support a prom-
ise of this kind, there need not have been an original liability in the
promisor ; for that is not so in the case of the bills, or in that of the
contract made during infancy. That a promise may be founded on
sufficient consideration, though no benefit has accrued to the promisor,
appears from Stevens v. Lynch (d), where the drawer of a bill, know-
ing that time had been given to the acceptor, undertook to pay on the
acceptor's default, and an action was held maintamable on that un-
dertaking. But, supposing the guaranty in this case to have been
totally void, the giving up of a paper on which no action would lie
may be sufficient consideration for a promise. Here the plaintiffs,
though not entitled to recover on the guaranty, might have brought
trover for the document if unlawfully taken out of their hands. In
considering whether or not such an action would lie, the value would
be of no importance ; it is enough for the present argument, if the
l>laintiffs could have recovered a shilling, Sui)p().se the defendant had
said, " If you will not bring trover, I will pay the bills ; " an action
would clearly have lain on such an agreement, and the case would not
have differed from tlie present. The consideration here is, not the re-
leasing of an action on the guaranty, but tlie giving it up ; whatever
its value may have been, the bargain is binding. [Colkridgk, J. It
is decided in Scott v. Jones (e) that trover lies for an unstamped docu-
(fi) riiitty on Bills, 74, note (r), 9th edit. (IRIO), by Chitty & ITuhne.
(i'O B. & C. 501. (c) Cro. Eliz. 75G. (d) 12 East, 2ii. (e) 4 Tauiit. 8G5.
HAIGH V. BROOKS. 391
ment if it is capable of being made good by stamping.] Any paper
may be the subject of an action of trover.
Cur. adv. vvlt.
Lord Denman, C. J., in this term (June 6th), delivered the judgment
of the Court.
This action was brought upon an assumpsit to see certain accept-
ances paid, in consideration of the plaintiflEs giving up a guaranty of
£10,000 due from the acceptor to the plaintiffs. Plea, that the guar-
anty was for the debt of another, and that there was no writing
wherein the consideration appeared, signed by the defendant, and so
the giving it up was no good consideration for the promise. Demurrer)
stating for cause that the plea is bad, because the consideration was
executed, whether the guaranty were binding in law or not. The form
of the guaranty was set out m the plea. " In consideration of your
being in advance to Messrs. John Lees and Sons, m the sum of £10,-
000 for the purchase of cotton, I do hereby give you my guaranty for
that amount (say £10,000), on their behalf, John Brooks."
It was argued for the defendant that this guaranty is of no force,
because the fact of the plamtiffs being already in advance to Lees
could form no consideration for the defendant's promise to guarantee
to the plaintiffs the payment of Lees' acceptances. In the first place,
this is by no means clear. That " being in advance " must necessarily
mean to assert that he was in advance at the time of giving the guar-
anty, is an assertion open to argument. It may iDossibly have been
intended as prospective. If the phrase had been " m consideration of
your becoming in advance," or " on condition of your being in advance,"
such would have been the clear import (a). As it is, nobody can doubt
that the defendant took a great interest in the affairs of Messrs. Lees, or
believe that the plaintiffs had not come under the advance mentioned
at the defendant's request. Here is then sufficient doubt to make it
worth the defendant's while to possess himself of the guaranty j and,
if that be so, we have no concern with the adequacy or inadequacy of
the price paid or promised for it,
But we are by no means prepared to say that any circumstances
short of the imputation of fraud in fact could entitle us to hold that
a party was not bound by a promise made upon any consideration
which could be valuable : while of its bemg so the promise by which
it was obtained from the holder of it must always afford some proof.
Here, whether or not the guaranty could have been available within
the doctrine of Wain v. Wai'lters (b), the plaintiffs were induced by
the defendant's promise to part with something which they might
have kept, and the defendant obtained what he desired by means of
(a) See the discussion on the words " for giving his vote," in Lord Huntingtower v.
Gardiner, 1 B. & C 297. (b) 5 East, 10.
892 BROOKS V. HAIGH.
that promise. Both bemg free and able to judge for themselves, how
can the defendant be justified in breaking tliis promise, by discovering
afterwards that the thing in consideration of which he gave it did not
possess that value which he supposed to belong to it ? It cannot be
ascertamed that that value was what he most regarded. He may have
had other objects and motives ; and of their weight he was the only
judge. We therefore think the plea bad : and the demurrer must
prevail.
Judgment for the plaintiffs.
The plamtilfs having signed judgment, error was brought in the
Exchequer Chamber.
The writ of error set out the pleadings, of which the material part
is stated in the preceding report. The errors assigned were, that the
declaration is insufficient, and that the judgment was for the plaintiffs
below, whereas it ought to have been for the defendant. The writ of
error was argued in Truiity vacation, June 22d, 1840, before Lord
Abinger, C. B., Bosanquet, Coltman and Maule, JJ., and Aldersox
and Rolfe, BB.
Sir J. Campbell, Attorney- General, for the plaintiff m error
No action would have lain on this guaranty ; and if so, is the gi\ing
it up sufficient consideration for a new promise ? Such an act is no
consideration, unless the thmg given up be of some merchantable
value. Thus in Com. Dig., Action upon the Case upon Assumpsit
(F. 8), (cited by Holroyd, J., in Longridge v. Dorville), it is said that
the action does not he upon a promise " m consideration of a surrender
of a lease at will ; for the lessor might determme it." There is indeed
a qualification added : " unless there was a doubt whether it was a
lease at will or for years ; " but even then, unless the doubt were a
very reasonable and well-gromided one, the action would fail. In
Smith and Smith's Case the alleged consideration for an assumpsit
was, that the promisee " would commit the education of his children,
and the disposition of his goods after his death during the minority of
his said children, for the education of the said children," to the defend-
ant ; and this was held not sufficient, the consideration being only to
have the disposition of the goods for the benefit of the children, and
not for the defendant's profit. There must be some advantage to the
promisor, or detriment incurred by the promisee at his request.
[ Maule, J. It need not be pecuniary. Lord Abixger, C. B. In
Smith and Smith's Case the suggestion in support of the consideration
was, that the defendant was to reap a pecuniary advantage, which the
court would not presume, because his doing so would have been a
breach of trust. ] The advantage must be such as can l)e appreciated
in a court of law. There are many cases in which promises, in con-
sideration of forbearance to sue, have been held void where there was
BROOKS V. HAIGH. 393
no suit that could have been forborne. Tooley v. Windham (a) ; Barber
V. I^ox; LoydN. Lee {b). It is true that the giving up a doubtful
point of law has been held a good consideration, as in Zongridge v.
Dorville; and it may be so where a reasonable doubt exists ; but in
this case there could be no doubt on the mvalidity of the first guaranty.
[Alderson, B. What is the ground on which the giving up a doubt-
ful point of law is a consideration ? To whom must it be doubtful V
The court which decides upon the assumpsit must be supposed capable
of deciduig the point of law.] There is a degree of uncertamty which
the courts will notice. [Maule, J., referred to Jones v. Eandall.(c)']
In Stracy v. The Bank of England, the j)oint which might have been
litigated was one of great nicety and difficulty. Tindal, C. J., in
his judgment, so describes it. The argument on moral obligation can
apply only to the first guaranty ; the terms of the declaration do not
admit of its being extended to the second. And on the first guaranty
no consideration aj^pears, except the general obligation to perform a
promise.
The Court below, in their judgment, argue that the words " in con-
sideration of your being m advance " might mean " on condition of
your being in advance," and suggest, as rendermg this probable, that
the plamtiffs must have come under the advance at the defendant's
request, a supposition not confirmed by anything which appears on
the record ; and they ground upon it the observation : " Here is then
sufficient doubt to make it worth the defendant's while to possess
himself of the guaranty ; and if that be so, we have no concern with
the adequacy or madequacy of the price." They also say : " Whether
or not the guaranty could have been available within the doctrine of
Wain V. Warlters,t\\Q plamtiffs were induced by the defendant's promise
to part with something which they might have kept, and the defendant
obtamed what he desired by means of that promise." [Maule, J.
The record does not show that any document was in the plaintiffs'
possession. " Giving up " the guaranty might be merely relinquishing
the contract. Aldersox, B. If they held a written guaranty, it
might have been given up by cancelling merely.] The court below
argue that the defendant cannot be justified in breaking his promise
by discovering that the thing in consideration of which he gave it did
not possess that value which he supposed to belong to it. " It cannot
be ascertained," they say, " that that value was what he most regarded.
He may have had other objects and motives ; and of their weight he
was the only judge. ' But this reasonmg would support a promise
even in such a case as Barber v. Fox. The plaintiffs contend that
trover would have lain for the paper ; but it may be inferred, even
(o) Cro. Eliz. 206. (b) 1 Stra. 94. (c) 1 Cowp. 37.
394 BKOOKS V. HAIGH.
from Scott v. Jones, that this would not be so unless the paper had
some real value.
Sir W. W. Follett, contra. As to the observation that no actual
delivery of a written pa^oer appears, if that were considered important,
the plamtiffs would ask leave to amend. The point was not taken on
the former argument ; and, when the declaration speaks of giving up
a guaranty, which it describes as " then held " by the plaintiffs, it^can-
not reasonably be supposed that nothing is meant but foregomg an
engagement. Supposmg that no action would have lain on the first
guaranty, here is an agreement between persons competent to make
contracts, without imputation of fraud on either side, by which one is
to give up an midertakmg signed by the other, and the other in con-
sideration of it is to provide for certain bills. It is assumed without
reason that the defendant's only object in desiring to have the
guaranty back must have been to prevent an action. He might not
choose that his name should remam abroad in the mercantile world,
annexed to such a document. It implies an admission which he might
think proper to recall. He might not wish, if sued, to be put to a
defence on the Statute of Frauds. If he attached a value to the
document from any cause, however inadequate, as a man might be
willing to give an immoderate price for a picture or autography the
Court will not inquire into the goodness of the bargain. Givmg up
any thing of which they were possessed was a disadvantage to the
plaintiffs ; and the defendant here was benefited by it. The case
therefore differs from that of a mere forbearance to sue, where nothing
is given and received. The law of Smith and Smith's Case may be
doubted. If the promisee there complied with terms by which the
defendant obtained something from him, although those terms could
not authorize the making of any illegal profit, it would seem that the
defendant was bound. . . .
Supposing, however, that an action would not have lain on the first
guaranty, yet, if the law upon the subject was doubtful (though ^oe/;»j
V. Campbell makes it clear on the side of the plaintiff's), and the parties
upon that doubt entered into a bargain for the abandonment of the
guaranty, such bargain made with a knowledge of all the facts, is
binding. Longridge v. Dorville ; Stracy v. The Bank of England ; Com.
Dig. Action upon the Case upon Assumpsit (F. 87), referring to 1
Rol. Abr. 23, Action sur Case (V.), pi. 2728 {a). It is indeed asked,
Who is supposed to entertain the doubt in point of law '? But matters
of law may be considered as doubtful to the courts; and arrangements
in equity are often made on the ground of the law being doubtful.
[BosANQUET, J. A pointTnay be considered so, on which learned men
differ. Lord Abingek, C. B. It is carrying fiction too far to say
(a) Comyns refers to Kent v. Pratt, Brownl. & Gold. 6, the case cited by RoUe.
But it does not appear that any doubtful point of laio was contemplated.
BROOKS V. HAIGH. 395
that the courts must always know how the law will be.] The parties
here have made their contract on a consideration which they, knowing
all the facts, thought beneficial ; and this is enough. Merchantable
or pecuniary value, in any more limited sense, is not to be insisted
upon. The case falls within the principle of Steveyis v. Lynch, and also
within that of Lee v. Muggeridge^ and other decisions which have
turned upon moral obligation. It results from all these authorities
that if parties, having made an engagement which ought to bmd them
but is incapable of bemg enforced, replace it by another, that new
engagement is valid in law. If the contrary doctrine could prevail,
what limit would there be to objections ? Would a second or third
renewal of guaranties be void on accoimt of the original defect ?
Lastly, as was contended below, if the consideration amounts to no
more than the delivering up of a paper at the defendant's request, the
Court caimot say that it is msufficient. If they do, at what point will
they allow sufficiency of consideration to begin ? Would the giving up
an autograph, or a horse or dog of no merchantable value, be sufficient ?
[Lord Abingee, C. B. The Attorney- General cited the case of a
lease at will.] That relates to a surrender, not the giving up of a
document. Papers, though ineffectual for the purpose contemplated in
drawing them up, may have a value from the mere wish of a party to
get them into his own hands. [Rolfe, B. The Lord Chancellor has
said that he will never compel the giving up of an instrument which
is void on the face of it.] An application in equity for that purpose
is very different from the enforcmg of a bargain to give up somethmg
which is considered valuable. [Bosanquet, J. Is not the document
property, however small the value ?] Yes ; and trover would lie for
it. In Wilkinson v. Oliveira {a) it was held sufficient consideration
for a promise to pay £1000 that the plaintiff, being possessed of
a certain letter, had given it to the defendant. It is true that the
defendant was alleged to have made a beneficial use of the letter ; but
that was not an essential part of the consideration. Here the defend-
ant could judge of the value of the document, and using his judgment
made the promise. He cannot now annul it on the ground that the
mstrument was of no value.
Sir J. Campbell, Attorney- General, in reply. The last argument
rests on a fallacious assumption. The bargain declared upon was
not for the delivery of a piece of paper, but for the release of a contract.
It does not appear that the paper itself may not even now be m the
plaintiff's possession. The plea, that the guaranty was of no effect,
agrees with this view of the case. The main argument on the other
side, assuming the first guaranty to be void, is in effect that, because
it was given up at the defendant's request, he is estopped from saying
(a) 1 New Ca. 490.
396 GREAT NORTHERN RAILWAY COMPANY V. WITHAM.
that such an abandonment was no consideration for his promise. But
this is contrary to the principle of many placita in Com. Dig., Action
upon the Case upon Assumpsit (F. 8), ah^eady cited. On those
authorities, if the right foregone was in reality null, it cannot be
material that the parties made their agreement on a contrary sup-
position. . . .
Stevens v. Lynch, where the holder of a bill had given time to the
acceptor, and the drawer waived the benefit of that circumstance, is
not applicable to the present case. As to Lee v. Muggeridge and the
other cases which have turned upon moral obligation, it is sufficient to
say that here no moral obligation appears for the first guaranty, and
the declaration does not allege any consideration for the second
guaranty, but the abandonment of the first.
Cur. adv. vult.
Lord Abinger, C. B., in the same Vacation (June 29th) delivered
the judgment of the Court.
In the case of Brooks v. Haigh the judgment of the Court is to
affirm the judgment of the Court of Queen's Bench.
It is the opinion of all the Court that there was in the guaranty an
ambiguity that might be explained by evidence, so as to make it a
valid contract ; and therefore tliis was a sufficient consideration for the
promise declared upon.
It is also the opmion of all the Court, with the exception of my
brother Maule, who entertained some doubt on the question, that the
words both of the declaration and the plea import that the paper on
which the guaranty was written was given up ; and that the actual
surrender of the possession of the paper to the defendant was a suf-
ficient consideration, without reference to its contents.
Judgment affirmed.
GREAT NORTHERN RAILWAY COMPANY v. WITHAM.
In the Common Pleas, November 6, 1873.
'[B.e-portedi. in Law Reports, 9 Common Pleas, 16.]
The first count of the declaration stated that it was agreed by and
between the plaintiffs and the defendant that the defendant should
supply and sell and deliver to the plaiutifts at Doncaster station, and
that the plaintiffs should buy and accept of him, any quantity they
might require and order of him during a period ending on the 31st of
Octol)er, 1872, of cei'tain descii])tions of iron, at certain prices agreed
on between them ; that all things were done and happened and existed,
m ?7. V ' i ^ C' <^tr^^i
A^-t
GKEAT NORTHERN RAILWAY COMPANY V. WITHAM. 307
and times had elapsed, to entitle the plaintiffs to a performance by
the defendant of his agreement and to maintam the action for the
breach by him of the same as thereinafter alleged ; yet that the defend-
ant did not nor would supply and sell and deliver to the plaintiffs
at Doncaster station or elsewhere divers quantities of the said de-
scriptions of iron, which the plaintiffs required and ordered of him
during the said period, whereby the plaintiffs were obliged to procure
quantities of iron from other persons at higher prices than those to be
paid by them as aforesaid, and were otherwise injured.
Second count, that it was agreed by and between the plaintiffs and
the defendant that the defendant should supply and sell and deliver
to the plaintiffs at Doncaster station, and that the plaintiffs should
buy and accept of him, any quantity they might order of him for half
the requirements of the plaintiffs during the said period ending on
the olst of October, 1872, of certain descriptions of iron, at certain
prices agreed on between them ; that all things were done, &c., yet
the defendant did not nor would supply and sell and deliver to the
plaintiffs, as agreed on as aforesaid, divers quantities of the said de-
scriptions of iron, which the plaintiffs ordered of him for haK the re-
quirements of the plaintiffs durmg the said period endmg the 31st of
October, 1872, whereby the plaintiffs were obliged to procure quantities
of iron from other persons at higher prices than those to be paid as
aforesaid, and were otherwise injured. Claim, 2000?.
Pleas : 1 . That it was not agreed by and between the plaintiffs
and the defendant, as alleged ; 2. That the plaintiffs did not require
or order iron as in the declaration alleged.
There was also a demurrer to each count of the declaration, on the
ground that it disclosed no consideration for the defendant's promise
to supply the iron therein mentioned. Issue, and joinder in demurrer.
The cause was tried before Brett, J., at the sittings at Westminster
after the last term. The facts were as follows : — In October, 1871,
the plaintiffs advertised for tenders for the supply of goods (amongst
other things iron) to be delivered at their station at Doncaster, accord-
ing to a certain specification. The defendant sent in a tender, as
follows : —
" I, the imdersigned, hereby undertake to supply the Great Northern
Railway Company, for twelve months from the 1st of November, 1871,
to 31st of October, 1872, with such quantities of each or any of the
several articles named m the attached specification as the company's
store- keeper may order from time to time, at the price set opposite
each article respectively, and agree to abide by the conditions stated
on the other side.
(Signed) « Samuel Witham."
l^-'t-vX^,
S98 GREAT NORTHERN RAILWAY COMPANY V. WITHAM.
The company's officer wrote in reply, as follows : —
" Mr. S. Witham.
" Sir, — I am instructed to inform you that my directors have ac-
cepted your tender, dated, &c., to supply this company at Doncaster
station any quantity they may order durmg the period endmg 31st of
October, 1872, of the descriptions of u'on mentioned on the inclosed
list, at the prices specified therein. The terms of the contract must
be strictly adhered to. Requesting an acknowledgment of the receipt
of this letter,
(Signed) "S. Fitch, Assistant Secretary."
To this the defendant replied, — « I beg to own receipt of your favor
of 20th instant, acceptmg my tender for bars, for which I am obliged.
Tour specifications shall receive my best attention. S. Witham."
Several orders for iron were given by the company, which were
from time to time duly executed by the defendant ; but ultimately the
defendant refused to supply any more, whereupon this action was
brought.
A verdict having been found for the plaintiffs,
Nov. 5. Bighy Seymour, Q.C., moved to enter a nonsuit, on the
ground that the contract was void for want of mutuality. He con-
tended that, as the company did not bmd themselves to take any iron
whatever from the defendant, his promise to supply them with iron
was a promise without consideration. He cited Lees v. Whitcomb
{a) ; Burton v. Great Northern Railway Co. (b) ; Sykes v. Dixon (c) /
and Bealey v. Stuart {d).
Cur. adv. mdt.
Nov. 6. Keating, J. In this case Mr. Digby Seymour moved to
enter a nonsuit. The circumstances were these : — The Great Northern
Railway Company advertised for tenders for the supply of stores.
The defendant made a tender in these words, — " I hereby midertake
to supply the Great Northern Railway Company, for twelve months,
from &c. to &c., with such quantities of each or any of the several
articles named in the attached specifications as the company's store-
keeper may order from time to time, at the price set opposite each
article respectively," &c. Some orders were given by the company,
which were duly executed. But the order now in question was not
exocnted ; the defendant seeking to excuse himself from the performance
of his agreement, because it was unilateral, the company not being bound
to give the order. The ground upon which it was put by Mr. Seymour
was, that there was no consideration for the defendant's promise to sup-
ply the goods ; in other words, that, inasmuch as there was no obligation
on the company to give an order, there was no consideration moving
(a) 5 Bing. -34. (h) 9 Ex. 007; 23 L. J. (Ex.) 184.
(c) 9 Ad. & E. 093. (il) 7 H. & N. 753; 31 L. J. (Ex.) 281.
GREAT NORTHERN RAILWAY COMPANY V. WITH AM. 399
from the company, and therefore no obhgation on the defendant to sup-
ply the goods. The case mainly relied on in support of that contention
was Burton v. Great Northern Railway Co. (a). But that is not an
authority in the defendant's favor. It was the converse case. The
Court there held that no action would lie against the company for not
giving an order. If before the order was given the defendant had
gi\en notice to the company that he would not perform the agree-
ment, it might be that he would have been justified m so doing. But
here the company had given the order, and had consequently done
somethmg which amounted to a consideration for the defendant's
promise. I see no ground for doubtmg that the verdict for the plaint-
iffs ought to stand.
Brett, J. The company advertised for tenders for the supply of
stores, such as they might think fit to order, for one year. The defend-
ant made a tender offering to supply them for that period at certain
fixed prices ; and the company accepted his tender. If there were no
other objection, the contract between the parties would be foimd in
the tender and the letter accepting it. This action is brought for the
defendant's refusal to deliver goods ordered by the company ; and the
objection to the plaintiffs' right to recover is, that the contract is
unilateral. I do not, however, understand what objection that is to a
contract. Many contracts are obnoxious to the same complaint. If I
say to another, " If you will go to York, I will give you lOOZ.," that
is in a certain sense a unilateral contract. He has not promised to go
to York. But, if he goes, it cannot be doubted that he will be entitled
to the 100^. His going to York at my request is a sufficient consider-
ation for my promise. So, if one says to another, " If you will give
me an order for iron, or other goods, I will supply it at a given price ; "
if the order is given, there is a complete contract which the seller is
bound to perform. There is in such a case ample consideration for
the promise. So, here, the company having given the defendant an
order at his request, his acceptance of the order would bind them. If
any authority could have been fomid to sustain Mr. Seymoui-'s con-
tention, I should have considered that a rule ought to be granted.
But none had been cited. Burton v. Great Northern Railway Co. {a)
is not at all to the purpose. This is matter of every day's practice ;
and I think it would be wrong to countenance the notion that a man
who tenders for the supply of goods ui this way is not bound to de-
liver them when an order is given, I agree that this judgment does
not decide the question whether the defendant might have absolved
himself from the further performance of the contract by giving notice.
Grove, J. I am of the same opmion, and have nothmg to add.
Ride refused.
(a) 9 Ex. 507; 23 L. J. (Ex.) 184.
4OO. FISHER !", RICHARDSOX. BIDWELL V. CATTON.
Section IV.— Compromise and Forbearance.*
r
FISHER V. RICHAilLHSON, Executor, & HILL.
i.N THE King's Bench, Michaelmas Term, 1608.
{Reported in Crake's James, 47.]
Assumpsit. For that the Testator being indebted unto him by
single contract, the Defendant being Executor, and having assets in his
hands to satisfie all debts and legacies, assumed, that if he forbear to
sue him until such a time, he would pay ; and alledgeth in facto, that
he forbear and had assets, &c. and hereupon the Defendant demurred.
a^a^O-vv^ j^ef7/ey argued for the Plaintiff ; that masmuch as the testator was
chargeable at the common law in an Assumpsit, (as hath been ad-
judged) the duty remams, although he be dead. And although no
action of debt lies against the executor, because the testutor might
have waged his law ; yet an action upon the case lies, with an aver-
ment of Assets to satisfie, as the case is betwixt Norr and Read ; and
if in this case, debt be brought agamst the executor, if he pleads JSTon
debet, he shall be charged ; therefore the staying of the suit is suffi-
cient consideration to ground this action. And here he might have
been sued in Chancery, the staying whereof is good cause of Assump-
sit : Wherefore, &c. And of this opinion was the whole Court, with
out argument. Wherefore it was adjudged for the Plaintiff.
BID WELL V. CATTON.
Hilary Term, 1618/
[Reported in Hobartj 216,]
BiDWELL, an attorney brought an action of the case against Catton
Executor of Reve, and counted that, whereas he had in Michaelmas
Term, 14 Jao. prosecuted an attachment of privilege against Reve the
Testator, returnable in Hil. Term, the Testator knowing of it, in con-
sideration that, at his request, the plaintiff would forbear to prosecute
the said writ any further against the said testator, the testator did
promise to pay him £50. And then avers, &c. And after a verdict
it was excepted in arrest of judgment :
First, that it was not alleged that the plaintiff had any just cause
of action.
Secondly, that this action still remains. . ^
* Cb. Ill, Sect. IV, Fincb. u\
^Jykn-'T^' ■^^.^fr^'-. ^t^JmJ^
'LOYD ¥, LEE. JONfiS V. ASHBURNHAM. 401. ^^^^^ f^ Jj
But the Court nevertheless gave judgment : For first, suits are not / '^ ^"^ * ^^r^
presumed causeless, and the promise argues cause, in that he desired Lj/^^^,,^ /J^e
to stay off the suit. Quaere, if the Defendant had averred that there y
was no cause of suit. 'hi^^^ ♦''»- z'*^*'**/
Secondly, though this did not require a discharge of the action, yet it -y • l Jpr
requires a loss of the writ, and a delay of the suit, which was both ^ ^^^^ Q I
benefit to the one, and loss to tne other. . . L-yirri.^^*^**-^
LOYD y. LEE.
Befoee Pratt, C. J. at Nisi Prius, 1718.
\Reported. in 1 Strange, 94.]
A married woman gives a promissory note as a feme sole ; and after
her husband's death, in consideration of forbearance, promises to pay
it. And now in an action against her, it was insisted that, though,
she being under coverture at the time of giving the note, it was void-
able for that reason, yet by her subsequent promise, when she was of
ability to make a promise, she had made herself liable, and the for-
bearance was a new consideration. But the C. J. held the contrary,
and that the note was not barely voidable, but absolutely void ; and
forbearance, where originally there is no cause of action, is no con-
sideration to raise an assumpsit. But he said it might be otherwise
where the contract was but voidable. And so the iplaintiff was
called.
<*'<-fc-w«<-^-
JONES V. ASHBURNHAJH AND NANCY HIS WIFE.
In the King's Bench, January 31, 1804,
[Reported in 4 E«si, 455-]
The Plaintiff declared that whereas one S. F. Bancroft, since de-
ceased, at the time of his death was indebted to him in 58/. for goods
before that time sold and delivered to the deceased, whereof the de-
fendant Nancy had notice, and thereupon, after the death of Bancroft,
the defendant Nancy, before her intermarriage with the other defend-
ant Ashburnham, in consideration of the premises, and also in consid-
eration that the plamtiff, at the special instance and request of the
defendant Nancy, would forbear and give day of payment of the said
58?. as aftermentioned, she the said Nancy, by a note in writmg
signed by her according to the form of the statute, &c. on the 20th of
March 1801, undertook and promised the plaintiff to discharge the
Vol. 1,-26. .. ^jy^ ,.
J ^^w^ ' ^/ ^
^,P^
t--^
tr (h-'tiL
d^-^^i-'
402 JONES V. ASHBURNHAM.
said debt so due and owing to liim in a reasonable time, and to send
him 20^. in part payment in tlie July following : and although the
same July is long smce passed, durmg which the said Nancy continued
sole, and a reasonable time elapsed for the payment of the whole 58/., ac-
cording to the tenor and effect of the said promise, and though the
plaintiff has always from the time of making the said promise hitherto
forborne and given day of payment of the said debt, whereof the defend-
ant Nancy before her intermarriage, and both the defendants smce their
mtermarriage, have had due notice, yet the defendants have resj)ective-
ly, &c. refused to pay, &c. There were other comits in substance the
same; one allegmg the forbearance to be till July, &c. To all
which there was a demurrer, assignmg for special causes ; that it is
not alleged in the declaration from whom the said sum of 58/. therein
mentioned was due and owing to the plamtift" at the time when the
defendant Nancy is supposed to have made the jjromise and under-
taking mentioned, or that any persons or person were or was then
liable to pay the plaintiff that sum ; and that it is not alleged to
whom the plaintiff hath forborne and given day of payment of the
said 58/.; and that the declaration does not disclose any legal and suf-
ficient consideration for the supposed promise ; nor does it thereby
appear that the plaintiff has any good cause of action agamst the
defendants, &c.
Marry at m support of the demurrer. This is a promise made by a
stranger to the original contract or consideration for the supposed
forbearance. But a promise to forbear generally is not a sufficient
foundation for an assumpsit without showmg a person who was lia-
ble to pay the debt. If the promise had been laid barely for forbear-
ing to sue the defendant, it not appearing that she was before liable
for any debt to the plaintiff', the action could not have been sus-
tained : then it cannot aid the plaint that a debt is stated to be due
to the plaintiff, -without stating any person from whom he could have
enforced payment. It is not enough that there may be some person
liable to him in rerum natura, who is unknown. All the cases upon
the subject are collected in 1 Com. Dig. 160, Action upon the Case
upon Assumpsit, F. 8, which show that no action can be maintained
upon an assumpsit in consideration of forbearance where the party
was not chargeable ; as in the case of an heir who has no assets.
This case is not (listinguishaV)le in jn-inciple from those. To sustain
such an action the plaintiff' must show that he was in a situation to
forbear some person whom he might have sued, whom it would have
been beneficial to him to have sued, and conseciuently, whom it was
detrimental to him to forbear suing. Here it is not sliown that any
person was liable to the plaintiff at the time of the promise made ; for
the original debtor was dead, and no representation was taken out,
JONES V. ASHBURNHAM. 403
nor, for aught appears, any assets, nor any suit surceased in conse-
quence of the promise which the plaintiff could have supported. In
jSmith V. Jones (a), the plamtiff declared that his father bequeathed
him a legacy of 'l. and made C. his executrix, and died, and that the
defendant intermarried with C. ; and that in consideration that assets
of the plamtiff's father came hato the hands of the defendant, and m
consideration that the plaintiff would forbear (b) the 11. till All Saints
f ollowmg, the defendant promised to pay it at that time : and then
the plaintiff showed that he had forborne, &c. till the day, yet the de-
fendant had not paid him. The plaintiff pleaded that C., the execu-
trix of the father, died mtestate at such a place before the promise
made : upon which the plamtiff demurred ; and the judgment was
given against him : for by the death of the executrix before the prom-
ise, it appeared that there was not any consideration sufficient to
charge the defendant, who was not chargeable with the legacy after
the death of his wife, the executrix. The report states further, that
the declaration was also holden ill, " because it did not show precisely
what person the plaintiff was to forbear to sue for the 71. ; for it could
not be intended that he should forbear the defendant, who it appeared
by law was not chargeable with it." So m liosyer v. Langdale (c),
the plaintiff declared against a feme adnmiistratrix, that she, in con-
sideration that he would forbear suit until she had taken out letters
of administration, promised to pay him a certain sum owmg to him
by her intestate. And after verdict and judgment, error was brought ;
for that the plaintiff had set forth no consideration for the assump-
sit ; for till admmistration taken out by the defendant she was not
liable to be sued, except there were a cause depending, which there
was not. And this was holden to be a good exception. The subse-
quent case indeed, of Hume v. Hinton {d), may seem to contradict
that, where it was holden that a general forbearance of the debt was
in effect a forbearance to sue all the world, and was sufiB.cient to up-
hold an assumpsit, without showing that any particular person was
liable to pay : but that, it is to be observed, was after verdict, when it
might be presumed that some person was shown to be liable. And
further, it is said to have been decided upon the authority of a case
of JTill V. Bailey., overruling that of Smith v. Jones. But in Sill v.
Bailey, which is reported in 1 Rol. Abr. 22 (e), there was an aver-
ment that the goods of the plaintiff's debtor came legitimo modo after
his death to the defendant, who, in consideration that the plaintiff
would forbear his debt, promised to pay it. There was, therefore, a
good consideration for the promise to forbear generally. And in Eey-
(a) Yelv. 184.
(6) i. e. forbear to sue the defendant for the 11. according to the report of the s. c
in Cro. Jac 257. (c) Sty. 248, and vide Hayward v. Ducket, ib. 40-5.
(d) Sty. 304, (e) And vide 1 Danv. Abr. 50.
404 JONES V. ASHBURNHAM.
nolds V. Prosser («), Hardres, in argument, cites the same case of
JIume V. Hinton (under the name of Hummers v. JIunton), as having
been adjudged to be no consideration to sustain the promise, There
is another case which may be cited for the plaintiff, of Quick v. Co-
pleton (b), where the defendant's late husband being indebted to the
plaintiff, and the defendant about to come to London, and in fear of
being arrested by the plaintiff, she promised to pay him in considera-
tion that he would not trouble her, and would forbear till Michael,
mas. And after verdict it was moved in arrest of judgment, that she
not being shown to be executrix or administratrix, her forbearance
was not any consideration ; which was agreed by the Court : but they
held that the subsequent words, forbear till Michaelmas, were gener-
al, not only to forbear her but all others, and made a good considera-
tion. But the opinion afterwards deUvered by Hyde, C. J., very much
shakes the authority of this case ; for he says that a forbearance to
sue one who fears to be sued is a good consideration ; which certainly
cannot be maintained ; and he cited a case in C. B. when he sat there,
where a woman, who feared that the dead body of her son would be
arrested for debt, was holden liable upon a promise to pay in consid-
eration of forbearance, though she was neither executrix nor adminis-
tratrix. But of this the other Judges are said to have doubted.
[Lord Ellenborough, C. J. It is impossible to contend that this
last forbearance could be a good consideration for an assumpsit ; for to
seize a dead body upon any such pretence would be contra bonos
mores, and an extortion upon the relatives.] The weight then of the
authorities is with the defendant, as the principle clearly is with him.
For as where the forbearance is stated to be of the defendant him-
self, the plaintiff must show that he was before liable to be sued ; so
when the forbearance is general, of all the world, it is equally reason-
able that the plaintiff should show some one person who was lial)le
to him : for the forbearance of a groundless suit has been holden to be
no consideration for an assumpsit ; as in Tooley v. Windham (c), and
Loyd V. Lee (d). Here the defendant is not shown to be executrix or
administratrix, or to have assets ; and a promise even by an executor,
as such, is a mere nudum pacUcm without assets at the time (e).
Jervis, contra. The consideration of general forbearance, as here
laid, is sufficient to maintain the assumpsit. To sustain a promise the
consideration must either be beneficial to the defendant or detrimental
to the plaintiff. In Pillans v. Van Mierop (/), Yates, J. says, "Any
damage to another, or suspension or forbearance of his right, is a
foundation for an undertaking, and will make it binding, though no
actual benefit accrue to the party undertaking : " he adds, that there
(a) Hanlr. 73. {h) 1 Lev. 161. 1 Sid. 242. 1 Keb. 866. (c) Cro. Eliz. 206.
(d) 1 Stra. 94. (e) Rann v. Uuyhes, 7 Term Kep. 350.n. a. (/) 3 Burr. 1673.
JONES V. ASHBURNHAM. 405
« the promise and undertaking of the defendants did occasion a possi-
bility of loss to the plaintiffs." It is a part of the definition that there
must be a right in the plamtiff ; which furnishes an answer to the
cases of Toolei/ v. Windham (a) , and Zoyd v. Zee (b), where no such
right appeared. Now here the plamtiff shows a debt due, and a right
to recover, though not against any person named : but it is enough
that he shows a possibility of loss by the forbearance. [Lord Ellex-
BOKOUGH, C. J. It is not entitled to the name of forbearance unless
you show something or somebody to be forborne. If there be a right
which can be enforced against any body, no doubt that a promise to
forbear is a good consideration : but if there be no person liable, how
is it entitled to the name or quality of forbearance ?] The cases show
that it is sufficient if there be a right in the plaintiff, which is forborne,
though not shown to be capable of being enforced at the time against
any particular person ; as in Quick v. Copleton (c), where the consider-
ation relied on by the Court was not the fear of being sued, but the
general forbearance, "to forbear till Michaelmas." And yet it was not
averred there that either the defendant or any other person was execu-
trix, &c. of the deceased debtor ; and consequently no person appeared
to be Uable to the plaintiff at the time. So in the case of Hill v. Bailey
in 1 Rol. Abr. 22, the consideration relied on was not that the goods
of the deceased debtor came to the defendant's hands legitimo modo,
for then there was no occasion to lay any forbearance ; but the judg-
ment turned on the suflaciency of the general forbearance to sue, to
sustam the assumpsit. [Lawrence, J. The promise to forbear goes
farther than the lawful possession of assets ; for it makes the defendant
liable to judgment de bonis propriis, and not merely as far as the assets
go.] Then the case of Hume v. Hinton (d) is m point (which is mere-
ly misquoted by Hardres (e) m argument), and that was subsequent
to Smith V. Jones (/), which, it appears from all the reports of it
taken together, was a promise, not for forbearance generally, but to
forbear the defendant ; which reconciles the authorities : and the same
answer will apply to Rosyer v. LangdaU {g), which was a promise in
consideration that the plaintiff would forbear suit until the defendant
had taken out administration ; which was taken to mean a forbearance
to sue the defendant. But where a person is sued as executor, which
was the case in Bann v. Hughes (h), his liability on a promise to pay
can only be coextensive with his origmal liability in respect of assets.
31arryat, in reply, was stopped by the Court.
Lord Elle^orough, C. J. The way in which I am disposed to con-
sider this case will break ui upon no recognized rule of law, nor on
the plaui sense of what was laid down by Mr. Justice Yates, m the
(rt) Cro. Eliz. 206. (6) 1 Stra. 94. (c) 1 Lev. 161. 1 Sid. 242 1 Keb. 866.
id) Sty. .304. (e) Hardr. r.^. {/) Yelv. 184. Cro. Jac. 2o7. Owen, 133.
(g) Sty. 248. (li) 1 Term Rep. 350, n.
406 JONES V. ASHBURNHAM.
case of Pillans v. Vcm Mierop. It is known rule of law, that to
make a promise obligatory there must be some benefit to the party
making it, or some detriment to the party to whom it is made ; other-
wise it is considered as nudum pactum and cannot be enforced. I do
not say that the opinion which I have formed will not break in on any of
the cases which have been cited, but it entrenches on no general rule ; and
in order to show that, I will examme the rule referred to as laid down
by Mr. Justice Yates, and see how it applies to the present case. He
says that " any damage to another, or suspension or forbearance of his
right, is a foundation for an undertakmg," &c. Now how does the
plaintiff show any damage to himself by forbearing to sue, when there
was no fund which could be the object of suit : where it does not ap-
pear that any person in rerum natura was liable to be sued by him ?
No right can exist in this vague, abstract, and indefinite way. Eight
is a correlative term : there must be some object of right ; some object
of suit ; some party who, in respect of some fund or some character
known in the law, is liable ; otherwise there cannot be said to be any
right. Has there been then any suspension of the plaintiff's right ?
Now unless a right is capable of being exercised, unless it can be put
in force, there can be no suspension of it. And that it could have
been exercised or put in force, but for the promise made by the de-
fendant, is not shown. Then what forbearance is shown ? It must
be a forbearance of a right which may be enforced with effect. It is
true that a promise may be binding though there may be no actual
benefit resulting to the party making it, because it is enough if the
plaintiff may be damaged by it ; but it does not appear here that the
forbearance could produce any detriment to the plaintiff. It does not
therefore appear that Mr. Justice Yates laid down any doctrine which
does not square with the general received rule of law, that to sustain
a promise there must be a benefit on the one hand or a detriment on
the other. But here, whether there were any representative or any
funds of the original debtor does not appear. Then as to the cases
cited, that of Bosyer v. Langdale is strong to the purpose ; for it was
there decided that a promise in consideration that the plaintiff would
forbear suit until the defendant had taken out letters of administra-
tion was without foundation, because it did not appear that the party
was liable before administration taken out. And this was rightly de-
termined ; for forbearance of an unfounded suit is no forbearance. But
this case is attempted to be met by that of Hume v. Jlbiton, in the same
book, where a promise by the mother of an intestate indebted to the
plaintiff, that if he would stay for the money till a given day she
would pay it, was sustained. That, however, was after verdict ; and
that is material to be attended to, because it might be presumed to
have been proved that the defendant had so intermeddled with the
JONES V. ASHBURNHAM. 407
intestate's effects as to make herself liable as executrix de son tort,
and had funds of the deceased in her hands for which, but for the
promise made, she might have been sued m that character. But no
such intendment can be made here. The case of Quick v. Copleton is
also relied on. That too was after verdict ; and it was moved in arrest
of judgment, for want of consideration. I think that even after
verdict, that declaration would be bad, being vicious on the face of it.
It is stated that the defendant's late husband was indebted to the
plaintiff, and that she (not stating her to be clothed with any repre-
sentative character) about to come to London, and being in fear to be
arrested by the plauitiff, promised, &c. Xow an attempt to impose
upon a person an unlawful terror (and the threatenmg of an unlaw-
ful suit is as bad) can never be a good consideration for a promise to
pay : yet that ground is insisted on by the Chief Justice. And as to the
case there cited by him, of a mother who promised to pay, on forbear-
ance of the plaintiff to arrest the dead body of her son, which she feared
he was about to do ; it is contrary to every principle of law and moral
feelmg. Such an act is revoltmg to humanity and illegal ; and there-
fore any promise extorted by the fear of it could never be vahd in
law. It might as well be said that a promise, m consideration that
one would withdraw a pistol from another's breast, could be enforced
agamst the party acting imder such unlawful terror. Here, there being
no consideration of benefit to the defendant, or of detriment or possi-
bility of detriment to the plaintiff, shown by him on the face of the
declaration, and this commg on upon demurrer where nothing can be
intended, as it may after verdict, I am clearly of opinion that the
declaration is bad.
Grose, J. It must be admitted, that if a consideration for the prom-
ise do not sufficiently appear upon the face of the declaration, it can-
not be supported. There is a great difference between questions of
this sort, arismg upon demurrer to the declaration, and m arrest of
judgment after verdict ; in which latter case everything is to be in-
tended which can be m favor of the verdict : but not so on demurrer.
It is however said, that a detriment to the plauitiff will support an
assumpsit as weU as a benefit to the defendant, and that here
the plamtiff alleges a forbearance. But it is a perversion of terms to
call that a forbearance to sue if there were no person who was capable
of being sued ; and here none is shown. There can be no forbearance
in such a case ; and therefore there is an end of the consideration. This
is too plam to require any thing further to be said upon it, and. makes
it unnecessary, after what my Lord has said, to enter mto the consid-
eration of the cases.
Lawrence, J. This question arises upon a special demurrer, which
points out an objection to the declaration, that no person is stated who
408 JONES V. ASHliailXHAM.
was liable to be sued at the time of the promise made, in respect to
whom the plaintiff can be said to have forborne suit. And on this
ground the case is distinguishable from those relied on by the plaintiff's
counsel, which were after verdict ; and in support of which it might
be said that when the jury found that the plaintiff did forbear to sue,
they must be presumed to have found, upon proof laid before them,
that there was somebody who could have been sued. But no such in-
tendment can be made upon demurrer. The argument proceeds upon
a fallacy, in supposing that some person must exist liable to the plaint-
iff's suit, to forbear whom must consequently be a disadvantage to
him, and a consideration for the defendant's promise. But that is not
so. The deceased might leave no assets, and there might be no ad-
ministration to him taken out: there would then be no person to sue.
So he might be a bastard and have no legal representatives entitled to
take out admmistration of his effects, in which case the Crown would be
entitled to them ; and still there would be nobody to be sued. It is
not therefore true that there must be somebody liable to whom a for-
bearance to sue may refer. And I agree with the argument of the
defendant's counsel that if it be no consideration for the promise to for-
bear to sue the defendant without showing that the defendant was
before liable to have been sued, it can be no consideration for a promise
to forbear to sue all the world generally, without showing that some
person or other was liable to be sued : for without that, the plaintiff
does not show any detriment arising to him from the forbearance of
his suit. The prmciple is admitted that the plaintiff must show some
benefit to the defendant or some detriment to himself. And I under-
stand Mr. Justice Yates, in illustratmg that principle in the passage
cited, to say that where it appears on the face of the declaration that
there is somebody whom the plamtift' may sue, it is not necessary to
show that he would be benefited by suing him ; it is sufficient that
there is some person whom he might sue and from whom he might
obtain satisfaction.
Le Blanc, J. The definition by Mr. Justice Yates of a consideration
sufficient to maintain a promise is, that it be either of some benefit to
the defendant or some detriment to the plaintiff. It is sufficient, if it
be a detriment to the plaintiff", though no actual benefit accrue to the
party undertaking. So far only the definition goes. Afterwards, in-
deed, in commenting on that definition, he says that the promise of
the defendant did occasion a possibility of loss to the plaintiff's. They
might, he says, have been thereby prevented from resorting to the
original debtor, or getting further security from him. But all this
latter part is only a comment on the definition, and showing how the
case then in judgment applied to it. But I do not take it to be any
part of the definition itself intended to l.)e laid down l)y him, that if
ATTWOOD V. . 409
any person stated that he had forborne sninsr on a cause of action
which might (or might not) by possibiUty occasion a loss to hun, that
was sufficient ground for an undertaking by another to pay him. Now
here the plaintiff endeavors to make out a detriment to himself by
showing that one deceased was indebted to him, and that in consider-
ation that he would forbear and give day of payment the defendant
promised, &c. But it does not follow of course from thence that any
detriment arose to the plaintiff from his forbearance, if it do not appear
that there was any person whom he could have sued. And the general
current of authorities shows that it is not sufficient to state a consider-
ation to forbear generally, unless it be also shown that there was some
person to be forborne. Now here the declaration does not state that
there was any representative of the debtor, or that any person had
taken out administration to him, or that any person was going to ad-
minister to the effects and to satisfy the j)laintiff's debt, but was pre-
vented from so doing by the undertaking of the defendant. There,
therefore, appears to be a want of consideration to sustam the promise.
Judgment for the Defendant.
ATTWOOD y.
In Chancery, March 6, 7, 8, 13, 1826.
IB.e'iiorted in 1 Bussell, 353.]
Mrs. Shackle, as the executrix of her husband, John Baptist Shackle^
was entitled to a sum of about 1800^., due from one Norton, which
was secured by promissory notes, and a bond, as well as by the de-
posit of the lease of a brewery and other property. In July, 1822, ap-
plication was made to Norton to pay the debt ; it was not convenient
for him to do so ; but he stated, both to Mrs. Shackle and to W., her
solicitor, that he had agreed to sell some leasehold property in Ux-
bridge, called the Kmg's Arms Inn, and that, when the sale was com-
pleted, her demand, or a part of it, would be paid out of the purchase-
money. These latter premises were subject to a prior equitable charge
of 1000?., due to W., as the executor of Martha Hill ; and the title-deeds
were at that time in W.'s possession. W. had been the solicitor of
Mrs. Shackle's husband, and was employed by her in the same capa-
city ; and the securities for the debt owmg to her by Norton were in
his hands. In this state of things, Mrs. Shackle, m July, 1822, pro.
cured from Norton a written order, in the following words :
" Sir: I have agreed to settle Mrs. Shackle's account by the sale of
the King's Arms, so that you will receive, upon settlement, the whole
410 ATTWOOD V.
of the amount, 2500?. : 1000/. for yourself, and 1500/. for Mrs. Shackle;
the remainder to be paid in cash to Mrs. Shackle.
"Daniell Scott Norton.
"July 12th, 1822.
"Any thing you may wish me to sign for the purpose, I shall be
happy to do. "
This order was not addressed to any person, but was left at W.'s
office, by a son-in-law of Mrs. Shackle.
In February following, Norton paid W. the 1000/. due to Mrs. Hill's
estate ; and on that occasion, W., notwithstandmg the purport of the
note transmitted to him in July, 1822, proceeded, without authority
from, or communication with, Mrs. Shackle, to deliver to Norton the
title-deeds of the property of which Mrs. Hill had been the mortgagee.
Norton then completed the sale of the King's Arms Inn ; received the
purchase- money ; did not pay any part of it to Mrs. Shackle ; and, in
March, 1823, became bankrupt. The premises thus sold had yielded
about 1500/. beyond the 1000/. paid in discharge of Mrs. Hill's equi-
table mortgage.
A few days after W. had parted with the deeds, Mrs. Shackle, con-
ceivmg that he was not attending properly to her interests, removed
her securities from the custody of W. ; and, discovering what had hap-
pened, employed another solicitor. Under his advice, she unmediately
insisted that W. had been guilty of negligence in delivermg the deeds
of the King's Arms Inn to Norton, when he had an order which gave
him a right to retain them till her demand was satisfied, and made it
his duty not to part with them till he had received 1500/. on her ac-
count. Her demand he knew to be still unpaid, and he was bomid,
as her then solicitor, to protect her interest to the utmost ; and she
contended, therefore, that he was answerable to her for 1500/,, being
that portion of the purchase-money which the possession of the title-
deeds would have enabled her to receive. A correspondence and ne-
gotiation on the subject took place ; W. consulted with counsel, who
advised him that he was liable ; and, towards the end of March, the
terms of a compromise were agreed upon. These terms were, that W.
should pay to Mrs. Shackle 148U/. on the 10th of April, and that she
should assign to him her demand against Nx)rton's estate, together
with the securities which she held for it. Accordingly both parties
signed an agreement to that effect ; the securities were handed over to
W. , and he and Mrs. Shackle went to Guildhall m order to prove the
debt against Norton's estate, but were prevented from making the
proof by an accidental circumstance.
W., hnving gotten the agreement into his possession, refused to abide
by it. Mrs. Shackle died; and the bill was filed by her personal rep-
ATTWOOD V.
411
resentatives, in order to have the agreement delivered up to them, and
performed specifically.
Mr. Home, and Mr. Mawlins, for the Plaintiff.
Mr. Heald, Mr. Sugden, and Mr. Roiqjell^ for the Defendant.
The Defendant resisted the relief on various grounds. He alleged
that the agreement had been obtained from him by misrepresentation
on the part of Mrs. Shackle and her professional adviser; that she, by
her communications with Xorton, had waived any lien which she
might other^vise have had on the title-deeds in W.'s custody, and,
through them, on the produce of the premises when sold ; or at all
events, that she, by certain subsequent dealings, had restricted her
lien to a sum of 800i. ; and therefore that his liability could not exceed
that amount.
These pomts depended entirely on the details of the evidence in the
cause. Upon that evidence the Master of the Kolls was of opinion that
there had been no misrepresentation on the part of Mrs. Shackle ; and
that the dealings, which were relied upon as being a waiver of her
claim, or as restrictmg its amoimt, having taken place before she was
apprised of what W. had done, could in no way affect his liability or
her right agamst him.
Another ground of defence was, that the agreement was entered
into without a sufficient consideration, and under a mistake of W. as
to his legal liabilities.
The deeds, it was said, were in W.'s hands, as executor of Mrs. Hill ;
he did not hold them as a trustee for Mrs. Shackle ; he was an equi-
table mortgagee, who, the moment his own demand was satisfied, could,
without any breach of duty, deliver up the deeds to his mortgao-or.
The note from Norton imposed on him no duty or liability ; that note
was not addi-essed to any person by name ; and it would be extrava-
gant to hold, that the mere cu-cmnstance of leaving such a scrap of
paper at his office, could force upon him the most grave responsibili.
ties towards a third j)erson. What though that thii'd person happened
to be one of his clients ? It is not part of the duty of a solicitor to be-
come an equitable mortgagee, in order the better to enable a client to
obtain payment of his debt. In truth, that note gave no power, cre-
ated no obligation, imposed no trust. It was a mere promise on the
part of Norton ; an intimation of how he meant to apply the purchase-
money of the premises.
The Plaintiff ought to prove that Mrs. Shackle had a lien on the
property in question, and that W. was bound to make that lien effec-
tual by retaining the title-deeds. They have proved neither the one
point nor the other ; and they cannot succeed, unless they prove both.
Even, therefore, if there has been no misrepresentation, it is plain
that W. entered into this agreement under mistake, believing himself
412 ATT WOOD V. .
to be liable to a demand, which was in truth altogether without sub-
If there was no liability anterior to the agreement, then the agree-
ment was without consideration. It is true, that it is in form a mere
contract for the purchase at a given price of the debt due from Norton
to Mrs. Shackle, and of the securities for it which she held. But that
was not the real nature of the transaction. The case which the Plamt-
iffs make is, that the agreement for that pretended purchase was en-
tered into as a compromise of the liability which AY. had incurred. If
they do not make out the reality of that liability, which was the sole
consideration for Ms undertaking to pay a large sum of money, the
agreement is without consideration ; and, viewed in either light, as
ntade without consideration, or as entered mto under mistake, it is an
agreement which a Court of Equity wUl not lend its aid to enforce.
The Master of the Rolls.
The Defendant insists that the order delivered to him in July, 1822,
did not impose on him an obligation not to part with the deeds relat-
ing to the property which was ui pledge to Mrs. Hill, without taking
care that the 1500^., which would remain after Mrs. Hill's demand was
satisfied, was applied in diminution of the debt due to Mrs. Shackle,
and that it did not subject him to any liability in consequence of his
having acted m a different manner. It is not necessary for the Plaint-
iff to make out that pomt. It is sufficient th?iX, aJ>QndJ-ck claim had
been made on W. in consequence of his supposed negligence. He
deliberates, he consults, and finally, he concludes a compromise. He
agrees to put an end to the claim agamst him, by at once paying Mrs.
Shackle a sum of 1480^., and he takes upon himself the chance of re-
covering what he may out of Norton's estate, by means of the se-
curities which Mrs. Shackle held.
It is said that no sufficient consideration passed from Mrs. Shackle
to W. for his entering uito the agreement, of which performance is
now sought to be enforced ; because, in point of law, the order sent by
Norton to W. did not amount, in the hands of the latter, who was the
depositary of the deeds on behalf of Mrs. Hill, to such an authority
for retaining tliem until Mrs. Shackle's debt was paid, as would ren-
der him liable for a breach of duty in giving them up when Mrs. Hill's
claims were satisfied. But I do not think it necessary to decide the
question with respect to the effect of the delivery of the order;
because if the claim were fairly and hand fide made by Mrs. Shackle
against W., on the ground that he had l)een guilty of such negligence
as would entitle her to enforce a demand against him in law or equity ;
and if W., after due consideration, not only admits his liability, but
compromises the claim, and for that purpose enters into an agreement ;
the compromise of such a claim entered into with due deliberation,
ALLIANCE BANK V. BROOM. 413
even if it were doubtful whether the claim was such as could have
been made effectual, is a sufficient consideration, both in law and in
equity, for such an agreement. For that reason I do not inquire,
whether, before the agreement was entered into, Mrs. Shackle had or
had not a valid demand against the present Defendant. It is enough
for me to say, that here was a claim made on grounds sufficiently
disclosed at the time ; that, after due dehberation, W. yielded to the
claim ; and that he finally compromised it, not merely by paying a
sum of money which might be deemed an equivalent for the damages
which Mrs. Shackle contended she might have recovered against hini,
but by way of purchase from her of the very debt which she had a '
right to prove against Norton's estate, and by receiving from her the
securities.
The objection of want of consideration for the agreement, has no
more foundation than the objection which proceeded upon the Defend-
ant's alleged mistake as to his legal liability.
There was no misrepresentation on Mrs. Shackle's part, either as to
the nature or as to the extent of her demand ; W. had ample time and
opportunity to consider duly his liability ; he did do so, acknowledged
his liability, and entered mto this agreement. The grounds of defence
have, therefore, wholly failed, and I am bound to pronounce a decree
for the Plaintiff with costs.
THE ALLIANCE BANK LIMITED «. BROOM.
In Chancery, November 14, 21, 1864.
\IleT^orted in 2 Drewry & Smale, 289.]
This case came on upon a demurrer.
It appeared from the bill that, in June, 1864, the Alhance Bank
opened a loan-account with the defendants, who are merchants at
Liverpool, and that such loan-account was continued down to the 19th
of September, 1864, when there was a balance due from the defendants
to the bank on such loan-account to the amount of £22,205 15s. Id.
On the 19th of September, 1864, the plaintiffs requested the defend-
ants, Messrs. Broom, to give them some security for the amount so
due ; and the defendants, who stated that they were entitled to cer-
tain goods, wrote to the manager of the bank the following letter :—
Liverpool, 19th Sept., 1864.
Deab Sir, — We hand you the following particulars of produce,
which we propose to hypothecate against our loan-account, and at the
same time undertake to pay the proceeds, as we receive them, to the
credit of the said account.
414 ALLIANCE BANK V. BROOM.
The letter then contamed a list of goods and their values, and was
signed by Messrs. Broom.
In pursuance of this letter the plaintiffs, on the 20th of September,
1864, applied to the defendants for the warrants for delivery of the
goods mentioned in the letter, and the defendants promised to dehvei
the warrants to the plamtiffs as soon as they could obtam them from
the warehouses.
The bill stated that the defendants refused to deliver the warrants,
or other documents relatmgto the goods, to the plamtiffs, and threaten-
ed and intended to deliver them to other persons ; and the bill charged
that the plamtiffs were entitled to a lien or charge upon the goods
mentioned m the letter by virtue of the agreement, and prayed for a
declaration to that effect. The bill also prayed that the defendants
might be ordered to deliver to the plamtiffs the warrants and other
documents relating to the title of said goods, and cause the said goods
to be delivered to the plamtiffs, by way of security for the amount
due to them on the loan-account. The bUl also prayed an mjunction
to restram the defendants from dealmg with the warrants or goods in
the mean time.
To this bill the defendants filed a demurrer, on the ground that the
agreement contamed m the letter was without consideration ; and
therefore one which the court would not enforce.
Mr. Daniel and Mr. /. iV. Higgins, for the defendants, in support of the
demurrer, contended that the agreement contained in the letter was
executory ; being also without consideration, the court would not en-
force it. The existence of a debt was no sufficient consideration to
support the agreement. There was a distinction between a motive
and a consideration,— what might be good as a motive might be bad
as a consideration ; and that was so in this case. And therefore the
bill, which sought the specific performance of such an agreement,
could not be sustained. They referred to Eastwood v. Kenyon (a),
Thomas V. Thomas (b), HopUm v. Lofjan (c), Kaye v. Dutton (d).
Smith on Contracts (e), Addison on Contracts (/).
Mr. J3evir, for the plaintiffs, in support of the bill, submitted that
there was a good consideration for the agreement ; namely, forbear-
ance on the part of the plaintiffs from calling in their money. Twyne's
Case {g).
Mr. Daniel, in reply.
The Vice-Chancellor reserved judgment.
The Vice-Chancellor, after stating the facts, said : —
(a) 11 Ad. & El. 450. {h) 2 Q. B. 859. (c) 5 M. & W. 241. {. 5bi7; 2 C. B. 04S.
CALLISHER V. BISCHOFFSHEIM. 417
Pollock^ Q. C. {Joyce with him), contra. Forbearance to prosecute
a groundless action affords no consideration capable of supporting a
promise. It is admitted on the record that no money was due to the
plaintiff from the Honduras Government, and if the declaration and
plea are read together, it is clear that a cause of action does not exist.
All the cases are consistent with this view except Cookw. Wright (a),
and that case is distinguishable. There the question was not whether
a sum of money was due to the plaintiff, but whether it was due from
the defendant or another person ; whereas here the question, before
the contract declared on was made, was whether a sum of money was
due to the plaintiff from the Honduras Government. In Edvmrds v.
Baugh (b) the declaration was held bad because there was not any
allegation that a debt was due, but merely that a dispute existed re-
specting it ; and in Wade v. Simeon (c) it was held that forbearance
to prosecute a groundless claim gave no benefit to the promisor, and
imposed no detrunent on the promisee.
James, Q. C, replied.
CocKBURif, C. J. Our judgment must be for the plaintiff. No
doubt it must be taken that there was, in fact, no claim by the plaint-
iff against the Honduras Government which could be prosecuted by
legal proceedings to a successful issue ; but this does not vitiate the
contract and destroy the validity of what is alleged as the consider-
ation. The authorities clearly establish that if an agreement is made
to compromise a disputed claim, forbearance to sue in respect of that
claim is a good consideration ; and whether proceedings to enforce the
disputed claim have or have not been instituted makes no difference.
If the defendant's contention were adopted, it would result that in no
case of a doubtful claim could a compromise be enforced. Every day
a compromise is effected on the ground that the party making it has
a chance of succeedmg in it, and if he bona tide believes he has a fair
chance of success, he has a reasonable ground for suing, and his for-
bearance to sue will constitute a good consideration. When such a
person forbears to sue he gives up what he believes to be a right of
action, and the other party gets an advantage, and, instead of being
annoyed with an action, he escapes from the vexations incident to it.
The defendant's contention is unsupported by authority.
It would be another matter if a person made a claim which he knew
to be unfounded, and, by a compromise, derived an advantage under
it : in that case his conduct would be fraudulent. If the plea had
alleged that the plaintiff knew he had no real claim agamst the Hon-
duras Government, that would have been an answer to the action.
Blackburn, J. I am of the same opinion. The declaration, as it
stands, in effect states that the plaintiff, having alleged that certain
(a) 3 D. «fe L. 318; 15 L. J. (Q. B.) 4. lb) 11 M. & W. 641. (c)2 C. B. 548.
Vol. 1 27.
sS
418 LEASK V. SCOTT.
moneys were due to him from the Honduras Government, was about
to enforce payment, and the defendant suggested that the plaintiff's
claim, whether good or bad, should stand over. So far, the agreement
was a reasonable one. The plea, however, alleges that at the time of
makmg the agreement no money was due. If we are to infer that the
plaintiff believed that some money was due to him, his claim was hon-
est, and the compromise of that claim would be binding, and would
form a good consideration, although the plaintiff, if he had prosecuted
his original claim, would have been defeated. This case is decided by
Cook V. Wright {a). In that case it appeared from the evidence that
the defendant knew that the origmal claim of the plaintiff was hivalid,
yet he was held liable, as the plaintiff beUeved his claim to be good.
The Court say {h) that « the real consideration depends on the reality
of the claim made, and the bona fides of the compromise." If the
plaintiff's claim against the Honduras Government was not bona fide,
this ought to have been alleged m the plea ; but no such allegation
appears.
Melloe, J. I am of the same opmion. If the plamtiff's claim
against the Honduras Government was fraudulent, the defendant
ought to have alleged it.
Lush, J., concurred.
Judgment for the Plaintiff.
LEASK V. SCOTT BROTHERS.
In the Court of Appeal, May 5, 1877.
[ Reported in Law Reports, 2 Queen's Bench Division, 376.J
Interpleader action to try the right of the plaintiff as against the
defendants to 100 bags of nuts.
At the trial before Field, J., at the London Michaelmas sittings,
1876, the following facts appeared in evidence :— On the 2-2nd of
December, 1875, Geen, Stutchbury, & Co., fruit merchants in Lon-
don, agreed to purchase of the defendants a slupment of nuts from
Naples to London by the Trinidad, » reiml)ursement as usual," which
was V)y acceptance at three months on delivery of the shipping doc-
uments. On Saturday, the 1st of January, 1876, being prompt day,
Geen & Co., l^eing already indebted to the plaintiff, their fruit bro-
ker, in between 10,000?. and 11,000?., Mr. Geen apphed to him for a
further advance of 'lOOOl. The plaintiff said, " You may have it, but
you must first cover up your account." Geen said that he would
give him cover, and the plaintiff's cashier at once handed to Geen a
(a) 1 B. & S. rw9, r,70; 30 L. .1. (Q. B.) 321, 324.
(b) 1 B. & S. at p. 570; 30 L. J. (Q. B.) at p. 324.
LEASK V. SCOTT. 419
check for 2000Z. On Tuesday, the 4th of January, the bill of lading,
dated the 29th of December, 1875, mdorsed by defendants in blank
(the nuts bemg made deliverable to their order ), was handed by
their agent to Geen & Co., and they at once accepted a draft for the
price, 224:1 16s. 2d. ; and on the next day Geen & Co, handed to the
plaintiff the bill of ladmg and other similar documents to the value
of about 5000^. in performance of their promise on the Saturday to
give the plaintiff cover. On Saturday, the 8th of January, Geen &
Co. stopped payment. The Trinidad arrived off Liverpool on the
3rd of February, and the defendants sought to stop the nuts in tran-
situ, the plamtiff claiming them under the bill of lading. The nuts
were landed, warehoused, and sold, the price being held to abide the
result of this interpleader action.
In answer to questions by the judge, the jury found, that the plaint-
iff received the bill of lading honestly and fairly ; that valuable con-
sideration was given on the understanding of security being given ;
and that the security given was to secure the 2000/., and also the old
accomit.
The learned judge, after argument, directed judgment to be entered
for the defendants, being of opinion that the facts of the case brought
it within the principle of Rodger v. Comptoir d^Escompte de Paris (a),
affirmed by the decision of Chartered Bank of India^ &c.y. Henderson (b) .
April 16, 17. Watkin Williams^ Q. C, moved to enter judgment
for the plaintiff. Geen & Co. became the lawful holders of the bill
of lading on its being handed to them by the defendants indorsed in
blank, and on their accepting the defendants' draft at three months
for the price, and the plaintiff became lawful holder on it being handed
to him by Geen & Co. And according to the findings of the jury, the
plaintiff was bona fide transferee for valuable consideration from the
lawful holder of the bill of lading, and was, therefore, legally entitled
to it as against the origmal vendor. This has been the law evei
since the leading case of Lickbarroto v. Mason (c) ; and the distinc-
tion, as to past and present consideration, was first taken in Rodger v.
Comptoir WEscompte de Paris (a), and is not to be fomid in any other
case, in the dicta of any judge, or in any text-writer. Moreover, the
case of Chartered Rank of India, <&c. v. Henderson (b), before the same
tribunal, while it recognizes the previous decision, very much narrows
its application, and the facts of the present case bring it within the later
decision. For assuming that the existing debt alone would not have
been sufficient consideration, being past, to give a valid title to the
plaintiff ; here the handing over of the bill of lading was m con-
sequence of a binding contract made on the Saturday to give cover,
which could have been enforced both at law and equity.
(a) Law Rep. 2 P. C. 393. (b) Law Rep. 5 P. C. 501. (c) 2 T. R. 63; 6 East, 21, u.
420 LEASK V. SCOTT.
[Lord Coleridge, C. J. Alliance BaiiJc v. Broom (a) is an authority
that performance of the contract would have been decreed m
equity. ]
Moreover, although not expressed, it is clear that part of the con-
sideration for giving cover was the forbearance in not takmg pro-
ceedings to enforce the debt, and this is a contmuing present consid-
eration. The distmction, however, between past and present consid-
eration is inconsistent with all the cases. [He then went through the
judgment in Rodger v. Oomptoir d'Escomijte de Paris (5) at length,
and referred to Gurrie v. Misa (c) ; Lempriere v. Pasley (d) ; Hol-
royd V. Marshall {e) ; Meyerstein v. Barber {/), citing Blackburn on
Sale, pp. 297, 298 ; Marie Joseph {g).]
R. E. Webster (with him Murphy, Q. C), for the defendants. [The
arguments for the defendants are so fully given in the judgment
of the Court that it is unnecessary to repeat them.]
W. Williams, Q. C, was heard.
Cur. adv. vtut.
May 5. The judgment of the Court (Lord Coleridge, C. J., and
Bramwell and Brett, L. JJ.), was delivered by
Bramwell, L. J. The defendants have stopped in transitu the
goods the subject of this proceedmg. They have done so effectually
and rightfully, miless the plaintiff has obtamed a title to them which
canno^be defeated by such stoppage. Whether he has is the question.
The facts are few, and as follows :— Geen & Co., the consignees of the
goods, were indebted to the plauitiff . On Saturday, the 1 st of January,
they apphed to the plaintiff for a further advance, which he agreed to
make on h^mg first covered. Geen & Co. promised to give him cover
(not nammg anything in particular), and the plaintiff advanced them
a further sum of 2000?., the plaintiff being content with their promise.
On the following Tuesday the bill of lading of the goods m question,
consigned by the defendant to Geen & Co., came to the possession of
the latter, who, on the following day, Wecbiesday, deposited it with
the plaintiff in fulfilment of their promise to cover him. No question
turns on the quantity of property so handed over, nor in any way as
to the validity of the transfer ; for the jury on this have found entirely
in favor of the plaintiff.
This being so, the plamtiff contended that he was a bona fide holder
of the bill of lading for valuable consideration by transfer from the
former lawful holder and i)roprietor thereof and of the goods mentioned
in it. This was not denied by the defendants. Their contention was
that, though the plaintiff was such holder effectually as against Geen
& Co., and their assignees, if they had become bankrupt, or any one
{a) 2 T)r. & Sm. 289 ; 34 L. J. (Ch.) (rf i 2 T. R. 485. , , ^^ , ,^„
256 ' ie) 10 H L. C. 191; 33 L. J. (Ch.)198.
[h) Law Rep. 2 P. C. 393. (/) Law Rep. 2 P. C. 074.
(c) Law Rep. 10 Ex. 153, at p. 168. {g) Law Rep. 1 P. C. 219.
LEASK V. SCOTT. 421
claiming through or against them, except the defendants, yet they, the
defendants, had not lost their right to stop in transitu. That the right
of stoppage in transitu is available and effectual against every one,
except the assignee of a bill of ladmg for valuable consideration, and
unless that valuable consideration had been got by means of the bill
of lading ; that, if the consideration were past, it was not such a con-
sideration, and the title gained by it was not such a title as would
defeat the equitable right of stoppage in transitu. That such right
was only defeated where there was a transfer for present consideration.
That it was so in such case, because the consignor, or stopper in tran-
situ, had by parting with the bill of lading enabled the consignee to
get valuable consideration by means of it ; and so had indirectly
caused the giving of the consideration by the assignee of the bill of
lading ; but that that was not so where the consideration was past.
There the giver of the valuable consideration was not prejudiced by
means of the bill of lading, and consequently there Avas no reason why
the equitable right of stoppage in transitu should be lost.
Mr. Webster, for the defendants, at first put it that the equitable
right of the consignor should prevail agamst the equitable right of
the transferee of the bill of lading. But, on it being pointed out to
him that the title of the transferee was legal, he altered his argument
to what is above mentioned, viz., that the equitable right of stoppage
prevailed agamst a legal title acquired by receiving the bill of lading
for a consideration, no part of which was caused to be given by the
bill of lading. The distinction of the two propositions is material.
In support of his argument Mr. Webster cited Rodger v. Comptoir
cFEscompte de Paris (a) before the Judicial Committee of the Privy
Council. We think that that case justifies his argument, and is in
point. There may be differences in the facts of the two cases, but the
ratio decidendi was clearly that advanced for the defendants in the
present case. We are not bound by its authority, but we need
hardly say that we should treat any decision of that tribunal with the
greatest respect, and rejoice if we could agree with it. But we can-
not. There is not a trace of such distinction between cases of past and
present consideration to be found in the books. It is true there is no
decision the other way ; but wherever the rule is laid down, it is laid
down without qualification, viz., that a transfer of a bill of lading for
valuable consideration to a bona fide transferee defeats the right of stop-
page in transitu. It is true, no doubt, that oi3inions must be taken sec-
undum subjectam materiam,but it is strange that no judge, no counsel,
no writer ever guarded himself against appearing to lay down the rule
too widely by mentioning this qualification, if he thought it existed.
We cannot help saying then that not only is the case a novelty,
(a) Law Rep. 2 P. C. 393.
422 I.EASK V. SCOTT.
but it is a novelty opposed to what may be called the silent authority
of all the previous judges and writers who have dealt with the subject.
More than that, in Vertice v. Jeimll (a), where Lord Ellenborough goes
out of his way to say that the plaintiff was not a transferee for val-
uable consideration so as to defeat the right of stoppage, he puts it
not on the ground that the consideration was past, as was the fact, but
on the ground that the transferee had notice of the transferor's insolv-
ency. Further, it is noticeable that this point does not seem to have
been mentioned in Modger v. Comptoir cVEscompte de Paris (b) till the
reply. The cases cited in the argument at the opening of counsel in
that case seem directed to the question of bona fides. Still further,
with all respect be it said, the reason given in the judgment is not
satisfactory. It is said (c), " The general rule, so clearly stated and
explained by Lord St. Leonards in the case of Mangles v. Dixon (d), is,
that the assignee of any security stands m the same position as the
assignor as to the equities arising upon it." No doubt. But that rule
does not apply here. Lord St. Leonards said that in reference to a
case where the title was to a chose in action, an equitable title only, or,
dropping such an expression, a right against a person liable on a con-
tract ; and he held that the assignee of that right was in the same
situation as the assignor. Here the plaintiff's title is, as it was in
Rodger v. Comptoir d'Escompte de Paris (e), a title to property in
ownership, and to use the old expression, a legal right.
If, besides dealing with the authorities, we look at the reason of the
thing, we are led, with deference, to the same conclusion. All the
arguments used by Mr. Justice Buller, in Lichharroio v. Mason (/),
apply to such a case as the one before us. Practically such a past con-
sideration as is now under discussion has always a present operation.
It stays the hand of the creditor. If the plaintiff had agreed on the
day the bill of lading was handed to him to give a week's time, there
would have been a present consideration. Is it necessary there should
be a formal agreement in lieu of that which, whether it would support
legal proceedings, as was contended by the plaintiff, or not, was, no
doubt, such an understanding that, if the plaintiff had taken proceed-
ings against Geen & Co. the day after he had received the security, he
would have committed a breach of faith ? If in this case the plaintiff
had bought the goods out and out and been paid part of his debt with
the price, the consideration would have sufficed, if the transaction was
not colorable. If the plaintiff had said, " I cannot take this bill of lad-
ing safely, as the consideration would be past, doit with the broker
next-door and give me his check," that would have been valid. Is
it desirable to introduce such niceties into commercial law ? Moreover,
there really always is a present consideration. It is not necessary to
(a) 4 fauip. .31. {h) Law IJep. 2 P. V. at p. 403. (r) Law \W\^. 2 V. C. at p. 405.
{d) 3 H. L. C. 702. ('-) Law Kcp. 2 P. C. 303. (/) 2 T. R. 03, at p. 75.
TWEUDLE V. ATKlNSOii. 423
consider whether specific performance would be decreed as to this
document which was not specified to the plaintiff ; but the case of
Alliance Bank v. Broom (a) shows that a general performance would
be decreed ; and certamly an action would lie for not covering. There-
fore the assignor for such consideration as this, always gets the benefit
of performing his contract, and so saving hhnself from a cause of action.
If Geen «* Co., in this particular case, had said that this bill of lading
was commg forward, and they would hand it to the plaintiff, then value
would have been obtamed by means of the bill of ladmg ; so if they
had said generally that they had securities coming forward and would
deposit them ; and what is the difference between a promise with such
a statement and a promise without it? In the analogous cases of goods
obtamed under a fraudulent contract, where the vendor loses his title
if there is a transfer for value, there is no authority to show that a
past value is not sufficient.
On these gromids we are unable to concur in the opinion of the
Judicial Committee in Rodger v. Comptoir cVEscompte de Paris (J), or
with the argument for the defendants. As to the judgment of Mr.
Justice Field, it is enough to say that it proceeded wholly on that case
and in deference to it.
We are of opinion that judgment should be reversed, and entered for
the plaintiff.
Judgment reversed and entered for the plaintiff.
Section A'.— T'xreai, Consideration.*
TWEDDLE V. ATKINSON, Executor of GUY Deceased.
In the Queen's Bench, June 7, 1861. U^i
[Reported in 1 Best & Smith, 393.]
The declaration stated that the plamtiff was the son of John Twed-
dle, deceased, and, before the makmg of the agreement hereafter
mentioned, married the daughter of William Guy, deceased ; and be-
fore the said marriage of the plamtiff the said William Guy, m con-
sideration of the then intended marriage, promised the plamtiff to give
to his said daughter a marriage portion, but the said promise was verbal,
and at the time of the making of the said agreement had not been per-
formed ; and before the said marriage the said John Tweddle, in con-
(a) 2 Dr. & Sm. 289; 34 L. J. (Ch.) 256. (b) Law Rep. 2 P. C. 393.
* Ch. Ill, Sect. V, Finch.
424
TWEDDLE V. ATKINSON.
sideration of the said intended marriage, also verbally promised to give
the plaintiff a marriage portion, which promise at the time of the mak-
ing of the said agreement had not been performed. It then alleged that
after the marriage and in the lifetime of the said William Guy and of
the said John Tweddle, they, the said William Guy and John Tweddle,
Centering into the agreement hereafter mentioned as a mode of giving
effect to their said verbal promises ; and the said William Guy also
entering into the said agreement m order to provide for his said
daughter a marriage portion, and to procure a further provision to be
made by the said John Tweddle, by means of the said agreement, for
his said daughter, and actmg for the benefit of his said daughter ; and
the said John Tweddle also entermg into the said agreement in order
to provide for the plaintiff a marriage portion, and to procure a further
provision to be made by the said William Guy, by means of the said
agreement, for the plaintiff", and acting for the benefit of the plamtift' ;
they the said William Guy and John Tweddle made and entered mto
an agreement in writing in the words following, that is to say :
" High Coniscliffe, July 11th, 1855.
« Memorandum of an agreement made this day between William
Guy, of etc., of the one part, and John Tweddle, of &c., of the other
part. Whereas it is mutually agreed that the said William Guy shall
and will pay the sum of 200/. to William Tweddle, his son-in-law ;
and the said John Tweddle, father to the aforesaid William Tweddle,
shall and will pay the sum of 100/. to the said William Tweddle, each
and severally the said sums on or before the 21st day of August,
1855. And it is hereby further agreed by the aforesaid William Guy
and the said John Tweddle that the said William Tweddle has full
power to sue the said parties in any Court of law or equity for the
aforesaid sums hereby promised and specified.
" And the plaintiff says that afterwards and before this suit, he and
his said wife, who is still living, ratified and assented to the said
agreement, and that he is the William Tweddle therein mentioned.
And the plaintiff says that the said 21st day of August, a. d. 1855,
elapsed, and all things have been done and happened necessary to en-
title the plaintiff" to have the said sum of 200/. paid by the said
William Guy or his executor : yet neither the said William Guy nor
his executor has paid the same, and the same is in arrear and unpaid,
contrary to the said agreement."
Demurrer and joinder therein.
Edvmrd James,, for the defendant. — The plaintiff is a stranger to
the agreement and to the consideration as stated in the declaration, and
therefore cannot sue upon the contract. It is now settled that an
action for breach of contract must be brought by the person from
whom the consideration moved ; Price v. Easton (a). (lie was then
stopped.)
[a) \ \\. & Ad. 4.):5.
/'■
A
^-^-^^ (»■ rh f~^ «■— l-'S^^
J. I.
I !)
r.^^ L^ fh-^ l^^^^^^-z^l ^ \^C'- ^'
TWEDDLE V. ATKINSON. 425
Melllsh^ for the plaintiff. — Admitting the general rule as stated by
the other side, there is an exception in the case of contracts made by i
parents for the purpose of providing for their children. In Duttot A (Ufv^^^'i
o^ndJWxf£^x.,-£.Qole (a), affirmed in the Exchequer Chamber, a tenant /^ ^J,
in fee simple being about to cut down timber to raise a portion for
his daughter, the defendant his heir-at-law, in consideration of his for-
bearmg to fell it, promised the father to pay a sum of money to the
daughter, and an action of assumpsit by the daughter and her husband
was held to be well brought. [Wightmaiv, J. In that case the
promise was made before marriage. In this case the promise is post
nuptial, and the whole consideration on both sides is between the two
fathers.] The natural relationship between the father and the son con-
stituted the father an agent for the son, in whose behalf and for whose
benefit the contract was made, and therefore the latter may mam-
tam an action upon it. [CROiiPxox, J. Is the son so far a party to the
contract that he may be sued as well as sue upon it ? Where a consider-
ation is required there must be mutuality. Wightmax, J. This con-
tract, so far as the son is concerned, is one sided.] The object of the con-
tract, which was that the children should be provided for, will be ac-
complished if this action is mamtainable : whereas if the right of action
remains in the father it will be defeated, because the damages recovered
in that action will be his assets. [Crompton, J. Your argument will
lead to this, that the son might bring an action agamst the father on
the gromid of natural love and affection.] In Bourne v. Mason (b)
two cases are cited which support this action. In /Sjyrat v. Agar, in
the Kmg's Bench in 1658, one promised the father that m consideration
that he would give his daughter m marriage with his son, he would
settle so much land ; after the marriage the son brought an action, and
it was held maintamable. The other was the case of a promise to a
physician that if he did such a cure he would give such a sum of
money to himself and another to his daughter, and it was resolved
the daughter might bring assumpsit, " Which cases," says the report,
"the Court agreed ; " and the reason assigned as to the latter is, " the
nearness of the relation gives the daughter the benefit of the considera-
tion performed by her father." There is no modern case in which
this question has been raised upon a contract between two fathers for
the benefit of their children. [Wightmax, J. If the father of the
plaintiff had paid the 100?. which he promised, might not he have sued
the father of the plaintiff's wife on his express promise?] According
to the old cases he could not. When a father makes a contract for
the benefit of his child, the law vests the contract m the child. In
Thomas v. (c) the defendant promised to a father that m con-
1 Ventr. 318. Afflnned on error in the Exch. Ch. T. Raym. 302.
(c) Sty. 461. . ' J~J
426 TWEDDLE V„ ATKINSON*^
sideratioii that he would surrender a copyhold to the defendant, the
defendant would give unto his two daughters 20^. a-piece ; and after
verdict m an action upon the case brought by one of the daughters for
breach of that promise, on motion for arrestmg the judgment on the
ground that the two ought to have jomed, it was held that the par-
ties had distmct interests, and so each might brmg an action.
Edward James was not called upon to reply,
WiGHTMAN, J. Some of the old decisions appear to support the pro-
position that a stranger to the consideration of a contract may mamtain
an action upon it, if he stands in such a near relationship to the party
from whom the consideration proceeds, that he may be considered a
party to the consideration. The strongest of those cases is that cited
in Bourne v. Mason (a), m which it was held that the daughter of a
physician might mauitain assumpsit upon a promise to her father to
give her a sum of money if he performed a certain cure. But there
is no modern case m which the proposition has been supported. On
the contrary, it is now established that no stranger to the considera-
tion can take advantage of a contract, although made for his benefit.
Cromptox, J. It is admitted that the plaintiff cannot succeed un-
less this case is an exception to the modern and well estabhshed doc-
trine of the action of assumpsit. At the time when the cases which
have been cited were decided the action of assumpsit was treated as
an action of trespass upon the case, and therefore in the nature of a
tort ; and the law was not settled, as it now is, that natural love and
affection is not a sufficient consideration for a promise upon which an
action may be maintained ; nor was it settled that the promisee cannot
bring an action miless the consideration for the promise moved from
him. The modern cases have, in effect, overruled the old decisions ;
they show that the consideration must move from the party entitled
to sue upon the contract. It would be a monstrous proposition to say
that a person was a party to the contract for the purpose of suing
upon it for his own advantage, and not a party to it for the purpose
of being sued. It is said that the father in the present case was agent
for the son in making the contract, but that argument ought also to
make the son liable upon it. I am prepared to overrule the old deci-
sions, and to hold that, by reason of the principles which now govern
the action of assumpsit, the present action is not maintainable.
\ Blackbukx, Jv The earlier part of the declaration shows a con-
tract which might be sued on, except for the enactment in sect. 4 of
' the Statute of Frauds, 29 Car. 2, c. 3. The declaration then sets out
a new contract, and the only point is whether, that contract being for
the benefit of the children, they can sue upon it. Mr. Mellish admits
that in general no action can be maintained upon a promise, imless the
consideration moves from the party to whom it is made. But he says
(a) 1 Ventr. 6.
EASTWOOD V, KENYON» 427,
that there is an exception; namely, that when the consideration moves-
from a father, and the contract is for the benefit of his son, the natural,
love and affection between the father and son gives the son the right,
to sue as if the consideration had proceeded from himself. And Dut-
ton and Wife v. Poole (a) was cited for this. We cannot overrule a
decision of the Exchequer Chamber : but there is a distinct ground on
Avhich that case cannot be supported. The cases upon stat. 27 El. c.
4, which have decided that, by sect. 2, voluntary gifts by settlement
after marriage are void agamst subsequent purchasers for value, and
are not saved by sect. 4, show that natural love and affection are not
a sufficient consideration whereon an action of assumpsit may be
founded.
Judgment for tJie defendant.
EASTWOOD y. KENTON",
In the Queen's Bench, January 16, 1840.
\_Beported in \'\ Adolphus & Ellis, 43.8, ]
Assumpsit^ The declaration stated, that one John Sutcliffe made
his will, and appointed plaintiff executor thereof, and thereby be-
queathed certain property in manner therein mentioned : that he after-
wards died without altering his will, leaving one Sarah Sutclift'e, an
infant, his daughter and only child and hen-ess at law surviving : that
after makmg the will Jolm Sutcliffe sold the property mentioned
therem, and purchased a piece of land upon which he erected certain
cottages, but the same were not completed at the time of his death :
which piece of land and cottages were at the time of his death mort-
gaged by him ; that he died mtestate m respect of the same, where-
upon the equity of redemption descended to the said infant as heiress
at law : that after the death of John Sutcliffe, plaintiff duly proved
the will and administered to the estate of the deceased : that from and
after the death of John Sutcliffe until the said Sarah Sutcliffe came
of full age, plamtiff, executor as aforesaid, " acted as the guardian
and agent " of the said infant, and in that capacity expended large
sums of money in and about her mamtenance and education, and in
and about the completion, management, and necessary improvement
of the said cottages and premises in which the said Sarah Sutcliffe
was so interested, and in payuig the interest of the mortgage money
chargeable thereon and otherwise relative thereto, the said expenditure
having been made in a prudent and useful manner, and havmg been
beneficial to the interest of the said Sarah Sutcliffe to the full amount
thereof : that the estate of John Sutcliffe deceased having been in-
(«) 2 Lev. 210; 1 Ventr. 318. Affirmed on error in the Excb. Ch., T. Raym. 302.
^-la^
428 EASTWOOD V. KENYON.
sufficient to allow plaintiff to make the said payments out of it, plaint-
iff was obliged to advance out of his own moneys, and did advance, a
large sum, to wit 140^., for the purpose of the said expenditure ; and,
in order to reunburse himself, was obliged to borrow, and did borrow,
the said sum of one A. Blackburn, and, as a security, made his prom-
issory note for payment thereof to the said A. Blackburn or his order
on demand with mterest ; which sum, so secured by the said promis-
sory note, was at the time of the makmg tl^reof and still is wholly due
and unpaid to the said A. Blackburn : that the said sum was expended
by plaintiff in manner aforesaid for the benefit of the said Sarah Sut-
cliffe, who received all the benefit and advantage thereof, and such
expenditure was useful and beneficial to her to the full amount there-
of : that when the said Sarah Sutclifte came of full age she had notice
of the premises, and then assented to the loan so raised by plamtiff,
and the security so given by hrni, and requested plamtiff to give up
to one J. Stansfield as her agent, the control and management of the
said property, and then promised the plaintiff to pay and discharge
the amount of the said note ; and thereupon caused one year's mterest
upon the said sum of 140?. to be paid to A. Blackburn. That there-
upon plamtiff agreed to give up, and did then give up, the control
and management of the property to the said agent on behalf of the
said Sarah Sutcliffe : that all the services of plamtiff were done and
given by him for the said Sarah Sutclifte, and for her benefit, gratui-
tously and without any fee, benefit, or reward whatsoever ; and the said
services and expenditure were of great benefit to her, and her said
property was increased in value by reason thereof to an amount far ex-
ceeding the said 140Z. That afterwards defendant mtermarried with
the said Sarah Sutcliffe, and had notice of the premises, and the ac-
counts of plaintiff of and concerning the premises were then submitted
to defendant, who then examined and assented to the same, and upon
such accounting there was found to be due to plamtiff a large sum of
money, to wit &c., for moneys so expended and borrowed by him as
aforesaid ; and it also then appeared, that plamtiff' was mdebted to
A. Blackburn in the amount of the said note. That defendant, in
right of his wife, had and received all the benefit and advantage arising
from the said services and expenditure. That thereupon in consid-
eration of the premises defendant promised plahitiff that he would
pay and discharge the amount of the said promissory note ; but that,
although a reasonable time for paying and discharging the said note
had elapsed, and A. Blackburn, the holder thereof, was always will-
ing to accept payment from defendant, and defendant was requested
l)y plaintiff to pay and discharge the amount thereof, defendant did
not, nor would then or at any other time pay or discharge the amount
&c., but wholly refused &c.
EASTWOOD V. KEN YON. ^29
Plea Nb?i Assumpsit.
On the trial before Patteson J., at the York Spring Assizes, 1838,
it was objected on the part of the defendant that the promise stated
in the declaration, and proved, was a promise to pay the debt of an-
other withm the Statute of Frauds, 29 Car. 2, c. 3, s. 4, and ought to
have been in writing ; on the other hand it was contended that such
defence, if available at all, was not admissible under the plea of uon
assumpsit. The learned judge was of the latter opinion, and the plaint-
iff had a verdict, subject to a motion to enter a verdict for the de-
fendant.
Cresswell, m the following term, obtamed a rule nisi accordmg to
the leave reserved, and also for arresting judgment on the ground
that the declaration showed no consideration for the promise alleged.
In Trmity Vacation, 1839 {a),
Alexander and W. H. Watson showed cause. The defence is not
available under the general issue. [Upon this pomt, Buttemere v.
Hayes (5), decided on the same day, was mentioned to the Court, and
was considered conclusive.] Then, the promise is not withm the
statute, which requires a writmg only where the promise is " to an-
swer for the debt, default or miscarriages of another person." Here
there is no other person in default, but the promise is to pay the
amount to the plaintiff. [Pattesox, J. It is rather a promise to pay
Blackburn ; a promise to take up the bUl.] In substance it is a prom-
ise to pay the plaintiff what he is hable to pay Blackburn. No case
has yet decided that a promise to pay the promisee's own debt to a
third person is withm the statute, which evidently contemplates the
debt or default of third persons. The same point might be made in
every case of an implied promise to indemnify, as where the plamtiff
accepts a bill for the defendant's accommodation, or where the drawer
is sued on the default of the acceptor. It is said by Parke, J., in
Thomas v. CooJc (c), that if the plamtiff, at the request of the defend-
ant, paid money to a third person, a promise to repay need not be m
writing. In Castling v. Aubert (d), a contract to mdemnify the plaint-
iff if he gave up a lien, was held not to be withm the statute. Wil-
liams V. Zeper (e), is to the same effect. Green v. Cressioell (/) may be
relied on, where a promise to indemnify the plaintiff against the con-
sequence of becoming bail for a third party was held to require a writ-
ing ; but there the defendant made himself answerable for the default
of another, and so came exactly within the words of the statute. Then,
as to the consideration ; it has been distinctly held, that a moral ob-
ligation will support an express promise. There must be somethmg
(a) June 19th. Before Lord Denman. C. J., Patteson, Williams and Coleridge, JJ.
\h) 5 M. & W. 456. The same point arose i" J^«*^""« J^.^^'^'r^V^ E^st 125'
499; and Jones v. mint, 10 A. & E. 753. (c) 8 B. & C. ^28, 732. ) 2 East o2o.
(e) 3 Burr. 1886. (/) 10 A. & E. 453. See also Cresswellv. Wood, Id. iW.
430 EASTWOOD V. KENYON.
done by the plaintiff at the defendant's request, or an act done for
the defendant's benefit must be ratified by an express promise to pay ; in
either case, an action will lie. [Coleridge, J. How are we to know
the difference between an express and an unplied promise on the plead-
ings ? ] After verdict an express promise must be presumed. [Col-
eridge, J. The same question may arise on demurrer,] In Zee v. 3Iug-
geridge (a), executors were held hable on a promise by the testatrix,
after the decease of her husband, to pay a bond made by her when
under coverture, on the express gromid that she was morally bound
to pay it. The same doctrine was upheld in Seago v. Deane (i),
Atkins V. ITill (c), and in several other cases, cited in note to Wennall
V. Adney (d). A stronger case of moral obligation can hardly arise
than the present, where the plaintiff is admitted to have been for
many years the faithful guardian and manager of the estate of the
defendant, while she was under age, and where, the defendant and his
wife have received great pecuniary benefit from the plaintiff's
acts.
Cresswell^ contra. The case is within the words, as well as the
spirit and mischief of the statute. It is a promise to discharge the
note. The words of the breach in the declaration all point at the note.
If the defendant had paid Blackburn, could it have been contended
that the promise was to pay the plaintiff ; and that the payment to
Blackburn was no answer to an action by the plamtiff ? This is in
truth a promise to pay Blackburn the debt due to him from the plaint-
iff, and it is not the less withm the statute, because the promise is
made to the plamtiff and not to Blackburn himself, for the act does
not say to whom the promise is to be made. The case of an accommo-
dation acceptor, and the other cases of implied j)romises to mdemnify
are not in point. They are either promises to pay the defendant's
owm debt, or they are cases of liability arising by operation of law,
where no real promise is ever made or required, and which are, there-
fore, not within the mischief of the statute. In Williams v. Leper (e) and
Castling v. Auhert ( /), there was a purchase by the defendant from the
plaintiff. In the former, the landlord's right of distress was bought ;
ill the latter, the plaintiff's lien on certam policies. Here the plaint,
iff has sold nothmg to the defendant. Then as to the consideration :
Suppose A. gives a parol guaranty to a tradesman to induce him to
supjSly goods to another, can A. be made liable on a subsequent parol
promise ? Such a construction would defeat the statute ; yet the case
is in principle the same as the present, and the moral obligation much
stronger. A promise may Ije evidence of a precedent request, but has
no efficacy in itself. What is it that constitutes the moral obligation
(a) .5 Taunt. .36. {h) 4 Bint?. 4r,9. (c) Cowp. 284. (cZ) 3 B. & P. 247.
(e) 3 Burr. 1886. (./) 2 East, 32o.
EASTWOOD V. KEN YON. 431
here ? Not the expenditure on the estate, for no duty was cast on
the plaintiff to lay out any thing on it, nor had he any right to uiter-
fere with the management ; and if he had, the defendant had at that
time no interest in it at all. If the honesty of the outlay causes the
moral obligation, then it is mdifferent whether it turned out profitaljle,
or not, to the defendant or his wife. It would support a promise
though the property had been damnified by it. If the benefit con-
stitutes the consideration, then whenever a party benefits another
against his will, a subsequent promise will be a ground of action. If
it had appeared that the wife was liable at the time of her marriage,
then the consequent liability of the defendant might have supported
his promise ; but no liability of the wife is stated, nor is it said that
she promised in consideration of the premises. As to the agreement
of the plamtiff to give up the control and management of the prop-
erty, he had no right to either, and therefore nothing to give up ;
and if he had, it is not alleged to have been the consideration of the
wife's promise. The doctrine of moral obligation as a ground for a
promise must be limited to those cases where the law would have
given a clear right of action originally, if some legal impedhnent had
not suspended or precluded the liability of the party. The ordinary
mstances are infancy, bankruptcy, and the Statute of Limitations ;
and these were the cases referred to by Lord Mansfield when he laid
down the above doctrine. As a general rule, it cannot be supported ;
Zittlefield\. Shee (a). The law is correctly laid down and the cases ex.
plained in the note to Weymall v. Adney (b).
Cur. adv. vidt.
In this term (January 16th), the judgment of the Court was deliv-
ered by
LoKD Dexman, C. J. The first point in this case arose on the fourth
section of the Statute of Frauds, viz., whether the promise of the
defendant was to " answer for the debt, default, or miscarriage of
another person." Upon the hearing we decided, in conformity with
the case of Buttemere v. Hayes (c), that this defence might be set up
under the plea of 7i07i assum2)sit.
The facts were that the plaintiff was liable to Mr. Blackburn on a
promissory note ; and the defendant, for a consideration, which may
for the purpose of the argument be taken to have been sufficient,
promised the plaintiff to pay and discharge the note to Blackburn.
jif the promise had been made to Blackburn, doubtless the statute
would have applied : it would then have been strictly a promise to
answer for the debt of another ; and the argument on the part of the
defendant is, that it is not less the debt of another, because the prom-
fa) 2 B. & Ad. 811.
(6) 3 B. & P. 247. See also[ the argument of the Attorney-General in Hjxvjh v.
^Brooks, 10 A. & E. 315, 316. (c) 5 Mee. sU.
In holding this declaration bad because it states no consideration but
a past benefit not conferred at the request of the defendant, we con-
ceive that we are justified by the old common law of England.
Lampleigh v. Brathwait (a) is selected by Mr. Smith (b) as the leading
case on this subject, which was there fully discussed, though not neces-
sary to the decision. Hobart, C. J., lays down that " a mere voluntary
courtesy will not have a consideration to uphold an assumpsit. But
if that courtesy were moved by a suit or request of the party that gives
the assumpsit, it will bind ; for the promise, though it foUows, yet it
is not naked, but couples itself with the suit before, and the merits of
the party procured by that suit ; which is the difference ; " a difference
brought fully out by Hunt v. JBate (c), there cited from Dyer, where a
promise to indemnify the plamtiff agamst the consequences of having
bailed the defendant's servant, which the plaintiff had done without
request of the defendant, was held to be made without consideration ;
but a promise to pay 201. to plamtiff, who had married defendant's
cousin, but at defendant's special instance, was held binding.
The distinction is noted, and was acted upon, in Toionsend v. Hunt (d),
and indeed m numerous old books ; while the pruiciple of moral obli-
gation does not make its appearance till the days of Lord Mansfield,
and then under circumstances not inconsistent with this ancient doc-
trine when properly explained.
Upon the whole, we are of opinion that the rule must be made abso-
lute to arrest the judgment.
Bule to enter verdict for the defendant, discharged.
Bide to arrest judgment, absolute (e).
(a) Hob. 105. (&)1 Smith's Leading Cases, 67. (c) Dyer, 272 (a). i,d) Cro. Car. 408.
e) The opinion ascribed to Lord Mansfield respecting the rule of nudum pactum ap-
pears to be not an unreasonable deduction from the cases of Pillans v. Mierop 6
Burr. 1663: and WiliamHon v. Losh, reported from the paper books ot Asti-
hurst, J., in Chitty on Bills, 75, note (x), 9th ed. Both are commented pn by the
Lord C. B. Skynner, in Rann v. Hughes, 7 T. R. 350, note (a). See also Evan s
General View of the Decisions of Lord Mansfield, vol. 1, p. 422.
436 HARTLEY V. PONSONBY.
HARTLEY v. PONSONBY.
In the Queen's Bench, June 4, 1857.
[Reported in 7 Ellis & Blackburn, 872.]
The first count of the declaration alleged that defendant promised
plaintiff to pay to plaintiff in Liverpool 40Z., provided plamtiff would
assist in taking the ship Mobile from the port of Port Philip in Austra-
lia to Bombay in the East Indies, with a crew of nineteen hands.
Averment : that, before this suit, he performed all things on his part
to be performed to entitle him to the payment of the said sum of 401.^
according to the terms and true mtent and meaning of the said prom-
ise of defendant ; of which defendant had notice : and a reasonable
time for the payment thereof elapsed before this suit. Breach : that
defendant had not paid the same or any part thereof.
Pleas. 1. Non assumpsit. 2. To first count : That, by virtue of
certain ship's articles made and entered into between plamtiff and
defendant, and signed by plaintiff, and which were in force at the
times in the first count mentioned, plaintiff, at the times aforesaid, was
bound, if required by defendant to perform, and defendant, at the said
times, had a right to require plaintiff to perform, the matter mentioned
or referred to in the said first count as the consideration for the sup-
posed promise ; and there was no consideration for defendant's makmg
or performing the supposed promise.
Issues on these pleas.
On the trial, before Erie, J., at the London Sittings after last Hilary
Term, it appeared that the defendant was captain of The Mobile, a
ship of 1045 tons register. The plaintiff was a mariner in the ship.
The marmers, by their articles, agreed to serve on board the ship
" on a voyage from Liverpool to Port Philip, from thence(if required)
to any ports and places in the Pacific Ocean, Indian or China Seas,
or wherein freight may offer, with liberty to call at a port for orders,
and until her return to a final port of discharge in the United King-
dom : or for a term not to exceed three years." The wages of the
plaintiff were to be 3/. per month. The proper complement of men
was thirty-six. The three years would expire in .Iuly,1855.
The ship left Liverpool, and reached Port Philip in Australia
on 9th October, 1852. While she was at Port Philip, seventeen
of the crew refused to work, and were sent to prison. Among
the remaining nineteen, there were only four or five able sea-
men. The master proposed to sail for Bombay ; and, to induce the
remaining crew to take the ship to Bombay, he promised to pay to
some of them a sum in addition to their wages : and he gave to the
plaintiff a written promise, which was as follows :
HARTLEY V. PONSONBY. 437
« Port Philip, 18 October, 1852.
" I promise to pay, in Liverpool, to Robert Hartley the sum of forty
pomids sterling, provided lie assist in taking ship Mobile from this
port to Bombay with a crew of nineteen hands.
" As witness my hand."
(Signed) "Henry Ponsonby."
A similar note was given to eight other seamen. Contradictory
evidence was given as to what passed between the defendant and the
seamen at the time of this agreement being made, and as to the facility
of hiring fresh seamen at Port Philip. The ship set sail for Bombay,
where she arrived on 31st December, 1852. She encountered much
rough weather on the voyage, m consequence of which, and of the
shortness of hands, extraordinary labor fell upon the crew. At Bom-
bay additional hands were taken on board. The Mobile sailed for
Liverpool on 14th February, 1853, and arrived there on 14th June,
1853. The owners and the master refused to pay the seamen more
than the wages origmally contracted for : and this action was brought
against the master for the 40^. Evidence was given as to the unfit-
ness of so small a crew as nineteen to navigate the ship. The learned
judge put three questions to the jury. First : Whether the defendant
made the agreement voluntarily : to which the jury answered that he
did so, and not by coercion ; and that this was for the best interests
of the owners. Secondly : whether the defendant could, by reason-
able exertions, obtam more hands at Port Philip : to which the jury
answered that he could not have done so at a reasonable price.
Thirdly : whether it was unreasonable or misafe to proceed on the
voyage to Bombay with so few hands : to which the jury answered
that they considered it unreasonable for a vessel of 1045 tons to pro-
ceed on that voyage with only nineteen hands. His Lordship then
directed a verdict for the plaintiff, reserving leave to move to enter a
verdict for the defendant.
Kiwxoles, hi last Easter Term, obtained a rule to show cause why a
verdict should not be entered for the defendant, " on the ground that
the finding of the jury amounted to a verdict for the defendant ; or
why a new trial should not be had between the parties, on the ground
that the evidence given at the trial showed that the plaintiff was not
entitled to recover,"
Hugh Hill and C. Mihnard now showed cause. It appears that the
captain, at the time when he made the contract, was strivuig to per-
suade the crew to undertake a risk which they were not bound to un-
dertake : a sufficient consideration therefore arises from their undertak-
ing it. It is undoubtedly true that, if an irremediable emergency arises
in the course of a voyage, as, for instance, if a large part of the crew are
438 HARTLEY V. PONSONBY.
washed overboard, the crew on board are bound to perform so much
more of their ordinary duty as may have become necessary for the com-
pletion of the voyage ; and a promise to pay them for the performance
of such extraordinary duty would be without consideration, or contrary
to the policy of the law. But that rule is inapplicable to a case when
a British ship is in a British harbor, and, for want of a sufficient num-
ber of hands, is in fact unseaworthy. A refusal to put to sea in an
unseaworthy ship is no desertion of the ship ; that was ruled at Nisi
Prius by Crowder, J. in a case of Davidson v. Todhunter (a). So, if a
master, by unwarrantable severity, compel a seaman to quit the ship ;
LimlandN. Stephens (b), ^dtcard y. Ti-evellick (c). So, if the master
do not supply the seamen with provisions ; The Castilia (Steicart) (d) ;
or if he alter the mariners' contract in respect of the voyage to be
performed; The Miza [Ireland'] (e). The only question here is whether
there was an irremediable emergency. Now there is nothing to show
that, by waitmg a reasonable time, a sufficiency of hands might not
have been procured. The captam hmiself proposed the extra pay ;
which at any rate shows his view of the obligation of the seamen.
Knotoles and Aspland^ contra. The agreement of the captam can-
not be considered to have been volimtary : the jury have indeed found
that it was ; which may be true in a vague and popular sense of the
word : but, legally speaking, the refusal of the crew to proceed was a
compulsion. [Coleridge, J. It should seem that, if the circum-
stances excused the crew from going to sea, they also excused the cap-
tain from going.] The case is like Harris v. Carter (/), where it was
held that a seaman was not relieved from his duty, so as to enable
him to make a fresh contract, by the desertion or discharge of some
of the hands. [C. Milward. There the plaintiff failed because it
could not be shown that the ship had become unseaworthy,] Here
no more appears than that the desertion imposed additional labor on
those who remain. Harris v. Watson (g) is an authority for the defend-
ant ; there the action was against the captain, as here. In The Eliza
{Ireland) (h) the original contract was put an end to by the master.
But in The Arami?ita (Feran) (i), where, upon some of the crew
deserting at Geelong in Australia, the captain proposed to the remain-
ing crew that they should take the ship on, she being then short-
handed, for additional wages, to which they assented, it was held that
such additional wages could not be contracted for, and that, if they
were paid, they might be deducted from the wages due on the origi-
nal contract.
Lord Campbell, C. J. I think that this verdict should stand. The
(a) Liverpool Summor Assizes, 1855. (b) 3 Esp. 269. (c) 4 E. «S; B. 59.
(d) 1 Hag. Ilep. Adm. 50. (r) 1 JIaq. Kep. Adin. 182.
if) ?. E. & B. 'Ml Soe sulk v. Mei/rick, 2 Tanipb. :^17. Ui) 1 I'eake's N. P. C. 72.
{h) 1 Hag. Kep. Adm. J82. " (/) 1 Spinks' Ecc. & Adni. Rep. 224.
HARTLEY V. PONSONBY. 439
answer given by the jury to the third question imports to my mind
that for the ship to go to sea with so few hands was dangerous to life.
If so, it was not incumbent on the plaintiff to perform the work ; and
he was in the condition of a free man. There was therefore a con-
sideration for the contract ; and the captain made it without coercion.
This is therefore a voluntary agreement upon sufficient consideration.
This decision will not conflict with any former decisions. In 77ie
Araminta (Feran) (a) Dr. Lushington says : » I do not wish it to be
inferred from anything I now say, that mariners, having completed the
voyage outwards, are compellable to make the return voyage when
the number of the crew is so small that risk of life may be incurred,''
In Harris v. Carter (b) there was no such risk. As to the weight
of evidence, the evidence was conflicting : but my brother Erie is not
dissatisfied with the verdict.
Coleridge, J. I am of the same opinion, and for the same reasons.
I understand the finding of the jury to be, that the ship was un-
seaworthy ; and that, owing to the excessive labor which would be im.
posed, it was not reasonable to require the mariners to go to sea. If
they were not bound to go, they were free to make a new contract :
and the master was justified in hiring them on the best terms he could
make. It may be that the plaintiff took advantage of his position to
make a hard bargain ; but there was no duress.
Erle, J. I am of the same opinion. I was deeply impressed with
the consequence of not holding the plaintiff liable to perform his
original engagement. But there is a point of danger at which it be-
comes unreasonable for mariners to be required to go on. That is "a
question for a jury. The mariners, not being bound to go on, were to
all intents and purposes free, and might make the best contract they
could.
Crompton, J. The jury have found that this was a free barg-ain.
As regards public policy, it would be very dangerous to lay down
that, under all circumstances and at any risk of life, seamen are bound
to proceed on a voyage. The jury have found in this case (and, I think,
upon the evidence, correctly ) that it was not reasonable to require tlie
seamen to go on. Where, from a ship being short-handed, it would
be unsafe for the seamen to go to sea, they become free to make any
new contract that they like.
Hule discharged
(a) Spinks' Ecc. & Adm. Hep. 229. (6) 3 E. & B. 559.
440
PINNEL'S CASE. /'vvo'"^
.' ''-•'^^^-'*->^fi^NEL'S CASE.
In the Common Pleas, Trinity Teem, 1602.
[Reported in 5 Coke's ReiyortSj 117.]
PiNNEL "brought an action of debt on a bond against Cole of £16 for
payment of £8 10s. the 11th day of Nov. 1600. The defendant pleaded
that he at the instance of the Plaintiff, before the said day, scilicet, 1
Octob. Anno 44 apud IV. solvit querenti £5 2s. 2(7., quas quidem £5 2s. 2(7.
the Plaintiff accepted in full satisfaction of the £8 10s. And it was
resolved by the whole Court, that payment of a lesser sum on the day
in satisfaction of a greater cannot be m satisfaction for the whole, be-
cause it appears to the Judges that by no possibility a lesser sum can
be a satisfaction to the Plaintiff for a greater sum. But the gift of a
horse, haAvk, or robe, &c. in satisfaction is good. For it shall be in-
tended, that a horse, hawk, or robe, &c. might be more beneficial to
the Plaintiff than the money, in respect of some circumstance, or other-
wise the Plaintiff would not have accepted of it in satisfaction. But
when the whole sum is due, by no intendment the acceptance of parcel
can be a satisfaction to the Plamtiff . But in the case at Bar it was
resolved, that the payment and acceptance of parcel before the day in
satisfaction of the whole would be a good satisfaction in regard of cir-
cumstance of time ; for peradventure parcel of it before the day would
be more beneficial to him than the whole at the day, and the value of
the satisfaction is not material. So if I am bound in £20 to pay you
£10 at Westminster, and you request me to pay you £5 at the day at
York, and you will accept it in full satisfaction of the whole £10, it is a
good satisfaction for the whole : for the expenses to pay it at York is
sufficient satisfaction. But in this case the Plaintiff had judgment
for the insufficient pleadmg ; for he did not plead that he had paid the
£5 2s. 2c?. in full satisfaction (as by the law he ought) but pleaded the
payment of part generally ; and that the Plaintiff accepted it m full
satisfaction. And always the manner of the tender and of the pay-
ment shall be directed by him who made the tender, and not by him
who accepts it. And for this cause judgment was given for the
Plaintiff.
See reader 26 H. 6, Barre 37, m debt on a bond of £10 the Defend-
ant pleaded that one F. was bound by the said deed with him, and
each in the whole, and that the Plaintiff had made an acquittance to
F., bearing date before the obligation and delivered after, by which
acquittance he did acknowledge himself to be paid 20 shillings in full
satisfaction of the £10. And it was adjudged a good bar; for if a
man acknowledges himself to be satisfied by deed, it is a good bar,
without anything received.
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GODr^ARD V. O'BRIEN. 441.
GODDARD AND SOX y„ O'BRIEX,
Ix THE High Court of Justice^ March 27^ 1882,
[Reported in Law BeportSx 9 Queen'^s Bench Division^ 3TJ
Case stated by the Judge of the Southwark County Court.
1. The action is brought to recover amongst other items, 25?. 7s.
9(7. balance of account for goods sold and delivered between the 6th
of May, 1879, and the 26th of April, 1880.
2. On the 16th of August, 1880, the defendant was indebted to
the plamtiffs, in the sum of 125/. 7s. 9d. for billiard table slates sold
and delivered by them to him. On that day Mr. Newitt, a member
of the plaintiffs' firm, met the defendant and agreed to accept the sum
of 100/. in discharge of the said sum of 125/. 7s. 9d. The defendant
thereupon gave to the plaintiffs a check for 100/. payable on demand,
and the plamtiffs gave him a receipt hi the following form,—" Re-
ceived the sum of 100/. by check, which is to be m settlement of ac-
count of 125/. 7s. 9d., on said check bemg honored. August 16th,
1880." The check was duly honored. There was no consideration
given by the defendant or received by the plaintiffs m satisfaction of
the said sum of 125/. 7s. 9f/., other than the check for 100/.
5. The action was tried on the 2nd of December, 1881, and judg-
ment was given for the defendant on the 12th of January, 1882 ; the
judge hokUng that the payment to and acceptance by the plamtiffs of
the°check for 100/. in settlement of their claim for 125/. 7s. 9d. was a
good accord and satisfaction, by reason of the check bemg a negotia-
ble security, although the payment of 100/. m cash would not have
been a good accord and satisfaction.
The questions for the opmion of the Court were,— first, whether the
payment by the defendant to the plaintiffs of the check for 100/. in
settlement of their debt of 125/. 7s. 9d. was a good accord and satis-
faction of the whole of the plamtiffs' debt,— secondly, whether the
plaintiffs were entitled to judgment for the 25/. 7s. 9d.
Broioi, for the plamtiffs. This case falls ^ithm the rule laid down
by Pratt', C. J., in Cumber v. Wa7ie (a), that a debt is not satisfied by
the receipt of a security of equal degree for a smaller sum. To make
it enure as a satisfaction, there must be a collateral agreement that
the lesser amount shall be received m satisfaction of the larger. The
check here was not a negotiable instrument, nor was it received as
such ; It was accepted as cash conditionally on its being duly honored,
as appears from the form of the receipt. The reason for the distmc-
tion between a payment m cash and a payment by a negotiable secur-
ity is clearly stated by Alderson,B., m ^ibree v. Tnpj) (b) : «It is un-
doubtedly true that payment of a portion of a liquidated demand
^g) Str 406 (b) 15 M/ & W. 23, STr- 15 L. J, (Ex) 3-43.
442 GODDAKD V. O'BRIEN.
in the sftme manner as the whole liquidated demand ought to
be paid is pcii/ment only in part, because it is not one bargain,
but two, viz. payment in part and an agreement, without considera-
tion, to give up the residue. If for money you give a negotiable se-
curity, you pay it m a different way. The security may be worth
more or less : it is of uncertam value," And Parke, B., says (a) : " It
is clear, if the claim be a liquidated and ascertained sum, payment of
part cannot be satisfaction of the whole. If the contract be by bond
or covenant, it can be determined only by something of an equal or
higher value : but, upon a mere simple contract, it is clear that the
debtor may give anything of inferior value in satisfaction of the sum
due, j)rovided it be not part of the sum itself." And further on :
" Again, a sum of money payable at a different time is a good satis-
faction of a larger sum payable at a future day : Com. Dig. Accord.
(B. 2). In the present case (supposing it a liquidated demand), the
satisfaction is by giving a different thing, not part of the sum itself,
having different properties. It may be of equal value, but that we
cannot enter into : it is sufficient that the parties have so agreed. The
case of Andreio v. Boughey ( h) is an authority in support of this view."
[HuDDLESTON, B. Sibvee v. Tri}^}) (c), if it does not overrule, is en-
tirely inconsistent with Cumber v. Watie (c?).]
This case is quite beside Sihree v. Tripp (c). There, there was a
distmct consideration for the accord besides the giving of the new
promissory notes and the acceptance of them by the defendant, viz.
the putting an end to litigation between the parties. Here, the find-
ing of the judge in par. 4 of the case is, that it was the money and
not the check that was accepted in satisfaction. It was a conditional
payment ; and there was no consideration for the abandonment of the
excess. The ruling was therefore wrong.
Woodward^ for the defendant, was not heard.
Grove, J. I am of opinion that the decision of the county court
judge was right. The difficulty arose from the rule laid down in
Cumber V. Wane {d). But that doctrine has been much qualified,
and I am not sure that it has not been overruled. In Slbree v. Tripp
(c) the judgments of Parke and Alderson, BB., are strong expres-
sions of a contrary opinion. That case, in which it was held that the
acceptance of a negotiable security for a smaller amount may be in
law a satisfaction of a debt of a greater amount, is a direct authority
that the giving of a negotiable security is not within the rule of
Cumber v. Wane (d). That was a just and proper decision, and
must govern this case. It is said that part of the consideration there
was the putting an end to litigation between the parties. Non con-
stat that there was not a stoppage of litigation here. It is further
(a) 15 M. & W. at p. 3:3. (b) Dyer, "). a. (c) 15 M. & W. 23. (d) Sir. 420.
FITCH V. SUTTON. 443
said that the acceptance of the check here was conditional only.
Possibly that might make the consideration of less value. To say
that you may receive something which is not money, — a chattel, for
instance, of inferior value, — but that you cannot receive money, is to
my mmd a very singular state of the law. I cannot see why the same
reasonmg should not apply to a chattel as to money. It is enough,
however, to say that I think the decision of the county court judge
was right.
HuDDLESTON, B. I am of the same opinion, and upon the ground
upon which the county court judge decided this case, viz. that there
was a good accord and satisfaction by reason of the check being a
negotiable security. The doctrine of Cumber v. Wane (a), if not
actually overruled, has been very much qualified. In the notes to
that case in the 8th edition of Smith's Leadmg Cases, at p. 363, it is
said : " In Sihree v. Tripp (b), the case of Cumber v. Wa7ie (a) was
much observed upon, and the decision qualified to this extent, that a
negotiable security may operate, if so given and taken, in satisfaction
of a debt of greater amount ; the circumstance of negotiability
makmg it in fact a different thing and more advantageous than the
original debt, which was not negotiable." The rule cannot be better
stated than it is in the same note, at p. 366 : "The general doctrine
in Cumber v. Wa?ie («), and the reason of all the exceptions and
distinctions which have been engrafted on it, may perhaps be summed
up as follows, viz. that a creditor cannot bind himself by a simple
agreement to accept a smaller sum in lieu of an ascertamed debt of
larger amount, such an agreement being nudum pactum. But, if
there be any benefit, or even any legal possibility of benefit, to the
creditor thrown in, that additional weight will turn the scale, and
render the consideration sufficient to support the agreement." For
these reasons, I am of opinion that this appeal must be dimissed,
with costs.
Judgment for the defendant.
FITCH y. SUTTON.
In the King's Bench, June 4, 1804.
{B.e'ported, in 5 East, 230.]
This was an action of indebitatus assumpsit for goods sold and de-
livered. Plea, non assumpsit. At the trial before Heath, J. at the
last Chelmsford assizes it was proved that the defendant was, prior to
his insolvency, indebted to the plaintiff in 50Z. for goods sold and
delivered. That in consequence of his insolvency the defendant com-
pounded with all his creditors, and paid them 7s. in the pound, and at
(a) Str. 42G. (b) 1.^ M. & W. 26. '
444 FITCH V. SUTTON.
the time of such payment to the plaintiff promised him to pay him
the residue of his debt when he should be of ability so to do ; which
he was proved to have been before the action brought. On the other
hand, the defendant produced a receipt signed by the plamtiff, and
dated 29th of March, 1802, for a composition of 7s. in the pound for
his debt of 50/., which he acknowledged to be in full of all claims and
demands from the beginning of the world to that day : which receipt
it was insisted was either a discharge of the promise, or otherwise
that the promise itself was void, as having been made in fraud of the
other creditors. But the plaintiff's counsel contended that the ac-
ceptance by a creditor of a less sum in satisfaction of a greater was
no discharge of the debt, unless it were by deed ; and they relied on
the case of Heathcote v. Crookshanks (a). The learned Judge how-
ever, not having the case before him, directed the jury to find for the
defendant, and saved the point for the plaintiff, if the authority
should be found to support him. A rule nisi was accordingly ob-
tained by Shepherd, Serjt. for setting aside the verdict, and having
a new trial ; against which
Best, Serjt. now showed cause, and admitting that accord without
satisfaction was no defence to an antecedent demand, endeavored to
distinguish this from the case of Heathcote v. CrookshmiJcs, because
there the composition agreed to be taken at one time by the creditor was
afterwards refused to be accepted by him ; it was accord without satis-
faction ; and the plea there only stated a tender and refusal ; whereas
here the composition was actually accepted by the plaintiff in satisfac-
tion of his whole demand. But if that were otherwise, the plamtiff I
ought not to have declared upon the old cause of action for goods soldj
and delivered, which was done away by the receipt given m consider-
ation of the composition received and the new promise ; but he '
should have declared specially upon such new agreement, which was !
conditional for the payment of the residue when the defendant should '
be of ability. And he cited Knight v. Cox (b), where the creditor
having accepted a composition and signed a release to the defendant,
who m consideration thereof promised to pay him the entire debt ; it
was holden to be a good defence on non assumpsit for the original
cause of action, which was for goods sold and delivered, and that the
plaintiff ought to have declared specially upon the special promise.
Lord Ellenborough, C. J. In the last-mentioned case the orig-
inal contract was extinguished by the release : but it cannot be pre-
tended that a receipt of part only, though expressed to be in full of
all demands, must have the same operation as a release. It is impos-
sible to contend that acceptance of 111. 10s. is an extinguishment of a
debt of 50/. There must be some consideration for the relinquish-
(a) 2 Term Rep. 24. {b) Before Pemberton, C. J., in Sussex, 1682, Bull. N. P. 153.
GOOD V, CHEESMAN. 445,
ment of the residue ; something collateral, to show a possibility of
benefit to the party relinquishing his further claim, otherwise the
agreement is nudu7n pactum. But the mere promise to pay the rest
when of ability put the plaintiff in no better condition than he was be-
fore. It was expressly determined in Cumber v. Wcme (a) that accept-
ance of a security for a lesser sum cannot be pleaded in satisfaction
of a similar security for a greater. And though that case was said by
me in argument, in Heathcote v. CrookshanJcs^ to have been denied to
be law ; and in confirmation of that Mr. Justice Buller afterwards re-
ferred to a case, (stated to be that of Hardcastle v. Hovmrd, H. 26
Geo. 3) ; yet I cannot find any case of that sort, and none has been now
referred to : on the contrary, the decision in Cumber v. Wane is di-
rectly supported by the authority of PiniieVs Case (5), which never
appears to have been questioned.
The other Judges concurred ; and Lawrence, J., referred to Co. Lit.
212, b. and to Adams y. Tabling (c), as confirmatory of the same doc-
trine : in the former of which it is laid do^^^l, that " where the condi-
tion is for payment of 201. the obligor or feoffor cannot^t the time ap.-
poitited pay a lesser sum m satisfaction of the whole, because it is ap-
parent that a lesser sum camiot be a satisfaction of a greater. But
if the obligee or feoffee do at the day receive part, and thereof make
an acquittance under his seal in full satisfaction of the whole, it is
sufficient, by reason the deed amounteth to an acquittance of the
whole. If the obligor or lessor pay a lesser sum either before the day
or at another place than is limited by the condition, and the obligee
or feoffee receiveth it, this is a good satisfaction. "
Mule absolute.
GOOD V. CHEESMAN.
In the King's Bench, May 4, 1831.
[Beported in 2 Barnewall Stoaine (d) ; Mc3fanus v.
Bark (e) ; ^itch v. /Sutton (/) ; Adams v. Tapling (g) ; Bovm v. Hatcher
(h) ; Evans v. Povns (i) . In the cases in which Cumber v. Wane (J )
has been departed from, the Judges admit its prmciple, but distmguish
the facts. Goddard v. O'Brien (Jc) was wrongly decided. It is con-
trary to public policy to make the performance of a legal duty a good
consideration ; see the cases on seamen's wages ; Stilk v, Myrick (I) .
Harris v. Watson (m) ; Neimnan v. Walters (?i) ; Clutterbuck v. Coffin (o) •
Harris v. Carter (p). Where law and practice are so well established
this House will not now depart from them ; see the observations in
Danford v. McAnulty (q). The Court went even further than Cmn-
ber V. Wane (J) in Lovelace v. Cocket (r), where to an action on a bond
for the payment of money at a certain day, a plea that the plaintiff at
the day of payment accepted another bond for the payment of the
money in satisfaction, was on demurrer " held to be a naughty plea,
for one bond cannot overthrow another." And so in Hawes v. Birch
(s) it was held that " one thing in action cannot be satisfaction for
another thing in action."
Holl, Q. C, in reply : —
The cases about seamen's wages have always been based on ques-
tions of public policy ; see Harris v. Watsoti (t). Dixon v. Adams {a)
(a) Cro. El. 538. (6) 1 Leon. 19. (c) Telv. 10. {d) 1 Lut. W. C. P. 464, 466.
(e) Law Rep. 5 Ex. 65. (/) 5 East, 230. {g) 4 Mod. 88. (/)) 10 A. & E. 121.
(i) 1 Ex. 601. (j) 1 Str. 426. (A;)9Q. B.D. 37. (0 2 Camp. 317.
(m) 1 Peake, 102. (n) 3 B. & P. 612. (o) 4 Scott, N. R. 509. (p) 3 E. & B. .5.59.
(?) 8App. Cas. 463. (r) 1 Br. & Gold. 47- (s) 1 Br. &, Gold. 71 . {t) 1 Peake, 102.
454 roAKES V. beer.
was commented upon by Littledale, J. in Wilkinson v. Byers (a).
Michards v. Bartlet (b) and Geang v. Stcaine (c) were decided on the
ground that a plea of accord without satisfaction is no bar. In Down
V, Hatcher (d) no reason for the decision were given, and it was doubted
by Parke, B. in Cooper v. Barker (e).
The House took time for consideration.
May 16. Earl of Selborne, L. C. : —
My Lords, upon the construction of the agreement of the 21st of
December, 1876, I cannot differ from the conclusion in which both the
Courts below were agreed. If the operative part could properly be con-
trolled by the recitals, I thmk there would be much reason to say that
the only thing contemplated by the recitals was giving time for pay-
ment, without any relmquishment, on the part of the judgment credi-
tor, of any portion of the amount recoverable (whether for principal or
for interest) under the judgment. But the agreement of the judgment
creditor, which follows the recitals, is that she " will not take any pro-
ceedings whatever on the judgment," if a certain condition is fulfilled.
What is that condition ? Payment of the sum of £150 in every half
year, "until the whole of the said sum of £2090 19s." (the aggregate
amount of the prmcipal debt and costs, for which judgment had been
entered) "shall have been fully paid and satisfied." A particular
" sum " is here mentioned, which does not include the interest then
due, or future interest, Wliatever was meant to be payable at all,
under this agreement, was clearly to be payable by half-yearly instal-
ments of £150 each ; any other construction must necessarily make the
conditional promise nugatory. But to say that the half-yearly pay-
ments were to continue till the whole sum of £2090 19s., " and in-
terest thereon," should have been fully paid and satisfied, would be
to introduce very important words into the agreement, which are not
there, and of which I cannot say that they are necessarily implied.
Although, therefore, I may (as indeed I do) very much doubt whether
the effect of the agreement, as a conditional waiver of the interest to
which she was by law entitled under the judgment, was really present
to the mind of the judgment creditor, still I cannot deny that it might
have that effect, if capable of being legally enforced.
But the question remains, whether the agreement is capable of be-
ing legally enforced. Not being under seal, it cannot be legally en-
forced against the respondent, unless she received consideration for it
from the appellant, or unless, though without consideration, it operates
by way of accord and satisfaction, so as to extinguish the claim for
interest. What is the consideration ? On the face of the agreement
none is expressed, except a present payment of £500, on account and
in part of the larger debt then due and payable by law under the judg.
(a) 1 A. ., it is, "where the condition is for payment of
£20, the obligor or feoffor cannot at the time appointed pay a lesser
sum in satisfaction of the whole, because it is apparent that a lesser
sum of money cannot be a satisfaction of a greater ; " adding (what is
beyond controversy), that an acquittance under seal, in full satisfaction
of the whole, would (under like circumstances) be valid and binding.
The distinction between the effect of a deed under seal, and that of
an agreement by parol, or by writmg not under seal, may seem arbi-
trary, but it is established m our law ; nor is it really unreasonable or
practically inconvenient that the law should require particular solem-
nities to give to a gratuitous contract the force of a binding obligation.
If the question be (as, m the actual state of the law, I think it is)^
whether the consideration is, or is not, given in a case of this kind, by
the debtor who pays down part of the debt presently due from him^
for a promise by the creditor to relmquish, after certahi further pay-
ments on account, the residue of the debt, I cannot say that I think
consideration is given, in the sense m which I have always understood
that word as used m our law. It might be (and indeed I think it would
be) an improvement in our law, if a release or acquittance of the whole
debt, on payment of any sum which the creditor might be content to
receive by way of accord and satisfaction (though less than the whole),
were held to be, generally, bmding, though not under seal ; nor should_
I be unwilling to see equal force given to a prospective ; i ■: reeme nt, like
the present, in writing though not under seal ; but I think it impossi.
ble, without refinements which practically alter the sense of the word,
to treat such a release or acquittance as supported by any new con-
sideration proceeding from the debtor. All the authorities subse-
quent to Cumber v. Wane (a), which were relied^upon by the appellant
at your Lordships' Bar (such as Sihree v. Trijyp (ft), Curleiois v. Cla^^k
(c) and Goddardv. (yBrien (d) have proceeded upon the distinction, that
by giving negotial)le paper or otherwise, there had been some new con-
sideration for a new agreement, distinct frOm mere money payments
in or towards discharge of the original liability. I think it unneces-
(a) 1 Sm. L. C. 8tli ed. 366. (6) 15 M. & W. 20. (r) 3 Ex. 375. (d) 9 Q. B. D. 37.
SCOTSON V^ PEGG. 451
sary to go through those cases, or to examine the particular grounds
on which each of them was decided. There are no such facts in the
case now before your Lordships. What is called " any benefit, or
even any legal possibility of benefit," in Mr. Smith's notes to Cumber
V. Wane (a), is not (as I conceive) that sort of benefit which a creditor
may derive from gettmg payment of part of the money due to him
from a debtor who might otherwise keep him at arm's length, or possi-
l)ly become insolvent, but in some independent benefit, actual or con-
tingent, of a kind which might in law be a good and valuable considera-
tion for any other sort of agreement not under seal.
My conclusion is, that the order appealed from should be afl&rmed
and the appeal dismissed, with costs, and I so move your Lordships {b).
Order appealed from affirmed^ and appeal dismissed with costs.
Lordi Journals^ 16 Mayy 1884.
SCOTSON AND OTHERS v, PEGG. ' ,,
In the Exchequer, January 28, 1861.
\B.e'iiorte(L in 6 Hurlstone -^-2*-fc<
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(a) Pollock, C. B., and Channell, B., were absent.
* Ch. Ill, Sect VI, Finch.
(&) 4 Rep. 16 &.
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462 HARRISON V. CAGE.
it is a breach of a woman's modesty to promise a man to marry him,
but it is not for a man to promise a woman to marry her.
Secondly, Here is no time laid when this marriage was to be ; and
it may be still.
Thirdly, The consideration is ill ; it is no more than " I will be
your husband if you will be my wife ; " it is no more than this, " I
will be your master, and you shall be my servant."
Fourthly, It is not reasonable that a young woman should be
caught into a promise.
JS contra. The action very well lies ; and certainly marriage is as
much advancement to a man as it is to a woman. And I am sorry
that the counsel on the other side has so mean an opinion of a good
woman as to think that she is no advancement to a man. We say
that we have offered ourselves, and that she did refuse us; and
though we do not mention the portion, it is well enough.
Holt, C. J. Why should not a woman be bound by her promise as
well as a man is bound by his ? Either all is a nudum pactum, or else
the one promise is as good as the other. You agree a woman shall
have an action ; now what is the consideration of a man's promise ?
Why, it is the woman's. Then why should not his promise be a good
consideration for her promise, as well as her promise is a good con-
sideration for his ? There is the same parity of reason in the one
case as there is m the other, and the consideration is mutual. As for
the case of the matrimonii prcBlocuti, that goes upon another reason,
there being a feoffment of lands and a condition annexed to it ; but
this here is upon a contract. In the ecclesiastical court he might
have compelled a performance of this promise ; but here mdeed she
has disabled herself, for she has married another. Then you might
have given m evidence any lawful impediment upon this action; as
that the parties were within the Levitical degrees, &c., for this makes
the promise void ; but it is otherwise of a precontract.
TuETON, J. There is as much reason for the one as for the other ;
and Halcomb's Case in Vaughan is plam.
RoKEBY, J. If a man be scandalized by words per quod matrinnon-
ium amisit, a good action lies ; and why not in this case ?
TuETON, J. This action is grounded on mutual promises.
Holt, C. J. The man is bound in respect of the woman's promise ;
if she make none, he is not bound by his promise, and then it is a
nudum pactum ; so that her promise must be good to make his signify
anything to her ; and then if her promise be good, why should not a
good action lie upon it?
Judgment for the plaintiff.
LEES V. WHITCOMB. 463
LEES V. WHITCOMB.
In the Common Pleas, June 14, 1828.
[Reported in 5 Bingham, 34.]
Assumpsit. The plaintiff declared, in the fourth count of his dec-
laration, that in consideration the plaintiff, at the special instance
and request of the defendant, would receive the defendant into his '' ^
service, and cause her to be taught the trade and business of a dress- ^^^j- ^^ ^
maker and milliner by the wife of the plamtiff, and the defendant
agreed and undertook and faithfully promised the plamtiff to continue *' ''-
with the wife of the plauitiff for two years, from the 5th of June,
1826, for the purpose of learning the business.
■^- Averment of the defendant's reception and instruction by the plaint-
iff's wife, and of her staying mhis service till April 14, 1827. Breach,
her refusal to remain in his service for the remainder of the period of
two years.
In the fifth count the consideration was stated to be simply the
receivmg the defendant mto his service, and the undertakuig, to
serve.
There were other counts ; but these came nearest to the agreement
between the parties, and were the only ones relied on. Plea, non
assumpsit.
At the trial before Park, J., Middlesex sittmgs after Hilary term,
the plamtiff, m support of his action, gave m evidence the foUowmg
agreement, signed by the defendant :
« I hereby agree to remaui with Mrs. Lees, of 302, Regent Street,
for two years from the date hereof, for the purpose of learmng the
busmess of a dress-maker. As witness my hand this 5th day of June,
« Amelia Whitcomb.'
No premium was paid by the defendant, who, on the day mentioned
m the agreement, entered the plamtiff's house, and left him m April
foUowmg, by which time she had made such progress hi learmng the
busmess that her services were becoming valuable to the plamtiff.
It appeared that dress-makmg and millmery were two distmct busi-
nesses.
On the part of the defendant it was objected, that there was no
mutuahty m the above agreement, and that, therefore, it was not bind-
ing on the defendant; that the plamtiff not havmg bound himself to
teach, although the defendant had agreed to remain and learn, there
was an entire absence of consideration for the defendant's agreement ;
and that the agreement given in e^ddence did not correspond Avith
thatsetoutmthe declaration. The plamtiff was thereupon nonsuited,
464 LEES r. WHITCOMB,
with leave to move to set aside the nonsuit, and have a new
trial.
Taddy^ Serjt, moved accordingly, and a rule nisi having been
granted.
Wilde^ Serjt. showed cause.
The fifth count is not supported by the evidence, because a contract
to serve is very different from a contract to learn. And there is no
consideration on the face of the agreement to support the fourth, as
there ought to be imder the Statute of Frauds. Wain v. Warlters («),
Saunders v. Wakefield (b), Jenkins v. Reynolds (c). The plaintiff
does not bind himself to teach, nor is the agreement even signed by
him as a party to be charged.
The Court here called on
Taddy. The defendant could not engage to learn without an im-
plied engagement on the part of the plaintiff to teach, so that the con-
sideration sufficiently appears in the engagement to learn. [^Per
Curiam. The fourth count alleges the consideration to be to teach the
business of a dress-maker and milliner ; it was proved that the two
businesses were distinct, and the writing put in evidence mentions
only the business of a dress -maker.] But the word service as em.
ployed in the flLEth count is usually and properly applied on the re-
lation between master and apprentice, Hex v. Lyn?i {d)-, and therefore
mcludes the required consideration of the teaching, and gives suffi-
cient mutuality to the contract. As to the omission of the plaintiff's
signature, it is sufficient if a memorandum of a bargain be signed by
one of the parties to the contract ; Egerton v. Matthews (e).
Best, C. J. I am of opinion that none of the coimts are proved.
The contract does not bear the meaning which is put upon it in the
declaration. The businesses of millmer and dress-maker are very
different, and that disposes of the fourth count. The fifth comit al-
leges the consideration to be the plaintiff's receiving the defendant
into his service, and the undertaking, an engagement to serve ; but
there is by the contract no obligation on the defendant to serve ; her
engagement is merely to remain for two years ; and the plaintiff could
not have compelled her to serve. It was probably the plaintiff's in-
tention to prevent the defendant from leaving him and setting up for
herself the moment she had learned his business, and there might
have been a sufficient consideration for that if he had undertaken to
teach ; but there is nothing in the agreement to insure such instruc-
tion to the defendant.
BuRROUGn, J. There is no consideration expressed in the agree-
(a) 5 East, 10. (6) 4 B. ^^ ^'^ ^'^T' ^L^ CUt^.^x^yy^^'^-Y^^^ ^
SIDENHAM V. WORLINGTON.
Section VII. — Executed Consideration.'
471,
SIDENHAM y. WORLINGTON.
In the Common Pleas, Easter Term, ISSS*
[Reported in 2 Leonard, 224^]
In an action upon the case upon a promise, the plamtiff declared
that he at the request of the defendant was surety and bail for J. S.,
who was arrested in the King's Bench upon an action of £30, and that
afterwards, for the default of J. S., he was constrained to pay the £30 ;
after which the defendant, meeting with the plaintiff, promised him
for the same consideration that he would repay that £30, which he
did not pay ; upon which the plaintiff brought the action. The defend-
ant pleaded 7ion asstcmpsit, upon which issue was joined, which was
found for the plaintiff. Wahnesley, Serjt., for the defendant, moved
the court that this consideration will not maintam the action, because
the consideration and promise did not concur and go together; for the
consideration was long before executed, so as now it cannot be intended
that the promise was for the same consideration : as if one giveth me
a horse, and a month after I promised him £10 foi' the said horse, he
shall never have debt for the £10, nor assumpsit upon that promise;
for there it is neither contract nor consideration, because the same is
executed. Anderson. This action will not lie; for it is but a bare
ao-reement and 7mdum 'pactum, because the contract was determined,
and not m esse at the time of the promise ; but he said it is otherwise
upon a consideration of marriage of one of his cousins, for marriage
is always a present consideration. Windham agreed with Ander-
son and he put the case in 3 H. 7. If one selleth a horse unto another,
and at another day he will warrant him to be sound of hmb and mem-
ber, it is a void warrant, for that such warranty ought to have been
made or given at such time as the horse was sold. Periam, J., con-
ceived that the action did well lie; and he said that this case is not
like unto the cases which have been put of the other side : for there is
a o-reat difference betwixt contracts and this case; for m contracts
up'on sale, the consideration and the promise and the sale ought to
meet together; for a contract is derived from con and trahere, which
is a drawing together, so as in contracts every thing which is requisite
ought to concur and meet together, viz., the consideration of the one
side, and the sale or the promise on the other side. But to maintain
an action upon an assumpsit, the same is not requisite, for it is suGi-
* Cii. III. Sect. VII, Finch.
-■£.-/>*. «,.»^-jj.
i
472
ENGLAND V. DAVIDSON.
cient if there be a moving cause or consideration precedent ; for which
cause or consideration the promise was made ; and such is the common
practice at tliis day. For in an action upon the case upon a promise,
the declaration is laid that the defendant for and in consideration of £20
to him paid (postea scil.), that is to say, at a day after super se assump-
sit, and that is good ; and yet there the consideration is laid to be exe-
cuted. And he said that the case in Dyer, 10 Ehz. 272, would prove
the case. For there the case was, that the apprentice of one Hunt
was arrested when his master Hunt was in the country, and one
Baker, one of the neighbors of Hunt, to keep the said apprentice out
of prison, became his bail, and paid the debt. Afterwards Hunt, the
master, returnmg out of the country, thanked Baker for his neighborly
kindness to his apprentice, and promised him that he would repay him
the sum which he had paid for his servant and apprentice : and after-
wards, upon that promise, Baker brought an action upon the case
against Hunt, and it was adjudged in that case that the action would
not lie, because the consideration was precedent to the promise, be-
cause it was executed and determined long before. But m that case
it was holden by all the justices that if Hunt had requested Baker to
have been surety or bail, and afterwards Hunt had made the promise
for the same consideration, the same had been good, for that the con-
sideration did precede, and was at the instance and request of the
defendant. Rhodes, J., agreed with Periam ; and he said that if one
serve me for a year, and hath nothing for his service, and afterwards,
at the end of the year, I promise him £20 for his good and faithful
service ended, he may have and maintain an action upon the case upon
the same promise, for it is made upon a good consideration ; but if a
servant hath wages given him, and his master ex abundanti doth prom-
ise him £10 more after his service ended, he shall not maintam an
action for that £10 upon the said promise; for there is not any new
cause or consideration preceding the promise ; which difference was
agreed by all the justices ; and afterwards, upon good and long advice
and consideration had of the principal case, judgment was given for
tlie plaintiff ; and they much relied upon the case of Hunt and Baker
10 Eliz., Dyer, 272.
ENGLAND v. DAVIDSON.
In the Queen's Bench, May 5, 1840.
[JReporeed in 11 Adolphus & Ellis, 856.]
Assumpsit. The declaration stated that heretofore, to wit, &c., the
defendant caused to be published a certaui hand bill, placard, or adver.
ENGLAND V. DAVIDSON. 473
tisement, headed « Fifty pounds reward ; " whereby, after reciting that,
late on the night of &c., the mansion house of defendant, at &c., was felo-
niously entered by three men, who effected their escape, that two men
had been taken into custody on suspicion of having been concerned in
the felony, and that a third, supposed to belong to the gang, had been
traced to Carlisle, and was of the following description, &c., the defend-
ant did promise and undertake that whoever would give such informa-
tion as should lead to the conviction of the offender or offenders should
receive the above reward : that plaintiff, confiding &c., did afterwards,
to wit on &c., give such information as led to the conviction of one of
the said offenders, to wit one David Robson ; and that afterwards, to
wit at the assizes for Northumberland, D. R-, who was guilty of the
said offence, to wit the feloniously entering &c., was in due course of
law convicted of the said offence of feloniously entering &c., in con-
sequence of such information so given by plaintiff ; of all which said
several premises defendant afterwards, to wit on &c., had notice, and
was then requested by plaintiff to pay him the said sum of 50^. ; and
defendant afterwards, to wit on &c., in consideration of the premises,
then promised plaintiff to pay him the sum of 50^. : breach, that, al-
though defendant, in part performance of his said promise and under-
taking, to wit on &c., did pay to plaintiff the sum of bl. 5s ., in part
payment of the said sum of 50/., yet &c. (breach, non-payment of the
residue.)
Third plea. That heretofore, and long before and at the time when
the house of defendant was so feloniously entered, and continually
from thence hitherto, plaintiff was, and now is, a constable and police
officer of the district where the said house of defendant is situate, and
the said offence was committed ; and it then was the duty of plaintiff,
as such constable and police officer, to have given, and to give every
information which might lead to the conviction of the said offender,
and to apprehend him and prosecute him to conviction, if guilty, with-
out any payment or reward to him made in that behalf : that, by the
said advertisement partly set out in the declaration, defendant gave
notice and promised that whoever would give such information to
plaintiff, therein described as police officer, Hexham, as should lead to
the conviction of the offender or offenders, should receive the said
reward in the said advertisement mentioned, and in no other manner
whatever : and that, by reason of the premises, the said promise was
and is void in law. Verification.
Demurrer, assigning for causes that the plea amounts to the general
issue, and does not deny, or confess and avoid, and is multifarious,
and tenders an immaterial issue. Joinder.
Ingham now appeared for the plaintiff : but the Court called on
Martin, for the defendant. No consideration is shown on this
--^^^^ ■' '' '■ ■'^^^^. .' ■ .. ^l^^:
'L^
.^'-t-*,J«-^'
474
ROSCORLA V. THOMAS.
record for the defendant's promise; the plaintiff was bound to do
that, the doing of which is stated as the consideration. The duty of
a constable is to do his utmost to discover, pursue, and apprehend
felons ; Com. Dig. Leet, (M 9), (M 10) ; Justices of Peace, (B 79). It
has been laid down that a sailor cannot recover on a promise by the
master to pay him for extra work m navigating the ship, the sailor
being bound to do his utmost, independently of any fresh contract ;
Harris v. Watson, (a) explained by Lord Ellenborough in Stilk v.
MeijricJc (b). The principle was recognized in Newmaii v. Walters, (c)
where the case of a passenger was distmguished. [Coleridge, J.
Those cases turn merely on the nature of the contract made by the
sailor.] If the duty here incumbent on the plaintiff was to do all that
the declaration lays as the consideration, the case is the same as if he
had been under a previous contract to do all. The cases on the subject
of consideration are collected in note {h) to Barber v. Fox (d). [Ingham.
The constable was not bound to procure evidence.] The contract
here declared upon is against public policy.
Lord Denman, C. J. I think there may be services which the
constable is not bound to render, and which he may therefore make
the ground of a contract. We should not hold a contract to be against
the policy of the law, unless the grounds for so decidmg were very
clear.
LiTTLEDALE, Patteson, and Coleridge, JJ. concurred.
Judgment for the defendant.
ROSCORLA V. THOMAS.
In the Queen's Bench, May 30, 1842.
[Reported in 3 Queen's Bench Beports, 234.]
Assumpsit. The declaration stated that, whereas heretofore, to wit
&c., in consideration that plaintiff, at the request of defendant, had
bought of defendant a certain horse, at and for a certain price &c., to
wit &c., defendant promised plaintiff that the said horse did not exceed
five years old, and was sound &c., and free from vice ; nevertheless
defendant did not perform or regard his said promise, but thereby de-
ceived and defrauded plamtiff in this, to wit, that the said horse,
at the time of the making of the said promise, was not free from vice,
but, on the contrary thereof, was then very vicious, restive, ungovern-
able, and ferocious ; whereby &c.
Pleas : 1 . Non assumpsit. Issue thereon.
{(l) 2 Wms. Saiin(1.137 c. See also Jones
V. Waite, 5 New Ca. 341. 351, 356; Haigh
V. Brooks, 10 A. Jcins v. Logan (m) there was an executed
consideration from which a promise to pay on request would have
(«) There were other counts, on which (g) 1 Marsh. 567.
issues were joined and found for the (/;) It was also argued that the warranty
defendant. miglit here, after verdict, be taken to be
(6) The rule was also for entering a ver- coincident with the sale: to which it
diet, on the evidence, for the defendant; was answered that, if it were so, the
but on this the Court did not decide. evidence negatived the declaration.
(c) April 28th, 1842. Before Lord Den- (i) Cro. Jac. 196.
man, C. J., Patteson, Williams, and (j) Cro. Jac. 630.
Wightman, JJ. {k) 2 East, 314.
(d) 1 Wms. Saund. 264 a. (0 1 B. & Ad. 950.
(e) 7 B. & C. 423. \m) 5 M. & W. 241.
(/) 1 Man. ct G. 166.
476 flOSCORLA V. THOMAS.
arisen : and it was holden that this did not support a promise to pay on
a future day named. [Patteson, J. referred to Hunt v. Bate (a), as
cited in Eastwood v. Kenyon (b), and to Lampleigh v. Brathxoait (c).]
Our. adv. mdt.
LoED Denmax, C. J., in this term (May 30th), delivered the judgment
of the Court.
This was an action of assumpsit for breach of warranty of the
soundness of a horse. The first coiuit of the declaration, upon which
alone the question arises, stated that, in consideration that the plaint-
iff, at the request of the defendant, had bought of the defendant a
horse for the sum of 30/., the defendant promised that it was sound
and free from vice. And it was objected, in arrest of judgment, that
the precedent executed consideration was insufficient to support the sub-
sequent promise. And we are of opinion that the objection must prevail.
It may be taken as a general rule, subject to exceptions not appli-
cable to this case, that the promise must be coextensive with the con-
sideration. In the present case, the only promise that would result
from the consideration, as stated, and be coextensive with it, would bei
to deliver the horse upon request. The precedent sale, without a|
warranty, though at the request of the defendant, imposes no other!
duty or obligation upon him. It is clear, therefore, that the consider- 1
ation stated would not raise an implied promise by the defendant that
the horse was sound or free from vice.
But the promise in the present case must be taken to be, as in fact
it was, express : and the question is, whether that fact will warrant
the extension of the promise beyond that which would be implied by
law ; and whether the consideration, though msufficient to raise an im-
plied promise, will nevertheless support an express one. And we
think that it will not.
The cases in which it has been held that, under certain circum-
stances, a consideration insufficient to raise an implied promise will
nevertheless support an express one, will be found collected and re-
viewed in the note 1 to Wennall v. Adney (d), and in the case of East-
wood V. Kenyon (e) . They are cases of voidable contracts subsequent-
ly ratified, of debts barred by operation of law, subsequently revived,
and of equitable and moral obligations, which, but for some rule of
law, would of themselves have been sufficient to raise an implied
promise. All these cases are distinguishable from, and indeed inap.
plicable to, the present, which appears to us to fall within the general
rule, that a consideration past and executed will support no other
promise than such as would be implied by law.
(a) 3 Dyer, 272 a. (b) 11 A. & E. 438, 452.
(c) Hob. 105, r)th ed. See s. c, 1 Smith's Leading Cases, 67.
(d) 3 Bos. & Pul. 240. (e) 11 A. & E. 438.
LAMPLEIGH V. BRATHWAIT. 477
The rule for arresting the judgment upon the first count must there-
fore be made absolute.
Mule absolute.
LAMPLEIGH v. BRATHWAIT.
In the Common Pleas, Michaelmas Term, 1615.
[Reported in Hobart, 105; 1 Smith's Leading Cases, 67.]
Anthony Lampleigh brought an assumpsit against Thomas Brath-
wait and declared, that whereas the defendant had feloniously slam one
Patrick Mahume ; the defendant, after the said felony done, instantly
required the plaintiff to labor, and do his endeavor to obtain his par-
don from the king, whereupon, the plamtiff, upon the same request, did,
by all the means he could and many days' labor, do his endeavor to
obtain the king's pardon for the said felony, viz. in riding and journey-
ing at his own charges from London to Roiston, when the king was
there, and to London back, and so to and from Newmarket, to obtain
pardon for the defendant for the said felony. Afterwards, sc. &c., in
consideration of the premises, the said defendant did promise the said
plaintiff to give him 100?., and that he had not, &c., tohis damage I'lQL
To this the defendant pleaded non assumpsit, and found for the
plaintiff, damage 100?. It was said in arrest of judgment, that the
consideration was passed.
But the chief objection was, that it doth not appear that he did any-
thing towards the obtaining of the pardon, but riding up and down,
and nothing done when he came there. And of this opinion was my
brother (Warburton), but myself and the other two Judges were of
opinion for the plaintiff, and so he had judgment.
First, it was agreed, that a mere voluntary courtesy will not have a
consideration to uphold an assumpsit. But if that courtesy were moved
by a suit or request of the party that gives the assumpsit, it will bind :
for the promise, though it follows, yet it is not naked, but couples it-
self with the suit before, and the merits of the party procured by that
suit, which is the difference. Pasch. 10 Eliz., Dyer, 272. Hunt and
Bates. See OneUy's Case., 19 Eliz., Dyer, 355.
Then, as to the main point, it is first clear, that in this case upon
the issue non assumpsit, all these points were to be proved by the
plaintiff :
1. That the defendant had committed the felony, ^ro?<«, &c.
2. Then that he requested the plaintiff's endeavor, xtrout, &c.
3. That thereupon the plaintiff made his proof, pront., «fec.
4. That thereupon the defendant made his promise, prout\ &c.
\
478 LAMPLEIGH V. BRATHWAIT.
For wheresoever I build my promise upon a tiling done at ray re-
quest, the execution of the act must pursue the request, for it is like a
case of commission for this purpose.
So then the issue found tit sujyra is a proof that he did his endeavor
according to the request, for else the issue could not have been found :
for that is the difference between a promise upon a consideration ex-
ecuted and executory, that in the executed you cannot traverse the
consideration by itself, because it is passed and incorporated and
coupled with the promise. And if it were not indeed then acted, it
is nudmn pactum.
But if it be executory, as, m consideration that you shall serve me
a year, I will give you ten pounds, here you cannot brmg your action,
till the service performed. But if it were a promise on either side
executory, it needs not to aver performance, for it is the counter-
promise, and not the performance, that makes the consideration ; yet
it is a promise before, though not binding, and in the action you shall
lay the promise as it was, and make special averment of the service
done after.
Now if the service were not done, and yet the promise made, prout,
&c., the defendant must not traverse the promise, but he must traverse
the performance of the service, because they are distinct in fact, though
they must concur to the bearing of the action.
Then also note here, that it was neither required, nor promised, to
obtain the pardon, but to do his endeavor to obtain it : the one was
his end and the other his office.
Now then, he hath laid expressly, in general, that he did his eii
deavor to obtain it, viz. in equitando^ cfcc, to obtain. Now then,
clearly, the substance of this plea is general, for that answers directly
the request, the special assigned is but to hiform the court ; and there-
fore, clearly, if upon the trial he could have proved no riding nor jour-
neying, ^yet any other effectual endeavor according to the r egues t
would have served : and therefore, if the consideration had beeii^ that
he sliuiild endi ivijr in the future, so that he must have laid his en-
deavor expressly, and had done it as he doth here, and tlie defendant
had not denied the promise, but the endeavor, he must have traversed
the endeavor in the general, not in the riding, &c. in the special ;
which proves clearly, that is not the substance, and that the other
endeavor would serve. This makes it clear, that though particulars
ought to be set forth to the court, and those sufficient, which were not
done, which might be cause of demurrer ; yet being but matter of
form, and the substance in the general, which is herein the issue and
verdict, it were cured by the verdict ; but the special is also well
enougli ; for all is laid down for the obtaining of the pardon which is
within the request ; and therefore, suppose he had ridden to that pur-
KAYE V. DUTTON. 479
pose, and Brathwait had died, or himself , before he could do any thino-
else, or that another had obtained the pardon before, or the like, yet
the promise had holden.
And observe that case, 22 E. 4, 40. Condition of an Obligation, to
show a sufficient discharge of an annuity, you must plead the cer-
tainty of the discharge to the court. The reason whereof, given by
Brian and Choke, is, that the plea there contains two parts, one a
trial per pais, scil. the writing of the discharge, the other by the court,
soil, the sufficiency and validity of it, which the jury could not try,
for they agree, that if the condition had been to build a house agree-
able to the state of the obligee, because it was a case all proper for
the country to try, it might have been jaleaded generally : and then it
was a demurrer, not an issue, as is here.
KAYE V. DUTTON.
In thb Common Pleas, June 29, 1844.
[ Reported in 7 Manning & Granger, 807. ]
AssiTMPSiT. The first count of the declaration stated, that, by a
certain agreement or instrument m writmg made by the defendant,
theretofore, to wit, on the 2'2nd of September, 1836, — after reciting that
one Whitnall, m his life- time, released and assured by deeds of the 30th
and 31st of May, 1832, his freehold dwelling-houses and hereditaments
at Windsor, in Upper Parliament Street, m Toxteth Park, imto R. Rock-
liff and H. Bullen, their heirs and assigns, by way of mortgage, to secure
the repayment of 3500^.; and also reciting that the said Rockliff and
Bullen required the said Whitnall to obtain the plaintiff to join him in
a bond as a collateral security further to secure the repayment of the
said sum of 3500/. and interest : and also reciting that the defendant
had, since the death of the said Whitnall, taken upon himself the man-
agement of the estate of the said Whitnall, and had paid to the said
Rockliff and Bullen 3370/. ; and also reciting that the said Bullen and
Rockliff had called upon the plaintiff for payment of the said mort-
gage, and he was surety for the said Whitnall in the said bond, and
that the plaintiff thereupon paid to the said Bullen and Rockliff the
sum of 130/. on the 1st of May, 1835 ; an\i also reciting that the defend-
ant had repaid the plaintiff the sum of 48/., leaving due to him the
sum of 82/., and that such last-mentioned amount the defendant had
agreed to repay to the plaintiff out of the moneys which might arise
from the sale of the said hereditaments and premises when the same
should be sold, and in the meantime to appropriate the rents of the said
hereditaments and premises towards payment of the same sum, as the
480 KAYE V. DUTTON.
plaintiff had a lien on the said hereditaments and premises for the said
sum of S2l. ; and also reciting that the defendant had requested the
plaintiff to release and convey all his estate and interest in the said
hereditaments and premises to Alison and Lenox, and that that he had
already done, reserving to himself a lien on the said property as afore-
said — It was by the said agreement or instrument in writing witnessed,
that, m consideration of the plamtiff's having paid to the said Bullen
and Rockliff the said sum of 130/., in part discharge of the said mort-
gage, and in consideration of the plaintiff's havmg released and con-
veyed all his estate and interest m the said hereditaments to Alison
and Lenox ( reserving to himself the said lien ), and in order to secure
to the plaintiff the repayment of the said sum of 82/., he the defendant
did thereby for himself undertake and agree with the plaintiff, his ex-
ecutors, administrators, and assigns, to pay to him or them the said sum
of 82/., with interest thereon, out of the proceeds to arise from the sale
of the said hereditaments and premises, when the same should be sold,
and, in the meantime, and until such sale was effected, to appropriate
the rents of the said hereditaments and premises, in liquidation of the
said sum so due to the plaintiff as aforesaid ; as by the said agreement
or instrument in writing, reference being thereunto had, will appear :
Averment, that, the said agreement or instrument m writmg being
so made as aforesaid, he, the defendant, in consideration of the prem-
ises, afterwards; to wit, on the said 22nd of September, 1836, promised
the plaintiff to observe and perform the said agreement or instrument
in writing, in all things therein contained and on his the defendant's
part to be observed and performed ; that, after the said agreement or
instrument in writing was made as aforesaid, and before the said sale
therein mentioned was effected, to wit, on the 30th of September, 1836,
and on divers other days between that day and the commencement
of the suit, the defendant received the said rents in the said agreement
or instrument mentioned, to a large amount, to wit, to the amount of
2000/., which he could and might and ought, according to the said
agreement or instrument in that behalf, to have appropriated in liqui-
dation of, and which were sufficient to liquidate, the said sum of 82/.
so due to the plaintiff" as aforesaid ; yet the defendant, disregarding the
said agreement or instrument and his said promise, did not nor would,
although theretofore, to wit, on the 1st of September, 1839, requested
by the plaintiff so to do, appropriate the said rents so received by
him as aforesaid, or any part thereof, in liquidation of the said sum of
82/., so due to the plaintiff as aforesaid, or pay the same rents, or any
part thereof, to the plaintiff on account, or in discharge, or part dis-
charge, of that sum of money, or otherwise howsoever, but wholly
refused so to do, and the last- mentioned sum of 82/. is still wholly
unliquidated, and wholly due and unpaid to the plaintiff.
KAYE V. DUTTON. 481
To this count the defendant pleaded amongst others two special
pleas, to the replications to which he demurred specially. Upon the
argument in Easter term last, however, the defendant abandoned the
pleas, and objected to the declaration.
Dotclinff, Serjt., for the defendant. Three objections arise on the
declaration : first, it discloses no consideration for the promise alleged ;
secondly, the consideration (if any) is a mere moral consideration ;
thirdly, the consideration being executed, it can only sustain an implied
promise (a) ; whereas the promise alleged is a different one, being an
express promise.
Construing the declaration most favorably for the plaintiff, it appears
that he having become sui-ety for Whitnall, the mortgagor, paid ISOl.
to the mortgagees ; that the defendant — who had taken upon himself
the management of Whitnall's estate, — had repaid him 48/., and prom-
ised to pay him the residue out of the proceeds thereof ; and that the
plamtiff, at the request of the defendant, released and conveyed all his
interest in the premises to Alison and Lenox, reserving to himself a
lien on the property. This statement of facts does not disclose any
consideration whatever for the defendant's promise. The only inter-
est the plaintiff ever had in the premises was the lien, which entitled
him, m equity, to stand in the position of the mortgagees. Copis v.
Middlet07i (b). The recital that the d^feirdunt had released all his es-
tate and interest in the property, except his lien, is in effect to say that
he had released nothing. Possibly the consideration might have been
good if it had been alleged that the plaintiff had executed some instru-
ment purporting to convey an mterest. In Wilkiiison v. Olweira (c),
the declaration stated that, in consideration that the plaintiff, at the
request of the defendant, had given the defendant a letter written by
O., since deceased, by means of which letter the defendant was enabled
to, and did, determine controversies, and obtain a large portion of O.'s
effects, the defendant promised to give the plaintiff 1000/. : and it was
held that the declaration disclosed a sufficient consideration to sustain
an action on the promise. So here, if the declaration had stated that
the plamtiff had executed an assignment, it might have been sufficient ;
but the only consideration alleged is, the assigning of his interest ;
whereas he had none to convey.
Secondly. The only consideration that appears upon the face of the
declaration (if any) is a mere moral consideration, to which the law
will give no effect. A past consideration will not support a subsequent
promise; Jeremy v. Goochman (d) Bakers. Halifax {e) Docket v,
Voyd (/). The law does not, in truth, give effect to any but an exe-
cutory {g) consideration. It may be said that the consideration here
(a) Quaere. {?>) Turn. &: Russ. 224. (c) 1 N. C. 490, 1 Sc. 461.
(d) Cro. Eliz. 442. (e) lb. 741. (/) lb. 885.
■y-Q^ 2 32 (&) ^' ^' executory iu its inception.
482 KAYE V. BUTTON.
is not simply an executed consideration, because it is stated tliat the
defendant had requested the plaintiff to convey. But a mere request
is of no avail. LampUigh v. Brathwait {a). The promise alleged and
the promise implied by law must be co-extensive. Veitch v. Russell
(b). [TixDAL, C. J. That case shows that a subsequent express promise
will not convert that into a debt which, of itself, was not a legal debt.]
It establishes that an express promise cannot be supported by a moral
consideration.
Thirdly. If the court think that any promise can be impUed from
the facts stated, it will not be the promise alleged. It is clear that an
executed consideration will only sustain such a promise as the law will
imply. Broion v. Onim]) (c). In Granger v. Collins (J), the declaration
(m assumpsit) stated, that whereas befare and at the time of making
the agreement theremafter mentioned, the defendant held the house
and premises thereinafter mentioned, for the residue of a term of
years, and thereupon afterwards, to wit, on &c., agreed to let to the
plaintiff, who then agreed to take of the defendant the said house and
premises at a certain rent ; and, m consideration of the premises, the
defendant promised the plauitiff that he should quietly hold and enjoy
the said house and premises during the said term, without any eviction
from the parties entitled to the reversion ; nevertheless he the plaintiff
was evicted by the party entitled to the reversion. The declaration was
held bad on demurrer, masmuch as the plauitiff havmg declared on the
simple relation of landlord and tenant, no such duty as that laid on the
defendant's promise arose from that relation. So, m Hoiylins v. Lo-
gan {e), it was held that an executed consideration, whereon the law
implies a promise to pay on request (as, upon an account stated), is not
sufficient to support a promise to pay at a future day. Parke, B.,
there said : " The promise which arises in law upon an account stated
is, to pay on request, and any other promise is nudum pactum, unless
made upon a new consideration." Alderson, B., said : " The consider-
ation is clearly executed, and the promise which the law implies
thereon is, to pay on request. In order to convert that promise into
a promise to pay at a future day, there must be a new consideration."
And Maule, B., said : " I agree, that an executed consideration is no
consideration for any other promise than that which the law would
imply; if it were, there would be two co-existing promises on one
consideration." Here, the plaintiff must proceed on the promise im-
plied by law ; and if the court cannot imply any promise at all, or if
it cannot imply the promise laid clearly, the declaration is bad. Jack-
son \. Cobbin{f). In Roscorla v. Tlmnas (g),t\\e declaration (in as-
sumpsit) stated that, theretofore, to wit, on the 29th of September,
(a) Hob. 105, Sir F. Moore, 866. {d) 6 M. & W. 45S (e) 5 M. & W. 241.
a!) ;] Q. B. 928, .3 G. & D. 198. (0 8 M. AW 790 1 Dowl. (n. s.) 96.
(c 1 Marsh. 567, 6 Taunt. 300. (flr) 3 Q. B. 234, 2 Gale & D. 508.
KAYE V. DUTTON. 483
1840, in consideration that the plaintiff at the request of the defend-
ant had bought of the defendant a certain horse at a certain price, to
wit, 30/. the defendant promised the plamtiff that the horse was sound
and free from vice. It was held, in arrest of judgment, that the
promise appeared to have been made in respect of a precedent executed
consideration ; that it must be taken to have been an express promise,
but that no express promise on such a consideration, though executed
at request, could extend beyond the promise which the law would
imply while the consideration was executory ; that at the time of the
sale the only implied promise was to deliver the horse on request, and
that, after the sale, therefore, there was no consideration for the
subsequent express promise of warranty.
Channell, Serjt., contra. The declaration is good. The defendant's
promise bemg laid to have been made in consideration of the premises,
that is, of all that is stated in the foregoing part of the declaration, it is
submitted that the facts alleged disclose a sufficient legal consideration.
Admitting that a mere moral consideration ordmarily will not sustain
a promise, here a legal consideration is apparent. If the defendant
had any estate or interest to convey, his parting with it at the defend-
ant's request would be an ample consideration : and upon this declara-
tion it is not competent for the defendant to say that the plaintiff did
not release some interest in the mortgaged premises. Having paid
money as surety for the mortgagor he would stand m his place, and
if any interest can be inferred beyond the lien, there is a good con-
sideration. The difficulty arises on the words " reservmg to himself
a lien on the said property." The fair meaning of that is, that the
plaintiff had given up his lien so far as regarded Alison and Lenox, but
preserved it as between himself and the defendant. As to the second
point, the rule upon this subject is well laid down in 1 Wms. Saund.
264, n., where it is said that " a past consideration is not sufficient to
support a subsequent promise, unless there was a request by the party,
either express or implied, at the time of performing the consideration ;
(a) but where there is an express request at the time, it will in all
cases be sufficient to support a subsequent promise." Here, what is
treated as a past consideration is stated to have been done because of
the defendant's request. Cases have been cited to show that the past
consideration here stated does not support the particular promise
alleged in the declaration : but those cases are distinguishable : as, in
all of them, the promise implied by law differed widely from that
alleged on the face of the declaration. The question how far a moral
consideration will support a subsequent express promise, is discussed
by Lord Denman, in Eastwood v. Kenyan, (b) Here, looking at the
(o) 1 Man. & Gr. p. 266, u. (6) 11 Ad. & E. 438, 3 P. & D. 276.
484
KAYE V. DUTTON.
whole declaration, a suflBcient consideration appears for the promise
laid. Cur. adv. vult.
TixDAL, C. J., now delivered the judgment of the court. This was a
declaration in assumpsit upon a special agreement, to which the de-
fendant pleaded, amongst others, two special pleas, namely, the fourth
and fifth pleas, to which the plaintiff demurred; and the defendant
demurred specially to the plaintiff's replication to the third plea. But
it is unnecessary to advert to the particular state of the pleadmgs, as
it was admitted by my brother Dowlmg, on the argument for the de-
fendant, upon an objection taken to the fourth and fifth pleas, that
he could not support those pleas, and the whole argument before us
turned on the sufficiency of the declaration.
Two objections were made to the declaration — first, that it did not
show any consideration for the promise by the defendant ; secondly,
that the promise was laid in respect of an executed consideration, but
was not such a promise as would have been implied by law from that
consideration ; and that, in point of law, an executed consideration
will support no promise, although express, other than that which the
«,w itself would have implied. The cases cited by the defendant, viz.
iBroxon v. Crump (a), Granger v. Collins (b), Hopkins v. Logan (c), Jach-
json V. Cobhin (d), and Roscorla v. Thomas (e), certainly support that
/proposition to this extent, — that, where the consideration is one from
I which a promise is by law implied, there no express promise made in
/ respect of that consideration after it has been executed, differing from
If that which by law would be implied, can be enforced. But those
'- cases may have proceeded on the principle that the consideration was
exhausted by the promise implied by law, from the very execution of
it ; and, consequently, any promise made afterwards must be nudum
pactum^ there remaining no consideration to support it. But the case
may, perhaps, be different where there is a consideration from which
no promise would be implied by law ; that is, where the party suing
has sustained a detriment to himself or conferred a benefit on the de-
fendant, at his request, under circumstances which would not raise
any implied promise. In such cases it appears to have been held, in
some instances, that the act done at the request of the party charged,
is a sufficient consideration to render binding a promise afterwards
made by him in respect of the act so done. Hunt v. Bate (/), and
several cases mentioned in the margin of the report of that case, seem
to go to that extent : as also do some others collected in Roll. Abr.
Action sur Case (Q) (). But it is not necessary that we should pro-
nounce any opinion upon that point ; for, assuming it to be suflBciently
(a) 1 Marsh. 507, 6 Taunt. 300. (e) ?. Q. B. 234, 2 Gale & D. 508.
(M 6 M. & W. 4.58. (f) Dyer. 272.
(c) h M. ^ W. 241, 7 Dowl. .360. (r/) 1 Roll. Abr. 11; translated, 1 Vin.
(d) 8 M. A W. 790, 1 Dowl. (n. s.) 96. Abr. 279.
KAYE V. DUTTON. 485
alleged that the plaintiff released and conveyed his interest at the re-
quest of the defendant, yet it does not appear that he had any mter-
est which passed by such release and conveyance. The declaration '?
is founded on an agreement which recites that a certain estate had
been mortgaged by one Whitnall, since deceased ; and that the plaint-
iff had joined in a bond as a collateral security for the mortgage-
money, and had afterwards been compelled to pay off a portion of it ;i
that the defendant had taken upon himself the management of Whit-\
nail's affairs, had repaid to the plaintiff" part of the money which he
had paid, and had agreed to pay him the residue out of the proceeds
of the mortgaged property when sold, and in the meantime to appro-
priate the rents of the premises to the payment of the same sum as
that for which the plaintiff had a lien on the said premises. Thus
far there is nothing to show that the plaintiff had any other interest
than this lien. The agreement then recites that the defendant had
requested the plaintiff to release and convey his interest to AUson
and Lenox, and that he had done so, reserving to himself a lien on the
property as aforesaid, that is, reserving to himself the only interest
that he is shown to have had. The agreement then proceeds to state
that, in consideration of the plaintiff having paid the money and hav-
ing released and conveyed all his estate and interest to Alison and
Lenox, reserving to himself the said lien, the defendant undertook
and agreed, &c. Now, the payment of the money by the plaintiff
would be no consideration for the defendant's promise ; and the al-
leged release and conveyance was again no consideration, for it does
not appear that the plaintiff parted with any thing by it. For the
plaintiff it was contended, that he must be taken to have parted with
his lien on the property, reserving only his right to call upon the de-
fendant to pay the residue still due to the plamtiff, out of the proceeds
of the estate, when sold, and, m the meantime, to appropriate the
rents to the same object. But we cannot put that construction upon
the agreement, which expressly speaks of the lien reserved as the
same lien which the plaintiff had before.
Such being m our judgment the effect of the agreement set out in
the declaration, the case resembles that of Edwards v. Baugh {a)-
There, the declaration alleged that certam disputes and controversies
were pending between the plaintiff and defendant, as to whether the
defendant was indebted to the plaintiff m a certain sum of money ;
and that thereupon, in consideration that the plaintiff would promise
the defendant not to sue him for the recovery of the said sum in dis-
pute, but would accept a smaller sum in full satisfaction, the defen-
dant promised to pay such smaller sum. On general demurrer, the
declaration was held bad, because it did not allege that any debt was
{a) 11 M. & W. 641.
486 VICTORS V. DAVIES.
due from the defendant to the plaintiff, or that an action had been
commenced for the recovery of any sum claimed. ,So, in thejgrsafiiifc
case, as the declaration does not shoAV that, the plaintiff had anyJP-
" terest in the premises except that which he r eserved, it doe s not
^^pearulhat his release and conveyance, although executed at the i ifi=
.^fendant's request^ formed any legal consideration for-the-^rcuuis£L-.aL -
sieged to have been made by the latter. Our judgment must there-
fore be for the defendant.
Judgment for the defendant.
VICTORS V. DAVIES.
In the Exchequer, April 22, 1844.
[Beporied in 12 Meeson & Wehby, 758.]
Assumpsit. The declaration stated, that the defendant, on the 6th
of March, 1844, was indebted to the plaintiff in the sum of £10, for
money lent by the plaintiff to the defendant.
Special demurrer, assigning the following causes : — That it is not
alleged in the declaration that the money was lent to the defendant
at his request, and that therefore there is no consideration to support
the promise ; nor does it sufficiently appear that the defendant was m-
debted to the plaintiff.
Pearson, in support of the demurrer. — The declaration is insufficient
for want of the averment that the money was lent to the defendant
" at his request. " [Alderson, B. , — Plow can there be a lender unless
there be also a borrower ?] A plaintiff is bound to allege a request,
wherever the consideration is executed. In the notes to Osborne v.
Rogers (a) it is said that " a past consideration is not sufficient to sup-
port a subsequent promise, unless there was a request of the party,
either express or implied, at the time of performing the consideration, "
And, in a note by the learned editors of the fifth edition, it is added,
" So, even an affidavit (to hold to bail) of debt for money lent and for
goods sold and delivered, and for work and labor, has been held irreg-
ular, because it omitted to state that it was ' at the instance and re-
quest of the defendant, ' although it stated that it was ' to and for his
use and on his account ; ' " for which they cite J)urnfordy. Jfessiter (b).
In Chitty on Pleading (c), it is also said, " In each of these counts upon
an executed consideration, except that for money had and received,
and the account stated, it is necessary to allege that the consideration
of the debt was performed at the defendant's request, though such re-
quest might, in some cases, be implied in evidence. " [Parke, B. —
There is a very learned note of my Brother Manning on this subject ((?),
(rt) 1 Saund. 2r,4, n. 1. (b) o M. & Solw. 440. (c) Vol. 1, p. :;53, 7th ed.
(d) 1 Man. & Gr. 2G5.
I
VICTORS V. DA VIES. 487
in which he goes into the whole law with respect to alleging a request
and points out the error into which Mr. Serjeant Williams appears to
have fallen in his comment upon Osborne v. Rogers. The note is
thus : " The consideration being executory, the statement of the re-
quest in the declaration, though mentioned in the undertaking, appears
to have been imnecessary. In Osborne v. Rogers, the consideration of
a promise is laid to be, that the said Robert, at the special instance
and request of the said William, would serve the said William, and
bestow his care and labor in and about the business of the said William ;
and the declaration alleges, that Robert, confiding in the said promise of
William, afterwards went into the service of William, and bestowed
his care and labor in and about &c. Here the consideration is clearly
executory, yet Mr. Serjeant WiUiams, m a note to the words ' at the
special instance and request, ' says, ' these words are necessary to be
laid in the declaration, in order to support the action. It is held, that
a consideration executed and past, — as, in the present case, the service
performed by the plaintLff for the testator in his lifetime, for several
years then past, — is not sufficient to maintain an assumpsit, unless it
was moved by a precedent request, and so laid. ' The statement, ac-
cording to modern practice, of the accrual of a debt for, or the mak-
ing of a promise for the payment of, the price of goods sold and de-
livered, or for the repayment of money lent, as being in consideration
of goods sold and delivered, or money lent to the defendant, at his re-
quest, is conceived to be an inartificial mode of declaring, Even. ghere
the consi deration is entirely past^it a ppear s to be uijmecessaxy.tojillege
a request, if the act stated as the consideration cannot, fi'omits-nature,
"Have been a gratuitous~kindness, but imports aT consideration ^:>€r se.
It being immaterial to the right of action whether the bargain, if
actually concluded and executed, or the loan, if made, and the moneys
actually advanced, was proposed and urged by the buyer or by the
seller, by the borrower or by the lender. Vide Rastall's Entries, tit.
Dette ; ' and Co. Ent. , tit. ' Debt. ' " There cannot be a claim for
money lent unless there be a loan, and a loan imports an obligation to
pay. If the money is accepted, it is immaterial whether or not it was
asked for. The same doctrine will not apply to money paid ; because
no man can be a debtor for money paid, unless it was paid at his re-
quest. What my Brother Planning says, in the note to which I have re-
ferred^is perfectly correct.]
Pollock, C. B. — There cannot be a doubt about this case ; the state-
ment that the money was lent implies that it was advanced at the re-
quest of the defendant. There must be judgment for the plaintiff.
Pakke, B., Aldekson, B. , and Rolfe, B., concurred.
Judgment for the plaintiff.
1'
'^88 FLIGHT V. EEED.
FLIGHT V. REED.
In the Exchequer, January 21, 1863.
[Reported in 1 Hurlstone
by way of renewal of the said first-mentioned bills, and accepted to
secure the payment to the plaintiff of the money secured by the first-
named bills so given to the plaintiff and the said usurious interest,
and that save as aforesaid there was not any value or consideration
for the acceptance by the defendant of the bills sued on.
The plea disclosed this state of things, viz., that, when the loan was
made and the first bills of exchange given, the statute 12 Anne, Stat.
2, c. 16, was in operation, but that when the bills of exchange declared
on were given the statute 17 & 18 Vict. c. 90, had passed. The latter
statute repeals the statute of Anne ; but the second section provides
that nothmg m it shall prejudice or affect the rights or remedies, or
diminish or alter the liabilities of any person in respect of any act done
492 FLIGHT V. REED.
previous to its passing. The original loan and bills of exchange
were therefore left unaffected by it. The statute of Anne enacts
that no person upon any contract shall take for a loan of money
above 5^. per cent, for a year, and that all contracts for payment of
any principal so lent shall be utterly void, and that any personwho
shall take above 5^ per cent, for a year shall forfeit and lose for sucH
offence treble the value of the money lent. The loan was therefore
an illegal transaction, and the original contract to repay it and the
bills of exchange given for it were utterly void ; and the plea states
that save these there was no other consideration for the bills de-
clared on.
It is quite clear that a bill of exchange is a simple contract ; it and
promissory notes differ from other simple contracts in this, that prima
facie they import consideration ; but when it is proved that there was
no consideration, or an illegal one, the bill of exchange or note is of
no avail. It does seem superfluous to cite any authority for the above
positions, but m my brother Byles' book upon Bills, page 111 (8th
edition), it is stated that the defendant is at liberty in all cases (when
the issue raised admits of it) to show affirmatively, by his own wit-
nesses, absence or failure of consideration ; and again, page 124, the
consideration given for a bill must not be illegal ; and at page 132, if part
of the consideration of a bill be illegal, the instrument is vitiated
altoo-ether ; and at page 288 usury is said to be an indictable misde-
meanor at common law, for which Comyn's Digest, title Usury, is
cited. Now the consideration for the bills declared on was the usuri-
ous loan, and the bills of exchange given to secure it. But the statute
of Anne has declared these to be utterly void ; and, speaking for my-
self, I cannot understand how an utterly void and illegal contract or
transaction can be a legal consideration for a new contract. But the
case does not rest here; for at page 294 the same learned author states
that if an usurious bill be in the hands of a holder who was a party to the
usurious transaction, and he gives it up for a substituted security,
the original usurious taint infects the subsequent security, and either
is void. Now applying the above statement of the law, the conse-
quence seems to me inevitable that the bills of exchange sued on are
not of avail in the hands of the plaintiff, who was the usurious lender,
and that the plea is good.
But a case of Barnes v. Hedley (a), was cited. According to the
statement in the report, a person called Webb had agreed to lend
money at bl. per cent, interest, but with a proviso that he should also
receive a commission of bl. per cent, upon sugars to be bought of him
or provided by him, and certain deeds and securities were given to
him to secure the balance due. It was admitted at the trial that this
(a) 2 Taunt. 184.
FLIGHT V. REED. 493
was an usurious contract, but it was proved that in consequence of its
being intimated to Webb that it was so, it was agreed that Webb
should make out fresh accounts, leave out all the usurious charges,
charge only for the principal money and legal interest, and that the
original deeds and securities in the possession of Webb should be
given up and cancelled. Webb accordingly made out such fresh
accounts, in which he omitted the usurious charges, and the balance
sought to be recovered in the action was composed of the principal
moneys actually advanced, with lawful interest fairly and legally cal-
culated, the whole commission and every objectionable charge behig
omitted. The account was delivered to the debtor, who acknowledged
the balance, and promised to pay it, and thereupon the deeds and
securities originally given to Webb were produced and cancelled and
burnt in the presence of the debtor. The Court of Common Pleas
held that the balance so arrived at and promised to be paid was re-
coverable at law, and so certified to the Lord Chancellor, the case
being an issue from chancery. I cannot myself see the application of
this case to the present. If it had appeared upon the record that the
plaintiff and defendant had accounted together and struck off the
usurious interest, and the latter had given the bills declared on
for the amount of the original loan and legal interest, it would have
been an authority in favor of the plaintiff ; but nothing of the kind
appears upon the plea : mdeed the contrary appears, for the bills de-
clared on are stated to have been given to secure the payment to the
plaintiff of the money secured by the bills of exchange given to him
in furtherance of the illegal and corrupt contract, and that there was
no other consideration for them. The case has been put thus : That
when the bills declared on were given, there was no usury law, and it
was competent for the defendant to pay or contract to pay interest to
any extent, and that the bills were lawful, assuming them to have
been given for a loan then made. This is quite true, but it has no
application to the real and true case imder consideration. There was
no loan after the repealing statute was passed. There was no
correction of the original unlawful transaction. There is nothing
whatever shown on the record except bills given upon and in respect
of a transaction which the law had declared to be utterly void, and
which at one time seems to have been considered an indictable crime.
Another case was cited, Wright v. Wheeler^ which will be found in
a note to Barnes v. Hedley (a). This was an action upon a bond.
There had been an usurious contract, but afterwards the parties
agreed that some usurious interest which had been paid should be
deducted from the principal, and a bond given for the balance of the
principal, with lawful interest. Mr. J. Lawrence was of opinion at
(a) 1 Camp. 165.
494 FLIGHT V. REED.
nisi prius that the bond was lawful. The parties, he sold, had recti-
fied their error, and substituted for an illegal contract one which was
fair and legal. The case has no bearing upon the present. There is
here no substitution of a legal contract for an illegal one ; it is a mere
contmuance of the old unlawful contract. Cuthbert v. Haley (a) is to
the same effect.
A case of WicJcs v. Gogerley (b) was also cited by the leading
counsel for the plaintiff ; but accorduig to the statement of the law
laid down there by C. J. Best, the plaintiff is not entitled to recover.
He says the prmciple is, that where parties to an usurious agreement
« state an account and agree upon the sum which would be due for
prmcipal and legal mterest, after deductmg all that has been paid
beyond legal interest, and a fresh promise is made to pay that sum,
such promise is free from the original usury and is perfectly valid in
law. But in order to bring this case withm the prmciple, all beyond
legal interest must be repaid or deducted." In the report of Barnes
V. Iledley in 1 Campbell, which I have before referred to, there is a
judgment of Mr. J. Chambre, which seems to me to be well worthy of
consideration by any one who desires to ascertain what is the true
law upon this subject. There is also a case which was not mentioned
in the argniment, Preston v. JacJces (c), which Was tried before Mr. J.
Holroyd, who held that a party could not recover on a note which
operated as a security for any usurious interest. This case seems to
me in pomt for the defendant ; and any opinion of Mr. J. Holroyd,
wherever given, is entitled to the greatest weight and is of the highest
authority.
The result is, that in my opinion an usurious loan within the
statute of Anne, and usurious interest contracted to be paid for it, is
not a good consideration for a bill of exchange, and that a bill given
upon such consideration is not of avail ; and this opinion does not
contravene the case of Barnes v. Jledley, reported in 2 Taunton, or
any other case or authority which I have met with or has been re-
ferred to ; but on the contrary, in my opinion, is m conformity with
them all.
Pollock, C. B. The judgment which I am about to deliver is that
of my brother Wilde and myself.
My brother Martin having stated the pleadings, it is not necessary
to repeat them.
The real question raised by this demurrer is, whether there is a
good consideration for the bills declared upon.
The original bills were given for an advance of money with usurious
interest at a time when such a transact ion was forbidd(Mi b\- law,
and were therefore void and of no loj^al obligation.
(a) 8 T. R. 390. (b) R. & Moo. 123. (c) 2 Stark. 237.
FLIGHT V. REED. 495
The bills sued on were given since the repeal of the usury law, and
at a time wlien tlie giving or confirming an obligation to pay any
amount of interest, however high, was perfectly legal and binding.
But the altered law did not render valid the original bills ; they were
void when given, and remained void and of no legal obligation up to
the time when they were renewed by the bills m question.
The original bills therefore could not form a legal consideration for
those now sued upon ; indeed there was, when the fresh bills were
given, no legal obligation whatever upon the defendant to repay a
single farthing of the large advance he had received. But for that
advance he has voluntarily given these bills, and whether the law
will permit and enforce such a contract is the question.
During the existence of the usury law the courts of law were bound
to enforce them, — to deal with mterest above the statute rate as an
unlawful and fin-bidden thing, — and to discover and defeat all attempts?
direct or mdirect, to give or enforce it.
But the legislature has since repealed the laws against usury, and
upon a fuller and wider view of public policy declared the rate of in-
terest on loans to be unlimited and free.
The courts of law are bound with equal fidelity to give effect to
this new and opposite view of the legislature. Interest above 51. per
cent, should no longer be regarded as of necessity illegal or unright-
eous, and no facility should be given to escape from an obligation to
repay a real advance of money, or evade a contract willingly made,
though mterest should have been contracted for, which used to be at
a rate called usurious rate.
We make these remarks, because in argument the expression " taint
of an usurious transaction " was often repeated, and the Court was
pressed in language, commonly and properly used while the usury
laws were in force, to give no comitenance to a contract of which the
origin was an advance of money with more than 5?. per cent, in-
terest.
Such remarks have no application to or bearing on a contract made
like that in question since the usury laws have been repealed.
We therefore pass them by to consider the true question in the
case, viz., whether an advance of money under such circumstances as
to create no legal obligation at the time to repay it can constitute a
good consideration for an express promise to do so.
Such a consideration has been sometimes called a moral consid-
eration. And we think unfortunately so ; for the term used as a
definition tends to include too wide a range of objects.
And there are many conjunctures in which a man may feel him-
self morally bound to pay money and promise to do so, which the law
would not recognize as forming a good consideration.
496 FLIGHT V. REED.
But a loan of money is a very different thing. The very name of a
loan imports that it was the understanding and intention of both
parties that the money should be repaid.
And though at the time of the* advance the law, for reasons of
public policy, forbid any liability, and incapacitate the parties from
making a binding contract, there is no reason why a bmding contract
should not be made afterwards if the legal prohibition be removed.
And the consideration which would have been sufficient to support
the promise, if the law had not forbidden the promise to be made
origmally, does not cease to be sufficient when the legal restriction is
abrogated.
/U<,sM-— -^S There is, therefore, reasonable ground, as it seems to us, for this
«£^*^ ^-*"t*Ak*< I ^^^'"^^^^^^^ proposition, viz. — That a man by express promise may
*-f^4^ik£^ CC^' I i"6^der himself liable to pay back money which he has received as a
' i * ^ I loan though some positive rule of law or statute intervened at the
^ ' I tune to prevent the transaction from constitutmg a legal debt.
^-« — ^u*^^*. ^ There is likewise authority for it. The general doctrine within
'^ ' . '■ ' JT^ which such a proposition falls is, we believe, first found promulgated
^ '*''in Lord Mansfield's time. It is the subject of a long note to the report
-- i.w", fi>*J^t*A^ of the case of Wetmall v. Adney («). It has been the subject of much
•'/(rtUw^ 1 J discussion in many subsequent cases. It was stated most widely, and
in*-^ €»*aM^ perhaps too widely, in the case of Lee v. Muggeridge (b). And it has
"^-J^ .^^^ >i»,tt«, <^o^S6quently been much qualified and sometimes disparaged since:
^ee Easticood v. Kenyon (c) ; Beaumont v. Reeve (d) ; Cocking v.
Ward (e).
But it was repeated and stated to be undoubted law by Baron
Parke, in LJarle v. Oliver (/ ), who says : " The strict rule of the com-
mon law was no doubt departed from by Lord Mansfield in Haivkes v.
/Saunders (g) and Atkins v. Hill (h). The princiiDle of the rule laid
down by Lord Mansfield is, that where the consideration was origmally
beneficial to the party promising, yet if he be protected from liability
by some provision of the statute or common law meant for his advan-
tage, he may renounce the benefit of that law ; and if he promises to
pay the debt, which is only what an honest man ought to do, he is
then bound by law to perform it.
There is a very able note to the case of Wentiall v. Adney (i) ex-
(«) .3 Bos. & P. 249. (/>) 5 Taunt. 45. (c) 11 A. & E. 447. (d) 8 Q. B. 487.
(e) 1 C. n. 870. (0 2 Exch. 71, 89. (y) Cowp. 290. (//) Cowp. 284.
(i) 3 B. & P. 249. The note is as follows: —
" An idea has prevailed of late years that an express promise, founded simply on
\n antecedent moral obli(,-ation, is sufficient to support an assumpsit. It may be
worth consideration, however, whether this proposition be not rather inaccurate, and
whether that inacfuracy has not in a^reat measure arisen from some expressions of
Lord Mansfield antl Mr. Justice lluUer. which, if construed with the ijualitications
fairly beloncinf; to Ihcm, do not warrant the conclusion which ai)pcars to have been
rather hastily drawn from thence. In ^l^A-m.s v. IliU, Cowp. 288, which was assump-
BJt against an executor on a promise by him to pay a legacy i" consideration of assets.
FLIGHT V. REED. 497
plaining this at length. The instances given to illustrate the prmciple
are, amongst others, the case of a debt barred by certificate and by-
Lord Mansfield said : ' It is the case of a promise made upon a good and valuable
consideration which in all cases is a sufficient ground to support an action. It is so
in cases of obligations which would otherwise only bind a man's conscience, and
which without such promise he could not be compelled to pay.' And in Haiokes v.
Saunders, Cowp. 290, which was a similar case with Atkins v. Hill, Lord Mansfield
said that the rule laid down at the bar ' that to make a consideration to support an
assumpsit there must be either an immediate benefit to the party promising, or a loss
to the person to whom the promise was made,' was too narrow, and observed 'that a
legal or equitable duty is a sufficient consideration for an actual promise; that where
a man is under a moral obligation, which no court of law or equity can enforce, and
promises, the honesty and rectitude of the thing is a consideration.' His Lordship
then instanced the several cases of a promise to pay a debt barred by the Statute of
Limitations, a promise by a bankrupt after his certificate to pay an antecedent debt,
and a promise by a person of full age to pay a debt contracted during his infancy.
The opinion of Mr. Justice Buller in the last case was to the same effect, and the
same law was again laid down by Lord Mansfield in Trtieman v. Fenton, Cowp. 544.
Of the two former cases it may be observed that the particular point decided in them
has been overruled by the subsequent case of Desks v. Stnitt, 5 T- R. 690. And it
may further be observed, that however general the expressions used by Lord Mans-
field may at first sight appear, yet the instances adduced by him as illustrative of the
rule of law do not carry that rule beyond what the older authorities seem to recognize
as its proper limits; for in each instance the party bound by the promise had received
a benefit previous to the promise- Indeed it seems that in such instances alone as
those selected by liOrd Mansfield will an express promise have any operation, and there
it only becomes necessary because, though the consideration was originally beneficial
to the party promising, yet, inasmuch as he was not of a capacity to bind himself
when he received the benefit, or is protected from liability by some statute provision
or some stubborn rule of law, the law will not, as in ordinary cases, imply an assump-
sit against him. The same observation is applicable to Trueman v. Fenton, that
being an action against a bankrupt on a promise made by him subsequent to his cer-
tificate respecting a debt due before the certificate. Thei-e is, however, rather a loose
note of a case of Scott v. Nelson, Westminster .Sittings, 4 Geo. ,3, cor. Ld. Mansfield
(see Esp. N. P. 945), in which his Lordship is said to have held a father bound by
his promise to pay for the previous maintenance of a bastard child. And there is
also an anonymous case, 2 Show. 184, where Lord C. J. Pemberton ruled that ' for
meat and drink for a bastard child an indebitatus assumjjsit will lie.' Although the
latter case does not expressly say that there was a previous request by the defendant,
yet that seems to have been the fact, for Lord Hale's opinion is cited to show 'that
where there is common charity and a charge,' the action will lie; which seems to
imply that if a charge be imposed upon one person by the charitable conduct of an-
other, the latter shall pay; and though he adds, 'and undoubtedly a special promise
would reach it,' that expression does not necessarily import a promise subsequent to
the charge being sustained, but may be supposed to mean that, where a party is in-
duced to undertake a charge by the engagement of another to pay, the latter will
certainly be liable even though he should not be so where the charge was only induced
by his conduct without such engagement. The case of Watson v. Turner, Bull. N.
P. 147, has sometimes been cited in support of what has been supposed to be the
general principle laid down by Lord Mansfield, because in that case overseers were
held bound by a mere subsequent promise to pay an apothecary's bill for care taken
of a pauper; but it may be observed that ' this was adjudged not to be nudum i^actum,
for the overseers are bound to provide for the poor; ' which obligation, being a legal
obligation, distinguishes the case. Indeed in a late case of Atkins v. Banwell, 2
East, 505, that distinction does not seem to have been sufficiently adverted to; for
Watsonv. Turner was cited to show that a mere moral obligation is sufficient to raise
an implied assumpsit, and though the court denied that proposition, yet Lord Ellen-
borough observed that the promise given in the case of Watson v. Turner made all
the difference between the two cases, without alluding to another distinction which
might have been taken; viz., that though the parish officers were bound by law in
Watson V. Turner, the defendants in the principal case were not so bound, because
the pauper had been relieved by the plaintiffs as overseers of another parish, though
belonging to the parish of which the defendants were overseers. In the older cases
no mention is made of moral obligation ; but it seems to have been much doubted
Vol. 1.— 32.
498 FLIGHT V. EEED.
the Statute of Limitations, and the rule in these instances has been so
constantly followed, that there can be no doubt that it is to be con-
sidered as the estabUshed law."
whether mere natural affection was a sufficient consideration to support an assumpsit,
thouo-h coupled with a subsequent express promise. Indeed Lord Mansfield appears
to have used the term, ' moral obligation,' not as expressive of any vague and unde-
fined claim arising from nearness of relationship, but of those imperative duties
which would be enforceable from law, were it not for some positive rule, which, with
a view to general benefit, exempts the party in that particular instance from legal
liability. On such duties, so exempted, an express promise operates to revive the
liability and take away the exemption, because, if it were not for the exemption,
they would be enforced at law through the medimn of an implied promise. In several
of the cases it is laid down, that to support an assumpsit the party promising must
derive a benefit, or the party performing sustain an inconvenience occasioned by the
Plaintiff. Per Coke and all the .Justices. Hatch a7id CapeVscase, Godb. 203; per
Eeeve, J. Mar. 203; -per Coke, C. J., and Dodderidge, J.,3'Bulst. 162; and2)er Coke,
C. J., 1 KoU. Rep. 61, pi. 4. And in Laiupleigh v. Brathioait, Hob. 105, it was
resolved ' that a mere voluntary curtesy will not have a consideration to uphold an
assumpsit. But if that courtesy were moved by a suit or request of the party that
gives the assumpsit, it will bind; for the promise, though it follows, is not naked,
and couples itself with the suit before, and the merits of the party procured by that
suit.' And in Bret v. J. S. and his ivife, Cro. Eliz. 7-55, where the first husband of
the wife sent his son to table with the plaintiff for three years at £8 per annum, and
died within the year, and the wife during her widowhood, in consideration that the
son should continue the residue of the time, promised to pay the plaintiff £6 13s. id.
for the time past, and £8 for every year after, and upon which promise the plaintiff
brought his action ; the court held that natural affection was not of itself a sufficient
ground for an assumpsit ; for although it was sufficient to raise an use, yet it was
not sufficient to ground an action without an express quid pro quo ; bvit that as the
promise was not only in consideration of aifection but that the son should afterwards
continue at the plaintiff's table, it was sufficient to support a promise. In Harford
V. Gardiner, 2 Leo. 30, it was said by the court, that love and friendship are not con-
siderations to found actions upon, and in Best v. Jolbj, 1 Sid. 38, where a father
was held liable for his own and his son's debt, because he had promised to pay them
if the plaintiff would forbear to sue for them, yet the court said, ' he was not liable
for his son's debt,' bivt having induced forbearance, which is a damage to the plaint-
iff, he was held liable,' 'though as to the son's deTit it was no IxMietit to the de-
fendant.' So in Besfich v. (Jomi'd, Palm. 55!), it was debated whether the defendant
was liable upon an express promise to repay the plaintiff' money laid out by him in
Spain for the defendant's son, and the charges of his funeral, Hyde, C.J. and White-
lock being of opinion that the action could not be maintained; Jones and Dodderidge
e contra that it could. The former of which it should seem was the better opinion;
for in Butcher v. Andrexos, Carth. 446, on assumpsit for money lent by the plaintiff
to the defendant's son at his instance and request, and verdict for the plaintiff, the
judgment was arrested. Holt, C. J. saying, 'if it had been a.\\ indebitatus for so much
money paid by the plaintiff at the reque'st of the defendant unto his son, it might
have been good, for then it would be the father's debt and not the son's; but when
the money is lent to the son, it is his proper debt, and not the father's.' But iu
Church v. Church, B. R. 1656, cit. Sir T. Ray. 260, where defendant promised to
repay the plaintiff' the charges of his sou's funeral, the latter was held entitled to
recover, though no request was laid in the declaration. Of which case it may be
observed, that possibly after verdict the court presumed a retiuest proved; for in
Hayes v. Warren, 2 Str. 1)33, though the court would not presume a request after
judgment by default, yet they said they would have presumed it after verdict. How-
ever, in .S7//7e v. Smith, cited by Popham, J., 2 Leon. Ill, it was determined that if
a physician in the absence of a father give his son medicine, and the. father in con-
sideration thereof promise to pay him, an act ion will lie for the money. But the
case of Style v. Smith, if closely examined, will not perhaps be found so discordant
with the principle laid down in Bret v. J. S. and his Wife as may be supposed. From
the expression ' in the absence of a father,' u.setl in that case, it may be inferred that
the son lived with the father, and that the medicine was administered to the son in
th(! house of the father, while the latter was absent, from whence it results that the
physician's debt, though not founded on any immediate benefit to the father, or on
his request, was most probably founded on his credit; which credit, if fairly inferred
FLIGHT V. REED. 499
The case of Fitzroy v. Gwillim (a) is an example of the view that
has been taken of the subject even in a court of law ; but although that
case is certainly not law, it is quite true that courts of equity have re-
lieved (where their interference was wanting) only on the terms of
the principal and legal interest being paid.
We think the view we have taken receives considerable support
from the case of Barnes v. Hedley (b), which, if not a direct authority
for the plaintifif, is somewhat similar in its circumstances ; the usurious
interest was in that case struck out, but now, since the repeal of the
statute of Anne, there is nothmg unlawful in usurious interest. Here
the defendant says, " I could not then make the promise. I can now
and I am willing to do so."
The plaintiff is therefore, in our opinion, entitled to the judgment
of the court.
Judgment for the plaintiff.
from circumstances by the physician, might operate to charge the father in the same
way as his request would operate, the pliysician having sustained a loss in conse-
quence of that credit. Indeed if any of the cases could be sustained on the principle
that a father is, by the mere force of moral obligation, bound to pay what has been
advanced for his son, because he has subsequently promised to pay it; by the same
rule the son should be liable for the debt of the father upon a similar promise; for
the same moral obligation exists in both cases. Yet in Barber v. Fox, 2 Saund. 136,
the court arrested the judgment in an action of assumpsit on a promise made by the
defendant, to avoid being sued on a bond of his father, it not being alleged that the
defendant's father had bound himself and his heirs; for they refused to intend even
after verdict that the bond was in the usual form, and consequently held the promise
of the defendant nuchim2yactiim, he not appearing to have been liable to be sued upon
the bond. And this last case was confinned in thint v. Sioain, 1 Lev. 165; Sir T.
Kay. 127; 1 Sid. 248; see note 2 to Barber v. Fox, by Mr. Serjt. Williams. Indeed
it is clear from Loijd v. Lee, 1 Str. 94, and Cockshott v. Bennett, 2 T. R. 763, that if
a contract between two persons be void, and not merely voidable, no subsequent ex-
press promise will operate to charge the party promising, even though he has derived
a benefit from the contract. Yet according to the commonly received notion respect-
ing moral obligations, and the force attributed to a subsequent express promise, such J
a person ought to pay. An express promise, therefore, as it should seem, can only
revive a precedent good consideration, which might have been enforced at law through
the medium of an implied promise, had it not been suspended by some positive rule
of law, but can give no original right of action, if the obligation on which it is founded
never could have been enforced at law, though not barred by any legal maxim or
statute provision. In addition to the cases already collected upon this subject, it
may be observed, that in Mitchinson v. Heivson, 7 T. R. 348, the court of King's
Bench, upon the authority of Drue v. Thome, All. 72, held a husband not liable to
be sued alone for the debt of his wife contracted before marriage, though the objea*-
tion was only taken in arrest of judgment, and consequently a promise by him to pay
the debt appeared upon the record. From whence this principle may be extracted :\
that an obligation to pay in one right, even though it be a legal obligation, and i
coupled with an express promise, will pot support an assumpsit to pay in another I
right,"— Ed.
{a)l T. R. 153. (6) 2 Taunt. 184.
/
' J
CHAPTER VL
PAETIES TO CONTRACTS.
Section I.— Of Parties in General.*
Number of Parties 500
Joint Contracts 501
Joint Debtors 502
Joint Creditors 504
Several Contracts 505
Joint and Several Contracts goS
Construction of Contracts as to
Joint and Several Parties .... 506
Rights of Joint Parties inter se . . 50S
Contract affects Parties only 508
Contracts in Writing inter partes 510
Number of parties- — Every contract necessarily involves two
parties, one bound to perform the contract, and the other entitled to
have it performed.
For example, in order to constitute a promissory note there must
he both a promiser and a promisee. A note in which the maker
promises to pay to himself, or to his own order, is not a promissory
note, and contains no binding engagement. An instrument so drawn
is incomplete, being in the nature of a conditional engagement, in case
the maker should afterwards indorse the note, to pay it to the person
to whom by such indorsement he should direct it to be paid ; if in-
dorsed specially, it imports a promise to pay to the person to whom
it is indorsed or his order ; if the maker indorses it in blank and cir-
culates it, it becomes in effect payable to the bearer («).
So, a promissory note made payable nine months after date, " to
the secretary for the time being" of a society, was held invalid,
because it did not show a certain payee (b) ; and for the same reason
a bill of exchange drawn payable six months after date, to the order
of " the treasurer for the time being " of an institution, was held
invalid () ; but a promissory note made payable " to the trustees of
the N. chapel or their treasurer for the time being " was held valid ;
the trustees being taken to be the payees, and the treasurer only
their agent to receive payment (rj). An instrument in the form of a
bill of exchange and accepted, but without the name of either a
li;{
Broum v. iJe Winton, G C. B. 3.3G. (c) Yates v. Nash, 8 C. B. N. S. 581;
Cowie v, Stirling, 6 E. & B. 3.33; 2!) L. J. C. P. 30G.
25 L. J. Q. B. 335. (,/) ITohnc.n v. Jar/ues, L. Hep. 1 Q.
15. :;t''.; ;:."jL. J. Q. IJ. 130.
(500) * Ch. II, Sect. I, Leake.
SECT. I. OF PAUTIKS IN GENERAL, 501
drawer or payee, does not constitute a binding contract, though capa-
ble of being completed by adding the names of such parties (a).
An insurance oifice having two departments, one for insurance and
the other for annuities, the latter department effected a policy of in-
surance with the former, upon the life of a person to whom a loan had
been made, and who had covenanted to pay the premiums for insur-
ing his life ; it was held that the policy so made was a nullity, be-
cause made by the company with themselves, and that the debtor
could not be charged with the premiums (b). So, a covenant made
by a person with himself and others jomtly, to pay money on their
joint account, was held void ( c).
Where a shipowner carries his own goods in his own ship, there is
no " freight " properly so called, because there can be no contract
made by the shipowner with himself in respect of the carriage.
Hence, in such a case, the underwriters on the ship, upon abandon-
ment of the ship as lost, having brought the goods to their destina-
tion, it was held that they had no claim upon the owner for freight in
respect of the carriage of the goods to the place where the ship was
lost, notwithstanding the general rule that the abandonees of a ship
are entitled to all the freight earned by it at the time of abandon-
ment (d). So, the mortgagee of a ship with the freight, on taking
possession of the ship, cannot claim freight in respect of a cargo
shipped by the owner, because the owner cannot contract with him-
self (e).
Joint contracts.— Several persons may join in a contract on the
one part or on the other ; that is to say, in respect of the same debt
or liability more persons than one may be joined in the character of
creditor or promisee, or more persons than one in the character of debtor
or promiser, or more persons than one in both characters. In such
cases the persons jointly becoming party to the contract, though they
may have several interests relatively to one another, are considered
as united in interest relatively to the other party to the contract.
Contracts of this kind are called J oitit contracts ov joint debts ; and the
persons composing- the respective parties thereto are called joint
creditors or joint promisees, w\.d joint debtors or joint promisors.
In some cases, where several persons are associated jointly to fill an
office, or authorized jointly to conduct some business, they are all
required to join in contracting, and less than all cannot validly con-
tract. Thus, where two persons were appointed to fill the office of
clerk to trustees of a turnpike road, it was held that they must both
(a) WCall V. Taylor, 19 C. B. N. S. (c) Faulkner v. Lowe, 2 Ex. 59.5.
301; 34 L. J. C. P. 36.5; and see Stoes- {d) Miller v. Woodfall, 8 E. & B. 493;
siger v. South-Eastern By. Co., 3 E. & 27 L. J. Q. B. 120.
B. 549; 23 L. J. Q. B. 293. (e) See Gumm v. Tyrie, 4 B. & S.
(6) Grey v. Elllsoii, 25 L. J. C. 666. 6SU; 33 L. J. Q. B. 97; 34 ib. 124.
502 CHAP. VI, PARTIES TO CONTRACTS.
join in executing a contract on the part of the trustees ; Tmdal, C. J.
said : — " How are we to say that if the trustees have appomted two
clerks, perhajDS for the benefit of havmg their united judgment, the
two are not to be parties to a contract which is to bind the trustees ?
it is like the case where two execute the office of sheriff or bailiff "
(«). The provisional committee of a railway company appointed eight
persons as a managing committee, with authority to carry out the
scheme, but without provision that any number less than the whole
might act, and six of them gave an order to the plaintiff for certain
work ; it was held that the defendant, a member of the provisional
committee, was not bound by the order so given (b).
The peculiar effects of jomt contracts may be considered : — 1.
Where the contract is joint on the part of the promiser or debtor.
2. Where the contract is joint on the part of the promisee or creditor.
Joint debtors. — 1. As to joint promisers or debtors : — If an action
is to be brought upon a contract made by several persons jomtly, who
are still living and are resident within the jurisdiction of the Court,
they should all be joined as defendants in the action. If one of them
is sued alone, he is not bound to answer to the merits of the action
without the rest bemg sued with him ; he may plead in abatement of
the writ, that is, that the debt was due, or the promise was made by
him, jointly with another or others, who is or are still living and resi-
dent within the jurisdiction of the Court, and not by himself alone.
But that is the only mode in which he can object to being charged sepa-
rately ; and if he pleads to the merits of the claim, as by plea of no)i
est factum or non assumpsit or the like, he cannot raise any valid ob-
jection on the ground of others being jointly liable with him (c).
The liability of one of joint promisers or debtors was explained by
Abbott, J., as follows {d) : — « By the law of England, where several
persons make a joint contract, each is liable for the whole, although
the contract be joint. In Whelpdale's Case (e), the plamtiff had de-
clared on a bond made by the defendant, to which the defendant
pleaded non est factum ; the jury found that the bond was a joint bond,
made by the defendant and another to the plaintiff, and upon this
special verdict it was adjudged by the Court, that the plaintiff should
recover : " because when two men are jointly bound, in one bond, al-
though neither of them is bound by himself, yet neither of them can
say, that the bond is not his deed : for he has sealed and delivered it,
and each of them is bound in the whole." That was a case upon a
deed, but Price v. Shnte (f) was a case upon a simple contract ; and it
(a) Bell V. Nixon, 9 Bing. 393. (d) Richards v. Heather, 1 B. «fe Aid.
ib) Broton v. Andreio, 18 L. J. Q, B. 29, 35.
153; and see Guthrie v. Armstrong, 5 B. (e) 5 Rep. 119.
& Aid. r,28. (/) 5 Burr. 2G13.
(c) Sheppard's TouclTstone, p. 370.
SECT. I. OP PARTIES IN GENERAL. 503
was there held, that although the promise was a joint promise, yet the
defendant, who was sued alone, could not say that he did not promise ;
and that the only way of taking advantage of the omission of the other
joint contractor, was by plea in abatement. These two cases establish
this, that proof of a joint contract is sufficient to sustam an allegation
that one contracted ; and, therefore, there is no variance." Hence, each
party to a joint contract is severally liable, in the sense that, if sued
severally and he does not plead in abatement, he becomes liable to the
creditor for the entire debt (a).
So, where more than one of several joint contractors are sued
jointly, omittmg others, the defendants may plead the non-joinder m
abatement ; but, if they do not, the proof of the joint contract is suffi-
cient to charge them. Thus, in an action on a bill of exchange, the
declaration charged it to have been drawn upon and accepted by the
three defendants, and it was proved to have been drawn upon and ac-
cepted by the three, jointly with a fourth ; it was held that there was
no variance, and that the contract charged was proved (b).
The plea in abatement of the non- joinder of a joint contractor can-'
not be sustained, where the alleged joint contractor is dead, or where
he is not resident within the jurisdiction, or where he has been dis-
charged from the debt by proceedings m bankruptcy or insolvency, or
where he was an infant at the time of contracting and has since
avoided the contract, or where the debt is barred as against him by
the Statute of Limitations (c). In all which cases the person sued
may be charged by the creditor with the entire debt.
Where the jomt contractors are sued jointly, and the judgment
passes agamst them jointly, though the writ of execution must follow
the judgment and charge all the defendants jointly, yet, in putting the
writ in force, the whole amoimtof the judgment may be levied against
one separately; consequently, each joint contractor becomes ultimately
liable to the creditor for the whole, and not only for his proportionate
part, although the contract be joint (d).
The Comity Court Act, 9 & 10 Vict. c. 95, s. 68, enables a plamtiff
to sue any one or more joint debtors without the others, and to obtain
judgment and execution against those sued.
Upon the death of one of several joint contractors, the liability un-
der the contract devolves on the surviving joint contractors or joint
contractor ; the representative of the deceased cannot be sued at law
jointly with the survivors. Consequently, the whole liability ultimately
(a) Abbot V. Smith, 2 W. Bl. 947; see (c) SeeBullen & Leake, Free. PI. 2nd
EimiY. Hoare, 13 M. & W. 494, 505; ed. 411, 412.
Cross Y. Williams,! H. & N. 675; 31 (d) Per Lord Mansfield, C. J., Bzrd v.
L. J. Ex. 145. Randall, 1 W. Bl. 387, 388; and see
(h) Mountstephen v. Brooke, 1 B. & Abbotv. Smith, 2 W. Bl. 947,949; per
Aid. 224. Lord Kenyon, C. J., Herries Y.Jamie-
son, 5 T. R. 553, 556.
604
CHAP. VI. PARTIES TO CONTilACTS.
devolves upon the last surviving contractor, and after his death upon
his representatives {a). A release made to the executor of one of joint
obligors is inoperative, because upon the death of the one the debt sur-
vived against the others (b).
Upon the death of one of several joint contractors after judgment
obtamed against them, the liability upon the judgment devolves upon
the survivors, and execution by/, fa. or ca. sa. may be levied against
them without reviving the judgment; but the judgment, as a charge
upon the real estates of the joint contractors, remains unaltered by
the death, and the creditor may have execution by elegit agamst the
lands of the deceased, equally with the survivors, by reviving the judg-
ment against the survivors and the terretenants of the deceased (c).
Joint creditors. — 2. As to jomt promisees or creditors: — Wliere
the contract is jomt on the part of the promisees or creditors, all the
persons entitled under it must join in sumg upon it as jomt plaintiffs
{d.) A disclaimer by one of the joint promisees, by a deed to which
the promiser is not also a party, will not entitle the others of the joint
promisees to sue alone upon the contract (e).
If one of the joint promisees is omitted, and the defect appears upon
the record, it may be objected to by demurrer, or by motion in arrest
of judgment, or by error (/). If the objection does not appear upon
the record, and the action proceeds to trial, there would be a variance
between the contract appearing in fact and that alleged upon the
record, which, unless amended, would be ground for a nonsuit or ad-
verse verdict, and prove fatal to the plaintiff's case {g). The objec-
tion may be taken by the defendant at an earlier stage, by pleading in
abatement, that the promise was made to the plamtiff and another
jointly and not to the plaintiff alone, or by giving a notice in writing
to the plaintiff to the same effect under the provision of the Common
Law Procedure Act 1852, C. L. P. Act, 1852, s. 35. The omission may
be amended by the plaintiff before trial under the provisions of s. 34
of the C. L. P. Act, 1852, or, unless the defendant has previously taken
the objection, at the trial mider s. 35 {h).
Where one of several joint creditors or promisees dies, the legal
right under the contract devolves upon the survivors, who only must
(a) See Shepp. Touch, by Preston, p.
376; Richards v. Heather, 1 B. & Aid.
29; Calder v. Rutherford, 3 B. & B.
302. As to the liability in equity of the
executor of a deceased joint contractor,
see Wms. Ex. 5th ed. p. 1577.
(b) Ashbee v. Pidduck, 1 M. & W.
564.
{r) BarberVa Cane, 3 Co. 14 a ; 2 Wms.
Saund. 50 a (4) ; 72 I.
(d) Eccleston v. Clipuham, 1 Wms.
Saund. 153; Hatsall v. Griffith, 2 C. &
M. 679; Puf/h v. Strinrjfield, 3 C. B. N.
S. 2; 4 ib. 364; 27 L. J. C P. 34, 225.
(e) Wetherell v. Lanyaton, 1 Ex. 634.
(/) Petrie v. Bury, S B. & C. 3.53;
Pw/h V. Strbvifield, supra ; Wetherell
V. Langston, 1 Ex. 634.
(f/) Chanter v. Leese, 4 M. «fe W. 295.
(h) See Bullen & Leake, Prec. PI. 2nd
ed, 405.
SECT. 1. OF PARTIES IN GENERAL. 505
sue upon the contract. The representative of the deceased joint I
creditor or promisee cannot be joined in suing with the survivors,
nor can he sue alone (a).
Several contracts- — Several persons may contract separately re-
specting the same matter. Thus, several persons may bind themselves
severally to another in respect of the same matter or debt, so that the
creditor is entitled to claim the whole debt or performance against each
debtor separately ; or one person may bmd himself to each of several
persons in respect of the same matter or debt, so that each of such
creditors is separately entitled to claim the whole debt or perform-
ance. The peculiar characteristic of such contracts is the identity
of the debt or matter in the several contracts ; so that the payment
or performance of one of the contracts discharges all {h).
A frequent use of this mode of contracting occurs in guarantees,
where a principal debtor and sureties become severally bound to the
creditor for the debt or matter guaranteed ; the creditor may sue
one or other of the debtor and sureties separately for the whole
amount, and payment by one discharges all as agamst the creditor ;
though, as between themselves, the sureties who are compelled to
pay may be entitled to recover the amount from the principal debtor,
or proportionate part of it from the other sureties.
Joint and several contracts. — Several persons may enter into con-
current contracts respecting the same matter, bmding themselves Jor;??-
ly as one party, and also severally as separate parties, at the same
time ; in which case, besides the one joint contract, there are also
as many several contracts as there are separate persons; the debt
or matter of the contract being one and the same in all the contracts
thus made. Thus, a joint and several promissory note by several
makers is equivalent to a joint note, and as many distinct separate
notes as there are makers (c). « If A. and B. covenant jointly and
severally, the covenant may be joint or several, and the covenantors
may be sued either all together, or all of them apart, at the election
of the covenantee" {d). " If three be bound jointly and severally in
a bond, the obligee cannot sue two of them only, but he must either
sue them all, or each of them separately " (e) ; but if two of the
(a) Jlfariinv. Cramp, 2 Salk. 444; 1 L. 1. 3, t. 3, s. 4. "Des obligatoins soli-
Eaym. 340; Anderson v. Martindale, 1 daires. "
East, 497; and see Je^Z v. Douglas, 4 B. (c) Beecham v. Smith, E. B. & E.
& Aid. 374; Scott v. Godtoin, IB. & P. 442; 27 L. J. Q. B. 257.
67, 74. (d) Shepp. Touch, by Preston, pp.
{>>) This is called in the civil law obli- 166, 180, 376.
gatio in solidum, Mackeldey, § 330; (e) Per Buller, J. StreatfieldY. Halli-
Warnkoenig, § 539; and see Code Civil, daij, 3 T. K. 779, 782.
606 CHAP. VI. PARTIES TO CONTRACTS.
three obligors are sued alone, they can object only by pleading in
abatement of the action, that there is another joint obligor (a).
.. But it seems that a contract camiot be so made, in respect of one
and the same matter, as to entitle several persons under it both jointly
and severally ; they must either be entitled under it jointly only, or
severally only (b).
Construction of contracts as to joint and several parties. —
Where several persons join in a contract in respect of the same
matter, the question whether they do so Jointly as one party, or
severally as distinct parties entering into several contracts, or, in the
case of the persons bound, Joi>i% and severally, makmg a jomt con-
tract and several distinct contracts at the same time, depends on the
mtentions of the parties, as manifested in the evidence of the con-
tract. Some rules for the construction of contracts m this respect
have been laid down by the authorities.
As to joint or several liability. — 1. With respect to the liability
of several persons under the contract, it is laid down in Sheppard's
Touchstone as follows : — « If two, three, or more bind themselves
in an obligation thus, ohligamus nos, and say no more, the obliga-
tion is and shall be taken to be joint only and not several ; but if it
be thus, ohligamus nos et utrunique nostrum, or ohligamus nos et
wyamquemqxte nostrum, or ohligamus nos et quemlibet nostrum, etc.,
in all these cases the obligation is both joint and several. — But the
more proper form is," We bind ourselves, our heirs, executors, and
administrators, and each of us bindeth himself, his heirs, executors,
and administrators " (c). ' Hence in written contracts the language
used is the primary guide to the meaning ; but it is not always con-
clusive. The language is sometimes ambiguous, and often not ex-
clusive of an mtention of contracting in either way ; m which
case the sense must be derived from the interests and relations
of the parties as appearing in the contract {d). The words of a
deed executed by several parties were, " AVc bind ourselves and each
of us for himself for the whole and entire sum of £1000 each ;" the
instrument was held from the context to constitute a several bond
by each of the parties for a several sum of £1000, and not a joint
bond {e).
As to joint or several rii^hts. — 2. With respect to the right of
several persons under such contracts a rule of construction has been
(a) See anU, p. .'503; 1 Wms. Saund. {e) Collins v. Prosscr, 1 B. & C. 682;
154 a, 291 g. and see other examples, Matheioson'' s
( b) Slinysbi/s cdne, .5 Co. IS h ; Brad- Case, 5 Co. 23; l)uke of Northumberland
burnev. Botfield, 14 M. & W, 550, 573; v. Errinnton, 5 T. R. 522; Mansell v.
KeUihtley y. irr<(.so«, 3 Ex. 710, 723. ' Ihirred'/e, 1 T. R. 352; Lord Galway y.
(c) Shepp, Touch, by Preston, p. 375. Maft/irw, 1 (amp, 403; Exp. Buckley,
id) See Lee v. Nixon, 1 A. «fe E. 201, 14 M. «fe W. 409.
208.
SECT. I. OF PARTIES IN GENERAL. 507
adopted to the following effect : — A contract will be construed to be
joint or several according to the interests of the parties, if the words
are capable of that construction, or even if not inconsistent with it ;
if the words are ambiguous or will admit of it, the contract will be
joint if the interest be joint, and it will be several if the inter-
est be several (a). But a contract entered into with several per-
sons, in respect of the same matter or interest, cannot by any words
be made so as to entitle them both jointly and severally (&).
An estate was conveyed to several persons jointly, and the grantor
covenanted with those persons, et cum quolibet eorimi^ that he had a
good title; it was held that, the interest of the covenantees being joint,
the covenant was joint and not several, and that the words cum quoli-
bet eorum were void of effect ; and it was laid down that if a grantor
by deed conveys several estates to several persons severally, and coven-
ants with them, et cum, quolibet eorum^ that he had title, the covenant
is several by reason of the several interests of the covenantees {c).
One of the parties to a deed " covenanted and agreed to and with the
other and others of them respectively, and his and their respective ex-
ecutors and administrators, etc.," and the interest of the covenantees
in the matter of the covenant was joint; the covenant was construed
to be made with them jointly and not severally, so that one of them
could not sue alone {d). The defendant covenanted with A., his ex-
ecutors, administrators, and assigns, and also with B. and his assigns,
to pay an annuity to A. during B.'s life ; it was held that the legal in-
terest was joint, though the benefit was for A. only, and, there-
fore, the covenant was joint and not several, so that after A.'s death
the right of action survived to B. solely, and the administrator of A.
could not sue upon the covenant (c- ) .
By a deed made between the plaintiff and H. of the one part and
the defendant of the other part, after reciting an agreement for a loan
on mortgage of a sum of money then in plaintiff's hands as trustee for
H., the defendant covenanted " with the plaintiff, his executors, etc.,
and also, as a distinct covenant, with H. his executors, etc.," to pay in-
terest on the loan until repayment of the principal ; it was held that
the covenantees had a joint interest, and, therefore, the covenant was
joint only and not several (/). In a deed in which the defendant cov-
enanted with one of the parties, and " as a separate covenant" with
another of the parties, and the interests of those parties were several,
(«) Shepp. Toucli. by Preston, p. 166: iV) See ante, p. 506 (5).
Eccleston v. Clipsham, 1 Wms. Saund. (c) Slingsby's case 5 Co. 18.
153; Sorsbie v. Park, 12 M. '& W. 146; (d) Eccleston v. Clipsham, 1 Wms.
Meightley v. Watson, 3 Ex. 716, 722; Saund. 153.
Foley v.Addenbrooke, 4 Q.B. 191; Pugh (e) Anderson v. Martindale, 1 East,
V. Stringfield, 3 C. B. N. S. 2; 4i6. 3(54; 497. ' ' '
27 L. J. C. P. 34, 225; Haddonv. Ayers, tf) Hopkinsony. Lee, 6 Q, B. 964.
1 E. & E. 118; 28 L. J. Q. B. 105. ^ ' ^ ' ^
608 CHAP. VI. PAETIES TO CONTRACTS.
the covenants were construed to be several («). The defendant by
a deed covenanted " with each of the said parties thereto of the third
part ; " it was held that the covenant was in point of form several, and,
the interest of the covenantees being also sufficiently several to support
a several covenant, it was so construed (b).
If tenants m common demise jointly and the lessee covenants to re-
pair, the interest of the lessors in the covenant is joint, and they must
join in suing upon it (c).
Rights of joint parties as between themselves.— The rights and
liabilities of persons who have contracted jomtly or severally respect-
ing the same matter, as between themselves, depend upon the relation
in which they stand, and the agreement or understanding upon which
they have jomed in the contract ; the contract itself, in general, is in-
dependent of such relation or agreement. Thus, in contracts of guar-
antee made between a creditor and the principal debtor and his sure-
ties, which have been referred to above as a common application of
this mode of contracting, the principal debtor and the sureties are,
usually, all made debtors in equal degree to the creditor, who may re-
cover the whole debt against all or any of them. As between them-
selves, however, the principal debtor is solely liable ; and if the surety
is called upon by the creditor to pay any part of the debt, he may, up-
on payment, recover the amomit from the principal debtor. So, where
there are several sureties who are all primarily liable for the whole
debt to the creditor, and one of them is called upon to pay, each of the
other co-sureties becomes ratably indebted to him for contribution.
The principal contract may, however, m some cases be affected by
the rights and relations of the several parties who join in it ; as in the
case of the relation of principal and surety existing between them, the
creditor is bound, upon prmciples of equity, to abstain from any deal-
ing with the debtor which may affect the liability of the surety, or
prejudice his position. Thus, if the creditor binds himself to give
time to the principal debtor, without the consent of the surety, the lat-
ter is thereby discharged (d).
A contract affects parties only.— The legal effect of a contract is,
as a general rule, confined to the parties to it. A contract cannot create
a right or a liability in a person who is not a party.
In the case of Crowe v. Rogers (e), the declaration charged as a con-
(u) Keightley v. Watson, .3 Ex. 716. (d) Rees v. Berrinr/toti, 2 Ves. jun.
{bj Mills V. Ladbroke, 7 M. & G. 218. 540; 2 Wliite & Tudor, L. C. 2nd ed.
(c) Kitchen V. Buckbj,\ Lev. 109; T. 814; Pooley v. Hnrrndine, 7 E. & B.
Raym. 80; Foley v. Addenbrooke, 4 Q. 4.31; 20 L. J. Q. B. 156; see Whitcher
B. 197; Thompson v. Hakeivill, 19 C. B. v. Hall, 5 B. & C. 269.
N. S. 71.S; .% L. .1. C. P. 18; and see (e) Strange, 592.
Bradburne v. Botfield, 14 M. & W. 5.59
SECT. I. OF PARTIES IN GENERAL. 509
tract between the plaintiff and the defendant, that one H., being in-
debted to the plamtiff m a certam sum, it was agreed between H. and
the defendant that the defendant should pay the debt to the plaint-
iff m consideration of H. conveying to the defendant a house, and the
plaintiff claimed payment of the debt from the defendant ; upon demur-
rer the Coui't held the declaration bad, because it stated the agreement
to be between H. and the defendant, and the plaintiff was a stranger
to the contract. In Price v. JEaston (rt),the contract was stated ui the
declaration to be, that W., bemg mdebted to the plaintiff, agreed with
the defendant to work for him at certain wages and leave the amount in
his hands, ui consideration of which the defendant promised to pay
the debt to the plaintiff ; after verdict for the plaintiff, judgment was
arrested on the ground that the plaintiff was a stranger to the contract ;
Littledale, J., said, «Ko privity is shown between the plauitiff and de-
fendant. This case is precisely like Crowe v. Rogers and must be gov-
erned by it."
Certain commissioners let tolls to the defendant at an annual rent,
which the defendant agreed in writing to pay to the treasurer of the
commissioners ; it was held that as the contract was made with the
commissioners, and not with the treasurer, an action could not be
brought by the treasurer in his own name to recover the tolls {b). The
partners in a cost-book mine agreed that the amount of calls due from
any one of them should be considered as a debt due to the purser, who
should have power to sue for it ; but it was held that such agreement
gave the purser no right of action, as he was merely a servant of the
company, and no party to the agreement (c). Where a contract is
made with several persons jointly, to pay money to one of them only,
the right agamst the debtor accrues to the joint parties to the con-
tract, and not severally to the person to whom the money is to be paid ;
and all the persons to whom the promise was made must join in suing
upon it, although one only was to receive the money (c?).
An exception to this rule occurs with simple contracts, (other than
bills of exchange and promissory notes,) in which the actual party to
the contract is an agent for an undisclosed principal ; under such con-
tracts the principal, subject to certam conditions, may be entitled to
claim the benefit of the contract or may be charged with the liability (e).
There are some old decisions to the effect that a stranger to the con-
tract may maintain an action upon it, if he stand in such a relation-
ship to the contracting party, that it may be considered that the con-
tract was made for his benefit ; as in the case of a contract made with
(o) 4 B. & Ad. 433. (3) Chanter v. ieese, 4 M. & W. 295;
(6) Plgottv. Thompson, 3 B. & P. 147. and see Jones v. Robinson, 1 Ex. 454;
(c) Hybart v. Parker, 4 C. B. N. S. Anderson v. Martindale, 1 East, 497.
209: 27 L. J. C. P. 120. (e) Beckham v. Drake, 9 M. & W. 79;
2 H. L. C. 579.
510 CHAP. VI, PARTIES TO CONTRACTS.
a father to pay money to his son or daughter, it was formerly held
that the son or daughter might sue upon the contract (a) ; but no mod-
ern case can be found to support such an exception to the general rule-
In the recent case of Tweddle v. Atkinson (6), it appeared that, after
a marriage, the fathers of the husband and wife agreed together to pay
each a sum of money to the husband, and they also agreed that the hus-
band should have full power to sue for the money ; it was held, never-
theless, that the husband, being no party to the agreement, could not
sue upon it.
Contracts in writing inter partes. The question who are the
parties to a contract, where the contract is made in writing, is, in gen-
eral, determined by the written terms. Where an indenture is made
inter 2iartes^ the express mention of the parties to the contract negatives
the existence of any other parties. Those persons only can acquire
I a right or incur a liability, or can sue or be sued under the indenture,
who are named or described in it as parties (c). An indenture of
, lease was expressed to be made between " A. for and on behalf of B.
on the one part aaid C. on the other part," and A. executed the deed in
his own name ; it was held that B. could not maintain an action upon
the covenants in the deed, although the covenants were expressed to
be made by C. to and with B. {d). A and B. by indenture demised to
D., who by the same deed covenanted with A. B. and E. (E. not being
named amongst the parties to the deed), to pay rent to E., to repair,
etc, ; it was held that E., bemg a stranger to the deed, could not join
with A, and B. in an action for non-performance of the covenants {e).
A composition deed specified the partip^ of the first part as " the
several persons whose names and seals aro subscribed and affixed in
the schedule hereunder written, being creditors executing these
presents ; " it was held that creditors who did not execute the deed
were not parties to the deed within the above description, and could
not take udvjinta^e of the coveiuuic^. although expressed to be made with
the parties of the first part and all other creditors, and so were not on
an equality with the executing creditors ; and that therefore the deed
was not valid against non-executing creditors, under the Bankruptcy
Act, 1861, s. 192 (/) ; but upon a similar deed expressly made with
" all the creditors " and in which the debtor covenanted with each cred-
(«) Bourne v. Mason, Yent. G; Button (d) Berkeley v. Hardy, 5 B. & C. 355;
V. Poole, 2 Lev. 211; and see per Lord and see Appleton v. Biiiks, 5 East. 14S.
Mansfield, Martyn v. Hind, Cowp, 437, (e) Lord Southampton v. Brown, 6 B.
443. & C. 718.
(b) 1 B. & S. 393; 30 L. J. Q. B. 265. (/) Chesterfield and Midland Silksione
(c) 2 Inst. 673; see the note to PiVyoiiv. Colliery Co. v. Hawkins, 3 H. & C. 677;
Thompson, 3 B. & P. 147, 140 (a) ; Beck- 34 L. J. Ex. 121; Gurrin v. Koi)era, 3
ham V. Drake, 9 M. & W. 70, 05; Ches- H. & C. 694; .34 L. J. Ex. 128; and see
terfield Silkstone Colliery Co. v. Hav}- Ex, p. Cockburn, 33 L. J. B. 17.
kins, 3 H. & C. 677; 34 L. J. Ex. 121.
SECT. I. OF PARTIES IN GENERAL. 511
itor severally, it was held that all the creditors were parties to the
deed, and could sue upon the covenants (a).
If a deed is made in the name of a corporation and sealed with the
common seal, members of the corporation cannot sue upon it in their
individual characters, though they are mentioned by name in the deed
as parties in their official capacity, because they are not parties to it
mdividually {b).
But parties to a deed may be designated by the name or description
which they use for their trade or business, without mentionmg their
own proper names. Thus, where a deed was made with " The City
Investment and Advance Company," and it appeared that two m-
dividuals carried on a business in that name and were intended m the
deed by that description, it was held that they were parties to the deed
in their individual characters (c). So, where a bond was made m favor
of " Widow Moller and Son," the plaintiffs, who were proved to be the
persons meant by that name, were held entitled to sue upon it (d).
In a composition deed made between the debtor of the one part and
« all the creditors " of the other part, the creditors were held to be
sufficiently designated as parties, and entitled to sue upon the cove-
nants made by the debtor with the creditors (e).
Where a covenant is made in the form of a deed poll, which does
not contam any formal statement of the parties to whom it is made, the
covenantee appears as a party to the covenant merely from the desig-
nation of him by the covenantor ; and it is not necessary that the
covenantee should be named, but he may be designated by a sufficient
description. A policy of insurance was made m the form of a deed
poll, in which the insurers covenanted to pay the loss and damage
insured against, without specifying the covenantee by name ; it was
held that the parties interested in the msurance were sufficiently
designated to entitle them to sue upon the covenant (,/).
A simple contract m wi'iting, expressed to be made inter partes,
also impliedly excludes all parties not named or described m it as
such ; for to admit evidence to make a person a party to such an
agreement who was not so named or described in it, would amount to
altermg the effect of a written instrument by extrinsic evidence (g).
But with simple contracts, except bills of exchange and promissory
notes, if the persons named or described as the actual parties are
agents for others whose names do not appear, extruisic evidence may
(a) Gresty v. Gibson, 4 H. & C. 28 L. (e) Gresty v. Gibson, 4 H & C. 28;
Rep. 1 Ex. 112; 35 L. J. Ex. 74; Reeves L. Rep. 1 Ex. 112; 35 L. J. Ex. <4;
V. Watts, L. R. 1 Q. B. 412; 35 L. J. Q. Reeves v. Watts, L. Rep. 1 Q. B. 412;
B 171 and see supra.
\b) booch V. Good7nan, 2Q. B. 850. (/) Sunderland Ilarine Insurance Co.
(c) Maugham v. Sharpe, 17 C. B. N. v. Kearneg, 16 Q. B. 925; 20 L. J. <,{.
S. 443; 34 L. J. C P. 19. B. 417. r -r ^ -a
(d) Moller v. Lambert, 2 Camp. 548. (g) Robinson v. Judkins, L. J. Ex. ob.
512 CHAP. VI. PARTIES TO CONTRACTS.
be admissible in order to entitle the principal to the benefit of the
contract or to charge him with the liability (a) .
An exception to the rule that no person can sue upon a deed or
agreement inter partes, except the parties to it, has been made by
some statutes relatmg to public companies and other public bodies ;
for instance, by the Joint Stock Banking Companies Act, 7 Geo. IV.
c. 46, s. 9, all proceedings at law or m equity, for or on behalf of such
copartnerships, are to be prosecuted m the name of one of the public
officers of the copartnership ; and under this Act it is held that upon
a covenant made to covenantees by name, as trustees of the company,
the company is bound to sue by its public officer, and cannot sue
otherwise (b). Another exception has been made to this rule by the
Act to amend the law of real property (8 & 9 Vict. c. 106) which enacts
by s. 5, "that under an indenture, executed after the 1st October,
1845, the benefit of a covenant respecting any tenements or heredita-
ments may be taken, although the taker thereof be not named a party
to the same indenture."
Sectiok II. — Capacity of Parties.
Infants 512 I Persons in a State of Insanity. . . . 529
Married Women 519 1
A person is presumed by law capable of being party to a contract
until the contrary appears ; but persons in some states or condi-
tions, as infants, married women, and persons in a state of insanity ;
and persons of certain kinds as corporations, are affected by law
with various degrees of incapacity in that respect, the nature and
effect of which have now to be considered.
Contracts with infants.
Lial)ility of infant on contracts-— An infant, or person under the
age of twenty-one years, cannot validly bind himself to another by
contract, except for necessaries suitable to his age, condition, and
wants. A contract made by an mfant, except for necessaries, may be
avoided by him on the ground of his infancy ; and in an action
brought against him upon the contract, he may defend himself by
pleading specially that at the time of making it he was an infant (c).
Liability of infant for wrongs.— The defence of mfancy cannot
be pleaded in actions for wrongs independent of contract ; but it may
be pleaded in all cases where the cause of action is substantially
founded on a contract, though the declaration might be framed in the
(n) BecMamv. DraA;e, 9 M. & W. 79; ntes, SmHh v. Goldsioorthij, 4 Q. B.
2H. L. C. 579. 430; Cobham v. Uolcombe, 8 C. B. N.
(h) Chapman v. Milvain, 5 Ex. 01; S. 815.
and see like exceptions under otlier stat- (c) See Reg. Gen. 8, T. T. 1853.
SECT. II. CAPACITY OF PARTIES. 513
form of tort instead of in contract ; so that the plaintiff cannot in-
directly make the defendant liable on a contract made during infancy
by merely changing the form of his declaration (a). But where the
defendant has wrongfully obtained money of the plamtiff under such
circumstances that the plaintiff is entitled to waive the wrong and
claim restitution of the money under an impUed contract in an ac-
tion for money received for his use, it has been held that the defend-
ant camiot plead mfancy in such action (b).
Liability of infant on contract induced by fraud— Where an
infant has mduced another party to contract with him by a fraudulent ^^
representation that he was of full age, he is not estopped from assert- Q ^
ing his infancy in order to avoid the contract ; nor can he be charged ^^"x^^-
with the loss which may arise from the invalidity of the contract, as r^^^rJ^^^
damage caused by his fraudulent representation, in an action foimded
on the fraud as a substantive wrong (c). In an action at law upon
the contract, to which infancy is pleaded, the fraudulent misrepresent-
ation does not constitute matter for replication upon equitable grounds ;
for infancy is an answer in equity, as well as at law, to any proceed-
ing upon the contract {d). But a Court of Equity will not allow the
legal privilege of mfancy to be used for the purpose of fraud, and will
compel restitution of what has been obtained by an infant through a
contract induced by the fraudulent representation that he was of full
age (e).
Liability of infant in respect of property. — Where a person by
means of a contract becomes possessed of real estate or other perma-
nent property to which certam obligations are incident, he remains
liable to those obligations as long as he continues possessed of the
property ; and he cannot avoid them simply on the groimd that he
was an infant at the time of making the contract under which he has
acquired the property ; in order to discharge himself from such obli'-
gations he must not only disaffirm the contract, but must also disclaim,
and get rid of the property. Thus, if an infant lessee takes posses-
sion, he becomes liable to the rent and other obligations incident to
the estate, so long as he remains in possession, and until he disagrees
to the estate (/).
(a) Jennings v. i?MmZ«ZZ, 8 T. R. 335; (e) lb.; Exp. Unity Joint Stock
and see Bumard v. Haggis, 14 C. B. N. Banking Ass., 3 De G, & J. 63; 27 L.
S. 45; 32 L. J. C. P. 189. J. B. 33; and see Nelson v. Stacker, 4
(6) Per Lord Kenyon, Bristow v. East- De G. & J. 458; 28 L. J. C. 760.
man, 1 Esp. 172. (/) Kirton v. Eliott, 2 Bulstr. 69; S.
(c) Johnson v. Pye, 1 Lev. 169; 1 C. nom. Ketley's case, Brownl. 120;
Keb. 913; Price v. Heioett, 8 Ex. 146; Ketsey's case, Cro. Jac. 320; and see
and see Liverpool Adelphi Loan Ass. v. North Western By. Co. v. WMichael,
Fairhurst, 9 Ex. 422: Wright v. Leonard, 5 Ex. 114, 126; Evelyn v. Chichester, 3
11 C. B. N. S. 258; .30 L. J. C. P. 365. Burr. 1717.
(d) Bartlett v. Wells, 1 B. & S. 836;
31 L. J. Q. B. 57.
Vol.1.— 83
I
514 CHAP. VI, PARTIES TO CONTRACTS.
So, in an action against the registered holder of shares in a railway
company for calls due upon the shares, the plea that when he was re-
gistered as the holder of the shares, and when he became indebted,
he was an infant, was held bad ; because it showed that the interest
in the shares remained vested in him, and the obligation to pay was
incident to the interest in the shares («) . Nor, in such case, is it suf-
ficient for the defendant to plead, besides the infancy at the time of
acquiring the shares, that he had derived no advantage from them
and had never ratified or confirmed the purchase of them (b).
But where the defendant, charged by a railway company with calls
on shares, pleaded that he became the holder of the shares under the
subscription contract, and that at the time of contracting he was an
infant, and that while he was an infant he repudiated the contract,
and gave notice to the company that he held the shares at their dis-
posal, the plea was held good ; because it showed that the defendant
had done all he could to disclaim the shares, and that his name re-
mained on the register only by the fault of the plaintiffs in not strik-
ing it out (c) .
Money paid by infant under a contract. —Where an infant has
paid money under a contract for which the consideration remains ex-
ecutory, he may repudiate the contract and recover the money paid, as
upon an entire failure of consideration. Thus, a mmor having signed
a written agreement to purchase a share of a business at a certain
price, and to pay down part of the purchase money as a deposit, which
was to be forfeited on breach of the agreement, he was held entitled
on coming of age, having then taken no benefit under the agreement,
to repudiate it altogether, and to recover the amount of the deposit
in an action for money received for his use (d).
But if the infant has in part received the consideration, though he
may disaffirm the contract, he cannot recover the money paid under it
because the failure of consideration is not complete. Thus, an infant
havmg paid a sum as a premium for a lease, which he enjoyed during
his minority, but avoided after coming of age, it was held that, though
he might avoid the lease and escape the burden of the rent and cove-
nants, he could not recover the sum paid as a premium, because he
had partially enjoyed the consideration for it (e) ; and where an in-
fant had paid a sum of money for admission into a partnership and
had executed the deed of partnership and acted as partner, receiving
money out of the profits, he was held not to be entitled to recover the
(a) Cork and liandnn By. Co. v. Caze- {c) Newry and Enniskillen By. Co. v,
nave, 10 Q. B. U.'55; Birkenhead Baihmy Coowbe, 8 Ex. 565.
Co. V. Pilcher, 5 Ex. 1'21. (d) Corpe v. Overton, 10 Bing. 252.
(6) North- Western By. Co. v. WMi- (e) Holmes v. Blofju, 8 Taunt. 508.
chael, 5 Ex. 114.
SECT. ir. CAPACITY OF PARTIES. 515
money (a). So, though an infant who buys things, not necessaries,
cannot be compelled to pay for them ; yet, havmg paid for them, he
cannot recover back the money {l>).
Ratification after full age. — A person after attaining the age of
twenty- one years may ratify and confirm a contract made by him
during infancy, and so make it absolutely bindmg (c). " The princi-
ple on which the law allows a party, who has attained his age of
twenty- one years, to give validity to contracts entered into during his
infancy is, that he is supposed to have acquired the power of deciding
for himself, whether the transaction in question is one of a meritorious
character, by which in good conscience he ought to be bound " (d).
By Lord Tenterden's Act, 9 Geo. IV. c. 14, s. 5, it is enacted, "that
no action shall be maintained whereby to charge any person upon any
promise made after full age to pay any debt contracted during infancy,
or upon any ratification after full age of any promise or simple con-
tract made durmg mfancy, unless such promise or ratification shall
be made by some writing signed by the party to be charged there-
with." The Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c.
97, has not taken away the necessity of the ratification being signed
by the party himself ; although it has done so in the analogous case
of promises to pay debts barred by the Statute of Limitations, by giv-
ing effect to such promises when signed by an agent of the party (e) .
The ratification of a promise made during infancy has been com-
pared to the ratification of an act of an agent, and it has been laid
down that, apart from Lord Tenterden's Act, " any act or declaration
which recognizes the existence of the promise as binding is a ratifica-
tion of it, as, in the case of agency, anything which recognizes as
binding an act done by an agent, or by a party who has acted as agent,
is an adoption of it ; " and that under Lord Tenterden's Act, " any
written mstrument signed by the party, which in the case of adults
would have amounted to the adoption of the act of a party acting as
agent, will in the case of an infant who has attained his majority
amount to a ratification "(/"). A writing signed by the defendant con-
taining an admission of the debt, was held sufQcient to satisfy the
statute, although without address, or date, and not stating the amount
of the debt, or the name of the creditor, these matters being supplied
by parol evidence {g) . A ratification will be presumed to have been
made after full age in the absence of evidence to the contrary (A). If
(a) Ex p. Taylor, 8 De G. M. & G. [e) See s. 13; post, Chap. XIII, Sect.
254; 25 L. J. B. 35. XI, " Limitations."
(b) Per Lord Kenyon, Wilson v. (f) Harris v. Wall, 1 Ex. 122, 130;
Kearse, Peake Ad. Ca. 197. and see Mawson v. Blane, 10 Ex. 206.
(c) Cohen v. Armstrong, 1 M. & S. [g] Hartley v. Wharton, 11 A. & E.
724; Williams v. Moor, 11 M. & W. 256, 9.34; Hunt v. Massey, 5 B. & Ad. 902.
266. {h) Hartley v. Wharton, supra.
(d) Williams v.Moor,!! M.& W.256,264.
516 CHAP. VI. PARTIES TO CONTRACTS.
the original contract made by the infant was by deed, it can only be
ratified by deed, or by something amounting to an estoppel m law of
as high authority as the deed itself (a).
Ratification of liability incident to property— In cases where
the infant has by means of contract become possessed of property hav-
ing obligations and liabilities incident to it which he might disaffirm
on coming of age, he should do so within a reasonable time, otherwise
the fact of retaining possession of the property may operate as a con-
firmation of the transaction (b). Thus, an infant who takes a lease of
land, by contmuing m possession after coming of age, affirms the con-
tract, and is liable for the rent and covenants ( c ). So, if an infant
makes a lease, and accepts rent after commg of age, he thereby affirms
the lease, and precludes himself from avoiding it on the ground of in-
fancy (d). An hifant who has been admitted to a copyhold estate, and
has retained possession after coming of age, affirms the admittance, and
is liable for the fines due upon it (e). An infant who was registered as
the holder of shares in a company, by permitting his name to continue
registered after he came of age, was held to have ratified his owner-
ship of the shares (/) So, an infant member of a partnership, who
did nothing to disaffirm the partnership upon coming of age, was held
to continue as partner, and to be liable on contracts subsequently
made by the firm (g).
Limited and conditional ratification. — The ratification may be
made upon a condition or to a limited extent. Thus, a person may
promise to pay a debt incurred during infancy " when he is able ; "
and such new promise is binding upon him conditionally on his be-
i; coming able to pay (A).
» Right of infant on contract. — A contract made with an infant,
although voidable by the infant, is binding on the other party to it
until avoided ; and it cannot be avoided by him on the ground of the
infancy of the person with whom he has contracted. In an action on
a contract containing mutual promises of marriage, the defendant
pleaded the infancy of the plaintiff; but the Court held that the
contract was not void, but only voidable at the election of the infant ;
and that, though the infant has the privilege of election, the party
with whom he has contracted has not, but is bound to the infant (/),
It is not necessary for an infant to wait until he comes of age in order
(a) Baylis v. Dineley^ M. & S. 477. {d) Ashfieldv. A.shfield, Sir W. Jones,
(b) See ante, p. 513 ; Dublin & Wick- 157.
low Ry. Co. V. Black, 8 Ex. 181 ; Cork <& (e) Evelyn v. Chirhester, SBurr. 1717.
Bnndon Ry. Co. v. Cazenove, 10 Q. B. (/) Cork & Bnndon By. Co. v. Cuze^
935: Holmes -v. Bloag.^ T^nni.'^fi nave, 10 Q. B. 935; and see Dublin <£
(c) Kirton v. Elwtt, 2 Bulstr. 69; S. Wicklow Ry. Co. v. Black, 8 Ex. 181.
C. nom. Ketleif.H Case, Brownl. 120; (f/) Goode v. Harrinon, 5 B. & Aid.
nom. Eetsey^sCase, Cro. Jac. 320; see 147.
Baylis v. Dineley^ 3 M. & S. 477, 481. (/;) Cole v. Saxby, 3 Esp. 160.
(0 Ilolt V. Clarencieux, 2 Str. 937.
SECT. II. CAPACITY OF PARTIES. 517
to bring an action upon a contract ; he may sue upon it, by his next
friend, during his minority (a). But a Court of Equity will not grant
specific performance of a contract in favor of an infant, because the
remedy is not mutual {b) ; after the infant has come of age and has
adopted the contract, he may obtain specific performance (c).
Contract of infant for necessaries. — An uifant may validly con-
tract to pay for necessaries supplied to him suitable to his condition
in life. " An mfant may bind himself to pay for his necessary meat,
drink, apparel, necessary physic, and such other necessaries, and
likewise for his good teaching or instruction, whereby he may profit
himself afterwards " (d).
The principles upon which the law determuies what are necessaries
for which an infant may validly contract to pay are explamed in the
judgment in the case of Chappie v. Cooper, as follows : — « Tilings neces-
sary are those without which an individual cannot reasonably exist. In
the first place, food, raiment, lodging, and the like. About these
there is no doubt. Agam, as the proper cultivation of the mind is
as expedient as the support of the body, mstruction m art or trade,
or intellectual, moral, and religious information may be a necessary
also. Agam, as man lives in society, the assistance and attendance
of others may be a necessary to his well-being. Hence attendance
may be the subject of an mfant's contract. Then the classes being
established, the subject-matter and extent of the contract may vary
according to the state and condition of the infant himself. His clothes
may be fine or coarse according to his rank ; his education may vary
according to the station he is to fill ; and the medicines will depend
on the ills with which he is aflSicted, and the extent of his probable
means when of age. So, again, the nature and extent of the attend-
ance will depend on his position m society ; and a servant in livery
may be allowed to a rich mfant, because such attendance is commonly
appropriated to persons in his rank of life. But in all these cases, it
must first be made out that the class itself is one in which the things
furnished are essential to the existence and reasonable advantage and
comfort of the infant contractor. Thus, articles of mere luxury are
always excluded, though luxurious articles of utility are in some cases
allowed. So, contracts for charitable assistance to others, though
highly to be praised, cannot be allowed to be binding, because they
do not relate to his own personal advantage. In all cases there must
be personal advantage from the contract derived to the infant him-
self" {e).
( a) Warwick v. Brncey 2 M. & S. 205. (d) Co. Lit. 172 a.
(6) Flifjht V. Bolland, 4 Russ. 298. (e) 13 M. & W. 252, 258; and see
(c) Clayton V. Ashdown, 9 Vin. Abr, Peters v. Flemm'i,(^'M.. &W. 42; Whar-
393, pi. 4. ton v. Mackenzie, 5 Q. B. 606.
518 CHAP. VI. PARTIES TO CONTRACTS.
In accordance with the above prmciples, it has been decided that
a livery for a servant may be necessary for an mfant requiring such
an attendant (a) ; a horse may be necessary {h) ; regimental clothes
may be necessary for an infant who is a member of a volunteer corps
(c) ; dinners supplied to an midergraduate at the university at his
private rooms are primd facie not necessaries (d).
As the law permits an infant to make a valid contract of marriage,
all necessaries fui-nished to his wife and children are, m point of law,
necessaries for the infant ; and a contract for necessaries supplied to
an infant's wife and legitimate children is good, and cannot be avoided
on the ground of infancy, any more than a contract for food or educa-
tion supplied to the infant himself (e). So an infant may validly
contract for the funeral of his deceased wife, as a necessary ; and so,
likewise, may an infant widow validly contract for the funeral of her
deceased husband (/). A marriage settlement suitable to her estate
and condition is necessary for an mfant upon her marriage ; and if
she retains a solicitor to prepare it, the liablity to pay his bill is trans-
ferred by the marriage to the husband (g).
An infant may contract a debt for necessaries, notwithstandmg he
has a sufficient income to supply himself with ready money (h) ; and
the party supplymg necessaries to an infant is not, as a general rule,
bound to inquire into his circumstances before giving credit to him
( i ) ; but the fact of the infant being properly provided with any ar-
ticle is material with regard to the question of the necessity of a fur.
ther supply of the same article (J).
Whether articles supplied are necessary or not, within the above
description, is a question of fact for the jury to decide (k).
Secnrities given by infant for necessaries. —An infant cannot
be charged on a bill of exchange accepted by him even for necessaries
(/) ; nor on an account stated in respect of a debt due for necessaries
(tn) ; nor can an infant bind himself by executing a cognovit (w), or a
bond (o) for a debt due for necessaries. Where an infant borrowed
(a) Hands v. Slaney, 8 T. R. 578. (j) Bainhridge v . Pickering, 2W. Bl.
(6) Harrison v. Fane, 1 M. «fe G. 550; 1325; Buryhart v. Angerstein, 6 C. & P.
Bart V. Prater, 1 Jur. 623, 690.
(c) Coates v. Wilson, 5 Esp. 152. (k) Peters v. Fleming, 6 M. ^
C. 90. (e) Murray v. Barlec, 3 M. & K. 209.
(c) .See Heatley v. Thomas. 15 Ves. (/) Gaston v. FVankurn, 2 De G. &
596; Shattock v. Shattock, L. Ptcp. 2 Sm. 501.
SECT. II. CAPACITY OF PARTIES. 523
specific engagement on her part, as an implied contract to repay money
received by her for the use of another (a).
If a married woman has property settled to her separate use for
life only with a general power of appointment by deed or will, she
must duly exercise the power in order to charge the property after her
death, otherwise the property will pass as in default of appomtment ;
and the execution of the power will operate only according to the
terras of the instrument of execution, so that her debts and engage-
ments are not charged upon the property unless she has so appointed.
The mere execution by a married woman of a general power by will
does not render the property assets for payment of creditors, as in the
case of such execution of a power by a person other than a married
woman (b).
Upon the death of a married woman possessed of separate property
absolutely, it seems that the debts and engageraents charged upon it
are payable, as charges, in order of priority, and not pari passu, as in
the course of administration of assets (c).
In equity, a married woman may contract with her husband in re-
spect of her separate estate, and in reference to any matter as to which
she can be regarded for the purpose of the contract as in the position
of a, feme sole (cl).
The doctrine that a married woman having separate property could
bind herself by contract at law was laid down and acted upon by Lord
Mansfield, C. J. (e), but overruled by the unanimous decision of all the
judges in the case of Jlarshall v. Mutton {/)•
Rights of married woman nnder contracts made with her {g).
A person may become bound by a contract made with a married
woman ; and the husband acquires the right to mtervene and claim
the performance of it.
The husband may sue alone upon contracts made in favor of his
wife during the coverture (A) ; as, upon a bond given to the wife the
husband may sue during the coverture in his own name {%). So, upon
a promissory note made to a wife in her name during the coverture
(a) Jones v. Harris, 9 Ves. 486; Agui- hered to in Comptonv. CoUinson, 2 Bro.
lar V. Aguilar, 5 Madd. 414; Wright v. C. C. 377, 385; 1 H. Bl. 334.
Chard, 4 Drew. 673; 29 L. J. C. 82. (/) 8 T. R. 545: see Murray v. Barlee,
(h)Vauqhan v. Vanderstegen, 2 Drew. 3 M. & K. 209; 221.
165- 23 L. J. C. 793; Shattock v. Shat- (g) As to the effect of marriage upon
lock, L. Rep. 2 Eq. 182; 35 L. J. C. 509; contracts previously made, see po«(,
see Jenneyy. Andreios, 6 Madd. 264. Chap. XVII, Sect. Ill, " Assignment ot
(c) Shattock v. Shattock, L. Rep. 2 Contracts by Marriage. „ ^ ui
Eq. 182, 194; 35 L. J. C. 509, 516. (h) See Bidgood v. Way, 2 W. Bl.
(^7) Vansittart v. Vansittart, 4 K. & 1236, 1239. .. ^ o >f .e, e
J. 62: 27 L. J. C. 222. (0 -Day v, Pargrave, cited 2 M. & b.
(e) Corbett v. Pvelnitz, 1 T. R. 5, ad- 396.
524 CHAP. YI. PARTIES TO CONTRACTS.
the husband may sue in his own name only (a) ; and the husband
alone can mdorse it {b) ; the wife cannot indorse it m her own name,
and can indorse it in her husband's name only as his agent and with
his authority (c).
Contract made with husband and wife jointly— On a bond or cov-
enant made to both husband and wife jointly, the husband may sue
alone (ci). On a bond given to a husband and his wife, as administra-
trix of a deceased person, it was held that the husband might sue alone
as if the bond w^ere made to himself (e). A lease was made by a hus-
band and wife, and the covenants were made to them jointly ; it was
held that the husband might sue alone upon the covenants, as being
in legal effect made to himself alone (^f).
Where wife may be joined with husband in suing upon con-
tract. — Where the promise is made to the wife upon a consideration
moving from her, or, as it is termed, where the wife is the meritorious
cause of action, the husband may assent to give the wife an interest
in the contract, and join her m the action {). A promise was made
to a married woman, in consideration that she should cure a certain
wound, to pay unto her £10 ; it was held that the wife might be
joined in the action, because the consideration was a performance by
her ; and that the action would survive to the wife upon the death of
the husband (h). A husband and wife declared as joint plaintiffs
upon a promise made m consideration of a cure done by the wife, and
also in a second count for the price of medicmes, etc., provided : upon
a general demurrer, it was held that the wife could not join, for that
she was not the sole cause of the action, because the medicines, etc.,
were the husband's own property ; but that if the action had been
brought for the labors of the wife only, she might well have joined (i).
So, a promissory note made to a wife in her own name is pre-
sumed to be made upon a consideration moving from her, and the
husband may join the wife in suing upon it (J). On a covenant made
to the husband and wife in a lease of the wife's lands, the wife may
be joined in the action (k) ; but where a lease of the wife's lands was
expressly made by the husband alone, it was held that the wife could
(a) Burrough V. Moss, 10 B. &C. 558; (f) Arnold v. Bevoult, supra; see
and see Hovjard v. Oakes, .3 Ex. 136, TIUl v. Saunders, 4 B. & C. .'S29.
140; and see iV Neilage v. Holloway, i (r/)See Bidtoood v. Way, 2 "W. Bl.
B. & AM. 218. 1236, 1239; Bose v. Bowler, 1 H. Bl.
[h) Mason v. Morr/an, 2 A. & E. 30; 108, 114.
Jjdiijson V. Prince, 27 L. J. C. 169. (h) Brasliford v. Buckingham, Cro.
( c) Connor v. Martin,! Str. 516; Bar- Jac. 77.
low V. Bishop, 1 East, 4.32; and see Cotes (i) Holmes v. Wood, cited in Weller
V. Davis, 1 Camp. 485. v. Baker, 2 Wils. 414. 424.
(d) Arnold v. lievoult, 1 B. «fe B. 443; (j) Philliskirk v. Pluckwell, 2 M. iii
Ankerstein v. Clark, 4 T. R. 616. S. 393.
(e) Ankerstein V. Clark, supra. {k) Aleberry v. Walby, 1 Str. 22^
and see Arnold v. Revoult, supra.
SECT. II. CAPACITY OF PARTIES. oZO
not be joined («) . A promise was made to a husband and wife in
consideration of their forbearance to proceed upon a cognovit given
in a previous action in which the wife had been joined as co-plaintilf •
it was held that the wife, being to the extent of her interest in the
consideration the meritorious cause of action, she might be joined
with the husband in an action on the promise {b).
When wife may sue alone. — Where a promise is made to the
wife upon a consideration moving from her, as in the cases above
cited, she may sue alone, subject to being met by a plea in abate-
ment on the ground of the irregularity of procedure in a married
woman suing without joining her husband ; but her coverture forms
no defence to the action upon the merits and cannot be pleaded in
bar (c). Thus on a covenant to pay an annuity to a married woman,
she may sue alone ; and the coverture of the plaintiff is matter only
for plea in abatement, and cannot be pleaded in bar {d). So, on a
promissory note given to a wife in her own name only, she may sue
alone, subject only to a plea in abatement of the non- joinder of her
husband ( e) . A married woman bought railway stock with money
earned by herself, and had it transferred to her own name ; it was
held that she might maintain an action against the railway company
for the dividends, and that, the company not having jDleaded the non-
joinder of her husband in abatement, she was entitled to recover
WTien wife cannot sne. — If the promise is made to the wife,
merely as agent for the husband and for his use and benefit, as where
the consideration for the promise is the property, goods or money of
the husband, he is solely entitled to it in his own right, and can sue
only in his own name, and the wife cannot be joined {g). In an ac-
tion brought by husband and wife on a promise made to them joint-
ly in respect of the use and occupation of land, judgment for the
plaintiffs was reversed in error upon the ground that the declara-
tion was bad in not stating any interest of the wife in the land, and that
no intendment could be made to that effect, even after judgment Qi).
So, husband and wife cannot jointly sue upon an accomit stated, unless
it is averred and proved to have been stated concerning a debt due
in right of the wife, or for which she was the meritorious cause of
action (t).
Authority of wife to contract as agent for hnshand— Though
(a) Harcourt v, Wyman,S Ex. 817. Co., 13 C. B. 474; and see Ness v. An-
(6) Niirse v. Wills, 4 B. »fe Ad. 739; 1 gas, 3 Ex. 805.
A. & E. 65. (g) See Holmes v. Wood, cited in 2
(c) See ante, ip. 519. Wils. 424; Bidgood v. Way, 2 W. Bl.
{d) Bendix v. Wakeman, 12 M. & W. 1236; Johnson v. Lucas, 1 E. & B. 659.
97. {h) Bidgood v. Way, 2 W. BI. 1236.
(e) Gnyard\. Sutton. 3 C. B. 153 {i) Johnson v. Lucas, 1 E. & B. 659.
(/) Dalion v. Midland Counties Ry.
526 CHAP. VI. PAETIES TO CONTRACTS.
a wife is incapable of making a contract to bind herself personally,
she is, in some cases, invested with authority to contract as agent
for her husband («). The husband is not bound by a contract made
by his wife without authority, expressed or implied ; and the party seek-
ing to charge him with contracts made by his wife must show that
she was invested with authority so to bind him.
A wife may acquire authority to bind her husband in two ways : —
1. During cohabitation with her husband she has a presumed au-
thority to contract for him hi those matters which are entrusted to her
management.
2. If the husband refuses to maintain her, unless for a sufBcient cause,
she becomes invested by law with an authority to supply herself with
necessaries upon his credit.
Authority presumed from coliabitation— 1 . A wife, during cohabi-
tation with her husband, has a presumptive authority to contract for
her husband in all matters which are usually entrusted to a wife, as for
the supply of goods for the use of herself and household suitable to
the condition in which they live (b). Similarly, a woman living with
a man, as his wife, and represented by him to be his wife, though they
are not married, is presumed to have authority to bind him by her
contracts for articles suitable to that station which he permits her
to assume (c) . A wife who is permitted by her husband to remain
the mistress of his establishment, though he has separated from her,
has the same authority (d).
Revocation of authority. — The authority of the wife arismg from
mere cohabitation may be revoked by the husband ; and it is sufficient
if such revocation is notified to the wife without notice of it reaching
the party dealing with her (e).
The existence of the authority of the wife during cohabitation is a
question of fact for the jury to decide ; but there is a presumption in
favor of the authority in the absence of evidence to the contrary (/).
Authority of wife to procure necessaries. — 2. A wife may also have
authority to bind her husband from necessity. This necessity arises
where the husband fails in his duty to mamtain his wife, and she has
no funds to maintain herself. A husband is bomid by law to main-
( a ) The authority of a wife to contract (c) Munro v. Be Chemant, 4 Camp.
on behalf of her husband belongs, strictly 215; Blades v. Free, 9 B. & C. 167; and
speaking, to the subject of ageney, which see Ryan v. Sams, 12 Q. B. 460.
is treated hereafter (see p. 20.5); but it (d) Norton v. Fazan, 1 Bos. & P. 226;
is thought more convenient to place it explainedbyWilles, J., Cooj)er v. iioyd,
here in connection with the personal 6 C. B. N. S. 519, 521.
cai)aclty of a married woman. (e) Jolly v. Eees, 15 C. B. N. S. 628;
(h) Montacjue V. Benedict, 2 Smith, L. 33 L. J. C. P. 177. Byles, J., dissen-
C. 5th ed, 408; Seaton v. Benedict, ib. tiente, as to the validity of the revoca-
415; Lane v. Ironmonger, 1.3 M. & W. tion without notice to the other party.
:;08 ; Reid v. Teakle, l!} C. B. 627; Ren- (/) See the cases cited above.
aux V. Teakle, 8 Ex. (\X0; Jewshury v.
Newbold, 26 L. J. Ex. 247.
SECT. H. CAPACITy OF PARTIES.
527
tain his wife in a manner suitable to his station in life (a) ; and if he
fails to supply such maintenance, except under certain circumstances
which justify him in withholding it, his wife has an authority to
pledge his credit to procure it, which is based upon necessity (b).
As long as the husband is able and willing to maintain his wife in his
own house, there is no necessity for her seeking maintenance elsewhere,
and she has no authority to pledge his credit to obtain it (c).
Where the conduct of the husband is such as to compel the wife to
leave his house, it is equivalent to a refusal on his part to maintam
her there ; and unless she is provided with a sufficient maintenance
she is entitled to pledge liis credit for necessaries elsewhere (d). Thus,
where she leaves the husband's house under a reasonable apprehension
of personal \dolence, she is so entitled (e) ; and it seems that the hus-
band, by living in adultery with another woman m the house, would
justify his wife leavmg it, and entitle her to pledge his credit for
necessaries (/). Where the husband was unable himself to maintain
his wife, by reason of bemg confined in a lunatic asylum, it was held
she had an authority to pledge his credit for necessaries ().
The authority of the wife, arising from the refusal of the husband
to maintain her, to provide herself with necessaries upon his credit
cannot be revoked or extinguished by the husband, even by an express
notice to the person who supplies her with necessaries (h).
Where wife has sufflcient funds —The wife is under no necessity,
and has no authority m law to pledge her husband's credit, if she has
in fact sufficient fmids to provide for herself necessaries suitable to ,
her condition in life (i). A decree for alimony obtained by the wife'
is held to he jyrimd facie evidence that the sum is sufficient in amount,
the decree being founded on proof given to the Court of the situation
in life of the parties (J). An agreement made between the husband
and wife, upon a separation by mutual consent, as to the amount of
her allowance is jjrimd facie evidence of its sufficiency; and the hus-
band cannot be charged without proof of its insufficiency (k).
(a) See the first resolution agreed by (g) Rend v. Legard, 6 Ex. 636; and
all the judges in Manby v. Scott, 2 see Davidson v. Wood, 32 L. J. C. 400.
Smith's L. C, 5th ed. 375. (h) Boulton v. Prentice, 2 Str. 1214;
(b) Manby v. Scott, 1st resolution Selw. N. P. 12th ed. 334; and see Ether-
siipra; Read v. Legard, 6 Ex. 636; 20 iJigton v. Parrot, 1 Salk. 118; per Lord
L. J. Ex. 309; Johnson v. Summer, 3 Campbell, L.C, Jenner \. Ilorris, S De
H. & N". 261; 27 L. J. Ex. 341. G. F. & J. 45, 51; 30 L. J. C. 361, 362. .
(c) Child V. Hardyman, 2 Str. 875; (i) Hodgkinson v. Fletcher, 4 Camp.
Hindley \. Marquis of Westmeath,Q B. 70; Liddloio v. Wilmot, 2 Stark. 82
& C. 200; Johnson v. Suynmer, 3 H. & Holt v. Brien, 4 B. & Aid. 252; Mizen v.
N. 261, 266; 27 L. J. Ex. 341, 344. Pick, 3 M. «& W. 481; Johnson v. Sum-
(cZ) Per Lord Kenyon,£rodr/esv. Hodges, ner. 3 H. & N. 261; 27 L. J, Ex. 341.
1 Esp. 441; Boulton v. Prentice, 2 Str. (j) Willson v. Smyth, 1 B. & Ad. 801.
1214; S. C. Selwyn's N. P. 12th ed. 334. (k) Johnson v. Sumner, 3 H. «fe N. 261;
(e) HouUston v. Smyth, 3 Bing. 127. 27 L. J. Ex. 341.
(/) P). 130; dissenting from Horwood.
V. Heffer, 3 Taunt. 421.
528 CHAP. VI. PARTIES TO CONTRACTS.
But if the alimony under the decree, or the allowance under the
agreement, is not paid, the wife is under a necessity to pledge her
husband's credit for her mauitenance, and has authority to do so (a).
AVhere a husband on separation from his wife transferred property to
trustees for her separate use, but it did not appear that the trustees
had accepted the property, or that the wife had received any
of it, the husband was held liable for necessaries supplied to her (^>) ;
and where the wife's separate property is not sufficient to afford her
proper maintenance, the husband is bound to contribute (c).
Adultery of wife. — A husband is not bound to maintain his wife
after she has committed adultery (d) ; and if he refuses to maintain
her, she has no authority in law to pledge his credit for her maint-
enance (e).
Necessity of wife mnst be proved. —Where the wife is living sep-
arate from her husband, there is no presumption that she has author-
f ity to bind him, even for necessaries ; and it lies upon the party seek-
ing to charge the husband for necessaries supplied to her to prove that
she has not in fact sufficient means to provide herself with necessaries,
and is living apart from her husband under such circumstances as en-
title her to render him liable (/).
What are necessaries.— Where a wife is entitled to procure her
necessary maintenance at her husband's expense, the question may
arise as to what are necessaries for which he may be charged, and is
one of fact to be decided by the jury (g). Furniture for a house may
be necessary for a wife in a station of life requiring her to live in a
furnished house (h). Where it became necessary for a wife to exhibit
articles of the peace against her husband, it was held that he was lia-
ble for the costs of an attorney employed by her on that occasion (i) ;
and that an allowance made to her for maintenance could not be con-
sidered as applicable to that purpose (j). A prosecution of the hus-
band for an assault on his wife was held to be a matter for which the
(o) Nurse v. Craic,, 2 B. & P. N. R. Leslie, M. & M. IS; 2 C. & P. 507; Ed-
US; Hunt V. De Blaquiere, 5 Bing. 550; wards v. Towels, 5 M. & G. 624; Ozard
and see Keerjan v. Smith, 5 B. & C. 375. Y.Darnford, 1 Selw. N. P. 12th ed. 331 ;
(b) Barrett v. Bootij, 8 Taunt. 343. Mizen v. Pick, 3 M. & W. 481; Johnson
(c) See Davidson v. Wood, 32 L. J. C. v. Sumner, 3 H. & N. 2(51 ; 27 L. J. Ex.
400. 341.
(d) R. V. Flintan, 1 B. & Ad. 227; see {g) Hunt v. De Blaquiere, 5 Bing.
Uope V. Hope, 27 L. J. P. & M. 43. 550.
(e) Govier v. Hancock, 6 T. R. 003; (h) Hunt v. De Blaquiere, supra.
Atkyns v. Pearce, 2 C. B. N. S. 703; 26 (i) Sheph^d v. Mackoul, 3 Camp.
L. J. C. P. 252; Cooper v. Lloyd, 6 C. 326.
B. N. S. 519. 0) Turner v. Bookes^ 10 A. & E. 47.
(J) Per Abbott, C. J., Mainwariny v.
SECT. II. CAPACITY OF PARTIES. 529
husband could not be made liable to pay the cost («). The costs of a
proctor, employed by a wife in prosecuting a suit against her husband
for a divorce on the ground of cruelty, may be recovered as a necessary,
if there was reasonable cause for the suit (b).
A husband is not liable at law for money lent to his wife, though
it was borrowed, and afterwards applied by her for the purpose of
paying debts previously contracted for necessaries, or for the purpose
of procuring necessaries for which she might have pledged his credit
(c). A wife was requested by her husband to join him abroad, and
borrowed money to enable her to pay her passage, which she did ; it
was held that the lender could not recover the amount from the hus.
band (d). But in Equity, if a person lends money to a wife, being then
entitled to charge her husband for necessaries, and she expends it in
necessaries ; or if a person pays money in discharge of the debts for
necessaries supplied to the wife, he is entitled to charge the husband
with the amount so lent or paid (e).
Ratification by hnsband of wife's contracts —A husband may
become liable upon contracts made by his wife, in excess of her au-
thority, if he subsequently ratifies them. Thus, the husband may be-
come liable to pay for articles ordered by his wife, without his author-
ity, if he sanctions the use of them ; and a husband may be taken to
have sanctioned the use of, and so become liable for articles of dress or
jewellery which his wife has ordered upon his credit, by seemg her
wear them without disapprobation (_/"). So, where he has control over
the goods improperly ordered by his wife, and does not return them
((/). The husband may ratify the contract conditionally ; and he then
becomes liable only upon fulfilment of the condition ; as, where goods
had been supplied to his wife without his authority, and he subse-
quently promised to pay for them if he was not arrested, it was held
that the creditor could charge him only subject to the condition as to
the arrest (h).
Contracts toith persons in a state of insanity.
Insanity. — A person may be afflicted with mental insanity to such a
degree as to render him incapable of understanding the matter of an
agreement; but he is presumed by law to be of sound muid and
capable of understanding an agreement until the contrary appears.
(«) Grindell v. Godmond, 5 A. & E. Jenner v. Morris, 3 De G. F. & J. 45;
■^SS- ^ 30 L. J. C. 361.
(h) Brown v. Ackroyd, 5 E. & B. 819; (f) See Montague v. Benedict, 3 B. &
25 L. J. Q. B. 193. C. 631; Seaton v. Benedict, 5 Bing.28;
(c) Knox V. Bushell, 3 C. B. N. S. 2 Smith, L. C. 5th ed. 408, 415.
^^- „ (f/) Waithman v. Wakefield, 1 Camp.
(^) Ii>- 120.
(e) Harris v. Lee, 1 P. Wms. 482; (h) Holt v. Brien,4B. & Aid. 252.
vol. 1. — 34.
530 CHAP. VI. PARTIES TO CONTRACTS.
Hence, every person, in his dealings with another, is entitled to con-
sider him of sound mind, and capable of contracting, until he has
notice to the contrary. But if a person enters into an agreement
with another, knowing him to be at the time of unsound mmd, and
thereby mcapable of understanding the agreement, he cannot enforce
such agreement ; if he brings an action upon it, the defendant may
, avoid its effect by pleading that he was msane at the time of makmg
the agreement, and thereby incapable of understandmg it, to the knowl-
edge of the plaintiff (a).
,v A lunatic may be charged upon his contracts for necessaries sup-
fplied to him suitable to his condition and wants, notwithstanding the
Iparty supplying them had notice of his insanity (b) ; the maintenance
jjof his wife is a necessary for which a lunatic may be so charged (c).
I In the case of Molton v. Camroux^ a Imiatic had purchased certain
annuities for his life of an assurance company which, at the time, had
no knowledge of his unsomidness of mind ; it was held that, after his
death, his personal representatives could not avoid the transaction, and
recover back the premiums paid for the annuities. In that case the
Court fomided their judgment chiefly on the circumstance that the
contract had been completely executed, so that the parties could not
be restored to their original position {d).
In the case of Beavan v. MDonnell the plaintiff had entered into an
agreement with the defendant for the purchase of an estate on certain
conditions, under which he had paid a deposit, and the defendant had
delivered an abstract of title and was ready and willing to complete
the sale ; at the time of making the agreement the plaintiff was insane
and incapable of understandmg the meaning of it, but the defendant
was not aware of his insanity ; it was held, upon the principle of Mol-
ton V. Camroux, that the plaintiff was not entitled to avoid the con-
tract and recover back the amount of the deposit (e) . In the same
case(/),upon the issue whether the defendant had notice of the insanity
of the plaintiff, it was held that evidence of insane conduct, both before
and after the signing of the contract, was admissible to show that the
nature of the insanity was such that the defendant must have been
aware of its existence.
A court of equity will not grant specific performance of a contract
made by a person in a state of insanity, although the other party had
(a) Sentance v. Poole, .3 C. & P. 1 ; (c) Bend v. Legard, 6 Ex. 636.
Browyiev. Joddrell, 3 C. & P. .30; Dane (d) Molton v. Camroux, 2 Ex. 487;
V. Kirkwall, 8 C. & P. 079; Molton v. affirmed in Ex. Oh. 4 Ex. 17; and see
Camroux, 2 Ex. 487, .Wl ; Beavan v. Elliot v. Ince, 7 De G. M. & G. 475,
McDonnell, 9 Ex. .30!); 10 Ex. 184; and 487; 26 L. J. C. 821, 824.
see Gore v. Gibson, 13 M. & W. 623. (e) 9 Ex. 309; 23 L. J. Ex. 94.
(h) Baxter v. Earl of Portsmouth, 5 (f) Beavan y. McDonnell, 10 Ex. 184;
B. & C. 170; and see Wentworth v. Tubb, 23 L. J. Ex. 327.
1 You. & Col. C. C. 171.
SECT. rr. CAPACITY OF PARTIES. 531
no notice of the insanity, and took no advantage of it (a) ; but the
Court will not set aside a contract on the mere ground of the msanity
of one of the parties, the other party having dealt with him on the
faith of his bemg of competent understanding (b) . The Court will
grant specific performance of a contract made during a lucid interval,
notwithstanding subsequent insanity, provided the remedy can be
given ; no act of the insane person being requu-ed, as a conveyance,
which the plaintifif is not willing to dispense with (c).
Intoxication. — A person who is deprived of his reason by intoxica-
tion is regarded by law, as to his capacity of contracting, in much the
same light as a person of unsound mmd. If a person, at the time of
making an agreement, is so intoxicated as to be incapable of under-
standing the meaning of it, the other party bemg aware of his state,
he may afterwards avoid the agreement, and may answer an action
brought agamst him upon it, by the plea that he was intoxicated at
the time of making it, to the knowledge of the plaintiff (d). " There
is this distinction," it has been observed, " between the case of lunacy
and that of intoxication : in the latter case the incapacity of the party
is patent, — in the former, it may not be in the least degree visible "
(e).
It is said that a person may be liable for the price of actual neces-
saries supplied to him whilst in a state of intoxication (/).
The principles upon which equity deals with contracts made by a
person when in a state of intoxication have been explamed by Sir W,
Grant, M. R., in the followmg terms (y ) : — " A court of equity ought
not to give its assistance to a person who has obtained an agreement,
or deed, from another, in a state of intoxication ; and, on the other
hand, ought not to assist a person to get rid of any agreement, or deed,
merely upon the ground of his having been intoxicated at the time (h) :
I say merely upon that ground ; as, if there was, as Lord Hardwicke
expresses it in Coiy v. Cory (*), any mifair advantage made of his situa-
tion, or, as Sir- Joseph Jekyll says in Johnson v. Medlicott (j), any con-
trivance or management to draw him into drink, he might be a proper
object of relief m a court of equity." Acting upon these principles,
(a) Rail V. Warren, 9 Yes. 605; and (e) Per Alderson, B., Molton v. Cam-
see Frost V. Beavan, 17 Jur. 369; 22 roux, 2 Ex. 487, 491.
L. J. C 638. (/) See Gore v. Gibson, 13 M. & W.
(b) mell V. Jlorley. 9 Yes. 478; and 623, 627.
see Elliott v. Ince, 7 De G. M. & G. {g) Cooke v. Clayworth, 18 Ves. 12,
475, 488; 26 L. J. C. 821, S25. 15; and see Shaw v. Thackray, 1 Sm. &
(c) lb. ; Owen v. Davies, 1 Yes. sen. Gif. 537, 540.
82. (h) Dunnage v. White, 1 Swanst. 137.
(d) Gorev. Gibson, 13 M. & W. 623; (i) 1 Yes. 19.
Hamilton v. Grainger, 5 H. & X. 40; 0) 3 P. Wms. 130.
and see Pitt v. Snnth, 3 Camp. 33; Fen-
ton V. Uollovmy, 1 Stark. 126.
532 CHAP. VI. PARTIES TO CONTRACTS.
the Court has refused to set aside an agreement merely upon the ground
that the plamtifif was intoxicated when he made it, where it did not
appear that he was deprived of his reason, or that any unfair advan-
tage was taken of his condition (a) ; and the Court has decreed spe-
cific performance of an agreement against a party who was in a slight
degree intoxicated when he made it (b) .
[a) Cooker. Clayworth, 18 Ves. 12. Ex. 586; Shaw v. Thackray, 1 Sm. &
(6) Lightfoot v. Heron, 3 You. & Col. Gif. 537.
CHAPTER Vn.
CAPACITY OF PAKTIES.
Section I. — Infants.*
Ex parte KIBBLE.
In the Coitbt op Appeal in Bankruptcy, March 11, 1875.
[iJeporfed in Law Reports, 10 Chancery Appeals, 373.]
This was an appeal from a decision of Mr. Registrar Hazlitt, sitting
as Chief Judge in Bankruptcy.
On the 5th of November, 1874, a joint debtor's summons was issued
against Mr. A. P. L. Onslow by four creditors for four separate debts,
namely, Emanuel Emanuel, for 258Z. 3s. 2c?. ; W. Kibble, for 53/. IBs-
Id; H. C. Green, for 14^. 14s. ; and R. A. Green, for 29Z. 6s.
The consideration for all these debts was jewelry and money sup-
plied to A. P. L. Onslow during his infancy. He attained his majority
on the 25th of August, 1874.
Kibble's debt, on which the adjudication of bankruptcy was event-
ually founded, was for a dishonored bill of exchange dated the 18th
of May, 1874, and drawn in his favor by A. P. L. Onslow on his
mother for 50?., payable at four months after date, in consideration
of jewelry and advances of money. After he attained his majority,
Kibble brought an action against him in the Court of Queen's Bench,
mider the Bills of Exchange Act (18 & 19 Vict. c. 67) ; and on the
22nd of October, 1874, obtamed a judgment against him by default
for the amount claimed in the debtor's summons.
It was admitted that Kibble, when he supplied the jewelry and
money, knew that Onslow was an infant.
The debtor was warned by the summons that unless he compUed
with it he would have committed an act of bankruptcy, m respect
of which he might be adjudged a bankrupt on a bankruptcy petition
being presented by the said E. Emanuel, W. Kibble, H. C. Green, and
R. A. Green.
The debtor filed an affidavit in which he swore that he was not
* Ch. rV^ Sect. I, Finch. (533)
g34 KIBBLE S CASE.
indebted to the creditors in the aggregate sum claimed, and that the
whole of the debts were contracted by him before he attained the age
of twenty-one years, and were not necessaries, and that the debts had
not been ratified by him since he attained his majority.
On the hearing of the summons on the 8th of December, 1874, the
Registrar ordered that, upon the debtor entering into the usual bond
for such sum as E. Emanuel should recover in an action against him,
and upon payment of the sum of 53?. 18s. Id. within three days to
Kibble, all proceedings under the summons should be stayed as re-
garded these debts, and that all proceedings should be stayed with
regard to the other debts, without security, till after actions had been
brought for recovering the several debts.
The debtor not having paid Kibble his debt of 53Z. 18s. 7c?. within
the time limited, he filed a petition for adjudication of bankruptcy
against him founded on the debtor summons, the other creditors not
joining in the petition.
Mr. Registrar Hazlitt was of opinion that there was no petitioning
creditor's debt by reason of the infancy of the debtor at the time when
the goods were supplied, and he accordingly dismissed the petition ;
and from this decision Kibble appealed.
Mr. B. C. Willis (Mr. Boxhurgh, Q. C. with him), for the Appellant :—
We rely upon the judgment obtained against the debtor after he
attained his majority. We admit that the Court of Bankruptcy will
sometimes investigate the consideration for a judgment, but that is
only in cases where fraud or collusion has been proved. In the
present case there was nothing of the kind. Mr. Onslow's mother was
aware of all the circumstances, and accepted the bill drawn by him.
But if the judgment in this case can be opened, there was good con-
sideration for it. The Infants' Relief Act, 1874 (37 & 38 Vict. c. 62),
which came mto operation on the 7th of August, 1874, only apphes to
contracts made after the passmg of the Act, and therefore does not
touch either the origmal debt or the bill of exchange in this case.
The bill is therefore not void, but only voidable ; and although On-
slow might have pleaded his infancy in the action, he did not do so,
and the judgment operates as a ratification of the contract.
Mr. Winsloio, Q. C. (Mr. Bagley with him), for the bankrupt :—
There are two objections to this adjudication. First, that the alleged
petitioning creditor's debt was void ; and, secondly, that the debtor's
summons could not support the petition. As to the first point, it is
clear that the Court of Bankruptcy is not bound by a judgment at law,
but is in the habit of investigating the consideration for it : Ex parte
Bryant (a) ; £k parte Mar son (b). If otherwise, a debtor might elude
all his just creditors by allowing judgments to be taken by default
(a) 1 V. & B. 211, 214. (b) 3 Mont. & A. 155.
KIBBLE S CASE.
535
against hiin by friends. In the present case there would have been no
consideration to support the judgment, even before the Infants' Relief
Act, 1874, as it was founded on the bill of exchange, and a bill of ex-
change signed by an infant has always been held absolutely void, be-
cause an infant cannot trade : Smith on Contracts (a). But even if
there was a consideration before the late Act, it is now taken away.
It is true that the 1st section only applies to contracts made after the
passing of the Act, but the 2nd section prevents any valid ratification
being made of contracts made m infancy, and that section applies
equally to ratifications of contracts entered mto before or after the
Act (b).
In the second place, we say that the petition for adjudication was
irregular. Four creditors jomed in the debtor's summons. There is
no authority m the Act for this ; but if several creditors do jom in
a debtor's summons, they ought to jom in the petition for adjudi-
cation.
Mr. Willis, m reply, referred, on the first point, to Mirris v. Wall
(c) : Bx parte Prescott (d) ; and, on the second point, to Forms 4, 5,
and 6, in the schedule annexed to the Bankruptcy Rules, 1870, which
contemplate more than one creditor joining in the debtor's summons.
Sir W.M. James, L. J.: —
I am of opinion that the decision of the Registrar in this case was
quite right. It is the settled rule of the Court of Bankruptcy, on
which we have always acted, that the Court of Bankruptcy can
mquire into the consideration for a judgment debt. There are
obviously strong reasons for this, because the object of the bank-
ruptcy laws is to procure the distribution of a debtor's goods among his
just creditors. If a judgment were conclusive, a man might allow
any number of judgments to be obtamed by default against him by
his friends or relations without any debt bemg due on them at all ; it is
therefore necessary that the consideration of the judgment should be
liable to mvestigation. In the present case a bill of exchange had
been drawn by an mfant for jeweh-y purchased and money advanced to
(a) Page 209. , , . ,
(b) 37 & 38 Vict. c. 62, s. 1: " All contracts, whether by specialty or by simple con-
tract, henceforth entered into by infants for the repayment of money lent or to be lent,
or for goods supplied or to be supplied (other than contracts for necessaries), and all
accounts stated with infants, shall be absolutely void : provided always that this en-
actment shall not invalidate any contract into which an infant may by any existing
or future statute, or by the rules of common law or equity, enter, except such as now
by law are voidable."
Sect. 2: "No action shall be brought whereby to charge any person upon any
promise made after full age to pay any debt contracted during infancy, or upon any
ratification made after full age of any promise or contract made dm-ing infancy,
whether there shall or shall not be any new consideration for such promise or ratih-
cation after full age."
(c) 1 Ex. 122. (d) 1 M. D. & D. 199.
536 KIBBLE S CASE.
him. It is not pretended that there was any ratification of the original
debt or of the hill of exchange after the hifant came of age, until the
judgment was allowed to go by default against him, mider the Bills
of Exchange Act. The only question, therefore, is, whether the con-
sideration for the judgment has not been taken away by the Infants'
lielief Act, 1874. The first section enacts that all contracts thence-
forth entered into by infants shall be absolutely void : and then the
2nd section provides that no action shall be brought upon any promise
made after full age to pay any debt contracted during infancy, or upon
any ratification made after full age of any promise or contract made
during mfancy. When the Act says that no action shall be brought,
it must mean that the promise or ratification shall not be a good cause
of action : so that a ratification made after the Act of a contract made
in infancy before the Act is as void as a contract made by an infant
after the Act. Therefore, on this ground, I thhik the Registrar
came to a right conclusion.
But as the other question, respectmg the form of the summons and
the petition for adjudication, has been raised before us, it is right to
express our opuiion on that also. It appears to me very inconvenient
that a number of creditors should club together to take out a debtor's
summons, although that course appears to be sanctioned by the forms
annexed to the Rules of 1870. I give no opinion against the power of
creditors to do this, but I thmk that if they do unite in this way
they must all stand or fall together ; and if a petition for adjudication
is presented, they must all join in it. The summons cannot be dealt
with piecemeal, so that one debt can be made an act of bankruptcy,
and security required for another, and a third dealt within some other
way. It is impossible to work out a debtor's summons in that way.
Sib G. Mellish, L. J. : —
I am of the same opinion. It is quite clear that in the Court of
Bankruptcy the consideration for a judgment may be hivestigated
particularly when the judgment has gone by default. I do not mean
to say that this rule applies to such an extent that in every case in
which a Defendant has a good defence to an action and does not plead
it, as, for instance, where he had no notice of dishonor of a bill of
exchange, the Court of Bankruptcy would allow the creditors to go
behmd the judgment. The real question must always be whether
there was a good consideration for the debt, and we have therefore to
consider whether there was a good consideration in this case. If the
Act of 1874 had not passed, I should have doubted whether, as tlie
debt was one which was capable of being ratified in writing, there
was not a good consideration for the judgment. But, having regard
to the facts of the case, I think that the effect of the Act is to prevent
there being any consideration for the judgment. The case is not
EYDER V. WOMBWELL. 537
touched by the 1st section, because the bill of exchange was drawn
before the Act was passed. But when the Act came into operation
the bill had not become due, and the infant was still under age : and
the effect of the 2nd section was to prevent any action from being
brought on the bill, although it might have been ratified after the m-
fant came of age. For I am of opinion that that section applies to all
contracts made by an infant, provided the ratification is made after
the passing of the Act ; and that it is to be understood as saying that
a debt contracted in infancy shall not m future in any case form a
valid consideration on which an action can be brought. The statute
m effect places a debt contracted during infancy in the same position
as a gambling debt ; and a bill of exchange given for a gambling debt
cannot form the ground for an action. Even if the debtor does not
plead that it was for a gambUng debt, and lets the judgment go
against him, still the Court of Bankruptcy would go behind the
judgment and declare the debt void.
I also agree with the Lord Justice as to the form of the debtor's
summons. If several creditors join in a debtor's summons, they
must stand or fall together.
RYDER V. WOMBWELL.
In the Exchequer Chamber, December 3, 1868.
[Reported in Law Reports, 4 Exchequer Cases, 32.]
Appeal from the decision of the Court of Exchequer making abso-
lute so much of a rule as called on the plamtiff to show cause wny a
verdict found for him for 40/. 15s. should not be reduced by 15/. 15s. ;
and discharging the residue of it, which called upon him to show
cause why a nonsuit should not be entered ; or a new trial had, on
the ground of the improper rejection of evidence (a).
The declaration was for money payable for goods sold and deliv-
ered. Plea : Infancy. Replication : Necessaries. Issue thereon.
At the trial before Kelly, C. B., at the London sittings after
Trinity Term, 1867, it appeared that the plaintiff sought to recover
for the following (among other) articles of jewelry supplied by him
to the defendant, a minor : — First, a pair of crystal, ruby, and dia-
mond solitah-es, 25/. ; and, secondly, a silver gilt antique chased gob-
let, engraved with an inscription, 15/. 15s.
The defendant was the yomiger son of a deceased baronet of large
property in Yorkshire, and during his minority had an income of about
(a) Law Rep. 3 Ex. 90.
538
RYDER V. WOMBWELL.
500A per annum, and on attaining his majority he came into 20,000?.
He had no residence of his own, but occasionally stayed at Limmer's
Hotel, Bond Street, London ; his home was his mother's house in
London, and his brother's in Yorkshu'e, at each of which he was
boarded and lodged gratuitously. He pursued no trade or profession,
he moved in the highest society, and was in the habit of ridmg races
for his friends, amongst others for the Marquis of Hastings, at whose
house he was a frequent visitor, and for whom the goblet was in-
tended, as the plaintiff knew when he supplied it, as a present. The
solitaires were ornamental studs or buttons worn by gentlemen as
fastenings for the wristbands of the shirt ; they were made of crys-
tals set m gold, and ornamented with diamonds representing a horse-
shoe in which the nails were represented by rubies.
Evidence was offered on the part of the defendant, that, at the time
of the purchase of the ,solitaires, he had purchased similar articles of
jewelry to a large amount from other tradesmen, which rendered any
further supply by the plamtiff unnecessary ; but, as it was proved
that the plaintiff was not aware of this fact, the Lord Chief Baron
rejected the evidence.
The jury, in answer to the questions left to them by the learned
judge, found that the solitaires and the goblet were necessaries suit-
able to the estate and condition in life of the defendant, and a verdict
was accordingly entered for the plamtiff for 40Z. 15s., being the price
of the sohtaires and goblet, with leave to move to enter a nonsuit if
the Court should be of opinion that there was no evidence for the
jury that either article was a necessary ; or to reduce the damages by
the price either of the solitaires or the goblet, if the Court should be
of opinion that there was evidence for the jury in respect of one or
other of these articles only. A rule nisi was obtained accordingly,
and also for a new trial, on the ground of the improper rejection of
the evidence offered on the part of the defendant, that the defendant
was, at the time he purchased the solitaires of the plaintiff, supplied
already, although not to the knowledge of the plaintiff, with similar
articles. This rule was afterwards made absolute to reduce the ver-
dict by 15Z. 155., the price of the goblet, and discharged as to the
residue ; the majority of the Court being of opinion that the verdict
of the jury as to the solitaires ought not to be disturbed, and that the
evidence offered to prove that the defendant, when the solitaires
were supplied, was already sufficiently supplied with articles of a
similar description, was, under the circumstances, properly rejected.
June 20, 18GK. Buhrer, Q. C. (3Ia)/d with him), for the defendant,
contended, first, that a nonsuit ought to be entered, as there was no
evidence proper to be left to the jury that the solitaires were neces-
saries. In addition to the cases referred to in the Court below, he
RYDER V. "^OMBTVELL. 539
cited Eainsford v. Femoick («) ; Greene v. Chester (h) ; 7ue v. Ches-
ter (c) ; and Whittinyham v. Jlill {d) ; to show that in former times,
when a more precise and accurate form of pleading prevailed, the
facts relied upon as showing that the goods supplied were necessaries
were stated upon the record, and the Court were enabled to give
judgment whether in point of law the replication was sufficient. But
when it was established (see Coke's Entries, Debt. 8, p. 125, and
Huggins v. Wiseman) (e) that the plaintiff might reply in the general
form now m use, it became necessary that the facts which used for-
merly to be stated on the record should be found by a jui-y, and then
the Court had to determme, as formerly, whether the facts found did,
in point of law, furnish an answer to the plea. He contended, sec-
ondly, that the evidence was improperly rejected; and on this point
referred to the following additional authorities : Story and Another v.
Perry (/) ; Cooh v. Beaton {g) ; Ford v. Fothergill (h) ; Steedman v.
Bose (i) ; Berroles v. Ramsay ( /) Brayshaio v. Eaton {k) ; Foster v.
Redgrave (I) ; Chitty on Contracts, 6th ed. pp. 136, 137, 140 ; Leake
on Contracts, p. 233.
Popham Pike ( Coleridge, Q. C, with him), for the plaintiff, contended
that the question whether the solitaires were necessaries was rightly
left to the jury, and that they had come to a right conclusion. He
cited, in addition to the authorities quoted in the Court below, Hands v.
Slaney (m).
(a) Carter, 215. (b) 2 Rolle, 144. (c) Cro. Jac. 560.
(d) Cro. Jac. 494. (e) Carth. 110. (/) 4 C. & P. 526.
(a) 3 C. & P. 114. (h) 1 Esp. 211. (t) Car. & M. 422.
U ) Holt, N. P. 77. ik) 7 Scott, 183.
(I) Queen's Bench, Feb. 9, 1867.— Foster v. Redgrave.— This was a cause tried be-
fore Keating, J., at the Berkshire summer assizes, 1866. The declaration was on the
common counts for goods sold and delivered, &c. Plea : Infancy. Replication :
^^fOPssciriGS
It appeared on the trial that the defendant, an undergraduate at Oxford, had,
whilst a minor, been supplied by the plaintiff, a tradesman in Oxford, with a number
of articles of clothing which were admitted to be "necessaries" prima facie. The
defence was, that the defendant was, at the time the goods were ordered and supplied,
already provided with an ample wardrobe. It was not suggested, however, that the
plaintiff knew of this fact.
The learned judge left it to the jury to say whether, under these circumstances, the
goods supplied were necessaries. The jm-y found that they were, and a verdict was
thereupon entered for the plaintiff, with leave to move to enter a nonsuit. A rule
was afterwards obtained accordingly on the ground that the defendant, being already
fully supplied with articles of the same description as those sold to him by the plaintiff,
those coidd not be " necessaries," and therefore that the plaintiff was not entitled to
recover.
J. 0. Griffis showed cause, and contended that, unless the plaintiff was proved to
have had knowledge that the defendant was already sufficiently provided with articles
of a similar description to those supplied, his right to recover remained unaffected by
the circumstance that, in point of fact, the defendant was so provided.
The Court (Blackburn and Mellor, JJ.) without calling on Huddleston, Q. C., to
support the rule, made it absolute on the authority of Bainbridge v. Pickering (2 Wm.
Bl. 1325), and Brayshaw v. Eaton (1 Scott, 183).
(m) 8 T. R. 578.
540 RYDER V. WOIUBWELL.
With regard to the rejection of evidence, there was no case similar
to the present. In all of those cited m order to show that the evidence
was admissible, though not brought to the plamtiff' s knowledge, there
were pecuharities. Either they were cases of husband and wife, or
else of minors, in respect of whom there was a presumption that they
were already supplied with all necessaries by reason of their livuig in
their father's houses, or of their bemg in statu ^^itpiHari. Agam, in
many of the cases cited the tradesmen had pecuhar facilities for know-
ing the actual position of the minor. Putting aside particular and ex-
cei^tional cases there seemed to be no difference between a mhior being
actually supplied with goods similar to those for the price of which he
was bemg sued, and his bemg in the receipt of an income sufficient to
buy them if he chose. Yet the amount of an mfant's income had been
held immaterial: Brayshaw v. Eaton (a). Why should the amount of
his income when he had turned his money into goods be material ?
Bulwer, Q. C, in reply. Cur. adv. vult.
Dec. 3, 1868. The judgment of the Court (Willes, Byles, Blackburn,
Montague Smith, and Lush, JJ.) was delivered by
WiLLEs, J. In this case the plaintiff replied to a plea of mfancy,
that the goods were necessaries suitable to the degree, estate and con-
dition of the defendant, and on this issue was taken. On the trial
before the Lord Chief Baron it was proved that the degree, estate and
condition of the defendant was that he was the younger son of a de-
ceased baronet of good fortmie and family, that durmg his mmority
he had an income of about 500/. per annum, and on attaining his ma-
jority he became entitled to 20,000/., that he moved in what is called
the highest society, and rode races for a friend, the Marquis of Hast-
ings, at whose house he was a frequent visitor. Amongst the articles
supplied by the plaintiff upon credit, and which, according to his case
and the verdict of the jury, were necessaries for an infant of this de-
gree, were a silver-gilt goblet which he ordered for the purpose of
making a present to the Marquis of Hastings, price 15/. 15s., and a
pair of solitaires or ornamental studs, worn as the fastenmgs of the
wristbands of a shirt, which it is stated in the case were made of crys-
tals set in gold and ornamented with diamonds, representing a horse-
shoe in which the nails were rubies . The price of these studs or soli-
taires was 25/. No evidence was given of anything peculiar in the
defendant's station renderiag it exceptionally necessary for hunto have
such articles.
(a) 7 Scott, 183.
RYDER V. WOMBWELL. 541
At the close of the plaintifE's case the defendant's counsel offered
evidence that the defendant was already supplied with similar articles
of jewelry to a large amount, so as to render any further supply un-
necessary, but it being acbnitted that the plaintiff was not aware of
this, the Lord Chief Baron rejected this evidence.
Leave was reserved to move to enter a nonsuit or reduce the dam-
ages, and the question whether these two articles were, under the cir-
cumstances, necessaries, was left to the jury, who found for the plaint-
iff as to both of the articles above mentioned. They foimd for the
defendant as to some other articles which it is consequently not neces-
sary to notice. A rule nisi was obtamed in the Court of Exchequer to
enter a nonsuit or reduce the verdict pursuant to the leave reserved, or
for a new trial on the gromid of the improper rejection of evidence.
The rule was by the majority of the Court of Exchequer made abso-
lute, to reduce the damages to 25?., the value of the studs, thus decid-
ing that there was no evidence on which the jury could find that it was
necessary for the infant to buy on credit a goblet for the purpose of
making a present, but that there was evidence on which they might find
that it was necessary for him to buy such studs as are above described,
and the rule for a new trial on the ground of the rejection of evidence
was discharged. Bramwell, B., dissented from this judgment, as in
his opinion there was no evidence to go to the jury (a) ; and the evi-
dence rejected was admissible.
(«) The judgment of Bramwell, B., was as follows :— " In this case, on a replication
to a plea of infancy, the jury have found two articles to have been necessaries for the
defendant. The articles are, a gold drinking cup, the price of which is lol. 15s. , and a
pair of things called ' solitaires,' explained to us to mean articles which may be used
as studs to fasten the wristbands of a shirt. The price of these solitaires is 25L , owing
to their costly material and manufacture, and the jewels with which they are adorned.
I believe I am right in saying that studs fit for the purpose, and such as a gentleman
may well wear, might be bought for a trifle, or the wristbands may be buttoned with
buttons, scores of which may be bought for a few pence. It was said that the question
was for the jury, that the rule is that where the article is one of an useful class, the
question is one of fact to be decided by them. This argument was principally used
in favor of the claim for the solitaires. I cannot agree to this. It is extremely diffi-
cult to name anything which cannot be put to some use. Ear-rings for a male,
spectacles for a blind person, a wild animal, might be suggested. But even they
might come within the argument in support of the drinking cup claim, viz., that they
might be used for necessary and becoming presents. The argument seems to me to
lead to an absurdity. Food is necessary ; is it a question of fact whether a daily
dinner of turtle and venison for a month is a necessary for a clerk with a salary of
11. a week ? A threepenny ride in an omnibus on a wet day may be a necessary for
such a clerk, and save him its cost by saving his clothes. Is whether a coach and
four is a necessary for him, a question of fact ? Besides, suppose a jury ask what is
the meaning of necessaries. Does it mean in law, as in strictness, something indis-
pensable ? The answer must be, no. Then when they ask what is the meaning, and
it is expounded to them as being something reasonably required for the nourishment,
clothing, lodging, education, and decent behavior and appearance, according to sta-
tion, how can such an explanation include these articles ?
But I may fairly be asked what is the rule ? It seems to me to be this. There are
some things which cannot be necessaries. The ear-rings, the spectacles in the cases
put, the wild animal, and all things which are useless except for amusement, or
where the utility is the subordinate consideration and the ornament or amusement
542 KYDEE, V. WOMBWELL.
On appeal, therefore, there are two questions raised before us : first
whether there was evidence on which the jury might properly find
that both or either of those articles were necessaries, on the determi-
nation of which depends whether the verdict should be restored to a
verdict for the whole amount of 40^. 15s., or stand reduced to 25^., or
be altogether set aside and a nonsuit entered. Secondly, whether
the evidence offered was admissible ; the determination of which
only affects the question whether there sliouldbe a new trial or not.
The general rule of law is clearly established, and is that an infant
is generally incapable of binding himself by a contract. To this rule
there is an exception introduced, not for the benefit of the tradesman
who may trust the infant, but for that of the infant himself. This
exception is that he may make a contract for necessaries. And as is
the principal. On the other hand, there are some things certainly necessaries, bread,
meat, vegetables, water. There are also things which may or may not be, and which
give rise to questions for a jury. For instance, an infant orders an expensive coat ;
but it appears his trade or calling is of that nature that such a coat is necessary for
his health ; or it is shown that a coat at half the price would not last half the time.
Or if he has ordered a broadcloth coat, and it is said he should have contented him-
self with fustian, evidence may be given as to his position, and as to how such people
dress in that class in that neighborhood, and then the question is for the jury. I am
far from saying that the above is at once accurate and exhaustive, but I forbear from
the attempt to make it so. Not to be more tedious, I think, therefore, that in this
case the jury should have been told to find for the defendant. If the argument as to
the drinking cup is right, and if the tradesman is bound to make no inquiry, why
every case is for the jury, as an infant may always have some friend to whom he
would like to give the useless article he has purchased. But I cannot see why that
argument should be used. An infant must drink, and drink out of some vessel ;
therefore, the gold cup is in the class of useful articles. If the question was for the
jury, still I think such a direction ought to have been given as would have precluded
their going wrong, unless they gave a perverse verdict. 1 think necessaries ought to
have been so defined and explained as to give them no opportunity of returning a
wrong verdict, unless they did so wilfully. Of course, with this opinion I think if
there was evidence to go to the jury, still the verdict was wrong, and there should be
a new trial. It is observable that no one pledged his oath that these things were
necessary, or gave any description of the articles, of their utility, of the cost of other
contrivances for the purpose.
Further, I think evidence was admissible to show that the defendant was supplied
with similar articles. Suppose a baker delivered 100 loaves daily to an infant, who
could only consume one, would he be liable for the price of the other 99 ? Certainly
not ; because they were not necessaries. But what difference does it make on this
question, that they are supplied by one baker or a hundred ? The question is like
that which arises where a married woman has dealt on credit. There it is a question
of authority, here of capacity, depending on whether the woman or infant is suf-
ficiently supplied. No doubt we are not concerned with the goodness or badness of
the law, but I cannot help thinking it would be more correctly administered by juries,
at least, on this head, if its reason and advantages were properly appreciated. It is
not a law for the indemnity and defence of the infant who is sued merely ; it is a law
to deter people from trusting infants, and so save them from the consequences of the
improvidence and inexperience natural to their age, an improvidence which would
lea5.]
The first count in this declaration stated that the plaintiff, on, &c-
at the instance and request of the defendant delivered t(j the defend-
ant a certain mare of the plaintiff to be moderately ridden by the de-
fendant, yet that the defendant contriving and maliciously intending
to injure the plaintiff whilst the mare was in the defendant's custody
(a) 2 Wm. Bl. 1325. (b) 7 Scott, 183. (c) Arite, p. 539, n. (l).
JENNINGS V. EUNDALL. 547
under such delivery and before the same was returned to the plaintiff
on, &c. wrongfully and injuriously rode used and worked the said
mare m so immoderate excessive and improper a manner, and took
so little and such bad care thereof, that by reason of such immoderate,
&c. riding, &c. the said mare became and was greatly strained dam-
aged, &c. In the second count it was alleged that the plamtiff at the
instance and request of the defendant let to hire and delivered to the
defendant a certain other mare to go and perform a certam reasonable
and moderate journey, &c. yet that the defendant contriving, &c.
wrongfully and injuriously rode and worked the said mare a much
longer journey, &c. There was also a count in trover for two
mares.
The defendant pleaded his infancy to the two first counts, to which
plea the plaintiff demurred.
Marryat, in support of the demurrer, ( after observing that it was
immaterial whether or not infancy could be pleaded to the second count,
because it being pleaded to both counts if it were a bad plea as to either
count the whole plea was bad,) contended that, as the first count was
not founded on a contract but on a tort, the defendant could not plead
infancy to it. That that comit did not state any consideration for the
delivery of the mare by the plaintiff to the defendant, or any promise
by the defendant to take care of her or to redeliver her ; but that it
appeared to be a delivery on bail to the defendant who had abused the
plamtiff 's property. That the tort here did not consist in mere neglect
or omission, but in a tortious act done by the defendant. That the
dictum in the books, that if the action arise out of the contract the
plaintiff shall not by declaring in tort prevent the defendant pleadmg
infancy, must be confined to cases where the wrong complained of con-
sists in omission, or in some act which is a tort only by construction
of law. That such was the ground of decision in Grove v. JVevill, 1 Keb.
778, ( said in 1 Keb. 913, 914, to have been decided) where in an ac-
tion upon the case in nature of a deceit on sale by the defendant of
goods as his own, when in truth they belonged to another, the Court
said " This is no actual tort, or any thmg ex delicto, but only ex con-
tractu." That in Johnson v. J^ie (a), where the defendant had falsely
and fraudulently asserted himself to be of full age, and had as such
executed a mortgage to the plaintiff, and where it was holden that the
defendant, an infant, was not answerable, the action was founded on
the very contract in which the defendant had cheated the plaintiff :
whereas here is a tortious act done by the defendant, and that too
subsequent to the time when any supposed contract could have been
(a) 1 Keb. 905, 913; 1 Lev. 169. The judgment is thus reported:— "Sedper cur:
coment infants serront lie p'actual torts, come trespass, etc., queux sont vi et concra
pacem, unc'ne serront lie p'ceux q'sound in deceit, car si serront, touts les infants in
Angleterre serront ruine, et in cases lou lour contracts ne eux lie serront ch' come
pur tort." Ed.
548 JENNINGS V. RUNDALL.
entered into respecting the hire of the mare. He observed that an
infant is answerable in an action for slander, Noy, 129; because there
an act is done by the defendant ; and in that case it was said that
malitia supplet setatem ; so here malice is laid. That m trover an m-
fant is also responsible on account of the wrongful conversion subse-
quent to the bailment ; though in most instances in trover the act is
only a breach of trust or violation of some duty. And that even in an
action of trespass for mesne profits he camiot plead infancy, though
there he becomes a trespasser by coustruction of law. That if an in-
fant wilfully destroyed anything that had been bailed to him, there is
no doubt but that he would be liable in an action for the tort ; and
that this was in effect the same, because here he rendered a mare,
that had been bailed to him, less valuable by his wrongful and injuri-
ous act.
Wood, contra, was stopped by the Court.
Lord Kenyok, Ch. J. The law of England has very wisely pro-
tected infants agamst their liability m cases of contract ; and the
present case is a strong instance to show the wisdom of that law. The
defendant, a lad, wished to ride the plaintift"'s mare a short journey ;
the plamtiff let him the mare to hire ; and in the course of the journey
an accident happened, the mare being strained ; and the question is
whether this action can be mamtained ? I am clearly of opinion that
it cannot ; it is founded on a contract. If it were in the power of a
plaintiff to convert that, which arises out of a contract, into a tort,
there would be an end of that protection which the law affords to
infants. Lord Mansfield mdeed frequently said that this protection
was to be used as a shield, and not as a sword ; therefore if an mfant
commit an assault, or utter slander, God forbid that he should not be
answerable for it in a court of justice. But where an infant has made
an improvident contract with a person who has been wicked enough
to contract with him, such person camiot resort to a court of law to
enforce such contract. And the words " wrongfully, injuriously, and
maliciously," introduced into this declaration cannot vary this case.
Grose, J. I am of the same opinion. In the case of Manhy v. Scott
(a) this distinction was taken, that if the action against an infant be
grounded on a contract the plaintiff shall not convert it into a tort ;
« If one deliver goods to an infant on a contract knowing him to be
an infant, the infant shall not be charged for them in trover'and con-
version ; for by that mean all infants in England would be rumed."
A very few years after the decision of that case the case of Johnson
V. Pie arose, according to one report of which Lord Ch. J, Keelmg
expressed great indignation at the attempt to charge an infant in tort
for that which was the foundation of an action of assumpsit ; he said
(a) 1 Sid. 129.
BURNAED V. HAGGIS.
549
" The judgment will stay forever, else the whole foundation of the
common law will be shaken ; for this was but a slip, and he might
have pleaded liis minority here."
Lawrence, J. The true distinction is that mentioned by my
Brother Grose, and not that stated at the bar, between negligence and
an act done by the infant. It is argued that if no act be done by the
infant he may plead his infancy, but that infancy is not a defence
where an act has been done : if that were so, an infant would not be
liable in many instances of trover, where the conversion consists
merely in a non-delivery ; and yet in trover an infant is always liable.
Accordmg to the same rule, if an action were brought agamst an
infant for negligently keeping the plaintiff's cattle by which they
died, infancy might be pleaded in bar ; but if the declaration charged
the defendant with having given the cattle bad food, by which they
died, it could not. But this certamly is not the true distinction.
Le Blanc, J. The plea of infancy is a good bar to this action, on
the ground that the act done in this case is the foundation of an action
of assumpsit. And the reason of the distmction taken m the case in
Siderfln is, that the plaintiff shall not by changing the form of the
action vary the liability of the infant. Now if the plaintiff could not
have maintained an action of assumpsit against the infant, neither can
he maintam the action in its present form. On this short ground,
therefore, I think that the plea of infancy is a good defence to this
action.
Judgment for the defendant.
BURNARD, Appellayit, v. HAGGIS, Eesponaent.
In the Common Pleas, May 4, 1863.
[Reported in 32 Law Journal Reports, Common Pleas, 189(a).]
Appeal from the County Court of Cambridgeshire, holden at Cam-
bridge.
It appeared from the particulars of the plaintiff's claim, that the
action was brought to recover the sum of 30^. for the damage sustained
by the plaintiff by reason of the defendant having, on the 11th of
March, 1862, caused the death of the plaintift''s horse. The defendant
duly pleaded infancy, according to the statute and rules. The plaint-
iff's attorney having opened the case as a question of contract as well
as of tort, the Judge asked the defendant's attorney if he objected to
the particulars of the claim, as he thought they pointed rather to tort
than to contract, when the defendant's attorney replied that he did
(a) Reported also in 14 Common Bench, New Series, 45. Ed.
650 BUENARD V. HAGGIS.
not object to them ; and during the trial it was agreed between the
plaintiU's and the defendant's attorneys that the question should go
to the jury, whether the contract was for a necessary suitable to the
defendant's station m life.
Upon the trial the following facts, inter alia, appeared in evidence,
the plamtifi was a livery-stable keeper residing in Cambridge, and
the defendant was an undergraduate of Trinity College, Cambridge,
whose father was formerly a surgeon, but for some years past ceased
to practise his profession, and was thereupon appointed a magistrate
for the county of Somerset. The defendant was born on the 23d of
May, 1842.
On the 11th of March, 1862 the defendant, accompanied by a friend
named Bonner, who was also an undergraduate of Trinity College, went
into the yard of the plaintiff, to whom both of them were strangers,
and the defendant stated to the plaintiff's servant, and afterwards to
the plamtiff, that he, the defendant, wanted a horse for a ride. A
mare was shown to him, and he asked if she would jump. The plaint-
iff said he had no doubt she would, but he did not let her out for
jumping or larking, and that if he, the defendant, wanted a horse for
jumping plaintiff could show him a horse for that purpose. The
defendant replied that he did not want a horse for jumping, but
merely for a ride, and he said he would have the mare, and he directed
it to be sent for him. The plaintiff stated, at the trial, that the usual
charge for a ride was 7 s. Qd., and that he had charged that sum against
the defendant, who, however, had not paid it ; and that the usual
charge for a horse for jumpmg or larking was a guinea.
It appeared that, after the mare had been taken by the plaintiff's
servant to the place to which it had been directed to be taken by the
defendant, it was mounted by Mr. Bonner.
The defendant stated, at the trial, that he hired the mare, and that
he did tell the plaintiff, or his servant, that he wanted the mare for
Mr. Bonner. The defendant also stated that, on the same day, he
hired a horse of another livery-stable keeper, and that he rode that
horse and directed Bonner to ride the plaintiff's mare. The defendant
and Bonner rode together from Cambridge, and the defendant stated
that between Cambridge and the adjoinmg village of Grantchester they
left the highway and rode together across the fields to the adjoining
village of Barton, being a distance of about three miles, and in domg
so they jumped their horses over several hedges and ditches, and
that on Mr. Bonner endeavoring to jump the plaintiff's mare over a
fence it fell, and a stake entered its body. The mare was afterwards
brought back to the plaintiff's yard, where it was put under the care
of a veterinary surgeon, but it died on the 23rd of IMarch, 1862 ; and
the jury found that it died from the wound received whilst ridden by
BTTRNAKD V. HAGGIS. 551
Bonner. The jury also found, inter alia, that the defendant was an
infant under the age of twenty-one at the time of the contract with
the plaintiff ; that the plaintiff did not know that the mare was ridden
by Bonner ; that the hiring of the mare was a contract for a necessary j
suitable to the defendant's station in life, and that the amount of
damage which the plaintiff had sustained was 30/.
The learned Judge having, upon the finding of the jury, directed a
verdict to be entered for the plaintiff for 30/. damages, and having given
judgment accordingly, the defendant appealed therefrom, and the ques-
tion for the opinion of this Court was, whether, under the circum-
stances, the plamtiff or the defendant was entitled to judgment.
Wills^ for the appellant. The horse was not a necessary, and the
jury should have been directed to have found a verdict for the de-
fendant. Whether any particular article is a necessary or not for an
infant is a mixed question of law and fact — Cripps v. Hill (a).
[Btles, J. Is not the action here one of tort?]
It was treated at the trial as one of contract, and both parties
agreed " that the question should go to the jury whether the contract
was for a necessary suitable to the defendant's station in life." The
case of Jennings v. Rundall (b) shows that an action founded on a
contract cannot be converted into one on tort so as to charge an in-
fant defendant. In that case the plaintiff declared that at the de-
fendant's request he had delivered a mare to the defendant to be
moderately ridden, and that the defendant, maliciously intending &c.,
wrongfully and injuriously rode the mare so that she was damaged ;
and it was held, that the defendant might plead his infancy in bar,
the action being founded on a contract. According to the cases of
Wright v. Leonard (c) and Bartlett v. Wells (d), an infant, though
liable for an actual tort, may plead infancy in bar to an action for a
wrong connected with a contract. If this action can be treated as
founded on a contract, then it is clear that the hiring of the horse by
the defendant cannot be considered a necessary without there were
some special circumstances, and if there were such, it was for the
plaintiff to have shown their existence — Brooker v. Scott {e) and Har-
rison V. Fane (/).
Tozer, Serj., for the respondent^ was stopped by the Court.
Eele, C. J. The question is, whether, under the circumstances
stated in this case, the plaintiff or the defendant be entitled to judg-
ment, and I am of opinion that our judgment ought to be for the
plaintiff. It appears that the defendant went to the stables of the
(a) 5 Q.B. Rep. 606; s.c. 13 Law J. Rep. (x.s.)Q. B. 130.
(b) 8 Term Rep. 335; ante p. 546. (c) 30 Law J. Rep. (n.s.) C.P. 365.
(d) 31 Law J. Rep. (n.s.) Q.B. 57 (^ 11 Mee. & W. 07. (f) 1 Man. & Gr. 550.
552 BUENARD V. HAGGtS.
plaintiff and contracted with the- plaintiff for the hire of a horse for a
ride on the road, and not to be taken across the fields and used for
jumping. The defendant havmg so got the horse, lent it to his
friend, who took it across the fields, and m endeavormg to jump the
animal over a fence, transfixed it on a stake. Now it is clear to me
that on these facts there has been an actionable wrong committed, for
which the defendant is liable independently of the finding of the jury
that the hiring of the horse was a necessary suitable to the degree
and station in life of this young man. Putting aside all question as
to there being evidence or not sufficient to satisfy such findmg, I am
of opinion that the defendant is legally liable for, and can be made to
pay the damage claimed m this action.
WiLLES, J. I am of the same opinion. The act of riding this
horse at the fence where it met its death is just as much a trespass
as if the defendant without any hiring, and without the plaintiff's
leave, had mounted the plaintiff's horse and gone with it into the
fields and had there used it as this horse was in fact used.
What was done by the defendant was not an abuse of a contract, but
was the domg of an act which he was expressly forbidden by the
owner to do with the animal.
Byles, J. I am of the same opinion. I agree that one cannot
make an infant liable for the breach of a contract by changing the
form of action to one ex delicto. This, however, is the case of a
horse hired for one purpose and used for another ; and more than
that, it was let out to be used by one person and was used by another
person ; it was let for riding on the road, and was used for jumping
over fences in the fields. There was therefore an independent tort,
for which the infant was liable, and it is wholly uimecessary to con-
sider any question about what are necessaries.
Keating, J. I am of the same opinion. The defendant was liable
for a tort wholly independent of any contract.
Judgment for the respondent.
MULTOX AXD WIFE V. CAMEOUX. 653
Section II.— Lunatic and Drunken Persons.*
MOLTON AND WIFE, Administratrix of Thomas Lee, deceased, v
CAMROUX.
In the Exchequer, June 13, 1848.
In the Exchequer Chamber, May 29, 1849.
\^Reported in Exchequer Eej^orts, Vol. 2, p. 487, and Vol. 4, p. 17.]
Assumpsit by the plaintiff, as administratrix of Thomas Lee, against
the defendant, as secretary of the National Loan Fund Life Assur-
ance Company, for money had and received to the use of Thomas
Lee, and of the plaintiff as his administratrix, and on an accomit
stated.
Plea, non assumpsit.
At the trial of the cause, before Pollock, C. B., at the London sit-
tings after Michaelmas Term, 1846, the jury found certain facts, and
the plaintiffs had a verdict, leave being reserved to enter a nonsuit.
Gnrjiei/, in Hilary Term, 1847, obtained a rule nisi, in pursuance of
leave reserved, with leave to turn the facts into a special verdict. A
special verdict was agreed upon, which embodied the following
facts : —
The present action was brought to recover from the defendant, the
secretary of the National Loan Fund Life Assurance Society, two sums
of 350^., and bl. Qs. 2d., which has been paid by Thomas Lee, the deceased,
to the society, under the following circumstances :
Thomas Lee, on the 29th of August, 1843, made a proposal to the
said society for the purchase of an annuity of 211. 12s. 10c?. for his
life, payable yearly on the 29th of August, the first payment to be
made on the 29th of August m the following year, and that he should
pay the sum of 350?., as the consideration of that annuity ; and on the
same day he made a proposal to the said society for the purchase of a
deferred annuity of 30/. for his life, to commence on his attaining the
age of sixty years, which would be on the 30th of June, 1864, the
first payment to be on the 30th of June, 1865, reserving to him the
option of receiving, in lieu of such annuity, the sura of 293/. 5s., pay-
able immediately, or the deferred sum of 377/. 5s., to be paid to his
representatives after his death. The proposals were assented to and
accepted by the society, and the terms of the agreements were em-
bodied in two policies of insurance, bearing date respectively the 29th
of August, 1843. The sums agreed upon of 350/. and 5/. 6s. 2d. were
then paid by the deceased, who subsequently died intestate in 1844,
* Ch. IV, Sect. Ill, Fincli.
554
MOLTON AND WIFE V. CAMROUX.
No memorial of these annuities had ever been enrolled in the High
Court of Chancery. At the time of the making of these proposals,
and of the assenting thereto and acceptance thereof, and of the grant-
ing of the said annuities, and of the payment of the said sums by
Thomas Lee, the intestate, he was a lunatic, and of unsound mind, so
as to be incompetent to manage his affairs ; but of this the society had
not at that time any knowledge. The purchases of the annuities by
Thomas Lee were transactions in the ordinary course of the affairs of
human life, and the grantmg of the annuities to him m the manner
and upon the terms before mentioned, were fair transactions, and
transactions of good faith on the part of the society, and in the ordi-
nary course of their business ; and at the time of makmg the propos-
als, and at the time they were assented to and accepted by the soci-
ety, and of the granting of the annuities, and of the payment of the
two sums by him, he appeared to the society to be of sound, though
he was then in fact of such unsound mind as aforesaid. The society
first had notice of the unsoundness of mind of the grantee by letter
dated the 23rd of September, 1843, from his solicitors. No commis-
sion of limacy had ever been issued against the grantee. The society
had never made any payments in respect of the annuities in question^
but had always been ready and willing to pay any sum which might
have become due under them, and had never attempted to avoid the
agreements.
The plaintiff's points were, that the said Thomas Lee, being of un-
sound mind, could not make a valid contract of the nature set forth
in the verdict ; and secondly, that the supposed contracts were void
by statute, for want of enrolment. And therefore that the plaintiffs
were entitled to recover back the sums of money so paid.
The case was argued in Hilary Term, on the 17th and 21st of Jan.
uary, by
Needham^ for the plaintiffs. The present case raises two questions
for the opinion of this Court. First, whether the personal representa-
tives of a lunatic can recover money which he has paid under a con-
tract with a person who has entered into it bona fide, and without
knowledge of the lunacy. Secondly, whether the annuity granted is
void for want of enrolment. Upon the first point there is no direct
authority ; but there are many authorities in support of the principle
that a lunatic cannot make a contract to bind his property. Thus,
the old writ of Dum fuit non compos mentis lay to recover back land
which had been aliened by a person not in his right mind {a) : and it has
been held that a person non compos mentis cannot either make or re-
voke a will (J)), and the Courts have always held their wills to be void.
Nor can a lunatic suffer a recovery, Jlirme v. Burton {c),KeeneY.
j) (a) Fitz. Nat. Brev., 202, (C.) (b) Q Kep. 23. (c) 1 Ridg. Pari. Cas. 16.
MOLTON AND WIFE V. CAMROUX. 555
Keeiie (a) ; nor execute a deed, Yates v. Boen (b) ; nor a bond, I^aul-
der V, >Silk (c) ; so he cannot indorse a bill of exchange, Alcock v. Al-
cock (d) ; nor state an account, Tarhuck v. Bispham (e). The rule is
the same as respects parol contracts. In Palmer v. Parkhurst (/), a
bargain by a lunatic, eight years before the lunacy found, was avoided
by the party being found a lunatic. [Parke, B. Was it suggested
in that case, that it was known by the defendant, at the time of the
bargain, that the party was a lunatic?] It does not appear by the
report whether or not he was acquainted with the lunacy. [Parke,
B. AVe are not able to tell what the form of the plea was in Alcock v.
Alcock ; it does not appear whether there was any allegation of notice
or knowledge of the lunacy.] The principle for which the plaintiff
now contends is, that a lunatic cannot enter uito a bmdmg contract,
as he cannot have a consenting mind. [Platt, B. In Done v. Vis-
countess Kirkicall (g), it was held by Patteson, J., at Nisi Prius, that
it was not sufficient to show that Lady Kirkwall was of unsound
mind, but that the jury must be satisfied that the plaintiff knew it,
and took advantage of it. That ruling was subsequently upheld by
the Court of Queen's Bench, in the same case.] In Clerk v. Clerk (h),
it was held, that a family settlement made by a lunatic ought to be
set aside, although it was reasonable and for the convenience of the
family. So the marriage of a lunatic is void : Turner v. Meyers ( i).
There Sir W. Scott says : " It is, I conceive, perfectly clear in law,
that a party may come forward to maintam his own past incapacity ;
and also that a defect of incapacity invalidates the contract of marriage
as well as any other contract." In Hoioard v. JLord Bighy (J),
Brougham, L. C, says, " The law on this point is as clear, both in
equity and in lunacy, and at common law, as that a man's eldest
legitimate son is his heir to freehold land. A lunatic cannot bind
himself by bond or by will ; a lunatic cannot release a debt by specialty ;
cannot be a cognizor m a statute-merchant, staple, a judgment, war-
rant of attorney, or any other security." [Pollock, C. B. Surely a
payment by a lunatic would be a good answer to the debt for which
the lunatic was liable before his lunacy.] The defence of intoxication
stands upon the same principle as that of lunacy ; and ui the recent
case of Gore v. Gibson {k\ this Court held, that acts done by a man
who had lost his senses at the time, are totally void. [Parke, B.
The ancient doctrine, that no man of full age shall be permitted to
stultify himself, has been much qualified and restricted in modern
times. There is a learned note on this subject, at the end of the re-
port of Gore v. Gibson^ in the Jurist, vol. 9, p. 142. Alderson, B^
(a) Ibid. 91. {h) 2 Stra. 1104. (c) 3 Camp. 126.
(d) 3 M. & Gr. 268. (e) 2 M. & W. 2. (/) 1 Ch. Ca. 112.
{(j) 8 C. & P. 685. (A) 2 Vera. 212. {%) \ Hagg. C. K. 414.
(i) 2 CI. & Fin. 661. (fc) 13 M. & W. 623.
rrQ MOLTOX AND WIFE V. CAMROUX.
There is this distinction between the case of lunacy and that of in-
toxication : in the latter the incapacity of the party is patent— in the
former, it may not be in the least degree visible.] In one respect the
two cases are analogous : in neither of them has the sufferer a con-
senting mind. A lunatic is not criminally liable : Beg v. Oxford (a).
[Parke, B. It has been held that a lunatic innkeeper is liable for the
loss of his guest's goods : Cross v. Andretcs (b). ] There are three ex-
ceptions to be found to the rule contended for in the case of lunacy ;
but these exceptions will, perhaps, be found to strengthen the rule.
A fine levied by a person non compos mentis has been held good :
Thompson v. Zeach (c), Needier v. The Bishop of Winchester (d) ; and
the reason, as it appears from Beverley's Case (e), is, that the act is
of a public and notorious character, done in a court of record, and
that the Court had the power of judging of the sanity of the party.
This is confirmed by stat. 18 Ed. 1, s. 4, the "Modus levandi fines,"
and 10 Ed. 2, « De finibus ; " and by MansjieWs Case (/), where a fine
had been made by one Bushley, an idiot, « but notwithstanding this,
and although the monstrous deformity and idiocy of Bushley was ap-
parent and visible, yet the fine stood good." The second exception to
the general rule is that of a feoffment by a lunatic : Thompson v.
Leach ( g). The Court there said, « There is a difference between a
feoffment and a livery made propriis manibus of an idiot, and the bare
execution of a deed by sealing and delivery thereof, as in cases of
surrenders, grants, releases, &c., which have their strength only by
executing them, and in which the formality of livery and seism is not
so much regarded in law, and therefore the feoffment is not merely
void, but voidable ; but surrenders, grants, &c., by an idiot, are void
ab initio." The third exception is that of necessaries ; but these are
clearly excepted from the general rule, on the ground that they do not
require a consenting mind. Thus, an infant or an idiot may be liable
for necessaries, as was said in Maynhy v. Scott {Ji). The contracts,
however, of an mfant are only voidable, and not void Baxter v. Lord
Portsmmith (i) is a leading case upon this branch of the subject. Ab-
bott, C. J., there says : « At the time the orders were given and exe-
cuted. Lord Portsmouth was livhig with his family, and there was no
reason to suppose that the plaintiffs knew of his insanity. I thought
the case very distinguishable from an attempt to enforce a contract
not executed, or one made under circumstances which might have
induced a reasonable person to suppose the defendant of unsound
mind. The latter would be cases of imposition ; and I desired that
my judgment might not be taken to be, that such contracts would
bind, although I was not prepared to say that they would not," In
(a) 9 C. & P. 525. (b) Cro. Eliz. 622. (c) 3 Mod. 305. (d) Hob. 220.
{p) 4 Rep. 124. (/■) 12 Rep. 124. (g) Carth. 435.
(h) 1 Sid. 112. (0 5 B. & C. 170.
MOLTON AND WIFE V. CAMROUX. 557
Gore V. Gibson (a), the distinction is clearly pointed out, namely, that,
to make a party liable for necessaries, it is not necessary that there
should be the assent of both parties. Pollock, C. B., there says :
" With regard, however, to contracts which it is sought to avoid on
the ground of intoxication, there is a distinction between express and
implied contracts. Where the right of action is grounded upon a
specific distinct contract, requiring the assent of both parties, andoiie
of them is incapable of assenting, m such a case there can be no bind-
ing contract ; but in many cases the law does not require an actual
agreement between the parties, but implies a contract, from the cir-
cumstances ; in fact, the law itself makes the contract for the parties.
Thus, in actions for money had and received to the plaintiff's use, or
money paid by him to the defendant's use, the action may lie against
the defendant, even though he may have protested agamst such a con-
tract. So, a tradesman who supplies a drunken man with necessaries
may recover the price of them, if the party keeps them when he be-
comes sober, although a count for goods bargained and sold would
fail. In this case, the defendant is still liable for the consideration for
his indorsement, although the indorsement itself can give the plaintiff
no title." [Pakke, B. A fourth exception is mentioned in Beverley's
Case, viz., a recognizance. Alderson, B. Suppose the lunatic is bene-
fited, do you argue that in such case the contract is void ?] It is sub-
mitted that it would be. [He also referred to Niell v. Morley (6), and
Kent's Commentary, 451.] In Turner v. Meyer s{c)^ Sir W. Scott says :
" It is, I conceive, perfectly clear m law, that a party may come for-
ward to maintain his own past incapacity, and also, that a defect of
incapacity invalidates the contract of marriage, as well as any other
contract. It is true, that there are some obscure dicta in the earlier
commentators on the law (f?), that a marriage of an insane person
could not be invalidated on that account — founded, I presume, on
some notion that prevailed in the dark ages, of the mysterious nature
of the contract of marriage, in which its spiritual nature almost en-
tirely obliterated its civil character. In more modern times, it has been
considered in its proper light, as a civil contract as well as a religious
vow, and, like all civil contracts, will be invalidated by want of con-
sent of capable persons." [Pollock, C. B. I recollect a case where a
marriage was set aside, although there was no appearance of lunacy
at the time of the offer of marriage.] Pothier, in his Treatise on Ob-
ligation (e), says : " A contract is a particular kind of agreement ; to
understand the nature of a contract, we should, therefore, previously
understand the nature of an agreement. An agreement is the consent
of two or more persons to form some engagement, or to rescind or
(rt) 13 M. & W. 628. (6) 9 Ves. 478. (c) 1 Hagg. C. R. 414.
(d) Sanchez, lib. 1, disp. 8, num. 15. (e) P. 1, c. 1, s. 1, art. 1.
558
MOLTON AND WIFE V. CAMROUX.
modify an engagement already made, Duorum vel plurium in idem
placitum consensus." Again, in speaking of persons capable or inca-
pable of contracting, he says (a), " The essence of a contract consist-
ing in consent, it follows that a person must be capable of giving his
consent, and consequently, must have the use of his reason, in order
to be able to contract." In the Appendix to that article, the dis-
tinction is pomted out between persons incapable by law of contract-
ing, and those incapable by nature.
Secondly, the annuity is void, for want of the enrolment of a
memorial, in pursuance of the statute 53 Geo. 3, c. 141. [Parke, B.
If the grantor of an annuity chooses to go on paying it, it does not lie
in the mouth of the grantee to say that the annuity is void. If any
point was ever settled, I should say that was.] The 17 Geo. 3, c. 26,
s. 1, declares that all deeds, whereby annuities are granted, shall be
null and void to all intents and purposes, unless a memorial be reg-
istered in manner prescribed by that act. An opinion has long
prevailed, that the statute was intended for the benefit of grantors
only, and therefore the word " void " must be construed " voidable ; "
that doctrine, however, is at variance with the object of the legisla-
ture. In Crosley v. Arkioright (b), where a person, against whom a fi.
fa. issued, was in possession of goods under a deed given in considera-
tion of an antecedent debt and an annuity, of which no memorial had
been enrolled, it was held that the sheriff might return nulla bona,
for the annuity deed was absolutely void. Buller, J., there says,
" The words of this statute are as strong as possible ; it makes the
deed void to all intents and purposes whatsoever." Saunders v,
Hardinge (c) also decided, that every deed by which an annuity is
secured, and which is not properly registered, is void, not voidable
only. In Denn v. Dolmen (d), which is to the same effect. Lord
Kenyon adverts to the distinction between the language of the 17
Geo. 3, c. 26, s. 1, and that of the Registration Act, 7 Anne, c. 20, s. 1.
which declares that a conveyance not registered " shall be adjudged
fraudulent and void against any subsequent purchaser or mortgagee
for valuable consideration," Some expressions of Tindal, C. J., mthe
case of Coioper v. Godmo7id{e), have given rise to a contrary doctrine.
That case proceeded on the authority of Weddelv. Ijynam (/), Waters
V. Mansell (g), and Davis v. Bryan (h) ; the former of which alone is
in point, but, at the same time, is a Nisi Prius decision which never
received the consideration of the Court in banc. The true mode of
construing statutes is to adhere to the ordinary meaning of the
words, unless that is at variance with the intention of the legislature :
BecJce v. Smith (i), Biffin v. Yorke (J).
(a) Id., art. 4. (h) 2 T. R. 60?.. (c) 5 T. R. 9. {). — If a person having been constrained by duress to make a
contract afterwards voluntarily acts upon it, he thereby affirms its
validity and precludes himself from afterwards avoiding it (c). In an
action upon a contract, the defense that it was procured by duress
must be specially pleaded, (d).
Relief in equity against duress,— Courts of Equity exercise a juris-
diction to set aside contracts on the ground of duress. They will
also set aside contracts in some cases on the ground that they were
obtained by threats, or undue influence, or oppression, though not
amounting to legal duress ; and in sofne cases they will refuse to en-
force such contracts by specific performance, though they will not set
them aside, and will leave the parties to their legal remedies (e).
(a) Cumming v. Ince, 11 Q. B. 112. 333; 30 L. J. C. 1.
{b) 2 Inst. 482. (d) Whelpdale's Case, 5 Co. Rep. 119
(c) Ormts V. Beadel, 2 De G. F. & J. a ; Reg. Gen. 8, T. T. 1853.
(c) Story, Eq. Jur. § 239.
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