As to Leroux v. Brown (a), which was decided on sect. 4: Sir G. Honyman, at p. 818, there collects the authorities to show that an admission by the Defendant to a third party of a contract with the Plaintiff is sufficient to create a liability, and he refers to Sir Edward Sugden's book on Vendors and Purchasers, 11th ed. p. 122, 14th ed. p. 139, where it is said that " a note or letter, written by the vendor to any third person, containing directions to carry the agreement into execution, will, subject to the before-mentioned rules, be a sufficient agreement to take a case out of the statute," for which is cited the authority of Lord Hardwicke. By analogy the same is true also with reference to sect. 17. My Brother Willes has referred me to Bailey v. Sweeting (b), where this Court went into the general doctrine that the statute was intended to prevent a contract being established by oral swearing only. The danger of perjury is abundantly guarded against if the Court see a written statement to his own agent by the party sought to be charged, in which the contract is admitted. WILLES, J. Sect. 17 of the Statute of Frauds requires either the existence of certain conditions which do not exist in the present case, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged or their agents." The series of letters between Rookes and the Defendant may be read together, and the Defendant has signed the last of them referring to the three preceding; and it contains a statement that Rookes had bought a mare for the Defendant, and as his agent. Assuming that Rookes was agent of the Defendant only, the parties to the contract, the subject matter and nature of the contract, the fact of the purchase and the price, are mentioned in these letters; nothing is wanting to make a complete memorandum of the bargain, unless it be neces(a) 12 C. B. 801. (b) 9 C. B., N. S. 843. 1865. GIBSON บ. HOLLAND. 1865. GIBSON v. HOLLAND. or some memo sary that the memorandum should be addressed to the per- In Bailey v. Sweeting (a), though no other memorandum in writing of a contract or agreement was shown than one in which the party expressed that he desired not to be bound by it, this Court held that the memorandum was sufficient; and in so deciding they decided the present case. My difficulty has been in understanding Leroux v. Brown (b), because it occurred to me that it might be considered as unnecessarily extending the operation of sect. 4 of the Statute of Frauds to oral contracts in whatever country entered into; whereas it would have satisfied the intention of the legislature and the rule lex loci contractûs, if it had been applied only to contracts entered into in this country. We are, however, bound by the decision in that (b) 12 C. B. 801. (a) 9 C. B., N. S. 843. case; and it is a confirmation of the correctness of our construction in this respect, because the decision adopted the view that a writing subsequent to the parol contract, and addressed to a third person, was sufficient evidence of an agreement within the statute, though the case has been considered by some persons doubtful on the point which I have mentioned (a). Another difficulty suggested, as arising out of some decisions (b), is, that the note or memorandum must exist before action brought, and that a person cannot maintain an action on a contract which is within sect. 17, by giving in evidence a note or memorandum made after; which would seem to show that the Courts thought that the note or memorandum was to stand in the place of the contract; but, in deciding a case of that description, it was probably considered that the intention of the legislature was of a mixed character,-to protect persons from actions being brought against them, according to the language at the commencement of sect. 4, as well as to prevent perjury, and that such must also have been the intention in sect. 17. However, there is no authority binding us to give sect. 17 the construction contended for by Mr. Karslake. BYLES, J. Having been engaged in public business, which prevented me from being present at the beginning of the argument, I feel that I ought to abstain from expressing any opinion, more especially in a case which involves consequences so important. KEATING, J. I agree with the Lord Chief Justice and my Brother Willes; and will only add that the objection which pressed upon me was that the corespondence between Rookes and the Defendant contemplated a liability (a) See Williams, Appt., Wheeler, Respt., 8 C. B., N. S. 299; Chitt. Contr. 90, 7th ed. (b) See Bill v. Bament, 9 M. & W. 36; Fricker v. Tomlinson, 1 M. & Gr. 772. 1865. GIBSON v. HOLLAND. 1865. GIBSON V. HOLLAND. of the Defendant to his agent, and not to the Plaintiffs; but that is removed by Bailey v. Sweeting (a). Rule refused (b). Thursday, November 9. Sale of land. Payment of deposit. Attorney of vendor. Stakeholder. EDGELL, executrix of EDGELL v. DAY. On the sale of landed property a memorandum of agreement to purchase part was made between the Defendant, an attorney, "as the agent of" the vendor, of the one part, and the purchaser of the other part, subject to certain annexed conditions as far as they applied to a sale by private contract, except that the purchaser paid to the Defendant 1,000l. as a deposit and in part payment of the purchase-money, which the Defendant thereby acknowledged. The third condition, among others, was, that the purchaser of each lot should immediately pay to the Defendant," as agent for the vendor," a deposit of 151. per cent. The remaining parts were sold by auction; and the Defendant attended the sale and received the deposits, "giving receipts as agent for the vendor." Held, that the Defendant was not in the position of stakeholder, but agent of the vendor, and therefore the vendor might bring an action to recover interest on the deposits before the completion of the sales. THE first count of the declaration stated that, in consideration that A. Edgell would employ and retain the Defendant as his solicitor and agent in the selling and disposing of certain property, and to receive certain monies deposited by the purchasers on the sale thereof for him, for reward to the Defendant, the Defendant promised A. Edgell to render to him on request a true and just account of, and truly and justly to account to him for, the monies arising from such sale, and of the monies deposited by the purchasers, and A. Edgell retained and employed the Defendant for the purpose and on the terms aforesaid; and the Defendant, as such agent, received and had certain large sums of money deposited by the purchasers with and received and taken by the Defendant on the terms aforesaid, as the solicitor of and agent for A. Edgell; and all conditions were fulfilled and all things happened and all times elapsed necessary to entitle the Plaintiff as executrix of A. Edgell to maintain this action. Breach. (a) 9 C. B., N. S. 843. (b) This and the five following cases are reported by G. J. Philip Smith, Esq. Second count. That A. Edgell, in his lifetime, retained and employed the Defendant for hire and reward as his agent, amongst other things, to receive divers sums of money for him, and upon the terms that he should and would, upon reasonable request, duly account to him for the same and pay over the same to him, and the Defendant accepted such retainer and employment; and although the Defendant afterwards, during the lifetime of A. Edgell, under and by virtue of the retainer and employment, and as such agent and upon the terms aforesaid, received divers large sums of money for A. Edgell, and although he was afterwards reasonably requested by A. Edgell duly to account to him for the same and pay the same over to him, in order that he might invest the same at interest; and although all conditions were fulfilled, and all things had happened and all times elapsed necessary to entitle A. Edgell in his lifetime to have the monies paid over to him, and to entitle the Plaintiff as such executrix to maintain this action in respect of the matters in this count complained of, yet the defendant did not nor would duly account, &c. There were also the common money counts. The Defendant pleaded, among other pleas, to the first count, as follows: Third. That the Defendant did not as such agent receive or have the sums of money deposited by the purchasers with and received and taken by him on the alleged terms as the solicitor of and agent for A. Edgell. Fifth. To so much as relates to not paying over to A. Edgell or to the Plaintiff the monies therein mentioned, that the Defendant was retained and employed by A. Edgell as his solicitor in selling the property and to receive the monies. deposited by the purchasers thereof on the sale thereof, and to hold the same until the respective purchases of the property should be respectively completed or the deposit money should become forfeited to A. Edgell, and then to 1865. EDGELL V. DAY. |