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del credere agency.

promise is there as to the debt, default, or miscarriage of Chap. III.

Sect. III. another? It is a direct promise to re-pay Adams any money which might be paid by him for costs in the suit between the Vicar and Adams. It has been urged that at all events the promise would not be available for costs antecedently incurred. But it was competent to the plaintiff to make any bargain he pleased as the price of his resisting the tithe suit for the benefit of the defendant."(a)

A contract for a del credere agency is not a promise to Contract for answer for the debt of another, within the statute. In Coutourier v. Hastie(6) Parke, B., said: “ The other and only remaining point is, whether the defendants are responsible by reason of their charging a del credere commission, though they have not guaranteed by writing signed by themselves. We think they are. Doubtless, if they had for a per-centage guaranteed the debt owing, or performance of the contract by the vendee, being totally unconnected with the sale, they would not be liable, without a note in writing signed by them; but, being the agents to negotiate the sale, the commission is paid in respect of that employment; a higher reward is paid in consideration of their taking greater care in sales to their customers, and precluding all question whether the loss arose from negligence or not, and also for assuming a greater share of responsibility than ordinary agents-namely, responsibility for the solvency and performance of their contracts by their vendees. This is the main object of the reward being given to them; and though it may terminate in a liability to pay

(a) And see Spark v. Heslop, (6) 8 Exch. 40; affirmed, 5 1 E. & E. 563; 28 L. J. Q. B. H. L. C. 673.

CHAP. III.
Sect. III.

the debt of another, that is not the immediate object for which the consideration is given; and the case resembles in this respect those of Williams v. Leper (a) and Castling v. Aubert. (6) We entirely adopt the reasoning of an American judge (Mr. Justice Cowen) in a very able judgment on this point in Wolff v. Koppel.(c)

In Wickham v. Wickham,(d) Wood, V.C., said :“When I look at the whole of the case (Coutourier v. Hastie), I cannot but conclude that the judges considered that an agent entering into a contract in the nature of a del credere agency, entered in effect into a new substantial agreement with the persons whose agency he undertook, that the agreement so entered into by him was not a simple guarantee, but a distinct and positive undertaking on his part, on which he would become primarily liable, otherwise I cannot see how the learned judges could arrive at the conclusion that the undertaking was not within the statute."

If goods are furnished to, or money is paid on behalf of, an infant, on the promise of the defendant to be answerable, the undertaking is original and not collateral, for the infant cannot be liable, and there is no privity between the plaintiff and the infant. (e)

Goods furnisbed to an infant.

(a) 3 Burr. 1886; 2 Wils. 308.
(6) 2 East. 325.
(C) 5 Hill, N. Y. Rep. 458.
(d) 2 K. &. J. 479.

(e) Duncomb v. Tickridge, Aleyn. 94; Harris v. Huntback, 1 Burr. 373:

121

Chap. III.
Sect. IV.

Section IV.

AGREEMENT IN CONSIDERATION OF MARRSAGE.

marry not

statute.

No action shall be brought to charge any person upon Agreements in

consideration any agreement made in consideration of marriage.

of marriage. Mere promises to marry are not within the statute, Promise to and need not be reduced into writing in order to be within the binding, (a) but may be made by parol. (6)

The contracts contemplated by the statute are those which are made in consideration of the marriage itself. (c) Marriage is a good consideration to support a promise, Consideration

for promise but it is not necessary that the agreement should ex- need not be pressly state that the promise was made in consideration expressed. of marriage, if from the evidence it is sufficiently proved that such was the consideration. (d)

Where A being about to marry B, the uncle of A addressed him by letter as follows:-"I am glad to hear of your intended marriage with B, and, as I promised to assist you at starting, I am happy to tell you that I will pay you £150 yearly during my life, and until your annual income derived from your profession shall amount to 600 guineas, of which your own admission will be the only evidence that I shall receive or require," and the husband's income never amounted to 600 guineas, it was held that the letter contained a good consideration to

(a) Harrison v. Cage, Ld. Raym. 386; Salk, 24; 5 Mod. 411; Cork v. Baker, Str. 34.

(b) Taylor on Evid. 909; B. N. P. 280 c.; 2 Sel N. P.

(c) Lassence v. Tierney, 1 Mac.

& G. 551; Warden v. Jones, 2
De G. & J. 76 ; affg. S. C. 23
Beav. 487.

(d) Hammersley v. De Biel,
12 C. & F. 45.

Chap. III.
Sect. IV.

Memorandum must be complete.

support an action against the executors of the uncle for arrears of the annuity.(a)

The memorandum need not be of a formal character, but it must be complete in itself, or specific performance will not be decreed.(6) “ Part performance, to take a case out of the Statute of Frauds, always supposes a complete agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement, and by force of the agreement.” (e)

The putting a deed into the hands of a solicitor with instructions to prepare a conveyance is not enough to take a parol agreement out of the statute. (d)

Where, previously to an intended marriage, the intended husband gave instructions in his own handwriting for a settlement, which was prepared but not executed, it was held that there was no memorandum within the statute. (e)

Where a bond or deed is given, either by the intended husband to his intended wife, or vice versa, it may, though suspended during the marriage, be specifically enforced after the death of the covenantor by the covenantee. (f)

Bond.

(a) Shadwell v. Shadwell, 7 1 P. Wms. 618; 1 Str. 236; Jur. (N. S.) 311 ; and see Saun- Redding v. Wilkes, 3 Bro. C. C. ders v. Cramer, 3 Dr. & War. 400. 87.

(e) Caton v. Caton, L. R. 1 (6) Watson's Comp. of Eq. Ch. 137; affd, ib. 2 H, L. 127; 551.

and see post, chapter on the (c) Lady Thynne v. E. of memorandum or note of the Glengall, 2 H, L. C. 158, per contract. Lord Brougham.

(1) Acton v. Peirce, 2 Vern. les v. Amhurst, Prec. 480; Cannel v. Buckle, 2 P. Ch. 402 ; Montacute v. Maxwell, Wms. 243.

(d) Be

Sect. IV.

Where a man, by deed, covenanted to pay a woman Chap. III. an annuity for her life, payable half-yearly, for her separate use, and free from anticipation, and afterwards married the annuitant, and died leaving her surviving, it was held that the annuity was not extinguished, but only suspended by the marriage, and that the widow was entitled to recover arrears accrued subsequently to the death of her husband.(a)

The promise may be made by letters,(6) though written Letters. to a third person. (c) A written promise which has been subsequently re- Revival of

promise. voked does not require a memorandum or note in writing to revive it, but it may be revived by parol.(d) Marriage alone does not amount to an act of part Marriage is

not part perperformance, so as to take a parol contract, entered into formance. before and made in consideration of the marriage, out of the statute. (@)

If it were so, there would be an end of the statute, which says that a contract in consideration of

marriage will not be binding unless it be in writing. But if marriage were to be considered as part performance, every parol contract followed by marriage would be binding. (f)

LR.2 P. C. 83.

(a) Fitzgerald v. Fitzgerald, 400; Dundas v. Dutens, 1 Ves.

J. 199; 2 Cox, 240.
(b) Wankford v. Fotherley, 2 (f) Lassence v. Tierney, 1
Ver. 322; Luders v. Anstey, 4 Mac. & G. 572; 2 H. & T. 135,
Ves. 501 ; 5 Ves. 213.

per Lord Cranworth, L. C.; see (c) Moore v. Hart, 1 Ver. 110, also Hammersley v. De Biel, 12 200.

C. & F. 45; Warden v. Jones, (d) Bird v. Blosse, 2 Vent. 23 Beav. 487 ; affd. 2 De G. & 361.

J. 76; Cooper v. Wormald, 27 (e) Montacute v. Maxwell, 1 Beav. 266 ; Caton v. Caton, L. P. Wms. 618 ; 2 Cox, 236 ; R. 1 Ch. 137 ; ib. 2 H, L. 127; Redding v. Wilks, 3 Bro. C. C. In Jeston v. Key, L. R. 6 Ch, 613,

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