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Decisions of the Superior Courts of New South Wales, 1788-1899

Stubbs v. Innes [1841] NSWSupC 35

specific performance - conveyancing - Statute of Frauds

Supreme Court of New South Wales

Dowling C.J., 12 March 1841

Source: Sydney Herald, 16 March 1841


            FRIDAY. - Before His Honor the Chief Justice.

            This was a suit for the specific performance of an agreement to purchase a certain estate called Parkhurst, alleged to have been made by the defendant. Mr. Donnelly and Mr. Windeyer appeared for the plaintiff; Mr. Foster, Mr. a'Beckett, and Mr. Hustler for the defendant. An offer in writing from Captain Innes stating that he was authorised to offer £600 for the estate, was produced on behalf of the plaintiff, and Mr. Donnelly and Mr. Windeyer cited many authorities to prove the validity of the agreement. The defence set up was, that Captain Innes was acting only in behalf of Mrs. Reiby to make enquiries &c. but not to conclude a purchase. The case was fully argued on both sides, and Mr. Donnelly having replied, His Honor deferred judgment.

Dowling C.J., 26 March 1841

Source: Sydney Herald, 29 March 1841 [1]

            FRIDAY. - Before His Honor James Dowling.

            This was a bill by vendor against vendee for specific performance of an alleged agreement for the sale of an estate called Parkhurst, in the county ofCumberland. The case had been fully argued on a previous day, and His Honor now proceeded to deliver judgment as follows:-

            The bill states, that complainant, being seized in fee of the estate in question, on the 25th April, 1840, advertised the same for sale on the 30th April, 1840, by public auction in the Sydney newspapers, with full description of the estate and terms of sale, and amongst others in the Australian newspaper. That soon after the advertisement appeared, the defendant called on complainant to know the price of the estate, and was informed that it was £700, upon which defendant requested him to delay the sale for twenty-four hours, in order to allow him time to think about thepurchase and in compliance with this request, when the estate was put up for sale by auction on the 30th April, it was bought in by the complainant. That on the 1st May, the complainant received the following notice in the handwriting of the defendant:- "Captain Innes begs to inform Mr. Stubbs, that he is authorized to offer him £600 for Parkhurst on the advertised terms, and title made good on the 1st May, 1840." The complainant immediately accepted the offer, and wrote and sent an answer in the following terms, "Sydney, May 1st, 1840. Memorandum: -- I have this day sold Captain Innes the estate of Parkhurst, containing 109 acres, for the sum of £600 as per advertised terms, and the title made good, viz." Then followed the advertised terms, and signed by the complainant. On the 11th May, the defendant called at the complainant's office, and told his clerk, that when he made that offer, he had no intention of making a bona fide purchase, and that he supposed they must go to law about it, which he was very sorry for, and he has since refused to pay the deposit stipulated in the terms of sale, or to perform the agreement. The defendant, by his answer, admits most of the facts alledged, but says that all along he stated to complainant, that he was acting only as the agent of Mrs. Reiby, and that he refused on such ground to sign the memorandum set forth in the bill, and that, on the 2nd May, complainant applied to Mrs. Reiby herself for payment of the deposit; and concluded by relying on the statue of frauds (29 Car. 2) as much as if the same had been pleaded to the bill. The complainant having amended his bill, by requiring the defendant to answer, whether he was ever appointed the agent of Mrs. Reiby for the purchase of the land; the defendant in his further answer says, "that he never was appointed the agent of the said Mrs. Reiby, or of any other person whatsoever, for the purpose of purchasing the land, but he admits that he was appointed the agent of Mrs. Reiby, for the purpose of enquiring into the nature of the estate, and for the purpose of taking such steps in reference thereto, as might enable Mrs. Reiby to become the purchaser herself, if she thought (upon obtaining information, he was so appointed by her to obtain) that such purchase would be beneficial to her. It was proved, on the part of the complainant, that in April the estate in question was advertised for sale in theAustralian newspaper, on the terms of paying 10 per cent cash deposit, and the remainder by approved bills at three, six, nine, and twelve months' date, and that there was no other advertisement relating to the same property containing different terms. About the 25th April, the defendant called upon and saw the complainant, and on the 1st May, the defendant sent the note set out in the bill; on the same day the complainant made out, bought, and sold, and caused to be left with the defendant the said note set out in the pleadings, signed by the complainant, and the defendant having kept it, now produced it in evidence. The complainant read in evidence those parts of the defendant's answer, in which he admitted, that the note of 1st May, 1840, was in his hand writing, and that he believed the conditions of sale of the estate were those set forth in the Australian newspaper, and identical with those in the said note delivered to him by the complainant. The whole of the defendant's amended answer was also read in evidence. The only evidence, on the part of the defendant, was that of a clerk of the complainant, who by the directions of the defendant himself, called upon Mrs. Reiby on the 9th May, and saw her in the afternoon of that day, but there the evidence rested.

            The first question, arising upon the bill answer and proofs is whether the defendant's note of the 1st May, 1840, is a sufficient memorandum in writing to satisfy the requisites of the Statute of Frauds, being written only in the third person, and not signed by the defendant; upon this point no stress was built on the part of the defendant in argument, as it seemed to be taken for granted, that the case of Ogilvie v. Foligambe 3 Merivale 53, was a decisive authority for holding, that the vendee's name at the beginning of a letter, written by him in the third person, is a sufficient signature within the statute. Indeed, this point has been settled by a variety of cases both at law and in equity. The next and more important question is, whether the note of the defendant amounts to a binding contract upon any body? It was contended on the part of the defendant that it is only a mere proposal, or offer, or solicitation, and that something remained to be done to render it a complete contract. In Kennedy and Lee, 3 Meriv. 441, it was decided that in order to form a contract by letter, of which the Court will decree a specific performance, nothing more is necessary than that the amount and the nature of the consideration to be paid on one side, and received on the other, should be ascertained, together with a reasonable description of the subject matter of the contract. Now in this case the terms of the note are, - "Captain Innesbegs to inform Mr. Stubbs, that he is authorised to offer him £600 for Parkhurst, on the terms advertised, and `title made good.'" It appears to me, that whatever may be the effect of it, as it respects the defendant, this is a complete contract to buy. - It amounts to an agreement to pay £600 for Parkhurst, on the terms advertised, and title made good. There is here a sufficient description of the property and price to be paid. If anything had remained to be done, or any condition to be performed, it might be different, but the contractor has done all in his power to bind himself. Here no definitive answer was required to the proposal, as in Rutledge v. Grant, 4 Bing. 453, there is no such condition as that "if you will take £600 I am instructed to offer you that price," which would be the language of a mere treaty, depending upon the vendor's assent or dissent, as to its obligatory effect. But here no answer was required on the part of the vendor to render the defendant's agreement binding. The apparent want of mutuality will not, in equity, affect the case. In Boys v. Ayerst, 6 Mad. 316, it was holden that a letter containing the entire terms of an agreement for the purchase of lands, it is not necessary for the plaintiff to prove that he accepted the terms. If indeed it required the plaintiff to supply a term in the agreement, there must be a special acceptance in writing to supply that term, in order to take the case out of the Statute of Frauds. In that case the Vice Chancellor said, "It has long since been the settled rule of a Court of Equity, to decree specific performance of an agreement which has been signed by the party sought to be charged with it, although it be not signed by the plaintiff in the suit, and he be not equally bound by it. It may be matter of surprise that it should have been so settled, because although such an agreement may satisfy the words of the Statute of Frauds, yet a Court of Equity does not generally lend its assistance to enforce an agreement which is not mutual. It is now, however, too late to question this doctrine." In the same case his Honor says, "A plaintiff seeking the aid of a Court of Equity to enforce an entire agreement, signed only by the party sought to be charged with it, is not put to prove that he accepted it - the Filing of the Bill prima facie sufficiently shews his acceptance;" again he says, "If, however, the writing do not in itself evidence all the terms of the engagement, by which the person signing it consents to be bound; but require from the other party not a simple assent to the terms stated, but a special acceptance, which is to supply a further term of the agreement; then it is obvious, that such special acceptance must be expressed in writing, for otherwise the whole agreement will not be in writing, within the Statute of Frauds." It is true that in the present case the mode of payment is to be got at by reference to the terms advertised. Those terms are made evidence in this cause by the defendant's admission that the estate was sold according to the terms of the advertisement produced in evidence, and there are numerous cases to shew, that the terms of an agreement may be made out by various instruments, when they are all consistent and do not vary the terms of the contract. In this case there is a distinct reference to the terms of the advertisement, which distinguishes the case from Boydell v. Drummond, 11 Eust. 142. Then the defendant makes an offer binding upon the contractor, and it was necessary to shew that the vendor accepted the offer. - The defendant had put it out of his power to retract. For more abundant caution, however, the complainant proves, that on the very same day he accepted the offer, and bound himself by a signed note, which he delivers to the defendant, and which now comes out of the hands of the defendant himself. The defendant admits, that he did request the complainant to postpone the sale for twenty-four hours. The complainant acceeds to this request - he forgoes the opportunity of selling by auction, and buys in the estate on 30th April, and then on the 1st May. The defendant offers the terms, by which he will be bound, and the complainant forthwith accepts his offer. It appears to me therefore too late now to contend that the actings of the defendant amounted only to a mere proposal, a treaty for the purchase; he may not have intended to bind himself, but the Court is bound to look to his acts. The defendant's first answer admits that his application, originally made for the postponement of the sale for twenty-four hours, was in order that he might have time to consult with Mrs. Reiby on the subject of thepurchase. This is an admission, that he was then treating for, or about a purchase. At that time he was apprised of the price demanded, and then on the 1st May, he concludes the bargain by contracting to give £600 on the terms advertised, and the complainant at once closes with him. This therefore must be considered as an actual sale. The only remaining question and the one for which the greatest struggle was made, is whether this agreement is binding on the defendant personally? It is contended, that on the very face of the agreement, the defendant only acted as an agent, and that consequently he is not personally bound. In his original answer he asserts, that from the commencement of the treaty, and throughout, he only acted asagent of Mrs. Reiby in negotiating the purchase, and yet in his amended answer, he states that he never was appointed the agent of Mrs. Reiby fore the purpose ofpurchasing the lands, but merely as agent for the purpose of inquiring into the nature of the estate, and for the purpose of taking such steps in reference thereto, as might enable Mrs. Reiby to become the purchaser thereof, if she thought (upon obtaining the information he was so appointed her agent to obtain) that such purchase would be beneficial to her. These answers are somewhat inconsistent, and something like blowing hot and cold. At first he admits he was negotiating only as agent for thepurchase, and then he repudiates the idea of any such agency, but only that he was agent to enquire and report to his principal. The inevitable consequence of this is, that if he was not an agent to purchase, he has exceeded his authority, and both at law and in equity he becomes personally liable. It is clear that somebody is bound by this agreement. The defendant enters into the contract nominally as a person authorised to buy for somebody. It now turns out as his answer admits, that he was not authorisedto buy on behalf of anybody he is supposed to represent, and therefore the complainant must look to him as the contracting party, and trust him as a principal. He has not only not disclosed his principal, if he had any, but even denies that he had any authority to purchase, as agent under such circumstances, it must be regarded, as a contract in his own name, and for his own benefit. Although the contract would by implication seem to be made on behalf of another. This must be looked upon as a personal contract, and falling within the rule, when assuming him to be an agent, he has pledged his own credit by concealing his principal, or has exceeded his powers, so as to render his principal irresponsible. In ex-parte Hartsop, 12 Ves., 325, the Lord Chancellor says, "No rule of law is better ascertained or stands upon a stronger foundation than this - that where an agent names his principal, the principal is responsible, not the agent; but the application of that rule, the agent must name his principal, as the person to be responsible." If the defendant is not an agent, or if he was and has exceeded his authority, then he is liable. I think the doctrine of Johnson v.Ogilby, 3 p., Williams, 379, is in point with this case where the Lord Chancellor says, "The difference is, where the party undertaking for and on behalf of his client, hasauthority so to do, and where he has not. If such undertaker has no authority, then it is a fraud, and the undertaker ought himself to be liable, but where there is such authority given (as there was in that case) this is only acting for another, like the case of a factor and broker acting for their principal, who were never held to be liable in their own capacities." On the whole, I am of opinion, 1st. That this is a contract in writing to satisfy the statute of frauds; 2nd. That the note of the 1st May, 1840, coupled with the advertised forms, admitted by the defendant's answer, amounts to a complete agreement, and 3rd. That the defendant has bound himself personally by the terms of the contract. I therefore pronounce a decree in terms of the prayer of the bill.


[1]              See also  Australian, 30 March 1841; Sydney Gazette, 30 March 1841.

Published by the Division of Law, Macquarie University