1802. CLINAN υ. COOKE. A case was also mentioned from 3 Atk. 388 (Joynes 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 defendant says, "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. It is true Mr. Atkyns makes Lord HARDWICKE say, ແ Suppose the defendant had been the plaintiff, and had แ brought the bill for a specific performance of the agreement. I do not see but he might have been allowed the "benefit of disclosing this to the Court." This passage was 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 attempt 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 Athyns, I do not think they import any thing positive. 66 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 66 any contract or sale of lands, &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. 1802. CLINAN v. COOKE. Payment of money is not part performance to take an agreement touching lands out of the statute. 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. But I think this is not a case in which part performance appears; the only circumstance that can be considered as amounting to part performance is the payment of the sum of fifty guineas to Mr. Cooke. Now, it has always been considered that the payment of money is not to be deemed 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. Seagood v. Meale, ubi. sup. Lord Fingall (or Pengall) v. Ross. 2 Eq. Abr. 48, and what is said arguendo in Coles v. Trecothick. 9 Ves. 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 sealing of them. Vid. also, Lacon v. Mertins, 3 Atk. 1; Main v. Melbourn, 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. as part payment, and no distinction can be drawn but the great reason, as I think, why part payment does not take such agreement out of the statute is, that the statute has said(a) that in another case, viz. with respect to goods, it shall operate as part performance. And the courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands. 1802. CLINAN V. COOKE. In such case, nothing is part that does not put the party into a situation that is a fraud upon him if the agreement be not performed. But I take another reason also to prevail on the subject. I take it that nothing is considered as a part per- performance formance which does not put the party into a situation that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser if there be no agreement. This is put strongly in the case of Foxcraft v. Lister ;(b) there the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong doer, and to account for the rents and profits, and why? because he entered in pursuance of an agreement. Then for the purpose of defending himself against a charge which might otherwise be made against him, such evidence was admissible, and if it was admissible for such purpose, there is no reason why it should not be admissible throughout. That, I apprehend, is the ground on which courts of equity have proceeded, in permitting part performance of an agreement to be a ground for avoiding the statute; and I take it therefore that nothing is to be considered as part performance which is not of that nature. Payment of money is not part performance, for it may be repaid; and then the parties will be just as they were before, especially if repaid with interest. (b) Cited, Prec. Ch. 519;2 Vern. 456 ; Vid. Colles's Parl. C. 103. VOL. I 1802. CLINAN V. COOKE. It does not put a man who has parted with his money into the situation of a man against whom an action may be brought; for in the case of Foxcraft v. Lister, which first led the way, if the party could not have produced in evidence the parol agreement, he might have been liable in damages to an immense extent. On this ground therefore I think this is not a case in which I can consider that there is a part performance to warrant my decreeing performance of an agreement, the terms of which are left thus imperfect, and must be supplied by parol evidence, which would be contrary to the statute; there is no sufficient ground to consider this case out of the statute, and I am of opinion that the bill must be dismissed. There is another part of the case which requires a little notice; the plaintiff does appear in the light of a person who at least offered some money to Meagher; though that fact is not distinctly alleged by the answer, yet it is alleged that Meagher entered into this agreement with the plaintiffs in consequence of some money which he received from them, and that he did it to the prejudice of the defendant; it also appears that the sum of twenty guineas was paid by the plaintiffs to Meagher, and that it was paid without a receipt. These are suspicious circumstances; the bill insists that this money was paid on account of rent, if so, why was not some receipt given for it as well as for other payments of the same kind? I think the case on the part of the plaintiff very suspicious and not at all favourable. But I think the conduct of the defendant, also very unjustifiable-quite unwarrantable after retaining the fifty guineas as he has done ; he receives fifty guineas in February in consequence of an agreement which was to be executed in May; he takes advantage of the imperfection of the agreement; but with the impression on his mind that it was imperfect, he retaina |