I. RIGHTS ΤΟ CHAP. III. until the other party, who has not signed, has done some act to bind himself, such as commencing an action or filing his bill; (g) PERSONALTY. and where merely a proposal, and not an express undertaking has been offered, it has been considered that it must be accepted in writing; but that when there is a positive undertaking, then such written acceptance is not essential. (h) 5. When contract must be in writing, and signed. With respect to contracts not under seal, the common law makes no difference, whether they be in writing or verbal, excepting bills of exchange and promissory notes, which must be in writing or pencil. Nor does the common law require the consideration to be stated on the face of the contract when in writing, but allows it to be supplied by verbal evidence. The exceptions introduced by statute principally relate to contracts by executors, and by third persons for the debt of another, or relating to the sale of an interest in land, or which are not to be performed within a year, and contracts for the sale of goods, wares, or merchandize for the price of ten pounds or upwards; (i) and a recent act requires acknowledgements (excepting by payments), to take a case out of the statute of limitations, and contracts of sale of goods to be made and delivered at a future time, to be in writing. (k) And independently of these statutes, it is always advisable, with a view to certainty in evidence, to have all the material representations, considerations, and circumstances connected with the contract, and especially the contract itself, fully and formally stated in writing, and signed by all the parties intended to be liable to perform it. Thus, unless verbal representations before or at the time of sale, or other transaction, be expressly made part of the written contract, they will not (however material, and however they may have misled the (g) 2 Jac. & W. 426. (h) Palmer v. Scott, 1 Russ. & M. 394. (i) 29 Car. 2, c. 3, s. 4. "And be it further enacted by the authority aforesaid, that from and after the said 24th day of June, 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 whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages 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 interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some me morandum 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. Section 17. And be it further enacted by the authority aforesaid, that from and after the said 24th day of June, no contract for the sale of any goods, wares, and merchandizes, for the price of 10l. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or 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 authorized. (k) 9 Geo. 4, c. 14. CHAP. III. I. RIGHTS ΤΟ contracting party) be considered as part of the contract, so as to enable him, upon discovering the deceit, to avoid the contract; and at most he could only sue in a cross action to recover com- PERSONALTY. pensation for the fraudulent misrepresentation, as Lord Ellenborough expressed, laying asleep his prudence. (1) It has however been held, that statements in printed papers, and words relative to a ship, are in general an assurance or warranty to the merchant who loads goods on board the ship in pursuance of the advertisement, and became part of the contract, although they be not afterwards contained in the bill of lading or charter-party not under seal. (m) So with respect to the sale of an estate; an advertisement in the newspaper misdescribing it may become part of the contract, or at least subject the vendor to an action for deceit. (n) When, as in cases within the statute against frauds, it is required that the contract shall be signed by the party or parties to be charged therewith, it is a sufficient signature, if the party himself write his name any where, even in the commencement, with intention to give effect to the whole; (o) as, "Mr. Wilmot has agreed on," &c.; and though there be only the signature of the party sued to an express undertaking, and not of both parties, that suffices; though it would be otherwise if there was merely a signed proposal; (p) but unless the signature apply to the whole of the stipulations, it is insufficient. (q) If a bill, filed for specific performance, state that the agreement was in writing, signatures will, on demurrer, be presumed, though it is advisable to state that it was signed; (r) and the same doctrine prevails at law in a declaration on an agreement. (s) The memorandum signed must contain all the substantial parts of the bargain, leaving nothing in that respect to be supplied by parol evidence. (t) a written con tract in cases of fraud. If in the particular cases enumerated by the statute against 6. When equity frauds, the contract be not properly in writing, and signed when will aid want of requisite, although it may be capable of proof by one hundred witnesses, or by the same number of verbal admissions, it cannot be enforced either at law or in equity, with this exception, that in a Court of Equity, although a contract of sale be wholly verbal, yet if by its terms it was expressly stipulated that it should be duly reduced into writing and signed, and that formal (1) Powell v. Edmunds, 12 East, 6. (m) Abbott on Shipping, 4 ed. 224; Holt on Shipping, 57; 4 Campb. 243. (n) Knapp's R. 344; 1 Simon's R. 13; 3 Id. 29. (0) Prossert v. Parker, 1 Russ. & M. 625; Sugd. V. & P. 8 ed.; and cases, Chit. Col. St. 374, 375, notes (p), (q), (r). CHAP. III. I. RIGHTS completion of the bargain was prevented by fraud of the party who ought to have signed, then a Court of Equity would enforce PERSONALTY. the verbal agreement against such a party. (u) ΤΟ 7. When contract may be collected from several documents or letters. 8. All proper terms must be expressly specified. The whole terms of the contract, when in writing, need not be expressed on the same paper or document, but may be collected from several letters containing proposals and ultimate agreements between the parties, (v) but then the last communication must be a distinct and unqualified assent to an equally clear proposal; and if the last letter suggest any new or further proposition requiring the assent of the other party, or some communication from him to complete the transaction, then no contract or agreement is constituted. (a) So under the statute against frauds requiring a written and signed agreement, it has been held that a sufficient contract may be constituted by a letter ascertaining the terms of the agreement, by reference to another document containing them, (y) even though such document has not been signed, (2) or referring to something which is in itself certain, as to the custom of the country in an agreement for a lease; (a) though under the statute against frauds it has been held that parol evidence cannot be received to ascertain what is referred to, the subject of the reference not being sufficiently certain or decided and distinct upon the face of the document itself. (b) There is one general rule and precaution to be observed in framing or entering into all express contracts whether or not under seal, namely, that all the proposed terms of bargain, and all proper stipulations, be expressly inserted in the written contract; for though there are some cases in which a Court of Law or Equity will imply or infer a contract in all proper terms, when the parties themselves have not fixed the terms of contract, yet when they do contract for themselves, no term or stipulation not expressed will be superadded by the court, though the court might readily conjecture what the parties intended, or what would be reasonable; for courts are to construe, and not to make new contracts for parties which they have omitted to (u) 2 Bro. C. C. 565; Sugd. V. & P. 106, 107; and see 3 Russ. R. 424; but see 3 Bar. & Ald. 326; 1 Cox, 219; 1 P. Wms. 770; 3 Meriv, 53, 62. (v) 1 Bing. 9; 7 Moore, 219; 4 Wils. & Sh. 20; 1 Sim. & Stu. 194; 3 Taunt. 169. (a) Holland v. Eyre, 4 Wils. & Shaw, 20; 1 Sim. & Stu. 194; 4 Bing. 653. (y) 3 Atk. 502; 2 Bos. & P. 238. (s) 3 Bro. C. C. 318. (a) 1 Ves. J. 330. (b) 1 Ves. J. 326; 5 Bar. & Cres. 583; and 9 Bar. & Cres. 561, 569, 570. CHAP. III. I. RIGHTS ΤΟ make for themselves. (c) Therefore when several parties entered into a written engagement of partnership in a foreign adventure, and one of them was to proceed and reside abroad, PERSONALTY. and to undertake much more risk and personal trouble than the others, and there were written stipulations for divisions of profits, but no stipulations providing remuneration for this extra trouble, or for the contingency of the undertaking not proceeding; and the party went abroad at great expense and trouble, and commenced the adventure, but which was shortly afterwards put an end to, and he proceeded in Scotland against his copartners to recover remuneration for his extra trouble and expense, it was held in the House of Lords, reversing the decision of the Lord Ordinary, that as the contract did not provide for the event, there was no jurisdiction to afford him any compensation. (d) So if a contract of partnership be silent as to the division of profits, then whatever may have been the unexpressed intention of the parties, each will be entitled to an equal moiety, though one of them brought in no part, or a very unequal share of the capital. (e) And in another case in the House of Lords it was on the same principle held (reversing the judgment of the Court of Session) that a clause in articles and conditions regulating the management of a farm, that "the whole fodder to be used upon the ground, and none sold or carried away at any time, hay only excepted, and all the dung to be laid on the farm the last year of the lease," created an effectual prohibition against the tenant disposing or carrying off the farm any part of the straw of the waygoing crops, and that as there was no stipulation on the part of the landlord to pay the value, the tenant could not recover it; (f) and though the custom or usage of the county where a farm is situate would otherwise entitle the tenant to remuneration for his waygoing crops, or for labour or manure from his landlord or incoming tenant, (g) yet if there were any express stipulation between the outgoing tenant and his landlord inconsistent with such custom or usage, then the latter will not prevail. (h) So though a tenant is in general entitled during his term to remove any annexations made by him to the (f) Gordon v. Robertson, 2 Wils. & Shaw, 115; Allen v. Berry, 3 Wils. & Shaw, 417, quære; 7 Bing. 465. (g) Dally v. Hirst, 3 J. B. Moore, 536; 1 Brod. & B. 224; Holt's C. N. P. 197; 7 Bing. 465. (h) 16 East, 71; 1 Taunt. 19; 1 Meriv. 15; 2 Bar. & Ald. 716; Holt's Cases, Ni. Pri. 197; 3 J. B. Moore, 536; 8 Bing. 65. CHAP. III. I. RIGHTS ΤΟ PERSONALTY. 9. Time of performance when the essence of contract. freehold for the purposes of trade, yet if he has covenanted to leave all erections or improvements, it is otherwise, and he is not in that case entitled to any compensation. (i) So although in a tenant's covenant to repair, damages by fire be excepted, and which protects him from liability to repair, yet, unless expressly stipulated otherwise, he will continue liable to pay rent to the end of his term, and he cannot even compel the landlord, unless perhaps when the buildings are within the bills of mortality, to expend, in rebuilding, the money he has received for the loss from an insurance office; (k) and therefore care should be observed on the part of a lessee to insert a proviso suspending liability to payment, or at least the tenant should effect an insurance sufficient to cover the amount of the rent and loss of the value of the occupation during the residue of the term. There are however some cases of express written contracts, when, if such contract be wholly silent on the subject, implied terms of contract may be superadded, provided they are not inconsistent with the express stipulation. Thus a custom or usage that tenants shall have the waygoing crops after the expiration of their lease, or be paid for fallows, seeds, or manure, is valid and effectual, if the lease be silent on the subject. (7) So, if either party to a contract wish to make performance at a precise time material, he should introduce an express and positive proviso to that effect, for otherwise, at least as respects the sale of real property, performance on the very day is not in general considered in a Court of Equity as of the essence of the contract. (m) But that rule, it is said, is not to be extended; (n) and where a day was fixed in a contract of sale of the good-will of a public house and the stock in trade and furniture, at a valuation, and the purchaser was not ready till the next day, when he tendered the amount, the time was held the essence of the bargain, and a Court of Equity refused a specific performance at the instance of such purchaser, though he was only one day too late. (o) And where a purchase is intended with a view to commercial purposes, and not merely as an investment of money, time is frequently considered as the essence of the contract. (p) And where a (i) 1 Taunt. 19; 9 Bing. 24. (k) 1 Simons' R. 146; 5 Bar. & Ald. 1. () 1 Hen. Bla. 5; Doug. 201; Holt's C. N. P. 197; 3J. B. Moore, 536; and see note, supra; 7 Bing. 465. (m) In equity, a vendor's undertaking to give an abstract and deliver possession by a particular time, does not make such time the essence of the contract, 1 Jac. & W. 422; 1 Russ. R. 376; Sugd. V. & P. 364 to 383. (n) 2 Jac. & W. 288, 289; and Sugd. V. & P. 8 ed. 363. (0) 1 Russ. Rep. 376. |