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.
(k) Per Fry, L. J., 22 Q. B. D. p. 363.
(l) Grindell v. Bass, 1920, 2 Ch. 487; and see Farr, Smith & Co. v. Messers, Ltd., 1928, 1 K. B. 397.
(m) R. S. C. 1883, Ord. XIX. r. 15; Catling v. King, (1877) 5 Ch. D. 660; and see Towle v. Topham, (1878) 37 L. T. 308.
(n) James v. Smith, 1891, 1 Ch. 384.
(o) Taylor v. Beech, (1749) 1 Ves. Sen. 297; Barkworth v. Young, sup.; Hammersley v. Be Biel, (1845) 12 Cl. & F. 64, n.
(p) Whaley v. Bagnel, (1765) 1 Bro. P. C. 345 (the decision was upon the Irish Statute of Frauds, which corresponds with the English Act); Cooke v. Tombs, (1794) 2 Anst. 420; and see Cass v. Waterhouse, (1691) Prec. Ch. 29.
A recital of the agreement in a will may be sufficient as a memorandum (r); and an engrossment of a lease signed by the lessor, but only delivered as an escrow, may be sufficient evidence of a contract to grant a lease (s).
If the memorandum is signed in duplicate, it is immaterial that one of the copies is incomplete, provided the copy signed by the party charged is complete (t).
Memorandum in duplicate.
It is, of course, necessary that the letter or other document relied on should be consistent with the parol agreement set up by the party relying on it (u).
Document relied on must consist with alleged parol agreement.
There must be sufficient description of both parties to the contract to admit of their identification (x). It is not sufficient in order to constitute a memorandum within the statute that the name of the purchaser should merely be placed upon the memorandum without any description. It must appear from the memorandum that the name was that of the purchaser of the land (y). The memorandum may be good, however, although the parties or either of them appearing from the memorandum to be principals or a principal, are in fact agents or an agent; parol evidence being admissible to prove who are the principals (z). In the case of a memorandum in these words, "Sold 100 Mining Purdies at 17s. 6d." and signed by the vendor, it was held insufficient, as not mentioning the name of the purchaser (a). So, in order to bind the purchaser by his own signature, the identity of the vendor or his agent (b) must appear by the agreement or in the conditions or particulars thereby referred to, or the agreement must be signed by one of them (c). Thus, where in the memorandum of an agreement to purchase land, the purchaser agreed to buy the land and to pay the landlord for the tenant-right, it was held an insufficient description of the vendor, because the landlord in possession was not necessarily the vendor, who might have been an equitable mortgagee (d).
Identification of the parties.
(q) Gosbell v. Archer, (1835) 2 A. & E. 600; 4 L. J. N. S. K. B. 78; Fyson v. Kitten, (1855) 3 C. L. R. 705; see Tawney v. Crowther, (1790) 3 Br. C. C. 161, 318, where the vendor, being pressed to sign the agreement wrote that "his word should be as good as any security he could give," and was held bound; but this seems to be bad law; see Clinan v. Cooke, (1802) 1 Sch. & Lef. 34; Maunsell v. White, (1844) 1 J. & L. at p. 567; and see Forster v. Sale, (1798) 3 Ves, 713; and Tanner v. Smart, (1827) 6 B. &; C. 603. See, too, Pain v. Coombs, (1857) 1 D. & J. 34; Buckmaster v. Russell, (1861) 10 C. B. N. S. 745.
(r) Re Hoyle, 1893, 1 Ch. 84; 62 L. J. Ch. 182.
(s) Moritz v. Knowles, (1899) W. N. 40, 83.
(t) Butcher v. Nash, (1889) W. N. 116; 61 L. T. 72.
(u) Cooper v. Smith, (1812) 15 Ea. 103.
(x) Williams v. Lake, (1859) 2 El. & El. 349; 29 L. J. Q. B. 1; Williams v. Byrnes, (1863) 1 Moo. P. C. N. S. 154; Commins v. Scott, (1875) L. R. 20 Eq. 11; 44 L. J. Ch. 563.
(y) Dewar v. Mintoft, 1912, 2 K. B. 373.
The rule is summed up in the maxim: "Id certum est quod certum reddi potest" (e). The description of one of the contracting parties as "your client," in a letter addressed to his solicitor, has been held insufficient (f). So also in an agreement for a mortgage the description of the proposed mortgagee as the "intending lender" is insufficient (g). And though, where the parties to the contract appearing in the memorandum are agents, the names of their principals may be proved by parol evidence, this will only be so if the agents contracted as principals. If an agent contracts expressly as agent, the memorandum must sufficiently identify his principal (h). Thus, the usual memorandum signed by the auctioneer, and confirming the contract on behalf of "the vendor," or "as agents to A. B." who is not the vendor but the vendor's solicitor (i), is insufficient, unless the vendor is named or described in such memorandum, or in the particulars or conditions (k); nor will it be sufficient if the contract is not signed at the time by the purchaser, but is afterwards signed by the auctioneer on the authority of a letter from the purchaser's solicitor (l). But such a confirmation is sufficient if the particulars identify, though they do not name, the vendor (m); as where they describe him as "the executor (n) or personal representative (o) of A. B.," or as "a trustee selling under a trust for sale " (p), provided the description is accurate (q), or even where they merely state that the sale is " by direction of the proprietor" (r).
What is sufficient description.
(z) Morris v. Wilson, (1859) 5 Jar. N. S. 168; Filby v. Hounsell, 1896, 2 Ch. 737; 65 L. J. Ch. 852.
(a) Boyce v. Green, (1826) Bat. 608; and see Seagood v. Meale, (1721) Ch. Prec. 560; Champion v. Plummer, (1805) 1B. & P. N. R. at p. 254; and Graham v. Musson, (1839) 7 Sc. 769; 8 L. J. N. S. C. P. 324.
(b) Filby v. Hounsell, 1896, 2 Ch. 737; 65 L. J. Ch. 852. See this case commented on in Lovesey v. Palmer, 1916, 2 Oh. 233.
(c) Wheeler v. Collier, (1827) Moo. & M. 123; and see Jacob v. Kirk, (1839) 2 Moo. &: R. 221.
(d) Coombs v. Wilkes, 1891, 3 Ch. 77; 61 L. J. Ch. 42.