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.
(e) Per Lord Cairns in Rossiter v. Miller, (1878) 3 A. C. at p. 1141: 48 L. J. Ch. 10; and see Stokes v. Whicher, 1920, 1 Ch. p. 421.
(f) Skelton v. Cole, (1857) 1 D. & J. 587; Lovesey v. Palmer, 1916. 2 Ch. 233.
(g) Pattle v. Anstruther, (1893) 69 L. T. 175; 41 W. R. 625: 9 T. L. R. 500.
As stated by Kay, J., in Jarrett v. Hunter (s), "If the vendor is described in the contract as 'proprietor,' 'owner,' 'mortgagee,' or the like, the description is sufficient, although he is not named; but if he is described as ' vendor,' or as '......client' or ' friend ' of a named agent, that is not sufficient" - 'the reason being that the former description is a statement of fact, as to which there can be certainty; in the latter description, in order to find out who is vendor, client, or friend, it is necessary to go into evidence on which there may be a conflict. Where, however, the agreement is wanting in the name of either of the parties, it may be supplied by any other writing connected with it (t).
(h) Lovesey v. Palmer, sup.
(i) Butcher v. Nash, (1889) W. N. 116; 61 L. T. 72.
(k) Potter v. Duffield, (1874) 18 Eq. 4; 43 L. J. Ch. 472; Thomas v. Brown, (1876) 1 Q. B. D. 714; 45 L. J. Ch. 811; and see Williams v. Jordan, (1877) 6 Ch. D. 517; 46 L. J. Ch. 681; Donnison v. People's Cafe Co., (1881) 45 L. T. 187; Jarrett v. Hunter, (1887) 34 Ch. D. 182; 56 L. J. Ch. 141.
(l) Matthews v. Baxter, (1873) 28 L. T. 669.
(m) Commins v. Scott, (1875) L. R. 20 Eq. 11; 44 L. J. Ch. 563.
(n) Hood v. Lord Barrington, (1868) L. R. 6 Eq. 218.
(o) Towle v. Topham, (1878) 37 L. T. 308.
(p) Catling v. King, (1877) 5 Ch. D. 660; 46 L. J. Ch. 384; and see Bourdillon v. Collins, (1871) 24 L. T. 344.
(q) Butcher v. Nash, (1889) W. N. 116; 61 L. T. 72.
(r) Sale v. Lambert, (1874) L. R. 18 Eq. 1; 43 L. J. Ch. 470; Rossiter v. Miller, (1878) 3 A. C. 1124; 48 L. J. Ch. 10; and see Beer v. London and Paris Hotel Co., (1875) L. R. 20 Eq. 412.
(s) 34 Ch. D. p. 184.
From what is stated above it follows that in order that a memorandum may satisfy the statute, the parties to the contract, either principals or agents, must be named or sufficiently indicated. Where an agent contracts expressly as agent, avoiding any personal liability, and does not name, or sufficiently indicate his principal, the memorandum is insufficient, and neither the agent nor the principal can sue upon it (u).
Agent contracting as such for an unnamed principal.
If the name of the party to whom a letter is addressed appears in an endorsed direction, or is written at the foot of the letter, no difficulty on the above point can arise; if an envelope is used, the name may often not appear in the letter; but the Court will receive evidence connecting the envelope with the inclosure (x). Nor need the name of the sender be signed; it is sufficient if the offer is made on a memorandum form, so printed as to show that it comes from the person making the offer (y).
As to the names in the case of an agreement by letter.
Where it does not appear from the memorandum which of the parties named therein is the vendor, oral evidence of the circumstances under which the memorandum was written is admissible to explain the ambiguity (z). But a contract, which is unenforceable because of insufficient description of the vendor, is, of course, not rendered valid by the fact that the purchaser knew who the vendor was (a).
Oral evidence admissible, when.
(t) Warner v. Wilington, (1856) 3 Dr. 523; 25 L. J. Ch. 662; Coombs v. Wilkes, 1891, 3 Ch. 77; 61 L. J. Ch. 42; Oliver v. Hunting, 44 Ch. D. 205; Stokes v. Whicher, 1920, 1 Ch. 411; and see inf. p. 219.
(u) Lovesey v. Palmer, 1916, 2 Ch. 233, 242, 243; Keen v. Mear, 1920, 2 Ch. 574, 581.
(x) Pearce v. Gardner, 1897, 1 Q. B. 688; 66 L. J. Q. B. 457; Freeman v. F., (1890) 7 T. L. R. 431; Last v. Hudlesby, 58 Sol. J. 431; and cf. Kronheim v. Johnson, (1872) 7 Ch. D. 60; 47 L. J. Ch. 132.
(y) Tourret v. Cripps, (1879) 48 L. J. Ch. 567.
(z) Newell v. Radford, (1867) L. R. 3 C. P. 52; 37 L. J. C. P. 1; and see Sarl v. Bourdillon, (1856) 1 C. B. N. S. 188; 27 L. J. C. P. 78; Bank of New Zealand v. Simpson, 1900, A. C. at p. 188; 69 L. J. P. C. 22.
Unless the offeror directs to the contrary, an acceptance by letter is sufficient. "Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted" (b). Hence, if the acceptance has been posted (c), the contract is not invalidated by the fact that a revocation of the offer has been sent to the acceptor, but not received before the time of posting the acceptance (d). It seems to follow that the risk of the letter revoking the offer being lost (e), or being delayed (f), falls on the offeror. Where an offer is made by telegram, this may show sufficient urgency to require a reply by the same means, instead of by the post (g).
Acceptance by letter.
A general description of the estate, - e.g., "Mr. O.'s house" (h), or "my house" (i), or "the property in Cable Street"(k), or "the house in Newport" (l), or "the intended new public-house at Putney" (m), or "the premises" (n), or "The Jolly Sailor Offices, etc." (o), or " this place" (p.), or "property purchased at 420l. at Sun Inn, Pinxton, on 29th March" (q), or " twenty-four acres of land, freehold, at T., in the parish of D." (when it appeared that the vendor possessed no other land answering to that description) (r), or "house being sold for 500l. from Mr. Nelson" (s) - is sufficient, if parol evidence can be produced to show what property was intended.
General description of property sufficient.
(a) Jarrett v. Hunter, (1886) 34 Ch. D. 182, 185; 56 L. J. Ch. 141.