and Farnley for the price, it was held, that there could be no actual receipt of the wine by Burn until the delivery order had been accepted by the dock company, or the latter had consented to hold the wine for him.(a) (iii) Also in case (6) where the vendee gives something in earnest to bind the bargain, or in part pay ment.(b) [Any sum so paid, however small, will suffice.] (iv) In all the cases where there is a memorandum in writing of the agreement or bargain.(c) § ESSENTIALS OF THE WRITTEN MEMORANDUM. 1. The names of the parties. It must contain,— Illustration. Williams undertook to build certain cottages for William Owens and John Thomas, who handed him a guarantie of Thomas Lake, in the following terms:"Sir, I beg to inform you that I shall see you paid to the sum of £800 for the ensuing building, which you undertake to build for Messrs. Thomas and Owens of Caploch. "I am, yours, &c., "THOMAS LAKE." This, in an action on the guarantie, was held not to be an agreement, inasmuch as the name of Williams, the other party to the contract, did not appear therein. (d) 2. The subject matter. 3. All the material terms, so that the question is not left in doubt. Illustration. Sir John Bailey was in treaty with the Hon. Mr. Fitzmaurice for a lease of a house and stables, which were held by Fitzmaurice for two different terms of years. Letters passed between the parties, embodying some of the terms of the contract, but no mention was made of the commencement or duration of the lease of the stables. In an action by Fitzmaurice for not completing, it was held that these were material points, the omission of which was fatal to the validity of the agreement. (e) 4. (a.) The consideration, under section 4, [except in the case of a guarantie; where, it is now made unnecessary by section 3 of the Mercantile Law Amendment Act, 1856.(f) This provision was passed in consequence of the decision in the accompanying illustration, which is still, however, an authority in respect of all other contracts within the Statute of Frauds. Illustration. Wain and Co. forbore to sue one Hall, in consideration of which Warlters promised to pay them some £56, the amount due from Hall to them. The promise was in writing, but no mention was made of the consideration of the guarantie. It was held that the plaintiffs could not recover. (g)] (3.) The price, under section 17. If the price has been agreed upon. Otherwise a reasonable price will be implied. Illustration. Hoadly, a coach-builder, contracted in writing to build Sir Archibald McClaine a carriage. No agreement was come to about the price. When the carriage was sent home, Sir Archibald refused to accept it, as the price demanded was over £480. In an action by Hoadly for not accepting the carriage, the Court held that the law would imply that a reasonable price was to be paid. (h) (e) Fitzmaurice v. Bailey, 9 H. L. C. 78. (g) Wain v. Warlters, 5 East, 10. 5. The signature of the party to be charged, or that of his authorized agent.(a) [This need not be at the end of the document, so long as it clearly governs the whole agreement.(b) Illustration. An agreement beginning, "I, James Crock ford, agree to sell, &c.," was held to be sufficiently signed to satisfy the statute. (c)] [NOTE. Several documents may be read together in Illustration. The following sale-note was sent No. 8, Oxford Street, 1,000 gallons of And subsequently they wrote him a letter asking for directions, as to delivery, signed "Jackson & Hankin." It was held that the two documents referred sufficiently to one another, so as to be read together without parol evidence being necessary to explain their relation; and, consequently, that they together formed a binding contract. (d) ] II. A representation as to character. [See post, Book III. Part VI. Chap. II., and 9 Geo. 4, c. 14, s. 6. (a) Sects. 4 & 17. (b) Wilkinson v. Evans, L. R. 1 C. P. 407; 35 L. J. C. P. 224; Pastor v. Crofts, 33 L. J. C. P. 189; 16 C. B. (N.s.) 11. (c) Knight v. Crockford, 1 Esp. 191. (d) Sanderson v. Jackson, 2 B, & P. 238. See also Ridgway v. Wharton, 6 H. L. C. 238; Baumann v. James, L. R. 3 Ch. 508; Long v. Miller, 4 C. P. D. 450; Stewart v. Eddowes, L. R. 9 C P. 311; Cave v. Hastings, 7 Q, B, D, 125, III. An acknowledgement of a debt, which will bar the Statute of Limitations. [See ante, p. 15; and 9 Geo. 4, c. 14, s. 1. 3 & 4 Will. 4, c. 42, s. 5. 3 & 4 Will. 4, c. 27, ss. 14, 42. 37 & 38 Vict. c. 57, s. 8. IV. A consent to the enjoyment of a servitude, which will prevent the operation of the Prescription Act, 1832.(e) For example. Twenty years uninterrupted enjoyment of a right to the access of light gives an indefeasible title, unless it appears that it was enjoyed under a written consent. V. Agreements between master and servant as to deductions from wages, in respect of certain matters under the Truck Acts." [1 & 2 Will. 4, c. 37, s. 23.] VI. Special contracts with railway companies for the carriage of animals and goods. [See post, Book II. Chap. V., and 17 & 18 Vict. c. 31, s. 7.] VII. The acceptance of a bill of exchange. [See post, Book II. Chap. IX., and 19 & 20 Vict. c. 97, s. 6.] VIII. Agreements as to costs between solicitor and client. [33 & 34 Vict. c. 28, s. 4; 44 & 45 Vict. c. 44, s. 8.] IX. Agreements between husband and wife that the wife's property before marriage shall be held to her separate use. (f) X. Special contracts between pawnor and pawnee, where the loan is over 40s. [Pawnbrokers Act, 1872, 35 & 36 Vict. c, 93, s. 24.] (e) 2 & 3 Will. 4, c. 71, ss. 1, 2, 3. (f) No such agreement is required in the case of a marriage which has taken place subsequent to December 31st, 1882 (Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, s. 2). E CHAPTER XIV. OF TORTS GENERALLY.(a) § A TORT is an injury of which the law takes notice, proximately resulting in damage capable of legal estimation. § A TORT CONSISTS OF I. A wrongful act. That is— 1. Either the infringement of a right, viz. : (i) The right of personal security. (iii) (iv) The right of private property. 2. Or, the breach of a duty.(b) II. Damage. That is— 1. Either actual pecuniary damage, 2. Or legal, that is, implied damage. [The damage which the law imputes, as the result of every infringement of a right.] Hence an action can be maintained for the infringement of a right (except in certain cases of slander, see post, Book III. Part V. Chap. V.), without proof of actual damage, and for a breach of a duty, only when actual damage is proved. $ MERE DAMAGE, however great, will not support an action where there has been 1. Neither the infringement of a right. (c) 2. Nor the breach of a duty. Illustration. The Commissioners of Sewers of the levels (a) See the chapter on Rights of Action, ante, p. 3. (b) See Heaven v. Pender, 11 Q. B. D. 503 (C. A.); 52 L. J. Q. B. 702. (c) Chasemore v. Richards, 7 H. L. Cas. 349; Wood v. Waugh, 3 Ex. 748 ; 18 L. J. 305. |