Page images

new contract made between the parties on the footing of Chap. VII. those notes.(a) Where a contract has been entered into by letters, between letters

and bought definitely fixing the terms, and subsequently bought and and sold notes ; sold notes containing different terms pass between the parties, the letters, in the absence of any agreement to the contrary, will constitute the contract.(6) Where there is no signed entry in the broker's books, between un

signed entry and no writing from which the terms of the contract can and differing be gathered, and the bought and sold notes vary from notes. each other, no contract arises,

Thus, where a broker, employed by the plaintiff to sell Petersburg clean hemp and by the defendant to buy hemp, sold to the defendant, and by mistake gave him a sale note of Riga Rhine hemp, a description of hemp of a different quality from the Petersburg hemp, and gave the plaintiff a note of the sale of Petersburg clean hemp, it was held that no contract for the sale of the hemp in question subsisted between the parties. (c) In Grant v. Fletcher,(d) Abbott, C. J., said: “The broker is the agent of both parties, and as such may bind them by signing the same contract on behalf of the buyer and seller. But if he does not sign the same contract for both parties neither will be bound. It has been decided accordingly that where the broker delivers a

(a) See also Thornton v. C. B. (N. S.) 298; 10 Jur. (N. Charles, 9 M. & W. 802; Sieve. S.) 866 ; 33 L. J. C. P. 298, diswright v. Archibald, 17 Q. B. approving of the decision of 115; 20 L. J. Q. B. 529; Town- the Privy Council in Cowie v. end v. Drakeford, 1 Car. & K. Remfry, 5 Moo. P. C. C. 232. 22 ; Goom v. Afflalo, 9 D. & R. (c) Thornton v. Kempster, 5 148; 6 B. & C. 117; Thornton Taunt. 786 ; and see Cumming v. Meux, 1 M. & M. 43.

v. Roebuck, Holt, 172. (6) Heyworth v. Knight, 17 (d) 5 B. & C. 437.

[ocr errors]

variance does



Cuap. VII. different note of the contract to each of the contracting

parties there is no valid contract.” (a) In Rowe v.
Osborne (6) it was held that a vendee of goods was bound
by the contract as stated in the note signed by him, and
delivered by the broker who effected the sale to the
vendor, although this note varied from the note delivered

by the broker to the vendee.
Immaterial An unimportant or immaterial variation between the
not avoid

bought and sold notes will not avoid a contract. Thus,
where a broker delivered to the vendor bought and sold
notes written on one sheet of paper, and the day for pay-
ment of the goods was inserted at the end of the bought
note only, but in those made out for the purchasers the
day was inserted at the end of the bought as well as of
the sold note, it was held that as the bought and sold
notes delivered to the vendor were both written on one
sheet of paper the whole must be considered as forming
one contract; and consequently that there was no vari-
ance.(c) So where the broker made a mistake in the
names of the contracting parties, it was held that the
contract was not thereby avoided, it not being shown

that any one was prejudiced thereby. (d)
Sale on credit If goods in the City of London are sold by a broker to
by broker-
vendor's right be paid for by a bill of exchange, the vendor has a right,
to retract.

within a reasonable time, if he is not satisfied with the
sufficiency of the purchaser, to annul the contract. But
the vendor must intimate his dissent as soon as he has
had an opportunity to inquire into the solvency of the

(a) And see Thornton v. (6) 1 Stark, 140.
Meux, M. & M. 43; Heyman v. (c) Maclean v. Dunn, 1 Moo.
Neale, 2 Camp. 337; Gregson & P. 761; and see ante, p. 258.
v. Ruck, 4 Q. B. 747 ; and (d) Mitchell v. Lapage, Holt,
Sievewright v. Archibald, 17 253.
Q. B. 103; 20 L. J. Q. B. 529.

his sold note


purchaser; and five days has been considered too long a Chap. VII. period for this purpose. (a) Where the plaintiff employed a broker to purchase Broker em

ployed by pursome hemp for him, and the broker having negotiated chaser, only with the defendant signed and sent to him a sold note, when binding. and the defendant afterwards signed and sent to the broker a note differing in several material points from the note sent to him, it was held that it was a question for the jury whether both parties intended that the note signed by the defendant should be the contract, in which case there was a sufficient memorandum within the Statute of Frauds, or whether the defendant never intended to be bound as seller unless the buyer also signed a correlative note to bind him, and if so there was no valid contract. (6)

The authority of a broker may be revoked by his Revocation of employer at any time before he has signed a contract authority. for him. Thus, the authority of a broker employed to effect a policy of insurance may be revoked after the underwriters have signed the slip, till such time as they have actually subscribed the policy; and if the broker, having procured a slip to be written on terms within the scope of his original authority, receives an intimation from his principals that they will not submit to those terms, and afterwards effects the policy, and pays the premium to the underwriters, he can maintain no action against his principals for commission or money paid. (c)

(a) Hodgson v. Davies, 2 Sm. L. C. 549, ed. 1867. Camp. 530; as to whether this (6) Moore v. Campbell, 10 custom should be proved, see Ex. 323; 23 L. J. Ex. 310. Benj. on Sales, 2nd ed. 224, (c) Warwick v. Slade, 3 citing Brandao v. Barnett, 3 C. Camp. 127; and see Farmer B. 519; 12 C. & F. 787; and 1 v. Robinson, 2 Camp. 339 (n.)

[merged small][ocr errors][ocr errors][merged small][merged small]

Chap. VIII.

Wills of land,

[ocr errors]

Y the fifth section of the Statute of Frauds
it was enacted that “all devises and bequests
of any lands or tenements devisable either

by force of the Statute of Wills, or by that
statute, or by force of the Custom of Kent, or the custom
of any borough, or any other particular custom, sball be
in writing, and signed by the party so devising the
same, or by some other person in his presence, and by
his express directions, and shall be attested and sub-
scribed (a) in the presence of the said devisor by three
or four credible witnesses, or else they shall be utterly
void and of none effect."

This section was repealed by the Statute of Wills(b) as
to wills made since the 31st December, 1837, but re-
mains in force as to wills made before that date. The
effect of the Wills Act, although it does not come under
the title “Statute of Frauds," will be discussed sub-

(a) As to the meaning of Roberts v. Phillips, 4 E. & B.
these words see Doe v. Burdett, 450.
10 C. & F. 340; Warren v. (6) 7 Will. IV. & 1 Vict. c.
Postlethwaite, 2 Coll. 113 n.; 26, s. 2.

A will to direct the uses of a surrender of a copyhold Chap. VIII. or of a customary estate passing by surrender is not Copyholds and within the Statute of Frauds, and does not come within freeholds. the clause requiring the attestation of three witnesses. The reason for this distinction is, that the land

passes by the surrender and will taken together, in the same manner as if the devisee's name were inserted in the surrender, and does not pass by the will, which merely directs the uses.(a)

But the statute extends to customary freeholds not passing by surrender.(6)

By the act 55 Geo. III. c. 192, it was provided that in all cases where by the custom of any manor in England or Ireland any copyhold tenant of such manor may by will dispose of his copyhold tenements, the same having been surrendered to such uses as should be declared by such will, every disposition or charge made by such will by any person who should die after the passing of the act should be valid, although no surrender should have been made to the use of the will.

This enactment only supplies the want of a formal surrender, and does not extend to a case where the surrender is a matter of substance, as where it is required to be accompanied by the separate examination of the wife, (c) and since this statute a copyhold will pass under a general devise of real estate, although there is no

(a) Doe v. Danvers, 7 East, v. Page, 2 Atk. 37; Carey v. 322; and see Att.-Gen. v. An- Askew, 2 Bro. C. C. 58. drews, 1 Ves. S. 225; Goodwyn (6) Hussey v. Grills, Ambl. F. Goodwyn, ib. 227; Wagstaffe 299; see also Wilson v. Dent, v. Wagstaffe, 2 P. Wms. 258; 3 Sim. 385; Willan V. LanDoe v. Harris, 8 A. & E. 1; Roe caster, 3 Russ. 108. 7. Heyhoe, 2 Bl. 1114; Att.-Gen. (c) Doe v. Bartle, 5 B. & Ald. v. Barnes, 2 Vom. 598; Tuffnell 492,


« PreviousContinue »