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(3/ By doing some act inconsistent with anything except
his being the purchaser.



32 CONTRACT.



Whether a Hire-Purchase Agreement is a Contract or an Agree-
ment for the Sale of Goods entitling the Hirer to Convert
them is a Question of Fact.

HELBY v. MATTHEWS. [1895]

(64 L. J. Q. B. 465; (1895) A. C. 471 ; 11 R. 232; 72 L. T. 841 ;
43 W. R. 561 ; 60 J. P. 20.)

An agreement dated 23rd December, 1892, was entered into
between " the owner " (the plaintiff), of the one part, and " the
hirer" (Mr. Brewster), of the other part, by which the owner
agreed to let a piano on hire to the hirer, and the hirer agreed
to pay the owner " a rent or hire instalment " at the date of the
agreement and on a given date of each succeeding month, to
keep the piano from injury, and not to remove it from his
custody without the owner's written consent, and if the hirer
failed to perform the agreement the owner might terminate the
hiring and retake possession, and the owner agreed that the
hirer might terminate the agreement by delivering up the
piano to him, but if the hirer paid thirty-six instalments in the
manner specified the piano was to become " the sole and
absolute property of the hirer," but until the full sum men-
tioned was paid the chattel was to " be and continue the sole
property of the owner."

On the 22nd of April, 1893, after only a few of the instalments
had been paid, Brewster improperly and without the consent of
the plaintiff pledged the piano with the defendants, who were
pawnbrokers, as security for an advance. The plaintiff, on
discovering this, demanded the piano from the defendants, and
on their refusing to deliver brought an action of trover. The
defence set up by the defendants was that they had received
the piano from Brewster in good faith and without notice of any
claim on the part of the plaintiff, and that Brewster having
" bought or agreed to buy " it from him they were protected by
sect. 9 of the Factors Act, 1889.

IIcbL whether " hire-purchase agreement is a contract



OFFER AND ACCEPTANCE. 33

to buy or an agreement to buy is a question of fact in each
case. In this case it was not a contract or an agreement
to buy, for, although on payment of all instalments the
piano was to become the property of Brewster, he might, at
any time, return it, and upon doing so would no longer be
liable to make any further payment beyond the monthly
sum then due. All Brewster had got was an option to
become the purchaser by payment of all the instalments, and
could not pass the property to the defendants, and the defen-
dants were therefore liable in trover.

Note. — The above case was distinguished from Lee v. Butler, 62
L. J. Q,. B. 591, on the ground that in that case the so-called
"hirer" was bound to purchase the goods while in Helby v.
Matthews he was not.



A Person cannot, by paying the Debt of another, make that other
his Debtor unless the Money is paid by the express or implied
Consent of that other Person.

STOKES v. LEWIS. [1785]
(1 Ter. Eep. 20; 2 Sm. 12.)

It had been the custom for the two parishes of St. Yedast's
and St. Michael-le- Quern to have one set of officers between
them, who were elected at a joint vestry. The overseers of
St. Vedast had paid the sexton who was last chosen, and they
brought this action, claiming they were entitled to be repaid
half the amount thus expended. It appeared that this sexton
had been chosen at a meeting summoned by the overseers of
St. Vedast, but at which the overseers of St. Michael, though
summoned, had not appeared, as they claimed a right to choose
a separate sexton for themselves, of which they had given notice
to the other parish.

Held, such an action must be grounded either on express
j. o



34 CONTRACT.

or implied consent, and in this case there was neither, for
the 'whole question as to the appointment of the sexton was
in dispute, and therefore the plaintiffs were not entitled to
succeed.



FORM.

There may be delivery of a Deed without its being actually
handed over.

XENOS AND ANOTHEE v. WICKHAM. [1867]

(36 L. J. C. P. 313 ; L. E. 2 H. L. 296 ; 16 L. T. 800 ;
16 W. E. 38.)

Lascaridi, the insurance broker of the plaintiffs, by their
direction, applied to the Victoria Insurance Company to insure
a vessel of the plaintiffs, the Leonidas, for a year. The agent
of the company initialed the slip for 1,000/. on certain terms.
The company debited Lascaridi with the amount of the premium,
and the plaintiffs paid Lascaridi that amount. The policy was
afterwards, in accordance with the terms agreed upon, filled up
by the company at their office in the absence of Lascaridi and
of the plaintiffs, and was signed, sealed and attested in the usual
manner ; but it was retained in their office according to the
practice of marine insurance companies until the assured or his
broker should send for it. When the time came for paying the
premium the company debited the amount to Lascaridi, and
sent him a debit note. The clerk of Lascaridi stated that no
premium was due. The company then sent the policy to
Lascaridi's clerk, who stated that it had been put forward in
error, and refpiested that it might be cancelled. Tnereupon a
memorandum of cancellation was indorsed <>n the policy by the
company. Lascaridi was charged with the stamp and nothing
else, and the policy was handed to his clerk that he might get a
return of the stamp duty. The plaintiffs had never authorised



FORM. 35

Lascaridi to cancel the policy, nor did they know that he had
done so. The ship afterwards being lost, the plaintiffs brought
an action against the defendant (representing the company) on
the policy.

Held, that, although retained in the defendants office,
under the above circumstances the deed toas full// perfected and
constituted a complete contract of insurance between the
parlies, and as the broker had no authority to cancel it, the
action tvas maintainable.

Note. — This case is sometimes given as the authority for the
statement that an offer under seal is irrevocable. But, to the writer,
it seems not to have that effect. The judgments of the House of
Lords are based upon the view that the execution of the policy was
an acceptance by the company of an offer made by the plaintiffs
through their agent rather than an offer made by the company. In
other words, when the company had executed the policy, "they
had effected, through their agent, a complete binding contract."
The Court regarded the company as holding the policy on behalf of
the plaintiffs, in accordance with the proved custom of marine
insurance companies to retain the policy until called for by the
insured or his broker. There is not, so far as the writer is able to
judge, one word in the judgments which suggests that the policy
was to be regarded as an offer irrevocable because under seal.
The question in the case was whether there could be delivery of the
policy without the assured or their agent taking corporal possession
of it, and this was answered in the affirmative.



A Corporation is only bound by Contracts under Seal, except in
matters of trifling importance or where it has had the
benefit of the Contract.

LAWFOED v. BILLEEICAY RUBAL COUNCIL. [1903]

(72 L. J. K. B. 554 ; (1903) 1 K. B. 772 ; 88 L. T. 317 ; 51 W. E. 630 ;

67 J. P. 245 ; 1 L. G. R. 535— C. A.

The Billericay Rural Council, under the powers given by
sect. 56, sub-sect. 1, of the Local Government Act, 1894,

d2



36 CONTRACT.

referred an application for the execution of sewerage works
within a portion of their district to a committee, and the com-
mittee requested Lawford, who was an engineer, to report whai
works were necessary, aud to give an estimate of the cost. On
Lawford 's report and estimate, the committee recommended the
Council to carry out certain works. The Council adopted the
recommendation and confirmed the minutes of the committee,
and Lawford performed tli< j work, hut was refused payment
on the ground that the contract was not under seal.

Held ^ that a corporation is liable on a contract of which
it has had the benefit, although the contract is not under
seal. Where, however, no part of the contract has been
performed, a corporation is not liable if the contract is not
tinder seal except where the transaction is trivial and of
small importance, and where it is of constant occurrence,
and it is a matter of necessity, from a business point of
view, that the corporation should be bound without an
engagement under seal.



All Contracts of a value of more than 50/. with an Urban
Authority must be under Seal, or otherwise they will not be
bound even though they have had the benefit of the Contract.

YOUNG v. MAYOE OF LEAMINGTON. [1883]

(52 L. J. Q. B. 713; 8 App. Cas. 517 ; 49 L. T. 1 ; 31 W. E. 925 ;
47 J. P. 660 — H. L. (E.).)

The urban authority of Leamington Spa authorised their
engineer to complete certain works The engineer, who had
been properly appointed under the seal of the corporation,
thereupon entered into a written contract with the plaintiff to
do the work. The plaintiif completed the works, and the cor-
poration accordingly took possession, but refused to pay for
them on the ground that the contract was for more than oO/.,



FORM. 37

and "was therefore required by the Public Health Act, 1875
(38 & -39 Vict. c. 55), s. 174, to be under seal.

Held, although the contract had been made by an agent
appointed under their common seal, and the urban authority
laid had the benefit of the contract, get the defendants were
not liable on the ground that the contract iv as not under seal
under the Public Health Act, 1875 (38 6r 39 Vict. c. 55),
s. 174, which requires that all contracts made bg an urban
authority, whereof the value exceeds 501., shall be in writing
and sealed under the common seal of such authority.



A Deed may be Varied or Rescinded by a subsequent
Parol Agreement.

NASH v. AEMSTEONG. [1861]

(30 L. J. C. P. 286 ; 10 C. B. (N. S.) 259 ; 7 Jur. (N. S.) 1060 ;
9 W. E. 782.)

By a deed one Beatson let to the defendant certain rooms, at
a rent to be ascertaiued by two valuers. The two valuers were
duly appointed, but through no default of Beatson or the defen-
dant the valuation was never made. Beatson died and the
plaintiff was appointed admiuistrator. It was mutually agreed
between the plaintiff and the defendant that the valuers should
not be required to make any valuation, but that the defendant
should pay the plaintiff the sum of 70/. for use and occupation.
The plaintiff, however, repented of his bargain and sued on the
deed, contending that a deed could not be varied by a parol
agreement.

Held, the plaintiff must fail, lor an agreement not to call
for the performance of a (bed, and to substitute certain other
terms for some of the matters provided tor bg the deed, is
a g<»>d consideration for a promise to perform such substi-
tuted service even although (he deed be not thereby released.



38 CONTRACT,



GOSS v. NUGENT. (Infra.)

Where a contract is required to be in writing by the Statute
of Frauds, all its terms must appear in the note or memorandum.
Any variation of the terms must be in writing. A verbal
rescission will, however, suffice.



A Contract for One Year's Service to commence Day after Agree-
ment is not a Contract " that is not to be performed within
the space of One Year from the making thereof" within the
meaning of sect. 4 of Statute of Frauds.

SMITH v. (iOLD COAST AND ASHANTI EXPLOBEES,
LIMITED. [1903]

(72 L. J. K. B. 235 ; (1903) 1 K. B. 538 ; 88 L. T. 442 ;
51 W. R. 373— C. A.)



On the bth December, 1901, the plaintiff entered into a verbal
agreement with the defendants to act as their solicitor on the
Gold Coast for one year from the 7th December, 1901.



Held, that where a contract is made for a year from the
very next day the contract is one to be performed within a
year from the making thereof as the law takes no notice of
any /><trt of a day, and the contract would terminate on
the 6th December, 1902, just one year after the agreement.
If however, the term is to commence a day later than the
very next day after that on whir// the contract is made,
then the contract is an agreement " not to be performed
within the space of one year from the making thereof"
within the meaning of sect. 4 of the Statute of Frauds.



FORM. 39



A Contract which from its Terms might or might not be per-
formed within the Year is not one " that is not to be
performed within the space of One Year from the making
thereof " within the meaning of sect. 4 of the Statute of
Frauds.

McGEEGOE v. McGEEGOE. [1888]

(57 L. J. Q. B. 591 ; 21 Q. B. D. 424 ; 37 W. E. 45 ;

52 J. P. 772— C. A.)

The wife having summoned her husband, agreed to withdraw
the summons on the understanding that they should separate,
and that the husband should make her a weekly allowance
for maintenance. The husband got into arrears with the
allowance, and on an action being brought contended that such
an agreement, not having been reduced into writing, was void as
being a contract "that is not to be performed within the space of
one year from the making thereof " within the 4th section of the
Statute of Frauds.

Held, the agreement tvas one that might or might not be
■performed within the year, and ivas not an agreement which
appeared from its terms to be incapable of performance
within the year, and did not therefore come within sect. 4
of the Statute of Frauds.

This decision followed the principle laid down in Peter v. Compton
(1694), Skin. 353, which decided that a contract to pay a sum of
money on the marriage of Peter did not come within the statute,
although the marriage did not take place for two years, for Peter
might have got married the very next day.



40 CONTRACT.

To constitute the Contract of Guarantee the Principal must be and
continue Primarily Liable.

BIEKMYE v. DARNELL. [1704]

(6 Mod. 248 ; 2 Ld. Eaym. 1085.)

J. S. was desirous of borrowing a horse from the plaintiff,
who, however, mistrusting him, at first refused to let him have
it. The defendant, however, saw the plaintiff and undertook
that J. S. should re- deliver the horse safely if he would lend it
to him. The plaintiff accordingly lent the horse to J. S., who
never returned it. The plaintiff brought this action against
Darnell as surety.

Held, this was a collateral promise to answer for the act
and make good the default of another within sect. 4 of the
SI (ttute of Frauds, and void by not being in tvnting. So
also if two come to a shop and one of them contract for
goods, and the seller does not care to trust him, whereupon
the other sags, " Let him have them, and I will undertake
he shall pay you,'"' that is an undertaking for the act and
default of another, and within the statute. But if the
promise be, " / will see you paid,'' 1 or, " 1 tvill be your
paymaster" it is otherwise.



To constitute the Contract of Guarantee the Principal Debtor must
be and remain Liable ; if he does not the Contract is one of
Indemnity, and does not come within Sect. 4 of the Statute
of Frauds.

MOUNTSTEPHEN v. LAKEMAN. [1871]
(43 L. J. Q. 13. 188; L. R. 7 ILL. 17; 30 L T. 437; 22 W. K. 017.)

The plaintiff had been employed by a local board of health to
construct a main sewer, between which and the houses along the
line of street connections had yet to be made. The owners of



FORM. 41

the houses were, under sect. 69 of 11 & 12 Vict. c. 63, liable to
make these connections after the expiration of a twenty-one
clays' notice from the board calling upon them to do so. The
owners of the houses did not seem disposed to make the
connections, and the notices were served upon them. The
plaintiff had, by direction of the board, brought on the ground
the necessary pipes. The plaintiff was asked by the defendant,
who was the chairman of the local board of health, if he had
any objection to making the connections. The plaintiff in reply
said, " I have none, if you or the board will order the work, or
become responsible for the payment." The defendant in reply
said, " Go and do the w T ork, and I will see you paid."
Accordingly the plaintiff did the work, and applied to the
board for payment. The board disclaiming all liability, the
plaintiff sued the defendant.

Held, that the defendant was personally liable, and that
whether or not the parties or either of them intended only a
contract of suretyship, there was a personal contract by the
chairman on which he was primarily liable, and not merely
a promise to ansiver for the debt, default or miscarriage of
another, such as would require a memorandum thereof in
tvriting under sect. 4 of the Statute of Frauds.

And by Lord Selborne, there can be no suretyship unless
there be a principal debtor constituted by matters ex post
facto, if not existing at the time of the transaction.



42 CONTRACT.



To satisfy the Statute of Frauds, the Memorandum or Note in
Writing must contain all the Terms of the Contract, except
in Cases of Guarantee under 19 & 20 Vict. c. 97, s. 3,
whereby Parol Evidence of the Consideration for a Guarantee
may be given.

HOLMES v. MITCHELL. [1859]
(28 L. J. G. P. 301 ; 7 C. B. (N. S.) 361 ; 6 Jur. (N. S.) 73.

The defendant addressed the following letter to the plaintiff
relating to a proposed mortgage of certain leasehold property : —
" I saw Mr. Lyne this day, and I told him he had better call
on you, as he seemed very anxious to have the mortgage
completed, and I thought he offered very fair ; but do as you
please about it. I will take any responsibility myself respecting
it, should there be any." After the letter had been received the
plaintiff had an interview with Mr. Lyne, and, on the faith of
such letter, lent 400/. to Spooner and Cubitt on the said lease-
hold security.

Held, that the letter was not a sufficient memorandum or
note in writing within sect. 4 of the Statute of Frauds, as
the tvhole promise could not be made out without reference to
parol evidence.

The recent statute 19 <y 20 Vict. c. 97, s. 3, it is true,
abrogates the rule laid down in Wain v. Walters (5 East,
10), and enables a party to give parol evidence of the con-
sideration for a guarantee. But a consideration expressed
in writing formerly discharged two offices: it sustained lite
promise, and might also explain it. Now, however, parol
evidence, though it mag supply the consideration, cannot go
further and explain the promise. We, therefore, think the
ruling of the learned judge al the trial was correct.



FORM. 43



A Letter Signed by the Party to be Charged acknowledging the
Contract, but stating an intention to Repudiate it, may be a
sufficient " Memorandum or Note in Writing " to satisfy the
Statute of Frauds.

BUXTON v. BUST. [1872]

(41 L. J. Ex. 173 ; L. E. 7 Ex. 279 ; 27 L. T. 210 ;
20 W. E. 1014— Ex. Ch.)

The plaintiff, on the 11th January, 1871, verbally agreed
with the defendant to buy his wool at a price exceeding 10/.,
and wrote the terms in a bought note, which the defendant took
away. One of those terms was, " the whole to be cleared in
about twenty- one days." On the 8th February the defendant
wrote and signed a letter to the plaintiff, in which he complained
of delay of plaintiff in not having taken away the wool, although
twenty-eight days had elapsed, and finishing up by saying : —
" I shall therefore consider the deal off, as you have not com-
pleted your part of the contract." On the next day the plaintiff
asked the defendant for " a copy of the contract," and on the
same day the defendant wrote and signed a letter to the
plaintiff : — " I beg to enclose a copy of your letter of the 11th of
January, 1871." On the same paper, and underneath, there
was, in the defendant's writing, a copy of the bought note of the
11th January. The plaintiff having sued the defendant for not
delivering the wool,

Held j that there was a sufficient memorandum in
writing to charge the defendant within the meaning of the
Statute of Frauds, 29 Car. 2, c. 3, s. 17.

Note. — Sect. 17 of Statute of Frauds was repealed and sub-
stantially re-enacted by the Sale of Goods Act, s. 4 (1).



1 I CONTRACT.



Memorandum or Note in Writing must be made before Action

brought.

LUCAS v. DIXON. [1889
(08 L. J. Q. B. 161 ; 22 Q. B. D. 357 ; 37 W. R. 370— C. A.

The plaintiff bronglit an action to recover the price of goods
sold by the plaintiff to the defendant, the value of which was
more than 10/.

The contract was a verbal one, but the plaintiff sought to
make the defendant liable on an affidavit which he had sworn
in answer to an application for judgment under Ord. XIV.
The affidavit set forth the necessary particulars of the contract.

Held, the affidavit was not a sufficient compliance tvith
the Statute of Frauds, as tin- memorandum or note in
writing must be in existence before the action is brought.



Acceptance of Offer, subject to Execution of Formal Contract,

creates a Binding Contract, provided the Terms are clearly

embodied in the Offer.
Parties to a Contract must be so described as to be identified with

ease. The terms "Owner'" or "Proprietor" sufficiently

describe a Vendor.

ROSSITEB v. MILLER. [1878]

(48 L. J. Ch. 10 ; 3 App. Cas. 1124 ; 39 L. T. 17:; ;
26 W. R. 865.)

The defendant, desirous of purchasing certain land, entered
into negotiations witli 0. White, who was acting as the agent of
the vendors. Defendant made White a verbal offer, whereupon
White wrote saying that " the proprietors " had accepted his
offer " subject to the conditions and stipulations printed on the
plan." The defendanl wrote a Letter referring to the offer and



FORM. 45

introducing a stipulation which was agreed to in another letter by
White. In accordance with one of the conditions of sale a
formal agreement was prepared by the solicitors and forwarded
to the defendant, who refused to sign it or complete the purchase.
The plaintiff brought this action for specific performance of the
agreement.

Held, that the correspondence between the defendant and
White, the agent of the Vendor*, amounted to a complete
contract within the Statute of Frauds, and that under the
circumstances the execution of a formal deed was not
necessary, and that the defendant was bound to specif call//
perform the contract.

Held, also, that the terms "owner" or "proprietor" of
the property sold sufficiently described the vendor ; for Id
certum est quod, eertuni reddi potest.



A Recital in a Will of a Contract by the person to be charged
therewith may be a sufficient Memorandum or Note in
Writing- to satisfy sect. 4 of the Statute of Frauds.

IN EE HOYLE— HOYLE v. HOYLE. [1893]

(62 L. J. Ch. 182 ; (1893) 1 Oh. 84 ; 2 E. 145 ; 67 L. T. 674 ;

41 W. B, 81— C. A.)

A member of a firm of solicitors having verbally agreed to
guarantee to the firm the amount of his son's indebtedness to
the firm, made his will, whereby he recited that he had
guaranteed the firm against loss in respect of his son's
indebtedness, and directed that the amount found due from the
son should be taken into account in determining the son's share
under the will. After the testator's death the surviving members
of the firm claimed the benefit of such guarantee or indemnity.

Held, that the promise took effect as a promise of
indemnity to the two surviving partners, and ivas not a



46 CONTRACT.

contract of guarantee under sect. 4 of the Statute of
Frauds, but that, assuming the promise to be within
sect. 4 of the Statute of Frauds, the recital was a sufficient
note or memorandum thereof



A Note in Writing under the Sale of Goods Act is not rendered

invalid by omission of price where none fixed. In such

case a reasonable price will be assumed. If a price was
fixed but omitted, the Memorandum is Bad.

HOADLEY v. MacLAINE. [1834]
(3 L. J. C. P. 162 ; 4 M. & Scott, 340 ; 10 Bing. 482.)

The defendant gave the plaintiff a written order for a
carriage to be completed at a future time ; no reference or
allusion was made to any specific price. Subsequently to the
completion of the work and approval of it by the defendant,
the defendant wrote a letter to the plaintiff desiring the carriage
to be sent home, with the bill. In an action against him for
non-acceptance,

Held, that the letter, coupled with the order, constituted
a sufficient note or memorandum in writing of the bargain
under sect. 17 of the Statute of Frauds as extended by
9 Geo. 4, c. 14, s. 7, though such letter and order zvere
silent as to price, and that plain tiff was entitled to recover
on a quantum valebat. Where, however, a price has been



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