dent that an agent or steward, authorized to contract for the letting or for the sale of lands, should have an authority in writing for that purpose, in consequence of the difficulty in proving the existence or extent of a verbal authority; but if the principal be aware of the existence of an agreement(c) in writing by his agent for a lease, a parol acknowledgment of such contract by the principal is binding.

:

Upon a parol treaty for the purchase of certain premises, the owner wrote a letter to a third person(d), agreeing to adopt the proposal made for the purchase, if he thought the sum offered was the fair value the vendee deposited the price with such third person, who made and signed a memorandum, that he considered the sum offered to be a great price for the property; and on a bill by the vendee for specific performance, the contract was enforced, because such third person was acting in the place of the vendor, as his agent, and every dealing with the one was a dealing with the other.

In general, an agent cannot delegate his authority, because the personal confidence reposed in him cannot be transferred to a stranger, who might not have been selected by the principal for such a purpose. A person, therefore, who is empowered by the owner to sell an estate or to make leases for him, cannot bind his principal by an agreement entered into by his clerk, whether it be signed by such clerk in his own name, or in the name of the authorized agent, or of the principal. Where an agreement for a building lease was made by the conducting clerk of an authorized agent, with his privity, and was then entered in the agent's book, and signed by the intended lessee, to which the clerk(e) annexed the initials of his name, it was decided, that the clerk not being an authorized agent, such an entry could not, after the death of the principal, be deemed binding on the remainder-man.

If an individual enter into an agreement to take a lease, or make a purchase of lands on behalf of another, who denies having given any authority for that purpose, and if the agent be obliged specifically to execute the contract himself, he may exhibit his bill(ƒ) against his principal, and if the agency be disputed an issue will be directed to try the fact, and if the agency be established the principal will be compelled to take the property at the rent or for the price which the agent was authorized in giving; and if an agent effect a purchase in his own

(c) Callaghan v. Pepper, 2 Irish Eq. Rep. 399.

37.

(d) Field v. Boland, 1 Dru. & Walsh,

(e) Blore v. Sutton, 3 Meriv. 237; and sce Coles v. Trecothick, 9 Vesey, 234;

Charlewood v. The Duke of Bedford, 1
Atk. 497; Story on Agency, 136.

(f) Wyatt v. Allan, 3 Sugd. Vendors, App. No. 9; Bennett, ex parte, 10 Ves. 400; Cass v. Ruddle, 2 Vern. 280.

name, and insist it was made on his own account, if the agency(g) be established, he will be considered merely a trustee for his principal, and will be ordered to convey the interest accordingly.

If a person sign his name to an agreement in the capacity of an authorized agent, his testimony(h), denying he had any authority for the purpose, will be received with the most anxious jealousy, though, if the want of authority be established, the principal cannot be bound, and the disappointed purchaser(i) has no remedy in equity for recovery of damages against the person who falsely assumed authority to sell.

5. A letting or sale of lands before one of the Masters, by order of a Court of Equity, will be enforced(j), although there be no written agreement signed by the tenant or purchaser, as the entry in the Master's book, or the order confirming the letting or sale, will satisfy the objects of the Statute.

6. Where a contract is only signed by one party, and the other party files a bill to carry it into execution, the latter(k) will be bound by his own act in seeking to have the agreement performed, and the mutuality will be complete. It is also settled, that where a contract in writing exists which binds one party, any subsequent (7) note in writing signed by the other is sufficient to bind him, provided it either contains in itself of the terms the contract, or refers to any writing which contains them, even when written after a dispute has arisen.

7. An article or writing sought to be specifically executed must either in its body or by necessary (m) inference contain the names of the contracting parties, and must either specify the terms(n) of the agreement, or must(o) unequivocally refer to a written or printed document, incorporating the omitted particulars; for if any essential stipulation, however trivial, be not ascertained by the written contract, or by some instrument to which it refers, the risk of perjury, which the

(g) Lees v. Nuttall, 1 Russ. & M. 53; Tamlyn, 282.

(h) Howard v. Braithwaite, 1 Ves. & B. 202.

(i) Sainsbury v. Jones, 2 Beav. 462; 5 My. & Cr. 1, on Appeal.

(j) Attorney-General v. Day, 1 Vez. Sen. 218-221; Blagden v. Bradbear, 12 Vesey, 466-472; Cunningham v. Williams, 2 Anstr. 344.

(k) Martin v. Mitchell, 2 Jac. & W. 427.

() Dobell v. Hutchinson, 3 Adol. & Ell. 355-371; 5 Nev. & Mann. 251, S. C.

Statute was intended to prevent, would be incurred by admitting parol testimony to supply the deficiency.

If a letter or correspondence contain a definitive(p) agreement for a lease, specifying the names of both parties, the subject of the contract, the rent, term, and other particulars intended to be introduced into the lease, a Court of Equity will compel specific performance, or a court of law will award damages for its breach; but if the letters or correspondence on the subject merely amount(q) to a treaty for a lease, or only contain proposals open to future revision or consideration, no suit nor action can be maintained.

Although a letter do not contain the whole agreement, if it actually refer to a written(r) or printed instrument, which supplies the defect, it will be sufficient, even where the document referred to is not signed. An estate being advertised to be let on leases for three lives, or thirtyone years, an agreement in writing for a lease was entered into which omitted to specify the term to be granted: upon a bill by the tenant for specific performance of the agreement for a lease for three lives, Lord Redesdale(s) held that the omission in the agreement to specify the term could not have been supplied by a reference to the advertisement, because the ambiguity would not be removed, as there was nothing in the advertisement giving a choice to the tenant; but if the advertisement had expressed three lives only, a reference to it by the agreement would have been sufficient, for the identity of the advertisement might be proved by parol evidence, and the contract would then amount to a stipulation for a lease for such time as was mentioned in the advertisement.

Where a bill alleges that the agreement is constituted by letters, the opposite party may insist that the letters alone do not make(t) out the full terms of the contract, or shew a concluded agreement, in which case extrinsic evidence cannot be received; if, however, the correspondence be stated, not as constituting the agreement, but as evidence of an alleged parol agreement, testimony aliunde will be admitted, though the Statute of Frauds may then be successfully relied on as a defence.

(p) Huddlestone v. Briscoe, 11 Ves. 591; Stratford v. Bosworth, 2 Ves. & B. 346; Western v. Russell, 3 Ves. & B. 187; Kennedy v. Lee, 3 Meriv. 447; Gordon v. Trevelyan, 1 Price, 64; Field v. Boland, 1 Dru. & W. 37; Palmer v. White, Wall. 10.

(9) Cooke v. Tombs, 2 Anstr. 420; Palmer v. White, Wallis, 10; Whaley

v. Bagenal, Wallis, 12; 1 Bro. P. Ca. 345.

(r) Collet v. Butler, 3 Swa. 402; Hodges v. Horsfall, I Russ. & M. 116; Powell v. Dillon, 2 Ball & B. 416.

(s) Clinan v. Cooke, 1 Sch. & Lef. 22; Blagden v. Bradbear, 12 Vesey, 466471; Verlander v. Codd, Turn. & Russ. 352-357.

(t) Birce v. Bletchley, 6 Madd. 17.

A written agreement for a lease referred to certain covenants contained in another document, which had been partly read to the intended tenant at the time of making the contract, but without resorting to parol evidence(u) it could not be ascertained which of the covenants had been read, and were to be inserted in the lease, and specific performance was refused, because the admission of parol testimony to prove the terms of the contract would introduce all the inconvenience and uncertainty which the Statute was intended to prevent.

8. The name of each party forms an integral(v) part of the contract, and though the signature of the party sought to be charged is binding on him, yet the agreement is not complete unless the name of the party seeking relief is to be found (w) in the instrument, or can be collected from it by necessary inference, or unless the defect can be supplied by connecting(x) the agreement with a letter from the other party, or with some(y) other document in which the name is contained.

9. In order to form a contract by letter there must be a reasonable(z) description of the subject of the bargain, but extrinsic(a) evidence is admissible for the purpose of ascertaining particularly the subject to which the treaty related. A party by letter, after speaking of "Mr. Ogilvie's house," agreed to "give £14,000 for the premises," Sir William Grant said(b), that parol evidence had always been received in such a case, to shew to what house and to what premises the agreement applied. So an agreement in writing being concluded for the sale of a house in Newport, at 1000 guineas, to be paid as soon as the deeds(c) could be had from Mr. Deere, specific execution was decreed in a suit by the purchaser, as it appeared on the face of the contract that the subject referred to was the house of which the deeds were in Mr. Deere's possession, and could easily be ascertained before the Master.

10. Under an agreement for a lease for lives, without naming them, or stipulating by whom they are to be nominated, the right(d) of nomination devolves on the lessee, upon the legal principle that

(u) Brodie v. St. Paul, 1 Vesey, Jun. 326; 1 Sch. & Lef. 35, cited; Collet v. Butler, 3 Swa. 402.

(v) Boyce v. Green, Batty, 608-618; Wheeler v. Collier, Moody & M. 123. (w) Laythoarp v. Bryant, 2 Bing. N. C. 735-742; 3 Scott, 238.

(x) Allen v. Bennett, 3 Taunt. 169. (y) Dobell v. Hutchinson, 3 Ad. & Ell. 355-371; 5 Nev. & M. 251-260; Boyce v. Green, Batty, 618.

(z) Kennedy v. Lee, 3 Meriv. 447,

every deed is to be construed most beneficially for the grantee, but such lives can only be selected as were in existence (e) at the time of entering into the agreement, and if unreasonable delay occur in naming the lives, and the contract has not been acted on by the parties, its execution will not be enforced in equity.

By an instrument dated in July, 1800, a landed proprietor agreed to let to John Phillips a farm at a specified rent(ƒ) for three lives; the tenant entered, Lord Kensington purchased the estate subject to the agreement, and after having received the rent for several years, caused a notice to quit to be served, and brought his ejectment. In 1809 the tenant exhibited his bill for specific performance of the contract, and then for the first time nominated three of his children as cestuique vies to be inserted in the lease, and it was decided that although nine years had been suffered to elapse without naming lives, yet, as the default was mutual, relief should be granted.

11. 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 required to prove his own acceptance of the contract, as the filing of the bill primâ facie establishes the fact, but the defendant is at liberty to repel the claim by shewing that his adversary refused to accept or repudiated the agreement; if, however(g), a letter or other writing do not in itself evidence all the terms of the engagement by which the person signing it consents to be bound, but requires 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 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.

A proposal being made by letter to give £2750 for the lease of a specified house in the Regent's-park, subject to the ground-rent of fifty guineas, a written answer was sent accepting the offer, and proposing to grant(h) a lease of the house with the same clauses as were contained in the lease from the chief landlord: upon demurrer to a bill by the vendor for specific execution, it was decided that the original offer was made for an assignment of the lease, and the reply having sought to introduce a new term into the agreement by substituting an

(e) Wheeler v. D'Esterre, 2 Dow's Parl. Ca. 365.

(f) Ld. Kensington v. Phillips, 5 Dow's Parl. Ca. 61; Pritchard v. Ovey, 1 Jac. & W. 396.

(g) Boys v. Ayerst, 6 Madd. 316324, by Sir John Leach; Ld. Ormond v. Anderson, 2 Ball & B. 363.

(h) Holland v. Eyre, 2 Sim. & St. 194; Hyde v. Wrench, 3 Beav. 334.