1802. CLINAN v. COOKE. after twelve months) by a merchant's clerk, void, unless he was authorized in writing: (a) it would extend also to all contracts for the sale of personal chattels made by an agent. For the plaintiff, in reply. The circumstance to which the first and second clauses of the statute of frauds are intended to apply, are in their nature essentially different; the first clause applies to cases where the estate itself actually passes by the writing: where possession may be had by ejectment, and where there is no thing for a court of equity to act upon; in such cases mischievous consequences might follow, if the execution of the deed were not guarded by the formality of a written authority; but the cases to which the second clause applies are properly within the cognizance of equity, and upon recourse being had to the court for performance of the contract, it will fully investigate the circumstances of the execution so as to prevent fraud. This distinction has always prevailed in England. Walker v. Hendon and Cox, 5 Vin. Abr. 524, Pl. 45. And from the following case, (furnished by Mr. Fitzgerald from Mr. Malone's M. S. notes) it clearly appears so to have been understood in this court. Barryv. Lord Barrymore, before Lord LIFFORD, in Chanchery, Mich. 1770. "Bill to stay proceedings at law, and "for a specific execution; the plaintiff had been in under "the defendant, under a lease which expired in 1768: in "1767, defendant published an advertisement, importing "that said lands would be out of lease and would be let "by himself, or his agent Mr. Underwood, for three lives or thirty-one years, from May 1768. Plaintiff Plaintiff propos"ed for the lands, and offered by writing, signed by "himself, and delivered to the agent, to pay a rent of "178. 10s. per annum. The defendant wrote in (a) Vide sect. 13. "a certain book, called the proposal book, under certain "denominations of lands, which were the lands in ques tion, Agreed 1787.: 10: 0,' and drew a line under a certain other part of the same book, which it was "acknowledged was a mark of his acceptance. The (6 agent wrote to the plaintiff and made use of these words: "You are declared for (naming the denomination) at "178% 10: 0,' and another letter was written by the 66 agent to the plaintiff, letting him know that his offer "was accepted. The defendant put in a plea, which he 66 supported by his answer; the plea under the statute of "frauds, was to this effect, that the defendant did not put "in writing any contract or agreement for making the "lease in the bill, nor lawfully authorize in writing James "Underwood, or any other person as agent for him, to "make or sign any agreement in writing for any of the "lands in the bill, or any memorandum or note for mak"ing any lease, otherwise than as defendant had set "forth." "Serjeant Dennis (afterwards Lord TRACTON) said, this plea is not within the statute in two particulars; first, "Defendant says he did not authorize in writing, that is not necessary; one may be authorized in such case by "parol; and all the pleas of this sort are generally, that "the party did not authorize; secondly, The plea is, that "the defendant did not authorize Underwood as his agent. "But it is no matter how he authorized him; the statute "makes no difference as to that." "Lord LIFFORD, "What the transaction will amount to must be decided "at the hearing, the plea is evidently bad, for the defen"dant says, that he did not authorize in writing.' But "the statute does not require the authority to be given in 1802. CLINAN V. COOKE. 1802. CLINAN υ. COOKE. "writing, and therefore the defendant is not within the "statute; also, he says, 'not lawfully authorized as agent;' "the statute is not followed here; on the whole the plea 16 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 Joynes 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 Lord CHANCELLOR. (After stating the facts ;) It is insisted, that wherever an authority is given to another to enter into a contract of this description, it must be in writing. There is no foundation 1802. CLINAN V. COOKE. Dec. 14th. Authority to an agent to contract for the demise of lands, need not 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 1802. CLINAN V. COOKE. Agent, autho rized to make or years, makes an agreement in which the term of the is not mention agreement not pursuant to his 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. Then comes the question, whether there is an agreement agreements for in writing sufficiently expressed; now, whenever an act is leases for lives done under an authority, it must be in pursuance of that authority. If you suppose that Meagher was authorized 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 ed. This is an is to be made; it must be an agreement which is to contain that which is to bind Cooke: now, if there was in the agreement any fraudulent omission on the part of Meagher, 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. authority, and not binding on his principal. |