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.
(d) Britain v. Jlossiter, (1879) 11 Q. B. D. 123 ; 48 L. J. Ex. 362.
(e) Maddison v. Alderson, (1883) 8 A. C. 467, 474; 52 L. J. Q. B. 737 ; MeManus v. Cooke, (1887) 35 Ch. D. 681 ; 56 L. J. Ch. C62.
(f) McManus v. Cooke, sup. per Kay, J. See Fry, 4th ed. pp. 262,
(g) Tijke v. Williams, (1703) 2 Vern. 455 ; Lacon v. Mertins, (1743)
3 Atk. 1,4; Bowers v. Cator, (1798)
4 Ves. 91 ; Buckmastcr v. Harrop, (1807) 13 Ves. 456 ; Reynolds v. Waring, (1831) You. 351, 353.
(A) Clinan v. Cooke, (1802) 1 Sch. & L. at p. 41 ; Gregory v. Mighell, (1811) 18 Ves. 328; Morphett v. Jones, (1818) 1 Sw. 172; Surcome v. Pin. niger, (1853) 3 D. M. & G. 571 ; 22L.J.Ch. 419; Ungley v. U., (1877)
5 Ch. D. 887 ; 46 L. J. Ch. 851, a case of a verbal promise by a father on his daughter's marriage to give her a certain house, followed by delivery of possession to the daughter.
Retention of possession;
(i) Per V.-C. Wigram, Dole v. Hamilton, (1846) 5 Ha. 381 ; Wilson v. West Hartlepool R. Co., (1865) 2 D. J. & S. 475 ; 34 L. J. Ch. 241.
(k) Lincoln v. Wright, (1859) 4 D. & J. 1C.
(l) Wills v. Siradling, (1797) 3 Ves. at p. 381 ; Morphett v. Jones, (1318) 1 Sw. at p. 181.
(m) Shillibeer v. Jarvis, (1856) 8 D. M. & G. 79 ; and see Powell v. Lovegrove, ib. 357 ; Farmers', §c. Co. v. Enkel, (1890) W. N. 126.
(n) Dowell v. Pew, (1842) 1 Y. & C. C. C. 345.
(o) Wills v. Stradling, (1797) 3 Ves. at p. 382; Ex p. Hooper, (1815) 19 Ves. at p. 479 ; Lester v. Foxcroft, (1700) Colles, 108 ; 2 Wh. & T. L. C. 7th ed. 460, and notes thereto ; Mundy v. Jolliffe, (1839) 5 M. & C. 167 ; Sutherland v. Briggs, (1841) 1 Ha. 26; 11 L. J. N. S. Ch. 36.
(p) See and consider Parker v. Smith, (1845) 1 Col. 608.
(q) See (1839) 5 M. & C. at p. 177 ; and Sutherland v. Briggs, sup.
In one case, it appears to have been doubted by Knight Bruce, L. J., whether a retention of possession by the tenant after a parol agreement, could be such a part performance as to exclude a defence founded on the Statute (t) : but the later cases have extended the doctrine ; and it is now well settled that, if the acts relied on are sufficient for the purpose, and are such as can only be referred to the parol agreement, the mere circumstance that the tenant was already in the occupation of the property is not material (u). It is, of course, open to the vendor to show that the acts of part performance are properly referable to the pre-existing tenancy.
And where the parties have for many years acted upon the assumption that a contract existed, acts which might not in themselves, and irrespectively of the lapse of time, have been sufficient to take the case out of the Statute, have been held to have that effect (x).
Except where the acts relied on are referable to a tenancy.
But there can be no part performance of an incomplete contract (y); and an act which is merely introductory or ancillary to a contract, or which, though in truth done in performance of a contract, admits of explanation without supposing a contract, is not sufficient to take the case out of the Statute (a) : e.g., the delivery of the abstract, giving directions for the conveyance, or having the estate surveyed or valued, is insufficient (a) : so, also, is payment of a sum alleged to be part or even all of the purchase-money (b) ; or the mere retention of possession by a tenant after the determination of his tenancy, but before notice to quit (c). Possession obtained wrongfully by the plaintiff, of course, cannot avail him (d) ; nor will the fact of his having done acts which would, except under a contract, have amounted to trespass (e).
What acts are insufficient.
(r) Willi v. Strutting, (1797) 3 Ves. 378, 382.
(s) Miller and Aldworth, Ld. v. Sharp, 1899, 1 Ch. C22 ; 68 L. J. Ch. 322, following Nunn v. Fabian, (1865) 1 Ch. 35 ; 35 L. J. Ch. 140.
(t) Pain v. Coombs, (1857) 1 D. & J. 34, 46.
(u) See Nunn v. Fabian, sup. ;
Hodson v. Heuland, 1896, 2 Ch. 428 ; 65 L. J. Ch. 754.
(x) Blackford v. Kirkpatrick, (1842) 6 Beav. 232 ; 12 L. J. Ch. 108.
(y) Thynne v. Earl of Glengall, (1848) 2 II. L. C. 131, 158 ; and see Farher v. Smith, (1844) 1 Col. 623; Phillips v. Edwards, (1864) 33 Beav. 440.
With reference to the contracts of . corporations, the doctrine of part performance is confined to cases where, as under the Statute of Frauds, special evidence of the contract is made necessary: and it cannot be made use of to defeat the doctrine of ultra vires (f). But a corporation, equally with an individual, may, it would seem, be bound by part performance where the contract is intra vires, and at all events where it is such as need not be under seal (g).
Application of the doctrine to contracts of corporations.
(s) Dale v. Hamilton, (1846) 5 Ha. at p. 381 ; and see Gunter v. Halsey, (1739) Amb. 586; Lacon v. Mertins, (1743) 3 Atk at p. 4 ; Ex p. Hooper, (1815) 19 Ves. at p. 479.
(a) Whaley v. Bagnel, (1765) 1 Br. P. C. 345; Cole v. White, (1767) cited 1 Br. C. C. 409 ; Redding v. Wilkes, (1791) 3 ib. 400 ; Whitchurch v. Bevis, (1789) 2 ib. 559 ; Clerk v.
Wright, (1737) 1 Atk. 12; Bawdes v. Amhurst, (1715) Pr. Ch. 402; Cooke v. Tombs, (1794) 2 Anst. at p. 425; Thomas v. Blackman, (1844) 1 Col. 301 ; Phillips v. Edwards, (1864) 33 Beav. 440 ; Sug. 14th ed. 140.
(b) Clinan v. Cooke, (1802) 1 Sch. & L. at p. 40 ; Watt v. Evans, (1834) 4 Y. & C. 579; Hughes v. Morris, (1852) 2 D. M. & G. at p. 356; 21 L. J. Ch. 761 ; Humphreys v. Green, (1882) 10 Q. B. D. 148 ; 52 L. J. Q. B. 140 ; Maddison v. Alderson, (1883) 8 A. C. at p. 479 ; 52 L. J. Q. B. 737.
(c) Wills v. Stradling, (1797) 3 Ves. at p. 381; Brennan v. Bolton, (1842) 2D.& War. 349.
(d) Sug. 14th ed. 151 ; Cole v. White, (1767) cited 1 Br. C. C. 409.
(e) Phillips v. Alderton, (1875) 24 W. R. 8. A person who enters into a parol contract for the purchase of land from a person who assumes without authority to act as agent for sale, has no remedy against the true owner for damages for the agent's misrepresentations on the ground of part performance: Warr v. Jones, (1875) 24 W. R. 695.