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.
Alteration of draft conveyance.
(r) (1876) 3 Ch. D. 49. (s) 1914, 1 Ch. 788.
(t) 1914, 1 Ch. p. 799.
(u) 1919, 1 Ch. 378; and see Grindell v. Bass, 1920, 2 Ch. 487, 491, 492; Farr, Smith & Co. v. Messers, Ltd., 1928, 1 K. B. 397.
(x) Horner v. Walker, 1923, 2 Ch. 218.
(y) Hawkins v. Holmes, (1721) 1 P. W. 769; see Stokes v. Moore, (1786) 1 Cox, 219.
(z) (1719) Cited 1 P. Wms. 770.
Memorandum signed on draft agreement.
A contract by a corporation aggregate must, as a general rule, be under their common seal(c): but, by the Companies Clauses Consolidation Act, 1845 ,any contract entered into on behalf of a company coming within the provisions of the Act, and which, if made between private persons, would require to be in writing, and to be signed by the parties to be charged therewith, may be made, varied, or discharged in writing, signed by any two of the directors (d): and the same rules which apply to an original contract apply to any variation or alteration of it (e). In cases which fall within the general rule, the omission of the common seal precludes the company, while the contract is still executory, from suing or being sued upon it (f). And it has been held (g) that where the unsealed contract is of such a nature as to be specificially enforceable, and there has been part performance under circumstances which render the doctrine of part performance applicable, specific performance may be enforced against the corporation. But this principle, though subsequently recognised by the Court below in Hunt v. Wimbledon Local Board (h), was doubted in the Court of Appeal (i); and it is conceived not without reason; for the doctrine of part performance only allows evidence to be given of what the contract between the parties was, and does not apply where there is no contract, e.g., in the case of a nullity (k). It is clear at least that when sealing is made obligatory under an Act of Parliament, e.g., under the Public Health Act, 1875, the doctrine of part performance is inapplicable (l). It has been held that s. 174 of-the Public Health Act, 1875, is imperative, and is not limited to contracts for work to be done for, or goods to be supplied to, an Urban District Council; it applies to every contract made by an Urban Authority under any of the powers created by the Act (m).
Signature by public companies, etc.
(a) Shippery v. Derrison, (1805) 5 Esp. 190; and see Craig v. Elliott, (1885) 15 L. R. Ir. 257, where there was a letter complaining of delay in engrossing the draft conveyance.
(b) Moritz v. Knowles, (1899) W. N. 40, 83.
(c) See Mayor of Ludlow v. Charlton, (1840) 6 M. & W. 815; 10 L. J. N. S. Ex. 75; Cope v. Thames Haven Co., (1849) 3 Ex. 841; 18 L. J. Ex. 345; Biggie v. London and Blackwall R. Co., (1850) 5 Ex. 442; 19 L. J. Ex. 308; Homersham v. Wolverhampton Waterworks Co., (1851) 6 Ex. 137; 20 L. J. Ex. 193; Jackson v. N. W. R. Co., (1848) 1 H. &, Tw. 75; 18 L. J. Oh. 91; Crampton v. Varna, (1872) 7 Ch. 562; 41 L. J. Ch. 817; Kidderminster Corp. v. Hardwick, (1873) L. R. 9 Ex. 13; 43 L. J. Ex. 9; Austin v. Guardians of Bethnal Green, (1874) L. R. 9 C. P. 91; 43 L. J. C. P. 100; Dartford Union v. Trickett, (1888) 59 L. T. 754; affd. 5 T. L. R. 619; Oxford Corp. v. Crow, 1893, 3 Ch. 535; 69 L. T. 228.
(d) S. 97; see Lowe v. L. & N. W. R. Co., (1852) 18 Q. B. 632; 21 L. J. Q. B. 361.
(e) Williams v. Chester R. Co., (1851) 15 Jur. 828.
(f) Copper Miners' Co. v. Fox, (1851) 16 Q. B. 229; 20 L. J. Q. B. 174; Start v. West Mersey Sch. Bd., (1899) 15 T. L. R. 442; 63 J. P. 440.
(g) Steeven's Hosp. v. Dyas, (1864) 15 Ir. Ch. R. 405; 10 L. T. 862;
By the Companies (Consolidation) Act, 1908, s. 76 (mm), the mode in which a contract by any company coming within the Act may be made, is set out. In the case of a contract which if made between private individuals would require to be under seal, the same may be made under the common seal of the company. If the contract is one required (if made between private individuals) to be in writing signed by the party to be charged, it may be made on behalf of the company and signed by any person acting under its authority, express or implied; and if the contract is one which (if made between private individuals) may be made by parol, it may be made by parol on behalf of the company by any person acting under its authority.
Crook v. Corp. of Seaford, (1871) 6 Ch. 551; 19 W. R. 938; Kidderminster Corp. v. Hardwick, sup.; and see inf. p. 889.
(h) (1878) 3 C. P. D. 208, 214; 47 L. J. C. P. 540.
(i) (1879) 4 C. P. D. 48; 48 L. J. C. P. 207; and see Hoare v. Kingsbury U. D. C, 1912, 2 Ch. 452.
(k) See Britain v. Rossiter, (1879) 11 Q. B. D. 123,132; 48 L. J. Ex. 362; Young v. Leamington (Mayor of), (1883) 8 A. C. 48; 52 L. J. Q. B. 713. And see sup. p. 204, n. (e); and inf. p. 888.
(l) Young v. Leamington (Mayor of), sup., approving Hunt v. Wimbledon Local Board, (1879) 4 C. P. D. 48; and see W. Biggins, Ltd. v. Northampton Corporation, 1927, 1 Ch. 128, 136.
(m) Hoare v. Kingsbury V. B. C, 1912, 2 Ch. 452.
(mm) Companies Act, 1929, s. 29.
Any alteration made by either party in a material part of a written contract, without the consent of the other party, destroys the rights under the contract of the party making the alteration (n): but an alteration made with consent is binding; and though usual to authenticate such alteration by signature or initials in the margin, it does not seem to be absolutely necessary (o): and it has been held that a memorandum written across the face of the signed agreement, correcting an error in one of its terms, binds the writer though not signed by him; and that the agreement thus corrected is valid under the Statute of Frauds (p).
Alteration or correction of agreement.