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A contract is and the whole must stand or fall together; that it never could be entire, and,

any part is

therefore, if the intention of the parties, that the stock should be sold apart from the premises, and the agreement being for one entire sum, the court could not separate it.(/)

void by the statute, the whole must fail.

Of the sale by auction;

and of the distinction

taken in this

respect be tween lands and goods.

*In the case of Simon v. Motivos, (m) wherein it appeared that *[112] an auctioneer had knocked down a lot to the highest bidder, and put down his name in the usual manner as the purchaser of the goods, and the purchaser came the next day and saw the goods weighed ; an objection was made, that the contract not being in writing, was void by the statute of frauds; but the court were clearly of opinion, that the auctioneer must be considered as the agent for the buyer after knocking down the hammer, as well as for the seller, and that his setting down the buyer's name and the price was sufficient to take it out of the statute. They laid also some stress upon the buyer's coming the next day and seeing the goods weighed; and they inclined generally to think, that buying and selling at auctions was not within the statute of frauds. But in the *nisi prius case of Stansfield v. Johnson,(n) where the case of Simon v. Motivos was cited, Eyre, C. J. was of opinion, that the authority of that case applied only to the sale of goods. The same distinction was recognized by the court of common pleas in Walker v. Constable,(0) and in the case of Buckmaster v. Harrop,() was ratified by the adoption of the present Master of the Rolls,(9) who observed, that whatever is the authority of the case of Simon v. Motivos or Metivier, it has been held not to extend to land.(54)

*[ 113 ]

The agent's authority

(1) Cooke v. Tombs, Anstr. 420. Lea v. Barber, ibid, 425. n. S. P. (m) 3 Burr. 1921 (n) 1 Esp. Ni. Pr. Ca. 107. (0) 1 Bos. et Pull. 306. (p) 7 Vez. jun. 344. (q) Sir Wm. Grant.

statute; though the cases upon auctions seem to have proceeded upon such an imagination. See Walker v. Constable, 1 Bos. & Pull. 306. 1 Esp. Ni. Pr. Ca. 107. 7 Vez. jun. 341. The doctrine, however, of the Court of Exchequer in the abovementioned case of Cooke v. Tombs, that the contract as to that part of it which concerned chattels, must fail as being involved with the rest of the contract so as to be incapable of separation, seems to be perfectly warranted in its principle, and has been confirmed by the subsequent case of Chater v. Beckett, 7 T. R. 201.

(54) It appears from the resolutions concerning sales by auction, that the agent's authority need not be in writing, which point was directly

It should be remembered, that the ground of the decision of Simon v. Motivos, was the constructive agency of the auctioneer for the buyer after knocking down his hammer,(55) so that upon a sale of chattels for the price of 101. or upwards, within the 17th section of the statute, if the person making the memorandum of the purchase by the best bidder, is not in a capacity to be considered by law as the agent for both parties, the sale cannot be enforced for want of a memorandum or note in writing, such as the statute requires. Thus, in Symonds v. Ball,(r) where the aftermath of land was sold by auction, by the corporation of a borough, and the town *clerk who acted as agent [114] for the sellers; wrote down the name of the purchaser in the printed catalogue, and the price to be given, for which the purchaser at the same time gave his promissory note; the court were clearly of opinion, that neither the memorandum so made by the town clerk, nor the note given by the purchaser, could be deemed a sale or demise in writing to answer the statute, nor could they be coupled together in construction for that pur pose.(56)

(†) 8 T. R. 151.

determined in Waller v. Hendon and Cox, Vin. tit. Contract and need not be agreement (H) 45, in which the decree of the Master of the Rolls was in writing. affirmed on appeal by Lord Macclesfield, who said that, an authority to treat or buy for another may be good without writing, though the contract itself must be in writing. Wedderburne v. Carr, in the Exchequer, T. T. 1775, cited in 3 Woddeson's Lect. 427. See Coles. Trecothick, 9 Vez. jun. 251.

(55) According to Payne. Cave, 3 T. R. 148, the bidder might re. tract his bidding at any time before the hammer was knocked down, till which time there was the locus penitentiæ.

(56) If the inclination of the bench in the above cited case of Simon . Motivos, were to prevail, it would reduce all these cases to a level, by taking them all out of the operation of the statute. But that case was decided in favour of the seller, not upon the broad ground of treating it as out of the purview of the statute of frauds, but on the inference of agency in the auctioneer on the part of the buyer as well as the seller, and the validity of his entry of the buyer's name, as a memorandum and signature to satisfy the requisition of the statute in question. The case, in the text, of Symonds v: Ball, it is plain, did not adopt the hint afforded by the judges in Simon v. Motivos, of emancipating the case of auctions altogether out of the statute; for, the

N

Purchases at

fore a master

in Chancery, out of thesta

*Where, however, an estate is purchased at a bidding before a

a bidding be- master of the court of chancery, the case is said by Lord Hardwicke to be certainly out of the statute.(®) And his lordship added, that he should not hesitate to carry into execution against the representative a purchase by a bidder before a master without subscribing, after confirmation by the master's report.(57)

tute.

It cannot but have struck the reader, that the cases which have set up a distinction between land and chattels, as to the influence of the statute on sales by auction, have imposed on us an acquiescence due to their authority, rather than to their reason. If he recurs to the transcript of the sections at the head of this chapter, he will not discover in the language of the 17th, a weaker stress laid on the necessity for a written evidence of the contract signed by the party, or his agent, than is contained in the 4th section, as to the subjects comprised within it. In a very late case,(t) the present Chancellor observed "that it was very singular, that after the case of Simon v. Metevier,(u) and

(s) See 1 Vez. 221, Attorney-General v. Day. (t) Coles v. Tre cothick, 9 Vez. jun. 249. (u) 3 Burr. 1921.

want of a signing by the defendant himself, or by an agent properly authorised by him, was the reason of the judgment of the court in his favour.

These cases, with a distinction between sales of land and goods, suppose the efficacy of the signature of one of the parties, without that of the other to bind the person signing; a doctrine recognised expressly in chancery in the case of Seton v. Slade. But are we to hold, that the buyer is bound by such entry of his name by the auctioneer, without also understanding that the seller is become bound at such stage of the transaction to the buyer? Or are we warranted in concluding, that the name of the seller is sufficiently signed by being printed on the particular of sale? The knot in which these and some other difficulties have entangled this question, may be cut by adopting the opinion of the judges in Simon v. Motivos, and understanding it as extending to sales of land as well as of goods; it is not likely to be unloosed by the multiplication of artificial distinctions. A line of some breadth should be taken in deciding questions upon a law framed for the prevention of fraud and perjury, and for promoting honour and certainty in the transactions of property.

(57) And a verbal agreement between the solicitors of a mortgagor and mortgagee, the latter of whom had filed a bill for a foreclosure, and for the sale of the estate and payment of the principal debt, in

*7 Vez. jun. 265.

without disturbing it, it was held at nisi prius, by Lord Ch. J. Eyre, that it would not do as to land. Why not? the form of the two clauses is not the same; but the terms as to the memorandum *are exactly the same. The case was followed, certainly with- [116] out much argument or discussion upon the bench, according to the report, in Walker v. Constable."(x) After such an opinion from such a man, with so much appearance of reason on his side, this point, though in the case above referred to, and again in Buckmaster v. Harrop,(y) it was taken to be settled, can hardly be said to be at rest.

That thecon

an integral part of the agreement must be expressed in writing.

Second preliminary topic. On the second head of inquiry into which, at the beginning of this chapter, the general consi- sideration as deration of the objects of the 4th and 17th sections of the statute was proposed to be divided, much will not be necessary to be said. It has already been sufficiently shown, that the written agreement or memorandum must set forth distinctly the terms of the contract or promise, either by its own contents and expression, or by direct reference to something extrinsic, which may rener it intelligible and certain. By the resolution, however, of the judges of the court of King's Bench, in a very late case,(z) it has been decided, not to be enough that the terms of the agreement or contract are expressed in writing, but that it is also necessary, that the consideration upon which it was supported as a good agreement at common law, should be set forth in writing.

This decision appears principally to affect those promises which come under the 2d and 3d clauses of the 4th section, viz. the personal undertaking of an executor or administrator, to answer for the debt of his testator or intestate, and the special promise to answer for the debt, default, or miscarriage of another. The other contracts, regarding sales, and bargains, and marriage provisions, do, for the most part, of necessity express or import the consideration by which they are moved; but a written undertaking by an executor to pay his testator's debt, without

(x) 1 Bos. et Pull. 306. (y) 7 Vez. jun. 344. (z)5 East 10, Wain y. Warlters.

terest, and costs, was permitted to be established by evidence, as not being within the purview of the statute. 3 Bro. C. R. 334, Cox v. Peele, in appeal from the Rolls.

vide. how wir on the Subject of this dec. isions. Sugden saw 48 ventions. p.

of
n (2)

mention of any superadded motive *personal to himself, imports only the consideration of his duty as executor, and the promise which arises from it will, of course, only be measured by the ex, tent of the consideration. A promise in writing to pay the debt of another, if no special consideration moving from the party promised is expressed, imports no consideration at all in itself; for there is nothing of reciprocity supposed by the bare transac tion. The judges, according to the report, founded their decision upon the extent and cogency in law of the word ' agreement,' used in the 4th section of the statute,(58) and thereby

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(58) The word agreement' does not occur in the 17th section, regarding the contracts for the sale of goods for the price of 10%. or up"that some note or memorandum in writing wards; but the words are, of the bargain be made and signed by the parties to be charged by the contract, or their agents thereunto lawfully authorised." Therefore, in Egerton. Matthews, 6 East, 307, determined since Wain v. Warlters, in the King's Bench, which was a case governed altogether by the 17th clause, it was clearly held that it was not necessary that the writing, to be effectual within that clause, should set forth the consideration. A case very important in its consequences, as it implies, that had the word in the 17th section been agreement' instead of note or memorandum,' the plaintiff must have been nonsuited for want of a consideration sufficiently exhibited in writing, which was as follows: We agree to give Mr. Egerton 19d. per lb. for thirty bales of Smyrna cotton, customary allowance, cash 3 per cent as soon as our certificate is complete. Signed by the defendants the buyers." The writer hopes for pardon, if with great deference he submits that there is a consideration for the promise plainly stated in this writing. So much money is to be paid for such goods. This was the consideration, and this was stated. But this seems to be now considered as not sufficient ; and it is implied in the case just cited, that the instrument itself where the case is within the 4th section, should import and compre hend in itself a perfect mutuality of obligation, otherwise the whole agreement is not to be considered as being in writing. And according to this doctrine, under that section of the statute, both parties in most cases must sign the instrument, otherwise the full consideration for the signing by the party charged, will not appear upon the instrument itself; a doctrine rising greatly above the level of antecedent opinions and authorities. See Cotton v. Lee, cited in 2 Bro. C. R. 564, Coleman v. Upcot, 5 Vin 527. Buckhouse . Crosby, 2 Eq. Ca. Abr. 32, pl. 44. Seton v. Slade, 7 Vez. jun. 265. Fowle v. Freeman, 9 Vez. jun. 351, and what, under this doctrine, if it be the doctrine, is to become of the authorities giving an effect to letters equivalent to agreements.

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