day of Principal agrees to pay salary, and an allowance in proportion to the gains of the trade, accts which shall be necessy to manifest the state of Principal the sd trade which sd bk or bks of acct shall always & Agent. remain and be kept in the usual office or place of carrying on the sd trade And these prests furr witness That in conson of the covts hinbefe contd on the pt of the sd (C) he the sd (P) doth hby covt and agree that he the sd (P) shall and will yrly and evy yr during the sd term of yrs determinable as afd well and truly pay unto the sd (C) by half-yrly paymts on the day of and the day of the clear yrly sum of £ — of, &c. witht any deduction whatsr the first half-yrly paymt thof to be made on the And shall and will always yrly and evy yr during the sd term pay (a) to the sd (C) over and above the yrly sum of £ — so much lful money as will amount or be equivalent to pt of the clear gains or profits of or arising from the sd trade or business so to be carried on by the sd (C) as managing clk after deducting the sd sum of £-and all or. debts and dues which shall be pd or payable in respect of the sd trade And also all losses and dams which shall happen to the sd trade by reason of bad debts or orwise And also in case of the death of either of them the sd (P) and (C) during the sd term shall and will pay unto the sd (C) his exs or ads a proportional part of the sd yrly payments so covtd to be made to him as afd from the last of such respive days of payment next preceding his dece up to the day of his dece And finally it is hby decld and agrd by and betn the Principal pties hereto That it shall be lful for the sd (P) at any to be at time to determine these prests upon giving unto the sd liberty to (C) three mths' notice thof in writing and on the expiration of the sd three mths and the paymt of what shall be due unto the sd (C) evy article clause and cort hinbefe mentd shall cease and be void any thing hin contd to the contrary in anywise notwithstg In Witness, &c. Agreement between a Merchant, or Manufacturer, and a Factor. Articles, &c. Betn, &c. (see p. 15) Witness That for the consons, &c. the sd (factor) for himself, &c. doth covt, &c. that he the sd (F) shall and will during the term of yrs from the date of these prests accept and take into his charge and trust all such goods wares and merchandizes as he the sd (P) shall send and consign to him the sd (F) and also shall and will use his (a) As to the perception of profits by way of remuneration, see Obs. 11. dismiss clerk. Factor take charge Principal best endeavours to sell and dispose of the same to the & Agent. best prft and advantage And also That he the sd (F) shall and will keep a true acct of all such goods as the sd (P) shall from time to time consign to him or that inay come into his hands and of all sales barters and or. transactions concerning the same and (a) shall evy Factor to render accounts at stated times; to deliver up unsold goods; not to mths make true paymt and delivy unto the sd (P) his, &c. of all such mos secties and or. things as shall be recd by the sd (F) for the sd wares and merchandizes And at the expiration or sooner determination of the sd term shall and will deliver up unto the sd (P) all such goods wares and merchandizes as shall remain unsold in the custody of the sd (F) And also that the sd (F) give credit; shall not nor will give credit to any psn or psns for a greater length of time than miths witht the consent in writg of the sd (P) And also that he the said (F) shall not during the sd term deal or trade as a factor for any or. person for the buying and selling of any goods wares or merchandize whatsr [or any wares or goods of a like kind, as the case may be] And the sd (P) in conson of the sd agency doth hby covt promise and agree with the sd (F) that he the sd (P) shall and will (b) pay unto the sd (F) yrly and evy yr the sum of £ so long as he shall continue the factor of the sd (P) under the present agrt In Witness, &c. not to carry on any other trade. Principal agrees to give factor a yearly salary. Parties mu tually agree to assist in bringing offenders to justice; Factor to make remittances. Agreement to form an Association for the Prosecution of Offenders. Articles, &c. (see p. 15) Betn A B, CD and E F of the one pt and the other psns whose names are hereunto subscribed of the or. pt, &c. Whas robberies and felonies have of late become very daring and frequent within the township of in the county of and the neighbourhood thof and it is deemed absolutely necessary to enter into an association for the prosecuting of offenders Now we whose names are hto subscribed do hby each for himself and herself promise and agree with and to the others of them That we will use our utmost and best endeavours to apprehend all and evy psn and psns whomsr who shall be guilty of or commit any robbery burglary larceny (a) If the factor be abroad, say ' And shall immly remit home to the sd (P) all mos bills and or. secties reed on acct of such sales.' (6) Or, if it be so agreed, say 'shall and will allow the sd (F) his exs or ads the sum of £for every 100 pounds' worth of goods sold and so in proportion for any less sum than 100%. by way of commission And also the annual sum of £ - by way of salary for his trouble.' felony or or. criminal offence agst the psn or property Prosecuof us or any of us or by means whof we or any of us tion of or of our property shall be affected or injured And Offenders. shall and will prosecute to conviction all such offenders And for that purpe we do hby nominate appt and em- to authopower M W and CH atties at law or either of them attornies rize certain to prose and pro cure a parcomplices, don for ac and to subscribe for defraying the ex but nevertheless under the direction and control of the committee hnaftr mentd to take and use all lful ways cute; and means to prosecute convict and bring to justice all and evy such offender or offenders And we agree for to offer the better discovering and bringing to justice of such rewards for detecting offenders that we will give such reward to any psn or offenders, psus who shall inform and give evidence agst such offender or offenders as shall be thought proper by the committee to be constituted as hnaftr mentd And in case it shall be necessary that we will use our best endeavours to procure a free pardon for any accomplice or accomplices who shall be concerned in any of the offences afd and shall make a full discovery and give evidence thof so that one or more of such or. offender or offenders may be convicted and brought to justice on such information and discovery (a) And for the purps afd we do hby furr agree for the present to advance and subscribe the sum of shillings to defray the expenses of prosecutions and rewards and such or. necessy and penses; incidental exps as shall or may be incurred thby and also from time to time whenever required to advance and subscribe such furr sums of money for the purps afd as the sd committee shall deem expedient in that behalf And that all the costs chas rewards and exps whatsoever which shall be incurred and sustained in any manner in or about the prosecution of such offenders and in carrying this agrt into effect shall be pd out of the sd subscription-funds which shall be lodged in the hands of I H and Co bankers for the purps afd And to elect a it is hereby mutually agrd by and betn the pties hto commit ce that any five of the same pties to be elected annually out of the whole number at a meeting to be convened for that purpose shall be a committee for the time being who shall have the sole managt and diron of the (a) If the expenses are to be raised by a rate, say, ' And for the purps afd we hby agree that all costs chas and exps whatsr which shall be incurred and sustained in any manner in or about the prosecution of such offenders and carrying the present agrt into effect shall be pd and raised by us and evy of us jtly by an equal and proportional pound rate and assessment in proportion to the yrly value of the messes lds tents and heredts by us resply held and occupied within the said township according to the value at which the same are rated for the relief of the poor within the same township.' annually. F Purchase association which s committee is hby authorized and & Sale of empowered to make such furr and or. orders and rean Estate. gulations for effecting the purps afd as they or three of them shall deem expedient and necessary Provided Agreement must be in writing. Agreement when void or not. always that this association shall extend only to psns and property residing and being within the sd township and neighbourhood and five miles thof and not elsewhere any thing hnbefe contd to the contrary thof in anywise notwithstg (a) As Witness our hands this day of 18 Agreements for the Purchase and Sale of Estates. Obs. 1. By the Statute of Frauds, an agreement for the sale of an estate of any lands, tenements, or hereditaments, or any interest in or concerning the same, will not be binding until it is reduced into writing, even although a deposit has been paid; Blagden v. Bradbear, 12 Ves. 466; but a note or letter will take a case out of the statute. Ford v. Complin, 2 B. C. C. 32. An agreement for the sale of timber or potatoes growing upon the land has been held not to be within the statute, because they are mere chattels, and the contract does not confer any exclusive right to the land for a time. Hob. 173. Ld. Raym. 182. Parker v. Stanniland, 11 E. 362. Emmerson v. Heelis, 2 Taunt. 38. When there is an agreement for the sale of real and personal property together, it is held to be an entire contract; and if void as to the land will be void in toto. Cooke v. Tombs, 2 Anst. 425. Sugd. Vend. and Pur. 6th edit. 77. 2. An agreement for a sale ought to be drawn with great care, so as to contain every important particular. Nothing can be added by parol evidence to supply an omission in an agreement after it has been correctly reduced into writing, provided it was drawn according to the intention of the parties at the time. Omerod v. Construc- Hardman, 5 Ves. 730. Neither in the construction of agreements tion of- will the acts of the parties, tending to show their own conception agreements of the meaning, be taken into consideration. Clifton v. Walmesley, 5 T. R. 564. Iggulden v. May, 7 E. 237. 9 Ves. 325. for a sale. Stipulation as to the title. As to necessary parties. 3. Notwithstanding the usual clause, Provided the title be approved by the purchaser's counsel,' yet, if it appear to a Court of Equity to be good, a purchaser will be bound to complete the contract, although it may be objected to by his counsel, Lewis v. Lechmere, 10 Mod. 505. Camfield v. Gilbert, 4 Esp. 221; unless it be otherwise expressly stipulated by the parties. 4. As to the words 'necessary parties,' usually inserted in agreements, they are particularly important when the estate is purchased of trustees or executors, as without such stipulation, it appears that a purchaser cannot insist on any of the cestui que trusts being parties, nor upon any other covenants from the trustees of executors, except that they have not encumbered, Wakeman v. Duchess of Rutland, 3 Ves. 236, 505. (a) Also add, if necessary,' Provided furr that if any of us whose names are hereunto subscribed shall at any time hraftr leave and depart from the sd township and shall not hold occupy or enjoy any messes Ids tents or hereds within the same township then we so departing shall be inmly discharged from this agrt on paying up his her or their proportion of expense thus incurred (if any) in carrying into effect the purps of the sd association.' an Estate. As to sub 5. If a person contract for the purchase of an estate with notice Purchase of a subsisting lease, he will be considered conusant of the con- & Sale of tents of the lease, and be bound by his contract, although such lease should contain covenants contrary to the custom of the country. A purchaser ought therefore either to inspect the lease, or obtain a covenant from the vendor, that it contains such cove- sisting nants only as are justified by the custom of the country. Taylor leases. v. Stibbert. 2 Ves. jun. 440. Sugd. V. & P. 8th edit. 755. 6. The consideration in an agreement for the sale of an estate, must be either certain or reducible to a certainty. A contract for the sale of an estate at so many years' purchase, or at so much per acre, instead of a specified sum, has been deemed a sufficient certainty of price. Milnes v. Gery, 14 Ves. 408. Shannon v. Bradstreet, 1 Sch. & Lef. 73. Considera tion. Consequences of the contract. 7. The expense of preparing a conveyance, must, according to Expense of the established practice of the profession, be borne by the pur- preparing chaser, if there is no express stipulation to the contrary. 2 Ves. conveyjun. 155. And it appears also now to be decided, that he must ance. prepare and tender the conveyance to the vendor. Baxter v. Lewis, Forr. 61. Sugd. V. & P. 232. 8th edit. But, as this is a doubtful matter, it ought to be expressly stipulated in the agreement. Where a term has once been assigned to attend the inheritance, and a purchaser wish it to be again assigned, it is apprehended that it ought to be done at his expense, but the title must be deduced at the expense of the vendor. Sugd. V. & P. 385. 8th edit. 404. 8. Where an agreement has been entered into to sell an estate, the heirs of the vendor are bound by the contract, although not expressly named. 2 Freem. 199. And an infant heir is, it seems, under the 7 Ann, c. 19, compellable to complete the contract of the ancestor. So a purchaser, being considered in equity to be owner of the estate from the time agreed on for completing the contract, is liable to any loss which may happen to the estate between the agreement and the execution of the conveyance. Paine v. Meller, 6 Ves. 349; Sugd. V. & P. 8th edit. 256. If, therefore, the subject of the contract be that which may be destroyed by fire, it is prudent to stipulate, either that the purchaser should insure, or that the vendor should keep on the insurance. By the same rule, a purchaser will be entitled to any benefit which may accrue to the estate in the intermediate time; as if a person agree to give an annuity for the life of the vendor, or other contingent consideration for an estate, and the vendor die before the conveyance is made, the purchaser will be entitled to a specific performance of bis contract, unless it be expressly stipulated to the contrary. Mortimer v. Capper, 1 B. C. C. 156; Jackson v. Lever, 3 ib. 605. 9 Ves. 246. Another consequence of the general rule in equity, that what is agreed to be done, is considered to be done, is, that the purchaser who contracts for the purchase of an estate, will be entitled to the rent, and the vendor to interest for his money, until the execution of the conveyance. Seton v. Slade, 7 Ves. 274. But as the rate of interest to be paid by the purchaser is not fully settled, and frequent disputes arise on account of the delays on one side or the other, it seems desirable that these points should be determined by some express stipulation. Sugd. V. & P. Append. No. VI. Another consequence of the rule above-mentioned is, that an agreement to surrender copyhold lands will operate to bar the widow's free-bench, although the husband die before the surrender is perfected. Hinton v. Hinton, 2 Ves. 631. Brown v. Raindle, 3 Ves. Jun. 256. 9. As to the penal clause very frequently inserted in of this kind, sce Agreements, § 8. Penal agreements clause. |