Page images

agreement, was a sufficient signature within the

statute. An Agent 17. It is observable, that in the 4th section of the may be authorized to statute, it is not required, as in the first section, that sign by Parol. the agent should be authorized by writing. In the 5 Vin. Ab. case of Waller v. Hendon, before Lord Macclesfield, 524. pl. 45.

it was held, that an authority to treat or buy, may be good without writing, though by the statute the

contract itself must be in writing. And in a modern 9 Ves. 250. case Lord Eldon said." It is clearly settled now, 10—311.

that an agent need not be authorized in writing.” A Letter is an 18. It has been held, that a letter will amount to Agreement. Coleman v.

a sufficient agreement within the statute, where it is Upcot, signed by the party to be charged with the same. 5 Vin. Ab. 527.

But the letter must sufficiently specify all the terms upon which the agreement is made ; or refer to some written agreement, in which all the circumstances are specified; and not require any external evidence to explain it: for otherwise that which the statute was made to prevent, namely, fraud and perjury, would be let in. It must likewise, appear that the other party accepted the terms, and acted in con

templation of them. Seagood v. 19. A bill was brought for a specific execution of Meale, Prec. in Cha. 560. an agreement, for the purchase of nine houses. The

owner had agreed to sell them to the plaintiff for a certain sum: the plaintiff paid a guinea in part ; and sent a note to his solicitor to this effect :-“ Mr. L. pray deliver my writings to the bearer ; I having agreed to dispose of them.” The defendant insisted on the statute of frauds; and the question was, whether this note would take it out of the statute. It was decreed that it would not; for it ought to be such an agreement as specified the terms thereof, which this did not, though signed by the party , for it did

not mention the sum that was paid, nor the number of houses to be disposed of, whether all or some, or how many, nor to whom they were to be sold: neither did the letter mention whether they were to be disposed of by way of sale or by assignment of lease. So all the danger of perjury, which the statute was to provide against, would be let in to ascertain the agreement.

20. The plaintiff had agreed for the purchase of an Clerk v. estate from the defendant, but the agreement was Atk. 12.

Wright, not reduced into writing. However, in confidence, plaintiff had given orders for conveyances to be drawn and engrossed, and went several times to view the estate. Sometime after, the defendant sent a letter to the plaintiff, to inform him, that at the time he contracted for the sale of the estate, the value of the timber was not known to him; and that the plaintiff should not have the estate, unless he would give him a larger price. A bill was brought to carry this agreement into execution; to which the statute of frauds was pleaded.

Lord Hardwicke allowed the plea, and said, that the letter could not be sufficient evidence of the agreement, the terms of it not being therein mentioned. 21. In a modern case, where the defendant ac- Tawney v.

Crowther, knowledged by letter an agreement for the sale of

3 Bro. R. an estate, which had been reduced into writing, 161.318. but not signed; it was held to be a sufficient agreement within the statute of frauds. And Lord Thurlow said." If the letter contains the terms of the agreement, or if it refers to another letter, which contains the terms, that is sufficient. For I am of opinion, that if a letter refers so clearly to an agreement, as to show what was meant by the parties, where the existence of the paper is

Bird v.

proved by parol, that will take the case out of the

statute.” Ford v Comp- 22. A letter of this kind must have the proper ton, 2 Bro. R. 32. 309. stamps put on it, in order to make it evidence. Letters pre

23. There have been several cases in which a vious to

father or near relation promises by letter to give a Marriage.

portion to his daughter or cousin in marriage; which has been held to amount to a contract within the statute.

24. A. wrote a letter, signifying his assent to the marBlosse, 2 Vent. 361. riage of his daughter with J. S., and that he would Skin. 142.

give her £1,500. Afterwards, by another letter, upon a farther treaty, he went back from the proposals in his former letter ; but some time after, he declared he would agree to what was proposed in his first. letter. This was held a sufficient promise in writing within the statute ; the last declaration having set

the terms in the first letter up again. Moorv.Hart,

25. On a treaty of marriage, the father of the lady i Vern. 110.

agreed, by letter to a third person, to give a certain portion to his daughter ; this was held to be binding,

and out of the statute. Wankford v. 26. A., in a letter written by his direction, promised Fotherly, 2 Vern. 322. to give £1,500 portion with his daughter. A. was 2 Freem.201. afterwards privy to the marriage, and seemed to apCookes v.

prove of it. Decreed, that A. should pay £1,500 as Mascall, his daughter's portion. The decree was affirmed in 2 Vern. 200.

the House of Lords. Prec, in Cha.

27. The principle of these cases is, that a man 561. who marries a lady upon the encouragement of a

letter, shall recover what is promised in such letter; because the agreement is executed on his part, as far as it can be, and can never be undone after. But where a man marries without any knowledge of such a letter, a court of equity will not decree the performance of any promise contained in it.

28. The plaintiff courted one of the daughters of Ayliffe v. Sir T. Haslewood, and treated with the father about Wms. 65.

Tracy, 2 P. the marriage, who consented, and wrote a letter signed with his name to his daughter, intimating that he had met the plaintiff, had agreed to give him 3,0001. as a portion ; to which the plaintiff

, he said, seemed to assent; and that they were to meet the next day, when the affair was to be fully concluded. They met accordingly, and agreed to the marriage. The father gave money to the daughter to buy wedding clothes. The wedding-day was appointed, but the father died prior to it, having made his will long before, and given his daughter 2,000l. The daughter did not show this letter to her intended husband whom she afterwards married. The 2,000l. was paid to the husband; who did not make any settlement on his wife.

Lord Macclesfield said,—This being no more than a communication, had no ingredient of equity. The husband made no settlement: he did not know of the letter, it being written to the daughter; he therefore could not be supposed to have married in consequence of it; and dismissed the bill.

29. Notwithstanding the statute of frauds, parol Parol Agreeagreements have been frequently enforced in equity in Equity. in the following cases. 1. Where the reducing them into writing has been prevented by fraud. 2. Where there has been a part performance of them. 30. Where the reducing an agreement into writ- Where there

is Fraud. ing, or the signing of it, is prevented by fraud, the Court of Chancery will support it; because it is one 1 Ab. Eq. 19. of the principal objects of a court of equity to relieve against fraud.

31. A father, on a treaty for the marriage of his Mallett v. daughter with the plaintiff, signed a writing com- Prec. in Cha.



prising the terms of the agreement, and afterwards designing to elude it, directed his daughter to get the plaintiff to deliver it up, and then to marry him,

which she did. The plaintiff was relieved. Maxwell v. 32. It is laid down by Lord Macclesfield, that Montacute, Prec. in Cha. where on a treaty for 'a marriage, or on any other

treaty, the parties come to an agreement, but the same is never reduced into writing, nor any proposal made for that purpose, so that they rely wholly on their parol agreement; unless this be executed in part, neither party can compel the other to a specific performance ; for that the statute of frauds is directly in their way. But if there be any agreement for reducing the same into writing, and it is prevented by the fraud and practice of the other party, the Court of Chancery will in such a case give relief: as where instructions were given, and preparations made for the drawing of a marriage settlement, but before the completing of it, the woman was induced, by the assurance and promises of the man to perform it, to marry

him. I P. Wms. 33. It was also said by the Court, in the same

case, that where there was fraud, equity would relieve, even against the words of the statute ; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought

in and executed, in lieu of the former. Where there 34. It is said in the Treatise of Equity, b. i. c. 3. S 8, is a Part Per- that if a parol agreement be carried into execution

by one of the parties, as by delivering possession, and such execution be accepted by the other, he that accepts it must perform his part ; for where there is a performance, the evidence of the bargain does not lie merely upon the words, but upon the fact performed ; and it is unconscionable that the


[ocr errors]
« PreviousContinue »