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id the defendant by his answer confessed the 1802. without insisting on the statute of frauds. The
CLINAN ed execution of the agreement.
Dec. 14th. ating the facts ;) It is insisted, that wherever an Authority to
an agent to congiven to another to enter into a contract of this tract for the it must be in writing. There is no foundation des
"lands, need not
or thirty-one years, but that was unquestiona-
given to conclude this agreement. I think
ve must have understood that they had come
nade, and made pursuant to an authority.
stion is, whether this agreement was made
1802. « writing, and therefore the defendant is not within the
“ statute; also, he says, 'not lawfully authorized as agent;' CLINAN
“ the statute is not followed here ; on the whole the plea CookE. umu
- " must be over-ruled.”
As to the case of Brodie v. St. Paul, cited to shew that a defect in the written agreement could not be supported by parol, in that case there was contradictory evidence with respect to the nature of the covenants to be inserted in the lease. But the case of Allan v. Bower, referred to in that case, (1 Ves. Jun. 351) shews the disposition of the court, not to lay hold of slight technical objections against the equity of the case. There a paper was found signed by the deceased, saying, that it was reasonable to grant the plaintiff a lease, on account of the improvements he had made : the paper did not express for what interest the lease was to be granted; but Lord THURLOW directed an inquiry, what interest was intended to be granted ; the Master refused parol evidence, and upon the ground of the statute, reported that the plaintiff was only entitled to a lease for three years, and it was again referred to him to state the promise made and referred to by the paper. And in Foynes v. Statham, 3 Atk. 388, where, in answer to a bill for a specific performance of an agreement for a lease, defendant insisted that it was part of the original agreement, that the plaintiff should pay the rent clear of taxes, and offered to prove it by parol. Lord HARDWICKE thought the evidence ought to be admitted, and that if the defendant had been the plaintiff, and had brought his bill for the specific performance, he might have resorted to it.
But the defendant has not relied on the statute of frauds in his answer; and in cases where the party does not rely on it, the court considers itself discharged from it, as in Croyston v. Banes, Prec. Chan. 208, where a bill was brought for execution of a parol agreement, which was in no part ex
ecuted, and the defendant by his answer confessed the 1802. agreement without insisting on the statute of frauds. The
CLINAN court decreed execution of the agreement.
СооКЕ. Lord CHANCELLOR.
Dec. 14th. · (After stating the facts ;) It is insisted, that wherever an Authority to
an agent to conauthority is given to another to enter into a contract of this tract for the description, it must be in writing. There is no foundation de for this position ; the words of the statute of frauds do not be in writing. import any such thing, and there are decided cases to the contrary, particularly the case furnished by Mr. Fitzgerald from Mr. Malone's notes, which is a precise determination in point, and I think was decided in perfect conformity to the statute. Therefore the authority in this case is a sufficient authority as far as it is admitted ; that is, it is an authority to conclude an agreement with the plaintiff for a term either of three lives or thirty-one years, but that was unquestionably to be expressed in any agreement to be made between the parties, and it cannot be taken to be an authority otherwise than as so expressed. It has been questioned, whether an authority was given to conclude this agreement. I think Mr. Cooke cannot contend, that an authority to conclude the agreement was not intended to be given, because fifty guineas were paid to him in consideration of it, which he accepted, and therefore he must have understood that Meagher had gone beyond merely informing these persons that they might have an agreement, provided the Cahills agreed to give up the possession; he must have understood that they had come to an agreement, and therefore I must presume that the agreement was made, and made pursuant to an authority.
The next question is, whether this agreement was made according to the authority. The words of Cooke's answer are, “ that if he was satisfied, that he could give peaceable “ possession, &c.” he was authorized. It depended entirely
on the mind of Meagher, and I think we must take it, that he was satisfied as far as the nature of the thing admitted of it; he could not know with absolute certainty, whether the Cahills would quit or not. It is indeed clear, that he was not perfectly satisfied on that subject, because in the agreement which he signed, he has introduced a provision, which shews he was still apprehensive that the Cahills would hold out, but this apprehension did not weigh so far as to prevent the agreement, else it would have been absurd to have entered into the agreement at all until the Cahills had quitted. Besides, Cooke himself having accepted fifty guineas, was bound to satisfy himself on that subject. I do not therefore think that that is a ground for objecting to the performance of this agreement.
Agent, autho- . Then comes the question, whether there is an agreement rized to make agreements for in writing sufficiently expressed ; now, whenever an act is leases for lives a
done under an authority, it must be in pursuance of that or years, makes an agreement authority. If you suppose that Meagher was authorized in which the
to make an agreement with these persons, and to sign it in proposed lease the name of Cooke, it must be a perfect agreement that is not mentioned. This is an is to be made ; it must be an agreement which is to conagreement not tain that which is to bind Cooke : now, if there was in the pursuant to his authority, and agreement any fraudulent omission on the part of Meagher, not binding on his principal.
to which Cooke was not privy, he would not be bound by it, as he had not authorized Meagher to commit a fraud. However, there is no suggestion of fraud in Meagher: the utmost that can be said is, that the not inserting the term in the agreement was ignorance, mistake, or blunder; but the agreement is therefore imperfect, and being so, it is not an agreement according to the authority, and on that ground I think it would be extremely difficult to decree what the bill seeks.
It is contended that this omission may be supplied by pa 1802. rol evidence, and particularly by reference to the advertise
CLINAN ment. The plaintiffs have taken it to be a contract for a
СоокЕ. lease of three lives ; therefore the contract they propose to perform is a contract at the rent expressed in the paper for three lives. Now, a reference to the advertisement will not serve their purpose, because the ambiguity remains, for in the advertisement it is “ three lives or thirty-one years ;" there is nothing in the advertisement that gives a choice to the tenant. Cooke's answer says, that it should be either the one or the other as the parties should agree, and the case is perfectly silent as to the fact of any agreement on the point, except as to the plaintiffs having prepared a lease for three lives, for it is not stated in their bill that they meant the
agreement to be for three lives, or that Meagher signed it ; meaning it to be so; for this reason therefore, it is impossible to connect this agreement with the advertisement. But suppose there were no uncertainty in this particular, and that the advertisement had expressed three lives only, you then are to connect these two transactions ; how? by parol evidence. Now if the agreement had referred to the adver- If one writ
u , ten instrument tisement, I agree parol evidence might have been admitted to shew what was the thing (namely the advertisement) so ther written
instrument, pa. referred to, for then it would be an agreement to grant for rol evidence 80 much time as was expressed in the advertisement, and mayb
mitted to shew then the identity of the advertisement might be proved by what was the
thing so reparol evidence ; but there is no reference whatever to the ferro advertisement in this agreement.
The case of Tawney v. Crowther, 3 Bro. C. C. 318, was The case of
- Tawney v. mentioned in argument: there the agreement was prepared crou in writing ; the defendant declined to sign it, but he wrote a doubted, whe
ther the facts letter, which Lord Thurlow said he relied on as referring support the to the written paper containing the terms of the agreement, decree. and he thought that letter was tantamount to signing the written agreement, which written agreement, by the bye,