33

AGREEMENTS.

all Leases, &c. in writing.

of land to be

of

By the Statute of Frauds it is enacted, that leases, estates, interests of freehold or terms years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, made and created by livery and seisin only, or by parol and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized in writing, shall have the full force and effect of leases or estates only at will. The 2nd section makes an exception as to all leases not exceeding the term of three years, whereupon the reserved rent shall amount to two third parts at proved value. action shall be brought whereby to charge person upon any contract or sale of lands, tene- his agent. ments or hereditaments, or interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

least of the full im

The 4th section provides that no Agreement

must be signed by the

any party to be

charged or

Whatever property would go as emblements to what prothe executor of the vendor is not within the 4th within the

D

perty is

4th section of

Statute of
Frauds.

section, and may be

Conc. V. & P. 76).

disposed of by parol. (Sug Therefore the sale of growing hops (Evans v. Roberts, 5 B. & C. 835), wheat, turnips (Dunne v. Ferguson, 1 Hayes, 541) and potatoes (Parker v. Staniland, 11 East, 362), would not fall within the 4th section, and in these cases the terms upon which the sale is made, and the condition in which the crop may be at the time of the sale, are immaterial circumstances (1 Hayes, 541; Warwick v. Bruce, 2 Mau. & Sel. 205; Evans v. Roberts, 5 B. & C. 829; Hallen v. Runder, 1 Cro. M. & R. 266); but a contract for the sale of a growing crop of grass to be mown and made into hay by the purchaser, is an interest in land within the 4th section. (Crosby v. Wadsworth, 6 East, 602). Also standing timber or standing underwood (Scorell v. Boxall, 1 Y. & J. 396), and growing fruit (Rodwell v. Phillips, 9 M. & W. 501) are such interests. But the Court supported a parol agreement for the sale of timber as trees, at so much a foot, which the purchaser had begun to cut down and which he had bought after two had been felled. (Sug. Conc. V. & P.76). A tenant's fixtures, although affixed to the freehold, can be sold to the landlord by a parol agree. ment (Hallen v. Runder, 1 Cro. M. & R. 266); and, as between an outgoing and an incoming tenant, a parol agreement for the sale of growing crops will be supported. (Mayfield v. Wadsley, 3 B. & C. 357).

The 4th section of the Statute of Frauds extends not only to interests created de novo, but to all subsisting interests in land.

、

A sale of shares in a mining company is within. this section (Boyce v. Greene, Bat. 608); but shares in a railway company are not, if the act makes them personal estate. (Duncuft v. Albrecht, 12 Sim. 189). An entire agreement which is entered into in reference to property, of which only part is within the 4th section, cannot be supported as to any part of the subject matter unless it is in writing and duly signed. (Sug. Conc. V. & P. 78).

It is sufficient for the party to be charged to sign the agreement, either by himself or some other person by him lawfully authorized.

For the purposes of the 4th section it is sufficient that the agent should be appointed by parol. It will be seen that the appointment of the agent by writing is required only for the purposes of the 1st section, which relates to instruments less executory in their character than agreements.

agreement

writing.

The whole agreement is required to be in writing, The whole so that the document, whether it be a letter or more must be in formal memorandum, must in itself embody the whole terms of the contract, or refer to some writing, conditions, particulars of sale or other papers which do. (Allen v. Bennet, 3 Taunt. 169; Dobell v. Hutchinson, 3 Ad. & Ell. 355; Laythoarp v. Bryant, 2 Bing. N. C. 735; Clinan v. Cooke, 1 Scho. & Lef. 22; Powell v. Dillon, 2 Ball & B. 416).

suflicient

A signature at the beginning of the agree- what is a ment is a sufficient signing to take it out of the signing. statute; as when a person drew up an agreement in his own handwriting beginning "I, A. B., agree,'

&c., and left a place for a signature at the bottom
but never signed, it was considered a memorandum
in writing within the statute.
190; Saunderson v. Jackson, 2
Bleakley v. Smith, 11 Sim. 150).

(Esp. N. P. Cas. Bos. & Pull. 238; But in the case

of articles of agreement containing the terms of a contract, and purporting to be made between certain persons whose names were stated at the commencement, and ending with "As witness our hands," without being followed by any name or signature, it was decided that there was not a sufficient signing within the statute. (Hubert v. Treherne, 3 Man. & G. 743). So the alteration of a draft conveyance will not take the case out of the statute. (Hawkins v. Holmes, 1 P. Wms. 770). Sales by auc- Sales by auction are within the statute. The auctioneer in such cases is held to be agent both for the vendor and purchaser (Sug. Conc. V. & P. 96); and his signature of the name of the highest bidder is sufficient to satisfy the requisitions of the statute. (4 Taunt. 209). If the highest bidder is only an agent, the signature by the auctioneer of the agent's name will be binding on the principal. (White v. Proctor, 4 Taunt. 209; Kenworthy v. Schofield, 2 B. & C. 945).

tion within

statute.

The receipt of the vendor or, in the case of an auction, of the auctioneer, for the purchase money or deposit, or the entry by the auctioneer of the account of the sale in his books is sufficient. Blagden v. Bradbear, 12 Ves. 466; Emmerson v. Heelis, 2 Taunt. 38; Gosbell v. Archer, 2 Ad. & Ell. 500). Where a contract in writing exists which binds one party to a contract, any subsequent note in

writing signed by the other is sufficient to bind him, provided it either contains in itself the terms of the contract or refers to any writing which contains them. (Dobell v. Hutchinson, 3 Ad. & Ell. 355).

constitute

Letters, as might be supposed, may constitute a When letters sufficient agreement within the statute, provided agreement. they contain the amount and nature of the consideration to be paid on one side and received on the other, and a reasonable description of the subject matter of the contract.

A letter is binding on the writer from the time at which it is posted (Kennedy v. Lee, 3 Mer. 441; Thomas v. Blackman, 1 Col. 301), although it may not be received until the following day (Potter v. Sanders, 6 Hare, 1); and if the writer requires that his offer should be accepted by a particular day, the acceptance of the offer will be binding on him, although he may not receive it until some time after the day specified, in case the delay has been occasioned by the Post Office, or by the misdirection of the letter. (Adams v. Lindsell, 1 B. & Ald. 681).

The answer to the written offer must be a simple acceptance of the terms proposed, without the introduction of any new or different term (Holland v. Eyre, 2 Sim. & Stu. 194); and if the proposal is once refused, it cannot afterwards be received by tendering a simple acceptance of it. (Hyde v. Wrench, 3 Beav. 334).

If the letter requires the other party to supply a term in the agreement, there must be a special acceptance in writing containing that term. (Boys v. Ayerst, 6 Madd. 316).