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) Jackson v. J., (1853) 1 Sm. & G. 184; 22 L. J. Ch. 873; Dinham v. Bradford, sup.; see Cumberland v. Bowes, (1854) 3 C. L. R. 149; 24 L. J. C. P. 46, as to meaning of "a fair valuation" on contract for sale of farming stock.
(f) Darbey v. Whitaker, (1857) 4 Dr. 134, sed quaere; Jackson v. J., sup., does not seem to have been cited; see comments on these cases in Richardson v. Smith, (1870) L. R. 5 Ch. 648, 652, 654; 39 L. J. Ch. 877.
It is important to distinguish a valuation from an arbitration within the Arbitration Act, 1889 (h). An agreement for the price to be determined by a valuation generally does not (h), though it may (i), amount to a submission to arbitration. "If it appears from the terms of the agreement by which a matter is submitted to a person's decision, that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry, and hear the respective cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such cases is that there shall be a judicial inquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter, for the purpose of preventing differences from arising, not of Bottling them when they have arisen, and where the case is not one of arbitration, but one of a mere valuation. There may be cases of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence and arguments. In such cases it may be difficult to say whether he is intended to be an arbitrator, or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances" (k).
Valuation distinguished from arbitration.
(g) Richardson v. Smith, (1870) L. R. 5 Ch. 648; 39 L. J. Ch. 877. The Court will in such a case compel the vendor to allow the valuation to be made: Smith v. Peters, (1875) L. R. 20 Eq. 511; 44 L. J. Ch. 613.
(h) Collins v. C, (1858) 26 Beav. 306; 28 L. J. Ch. 184; Re Bawdy, (1885) 15 Q. B. D. 426; 54 L. J. Q. B. 574; Re Carus-wilson, (1886) 18 Q. B. D. 7; 56 L. J. Q. B. 530; Re Hammond and Waterton, (1890) 62 L. T. 808; 6 T. L. R. 302. See, too, Leeds v. Burrows, (1810) 12 East, 1; Re Lee and Hemingway, (1834) 15 Q. B. 305; 3 L.j. N. S. K. B. 124; Turner v. Goulden, (1873) L. R. 9 C. P. 57; 43 L. J. C. P. 60; Jenkins v. Betham, (1855) 24 L. J. C. P. 94; Bos v. Helsham, (1866) L. R. 2 Ex. 72; 36 L. J. Ex. 20.
(i) Re Hopper, (1867) L. R. 2 Q. B. 367; 36 L. J. Q. B. 97; Re Anglo-italian Bank, (1867) L. R. 2 Q. B. 452; Vickers v. P., (1867) L. R. 4 Eq. 529, 536; 36 L. J. Ch. 946; Chambers v. Goldthorpe, 1901, 1 K. B. 624; 70 L. J. K. B. 482.
Where the contract is to be found in a correspondence, as distinguished from a particular note or memorandum formally signed, the whole of that which has passed between the parties, both before and after the alleged contract, must be taken into consideration to ascertain whether a contract was really made (l).
Correspondence as evidence of contract.
Where the document signed by the party charged contains expressions which may or may not refer to another document, parol evidence is admissible to show what matter was referred to (m). If it appears that the reference is to a document, such document may be read with the document which refers to it to supply any terms missing in the latter (n). Moreover, if there is a parol agreement, all the terms of which are found in one or other of the documents, it is enough that such documents refer to the same parol contract, although they do not refer to one another (o).
(k) Per Lord Esher, M. R., in Re Carus-wilson and Greene, (1886) 18 Q. B. D. at p. 9; 56 L. J. Q. B. 530.
(l) Hussey v. Horne-payne, (1879) 4 A. C. 311; 48 L. J. Ch. 846; Williams v. Brisco, (1882) 22 Ch. D. 441; Bolton Partners v. Lambert,
(1889) 41 Ch. D. 295; 58 L. J. Ch. 425; Bristol, etc. Co. v. Maggs,
(1890) 44 Ch. D. 616; 59 L. J. Ch. 472; Bellamy v. Debenham, (1890) 45 Ch. D. 481; 1891, 1 Ch. 412; 60 L. J. Ch. 166.
(m) Ridgway v. Wharton, (1837) 6 H. L. C. 238; 27 L. J. Ch. 46; Baumann v. James, (1868) 3 Ch. 508; Long v. Millar, (1879) 4 C. P. D. 450; 48 L. J. C. P. 596; Cave v. Hastings, (1881) 7 Q. B. D. 125; 50 L. J. Q. B. 575; Oliver v. Hunting, (1890) 44 Ch. D. 205; 59 L. J. Ch. 255; Sheers v. Thimberley, (1897) 13 T. L. R. 451; Dewar v. Mintoft, 1912, 2 K. B. 373; Allsopp v. Orchard, 1923, 1 Oh. 323.
(n) Saunderson v. Jackson, (1800) 2 Bos. & P. 238; Blagden v. Bradbear, (1806) 12 Ves. 471; Allen v. Bennet, (1810) 3 Taun. 169; Western v. Russell, (1814) 3 Ves. & B. 187; Verlander v. Codd, (1822) T. & R. at p. 357; Dobell v. Hutchinson, (1835) 3 Ad. & El. 355; 4 L. J. N. S. K. B. 201; Shardlow v. Cotterell, (1881) 20 Ch. D. 90; 51 L. J. Ch. 353; Studds v. Watson, (1884) 28 Ch. D. 305; 54 L. J. Ch. 626; Wylson v. Dunn, (1887) 34 Ch. D. 560; 56 L. J. Ch. 855; Stokes v. Whicher, 1920, 1 Ch. 323, 411. And for cases where the reference was held insufficient, see Boydell v. Drummond, (1809) 11 East, 142; Price v. Griffith, (1851) 1 D. M. & G. 80; 21 L. J. Ch. 78; Jackson v. Oglander, (1865) 2 Hem. & M. at p. 472; Peirce v. Corf, (1874) L. R. 9 Q. B. 210; 43 L. J. Q. B. 52; Nene Valley Drainage Comd. - Vol. I.
If the document which it is sought to identify is described, it is sufficient to show that there is only one document which can answer the description (p). If more than one document answers the description, it may appear that one of them contains expressions which show conclusively that it is the one referred to, in which case parol evidence is not admissible to prove the contrary. Further, if the contents of the documents themselves give no clue, it may be shown by parol evidence that, though the expressions used by the writer apparently apply to both documents equally, still in the circumstances the expressions have been used by him with some meaning other than their apparent meaning; and if this secondary meaning fails to clear away the ambiguity, then, direct evidence of the writer's intention is admissible to show which of two documents to which the words of reference equally apply, is in fact referred to (q). It is conceived that there is no distinction in principle between cases where the document which it is sought to identify, is specifically described, as "my letter to you of the loth," or where there is merely a general reference to some previous negotiation (r). The same rules are applicable to both cases, the only difference being that in the latter case it may be harder to identify the document, because there may be a larger class which satifies the description.