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1802.

CLINAN

V. COOKE.

thought that was a matter of mere evidence, and not a
thing that was meant to be left to Mr. Askew's determina-
tion. In the course of the argument of that case, Allan v.
Bower was mentioned, and Mr. Justice Buller, speaking
of that case, says, if that case was right it depended on
part performance that the agreement being partly per-
formed opened the case to parol evidence: and there the
whole agreement was by parol--there was no agreement in
writing ; there was an instrument under the hand of Bower,
which was produced for the purpose of shewing that he had
made some parol agreement with the tenant. But in Brodie
v. St. Paul, Mr. Justice BULLER says he was clear that the
agreement was not sufficient to sustain an action at law, for
that nobody could tell, except by parol testimony, what co-
venants had been read, and what not ; that part performance,
takes a case out of the statute, but that in that case there
was nothing that could do so. “The question here is, what
“ is the agreement? the whole depends upon parol. If
" the agreement is certain, and explained in writing, signed
“ by the parties, that binds them ; if not, and evidence is

necessary to prove what the terms were; to admit it “ would effectually break in upon the statute and introduce “ all the mischief, inconvenience, and uncertainty, the sta

tute was designed to prevent.” Now I must confess I feel this to be perfectly right, and I am convinced that though the counsel for Mr. Brodie felt that he was very ill used, yet they felt also that it was impossible that relief could be afforded him, and that this blunder had made the agreement so imperfect that the statute forbids its execution.

The case of Allan v. Bower appears in 3 Bro.C. C. 149, to have come on again on a rehearing, and upon that rehearing it appeared that the proceeding was in itself irregular ; that it was a decree made, not when the cause was at hearing, but upon a motion for an injunction, and there

fore Lord THURLOW was under the necessity of setting it

1802. aside, as being irregularly made. I know it never came on

CLINAN again. Whether the decision would have been the same if

COOKE. it had, I cannot venture to say, but that must at all events have depended on its being or not being considered a part execution of a parol agreement, for Lord Thurlow thought that the paper left behind by Mr. Bower shewed that he had come to some parol agreement, and having done so had let the plaintiff into possession, that the plaintiff had laid out great sums of money on the farm. This he considered as proved by that paper, which he considered as a confession by Bower of that fact, and this he thought sufficient ground for directing an inquiry what was the agreement entered into, to which that paper referred. That is, he considered that paper not as an agreement to be supplied by parol evidence, but as evidence of a parol agreement. There were very great doubts whether that was a solid opinion, though Lord THURLOW took it up very strongly, and his decisions were very seldom unsatisfactory. Any person who reads his decision in 3 Bro. will find that he did not feel Allan v. Bower, himself very strong when he delivered his opinion. There doubted., was something of the same impression as was on his mind in the case of Tawney v. Crowther. In the first of those cases, where a man said he would not sign a paper, Lord THURLOW considered this tantamount to a signature ; and in the latter, when the expressions of the party were, “that he had not

given his tenant a lease because he was not willing to grant “ leases,” his Lordship held this as an agreement to grant a lease. I confess ny mind could never follow these two cases, and there was great doubt amongst the bar on both of them. However, I think neither of these cases decides the present. So far as they touch it, they rather confirm the opinion I have formed, and particularly Tawney v. Crowther, for there Lord THURLOW, considered the letter as referring distinctly to the other paper.

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1802.

CLINAN

V. Cooke.

A case was also mentioned from 3 Atk. 388 (Foynes v. Statham) where a bill was filed for a specific performance of an agreement for a lease. The defendant alleged that there was a mistake in the agreement with respect to the rent ; that the rent was to be clear of taxes, and that that was not inserted in the agreement, and on that ground he resisted performance, and he offered to read parol evidence to shew that that was part of the agreement. Now, that was admitted on a ground which I take to be perfectly clear : the bill was filed to compel performance of an agreement; the de

the
agreement you

have got signed was not the

agreement I entered into, and I therefore am not bound " to perform it.” Suppose the omission fraudulent : the plaintiff might have proved a case of fraud to avoid it, and it is quite equal whether it is insisted on as a mistake or a fraud ; so says Lord HARDWICKE.

fendant says,

It is true Mr. Atkyns makes Lord HARDWICKE say,

Suppose the defendant had been the plaintiff, and had " brought the bill for a specific performance of the agrecu ment.

I do not see but he might have been allowed the “ benefit of disclosing this to the Court." This passage vas cited for the purpose of shewing that Lord HARDWICKE thought there might be an addition to the agreement by parol. I have found a reference to a note of the same case by Mr. Brown, who was king's counsel in Lord HARDWICKE's time, and in great business, and the manner in which he has put this case is thus—“ But, query, “ if on a bill for performance of an agreement, and an at

tempt to add to the agreement by parol, whether plaintiff “ can do it in that case?” Therefore Mr. Brown certainly did not understand Lord HARDWICKE as saying that it could be done, and looking attentively at the words used by Atkyns, I do not think they import any thing positive.

1802.

CLINAN

COOKE.

There is a prior case, Walker v. Walker, 2 Atk. 98, where Lord HARDWICKE is made to say something similar; and there seems to have been somewhat of a floating idea in the mind of his Lordship that by possibility a case might be made, in which even a plaintiff might be permitted to shew an omission in a written agreement either by mistake or fraud. However, I can find no decision except the contrary way. The admission of such evidence as matter of defence is frequent. Legal v. Millar, 2 Ves. 299. And the same doctrine is stated in Pitcarne v. Ogbourne, 2 Ves. 375, and in an older case, 1 Vern. 240. It is used to rebut an equity; the defendant says, “ the agreement you seek is not the

agreement I meant to enter into ;” and then he is let in to prove fraud or mistake. It should be recollected what are the words of the statute: “ No person shall be charged upon

any contract or sale of lards, &c. unless the agreement or

some memorandum or note thereof shall be in writing, “ and signed by the party to be charged therewith or some * other person thereunto by him lawfully authorized.” No person shall be charged with the execution of an agreement who has not either by himself or his agent signed a written agreement, but the statute does not say that if a written agreement is signed, the same exception shall not hold to it that did before the statute. Now, before the statute, if a bill bad been brought for specific performance, and it had appeared that the agreement had been prepared contrary to the intent of the defendant, he might have said, " that is not the agreement meant to have been signed.” Such a case is left as it was, by the statute : it does not say, that a written agreement shall bind, but that an unwritten agreement shall not bind.

Under these circumstances if it be not possible to make this a case of part performance it is impossible to make such a decree as is sought by the plaintiff.

1802.

CLINAN

V.

Cooke.

I should have great difficulty if there were evidence of a part performance. I must have directed a further inquiry, for the party has not suggested by his bill that the agreement was for three lives, or for any specific time, and the case stands, both on the pleadings and evidence, imperfect on that head. As to the fact that leases were tendered to Mr. Cooke and what passed on that occasion, it is not said that he had read them, or that he knew the contents; and at most it amounts only to evidence of this, that if he found the leases not improper, and that the Cahills would give up possession, he agreed to execute them.

Payment of

But I think this is not a case in which part performance money is not

appears; the only circumstance that can be considered as part performance to take amounting to part performance is the payment of the sum an agreement of fifty guineas to Mr. Cooke. Now, it has always been out of the

considered that the payment of money is not to be deemed statute.

part performance to take a case out of the statute. Seagood. v. Meale, Prec. Chan. 560,(a) is the leading case on that subject; there a guinea was paid by way of earnest; and it was agreed clearly that that was of no consequence, in case of an agreement touching lands; now, if payment of fifty guineas would take a case out of the statute, payment of one guinea would do so equally ; for it is paid in both cases

(a) There appears to be some contrariety in the cases upon this point. Agreeable to the doctrine here laid down, vid. Sea good v. Meale, ubi. sup. Lord Fingall (or Pengall) v. Ro88. 2 Eq. Abr. 48, and what is said arguendo in Coles v. Trecothick. 9 Ve8. Jun, 242. On the other side, vid. a case said to have been decided by Lord NottinGHAM. Freem. 281, where the purchase-money was paid, and the deeds refused to be sealed, he decreed the seal. ing of them. Vid. also, Lacon v. Mertins, 3 Atk. 1; Main v. Mela bourn, 4 Ves. Jun. 720; Buckmaster v. Harrop. 7 Ves. Jun. 341. There seems to have been the same contrariety in the cases before the statute, upon the effect of a sum paid by way of earnest on an agreement relating to lands; vid. Simmons v. Cornelius, 1 Chan. Rep. 128 ; Volls v. Smith, 3 Chan. Rep. 16; Semble same case, Anon. Freem. 128.

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