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fixed but omitted from the memorandum, no evidence can be
given of it.

Note. — This principle now applies to contracts under the Sale
of Goods Act, but not to contracts under sect. 4 of the Statute of
Frauds.



FORM. 47



Parol Evidence is admissible to connect two or more Separate
Documents which are not connected together by Internal
Evidence, provided they sufficiently refer to one another.

LONG v. MILLAR. [1879]
(48 L.J. C. P. 596; 4C.P.D.450; 41L.T. 306; 27 W. E. 720— 0. A.)

The plaintiff having agreed to purchase certain land, signed
the following memorandum : — " I agree to purchase the three
plots of land in Richford Street, Hammersmith, for 310/.,
and to pay as deposit and in part payment of the purchase-
money 31/."

The defendant signed and gave to the plaintiff the following
receipt: — "Received of Gr. Long 31/. as a deposit on the
purchase of three plots of land at Hammersmith."

Held, that the two documents sufficiently referred to one
another to constitute a memorandum of the contract within
sect. 4 of the Statute of Frauds, and that parol evidence
was admissible to connect the two documents.

Oliver v. Hunting and Pearce v. Gardner, vide infra, pp. 47,
49, extend this principle, and admit parol evidence to connect
documents which do not refer to one another.



Where a Written Contract is contained in Separate Documents,
which are not Connected by Internal Evidence, Parol
Evidence is admissible to supply the Connection.

OLIVER v. HUNTING. [1890]
(59 L. J. Ch. 255 ; 44 Ch. D. 205 ; 62 L. T. 108 ; 38 W. E. 618.)

The plaintiff claimed specific performance of a contract to sell
to her certain land at Fletton, in the coimty of Huntingdon.



48 CONTRACT.

On the 7th of September, ] 888, the following memorandum
of that date was signed : —

" Memorandum of terms of agreement between Mr. Hunting
and Mrs. Oliver.
" Price 2,375/.
" Vendor to make good title.
" Purchaser to pay for her own conveyance.
" Fixtures included in purchase.
" Purchase to be settled as soon as possible.
" Possession on the 25th of September.

" Time allowed up to the 1st of January next to clear bricks.
" Deposit to be paid on the 1 Oth.
" Stamford, September 7th, 1888.

" Joseph Hunting.

" September 7th, 1888.

" E. Oliver."

On the 12th of September, 1888, the defendant signed and
sent to the plaintiff the following letter : —

" Peterborough, September 12th, 1888.
" Mrs. Oliver,

" Dear Madam, — I beg to acknowledge receipt of cheque
value 375/. on account of the purchase-money for the Fletton
Manor House Estate, for which I thank you.

" Yours truly,

" Joseph Hunting."

The defendant resisted specific performance, on the ground
that there was no sufficient memorandum in writing to satisfy
the Statute of Frauds.

All the terms necessary to constitute a contract for the
purchase of land, except a description of the land itself, being
contained in the memorandum of the 7th September, the
plaintiff claimed he was entitled to connect the two documents
together, and that being done there was a sufficient contract in
writing.

Held) per Kekewich y J., that parol evidence ivas admix-



FORM. 49

sible to connect the two documents, and on such evidence
specific performance was decreed.

Where a memorandum, alleged to constitute a contract in
writing, is contained in two or more separate documents,
which are not connected together by internal evidence, parol
evidence is admissible to supply the connection.



A Letter signed by Person to be charged and sent to the other
Party, but not containing his Name, is not sufficient to
constitute a Memorandum or Note in Writing under Sect. 4
of the Statute of Frauds, but Parol Evidence may be given
to connect the Envelope in which the Letter was sent and on
which the Name of the other Party appears with the letter.

PEAECE v. GARDNER. [1897]
(66 L. J. Q. B. 457 ; (1897) 1 Q. B. 688 ; 76 L. T. 441 ; 45 W. R.

518— C. A.)

The defendant wrote and signed a letter to the plaintiff, in
which, however, the name of the plaintiff did not appear. The
letter contained all the terms of the contract for the sale of
certain gravel which was in situ on the land of the plaintiff.

Held, evidence may be given to connect the letter with the
envelope in which it was sent, and the two then constitute
one document, and as all the terms appear therein, the
Statute of Frauds is satisfied.



Non-compliance with Statute of Frauds does not void Contract,
but renders it Not Provable.

LEROUX v. BROWN. [1852]
(22 L. J. C. P. 1 ; 12 C. B. 801 ; 16 Jur. 1021 ; 1 W. R, 22.)

The defendant entered into an agreement with the plaintiff at
Calais to employ him for one year from a future day at J 00/. a



50 CONTRACT.

year. Such a contract, though not in writing, was valid in
France, and could be enforced by the law of that country.

Held, an action cannot be maintained in this country
upon a parol agreement which is not to be performed within
a gear, although mark in France, and valid and enforceable
there.

Sect. 4 of the Statute of Frauds does not sag thai unless
the requisites required bg that Act are complied ivith the
contract shall be void, but only that u no action shall be
brought upon it" The legislature contemplated a contract
good before any writing, but not enforceable without the
writing as evidence of it.



Contracts which should have been in Writing under the Statute
of Frauds will not be Enforced on the ground of Part Per-
formance, except where they relate to an Interest in Land.

BEITAIN v. EOSSITEE. [1882]

(48 L. J. Ex. 362; 11 Q. B. D. 123; 40 L. T. 240;
27 W. E. 482— C. A.)

On the 21st April, 1877, the plaintiff was engaged by the
defendants to act as a clerk for one year from the 23rd April.
The contract was reduced into writing, but never signed. After
serving for seven months, the defendant was discharged, after
having been given a month's notice aud all his wages having
been duly paid. The plaintiff thereupon brought an action for
wrongful dismissal. It was clearly a contract not to be performed
within a year, and there was no sufficient memorandum in
writing to satisfy the Statute of Frauds, as there was no
signature of the party to be charged. The plaintiff therefore



FORM. 51

contended there had been a sufficient part performance by him
to take the case out of the statute.

Held, the equitable doctrine of part performance only
applies where the contract relates to an interest in land, and
does not apply to contracts of service, and therefore the
action failed.



Part Performance of Contracts relating to an Interest in Land
must be solely referable to the Contract to take the case out
of the Statute of Frauds.

MADDI80N v. ALDERSON. [1883]

(52 L. J. Q. B. 737 ; 8 App. Cas. 473 ; 49 L. T. 303 ; 31 W. R. 820 ;

47 J. P. 821.)

The plaintiff was induced to serve Alderson, as his house-
keeper, for many years, and to give up other prospects of
advancement in life, by a verbal promise made by him to leave
her a farm for her life. Alderson signed a will, leaving the
farm in accordance with his promise ; but the will was not duly
witnessed.

The plaintiff accordingly brought this action against the
executors of Alderson, claiming that as the agreement related
to an interest in land, and there had been a part performance
on her part, she was entitled to the farm referred to in the
unwitnessed will.

Held, that part performance must be some act that
plans the parties unequivocally in a position different from
that which, according to their legal rights, they would he in
if there ivas no contract, and that an act which, though in
I ruth done in pursuance of a contract, admits of explanation

k 2



52 CONTRACT.

tvithout supposing a contract, is not, in general, an act of
part performance taking the case out of the statute. And
as the plaintiff merely continued in Alderson's service,
though tvithout any actual payment of wages, this was not
an act unequivocal/// rejerable to a contract so as to exclude
the operation of the Statute of Frauds.

Note. — This was not an act unequivocally referable to the
contract, as the plaintiff might have continued iu Aide: son's
service from motives of affection, &c.



Where delivery of Chattels is contemplated, a Sale is constituted
irrespective of Value of Labour or Materials, and a count
for Work, Labour and Materials is not sustainable.

LEE v. GKIFFLN. [1861]

(30 L. J. Q. B. 252 ; 1 B. & S. 272 ; 7 Jur. (N. S.) 1302 ;
4 L. T. 546 ; 9 W. E. 702.)

The plaintiff, a dentist, supplied two sets of teeth to Frances
Penson, who died before they could be fitted to her mouth.
There being no memorandum or note in writing to satisfy
sect. 17 of the Statute of Frauds, the plaintiff in an action
against the executors contended that it was not a contract for
the sale of goods but a contract to do certain work and labour,
and that the materials were merely ancillary to the work and
labour.

Held, the contract tvas one for the sale of goods and not
for work and labour, and a count for work, labour and
materials was not maintainable.

Sect. 4 of Sale of Goods Act overrules and re-enacts sect. 1 7 of
the Statute of Frauds.



FORM. 53



The comparison of an Article purchased with a Sample may
constitute a sufficient " Receipt and Acceptance " to satisfy
the Statute of Frauds (29 Car. 2, c. 3), s. 17, now re-enacted
by Sale of Goods Act, 1893, c. 71, s. 4.

PAGE v. MORGAN. [1885]

(54 L. J. Q. B. 434 ; 15 Q. B. D. 228 ; 53 L. T. 126 ;

33 W. R. 793— C A.)

The plaintiff sold to the defendant by sample certain wheat,
which was put into a barge and sent to the defendant's mill,
where it arrived in the evening, and on the following morning
was, by order of the defendant's foreman, taken into the mill
and there examined with the sample. The defendant then
rejected it as not being equal to sample. The wheat was
put back into the barge and remained there for some weeks,
when it was sold by order of the Court. It was not the custom
at the defendant's mill to examine wheat whilst it was in the
barges. In an action by the plaintiff to recover damages from
the defendant for not accepting the wheat, the jury found
that it was equal to sample and that the plaintiff had acted
reasonably.

Held, the legislature by " acceptance and receipt'''' meant
such a dealing ivith the goods as would amount to a recogni-
tion of the contract, and that there v) as evidence for the jury
of acceptance of the wheat sufficient to satisfy sect. 17 of
the Statute of Frauds [now replaced by the Sale of Goods
Act, 1893, s. 4). Such an acceptance is not such as to
preclude the purchaser from saying the goods are not equal
to sample, but the jury having found the wheat was, in fact,
up to sample, the plaintiff -was entitled to damages for breach
of contract.



54 CONTRACT.



Special Contracts by Carriers must be in Writing and Signed by
Consignor, and be " Just and Reasonable."

PEEK v. THE NORTH STAFFORDSHIRE RAILWAY CO.

[1863]

(32 L. J. Q. B. 241 ; E. B. & E. i)o8, l J86 ; 10 H. L. < '. 473 ; '.) Jur.
914; 8 L. T. 768; 11 W. R. 1023.)

The plaintiff, who desired to send certain marble by rail, had
received printed notices from the defendants stating, among
other conditions, that the company would not be responsible
for the loss or injury to any marble unless declared and insured
accordingly. Some correspondence ensued as to the rates of
insurance for marbles, and the agent was informed verbally
what the defendants' charge for the carriage of the marble
would be at the insured rate and what at the uninsured rate.
The plaintiff subsequently instructed the company to forward
the marble "not insured." The marble was forwarded as
directed, and when delivered was found to be damaged by
exposure or rain. In an action for this damage by the plaintiff
against the defendants as common carriers, the company
pleaded, under the Railway and Canal Traffic Act, 1851, s. 7,
that the marble was delivered to be carried by them subject to
a certain special contract, whereby it was agreed that they
should not be responsible for the loss or injury to the marble
unless declared and insured according to their value, and that
the same was not, nor was any part thereof, so declared or
insured, and that the marble was delivered and received on such
condition, and that such a condition was a just and reasonable
one.

Held, that no general notice given by a railway
company is valid in law for the purpose of limiting the
common law liability of the company as carriers; but
■such common law liability mag be limited by conditions
embodied in a special emit rue I in u: riling, signed t>g the



CONSIDERATION. 55

owner or person delivering the goods, provided such con-
ditions are just and reasonable ; that the conditions
sought to be imposed in this case were neither just nor
reasonable, as their effect ivould be to exempt the company
from responsibility for injury, however caused, whether by
their own negligence or even by fraud or dishonesty on the
part of their servants, and that the plaintiffs were therefore
entitled to damages.



CONSIDERATION.



Consideration is Necessary to the Validity of every Simple
Contract. The Court will not consider the Adequacy if
Consideration actually exists.

BAINBRIDQE v. FIEMSTONE. [1838]
(8 Ad. & E. 743 ; 1P.&D.2; 1W.W.&H. 600.)

Plaintiff, at defendant's request, consented to allow him to
weigh two of the plaintiff's boilers. The defendant promised to
give them up, after weighing, in as perfect condition as they
were in at the time of the consent. The defendant failed to
give up the boilers in as good condition as they were in before,
and, on being sued, pleaded there was no consideration for the
agreement.

Held, the plaintiff"' 's parting with the possession of the
boilers for a short time was a good consideration. The
Court will not look into the adequacy of the consideration.



56 CONTRACT.



Consideration must move from Promisee. A valuable Considera-
tion may consist either in some right, interest, profit, or
benefit accruing to the one party, or some forbearance,
detriment, loss, or responsibility given, suffered, or under-
taken by the other.

FLEMING v. BANK OF NEW ZEALAND. [1900]
(69 L. J. P. C. 120 ; (1900) A. C. 577 ; 83 L. T. 1— P. C.)

The plaintiff instructed an agent to pay money into his bank
to meet certain cheques. The agent, with the bank's consent,
deposited store warrants, in place of money, as security. This
was done without the customer's authority, but was subsequently
approved by him. The cheques were, in the first instance,
dishonoured, but were paid on the day following their first
presentation. The plaintiff sued the defendant for dishonouring
the cheques. The case was heard, on appeal from the Appeal
Court of New Zealand, in the Privy Council. The Privy
Council, in giving judgment, accepted the definition of con-
sideration as laid down in Carrie v. Misa, L. R. 10 Ex. D. 153,
that " A valuable consideration in the sense of the law may
consist either in some right, interest, profit, or benefit accruing
to the one party, or some forbearance, detriment, loss, or
responsibility given, suffered or undertaken by the other."

Held, there was a sufficient consideration moving from
the customer to the bank entitling him to substantial
damages.



CONSIDERATION. 57



No Stranger to the Consideration can Sue upon the Contract
although made for his Benefit.

TWEDDLE v. ATKINSON. [1861]

(.30 L. J. Q. B. 265 ; 1 B. & S. 393 ; 8 Jur. (N. S.) 332 ; 4 L. T.
468; 9 W. E. 781.)

After a marriage between the plaintiff and the daughter of
William Gruy, the two fathers-in-law, in order to provide a
marriage portion, agreed respectively to pay two sums of money
to the plaintiff, and they also agreed that the plaintiff should
have full power to sue for the said sums of money. The
plaintiff was not a party to the agreement. After the deaths of
the two fathers-in-law the plaintiff brought an action upon the
agreement, against the executor of William Guy, his wife's
father, to recover the sum of money which William Gruy had
agreed to pay him.

Held, that he could not recover, as he was not a part// to
the agreement, and no consideration ran from him.



Past Consideration is no Consideration in Law even though based
on a Moral Obligation. A Promise to a Debtor to Pay the
Debt he Owes to Another need not be in Writing under
Sect. 4 of the Statute of Frauds.

EASTWOOD v. KEN YON.
(9 L. J. Q. B. 409; 11 A. & E. 438; 3 P. & D. 276; 4 Jur. 1081.)

The plaintiff, who was the guardian of Sarah Sutcliffe, spent
140/., partly on the girl's education and partly to keep her
property in repair, and, as he had not sufficient for that purpose,
he borrowed the money from Blackburn, to whom he gave a
promissory note. Sarah Sutcliffe, after coming of age, married
the defendant, who promised the plaintiff that he would pay the



58 CONTRACT.

promissory note, but never did so, and the plaintiff brought
this action against the defendant on the strength of his promise.

Held, the defendant was not liable, for there was no
consideration for the promise. A past consideration, though
based on a moral obligation, being no legal consideration
unless moved by a previous request, express or implied.

Held, also, that sect. 4 of the Statute of Frauds, which
requires promises u to answer for the debt, default or
miscarriage of another person " to be in writing, only
a j> plies to promises made to the person to whom another is
answerable, and does not apply, as in this case, where the
promise is made to the debtor himself.

Lampleigh v. Brathwait (1616, Hob. 105), which is often cited
as the leading case, does not illustrate this principle so well as the
above case.



Forbearance to sue is a good Consideration unless the Plaintiff
has no Cause of Action and knows he has none.

WADE v. SIMEON. [1846]
(15 L. J. C. P. 114; 2 C. B. 548; 3 D. & L. 587; 10 Jur. 412.)

An action having been brought by the plaintiff, the defendant,
in consideration of the plaintiff dropping the action, promised
to pay the amount claimed, with costs. The defendant not
having paid the costs, the plaintiff brought this action. The
defendant having pleaded that the plaintiff had never any good
cause of action in the action compromised, as he well knew, the
plaintiff demurred, and in doing so admitted this to be true.

Held, forbearance to sue is a good consideration zvhere
/he plaintiff has a bona fide cause of action, but mere
forbearance to prosecute a suit in which the plaintiff has no
cause of action, and knows he has none, and in which he
must eventually fail, is no consideration.



CONSIDERATION. 59

A Promise to perform an existing Contract is no Consideration, but
if something arises which makes the Performance of the
Contract more dangerous or laborious, a fresh Consideration
may be thereby created.

HABTLEY v. PONSONBY. [1857]

(26 L. J. Q. B. 322 ; 7 El. & Bl. 872 ; 3 Jur. (N. 8.) 746 ;
5 W. B, 659.)

A ship, being on a voyage from Liverpool to Port Phillip, in
Australia, and back, when in port at Port Phillip became so
short-handed that it was dangerous to life to proceed only with
the reduced crew. The captain, being unable to procure
additional hands, voluntarily promised the remaining seamen,
who were under articles for the whole voyage, an additional
sum if they would assist in taking the ship to her next port.
On the captain being sued on his promise, it was

Held, that the seamen ivere not bound to proceed on the
voyage, as it involved additional labour and risk of life,
and that the promise was therefore binding on the captain.



Payment of a Smaller Sum in satisfaction of a Larger is not a
good discharge of a Debt unless it creates some Benefit to
the Creditor.

GODDARD v. O'BEIEN. [1882]
(9 Q. B. D. 37 ; 46 L. T. 306 ; 30 W. E. 549.)

The defendant being indebted to the plaintiff in 125/. 7s. 9d.
for goods sold and delivered, gave the plaintiff a cheque for
100/. payable on demand, which the plaintiff accepted in satis-
faction of the debt. The plaintiff, becoming dissatisfied with
this amount, sued the defendant for the balance.

Held, that although the payment of 1001. in cash would
not have been a good accord and ■satisfaction, get there



60 CONTRACT.

having been a payment to and acceptance by the plaintiff of
a cheque, there was a good accord and satisfaction by reason
of the cheque being a negotiable security ; for, if there is any
bene///, or even any legal possibility of benefit, to the creditor
thrown in, that additional weight will turn the scale and
render the consideration sufficient to support the agreement.

N.B. — This is an instance of the whittling down of the principle
laid down in Cumber and Wane, 1 Strange, 126, and Shirley's L. I '.
402, that payment of a smaller sum in satisfaction of a larger is no
discharge of a debt. The exceptions to this rule are when : —

(1) A negotiable instrument is given as in this case.

(2) Something different is given.

(3) A receipt under seal is given.

(4) The amount is disputed.

(5) A composition with creditors is entered iuto— the consideration

being the forbearance of the other creditors.

(6) Payment is made earlier than obligatory.



The Consideration for a Composition is the Mutual Agreement by
the Parties to it to forbear to enforce their Rights against
the Debtor on his promising to make over a part of his
Income to them.

GOOD v. CHEESMAN. [18.31]
(9 L. J. (0. S.) K. B. 23 4 ; 2 B. & Ad. 328 ; 4 Car. & P. 513.)

The defendant, being in financial difficulties, called the plaintiff
and three other creditors together, and the four creditors signed
an agreement which stated that the defendant being iudebted to
them and being unable to make an immediate payment, they had
agreed to accept payment of the debt by his agreeing and
covenanting to pay to a nominee of theirs one-third of his annual
income and executing a warrant of attorney as a collateral
security until payment. The defendant was present when this
paper was signed and verbally agreed to its terms. Xo trustee



CONSIDERATION. 61

was ever nominated or any covenant entered into or any warrant
of attorney executed as mentioned in the agreement. Bills of
exchange which became due before the agreement was entered
into not having been paid, this action was commenced.

Held, that a new agreement had been substituted for the
original contract ivith the debtor ; the consideration to each
creditor being the engagement of the others not to press their
individual claims against the debtor, so that none of them
could sue upon the original demand unless the debtor laid
failed to perform his part of the agreement.

That no trustee was ever nominated or ang covenant
entered into or an// warrant of attorney executed, having been
due to the default of the plaintiff , the defendant was not liable
upon the bills of exchange.



A Gratuitous Bailee is liable for Gross Negligence, but not for
Nonfeasance.

COGGS v. BERNARD. [1703]
(3 Lord Raymond, 163 ; 1 Sin. L. C. 167.)

The plaintiff desiring to transfer several hogsheads from one
cellar to another, accepted the services of the defendant, who
undertook to remove them safely and securely, but was to get
nothing for his trouble. The defendant, in removing the casks,
was guilty of such negligence that one of them was stove in and
much valuable brandy was lost,

Held, that although the breach of an undertaking ivhich
was voluntary is not a good ground for an action, yet where
a gratuitous bailee acts ivith gross negligence in the per-
formance of his undertaking , he is liable for the damage
(■//used thereby. The defend/tit f was therefore liable.



62 CONTRACT.

Even a Deed is void if the Consideration therefor is illegal or

immoral.

COLLINS v. BLANTERN. [1767]
(2 Wils. 341 ; 1 8m. L. 0. 355.)

One Rudge was prosecuting five men for wilful and corrupt
perjury. The prisoners, who were about to take their trial,
pleaded not guilty. Whereupon the prosecutor, the prisoners
and some of their friends put their heads together and the
plaintiff Collins promised to pay Rudge 300/. to abstain from
giving evidence against the prisoners on condition that Blantern
and his friends should indemnify him by executing a bond in
his favour. Thereupon the plaintiff paid Rudge the 350/., but
the defendants refused to pay the plaintiff, on the ground that
the bond had been given on an illegal consideration and was
therefore void.



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 7 of 29)