Rossiter and others v.

Miller [1874Sale of Land Contract Memorandum Parties Need to specify by name Indication by description "Proprietors" of property described and offered for sale.

The parties to a contract for the sale of land, which, by s. 4 of the Statute of Frauds, 1677 [now s. 40 of the Law of Property Act, 1925], must be in writing, must be specified, but they need not be specified by name. If they are so indicated by description as to be certainly ascertainable, the exigence of the statute in that respect is satisfied. Where, therefore, the terms and conditions of the sale of real property, after speaking of the site, the supply of water, and drainage, used the term "proprietors" to denote the owners of the property who were offering it for sale, Held: a sufficient description to comply with the statute. Sale of Land Enforcement Terms agreed in correspondence Stipulation that terms be embodied in formal contract. If, on the construction of correspondence which has taken place between the parties to a contract for the sale of land, all the particulars essential for the finality and completeness of a contract, with reference to the premises, parties, price, and conditions and stipulations, are found, there is a completed and enforceable contract sufficient to satisfy the requirements formerly to be found in s. 4 of the Statute of Frauds, 1677 [now s. 40 of the Law of Property Act, 1925], and the mere fact that the parties have stipulated that there shall afterwards be prepared a formal agreement embodying the terms agreed on is immaterial and does not affect the matter. Chinnock v. Marchioness of Ely (1) (1865), 4 De G.J. and Sm. 638, distinguished. Notes. Distinguished: Donnison v. People's Caf Co. (1881), 45 L.T. 187. Considered: Shardlow v. Cotterell (1881), 18 Ch.D. 280; Hawkesworth v. Chaffey (1886), 55 L.J.Ch. 335; Jarrett v. Hunter (1886), 34 Ch.D. 182; Gray v. Smith (1889), 43 Ch.D. 208; Pattle v. Anstruther (1893), 69 L.T. 175; Lloyd v. Nowell, [1895] 2 Ch. 744. Applied: Filby v. Hounsell, [1895-9] All E.R.Rep. 427. Considered: Cook v. Williams (1897), 13 T.L.R. 481; North v. Percival, [1898] 2 Ch. 128; Walters v. Le Blanc (1899), 15 T.L.R. 426; Lovesy v. Palmer, [1916-17] All E.R.Rep. 1034. Followed: Love and Stewart v. Instone (1917), 33 T.L.R. 475. [*page466] Considered: Rossdale v. Denny, [1921] 1 Ch. 57; Chillingworth v. Esche (1923), 92 L.J.Ch. 461; Fay v. Miller, Wilkins & Co., [1941] 2 All E.R. 18. Referred to: Henderson v. Montague L. Meyer, Ltd. (1941), 85 Sol. Jo. 166; Abdul Karim Basma v. Weekes, [1950] 2 All E.R. 146; Sociedade Portuguesa de Navios Tanques, Ltda. v. Hvalfangerselskapet Polaris A/S, [1952] 1 T.L.R. 220. As to the requirements for a valid contract for the sale of land, see 34 HALSBURY'S LAWS (3rd Edn.) 205-210; and for cases see 40 DIGEST (Repl.) 11 et seq. For the Law of Property Act, 1925, see 20 HALSBURY'S STATUTES (2nd Edn.) 427. Cases referred to: (1) Chinnock v. Marchioness of Ely (1865), 4 De G.J. & Sm. 638; 6 New Rep. 1; 12 L.T. 251; 29 J.P. 279; 11 Jur.N.S. 329; 13 W.R. 597; 46 E.R. 1066,

L.C.; 40 Digest (Repl.) 15, 40. (2) Ridgway v. Wharton (1857), 6 H.L.Cas. 238; 27 L.J.Ch. 46; 29 L.T.O.S. 390; 4 Jur.N.S. 173; 5 W.R. 804; 10 E.R. 1287, H.L.; 12 Digest (Repl.) 154, 985. Also referred to in argument: Potter v. Duffield (1874), L.R. 18 Eq. 4; 43 L.J.Ch. 472; 22 W.R. 585; 40 Digest (Repl.) 27, 121.

Sale

v. Lambert (1874), L.R. 18 Eq. 1; 43 L.J.Ch. 470; 22 W.R. 478; 40 Digest (Repl.) 29, 134.

Fowle v. Freeman (1804), 9 Ves. 351; 32 E.R. 638; 40 Digest (Repl.) 36, 191. Kennedy v. Lee (1817), 3 Mer. 441; 36 E.R. 170, L.C.; 12 Digest (Repl.) 102, 597. Thomas v. Dering (1837), 1 Keen, 729; 6 L.J.Ch. 267; 1 Jur. 211; 48 E.R. 488; 12 Digest (Repl.) 93, 527. Skinner v. McDouall (1848), 2 De G. & Sm. 265; 17 L.J.Ch. 347; 11 L.T.O.S. 411; 12 Jur. 741; 64 E.R. 120; 40 Digest (Repl.) 44, 271. Heyworth v. Knight (1864), 17 C.B.N.S. 298; 4 New Rep. 288; 33 L.J.C.P. 298; 10 Jur.N.S. 866; 144 E.R. 120; 12 Digest (Repl.) 101, 596. Lewis v. Brass (1877), 3 Q.B.D. 667; 37 L.T. 738; 26 W.R. 152, C.A.; 12 Digest (Repl.) 95, 547. Crossley v. Maycock (1874), L.R. 18 Eq. 180; 43 L.J.Ch. 379; 22 W.R. 387; 12 Digest (Repl.) 93, 529. Bonnewell v. Jenkins (1878), 8 Ch.D. 70; 47 L.J.Ch. 758; 38 L.T. 581; 26 W.R. 294, C.A.; 12 Digest (Repl.) 95, 549. Morris v. Wilson (1859), 33 L.T.O.S. 56; 5 Jur.N.S. 168; 12 Digest (Repl.) 22, 88. Shortrede v. Cheek (1834), 1 Ad. & El. 57; 3 L.J.K.B. 125. Williams v. Byrnes (1863), 1 Moo.P.C.C.N.S. 154; 2 New Rep. 47; 8 L.T. 69; 9 Jur.N.S. 363; 11 W.R. 487; 15 E.R. 660, P.C.; 12 Digest (Repl.) 145, 911. Ogilvie v. Foljambe (1817), 3 Mer. 53; 36 E.R. 21; 40 Digest (Repl.) 36, 198.

Waldron v. Jacob (1870), 5 I.R.Eq. 131; 12 Digest (Repl.) 151, *616.

Hoo d

v. Lord Barrington (1868), L.R. 6 Eq. 218; 40 Digest (Repl.) 30, 139.

Commins v. Scott (1875), L.R. 20 Eq. 11; 44 L.J.Ch. 563; 32 L.T. 420; 23 W.R. 498; 40 Digest (Repl.) 30, 137. Beer v. London and Paris Hotel Co. (1875), L.R. 20 Eq. 412; 32 L.T. 715; 40 Digest (Repl.) 37, 201. Calling v. King (1877), 5 Ch.D. 660; 46 L.J.Ch. 384; 36 L.T. 526; 41 J.P. 692; 25 W.R. 550, C.A.; 40 Digest (Repl.) 30, 138. Brogden v. Metropolitan Rail. Co. (1877), 2 App. Cas. 666, H.L.; 12 Digest (Repl.) 55, 300. Morgan v. Holford (1852), 1 Sm. & G. 101; 20 L.T.O.S. 177; 17 Jur. 225; 1 W.R. 101; 65 E.R. 45; 40 Digest (Repl.) 25, 100.

Win n

v. Bull (1877), 7 Ch.D. 29; 47 L.J.Ch. 139; 42 J.P. 230; 26 W.R. 230; 12 Digest (Repl.) 94, 544. [*page467]

Skelton v. Cole (1857), 1 De G. & J. 587; 44 E.R. 850, L.JJ.; 40 Digest (Repl.) 27, 125. Thomas v. Brown (1876), 1 Q.B.D. 714; 45 L.J.Q.B. 811; 35 L.T. 237; 24 W.R. 821; 40 Digest (Repl.) 30, 145. Hinde v. Whitehouse (1806), 7 East, 558; 3 Smith, K.B. 528; 103 E.R. 216; 12 Digest (Repl.) 156, 992. Smith v. Webster (1876), 3 Ch.D. 49; 45 L.J.Ch. 528; 35 L.T. 44; 40 J.P. 805; 24 W.R. 894, C.A.; 12 Digest (Repl.) 177, 1173. Appeal by the plaintiffs in the action from a decision of the Court of Appeal (LORD COLERIDGE, C.J., JAMES and BAGGALLAY, L.JJ.), reported 5 Ch.D. 648, reversing a decision of SIR GEORGE JESSEL, M.R., in favour of the plaintiffs. The action was brought to compel the specific performance by the respondent of an agreement to purchase plots of land belonging to the appellants, and the main question was whether letters which had passed between the agent of the vendors and the respondent constituted a binding contract within the meaning of the Statute of Frauds.

H. Davey, Q.C., and Carson for the appellants. Chitty, Q.C., and Phear for the respondent.

Their Lordships took time for consideration. July 22, 1878. The following opinions were read. 1 LORD CAIRNS L.C.:-- After a careful and anxious consideration of this case, I regret to say I am not able to look at it in the point of view in which it has presented itself to the learned judges of the court below. 2 The appeal arises in an action for specific performance brought by the vendors of certain property against the purchaser, and in that action three questions have been raised - one principal question, and two others which are to some extent subordinate. The main question in the case is whether there was in point of fact a concluded contract between the parties. The two subordinate questions are (i) whether in the view of the enactment of the Statute of Frauds, the vendors were sufficiently described in writing by the term "proprietors", and (ii) whether the person who affected to act as agent for the vendors had authority to bind them. Those being the three questions which have been raised, it was upon the first of them that the case was determined by the Court of Appeal. Their Lordships, all of them as I understand, thought that there was no contract actually concluded in the case. JAMES, L.J., said that in his opinion it was not a question of the Statute of Frauds, but a question whether there was any contract; and LORD COLERIDGE, C.J., and BAGGALLAY, L.J., both founded their decisions upon Chinnock v. Marchioness of Ely (1), the decision in which was that there there was no contract. Therefore, I understand that all the learned judges in the Court of Appeal proceeded on the principle that in the present case no contract has been actually concluded. 3 In order to consider the first question, I will remind your Lordships that there was here a certain property in the county of Surrey, which had been bought by some persons, eight in number, upon a speculation with a view to reselling it, and they had the property conveyed to two of their number, entering at the same time into an agreement among themselves as to the manner in which the speculation should be conducted. The property was to be vested as regards the legal estate in the two persons mentioned, but there was to be no notice of the trust upon the title. The two were to have, on the title, the power of leasing and of selling; but as between them and the other proprietors they were not to lease or sell without the sanction of their coproprietors, and that sanction was to be given by the majority. Meetings were to be held, five of the number constituting a quorum, and the questions being decided by the majority of the meeting. They then took a course which is not unusual in such cases. As the object was to sell in lots of considerable size, in July, 1871, they had a map prepared of the property for [*page468] circulation, and they had printed upon the map certain terms and conditions upon which the sales were to be made. 4 I must call your Lordships' attention particularly to the nature of those terms. The map speaks of the site, of the supply of water, and of the drainage. It speaks then of the roads, and it uses the term "proprietors" to denote the owners of the property, who are offering it for sale. The first of the conditions is as to the price of the plots, title, and conveyance; then there is a second

head as to the dimensions of the plots, a third as to building lines, and where fences are to be erected, a fourth as to fences, a fifth as to the value of buildings to be put upon the plots, a sixth as to forbidding brickmaking, a seventh reserving certain rights as to control of the roads and the drainage, and an eighth in which there is a return to the question of title and conveyance. "Each purchaser, on completing his purchase to execute a deed of covenant embodying the above rules and stipulations, and providing for their due performance mutually by such purchaser and vendors. Application for purchase to be made to Messrs. White and Sons, estate agents, Dorking." In the event of more than one application being made during the first day's sale, it is provided who should be the purchaser, and then it concludes with this sentence: "Each purchaser will be required to sign a contract embodying the foregoing conditions, and providing for the payment of a deposit at the rate of 10 per cent. on the amount of the purchase money, and for the completion of the purchase at the expiration of not exceeding two months from the date of the contract. The costs of such contract will be included in the fixed charge for the conveyance provided by the first stipulation." 5 I pause there to point out to your Lordships that in these conditions there are to be found the detailed terms of a contract such as might reasonably be expected to be proposed with regard to sales of plots of land of this description. There is a stipulation that the purchaser would be required to sign a contract embodying these conditions. That is an obvious and natural term, because the contemplation is that persons will come in, and make offers of the price which is required for the plots and at that point the persons so offering will not be bound by anything. It will be necessary to bind them, and, therefore, they are told beforehand that at the time when their offer is accepted, or along with the acceptance of the offer, the matter will not be allowed to rest in dubio, or without legal obligation, but that they will be required to sign something which will bind them. They are told what they will be required to sign; it will not be a contract at the arbitrium of the vendors, not a contract the terms of which they do not know, not a contract the provisions of which they will see for the first time when it is offered to them to sign, but a contract as to which the vendors are content beforehand to bind and oblige themselves that it will assume the shape of these stipulations, and no other shape. That is what is stated to the purchasers by this printed form of conditions. 6 That being the scheme by which this property was offered to the public, it appears that some sales were made in 1871 and in 1873, as to which no question arises, but in 1875 there was still some part of the property unsold. It was in that year that the respondent made an offer for one or more of the plots of unsold land. The manner in which the offer was made is detailed in an affidavit, and there appears to be no controversy as to that part of the case. It was a verbal offer, which would not become binding upon him until some writing had passed; but it was an offer as to the terms of which there is, I believe, no controversy. It was an offer which, after the statement which has been made by Mr. White (who was acting as agent for the vendors for the purpose of receiving offers and communicating with intending purchasers) of the way in which it was made, must be taken to be an offer of 1,000 pounds for the particular plots, on the terms and conditions in the printed paper of July, 1871. That offer having been made, Mr. White submitted it to a meeting of the persons beneficially interested, and, having received the authority

[*page469] of that meeting to accept that offer, he wrote a letter to the respondent on April 21, 1875, in these words: "The proprietors have this day agreed to accept your offer of Saturday last, conveyed to them through me, viz., to purchase for 1,000 pounds plots 33, 34, and 35, on the original estate plan, dated July, 1871, and lot 1 in the sale particulars of August, 1873, subject to the conditions and stipulations printed on the plan first-named. It was taken into consideration by them in reducing the published price that you intended building at once, which, of course, they wish to encourage. I have requested Messrs. Hart and Marten to forward you the agreement for purchase." 7 I will put aside for the moment the mention here that it had been taken into consideration by the proprietors in reducing the published price that Mr. Miller intended building. That introduced an element which became the subject of another letter. Putting that aside, your Lordships have here a rehearsal or repetition by Mr. White of the terms, stating the price and the property to be purchased, and that the purchase was made subject to the conditions and stipulations printed upon the plan of July, 1871. Taking that in connection with that plan, it is, so far as this letter is concerned, an acceptance by the vendors, by their authorised agents in writing, of an offer clear and distinct, upon the terms of that paper and, so far as the vendors were concerned, I am at a loss to conceive any words which could have more clearly or distinctly expressed the form of the agreement by which they were content to be bound. Mr. White adds: "I have requested Messrs. Hart and Marten to forward you the agreement for purchase." What did that mean? At the time this letter was written it was an absolute necessity that something should be signed by Mr. Miller, for up to that time he had signed nothing, he had made no offer in writing, and he was not in any way bound. It was, therefore, not only natural for Mr. White, but it was his duty in accepting the offer, and recording the acceptance of the vendors in writing, to take immediate steps to obtain a correlative acceptance in writing by the purchaser. The natural way in which he would obtain that acceptance would be by calling on the purchaser to sign the agreement which he was told in these conditions of sale he would be asked to sign, and, accordingly, Mr. White says so in his letter. It is not in any way the suspending of the making of a contract until an agreement is determined upon and arranged. It is a letter recording the conclusion of a contract so far as the vendors are concerned, which letter at the same time takes notice that the purchaser is not yet bound by the signature which is required under the Statute of Frauds, and he is, therefore, called upon to place himself under the obligation under which the vendors were already content to lie. 8 Mr. Miller replied to the letter I have read, without waiting for the agreement. He said: "I am in receipt of yours of yesterday's date, in which you say: 'It was taken into consideration by them, in reducing the published price that you intended building at once, which, of course, they wish to encourage.' I cannot be bound to build at any given time, or at all. Therefore, as you say the reduction in price was in consequence of your undertaking that I should build at once, the offer had better be re-considered, unless you are prepared to leave me at liberty to do as I may

think best." What is the meaning of that letter? It is, of course, to be read in juxtaposition with, and in continuation of, the letter to which it is an answer. He speaks of his offer as Mr. White had spoken of it in the letter written to him. The writer of the first letter and of the second are, therefore, at one as to what the offer was - as to the property to be sold, the price, the terms, and conditions. Mr. Miller, therefore, puts his signature to a letter in which he affirms his assent to the description of the offer which he had found in the letter addressed to him, but then, in consequence [*page470] of the sentence in the letter addressed to himself which had implied that the vendors expected him to build at a particular time, he very properly, to avoid any misunderstanding, states that he would not come under any terms of that kind. Therefore he says, "the offer had better be re-considered, unless you are prepared to leave me at liberty to do as I may think best." I apprehend that means this: My offer is still before you, you have described my offer correctly in your letter. I repeat it. I ask you again to consider it; but let there be no misunderstanding with regard to the question of building immediately - that is not included in my offer; but, supposing that is rightly understood, and my offer is accepted pure and simple, I am content that it should be so. It, therefore, comes at this point of the case to a clear and distinct offer made by a person who has confirmed it in writing, and the only question is: Was that letter accepted? On April 22, Mr. White replies: "Mine to you of yesterday's date was not intended to convey a conditional acceptance of your offer therein defined. I gathered from your remarks that you intended to build shortly, but it is not the wish of the proprietors or myself to bind you in any way to do so. In developing an estate like this every house that is built increases the value of the remaining land; this I laid before the proprietors. Your offer I take to be based simply upon the stipulations of July, 1871, so that, in your own words, 'you are at liberty to do as you may think best.'" 9 I have only to say that, but that I have found the learned judges of the Court of Appeal, for whose opinion I have the greatest respect, taking a different view, I should have said that a clearer and simpler case of an offer made and accepted by a correspondence consisting of no more than three letters I have seldom seen. Every term is made clear by reference to an elaborate scheme of conditions under which the sales were to be made. The offer is recognised in terms by the person who made it under his hand, and it is accepted without the possibility of doubt or cavil by the persons to whom it was made. The reference to the agreement in the first letter is, I think, exactly what you might have expected to find. I have pointed out that the purchaser was at that time in no way bound, and, therefore, it was right of the vendors to call upon him for the signature of the agreement which he was bound to sign. But, as regards any legal consequence, the moment he had himself written a letter in which he had referred to the contract as a contract under the terms and conditions of the articles of 1871, the vendors might, if they had so desired it, have required the agreement to be prepared and signed as a matter of form, but as a matter of law it was, to my mind, perfectly indifferent whether they did so or not. If they did so, it must be an agreement exactly to the effect of the terms and conditions of the paper of 1871, and no other terms and conditions could have been introduced. If other terms and conditions had been introduced, the vendors would have had a perfect right not only to refuse to accept those other terms, but to insist on an agreement in the original terms of the paper of 1871.

 10 I, therefore, come to the conclusion that there is here clearly and distinctly a concluded contract with the terms expressed in this letter, subject to the observation which I have yet to make upon what I call the second part of the case, in reference to the use of the word "authorised." Let me here say that I am at a loss to understand upon what principle Chinnock v. Marchioness of Ely (1) was supposed to bear upon the present case. The letter upon which the whole of that case turned was this: "We have been instructed by the Marchioness of Ely to proceed with the sale to you of these premises. The draft contract is being prepared, and will be forwarded to you in a few days." There LORD WESTBURY, L.C., uses these words: "I entirely accept the doctrine contended for by the plaintiff's counsel, that, if there had been a final agreement, and the terms of it are evidenced in a [*page471] manner to satisfy the Statute of Frauds, the agreement shall be binding, although the parties may have declared that the writing is to serve only as instructions for a formal agreement, or, although it may be an express term, that a formal agreement shall be prepared and signed by the parties. As soon as the fact is established of a final mutual assent by the parties to certain terms, and those terms are evidenced by any writing signed by the party to be charged, or his agent, lawfully authorised, there exist all the materials which this court requires to make a legally binding contract." Up to that point it appears to me that these words exactly describe the case which your Lordships have before you; but the words which were relied upon by the learned judges in the Court of Appeal are the words which follow: "But if to a proposal or offer an assent be given subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of that stipulation. And this appears to me to be the real state of the case before me; for I am clearly of opinion that the true and fair meaning and legal effect of the letter may be expressed in these words: 'I will go on with the treaty for the sale to you of my house, and for that purpose will send you the form of the contract which I am willing to enter into.' I take the letter, therefore, either as a conditional acceptance of the plaintiff's terms, subject to the draft contract being agreed to, or as an expression of willingness to continue the negotiation, and for that purpose to propose a form of agreement." 11 I can only say that I am willing to accept every word of LORD WESTBURY as there given. I assume that the construction put by him upon the letter I have quoted was a proper construction; and I entirely acquiesce in what he says, that, if you find, not an unqualified acceptance of a contract, but an acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties, and until that condition is fulfilled no contract is to arise, then undoubtedly you cannot, upon a correspondence of that kind, find a concluded contract. But, I repeat, it appears to me that in the present case there is nothing of that kind, there is a clear offer and a clear acceptance; there is no condition whatever suspending the operation of that acceptance until a contract of a more formal kind has been made. It is a satisfaction to think

that, before the judgment of the parties in this case became somewhat obscured by the controversy which arose between them, the view which I certainly must take of the case was the view which was taken by the respondent himself and by his legal advisers; and I greatly regret that the advice of his solicitors was not taken by him. 12 The other two points in the case really are very small. As to the use of the term "proprietors," I own I was somewhat surprised to hear that question argued, for I am sure your Lordships have frequently seen conditions of sale, not merely by auction, but by private contract, in which it is stated that the sale is made sometimes by the "owners," and sometimes by the "mortgagees," and a form of contract is annexed in which an agent signs for the vendors, and no other specification on the vendors' part is inserted; and I never heard up to this time that a contract under those circumstances was valid. In point of fact, the question is: Is there any certainty which is described in the legal maxim, Id certum est quod certum reddi potest? I enter into a contract "on behalf of my client," "on behalf of my principal," "on behalf of my friend," "on behalf of those whom it may concern"; in all those cases there is no such certainty, and I apprehend that in none of those cases would the note satisfy the requirements of the Statute of Frauds. But if I, being an agent, enter into a contract to sell Blackacre, "on behalf of the proprietor of Blackacre," or to sell the house, No. 1, Portland Place, "on behalf of the owner of the house, No. 1, Portland Place," there, I apprehend, is a statement of matter of fact as to which there can be perfect certainty, and none of the dangers struck at by the Statute of Frauds can arise. I should be [*page472] surprised if any authority could be found, and certainly none has been produced, to say that a contract under those circumstances would not be valid. 13 [On the question as to the authority of Mr. White, the agent HIS LORDSHIP said that Mr. White undoubtedly had the authority of the appellants, he concluded]: I, therefore, move your Lordships that the order appealed from be reversed, and that the decree made by the Master of the Rolls be restored, and that the respondent pay to the appellants their costs, both in the Court of Appeal and in your Lordships' House. 14 LORD HATHERLEY:-- I quite concur in the view which has been taken of this case by my noble and learned friend on the Woolsack. I at once say that I shall pass over altogether the question with regard to the word "proprietors," as to which I have not the slightest hesitation in coming to the same conclusion as that which has been already mentioned. Upon the other question, whether or not the authority of Mr. White was good, I think it was justly stated by my noble and learned friend that there can be no doubt upon that subject when you consider the meetings of the proprietors that were held ratifying that which had been done in their name. 15 As regards the main question of the agreement itself, I certainly should very much regret, in the case of any contract which appears to me so plainly expressed as this is, to break into a uniform line of decisions, whether it may or may not have been approved of by all the judges before whom the question has come. It has been established for far too long a time, and by some precedents in your Lordships' House among others, that, if you can find the true and important ingredients of an agreement in that which has taken place between two parties in the course of a correspondence, though not set forth in the form in which a solicitor would do it if he were instructed to draw an agreement in writing, that will not the less constitute an agreement in the full sense between the parties if the letters say that the agreement is to be put into due form by a solicitor. If it is stated in so many plain and express terms (and in Chinnock v. Marchioness of Ely (1) that was the ground on which the case proceeded), that one of the very terms of the

agreement itself was that it should not be a concluded agreement until a solicitor intervened, and drew a formal agreement. If you find that to be a term of the agreement itself, well and good; if not, the agreement stands. Both parties may desire that it should be put into a formal shape by a solicitor, who in that case will not be able to vary the agreement on either side, but only to put into a more formal and professional shape the agreement which has been completely formed with unity of purpose, with reference to the sale and purchase by the two parties to the contract. 16 In the present case although, of course, we ought to hesitate a little after the judgment which has been pronounced by the learned judges in the court below, still it does seem to me that Mr. White wished to make what he was about extremely clear. He had had a conversation with the respondent, and he places distinctively in writing before the gentleman with whom he had had the verbal agreement what his conception of that agreement is, and he receives a letter from that gentleman to whom he has so stated the agreement acknowledging it to be a correct exposition of the agreement between them. It is very clear that the respondent made an offer intending that to be the agreement he was about to come to; he was making an offer to purchase for 1,000 pounds this property upon the conditions he had been talking about with Mr. White, namely, the terms and conditions of the paper of July, 1871; and when you come to Mr. White's letter, which is the foundation of what we have in writing evidencing the agreement, you will find that he puts it extremely correctly. He had promised Mr. Miller that he would lay the offer before the proprietors. We find, in fact, that the proprietors do meet soon after, and, there being a quorum, they come to a resolution that the offer be accepted, and thereupon Mr. White writes to the respondent the letter which has been read. I have already made an observation upon what has been urged with regard to the statement that a solicitor would be directed to prepare a formal agreement. That in no way varies [*page473] or alters the offer already made, if that offer was accepted simpliciter. Mr. Miller finds, no doubt, that the letter very carefully represents the offer he had made; but, very properly, in order that, there may be no mistake about the matter, sags that he cannot be bound with regard to building at a particular time. That induces me to be bold enough to say that it is as clear an acknowledgment and acceptance, in writing, of the proposition which had been made verbally as can well be conceived in any case, for this gentleman is very particular all through. He had evidently studied the statement made to him, and he finds no fault whatever with the statement made by Mr. White of what the offer was. He does think it necessary to call attention to the passage in the letter which says that the proprietors, in reducing the price, had been influenced by the notion that he was going to build at once upon the property, and he says in effect: "That was no part of the agreement, I do not agree to that, and I do not intend to agree to it, and therefore, if that is your intention, you had better allow the offer to be at once reconsidered, unless you are prepared to leave me at liberty to do as I may think best." That means: "If you allow me to do as I think best I do not went the offer to be reconsidered. There is the offer; you have stated it rightly to me. I made it before, and I repeat it now; but I find a new term in your letter. I cannot quite make out whether it is a term which you propose, or whether it is merely a suggestion or hint that you are giving me; but I do not acknowledge it as any part of the agreement whatsoever, and unless you can make up your minds to leave me entire liberty in that matter you had better re-consider the offer." They told him they did give him entire liberty. What more could be said? 17 I do not think it necessary to go farther into detail on the subject of the agreement; and with regard to Chinnock v. Marchioness of Ely (1) I think that has no bearing on the present case. If we do not consider that these parties had entered into an agreement we should grievously

break the long-established course of authority, without any grounds that I can discover in the present case beyond that of a proposal that the agreement should be formerly reduced into shape by a solicitor. JAMES L.J., comments at considerable length upon the difficulty which the proprietors might have been in if it had been the other way; that is to say, supposing it was Mr. Miller who was wishing to enforce this agreement against Mr. White's principals. In doing that it is said that it might be very hard upon the proprietors to find themselves bound down by an onerous condition of sale. But it is perfectly clear that on their part they were intending to do that. There is no doubt whatever that they intended that whoever bought any of their land should buy it upon those conditions of sale, and that, both on the part of the proprietors and on that of the intending purchaser, the purchase should be subject to those conditions. I do not think there was ever any doubt or hesitation in anybody's mind as to that part of the case. The part of the case as to which there was hesitation was whether the acceptance was such as to enable the parties to say that this was a treaty, and not an agreement. We are bound to decide between a treaty and an agreement, and the side of agreement must prevail. The treaty was completely exhausted and at an end when Mr. White informed the intending purchaser that he had mistaken him if he supposed that he had introduced an additional term into the agreement with regard to building. Thereupon the agreement which had been made verbally, and had thus been acknowledged in writing by Mr. Miller, came fully and completely into existence. 18 LORD O'HAGAN:-- In this case two points have been submitted to your consideration, the first regarding the sufficiency of the contract as a final and binding agreement, and the second its sufficiency within the operation of the Statute of Frauds. As to the agent's authority I think the matter too plain for argument. 19 On the second point all the judges in both the courts below have been of one opinion in favour of the appellants, and I have no doubt that that opinion is correct. The parties to a contract in writing must no doubt be specified, but it is not necessary that they should be specified by name. The whole course of decision and [*page474] practice shows that it is not. If they are so indicated by description as to be certainly ascertainable, the exigence of the statute in that respect is satisfied. Here the vendors are called "the proprietors," and described as proprietors in possession. There could be no mistake as to their ownership of the premises to be conveyed, and their identity for all practical purposes was as clearly and unequivocally established as if their names and designations had been set out in the conditions of sale. It is of common experience that transactions continually occur, and have been repeatedly validated by judicial decision, under circumstances in which business is habitually conducted, on the assumption that such a description is legally satisfactory. No inconvenience has arisen; and I agree with JAMES, L.J., that it would be a very bad thing if the question which has been so conveniently settled should now be re-opened without necessity or advantage. Your Lordships will probably affirm without difficulty the unanimous opinion of the learned judges on the second point. 20 On the first point, but for the view adopted by the Court of Appeal, I should think the case as clear as on the second; and I should be quite content to rest on the reasons already so fully given, if my high respect for the learned members of that court did not make it becoming that I should very briefly vindicate for myself the grounds of my opinion. It seems to me that the contract of which we have evidence in the letters was a completed contract, and conclusively bound the parties to it. The contract was approved, and the sole condition of its completion was made the leaving the respondent at liberty to build or not to build, as he pleased. The agent of the

vendors announced immediately that he had meant to make no condition, and there was no ground whatever for the objection, and that the respondent should have all the liberty he desired. Thereupon I think that the contract was complete; everything essential to the completion of it appears on the written documents - the parties, the premises, the conditions, and the price; an offer is made, those who had full power to accept it accept it in terms by their fully authorised agent; the purchaser thinks they are making conditions, they answer that they are not, and again accept it simply and absolutely as he had asked them to do. I cannot conceive that anything remained but to carry out the bargain which was then and there consummated. 21 We have had a great deal of ingenious reasoning founded on the statement in Mr. White's letter that he requested Messrs. Hart and Marten to forward "the agreement for purchase." It has been said that until the execution of that agreement the transaction was inchoate and incomplete. Undoubtedly, if any prospective contract involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and a dissatisfied party may refuse to proceed. But when an agreement embraces all the particulars essential for finality and completeness, and is such that, when it is reduced to legal shape by a solicitor in a formal contract, those particulars must remain unchanged, it is not, in my mind, less coercive because of the technical arrangement which remains to be made. Chinnock v. Marchioness of Ely (1) differs from the case before us, because there the treaty for a sale was pending, and not concluded, and the formal contract was to ascertain the terms on which the vendor was prepared to act. But here the negotiation had come to an end, the terms were distinctly ascertained, as I have said, with reference to premises, parties, price, and conditions and stipulations, which by reference were as plainly made part of the contract as if they had been repeated in it word by word. In that state of facts, if I correctly represent it, the judgment of LORD WESTBURY appears to me to be strongly in favour of the appellants. He says: "If there has been a final agreement, and the terms of it are evidenced in a manner to satisfy the Statute of Frauds, the agreement will be binding, though the parties may have declared that the writing is to serve only as instructions for a formal agreement, or although there may be an express term that a formal agreement shall be prepared and sign deby the parties." [*page475] 22 In my apprehension the contract in this case was final, and did satisfy the Statute of Frauds, and the agreement for purchase promised by Mr. White was merely formal, and could only contain the terms already fully fixed between the parties. 23 I do not trouble your Lordships with any observations as to subtle distinctions which have been taken at the bar between "intention" and "contract." I am unable, on the undisputed evidence in the case, to see any reason for doubt that what the parties did in completing the sale they fully intended to do. The offer by the respondent was intended, the acceptance by the appellants was intended; and, although the respondent, for reasons of his own, changed his mind, he did not venture to say that the contract, which at all risks he declined to carry out, did not fully express the intention with which he had originated and concluded it. It seems to me impossible to hold that he did not intend to buy, and that the appellants did not intend to sell on the very terms which he now endeavours to repudiate. The correspondence gives no colour to the suggestion that the contract was not final, and was not considered to be final by all the parties to it, because the formal agreement embodying its already settled terms had not been finished. I concur with

my noble and learned friends that the appeal should be allowed and the judgment reversed, with costs. 24 LORD BLACKBURN:-- I also concur in the judgment proposed. I quite agree with the lords justices that, wholly irrespective of the Statute of Frauds, it is a necessary part of the appellants' case to show that the two parties had come to a final and complete agreement, for, if not, there was no contract. So long as they are only in negotiation, either party may retract, and, although the parties may have agreed on all the cardinal points of the intended agreement, yet, it some particulars essential to it still remain to be settled afterwards, there is no contract. The parties in such a case are still only in negotiation. But the mere fact that the parties have expressly stipulated that there shall be a formal agreement prepared afterwards embodying the terms, which shall be signed by the parties, does not by itself show that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence, and determining whether the parties have really come to a final agreement or not, but as soon as the fact is established of the final mutual assent of the parties, so that those who draw up the final agreement have not the power to vary the terms already settled, I think the contract is complete. That is what I understand to be the meaning of LORD CRANWORTH, L.C., in Ridgway v. Wharton (2), and this is in the same case stated by LORD WENSLEYDALE, in terms assented to by LORD ST. LEONARDS. Parties often do enter into a negotiation meaning that when they have come to one mind the result shall be put into formal shape, and then signed and become binding, but that each party is to reserve to himself the right to retire from the contract if on looking at the formal contract he finds that, though it may represent what was said, it does not represent what he meant to say. Whenever, on the true construction of the evidence, this appears to be the intention, I think that the parties ought not to be held to be bound till they have executed the formal contract. If I thought with BAGGALLAY, L.J., that the letters left the defendant a right to believe that the signing of a formal contract was necessary to create a binding agreement, I should also think that the plaintiff failed; but I cannot put that construction on the letters. If I understand JAMES, L.J., rightly, he thinks that in practice persons who really meant only to enter into such a preliminary negotiation are held bound contrary to their intention, and I do not doubt that this sometimes happens. I infer that he wishes it to be a canon of construction that whenever there is a stipulation for a further and more formal agreement, the previous arrangements should be held to be only of this preliminary nature. I doubt whether such a canon of construction would not defeat the intention of the parties as often, at least, as the present; but I think it is too late now to introduce it. I think the decisions settle that it is a question of construction whether the parties finally agreed to be bound by the terms, though they were subsequently to have a formal agreement drawn up. In the [*page476] present case I think the whole is a question of what is expressed in the three letters, and the conditions therein referred to. The contract mentioned in the last of the conditions was to be one embodying the foregoing conditions, and making provision for the payment of 10 per cent. deposit. Nothing new could be introduced into it, and the purchaser, if he signed such a contract as is stipulated for there, would not have agreed to anything more than he had already agreed to, and there is nothing that I can find postponing the final assert till the agreement was seen and signed. Unless, therefore, such a new canon of construction as I have alluded to is to be introduced, I think the parties were bound as soon as both assented to those terms expressed in the conditions. 25 On the other points raised I have very little to add. I cannot understand the objection made to the evidence of White's authority; and although the construction by which it is held that

there can be no memorandum of the agreement unless the writing shows who the parties are, is now inveterate, it is not necessary that they should be named. It is enough, if the parties are sufficiently described, to fix who they are, without receiving any evidence of the character which SIR JAMES WIGRAM calls "evidence to prove intention as an independent fact." In the present case, without receiving any such evidence, there is ample to show that the plaintiffs were those designated by the description of "the proprietors." 26 LORD GORDON concurred.

Appeal allowed. Solicitors: Duncan, Warren & Gardner, for Hart, Hart & Marten, Dorking; Prior, Bigg, Church & Adams, for Drummonds, Robinson & Till, Croydon.

[Reported by C.E. MALDEN, ESQ., Barrister-at-Law.]

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