praise ment under Appraisers appointed by the high bailiff of a County for apCourt, to value goods, under 9 & 10 Vict. c. 95, s. 106, are entitled, out of the produce, to sixpence in the pound on the county value of the goods, over and above the stamp duty (z). might fairly charge five guineas a day for attending in the House of Commons during the progress of a bill. (z) See post, pp. 250, 251. As to charges on an appraisement under a distress, see post, p. 281. court pro cess. Definition lars and CHAPTER IV. PARTICULARS AND CATALOGUES. ON all sales by auction, except where the property is of of particu- trifling value, a description of the thing to be sold is reduced catalogues. into writing; and such description, when it relates to real property, or property of the nature of realty, is called the "Particulars of Sale," and when it refers to personal effects sold in lots, is designated a "Catalogue" (a). In doubtful ticulars are In preparing particulars great care should be taken to cases par use appropriate terms. The language employed should be construed clear and unambiguous; because, if there be any reasonable doubt as to the meaning of the particulars, they will be construed strictly against the vendor (b). against vendor. Not Moreover, as a general rule, they cannot be contradicted, affected by varied, or added to, by any verbal declarations of the auctioneer made at the time of sale. As was said by Lord verbal declara Advertisements. (a) Advertisements are generally published in the newspapers, announcing the time and place of sale, and subject of sale, and stating to whom to apply for further information. They generally give, either the particulars in full, or an epitome of them. See specimens, post, pp. 292, Circulation 293. Particulars and conditions should be circulated before the sale, or of particu- at any rate in the sale-room; Torrance v. Bolton, L. R. 14 Eq. 124, 132; lars. 41 L. J. Ch. 643, 647; aff. L. R. 8 Ch. 118; 42 L. J. Ch. 177. (b) Dart, 109; Symons v. James, 1 Y. & C. C. C. 487; Rhodes v. Ibbetson, 4 De G. M. & G. 787; 23 L. J. Ch. 459; Cruse v. Nowell, 2 Jur. N. S. 536; 25 L. J. Ch. 709; Smith v. Ellis, 14 Jur. 682. In these cases the ambiguity appeared on the conditions; but the principles on which they were decided are equally applicable to particulars. auctioneer. Ellenborough, C.J., in a case before him: "Men cannot tell tions of what contracts they enter into, if the written conditions of sale are to be controlled by the babble of the auctionroom" (c). The reason of the rule is that evidence cannot be given of a parol variation of a written contract. But, although evidence of such verbal declarations is Exceptions. inadmissible at law on behalf of either plaintiff or defendant, and in Equity on behalf of the plaintiff, such evidence is admissible in Equity on behalf of the defendant to an action for specific performance (d). The ground Fraud, &c. on which this exception to the general rule proceeds may be stated in the words of Lord Langdale, M.R.: "Where fraud, mistake or surprise cannot be established without evidence, Equity will allow a defendant to a bill for specific performance to support a defence founded upon any of those grounds by evidence dehors the agreement " (e). Where an auctioneer has, at the sale, made a parol declaration at variance with the particulars, the practical application of the rule would appear to be as follows. If the variation is in favour of the vendor, the vendor cannot enforce specific performance with the variation, nor, on the other hand, can the purchaser enforce specific performance (c) Jones v. Edney, 3 Camp. 285, 287; where the reading the lease at the sale was held no excuse for misstating the terms of the lease in the particulars; approved in Flight v. Booth, 1 Bing. N. C. 370, 379; 3 L. J. C. P. 66. (d) Dart, 110; Gunnis v. Erhart, 1 H. Bl. 290; Greaves v. Ashlin, 3 Camp. 425; Hogg v. Snaith, 1 Taunt. 347; Powell v. Edmunds, 12 East, 6; Ford v. Yates, 2 Man. & G. 549; Higginson v. Clowes, 15 Ves. 516; Clowes v. Higginson, 1 V. & B. 524; and the same applies between an original purchaser and his sub-purchaser; Shelton v. Livius, 2 C. & J. 411; 1 L. J. Ex. 139. The operation of a written agreement may, however, be suspended by a contemporaneous oral agreement; Wallis v. Little, 11 C. B. N. S. 369; 31 L. J. C. P. 100; and see post, Chap. VIII. (e) Manser v. Back, 6 Hare, 443, 448. Parol evidence admissible without the variation. If the variation is in favour of the purchaser, the purchaser cannot enforce specific performance with the variation, nor, on the other hand, can the vendor enforce specific performance without the variation (f). Parol evidence is admissible to explain the subject-matter of a written agreement, although not to vary its terms (g). to explain And, in a recent case, it has been decided that a plaintiff subjectmatter of purchaser may give evidence of parol declarations made by the auctioneer at the sale, when such declarations do not agreement. contradict the particulars or conditions, but are merely collateral to the contract (h). written Same rules And the same rules apply to catalogues, whenever the applicable contract has been reduced into writing. But, as a contract to cata. for the sale of goods need not, in certain cases, be in writing (1), it may happen that the contract is by parol. In such a case verbal declarations made by the auctioneer logues. (f) Woollam v. Hearn, 7 Ves. 211; 2 W. & T. L. C. 464; and the following cases, among others, there cited: Higginson v. Clowes, 13 Ves. 516; Winch v. Winchester, 1 V. & B. 375; Marquis Townshend v. Stangroom, 6 Ves. 328; Price v. Ley, 4 Giff. 235; aff. 32 L. J. Ch. 530; Ramsbottom v. Gosdon, 1 V. & B. 165; London & Birmingham Ry. Co. v. Winter, 1 Cr. & Ph. 57; Wood v. Scarth, 2 Kay & J. 33; Martin v. Pycroft, 2 De G. M. & G. 785; 22 L. J. Ch. 94, where plaintiff submitted to variation being made in favour of defendant; Clowes v. Higginson, 1 V. & B. 524, where plaintiff was refused specific performance with the variation, because he had throughout insisted on his construction of the contract; Manser v. Back, 6 Hare, 443, where defendant (the vendor) was permitted to give evidence of a parol variation, although the plaintiff (the purchaser) did not hear the auctioneer make it; Snelling v. Thomas, L. R. 17 Eq. 303; 43 L. J. Ch. 506. As to effect of part performance, see post, Chap. X. (g) Ogilvie v. Foljambe, 3 Mer. 53; Macdonald v. Longbottom, 1 E. & E. 987; 29 L. J. Q. B. 256; and see Pember v. Mathers, 1 Bro. Ch. 52; cf. Leake 196 et seq.; and see post, Chap. VIII. (h) Brett v. Clowser, 5 C. P. D. 376; cf. Leake, 188. (2) As to what contracts must, and what need not, be in writing, see post, Chap. VIII. would be admissible in evidence on behalf of either party (k). and condi contract. The particulars are generally printed together with the con- Particulars ditions on which the sale is to be made (if not printed tions form together they should be made explicitly to refer to one terms of another) (1), and the two together become part of the contract of sale; it being customary, on the close of the biddings, for the purchaser merely to agree, by a short memorandum (m), which is usually annexed to, or endorsed on, the particulars and conditions, to purchase the property as described in the particulars, subject to the conditions. between ditions. The distinction between particulars and conditions has Distinction been stated as follows by Malins, V.-C., in Torrance V. particulars Bolton (n): "The proper office of the particulars is to and condescribe the subject-matter of the contract, that of the conditions to state the terms on which it is sold." This distinction has not always been observed; but should be carefully borne in mind, for, as was held in the above-mentioned case, the omission from the particulars of a fact which ought to be stated in them is not necessarily remedied by a statement of it, however explicit, in the conditions; unless, indeed, it can be shown that the purchaser's attention was expressly directed to it. tain faith Speaking generally, the particulars should contain a faithful Particulars description of the property to be sold, with an exact account should conof its liabilities and incumbrances, and "should be so ful descripframed as to convey clear information to the ordinary class tion of property. (k) Eden v. Blake, 13 M. & W. 614; 14 L. J. Ex. 194. (1) Kenworthy v. Schofield, 2 B. & C. 945; and post, Chap. VIII., passim. (m) For forms of memorandum, see post, Part. II. (n) L. R. 14 Eq. 124, 130; 41 L. J. Ch. 643; aff. L. R. 8 Ch. 118; 42 L. J. Ch. 177. |