Volume IX. defendants, Weddall, with whom the note had been de1846. posited, and that he then gave it up to her, on her MARSHALL signing a memorandum. The memorandum was then v. POWELL. offered in evidence. follows. It had no stamp, and was as "Copy of valuation, made by Thomas Kilby and Christopher Todd, of wheat now growing upon the farm of Charles Copley of Colton, total value 947. 10s. 8d. April 1st 1844. and secured by the joint and several promissory note of Messrs. George Powell and Septimus Powell. This note is to be subject to the revised valuation of Messrs. Todd and Kilby, and will be more or less than 417. Os. 8d. accordingly as they value the corn. "N.B. The note was given up to me by Mr. Weddall this 20th August, 1844." The counsel for the defendants objected that this memorandum could not be received for want of a stamp: and the learned Judge, after argument, rejected it, and directed a verdict for the plaintiff on the above issue, giving leave to move to enter a verdict for the defendants. In Michaelmas term 1844, Watson obtained a rule nisi to enter the verdict accordingly, or for a new trial on account of the rejection of evidence. Baines and Bliss now shewed cause. consideration for the note has not failed. First: the The original 1846. MARSHALL V. POWELL. agreement could be superseded only by the alteration Queen's Bench. which might have taken place if the second agreement had been carried into effect: but this has not been done. The second agreement was only for a revision on the 1st August: there has been no such revision. The note is absolute; and a condition which is relied upon as operating in discharge must be performed strictly. An award, made after the day named, is not available. The parties themselves, in cases of this kind, give the time which they consider reasonable: if this be once deviated from, no limit can be assigned. In Maryon v. Carter (a) the defendant consented to pay 80% provided certain houses should be completed, paved in front &c., by 21st April 1829; the foot pavement was not all laid down till 25th April: and it was held that, the condition not being fully performed, the 80%. could not be recovered. The condition being here imposed by contract, inevitable accident does not dispense with the performance; note (2) to Walton v. Waterhouse (b). The plea shews the repugnancy; for the materiality of the date appears on the record, and therefore the videlicet does not protect the allegation of performance. Secondly the memorandum of 20th August was not admissible in evidence upon the issue on this plea. [Watson. That objection was not made at the trial.] At any rate it was not admissible without an agreement stamp. The plaintiff sought to use it as evidence that the defendants had assented to the value being taken as fixed by the valuation of 2d August. This effect it can have only as being, or as proving, a fresh (a) 4 Car. & P. 295. VOL. IX. N. S. (b) 2 Wms. Saund. 422 a. 3 F Volume IX. 1846. MARSHALL. v. POWELL. agreement (a). On the trial, Mullett v. Huchison (b) was cited for the plaintiff. But there the Court held that the memorandum only bound the party to do what he was bound to do without any express agreement, namely to redeliver bills which had been handed to him to be discounted, in the event of their not being discounted. And even that decision has been questioned; Doe dem. Frankis v. Frankis (c). Vaughton v. Brine (d), and especially the language of Erskine J. there, may be referred to on the other side: but in Beeching v. Westbrook (e) Alderson B. considered the test as to the necessity of a stamp to be, whether the letters were written after the making of the agreement or while it was being made: here the agreement on which the plaintiff must rely is contained entirely in the memorandum of 20th August; and it thus falls directly within the principle of Knight v. Barber (g). Watson and Hugh Hill, contrà. First: the condition of the second agreement was substantially performed, because the value, as it existed on 1st August, was, as the evidence shewed, the value which was ascertained as it existed on 2nd August, since it was proved that the value was not changed in the interval. The value on 1st August must have been all that the parties meant to fix by assigning the day. The agreement must be interpreted by the condition and conduct of the parties; Chapman v. Bluck (h). [Erle J. Only by what is contemporaneous with the agreement. Baines referred to (a) See Stead v. Dawber, 10 4. & E. 57.; Marshall v. Lynn, 6 M. & W. 109. (b) 7 B. & C. 6S9. (d) 1 M. & G. 359. (c) 11 A. & E. 792. 794, 795. See Vollans v. Fletcher, 1 Exch. 20. (g) 16 M. & W. 66. 1846. MARSHALL V. POWELL. Doe dem. Phillip v. Benjamin (a).] Bowerbank v. Mon- Queen's Bench. teiro (b) and White v. Nicholson (c) are instances in which the express terms of an agreement have been controlled by collateral circumstances. "The words of a condition shall be liberally expounded to serve the intent of the parties;" Com. Dig. Condition (E): and again, at (G 14.), "it is sufficient, if the substance of the condition be performed:" and, at (L 1.), "if the condition be performed in substance, it is sufficient." The parties here were the outgoing and incoming tenants: their object must have been to ascertain the value, at a given date, of the waygoing crop; the exact day of the valuation must have been entirely immaterial. Secondly the plaintiff has at any rate, by the memorandum of 20th August, admitted that she has assented (as she might do) to the valuation being taken on the 2nd. It is in the character of an admission only that the memorandum was offered in evidence: the case is therefore within the principle of Mullett v. Huchison (d) and Langdon v. Wilson (e). [Erle J. In Tomkins v. Ashby (g), referred to in those cases, there was only an admission that money had been left in the hands of the party signing the memorandum.] In Doe dem. Frankis v. Frankis (h) Lord Denman C. J. expressed his assent to the decision in Mullett v. Huchison (d), because the memorandum 66 was never meant to be evidence of the contract, though it contained what had formerly passed between the parties." That is the present case. Blackwell v. M'Naughtan (i) is also (a) 9 A. & E. 644. (c) 4 M. & G. 95. (e) 7 B. & C. 640, note (b). (b) 4 Taunt. 844. (d) 7 B. & C. 639. (g) 6 B. & C. 541. See Clarke v. Chaplin, 1 Exch. 26. (h) 11 A. & E. 792. (i) 1 Q. B. 127. Volume IX. 1846. MARSHALL V. POWELL. affirmative of Mullett v. Huchison (a). In Watkins v. Hewlett (b) a paper written by defendant, acknowledging the receipt from plaintiff of a promissory note, and stating that the note, when paid, would discharge plaintiff from the expenses of a bastard likely to be chargeable, but which was as yet unborn, was held not to require an agreement stamp. In Rex v. St. Martin's, Leicester (c), Patteson J. said that it was intended, by stat. 55 G. 3. c. 184. sched. part. 1. tit. Agreement, to impose a stamp on such writings only "as have per se the binding effect of an agreement." That cannot be said of this memorandum. Vaughton v. Brine (d) shews that, where the memorandum is not to operate as a contract inter partes, it requires no agreement stamp; and that principle was recognized in Lucas v. Beach (e). Lord DENMAN C. J. The first point is very clear, although one may see that there is good sense in the construction contended for on the part of the defendants, and wish to give it effect; but we cannot do so upon the words of the agreement of 1st April. The amount payable on the promissory note is to be diminished by any reduction to be made on the revision of the valuation. But the way in which the parties agree that this revision should be made is essential: it is to be made on a day named, the 1st of August. It might have been wiser to agree simply that the revision should ascertain the value as it existed on that day. But, as the parties have agreed, instead of this, to mention the time at which the valuation was to take (a) 7 B. & C. 639. (c) 2 A. & E. 210. 215. (b) 1 Br. & B. 1. |