Spoiled stamps i. e. three indres at 25s each one second of 15s one second of 7s all on parchment two affidavit stamps on paper of, &c. five agrt stamps, &c. amounting in the whole to £. are the property of him the sd dept and his sd ptnr. And that he this dept and his sd ptnr have pd the full value for the same and that they have been spoiled or become useless in their sd profession and that they have not charged and do not mean to charge the same or any of them to any psn or psns whomsr. And unless the same are allowed to this dept and his sd ptnr he this dept and his said ptnr will be losers to the full amount thof. Sworn, &c. Definition. Parties to an agreement. Subjects of an agreement. AGREEMENTS. § 1. An agreement, in its most extensive sense, is defined to be the consent of two or more persons in constituting or dissolving some legal obligation, and in that sense includes every species of assurance; but in a more limited acceptation of the term, it implies any memorandum, articles or minutes, entered into between two or more persons, either to serve as a deed of itself, or as preparatory to some more formal instrument. 1 Bac. Ab. 67. 2. No one can enter into an agreement who has not discretion, or the power of using it; therefore idiots, lunatics, infants, married women, and persons under any duress or restraint, are in general incapable of contracting. Perks. 12, 16. 4 Co. 124; 5 ib. 119. Sheph. Touch. 39. Harris v. Lee, 1 P. Wms. 483. 1 Atk. 409. 1 Fonb. Eq. 68. But the law allows infants to make contracts, with power to vacate them if they prove prejudicial; and a contract by an infant for necessaries is absolutely binding. Co. Litt. 172, a. 2 Sid. 109. 1 Lev. 86. Truman v. Hurst, 1 T. R. 41. So in many cases a married woman is competent to contract, as if she were sole. Norton v. Turvill, 2 P. Wms. 144. Grigby v. Cox, 1 Ves. 517. 1 Fonb. Eq. 91. The executors and administrators of a party are usually named in an agreement; but this is not necessary in order to bind his assets, as his representatives are, by intendment of law, included in his person. Hyde v. Skinner, 2 P. Wms. 270. But the word heirs' must not be omitted, when the real estate of the party is intended to be bound. Plowd. 439. 2 Saund. 136. 3. Generally speaking, every kind of right or interest, whether of a real, personal, or mixed nature, may be the subject of an agreement; but it is requisite that it be within the power of the party contracting. Plowd. 12, 43. Bac. Max. 77. And it must also be such as is not forbidden by the rules of religion and morality, or by the laws of the land. Hob. 132. Morse v. Royal, 12 Ves. 371. Du Bost v. Beresford, 2 Campb. 511. 1 Fonb. Eq. 223. An agreement may either be executed at the beginning, as where money is paid for the thing agreed for, or it may be executory, where it is to be done at some future time. Bac. Max. 78, 79. Dy. 221. Form of an 4. Every agreement, to be effectual, ought to be full and comAgreement. plete, and so framed as to express with clearness and precision the stipulations and terms of the contract. Plowd. 5. Agreements ought for the most part to be in writing, otherwise,by the Statute of Frauds, 29 Car. II. c. 3, they will not be valid; but they need not be under agree both the hand and seal of the parties. A letter takes an agreement ments. 5. Signing is, by the Statute of Frauds, one requisite to the Signing. validity of an agreement; but as a signature by one of the parties will be binding only on the party signing, it is important for both parties to sign, in order to give full efficacy to the contract. 2 Ch. Ca. 164. Champion v. Plummer, 1 N. Rep. 254. Cooper v. Smith, 15 E. 103. Phillimore v. Barry, 1 Campb. 513. Symmons v. Want, 2 Stark, 371. The signature of an authorized agent, even though not authorized in writing, but verbally only, will bind his principal. Mortlock v. Euller, 10 Ves. 311. Wilson v. Hart, 7 Taunt. 295. Clinan, v. Cooke, 1 Sch. & Lef. 31, 32. A cross made by one who is not able to write, is a sufficient signing; and if a man be in the habit of printing or stamping his name, he will be considered to have signed by his printed name. Sugd. Pow. 240, 4th edit. Saunderson v. Jackson, 2 B. & P. 238. Schneider v. Norris, 2 M. & S. 286. Where an agreement is signed by an attorney or authorized agent, he must sign in the name of his principal, not in his own name. 2 Ld. Raym. 1418. White v. Cuyler, 6 T. R. 176. Wilks v. Back, 2 E. 142. Coles v. Tricothick, 9 Ves. 234. The signature required by the statute need not be in any particular part of the instrument. Sugd. V. & P. 93, 8th edit. But it has been held, that inserting the name in the middle of a writing cannot have the effect of a legal signature. Hawkins v. Holmes, 1 P. Wms. 770. Stokes v. Moore, 1 Cox, 219. As to the attestation or signing in the presence of witnesses, this is necessary for preserving the evidence of the deed. 1 Lev. 25. 1 Sid. 37. And in regard to deeds made in pursuance of powers, where the power requires attestation, a deed will be void at law, where there is no mention of such attestation. Sugd. Powers, 5th edit. 241. Attestation. 6. Recitals are not an essential part of a deed, but they are Recitals. nevertheless proper, as they serve to control, extend, or explain the meaning of general words. Lampon v. Corke, 5 B. & A. 606. Payler v. Homersham, 4 M. & S. 423. See also Bonds. Releases. Where a recital is made, it is necessary that it should be correct; thus, in an assignment of a lease, if the date of the lease be misrecited, as the 1st of May for the 2d of May, the assignment will be void. To obviate the consequence of such errors, it is now usual to recite deeds as bearing date on or about the,' &c. Sheph. Touch. 77, Preston's edit. 7. Some consideration or other is absolutely necessary to support Consideraan agreement, otherwise it is held to be a nudum pactum, and void at tion. law. Plowd. 308. Dy. 336. Jones v. Ashburnham, 4 E. 455. Parker v. Bayliss, 2 B. & P. 73. So if the consideration be the doing that which the law prohibits, or which is offensive to decency or good C 1 Construction of agreements in equity and at law. Penalty clause. Stamps. morals, it will be void. Martyn v. Blithman, Yelv. 197. But any reasonable consideration, however small, will be deemed sufficient. Dv. 272. 1 Roll Abr. 22, 23. Williamson v. Clements, 1 Taunt. 523. And if the agreement be under seal, no consideration need appear on the face of the deed; but parol agreements are not allowed to be conclusive evidence of a sufficient consideration. Pellans v. Mierop, 3 Burr. 1670. Rann v. Hughes, cited 7 T. R. 350, n. 1 Fonbl. Eq. 342,347. (See further, as to the consideration, Agecment for the Sale of an Estate. Bargain and Sale, Bond. Gift. Settlement.) 8. The construction of deeds and agreements is the same in equity as at law, but the performance required in a court of equity and that of law is different. At law, a covenant must be strictly and literally performed; in equity, it must be really and substantially performed. Eaton v. Lyon, 3 Ves. 692. Equity will relieve against a strict performance upon equitable circumstances, where there is no wilful neglect and misconduct, and will also enforce the performance of fair and reasonable contracts, even although they be by parol, where the party wants the thing in specie. 2 Freem. 268. 2 Vern. 455. Gunter v. Halsey, Amb. 586. Errington v. Annesley, 2 B. C. C. 443. But if the contract can be and is intended to be compensated by damages, courts of equity will not interpose. 1 P. Wms. 570, Capper v. Harris, Bunb. 135. 9. In contracts of an executory kind, a clause is usually inserted, stipulating for the payment of a sum of money, either by way of penalty, or for liquidated or ascertained damages, in case of violating any of the articles of the contract by either party. The latter mode, by which the parties themselves fix the amount of damages, is to be preferred, as it prevents the necessity of a reference to a jury for that purpose. Astley v. Welden, 2 Pos. & Pull. 346. But the intention of the parties must be clearly expressed, for the mentioning of the word 'penalty' or ' penal sum,'precludes the court from considering it as liquidated damages. Smith v. Dickenson, 3 B. & P. 630; Astley v. Welden, ubi supra. It is, however, worthy of observation, that notwithstanding the above clause, equity will compel a specific performance of a contract where redress in the shape of damages, or otherwise, is an inadequate remedy. Hobson v. Trevor, 2 P. Wms. 191. Goring v. Nash, 3 Atk. 186. 10. An agreement cannot be produced in a court of justice as evidence of a contract, unless it be stamped. Whenever, therefore, a letter is relied on as evidence, it must first be stamped before it be read. Ford v. Compton, 2 B. C. C. 32. By the 55 G. III. c. 184, every agreement or memorandum under hand only, where the matter thereof shall be of the value of 20%. and it shall contain less than 1080 words, is charged with a duty of 14.; and when it contains 1080 words and upwards, with a duty of 17. 15s, and for every entire quantity of 1080 words, over and above the first 1080 words, with a further progressive duty of 11.5s. But when several letters are offered in evidence to prove any agreement, they are chargeable only with the duty of 17. 15s. although they may contain more than twice the number of 1080 words and upwards. Every deed, or every instrument under hand and seal not otherwise charged, requires a stamp of 17. 15s. and a further progressive duty of 17. 15s. for every entire quantity of 1080 over and above the first 1080. Articles of agreement under seal cannot be given in evi dence, unless stamped with a deed stamp. Robinson v. Drybrough 6 T. R. 317. 11. The above remarks will suffice to show the distinction between agreements when they are under seal, and the informal instruments which are properly so called. As to agreements for particular purposes, see further Agreements for a Lease, Partition, Purchase, &c. And as to regular deeds, see further Bonds, Con- Building ditions, Covenants, Leases, l'urchase Deeds, &c. a House. Agreement for Building a House. Obs. 1. Where a contract is made to build a house according to a certain plan, and the owner makes deviations from the plan, this does not vacate the contract, but subjects the owner to the payment of any additional charges occasioned by such decorations. Pepper v. Barland, Peake's N. P. C. 103. Godfrey v. Thomas, Holt's N. P. C. 236. 2. The completion of a contract for building a house may be enforced by the heir on the death of his ancestor, and the executors must pay the builder whatever remains due out of the personal estate, unless it be otherwise stipulated. 2 Vern. 322. 3 P. Wms. 223. Cas. Eq. Temp. Talbot, 83. n. Articles of Agreement made entered into and concluded this day of in the yr of the reign, &c. and in the yr of our Lord 18 Betn (builder) of, &c. of the agrees to build. one pt and (owner) of the or. pt as follow. The sd (B) Parties. for the consons hinaftmentd doth hby for himself his hrs (a) exs and ads covt promise and agree with and to Builder the sd (0) his exs ads and ass that he the sd (B) his exs, &c. shall and will at his or their own proper costs and chas within the space of cal mths next after the date hreof in a good and workmanlike manner and according to the best of his art and skill erect build and set up one house or messe upon the grd belonging to the sd (0) at togr with the several erections and buildings set forth in the schedule here underwritten according to the draught or scheme hereunto annexed subject to the approbation of the surveyor of the sd (0). (b) And will build the same with such stone brick timber and other materials as the sd (0) shall find and provide for the same. And it is furr agrd by and betn the sd pties That if the sd (B) his exs or ads shall be guilty of any neglect or delay in the building finishing or completing the sd house and the sd (0) shall give or leave notice in writing of such neglect or delay at the place of abode of him the sd (B) his exs or ads that then and in such case it shall and may be lful for the sd (0) his exs or ads within the space of days after such notice given or left as afd in case the sd (B) his exs or ads shall not proceed on the completion of the sd works to employ a suffi (a) As to the naming of heirs, executors, and administrators, see Agreements, Pref. § 2. (b) If it be so agreed, say instead of the above And also shall and will at his or their own proper costs find and provide good proper and sufficient materials of all kinds for erecting the sd building subject to the like approbation of the sd (0) or his surveyor. Provision in case of delay. Owner agrees to pay, to find materials, and allow for alterations. Building cient number of workmen to finish and complete the sd a House. house and shall and may deduct and retain to himself or themselves all such sums of money and exps as he or they shall pay or incur in the completion of the sd house. And that the sd (B) his exs or ads shall not in any manner do or cause to be done any act matter or thing whatr to prevent the psns so employed by the sd (0) his, &c. from finishing and completing the sd house. And the sd (0) doth hby for himself his hrs exs ads and ass covt promise and agree with and to the sd (B) his exs ads and ass that he the sd (0) his exs or ads shall and will well and truly pay or cause to be pd unto the sd (B) his exs, &c. the sum of £ of lful money of Gt Britain in manner following that is to say the suni of £ pt thof at the laying of the chamber floors the sum of £. or pt at the covering in and the sum of in full for the work when completely finished. And also that he the sd (0) his, &c. shall and will at his or their own prper costs and chas find and provide all the stone brick and timber and or. materials neces⚫ sary for the building of the sd house. Provided always and it is hby agrd and decld by and betn the pties hereto That in case the sdl (0) his exs, &c. shall direct any more work to be done in or about the sd buildings and preses than what is contd in the sd schedule hereunder written that then and in such case the sd (0) his exs ads or ass shall pay or cause to be pd to the sd (B) his exs, &c. so much money as such extra work shall Arbitration be worth at a rease valuation. And lastly it is hby covenanted and agrd by and betn the sd pties to these prests That if any dispute or difference shall happen to arise between them touching the sd house and buildings or the money to be pd for the same according to the admeasurement and value thof in case the same shall be admeasured or valued or touching or concerning any alteration or addition or any other matter or thing whatsvr relating to the work hby contracted to he done That then and in such case it shall be left to the determination and award of three indifferent psns one to be named by the sd (B) his, &c. and the or. by the sd (0) his, &c. and the third by the sd two psns so to be named immly after such dispute shall arise And the sd pties hereto do hby covt prom and agree with and to each other that they the sd pties shall and will severally stand to abide perform and keep the award and determination of the sd three psns so as the saine be made in writing under the hands and seals of the sd arbitrators within one cal mth next after such reference. And (a) for the due observance of the stipula(a) As to this penal clause, see Agreements, Pref. § 8. clause. Penal clause. |