In Smith v. Surman, (a) the owner of trees growing on his land verbally agreed with the defendant to sell him the timber at so much per foot. The vendor's attorney subsequently wrote to the purchaser requiring payment "for the ash timber you purchased . . . The value at 1s. 6d. per foot amounts to £17 3s. 6d. I understand your objection to complete your contract is on the ground that the timber is faulty and unsound, but there is sufficient evidence to show that the same timber is very kind and superior." The purchaser answered: "I have this moment received a letter from you respecting Mr. Smith's timber, which I bought of him at 1s. 6d. per foot to be sound and good, which I have some doubts whether it is or not, but he promised to make it so, and now denies it." It was held that, as the purchaser did not in his letter recognize the absolute contract described in the vendor's letter, but stated one condition as to quality, there was no note in writing to satisfy the statute. (b) If a part only of documents referred to are to be incorporated in the contract, the reference must show clearly what part is to be so incorporated. Thus, where an agreement for a lease of a farm referred to a paper containing the terms, a bill for specific performance according to such clauses as had been read to the plaintiff was dismissed. (c) The reference in the case of letters need not, it seems, Cloth Co. v. Hieronimus, L. R. B. & C. 437, in Benjamin on (a) 9 B. & C. 561, 570; 4 Mann. & R. 455. (b) And see Archer v. Baynes, 5 Ex. 625; Thornton v. Kempster, 5 Taunt. 786. (c) Brodie v. St. Paul, 1 Ves. J. 326, and see Clinan v. Cooke, 1 Sch. & Lef. 36; Vouillon v. States, 2 Jur. (N. S.) 845. CHAP. V. Part only of referred to, porated in documents to be incor contract. Reference in case of letters need not be express. CHAP. V. Terms of contract must appear from writing. be express, but it will be sufficient if the Court can be satisfied that a reference was intended. (a) Thus, where A, the owner of property, wrote to B on the 5th July in the third person, informing him that C applied for the purchase of the W farm at a certain price, but that if B chose to have the farm at the price mentioned C would decline the purchase in his favour; and the bill stated that B accepted the terms in a letter, which however was not proved, and that A wrote to C on the 11th July, saying: “I have just received yours, and am glad you have determined to purchase the W farm. . . . I will write to Mr. C to inform him you have agreed to purchase the estate;" Sir William Grant said: "Determination and agreement upon the part of the plaintiff to purchase does seem necessarily to presuppose some proposal to sell; for it would be absurd to speak of an original proposal from the plaintiff as a determination and agreement bringing the business to such a close, that it only remained to the solicitors to confer upon the title. This letter (of the 11th July) therefore clearly implies an antecedent proposal to which it is an assent. As to the nature of the proposal there is no controversy. It is in A's handwriting, and coupling that with the letter, they amount to an agreement signed by the party to be charged." (b) The letters or documents must either definitely state the terms of the contract, or must enable the Court to ascertain what the terms of the contract are. "In order," said Lord Eldon, " to form a contract by letter, I (a) But see contra Fyson v. Kitton, 3 C. L. R. 705. (b) Western v. Russell, 3 V. & B. 187; and see Verlander v. Codd, T. & R. 352; Greene v. Cramer, 2 Con. & L. 54; Skinner v. M'Douall, 2 De G. & S. 265. apprehend nothing more is necessary than this; that when one man makes an offer to another to sell for so much, and the other closes with the terms of his offer, there must be a fair understanding on the part of each, as to what is to be the purchase-money, and how it is to be paid, and also a reasonable description of the subjectmatter of the bargain." (a) Where a receipt for the deposit money did not state what the price was, nor what proportion the deposit bore to the price, it was held to be insufficient.(b) Where a lessee agreed to grant an underlease, and signed the following receipt :-"Received of Mr. Dolling the sum of £10 as part purchase-money of £390, of four cottages (describing them), the lease and counterpart to be paid for by Mr. Dolling;" it was held that the receipt was not a sufficient memorandum to satisfy the statute, as the interest to be granted was not specified. (c) So a letter, from the terms of which the exact quantity of goods said to be contracted for can be ascertained by subsequent measurement, but from which it cannot be ascertained that the goods are the special goods contracted for, is not sufficient.(d) Where the agreement was for a sale according to the valuation of two persons, one to be chosen by each party, or an umpire to be appointed by those two in case of disagreement, a bill for specific performance, praying that (a) Kennedy v. Lee, 3 Mer. 447. (b) Blagden v. Bradbear, 12 Ves. 466; and see Clerk v. Wright, 1 Atk. 12; Elmore v. Kingscote, 5 B. & C. 583; Clinan v. Cooke, 1 Sch. & Lef. 33; Mor gan v. Milman, 3 D. M. G. 24. (d) Carroll v. Cowell, 1 Jebb. CHAP. V. CHAP. V. the Court would appoint a person to make the valuation or otherwise ascertain it, was dismissed. "The only agreement," said Sir William Grant, "into which the defendant entered, was to purchase at a price, to be ascertained in a specified mode. No price ever having been fixed in that mode, the parties have not agreed upon any price. Where, then, is the complete and concluded contract which this Court is called upon to execute? The price is of the essence of a contract of sale." (a) Again, an agreement between A, a lessee of a mine, and B, to become partners in the mine, was held not to be sufficiently proved by a receipt signed by A and given to B for a sum as B's share of the head rent of the mine, although the sum was exactly one-half of the rent. "Though the court," said Lord Cranworth, "has struggled to bring within the description of a signed agreement any instrument, however informal, which does in truth disclose what the terms of the contract were, it has never repealed the Statute of Frauds by holding a writing to be within its meaning which has not that effect; that is to say, which does not by plain words or reasonable inference disclose what was the contract of the parties." (b) In a case where the bill was brought for a specific performance from letters which had passed between the parties, it appeared that a certain number of years' purchase was to be given for the land, but it could not be ascertained whether the rents upon a few cowgates were 58. or 1s., and although there was no other doubt, Lord (a) Milnes v. Gery, 14 Ves. 406; and see Wilks v. Davis, 3 Mer. 507; Vickers v. Vickers, L. R. 4 Eq. 529. (b) Caddick v. Skidmore, 2 De G. & J. 56. Hardwicke held that such an agreement could not be carried into execution. He said that in these cases it ought to be considered whether at law the party could recover damages; for if he could not, the Court ought not to carry such agreements into execution. (a) An agreement for a lease which does not state the commencement or duration of the proposed term, is not sufficient,(b) even when ratified by the proposed lessee. (c) Where the plaintiff relied on a letter written by the defendant, in which the defendant agreed to take a house for seven years on certain terms, but in which the day of the commencement of the lease was not mentioned; and on another letter from the defendant mentioning a day of commencement, and adding terms to which the plaintiff did not agree; it was held that there was no memorandum of an agreement sufficient to satisfy the statute. (d) But an agreement for a lease at three lives on thirty-one years is not invalid because the agreement does not name the lives, nor provide by whom they are to be nominated, provided the lives nominated by the person seeking specific performance were in existence when the agreement was entered into.(e) So an agreement that a royalty of 6d. per ton should be paid on any minerals, and that any mines required to (a) Lord Middleton v. Wilson, Sugd V. & P. 13th ed. 109; and see Dart, V. & P. 5th ed. 220. (b) Cox v. Middleton, 2 Drew. 209; Gordon v. Trevelyan, 1 Price, 64; Davis v. Jones, 25 L. J. C. P. 91; Clarke v. Fuller, 16 C. B. (N. S.) 24. (c) Bayley v. Fitzmaurice, 8 E. & B. 679; Fitzmaurice v. Bayley, 9 H. L. C. 78. (d) Nesham v. Selby, L. R. 7 Ch. 406, affg. S. C. L. R. 13 Eq. 191; and see Baumann v. James, L. R. 3 Ch. 508. (e) Fitzgerald v. Vickers, 2 Dr. & Wal, 298. CHAP. V. |