This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Informal agreements give rise to questions of greater difficulty.
We may lay down as general, though not universal, rules, first, that any writing signed by the party to be charged, or his agent, and which, either expressly or by reference to other writings, determines the parties to and subject-matter of a contract, and fixes, or provides the compulsory means of fixing, all its terms, is a sufficient agreement within the statute (s. 40 of the, L. P. Act, 1925); and secondly, that no writing is a sufficient agreement which fails in any of the above-mentioned particulars.
What may be a sufficient agreement within the statute.
Thus letters are constantly held to constitute a binding contract, and often where such a result is a surprise upon the writer (a); and a letter addressed by either vendor or purchaser, to a third person, with directions incidental to the carrying out of the agreement may satisfy the statute (b).
Letter to a third party.
A letter, which contains an admission of the bargain, and of all its essential terms, is a sufficient memorandum, though the writer at the same time repudiates his liability (c); so, also, letters written with reference to a pending dispute as to whether a parol agreement has been duly performed, and which in fact embody the terms of such parol agreement (d)
Letters admitting the contract.
(a) Kennedy v. Lee, (1817) 3 Mer. 441, 451; Rossiter v. Miller, (1872) 5 Ch. D. 658; (1878) 3 A. C. 1124; 48 L. J. Ch. 10; May v. Thomson, (1882) 20 Ch. D. 705, 716; 51 L. J. Ch. 917; and see Von Hatzfeldt-wildenburg v. Alexander, 1912, 1 Ch. 284; Coope v. Ridout, 1920, 2 Ch. 411; 1921, 1 Ch. 291; Lockett v. Norman-wright, 1925, 1 Ch. 56.
(b) Welford v. Beezeley, (1747) 3 Atk. 503; Cooke v. Tombs, (1794) 2 Anst. 420, 426; Owen v. Thomas, (1834) 3 Myl. & K. 353; 3 L. J. N. S. Ch. 205; Rose v. Cunynghame, (1805) 11 Ves. 550; Sug. 14th ed. 139; Goodwin v. Fielding, (1853) 4 De G. M. & G. 90.
The vendor's receipt for the purchase-money or deposit, or a similar receipt signed by the auctioneer, or the entry of sale made by him in his books (e), or a bond of reference to a surveyor to settle the price to be paid by the purchaser, is sufficient (f), provided the document relied on contains, expressly, or by reference, the essential terms of the contract.
Receipt for purchase-money.
If a defendant by his defence to an action for specific performance admits the parol agreement, but neglects to plead the statute, this will constitute a sufficient memorandum in writing to satisfy the statute (g); so, too, an affidavit filed by the party to be charged; and his signature, though not alleged, will be presumed by the Court, as an affidavit must be signed before it is sworn (h). But any affidavit or other memorandum which is relied upon must be one which was in existence before the commencement of the action in which the question of the statute is raised (i). "If it only comes into existence after ,the commencement of the action, and the plaintiff desires to avail himself of it, he can only do so by discontinuing the action and commencing another"(k). But a defendant who is plaintiff by way of counterclaim, may rely upon a memorandum which comes into existence after the date when the original action was commenced, but before the time when the counterclaim was delivered (l).
Admission on pleadings.
(c) Bailey v. Sweeting, (1861) 9 C. B. N. S. 843; 30 L. J. C. P. 150; Gibson v. Holland, (1865) L. R. 1 C. P. 1; 35 L. J. C. P. 5, and see Re Holland, Gregg v. Holland, 1902, 2 Ch. 360, 383; Koenigsblatt v. Sweet, 1923, 2 Oh. 314. Cf. Dewar v. Mintoft, 1912, 2 K. B. 373.
(d) Fyson v. Kitton, (1855) 3 C. L. R. 705; and see Studds v. Watson, (1885) 28 Ch. D. 305; 54 L. J. Ch. 626.
(e) Coles v. Trecothick, (1804) 9 Ves. 234; Blagden v. Bradbear, (1806) 12 Ves. 466; Gosbell v. Archer, (1835) 2 Ad. & El. 500; 4 L. J. N. S. K. B. 78; Emmerson v. Heelis, (1808) 2 Taun. 38, 48; Oliver v. Hunting, (1890) 44 Oh. D. 205; 59 L. J. Ch. 255; Carr v. Lynch, 1900, 1 Oh. 613; 69 L. J. Ch. 345; Sug. 14th ed. 134, 139.
(f) Per Lord Rosslyn, Cooth v. Jackson, (1801) 6 Ves. 17.
(g) Ridgway v. Wharton, (1853) 3 D. M. & G. 677; affd. 6 H. L. C. 238; 27 L. J. Ch. 46; Jackson v. Oglander, (1865) 2 H. & M. 465; and see inf. pp. 897 et seq.
(h) Barkworth v. Young, (1856) 4 Dr. 1; 26 L. J. Ch. 153.
(i) Lucas v. Dixon, (1889) 22 Q. B. D. 357.
Chap VI. Sect. 3.
The statute, if relied upon, must be specially pleaded (m). Before the L. P. Act, 1925, a party relying upon the Statute of Frauds might plead the statute without specifying any particular section (n). It is apprehended that it will not now be sufficient to plead the L. P. Act, 1925, but that s. 40 must be named.
The statute must be pleaded.
It is now well settled that a written agreement after, in pursuance of a parol agreement before, marriage, is a sufficient memorandum within the statute (o).
Written agreement after, in pursuance of a parol agreement before, marriage.
But - and the case may be considered as an exception to the first general rule - where B. had entered into a parol agreement to sell an estate to W., and B.'s agent made out and signed a rent-roll, entitled "Rent-roll of lands agreed to be sold by B. to W. from May 1762, at twenty-one years' purchase for the clear yearly rent," and the amount of the rent was then corrected by B. in his own handwriting, and the rent-roll so altered was delivered to W., and abstracts of title were also delivered, and B. 6ent letters to his creditors informing them of the sale, it was held that there was no sufficient agreement (p); nor will a letter suggesting an abandonment of a parol agreement and not setting out its terms, take the case out of the statute (q).
Rent rolls, abstract, etc. insufficient; and letters to creditors; or letter written as an abandonment.