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[410] HÁLL v. BETTY. May 31, 1842. [S. C. 5 Scott, N. R. 508; 11 L. J. C. P. 256. Applied, Want v. Stallibrass,

1873, L. R. 8 Ex. 185.] The declaration stated that it was agreed between the plaintiff and the defendant

that the plaintiff should purchase two houses of the defendant for the residue of a term of years, &c. ; that the defendant should paper them, &c.; that the plaintiff should pay part of the purchase-money, on the completion of the conveyance of the houses; and further, that the defendant should make a good title. At the trial, an agreement was produced as follows :-"Mr. H. (the plaintiff) having agreed to purchase of Mr. B. (the defendant) two leasehold houses, &c., Mr. B. hereby agrees to paper, &c.; Mr. H. to pay, &c. at the time of the conveyance, &c.” Nothing was said in the agreement as to making a title.--Held, that the agreement to purchase, though recited as an existing agreement, was to be considered as forming part of the agreement produced.—Held also, that there was no variance between the agreement stated in the declaration and the one produced in evidence, on the ground that the latter was silent as to the title, inasmuch as the contract to make a title was implied.

Assumpsit. The declaration stated that heretofore, to wit, on, &c. by a certain agreement then made by and between the plaintiff and the defendant, it was by the plaintiff and the defendant agreed as follows, that is to say, that he, the plaintiff, should and would purchase of the defendant, and that he, the defendant, should and would sell to the plaintiff

, certain premises, to wit, two houses, situate, &c. for the then residue of a certain term of years then unexpired of and in the said houses, to wit, for the then residue of a term of fifty years, at and for the price or sum of 2501. to be paid, &c. And it was by the said agreement further agreed (then followed stipulations as to the defendant's papering and painting the premises, &c.), and that the plaintiff should and would pay to the defendant the sum of 250l., the purchase money of and for the said two houses in manner following, that is to say, the sum of 2301., parcel thereof, on the completion of the conveyance of the said houses to the plaintiff, and the sum of 201., other parcel and residue of the said sum of 2501., on the fulfilment, by the defendant, in all things, of the said agreement on his behalf. And it was by the said agreement further agreed by and between the plain-[411] tiff and the defendant, that the defendant should and would make to the plaintiff a good title to the said two houses for the residue of the said term within a reasonable time then next following. Mutual promises. Averment of performance on the part of the plaintiff. Breach: that the defendant had not, although a reasonable time for that purpose had elapsed before the commencement of the suit, and although after such reasonable time, and before, &c., to wit, on, &c., he, the defendant, was requested by the plaintiff so to do, as yet made to the plaintiff a good title to the said houses for the residue of the said term, but had hitherto wholly neglected, &c. Concluding by alleging special damage incurred by the plaintiff in endeavouring to procure such title, &c.

Plea: first, non assumpsit ; secondly, a discharge ; (which the court thought was not supported by the evidence).

The replication added the similiter to the first plea, and traversed the discharge.

At the trial before the Lord Chief Justice, at the sittings at Westminster, after last Hilary term, an agreement was given in evidence, which commenced thus. “ Mr. Hall having agreed to purchase of Mr. Betty, for the sum of 250l., the two leasehold houses situate, &c. Mr. Betty hereby agrees to paper and paint, &c. Mr. Hall to pay 2301. at the time of the conveyance, and the remaining 201. on the completion of the painting, &c. :" but the agreement contained no contract to make a good title.

On behalf of the defendant it was insisted that there was a variance. The plaintiff's counsel applied to the Lord Chief Justice to amend. This his lordship declined to do; but the above facts were indorsed on the nisi prius record, with liberty to the plaintiff to move for judgment, under the 3 & 4 W. 4, c. 42, s. 24. The damages were assessed, conditionally, at 61. 7s. 8d.

[412] Bompas Serjt., in last term, obtained a rule nisi accordingly, to enter judgment for the plaintiff on the whole record, upon the verdict found at the trial, for 61. 7s. 8d. damages.

..

Talfourd Serjt. now shewed cause. The question is, whether the allegation in the declaration, that the defendant agreed to make a good title to the premises, is supported by proof of an agreement in which nothing whatever is said about the title. "It will be argued on the other side that the agreement has been set out according to its legal effect; but that is not so. This is not an agreement for the sale of the freehold of the houses ; if it were, possibly a covenant for title might be implied. But it is an agreement in writing, as required by the statute of frands, for a chattel interest in lands; and there is nothing on the face of the agreement from which any implication can arise that the parties were contracting with respect to the title. Non constat, but that the title may have been previously inspected and approved. Under such an agreement there is undoubtedly an implied contract that the vendor has title to sell whatever interest he has in the premises, but nothing more; and the implication rather would be, that all matters of title had been previously investigated. If any inference is to be drawn from the language of the agreement as to making a title, it would be—not that the title was to be made within a reasonable time--but “at the time of the conveyance,” when the bulk of the purchase money was to be paid ; for it might be that at that time the defendant could produce a good title. Besides, the agreement given in evidence is not one for the purchase of the lease ; for it recites that such an agreement had been entered into between the parties. If this former agreement was in writing, it is not the contract declared upon; if not, it would be [413] void by the statute of frauds. [Tindal, C. J. Although it is put in the preterpluperfect tense, is it not, in fact, all one transaction? Coltman J. Is there any case to shew that a contract to sell implies a contract to make a good title? But that seems to be admitted.] Perhaps that is too large an admission.

Bompas Serjt. in support of the rule. There is no doubt that where a party sells property, he impliedly contracts that he has a good title; and that rule applies to the sale of a lease. "In Ogilvie v. Foljambe (3 Meriv. 53) the Master of the Rolls (Sir W. Grant), in giving judgment, observed, “The right to a good title is a right, not growing out of the agreement between the parties, but which is given by law. The defendant insists on having a good title, not because it is stipulated for by the agreement, but on the general right of a purchaser to require it” (ib. 64). [Maule J. In Gange v. Pritchard (Ry. & Moo. 411), which was an action by the purchaser against the vendor of a lease, for the deposit, it was ruled by Lord Tenterden at nisi prius, that a vendor was not bound to produce his lessor's title without an express stipulation to that effect.] That case was expressly overruled in Souter v. Drake (5 B. & Ad. 992; 3 Nev. & M. 40), where it was held that, unless there be a stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself, and that such implied undertaking is available at law as well as in equity.

TINDAL C. J. I do not think my brother Talfourd can get over that case.
Per Curiam, Rule absolute.

(414) SPENCER v. HANDLEY AND BURGES, Executors of Richard Heald.

June 1, 1842.

[S. C. 11 L. J. C. P. 250.] Debt on bond. Plea, that the bond was obtained by fraud and covin. At the trial

it appeared that C., being about to purchase a medical business, consulted H. on the subject, who was of opinion that it was worth 3001., and consented to be security for C. to that amount. A., the party having to dispose of the business, through his attorney R., required the sum of 4251., and it was ultimately agreed that Č. should give his separate bond for 1251., and that H. should join him in a joint and separate bond for 3001., (being the bond in suit). H. was ignorant of the existence of the agreement as to the separate bond at the time he executed the other. C. was called as a witness, and stated that it was agreed between himself and R. that the bond for 1251. should be concealed from H.; but this was contradicted by R. The judge told the jury, that it was not sufficient to shew that C. had committed a fraud on H., but that they must be satisfied that the plaintiff or his agent was a party to it. Held, a correct direction. The verdict having been

C. P. XII.-6*

returned for the plaintiff, the court refused to disturb it, the existence of fraud being a question for the jury (a)?

Debt, on the bond of Richard Heald (the testator), dated January 31st, 1835, conditioned for the payment by one John Carpenter, and the testator Heald, or either of them, their or either of their heirs, &c., to one George Bass Billson, since deceased, and the plaintiff, or either of them, of the sum of 3001., before or upon the 31st of January 1842, with interest in the meantime at 5l. per cent. The declaration assigned a breach in the non-payment of interest by Carpenter, or Heald, during his life, or the defendants as executors of Heald, to Billson, during his life, or to the plaintiff.

Plea; that the said supposed writing obligatory was obtained from the said Richard Heald, in his lifetime, and he was induced to execute and enter into the same by the plaintiff, and the said G. B. Billson, and others in collusion with them, by and by means of the fraud, covin, and misrepresentation of the plaintiff and the said G. B. Billson, and the said others in collusion with them. Verification.

[415] Replication, traversing the fraud, &c.; and issue thereon.

At the trial before Coltman J., at the sittings for Middlesex after last Hilary term, it appeared that some years ago Mr. Carpenter, a general practitioner in medicine, at Rothwell, in Northamptonshire, sold his practice to one Abraham Billson, and entered into a bond not to practise again at Rothwell. In January 1835 A. Billson died, having appointed his brother, George Bass Billson, and the plaintiff, his executors. Carpenter soon afterwards wished to resume his practice at Rothwell, but the executors of A. Billson contended, he had no right to do so, and a treaty was entered into, between the executors and Carpenter, for the repurchase of the practice by the latter. This treaty was carried on chiefly through the medium of Mr. Robinson, the attorney to the executors. Carpenter, who, as a witness for the defendants (a), proved all these facts, also stated that Robinson required, in the first instance, 450l. as the purchase-money, but that the demand was afterwards reduced to 425l. ; that he, Carpenter, had had a previous interview with his friend Dr. Heald, the testator, on the subject; and that he told Robinson, that he was not prepared to give the sum required, as Dr. Heald thought 3001. sufficient; and that Dr. Heald would join him in a bond for that amount, if that was considered enough, but that he would do no more. The witness then stated that Robinson had asked him if he could get other parties to join him for the remainder, and that he answered he could not; that Robinson then asked him if [416] he would give his own bond for 1251. more, which he agreed to do; but said he thought if Dr. Heald knew it, he would not join in the bond for 3001. ; and that Robinson replied there was no necessity for Dr. Heald's knowing it; that ultimately it was agreed that two separate bonds should be given, one by Carpenter alone for 1251. and the other for 300l., in which Dr. Heald was to join : that the two bonds were executed accordingly (the separate bond being executed three days after the joint bond), and that the witness never mentioned the bond for 1251. to Dr. Heald. It appeared also that Carpenter had been sued on the lastmentioned bond (which was the first time that Dr. Heald knew of its existence), and a judgment had been recovered in the action, to satisfy which Carpenter's goods had been taken in execution. Since that time Dr. Heald had paid interest on the joint bond.

Robinson was called as a witness on the part of the plaintiff, for the purpose of contradicting Carpenter. He was objected to as directly interested in the event of the suit, inasmuch as in case of the defendants obtaining a verdict, he would be liable to the plaintiff in an action for negligence in preparing the securities. The learned judge, however, thought the case fell within the twenty-sixth section of the 3 & 4 W. 4, c. 42, and having indorsed Robinson's name on the record under the provisions of that section, admitted him as a witness. Robinson, in his examination,

(a) See Pitcairn v. Ogbourne, 2 Vez, sen. 375; Green v. Gosden, ante, vol. iii. 446.

(a)? He was objected to at the trial, as being the co-obligor with the testator in the bond in suit, on the authority of Slegg v. Phillips, 4 A. & E. 852, 6 N. & M. 360 ; but the learned judge ruled that he was an admissible witness, on the authority of Russell v. Blake, ante, vol. ii. p. 374. He was examined, however on the voir dire, and stated that he had been released by the executors.

positively denied the statement made by Carpenter, as to there having been any agreement or proposal that the bond for 125). should be kept secret from Dr. Heald.

The learned judge, in summing up the case, told the jury that to support the plea it would not be sufficient to shew that a fraud had been committed by Carpenter alone : that they must be satisfied that the plaintiff or his agent was a party thereto; that if they thought Dr. [417] Heald was induced to execute the bond for 3001. by the concealment of the other bond, and that Mr. Robinson was a party to such concealment, they should find for the defendants; and that this would turn materially on the credit they gave to the witnesses on either side. The jury returned a verdict for the plaintiff.

Sir T. Wilde Serjt. in last Easter term (a)', moved for a new trial upon the ground, first, that Robinson was not an admissible witness (even under the stat. 3 & 4 W. 4, C. 42 ()); secondly, that there had been a misdirection. Upon this latter point he contended that the question presented by the learned judge, as to Robinson's being a party to the fraud, was calculated to mislead them ; inasmuch as it was not necessary that he should have been an active party therein, but that it would have been sutfi-[418]-cient if he was aware that Carpenter concealed from Dr. Heald the fact that he was to pay more than 3001. for the practice; as that would have been an acquiescence in the fraud so as to avoid the bond ; and also that the jury must have understood they had to decide whether Carpenter's evidence or Robinson's was true; whereas, there had been fraud, even on the latter's own shewing.

A third ground upon which the rule was moved for was, that the verdict was against the evidence.

The court granted a rule on the first (a)2 and third points ; but refused it on the second point, observing that the direction of the learned judge amounted to saying, that if the jury thought Robinson was cognizant of the fraud, he would be a party to it; and that the jury could hardly have understood the direction otherwise.

May 31.-Merewether and Channell Serjts. on a former day shewed cause. The verdict can only be set aside on the ground that there had been a fraud committed on Dr. Heald; but even the evidence of Carpenter, supposing it to be true to the letter, would not establish legal fraud. The case is distinguishable from Stone v. Compton (5 N. C. 142). In that case there had been, on the face of the security, a positive misrepresentation of a fact, by which the party had been misled. The court in giving judgment lay down the rule thus :-“Now the principle to be drawn from the cases to which reference has been made in the course of argument we take to be this; that if, with the knowledge or assent of the creditor, any material part of the transaction between the creditor and his debtor is misrepresented to the surety, the misrepresentation being such, that but for the same having taken place, either the suretyship would not have been entered into at all, or, being entered into, the extent

(a)' 18th April. Before Tindal C. J., Coltman, Erskine, and Cresswell JJ.

(6) The argument on this point is not reported, as it ultimately became unnecessary for the court to pronounce any judgment upon it.

Sir T. Wilde, on obtaining the rule, cited the following authorities :-Morish v. Foote, 8 Taunt. 454, 2 B. Moore, 508, Boorman v. Brown, 9 A. & E. 487, 1 P. & D. 364; Miller y. Falconer, 1 Campb. 251 ; Groom v. Bradley, 8 C. & P. 500; Steers v. Carwardine, ib. 570; Pickles v. Hollings, 1 Moo. & Rob. 468; Creevey v. Bowman, ib. 496; Yeomans v. Legh, 2 M. & W. 419; Mitchell v. Hunt, 6 C. & P. 351; Faith v. M'Intyre, 7 C. & P. 44.

Merewether Serjt. on shewing cause, referred to Green v. The New River Company, 4 T. R. 589; and Bent v. Baker, 3 T. R. 27 (see also the cases collected and commented upon, 1 Phill. Ev. 101-118, 9th edit.). He argued that if Robinson was ever liable to the plaintiff for negligence, such liability had ceased at the time he was called as a witness, inasmuch as the remedy would be barred by the statute of limitations, the bond in question having been executed in January 1835, and the trial of the principal cause having taken place in February 1842.

Sir T. Wilde, on the authority of the case of Short v. M'Carthy, 3 B. & Ald. 626, shewing that an action against an attorney for negligence must be brought within six years after the act of commission or omission complained of, admitted that this was an answer to the objection raised against the admissibility of the witness.

(a) See the last note.

of the surety's liability might be thereby in-[419]-creased, the security so given is void at law, on the ground of fraud.” Pidcock v. Bishop (3 B. & C. 605 ; 5 Ď. & R. 505) is to the same effect. [Tindal C. J. referred to Jackson v. Duchaire (3 T. R. 551).] Fraud is sought, in this case, to be inferred from the form of the bond; but it was a mere money bond, from which no such inference can legitimately be drawn.

Sir T. Wilde Serjt. in support of the rule. It is clear that a fraud was practised upon Dr. Heald ; and the plaintiff is affected with it, through his agent, Robinson. There is nothing to shew that, at the time he executed the bond, Dr. Heald knew the true state of facts; and these were purposely concealed from him. It was in evidence that he thought the business was worth only 3001. The form of the bond is material ; for it keeps out of sight the amount of money that was really to be paid for the business. Pidcock v. Bishop resembles the present case. There, no communication between the creditor and the surety appears. That case establishes that a party ought to have full information on all the material facts in connection with which he is about to incur liability. The whole of the arrangements ought to be communicated to him. If he is prevailed upon to enter into the contract by a belief-whether induced by the form of the security or otherwise--that the principal will have a certain benefit, any collateral bargain between the principal and the creditor, varying the amount of the benefit, ought to be communicated to him. At any rate, there was enough in this case to make Robinson suspect that Heald thought the bond for 3001. was the only one that was to be given. [Maule J. Is there any case of such a defence as the present succeeding in an action on a bond? The cases cited were on [420] parol guarantees.] There was a similar plea in Raphael v. Goodman (8 A. & E. 565), which was an action on a bond to the sheriff. [Maule J. There is no doubt that some sort of fraud might formerly have been given in evidence under non est factum. Tindal C. J. In former times there appears to have been no such plea as the present. Maule J. Selwyn, in the last edition of his Nisi Prius, does not mention it (). Channell Serjt. referred to Mason v. Ditchburn (cited 2 C. M. & R. 720, n.).] In that case, as also in D'Aranda v. Houston (6 C. & P. 511), which, like the present, was an action given on a bond to secure the payment of the purchase-money for a medical business, there was a plea of fraud and covin.

Cur. adv. vult.
TINDAL C. J. now delivered the following judgment.

In this case, which we required some time yesterday to look into, it appears that there was some evidence on both sides; and as it was a question undoubtedly and peculiarly for the consideration of the jury-namely, whether any fraud had been committed—we think we ought not to interfere with their finding. If the court had been in the situation of the jury, we are not prepared to say that we should have decided as they have done; but, at the same time, we cannot say the jury are wrong in the conclusion at which they have arrived. The court, therefore, think there ought to be no new trial.

Rule discharged.

[421] ALBON AND OTHERS v. PYKE. June 1, 1842.

[S. C. 5 Scott, N. R. 241 ; 11 L. J. C. P. 266.] The loan societies act, (5 & 6 W. 4, c. 23), authorized the trustees to lend money

under certain circumstances, and to take promissory notes in the name of the treasurer as security for repayment. The act (s. 8) authorized a justice of the peace upon complaint of the treasurer, to summon such party and award payment to be enforced by distress.—Held, that the jurisdiction of the superior courts was not thereby taken away ; especially in an action brought upon a promissory note, which did not appear, from the pleadings, to have been given in respect of a loan (vide post, 426 (a)). Debt, by the plaintiffs, described in the declaration as trustees of a certain society,

(b) That it is competent to an obligor to plead and to prove the real nature of the transaction, for the purpose of avoiding his bond, see Collins v. Blantern, 2 Wils. 347; Paxton v. Popham, 8 East, 408 ; Greville v. Atkins, 9 B. & C. 462, 4 Mann. & Ryl. 378. And see Buckler v. Millerd, 2 Ventr. 107; Mason v. Watkins, ib. 109.

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