No. XLIV. bearing date &c. and that I this declarant subscribed my name Declared &c. day of Definition of an agreement. Parties to an agreement. AGREEMENTS. 1. Definition of an Agreement. 3. Subjects of an Agreement. Deeds and Parol Agreements. 7. Consideration for the Agreement. 8. Construction of Agreements at Law and in Equity. 9. Penalty Clause. 10. Stamping Agreements. 11. Different kinds of Agreements. SECT. 1. An agreement, in its most extensive sense, is defined to be the consent of two or more persons in constituting or dissolving some legal obligation, and in that sense includes every species of assurance; but, in a more limited acceptation of the term, it implies any memorandum, articles or minutes, entered into between two or more persons, either to serve as a deed of itself, or as preparatory to some more formal instrument, 1 Bac. Ab. 67. 2. No one can enter into an agreement who has not discretion, or the power of using it; therefore idiots, lunatics, infants, married women, and persons under any duress or restraint, are in general incapable of contracting, Perk. 12, 16; 4 Co. 124; 5 ib. 119; Sheph. Touch. 39; Harris v. Lee, 1 P. Wms. 483; 1 Atk. 409; 1 Fonb. Eq. 68. But the law allows infants to make contracts, with power to vacate them if they prove prejudicial; and a contract by an infant for necessaries is absolutely binding, Co. Litt. 172 a; 2 Sid. 109; 1 Lev. 86; Truman v. Hurst, 1 T. R. 41. And by the 9 G. 4, c. 14, s. 5, agreements or promises made in infancy must be confirmed by writing when the party comes of full age. By the 1 G. 1, c. 10, for the maintenance of the poor clergy, agreements entered into by guardians for infants and idiots were to be valid; but now, by 3 & 4 W. 4, c. 65, s. 26, such agreements may now be made by guardians in case of infants, with the approbation of the Court of Chancery, and in the case of lunatics by their committees, with the consent of the Lord Chancellor. And by 6 & 7 W. 4, c. 115, guardians, committees and husbands are empowered to enter into agreements for making inclosures for infants, lunatics, and femes covert. In many cases a married woman is competent to contract as if she were sole, Norton v. Turvill, 2 P. Wms. 144; Grigby v. Cox, 1 Ves. 517; 1 Fonb. Eq. 91; see further as to infants, Dig. p. iii. tit. GUARDIAN AND INFANT; as to married women, Dig. p. iii. tit. HUSBAND AND WIFE. The executors and administrators of a party are usually named in an agreement; but this is not necessary in order to bind his assets, as his representatives are, by intendment of law, included in his person, Hyde v. Skinner, 2 P. Wms. 270. But the word " heirs" must not be omitted when the real estate of the party is intended to be bound, Plowd. 439; 2 Saund. 136. Agreements. 3. Generally speaking, every kind of right or interest, whether of Subjects of an a real, personal, or mixed nature, may be the subject of an agreement; agreement. but it is requisite that it be within the power of the party contracting, Plowd. 12, 43; Bac. Max. c. 77. And it must also be such as is not forbidden by the rules of religion and morality, or by the laws of the land, Hob. 132; Morse v. Royal, 12 Ves. 371; Du Bost v. Beresford, 2 Campb. 511; 1 Fonb. Eq. 223. An agreement may either be executed at the beginning, as where money is paid for the thing agreed for, or it may be executory, where it is to be done at some future time, Bac. Max. 78, 79; Dy. 221. 4. Every agreement, to be effectual, ought to be full and complete, Form of an and so framed as to express with clearness and precision the stipula- agreement. tions and terms of the contract, Plowd. 5. Agreements ought to be in writing, otherwise, by the Statute of Frauds, 29 Car. 2, c. 3, they will not be valid. Executory contracts have been held in some cases not to be within the statute, Clayton v. Andrews, 4 Burr. 210; Alexander v. Comber, 1 H. Bl. 20; secus, in other cases, Rondeau v. Wyatt, 2 H. Bl. 68; Garbut v. Watson, 1 D. & R. 219; and now the 9 G. 4, c. 14, s. 7, has removed all doubts, by extending the provision of 29 Car. 2 to all executory contracts. Agreements need not be under both the hand and seal of the parties. A letter takes an agreement out of the statute, not only in consideration of marriage, but also in respect to lands, Ford v. Compton, 2 B. C. C. 32. Where agreements are under the hand and seal of the parties, they are, as to the subject matter, sometimes called special contracts or specialties, VOL. I. I Agreements. Deeds. Parol agree ments. Signing an agreement. Attestation of an agreement. and as to the instrument, deeds; but where they are verbal, or only in writing under the signature of the parties, they are termed parol agreements, or absolutely agreements, Sugd. Vend. & Pur. 9th edit. 99; see also 1 Sugd. Vend. & Pur. 10th ed. chap. iii., and Dig. p. ii. tit. FRAUDS, (STATUTE.) The former kind of agreements are binding on the heir of the parties if named, but the latter on the representatives only, 2 Wms. Saund. 7, n.; 4 ib. 136; Wilson v. Knubley, 7 E. 128. An action might formerly be sustained upon a contract under seal at any period of time; but by the 3 & 4 W. 4, c. 42, s. 3, actions of debt or covenant on bonds, or other specialties, must be brought within twenty years after cause of action arises; actions upon parol agreements must be brought within six years after the cause of action arises, Jones v. Pope, 1 Wms. Saund. 37. So an agreement by parol cannot dispense with, alter, or control a deed, Sellers v. Beckford, 8 Taunt. 31, S. C.; 1 B. Moore, 460; (see further as to agreements, parol or by deed, BOND, CHARTER-PARTY, DEFeaSANCE, LEASE, PARTITION.) 5. Signing is, by the Statute of Frauds, one requisite to the validity of an agreement; but as a signature by one of the parties will be binding only on the party signing, it is important for both parties to sign, in order to give full efficacy to the contract, 2 Ch. Ca. 164; Champion v. Plummer, 1 N. Rep. 254; Cooper v. Smith, 15 E. 103; Phillimore v. Barry, 1 Campb. 513; Symmons v. Want, 2 Stark. 371. The signature of an authorized agent, even though not authorized in writing, but verbally only, will bind his principal, Mortlock v. Buller, 10 Ves. 311; Wilson v. Hart, 7 Taunt. 295; Clinan v. Cooke, Sch. & Lef. 31, 32. A cross made by one who is not able to write, is a sufficient signing; and if a man be in the habit of printing or stamping his name, he will be considered to have signed by his printed name, 1 Sugd. Pow. 6th edit. 30; Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286. Where an agreement is signed by an attorney or authorized agent, he must sign in the name of his principal, not in his own name, 2 Ld. Raym. 1418; White v. Cuyler, 6 T. R. 176; Wilks v. Back, 2 E. 142; Coles v. Tricothick, 9 Ves. 234. The signature required by the statute need not be in any particular part of the instrument, 1 Sugd. V. & P. 10th edit. 180 et seq. But it has been held, that inserting the name in the middle of a writing cannot have the effect of a legal signature, Hawkins v. Holmes, 1 P. Wms. 770; Stokes v. Moore, 1 Cox, 219. to the attestation or signing in the presence of witnesses, this is necessary for preserving the evidence of the deed, 1 Lev. 25; 1 Sid. 37. And in regard to deeds made in pursuance of powers, where the As power requires attestation, a deed will be void at law, where there is Agreements. no mention of such attestation, 1 Sugd. Pow. 6th edit. 302. 6. Recitals are not an essential part of a deed, but they are never- Recitals in an theless proper, as they serve to control, extend, or explain the meaning agreement. of general words, Lampon v. Corke, 5 B. & A. 606; Payler v. Homersham, 4 M. & S. 423; (see also BONDS, RELEASES.) Where a recital is made, it is necessary that it should be correct; thus in an assignment of a lease, if the date of the lease be misrecited, as the 1st of May for the 2nd of May, the assignment will be void. To obviate the consequence of such errors, it is now usual to recite deeds as "bearing date on or about the" &c., Sheph. Touch. 77, Preston's edit.; (see further, RECITALS.) for an agree ment. 7. Some consideration or other is absolutely necessary to support Consideration an agreement, otherwise it is held to be a nudum pactum, and void at law, Plowd. 308; Dy. 336; Jones v. Ashburnham, 4 East, 455; Parker v. Bayliss, 2 B. & P. 73. So if the consideration be the doing that which the law prohibits, or which is offensive to decency or good morals, it will be void, Martyn v. Blithman, Yelv. 197. But any reasonable consideration, however small, will be deemed sufficient, Dy. 272; 1 Roll. Abr. 22, 23; Williamson v. Clements, 1 Taunt. 523. And if the agreement be under seal, no consideration need appear on the face of the deed; but parol agreements are not allowed to be conclusive evidence of a sufficient consideration, Pellans v. Mierop, 3 Burr. 1670; Rann v. Hughes, cited 7 T. R. 350, n.; 1 Fonbl. Eq. 342, 347; (see further, as to the consideration, AGREEMENTS for the Sale of an Estate, BARGAIN AND SALE, BOND, GIFT, SETTLEMENT.) 8. The construction of deeds and agreements is the same in equity Construction of as at law, but the performance required in a court of equity and that agreements in equity and at of law is different. At law, a covenant must be strictly and literally law. performed; in equity, it must be really and substantially performed, Eaton v. Lyon, 3 Ves. 692. Equity will relieve against a strict performance upon equitable circumstances, where there is no wilful neglect and misconduct, and will also enforce the performance of fair and reasonable contracts, even although they be by parol, where the party wants the thing in specie, 2 Freem. 268; 2 Vern. 455; Gunter v. Halsey, Amb. 586; Errington v. Annesley, 2 B. C. C. 443. But if the contract can be and is intended to be compensated by damages, courts of equity will not interpose, 1 P. Wms. 570; Capper v. Harris, Bunb. 135. 9. In contracts of an executory kind, a clause is usually inserted, Penalty clause. stipulating for the payment of a sum of money, either by way of Agreements. penalty or for liquidated or ascertained damages, in case of violating any of the articles of the contract by either party. The latter mode, by which the parties themselves fix the amount of damages, is to be preferred, as it prevents the necessity of a reference to a jury for that purpose, Astley v. Welden, 2 Bos. & Pull. 346. But the intention of the parties must be clearly expressed, for the mention of the word "penalty" or "penal sum," precludes the court from considering it as liquidated damages, Smith v. Dickenson, 2 B. & P. 630; Astley v. Welden, ub. sup. It is, however, worthy of observation, that, notwithstanding the above clause, equity will compel a specific performance of a contract where redress in the shape of damages, or otherwise, is an inadequate remedy, Hobson v. Trevor, 2 P. Wms. 191; Goring v. Nash, 3 Atk. 186. Stamping. Different kinds of agreements. 10. An agreement cannot be produced in a court of justice as evidence of a contract, unless it be stamped. Whenever, therefore, a letter is relied on as evidence, it must first be stamped before it be read, Ford v. Compton, 2 B. C. C. 32. But memorandums or acknowledgments rendered necessary by 9 G. 4, c. 14, are not to be deemed agreements within the meaning of any of the Stamp Acts. By the 55 G. 3, c. 184, every agreement or memorandum under hand only, where the matter thereof shall be of the value of 201. and it shall contain less than 1080 words, is charged with a duty of 11.; and when it contains 1080 words and upwards, with a duty of 11. 15s., and for every entire quantity of 1080 words over and above the first 1080 words, with a further progressive duty of 1l. 5s. But when several letters are offered in evidence to prove any agreement, they are chargeable only with the duty of 17. 15s., although they may contain more than twice the number of 1080 words and upwards. Every deed, or every instrument under hand and seal, not otherwise charged, requires a stamp of 17. 15s., and a further progressive duty of 11. 5s. for every entire quantity of 1080 over and above the first 1080. Articles of agreement under seal cannot be given in evidence, unless stamped with a deed stamp, Robinson v. Drybrough, 6 T. R. 317; see further as to the stamp duty on agreements, Dig. p. iii. tit. AGREEMENTS. 11. The above remarks will suffice to show the distinction between agreements when they are under seal, and the informal instruments which are properly so called. As to agreements for particular purposes, see further AGREEMENTS for a Lease, PARTITION, PURCHASE, &c. And as to regular deeds, see further BONDS, CONDITIONS, COVENANTS, DEEDS, LEASES, PURCHASE DEEDS, &c. Agreement with an agent, broker or factor, see post, AGREEMENTS (Principal and Agent). |