account of these lands; and it was also proved that he had got and E. T. 1853. retained an abatement in the rent, from the head landlord, of £16.

Plaintiff's Counsel, on this state of facts, called on the learned Judge to direct a verdict for the plaintiff. This his Lordship declined to do; but told the jury that there was no binding contract under the Statute of Frauds, but that if there was an agreement in fact between the parties for the sale of the lands of Clowning, independent of the document produced, and if that agreement was acted on by both parties, and not rescinded, and if the money sued for was paid in pursuance of that agreement, the plaintiff was not entitled to recover it back, and they should find for the defendant. Plaintiff's Counsel objected to his Lordship's charge, and asked him to direct a verdict for the plaintiff, on the grounds that there was no evidence of a contract, nor that the plaintiff acted on it. His Lordship refused to do so, but reserved leave to move for a new trial, or that the verdict, if found for the defendant, should be turned into a verdict for the plaintiff. The jury found for the defendant.

A conditional order was this Term obtained, in pursuance of the leave reserved, that the verdict should be turned into one for the plaintiff, or for a new trial, on the grounds that the verdict was against evidence, and for misdirection.

Ball (with him Elrington) showed cause.

The jury have found that the sums of money for which the IOUS were given, were not loans, but advanced upon a contract for the purchase of lands. The plaintiff's, case is, that this contract, not being signed by him, does not bind him, and is not enforcible at law, and that he has received no consideration. The acts done were, first, the payment by the plaintiff; second, the proceedings in the Master's office, in which the plaintiff was supported by the defendant; third, the appropriation by the plaintiff of the abatement of £16, to which, unless on the supposition of the existence of the contract, he was not entitled; fourth, the representations of the plaintiff himself. These were all matters for the jury, and found by them in favour of the plaintiff. The Statute of Frauds has no bearing on the case. It does not invalidate a contract acted on, 16 L VOL. 3.

Exchequer.

RAINSFORD

V.

EAGER.

E. T. 1853. but merely prevents an action being brought to enforce one, unless Exchequer.

RAINSFORD

v.

EAGER.

April 18.

evidenced in writing, as required by it: Laythorp v. Bryant (a). But here the contract has been acted on by both parties. The situation of both has been changed, and the money paid cannot be recovered back: Cocking v. Ward (b).

Richard Armstrong (with Macdonogh), contra.

We rely on a total failure of consideration and the absence of any evidence of it. The plaintiff did not get possession of the lands by virtue of the agreement, but in the ordinary way in the Master's office. [GREENE, B. It would appear that part of the consideration for the agreement, and an acting on it, was the co-operation of the defendant in the Master's office.]-We have got nothing of what we contracted for from the plaintiff. [GREENE, B. You must show that you cannot obtain the performance of the contract either at law or in equity, before you can get back your money.]

Macdonogh, for the plaintiff.

The IOUS are absolute and unconditional, from 1849 to 1852. The action is for money lent, and on an account stated, and our case was thus conclusive: Curtis v. Rickards (c); Douglas v. Holme (d). To this the answer of the defendant is, the money was paid on a contract concerning lands; but there was no contract for the sale of lands enforcible against the plaintiff, therefore the money may be recovered back for want of consideration. The contract, whatever it was, being reduced to writing, can be proved only by the writing: Goss v. Lord Nugent (e); but that is inadmissible in evidence for want of a stamp, and cannot be helped out by parol. There is therefore no evidence whether the contract was for £18 or £15. The defendant insists on retaining money by virtue of a contract impossible to be enforced: Parteriche v. Powlett (f). The evidence of the contract was not admissible, and even when admitted, had no effect, as there was no evidence at all of a

(a) 2 Bing. N. C. 744.

(c) 1 M. & G. 46.

(e) 5 B. & Ad. 64.

(b) 1 C. B. 858.

(d) 12 Ad. & El. 641. (ƒ) 2 Atk. 383.

concluded agreement.
consideration which one party undertook to give to the other had
been given. Here the plaintiff derived no benefit: Scadding v.
Ellis (a); Brooke v. Bookett (b); Earl of Falmouth v.—

In Cocking v. Ward, every part of the E. T. 1853.

Elrington, in reply.

(c).

It was proved, and the jury have found, that there was a concluded agreement, and that it was not rescinded. To support an action of this nature, one of three elements must be found; first, an impossibility to perform the contract, or secondly, illegality of the contract, or thirdly, a refusal by the defendant to perform his part; and there is no case where even a refusal by the plaintiff to perform his part of an agreement has been held as sufficient ground to enable him to bring the action. Our propositions are two first, we have an agreement valid in law, though possibly not enforcible by action; secondly, the position of the parties has been changed in consequence of that agreement. The agreement clearly is not affected by the Statute of Frauds, but only the The evidence of it, and we are not now seeking to enforce it. use we make of Cocking v. Ward is to establish that if the original consideration be not void, but only unenforcible, and after the performance of your part of the contract, you have the aid of a promise from the other party, you can recover upon that; and Cocking v. Ward also establishes that parol evidence may be given of that promise. The admission of Rainsford, that the money was paid upon the contract, is as strong as any thing in Cocking v. Ward, and enables the defendant to retain the money paid voluntarily by the plaintiff, and by his own admission paid on The further transactions agreement which was valid in law.

an

which took place in consequence of the agreement, and which would not have taken place without it, have materially changed the position of the parties, and supply a further consideration from the defendant.

Exchequer.

RAINSFORD

v.

EAGER.

E. T. 1853.
Exchequer.

RAINSFORD

v.

EAGER.

PIGOT, C. B.

We have come to the conclusion that, when such an agreement as the present has been acted on by the parties, and they cannot be restored to the status in quo, money paid in consequence of it cannot be recovered in this form of action. The plaintiff contended that he was entitled to recover on the account stated; and that on the mere production of the I O Us, no proof could be given by the defendant to contradict them. We think this argument cannot prevail, and that the defendant is entitled to hold his verdict. On this part of the argument, the first question which arises is, whether the consideration for the account stated is examinable on the evidence before the jury, and the manner in which the parties presented the case at the trial? We have lately had to consider, in Crampton v. Morris (not yet reported), the nature of the demand on the account stated, and to what extent the consideration for it is examinable on the trial. We rest on the opinion there expressed, viz., that it is essential, to support it, that there should have been a previous debt or dealing on which a liability existed. One of the latest cases on the subject is Petch v. Lyon (a), in which it was held that an acknowledgment by a widow of a debt, as due from herself, but which was the debt of her deceased husband to the deceased husband of the plaintiff, and a promise to pay interest on it, would not support a count on an account stated. Lord Denman there says:-" "But as "the witness, who drew up that memorandum, distinctly proved on "his cross-examination that the debt was not due from the defendant "herself in her own right, nor to the female plaintiff in her own "right, but was a debt from the deceased husband of the one to the "former husband of the other, the plaintiff failed in showing that "the defendant was indebted to the plaintiff on an account stated." Thomas v. Hawkes [per Alderson, B.] (b), and French v. French (c), are to the same effect. None of these cases present facts exactly analogous to the present; but they establish that you can inquire whether, at the time of the account stated, the defendant was indebted that an I O U is examinable to ascertain the considera

tion for which it was given; and if the existence of a debt be E. T. 1853. negatived, the defendant can rely on that.

The evidence to establish the dealings about these I O Us was partly that of the plaintiff, and partly that of the defendant. The plaintiff proved the treaty, which he denied to have been completed, and the defendant proved a positive agreement, not binding by the Statute of Frauds, but which, but for the statute, would have been binding. The jury found the existence of the complete agreement, and that it was not rescinded.

The plaintiff was cross-examined as to what the money for which he got the IO Us was paid for; his answer was, that he gave the money as an accommodation and an act of kindness—not denying, however, that it was given in reference to the agreement-but asserting that the spring and motive of his act was kindness. The defendant and another witness proved that the money was paid in pursuance of the contract, and that it was so stated by the plaintiff. Assuming that the evidence was properly referred to the jury, with a view to ascertain the truth upon these conflicting statements, the result of their verdict was clear. It negatived the admission of a debt, established that there was no loan-no admission of a loanand that the money was received by the defendant in reference to what was then considered a complete contract between the parties. It established that the I O Us were mere vouchers for the payment of money, as they very often are.

The plaintiff then contended that he was entitled to succeed, on the question of consideration; that that had failed on the part of the defendant, and this was the only ground open to him on the finding of the jury. This is a question of law on the facts, and Cocking v. Ward (a) is an authority on it-[states it.]-There the contract was complete-in part performed-and for an interest in land. The first count was upon the contract-the second on an account stated, founded on an admission by the defendant of his liability. The Court held that on the first count the plaintiff could not recover, because the contract could not be proved without a writing. But they also held that the plaintiff was entitled to rest on his oral proof of the contract to support the second, although (a) 1 C. B. 858.

Exchequer.

RAINSFORD

V.

EAGER.