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.
The writing must fix all the terms of the agreement.
The form of conditions of sale prescribed and published by the Lord Chancellor on the 7th August, 1925, and made under the power (n) given by s. 46 of the L. P. Act, 1925, and made available for any contract for the sale of land entered into on or after the 1st January, 1926, is set out in an Appendix, infra. It is important to bear in mind, that in the case of contracts made by correspondence, these conditions will apply to every contract so formed, except so far as the same may, by such correspondence, be expressly modified or excluded.
(m) Hampshire v. Wickens, (1878) 7 Ch. D. 555; and see Baumann v. James, (1868) 3 Ch. 508; Foster v. Wheeler, (1888) 38 Ch. D. 130; 57 L. J. Ch. 149, 871.
(n) Lucas v. Hall, (1899) W. N. 92.
(o) Cox v. Middleton, (1854) 2 Dr. 209, 219; Davis v. Jones, (1856) 25 L. J. C. P. 91; Fitzmaurice v. Bayley, (1860) 9 H. L. C. 78; 27 L. J. Q. B. 143.
(p) Marshall v. Berridge, (1881) 19 Ch. D. 233; Humphery v. Cony-beare, (1899) 80 L. T. 40; see also Rock Portland Co. v. Wilson. (1882) 52 L. J. Ch. 214; Wyse v. Russell, (1882) 11 L. R. lr. 173; White v. M'mahon, (1887) 18 L. R. Ir. 460.
(q) Re Lander and Bagley, 1802, 3 Ch. 41; 61 L. J. Ch. 707; White v. Hay, (1895) 72 L. T. 281.
(r) Phelan v. Tedcastle, (1885) 15 L. R. Ir. 169.
(s) Williamson v. Wootton, (1855) 3 Dr. 210.
(t) Cooper v. Hood, (1858) 26 Beav. 293.
Contracts by correspondence, implied terras of.
The consideration, which is an essential part of a contract (x), must appear from the memorandum (y). Thus a receipt for the deposit has been held insufficient, because it did not state either the price or what proportion the deposit bore to the price (z).
The memorandum must state the consideration.
A general agreement to sell "at a fair valuation" may be enforced; and the Court will, if necessary, direct a reference to ascertain the price (a); but where the mode of valuation is specified, it must be strictly followed; for instance, where the price is to be determined by A. and B., or an umpire selected by them, and they fail to agree upon the price, or to name an umpire, the Court can give no relief (b). But where the price is to be settled by arbitration, the Court may, in the cases mentioned in the Arbitration Act, 1889, s. 5, appoint an arbitrator, umpire, or third arbitrator. A valuation determined in accordance with the terms of the contract is conclusive in the absence of fraud or collusion (c). Where, however, it is not of the essence of the contract that the value should be fixed by arbitration, the Court may, it seems, enforce the agreement, and if necessary ascertain the price (d).
Price determinable by valuation, etc.
(u) Sed quaere whether there was power to prescribe and issue forms under the Act before it came into operation.
(x) Re Kharaskhoma, etc. Syndicate, 1897, 2 Ch. at p. 464; 66 L. J. Ch. 675.
(y) Wain v. Warlters, (1804) 5 East, 10.
(z) Blagden v. Bradbear, (1806) 12 Ves. 466; and see Clerk v. Wright, (1737) 1 Atk. 12; Elmore v. Kingscote, (1826) 5 B. & C. 583; Milnes v. Gery, (1807) 14 Ves. 400, 406; Morgan v. Milman, (1853) 3 D. M. & G. 24; 22 L. J. Ch. 897; Stokes v. Whicher, 1920, 1 Ch. p. 417.
(a) Marsh v. Jones, (1889) 40 Ch. D. 563; and see Milnes v. Gery, (1807) 14 Ves. 400, 407; Lord Lonsdale v. Gaskarth, (1805) cited 12 Ves. 108; Blundellv. Brettargh, (1811) 17 Ves. 232; Gregory v. Mighell, (1811) 18 Ves. 328, 334; Pritchard v. Ovey, (1820) 1 J. & W. 396; Price v. Assheton, (1835) 1 Y. & C. 82, 441; 4 L. J. N. S. Ex. Eq. 4; Morgan v. Milman, (1853) 3 D. M. & G. 24; 22 L. J. Ch. 897; 1 Dav. 4th ed. 523; et contra, Gourlay v. Duke of Somerset, (1815) 19 Ves. 430; Agar v. Macklew, (1825) 2 Sim. & S. 418; 4 L. J. (0. S.) Ch. 16; Logan v. Le Mesurier, (1847) 6 Moo. P. C. at p. 132.
(b) Milnes v. Gery, (1807) 14 Ves. 400; and see Cooth v. Jackson, (1801) 6 Ves. 12, 34; Gourlay v. Duke of Somerset, (1815) 19 Ves. 431; Collins v. C, (1858) 26 Beav. 306; 28 L. J. Ch. 184; Morgan v. Milman, (1853) 3 D. M. & G. 24, 35; 22 L. J. Ch. 897; Darbey v. Whitaker,
A distinction has been properly drawn between an agreement that the price of the property itself shall be settled by a valuation, and an agreement, upon the sale of buildings at a specified price, that certain plant and machinery shall be taken at a valuation (o). In one case (f), V..-c. Kindersley refused to enforce specific performance of a contract to purchase the lease and goodwill of a public-house at a specified price, and the stock and fixtures at a valuation; but, in a later case, where the contract fixed the price for the estate and provided that the purchaser should take certain furniture and chattels at a valuation to be made by valuers to be mutually agreed upon, and the vendor refused to appoint a valuer or to complete the sale, the Court of Appeal, affirming V.-c. Stuart, considered that the clause providing for the purchase of the furniture, etc, was merely a minor and subsidiary part of the agreement, and not, as in Darbey v. Whitaker, of the essence of the bargain, and decreed specific performance of the contract, except so far as it related to the personal chattels (a).
Agreement to take fixtures at a valuation.
(1857) 4 Dr. 134; Tillett v. Charing Cross, etc. Co., (1859) 26 Beav. 419; 28 L. J. Ch. 863; and see Scott v. Corp. of Liverpool, (1858) 3 D. & J. 334, 367; 28 L. J. Ch. 236; Scott v. Avery, (1855) 5 H. L. C. 811; 25 L. J. Ex. 303; Vickers v. V., (1867) L. R. 4 Eq. 529; 36 L. J. Ch. 946; Caledonian Insurance Co. v. Gilmour, 1893, A. C. 85; Spurrier v. Cloche, 1902, A. C. 446.
(c) Collier v. Mason, (1858) 25 Beav. 200; Weekes v. Gallard, (1869) 21 L. T. 655; 18 W. R. 331; but see Parken v. Whitby, (1823) l'turn. & R. 366.
(d) Dinham v. Bradford, (1869) 5 Ch. 519, 523; Hordern v. E., 1910, A. C. 465, 474.