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.
What evidence admissible to connect documents.
Missioners v. Dunkley, (1876) 4 Ch. D. 1; Kronheim v. Johnson, (1877) 7 Ch. D. 60; 47 L. J. Ch. 132; Coombs v. Wilkes, 1891, 3 Ch. 77; 61 L. J. Ch. 42; Taylor v. Smith, 1893, 2 Q. B. 65; 61 L. J. Q. B. 331; Potter v. Peters, (1895) 72 L. T. 624; 64 L. J. Oh. 357.
(o) Studds v. Watson, (1884) 28 Ch. D. 305.
(p) Ridgway v. Wharton, (1837) 6 H. L. C. 238; 27 L. J. Ch. 46; Price v. Griffith, (1851) 1 De G. M. & G. 80; 21 L. J. Ch. 78.
(q) Norton, 2nd ed. 120; and see Re Rayner, 1904, 1 Ch. p. 188.
(r) Verlander v. Codd, (1822) T. & R. 352; Greene v. Cramer, (1843) 2 Con. & L. 54; Skinner v. M'douall (1848) 2 De G. & Sm. 265; 17 L. J. Ch. 347; Hamilton v. Terry, (1852) 11 C. B. 954; 21 L. J. C. P. 132; Morgan v. Holford, (1852) 1 Sm. & G. 101; Alcock v. Belay, (1856) 4 El. & Bl. 660; 24 L. J. Q. B. 68; Warner v. Willington, (1856) 3 Dr. 523; Wood v. Searth, (1855) 2 K. & J. 33; Skelton v. Cole, (1857) 1 D. & J. 587.
Where, however, the ambiguity is apparent on the face of the document, that is, the reference is not merely inaccurate but is inconsistent, no evidence, except as to the meaning of the words employed, is admissible to show which document was intended (s). For instance, where the signed writing referred to such of the clauses contained in a named paper as had been read at a meeting between the parties, not stating which had been so read, it was held bad for uncertainty (t).
Upon a sale of goods, a subsequent letter written by the purchaser, and containing the following expressions, "The tobacco I want immediately forwarded; I likewise want the invoice of the rice and other tobacco," was held to be sufficiently connected with the previous entries of sale of the articles in the vendor's order book (u).
A reference in a signed document to "the agreement which your client alleges' he has entered into" has been held insufficient (x); so, too, a letter from an alleged purchaser inclosing and referring to a draft conveyance which recited that he had agreed to purchase land (y).
In cases of correspondence, if the original offer leaves nothing uncertain on the face of it (z), and is met by a simple acceptance, the treaty is, of course, concluded; but if the original offer leaves anything to be settled by future arrangement, it is merely a proposal to enter into an agreement (a). So, if the reply be either more or less than a simple acceptance, the variation, unless immaterial (b), must be acceded to by the original proposer (c). In fact, there will be no contract, until there is, upon the face of the correspondence, "a clear accession on both sides to one and the same set of terms" (d).
Tests of sufficiency in cases of correspondence.
It must contain a clear acces(s) Norton, 2nd ed. 107, 108.
(t) Brodie v. St. Paul, (1791) 1 Ves. 326, 333; Clinan v. Cooke, (1802) 1 Sch. &. L. p. 36; sed qu. See as to uncertainty where there has been part performance, Vouillon v. States, (1856) 2 Jur. N. S. 845; 25 L. J. Ch. 875.
(u) Allen v. Bennet, (1810) 3 Taun. 169.
(x) Jackson v. Oglander, (1865) 2 H. & M. 465; see, too, Skelton v. Cole, (1857) 1 D. & J. 587, and sup. pp. 211, 212.
(y) Munday v. Asprey, (1880) 13 Ch. D. 855; 49 L. J. Ch. 216.
(z) Boneyman v. Marryat, (1857) 6 H. L. C. 112; 26 L. J. Ch. 619.
Sion by both parties to the same terms.
What is apparently an acceptance of an offer may turn out to be merely an offer made in consequence of a statement of willingness to treat. The whole correspondence must be looked at. Two letters taken by themselves may appear to amount to a contract, but when taken in conjunction with the earlier and later letters it may be inferred that the matter has not passed beyond the stage of negotiations (e). "You must not at one particular time draw a line and say, 'we will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond'" (f).
Where, however, there is a simple acceptance of an offer to purchase, accompanied by a proposal that the acceptor desires that the arrangement should be put into some more formal terms, the mere reference to such a proposal will not prevent the Court from enforcing the final agreement so arrived at (g). A signed agreement, which contained all the terms of the contract, was held not to be conditional merely because it was sent, with the consent of the other party, to a solicitor as instructions for the preparation of a more formal instrument (h). So, also, the contract was held unconditional where the memorandum was headed "rough draft," and it was admitted by both parties that they intended a more formal agreement to be prepared (i). But if the stipulation as to a formal contract is a term of the assent, leaving it open to the acceptor or his solicitor to qualify the assent in any way, there is no final agreement (k).
Where, on simple acceptance, a formal agreement is required.
(a) Chinnock v. Marchioness of Ely, (1865) 4 D. J. & S. 638; Rummens v. Robins, (1865) 3 D. J. & S. 88; Wood v. Midgley, (1854) 5 D. M. & G. 41; 23 L. J. Ch. 553; Goodall v. Harding; (1885) 52 L. T. 126; Syer v. Alder, (1898) 14 T. L. R. 550.
(b) Clive v. Beaumont, (1847) 1 De G. & S. 397; Gibbins v. North East Metropolitan Asylum District, (1847) 11 Beav. 1; 17 L. J. Ch. 5; Simpson v. Hughes, (1896) 66 L. J. Ch. 143, 334.
(c) Holland v. Eyre, (1825) 2 Sim. & St. 194; Smith v. Surman, (1829) 9 B. & C. 569; 7 L. J. (O. S.) K. B. 296; Heyward v. Barnes, (1854) 23 L. T. (O. S.) 68; Ball v. Bridges, (1874) 22 W. R. 552; South Hetton Coal Co. v. Haswell & Co., 1898, 1 Ch. 465; 67 L. J. Ch. 238.
(d) Thomas v. Blackman, (1844) 1 Coll. 312; and see Cowley v. Watts, (1853) 17 Jur. 172; 22 L. J. Oh. 591; Cheveley v. Fuller, (1853) 13 C. B. 122.
(e) Hussey v. Home-payne, (1879) 4 A. C. 311; 48 L. J. Ch. 846: May v. Thomson, (1882) 20 Ch. D. 705; 51 L. J. Ch. 917; Bristol, etc. Aerated Bread Co. v. Maggs, (1890) 44 Ch. D. 616; Bellamy v. Deben~ ham, (1890) 45 Ch. D. 481; 1891, 1 Ch. p. 419.