CHAP. III. Sect. IV. Part perform ance independently of marriage. There is a distinction between the cases in which there is no part performance except by the marriage, and those where there is part performance independently of the marriage, as where a contract to settle property is carried out. In the latter the part performance may be such as to take the case out of the statute. (a) In order to bring a case within the rule, it must be proved that the parol contract which it is sought to enforce formed part of the general arrangement on which the marriage took place, and was not a separate transaction. (b) Where, previously to the defendant's marriage, it was agreed that £500, the property of the wife, should be settled upon her, and the marriage took place before the settlement was executed, but afterwards a draft settlement was prepared of which the husband approved, and on which he acted during his wife's life, it was held by Lord Hardwicke that there were strong circumstances to take the case out of the statute. (c) Again, where a father, shortly before the marriage of his daughter, told her intended husband that he meant Mellish, L. J. said: "There was not turn upon any parol promise in consideration of marriage. (a) Hammersley v. De Biel, 12 C. & F. 64 n; Lassence v. Tierney, 1 Mac. & G. 572, per Lord Cottenham; Surcome v. Pinniger, 3 D. M. G. 574, per Turner, L. J.; Warden v. Jones, 23 Beav. 494; per Romilly, M. R. (b) Goldicutt v. Townsend, 28 Beav. 450, per Romilly, M. R. (c) Taylor v. Beech, 1 Ves. S. 297. to give certain leasehold property to them on their marriage, and after the marriage he gave up possession of the property to the husband, to whom he directed the tenants to pay the rents, and handed the title-deeds to the husband, who expended money on the property, it was held that there was sufficient part performance to take the case out of the statute. (a) The doctrine of part performance, as applicable to promises made in consideration of marriage, was very fully discussed in the recent case of Caton v. Caton. (b) There, previously to a marriage, the intended husband and wife agreed in writing that the husband should have the wife's property for life, paying her £80 a-year for pin-money, and that she should have it after his death, and he gave instructions for a settlement upon that footing. The settlement was accordingly prepared, when the parties agreed that they would have no settlement, the husband promising, as the wife alleged, that he would make a will, giving her all her property. The marriage took place, and the husband made a will accordingly, which he afterwards revoked. It was held by Lord Cranworth that, under the circumstances, there was no contract to make a will, and that there had been no part performance. (c) His lordship said :-"The Courts of Equity require specific performance of a parol (a) Surcome v. Pinniger, 3 D. M. G. 575; and see Simmons v. Simmons, 6 Hare, 352, (b) L. R.1 Ch. 137; affd. L. R.; ib. 2 H. L. 127; see the remarks of Malins, V. C. on this case in Coles v. Pilkington, L. R. 19 Eq. 179. (c) On the appeal to the House of Lords, Lord Cranworth's decision was affirmed on the ground that there was no memorandum in writing, and the question of part performance was not argued. CHAP. III. CHAP. III. Representations of third party referring to marriage. contract for the sale or purchase of land when that contract has been in part performed, because, if the statute were insisted upon, it would be to make it the means of effecting instead of preventing fraud. The right to relief in such cases rests not merely on the contract, but on what has been done in pursuance of the contract. The ground on which the Court holds that part performance takes a contract out of the purview of the statute is, that when one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract, as, for instance, by taking possession of land, and expending money in building or other like acts, there it would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced or allowed the person contracting with him to act and expend his money." (a) If one person holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other person consents to celebrate the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, the Court will give effect to the proposal. Thus, where proposals of marriage written by the lady's brother, acting by her father's authority, stated that, "Mr. J. P. Thompson (the father) also intends to leave a further sum of £10,000 in his will to Miss Thompson, to be settled on her and her children, the disposition of which, supposing she has no children, will be prescribed by the will of the father. These are the bases of the arrangement, subject of course to revision; but they (a) And see Williams v. Williams, 37 L. J. Ch. 854. will be sufficient for Baron De Biel (the intended husband) to act upon," and Baron De Biel upon receiving the proposals, provided a jointure as required by them for his intended wife, and then married her, and the sum of £10,000 was not left by Mr. Thompson; it was held that his estate was liable to pay it. (a) In Bold v. Hutchinson, (b) the estate of a deceased father was charged with the payment of a sum of money which he had by parol promised to leave by will, Lord Romilly said: " Moral obligations in matters of this description as they are treated in Courts of Equity, are coextensive with, and not different from legal obligations, where they are expressed in clear and distinct language. No doubt, vague and ambiguous representations might be made to persons on marriage, which might create expectations and belief, which the person making them might be morally, though not legally, bound to execute; but where the matter is clearly and distinctly expressed, then, in my opinion, the legal obligation follows the moral obligation, and is co-extensive with it." (c) Again where, upon the treaty for a marriage, the father of the lady wrote to the husband: "I still adhere to my last proposition, viz., to allow Elizabeth £100 a year . . . and at my decease she shall be entitled to her share of whatever property I may die possessed of," it was held that this was a contract binding on the father, but that it did not include freehold property. (d) ... (a) Hammersley v. De Beil, 12 C. & F. 45, affg. S. C. nom. ; De Beil v. Thompson, 3 Beav. 475. (b) 20 Beav. 250; affd. 5 De G. M. & G. 558. (c) See also Saunders v. Cramer, Dr. & War. 87; Warden v. Jones, 23 Beav. 487; affd. 2 De G. & J. 1176. (d) Laver v. Fielder, 32 Beav. 1. CHAP. III. CHAP. III. Sect. IV. By whom enforced. Representa- Such representations may be enforced, not only by the persons to whom they were made, but also by the issue of the marriage. Thus where, previously to a marriage, the solicitors to the father of the intended wife stated in a letter, that the father did not propose to exercise a certain power of appointment, and the fund to which the wife would become entitled in default of appointment was comprised in the settlement made on the marriage, and the father afterwards exercised his power in favour of his other children; it was held, under the circumstances, that the child of the marriage was entitled to have brought into the settlement, out of the father's estate, a sum equal to that which would have come under the settlement in default of appointment.(a) In order to make a third person liable upon his representations, or promises, the person seeking to enforce them must show distinctly that clear and sufficient representations, or promises, were made; (b) a vague representation is not enough, and there must be a reasonable certainty as to the amount. In Kay v. Crook, (c) a father, on the treaty for the marriage of his eldest son, promised, by letter, to settle a sum of money forthwith, and to recognize his son in common with the rest of his family in the future provisions of his will. The sum of money was settled, and the marriage took place on the faith of the representations in the letter. By his will the testator made a substantial provision for his son, but much less than equal to those made for his other children. (a) Walford v. Gray, 11 Jur. (N. S.) 106; affd. ib. 473; 13 W. R. 335, 761. (b) Randall v. Morgan, 12 It was held that Ves. 67; Maunsell v. White, 4 (c) 3 Sm. & G. 407. |