CHAP. V. Sale by auction memorandum must be at tached to, or refer to conditions of sale. be left by a certain railway company were to be paid for "large In Wood v. Midgley, (c) a memorandum that A had paid to B £50 as a deposit in part payment of £1,000 for the purchase of a house, the terms to be expressed in an agreement to be signed as soon as prepared, was held not to be sufficient. But where the agreement was for the sale of an estate for £3,000, "and the further sum of £20 per cent. on any sum the property may realize above that sum at the sale by auction advertised to take place" the next day, it was held that the contract was sufficiently certain, and might be enforced; (d) and where at the time the contract was entered into it was agreed that the goods purchased should be paid for by a cheque on the defendant's brother, it was held that the omission of that stipulation did not vitiate the memorandum. (e) Upon a sale by auction, under conditions of sale, the document signed by the auctioneer must either be (a) Williamson v. Wootton, 3 Drew. 210. (b) Cooper v. Hood, 26 Beav. 293. way v. Wharton, 3 D. M. G. 677. (d) Langstaff v. Nicholson, 25 Beav. 160. (e) Sarl v. Bourdillon, 1 C. B. (c) 5 D. M. G. 41; and see Ridg. (N. S.) 188. attached to, or clearly refer to, the conditions, in order to constitute a valid contract. (a) In the recent case of Pierce v. Corf(b) the plaintiff sent a mare to be sold by auction at the defendant's repository; the defendant advertised the mare for sale by auction on the 28th March, 1872, and circulated a printed catalogue of the horses to be sold at his sale, with conditions of sale annexed, in which the plaintiff's mare was described as "lot 49." The defendant had a sale ledger which was headed, "Sales by auction 28th March, 1872,” in which the plaintiff's mare was also numbered 49; but neither the catalogue nor the conditions of sale were annexed to the sales ledger, nor were they referred to therein. On the 28th March, 1872, the lots described in the catalogue were put up by the defendant for sale under the conditions. The plaintiff's mare was put up for sale, and knocked down to M for £33, and thereupon the defendant's clerk wrote in the columns of the sales ledger left blank for this purpose the name of M as purchaser, and the price. M afterwards refused to take the mare. It was held that the catalogue and conditions of sale were not sufficiently connected with the entries in the sales. ledger to make a note or memorandum in writing of a contract by M to satisfy the statute. CHAP. V. contract. Where a contract in writing, or note, or memorandum Recognition of exists, which binds one party, any subsequent note in writing signed by the other party is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them. Thus, where the purchaser of lands by auction signed a (a) Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 945; Coles v. Trecothick, 9 Ves. 234. CHAP. V. Must be concluded agreement. memorandum of the contract, indorsed on the particulars and conditions of sale, and referring to them, and afterwards wrote to the vendor complaining of a defect in the title, referring to the contract expressly, and renouncing it, and the vendor wrote and signed several letters, mentioning the property sold, the names of the parties, and some of the conditions of sale, insisting on one of them as curing the defect, and demanding the execution of the contract; it was held that these letters might be connected with the particulars and conditions of sale so as to constitute a memorandum in writing binding the vendor under the statute, though neither the original conditions and particulars, nor the memorandum signed by the purchaser, mentioned or were signed by the vendor. (a) Although a contract may be deduced from letters, or from various documents containing the terms, there must be a clear accession on both sides to one and the same set of terms, (b) for if it appears that the parties have never got beyond treaty, no relief can be obtained. (c) "The Court," said Lord Eldon, "is not to decree specific performance unless it can collect, upon a fair interpretation of the letters, that they import a concluded (a) Dobell v. Hutchinson, 3 A. & E. 355; 5 Nev. & M. 251; and see Powell v. Dillon, 2 Ball & B. 416; Clinan v. Cooke, 1 Sch. & Lef. 33; Blagden v. Bradbear, 12 Ves. 466; Allen v. Bennett, 3 Taunt. 169; Verlander v. Codd, T. & R. 352; Laythoarp v. Bryant, 2 Bing. (N. C.) 735, 3 Sc. 238; Hammerley v. De Biel, 12 C. & F. 45; Ridgway v. Wharton, 3 D. M. G. 696, per Lord Cranworth. (b) Thomas v. Blackman, 1 Coll. 312, per Knight Bruce, V. C. (c) See Felthouse v. Bindley, 11 C. B. (N. S.) 869; Jordan v. Norton, 4 M. & W. 155; Hutchinson v. Bowker, 5 M. & W. 535; Kennedy v. Lee, 3 Mer. 451. agreement; if it rests reasonably doubtful whether what passed was only treaty, let the progress towards the confines of agreement be more or less, the court ought rather to leave the parties to law than specifically to perform what is doubtful as a contract. But it is also clear that the court is to put the same interpretation upon correspondence, with reference to this subject, as other persons would, reading the correspondence fairly, with a view to collect the sense of it. (a) Where the agent for the purchaser wrote to the agent of the vendor, offering a price for a house, and the vendor wrote across the letter "I agree to sell my house upon these terms," and thereupon his agent wrote to the purchaser's agent, "My employer will take your offer," and added, “make an appointment to meet and draw the agreements," it was held that there was a sufficient contract.(b) When an offer in writing is made to sell on specified terms, and this is unconditionally accepted or acted upon by the party to whom it is made without express acceptance, there is a binding contract, which neither party can vary ; (c) but if the terms are not settled, and anything remains to be done, the contract will not be binding. (d) "If," said Lord Westbury, "there has been a final agreement, and the terms of it are evidenced in a CHAP. V. CHAP. V. Additional term. manner to satisfy the Statute of Frauds, the agreement shall be binding, though the parties may have declared that the writing is to serve only as instructions for a formal agreement, or though it may be an express term that a formal agreement shall be prepared and signed by the parties. As soon as the fact is established of the final mutual assent of the parties to certain terms, and those terms are evidenced by any writing signed by the party to be charged, or his agent lawfully authorized, there exist all the materials which this court requires to make a legally binding contract.”(a) Where, after negociations for the purchase of certain tithes, in which the terms were discussed, but not finally settled, the vendor wrote to his solicitor a letter which contained the following passage: "Previously to paying the amount (then followed an illegible word) for tithes, glebe, &c., it would be advisable to have some information as to title," it was held that the letter did not amount to a note or memorandum in writing of a contract for the sale of lands within the statute. (b) In order to constitute an agreement, the answer to the written proposal must be a simple acceptance of the terms proposed without the introduction of a new and different term. (c) Thus, an offer to grant an underlease in reply to a proposal to take an assignment is not sufficient. (d) So, where an offer by letter to supply (a) Chinnock v. The Marchioness of Ely, 4 De G. J. & S. 647. (b) Savile v. Kinnaird, 11 Jur. (N. S.) 195. (c) Routledge v. Grant, 4 Bing. 653; Hyde v. Wrench, 3 Beav. 334; Thornbury v. Bevill, 1 Y. & C. C. C. 554. (d) Holland v. Eyre, 2 S. & S. 194. |