C. P. MONGERS' THE FISH- In Robinson v. Gleadow (1), and Maclean v. Dunn (2), there was a sufficient legal ratification which would be drawn back to the previous contract; but that is not so here. COMPANY ROBERTSON, [ *174 ] (MAULE, J.: Is not the bringing the action a sufficient ratification by the plaintiffs ?) It is submitted that it is not, if both parties are not bound. The adoption must be of equal force, that is, equally binding on both parties. (MAULE, J.: You say the plaintiffs are not bound; and that the defendants have no cross action against them; but the plaintiffs having brought the present action are bound on the record.) It is submitted that, after breach, the one party, not being bound, cannot by bringing an action bind the other party. Otherwise he might lie by for five years and three-quarters, just to avoid the operation of the Statute of Limitations, before the other party could know whether the contract was binding upon him. The cases of Yarborough v. The Bank of England (3) and Smith v. The Birmingham and Staffordshire Gas Light Company (4) have also no application. Those were actions in tort, where it was held that the jury might assume that the act of the agent was sufficiently the act of the principal to make the latter a tort-feasor. In Tilson v. The Warwick Gas Light Company (5) the first count was founded upon the obligation contained in the *Act of Parliament, under which the Company was formed, that the costs of obtaining that Act should be paid; the other counts were general indebitatus counts upon a debt which might have been founded upon a deed; and the Court held that upon general demurrer, a deed might be presumed. In this case also it is argued that it may be presumed, the plaintiffs contracted by deed; but that will not be sufficient, inasmuch as one party cannot be bound by deed and the other by parol. (TINDAL, Ch. J.: It would appear upon the whole record in this case that the promise was by simple contract. MAULE, J. Suppose a deed had been executed by the plaintiffs; : (1) 42 R. R. 568 (2 Bing. N. C. 156; 2 Scott, 250). (2) 29 R. R. 714 (4 Bing. 722; 1 Moo. & P. 761). (3) 14 R. R. 272 (16 East, 6). (4) 40 R. R. 358 (1 Ad. & El. 526; 3 N. & M. 771). (5) 28 R. R. 529 (4 B. & C. 962; 7 Dowl. & Ry. 376). and been signed but not sealed by the defendants, would the plaintiff have no remedy?) It would be very doubtful. (MAULE, J.: I think there is a case in point in which assumpsit has been held to lie. Manning, Serjt., for the defendant Staines, referred to White v. Cuyler (1). Channell, Serjt., referred to Sutherland v. Lishnan (2).) Unless both parties were equally bound by the instrument, it is submitted that one could not sue the other (3). (MAULE, J.: In cases of demise, if the lessor executes the lease and the lessee does not, may not the latter be sued ?) Not upon the lease. [He cited Cardwell v. Lucas (4).] The declaration in this case states an agreement between the parties. If that is to be taken as an agreement by deed, then, if it were executed by the agent in his own name on behalf of his principal, it would be void as against the principal, and binding upon the agent alone: Frontin v. Small (5), Appleton v. Binks (6), Burrell v. Jones (7). (MAULE, J. referred to The East India Company v. Lewis (8).) Assuming that the corporation have not contracted under any instrument binding upon their corporate property, the question. is whether, where a contract is binding on one party but not on the other, the party who is not bound can sue the other. The plaintiffs here, it is true, allege that they are bound, as part of the consideration for the defendants' promise, but that allegation will not make them bound, if they are not so in law. Mutuality is (4) 46 R. R. 309 (2 M. & W. 111). (8) 33 R. R. 680 (3 Car. & P. 358). THE FISH- v. ROBERTSON. [175] [ *176 ] MONGERS' COMPANY THE FISH wanting in this case, and that is the essence of all contracts: East London Waterworks Company v. Baily (1), Kingston v. Phelps (2), Biddell v. Dowse (3), Antram v. Chace (4), Ferrer v. Oven (5), Bird v. Higginson (6). ROBERTSON. [ *177 ] (MAULE, J.: There is a large class of cases mentioned by Pothier, where one party, A., promises to do something, if another party, B., will do something else. This contract is not binding on B.; but if he does the act, then it becomes binding on A. (7). Perhaps it may be contended that this is some such case.) Even if it were so, still the mode of statement of the contract is not sufficient. There is no consideration moving from the plaintiffs to the defendants-no benefit from, or detriment to the plaintiffs; and therefore they, being strangers to the consideration, cannot sue upon the contract: Lees v. Whitcomb (8). (MAULE, J.: The declaration there stated, as the consideration of the defendant's promise to remain with the plaintiff for two years, that the plaintiff would teach the defendant the business of a dressmaker; but the contract proved contained no such consideration. COLTMAN, J.: How do you make the *plaintiffs strangers to the consideration?) Because they are not bound. Bates v. Cort (9) also shows the necessity for mutuality in a contract. (CRESSWELL, J.: That case and others of a similar kind resolve themselves into a question of nudum pactum. The point here is, (1) 4 Bing. 283; 12 Moore, 532. (3) 28 R. R. 574 (6 B. & C. 256; 9 (5) 31 R. R. 239 (7 B. & C. 427; 1 Man. & Ry. 222). (6) 2 Ad. & El. 695; S. C. affirmed in Cam. Scace. 6 Ad. & El. 824. (7) See Pothier, Traité des Obligations, Part 2, chap. 3. A contract or obligation of this kind is termed con ditional, i.e., an obligation which is suspended by the condition under which it has been contracted, and which is not yet accomplished (Poth. Traité des Obligations, No. 198). The particular condition mentioned above by the learned Judge is termed potestative, i.e., one which is in the power of him towards whom the obligation is contracted (Poth. Traité des Obligations, No. 201). (S) 30 R. R. 539 (5 Bing. 34; 2 Moo, & P. 86). (9) 2 B. & C. 474; 3 Dowl. & Ry, 676. as put by my brother MAULE, of an executory contract, where one party undertakes to do one thing, if the other will do another.) It comes back to the fact of there being no binding contract. Saunderson v. Griffiths (1) is an authority to show that a subsequent ratification by one who was not a party to the original agreement, is not sufficient. If the action is maintainable at all, Ogilby, who by the agreement was to do something as well as the other parties, ought to have been made a co-plaintiff: Chanter v. Leese (2); for no action could have been maintained upon the agreement, if Ogilby had not performed his part. As to the replication to the second pleas; if there is any weight in the argument that the Company cannot bind themselves except under the corporate seal, then, unless the appointment of Towse were under seal, he could have no valid authority, as their agent, to enter into the contract; and the replication, not showing any such authority, is clearly bad. He then proceeded to argue that, assuming the replication were good, the rejoinder was not open to the objection that had been urged against it (3). Upon this point he cited Gough v. Bryan (4), Stephen on Pleading, 201, and Cross Keys Bridge Company v. Rawlings (5). The third, fourth and fifth pleas may be dealt with *together; they all contain the exceptions as to the breach for the non-return of the plans. The defendant contends that, by the agreement, he is entitled to the benefit of the entire consideration. There is no analogy between this case, an action of assumpsit, and an action of covenant, where no consideration is necessary; such as Boone v. Eyre (6) and Stavers v. Curling (7). In simple contract the consideration must be laid and proved. The consideration here is laid as executory, not as executed. The exertions of the plaintiffs in favour of the bill are the consideration for the defendant to enter into the contract. If the plaintiffs did not use all reasonable means and endeavours to procure the bill to pass, as alleged in the fourth plea,-or, if they presented a petition against the bill, as alleged in the fifth-the consideration for the defendants' promise would fail. (1) 53 R. R. 161 (5 B. & C. 909; 8 Dowl. & Ry. 643). (2) 51 R. R. 584 (4 M. & W. 295); affirmed in Cam. Scacc., 52 R. R. 877 (5 M. & W. 698). (3) Vide ante, p. 255. (4) 2 M. & W. 770. (5) 3 Bing. N. C. 71; 3 Scott, 400. (7) 43 R. R. 682 (3 Bing. N. C. 355 - THE FISH- v. ROBERTSON, [*178] THE FISH- Hindmarch, for the defendant Booth: The plaintiffs were never bound by the agreement, it not being ROBERTSON, under seal. [179] [ *180] * * * As to the necessity of the contract being by deed, in order to bind the plaintiff, he cited Horne v. Ivy (1), Panel v. Moore (2), Rex v. The City of Chester (3), Cary v. Matthews (4), Smith v. The Birmingham and Staffordshire Gas Light Company (5), Jenkins's Centuries, case 68 (6), and Dumper v. Syms (7); and upon the point of want of mutuality, Sykes v. Dixon (8), Daniel v. Bowles (9), Harrison v. Cage (10), Cole v. Cottingham (11), Cooke v. Oxley (12), and Payne v. Cave (13). The plaintiffs ought, at least, to have alleged notice to the defendant that they adopted the contract : M'Iver v. Richardson (14). He also cited Cardwell v. Lucas (15), Saunderson v. Griffiths (16), Richardson v. Gifford (17), and Wilson v. Woolfreys (18). The cases cited on the part of the plaintiffs, which turn upon the Statute of Frauds, are inapplicable. Before that statute such contracts as are mentioned in those cases would have been binding on both parties although not in writing. The statute altered the law by requiring that such agreements should be in writing and signed by the party to be charged; but as to the other party, whose concurrence forms the consideration, the statute does not require his signature. The consideration in such 'cases remains the same as at common law. The statute says nothing as to a seal; but by common law a corporation can only bind themselves by seal and without their seal to a contract the other party has no consideration. The questions here are, 1st, whether all the parties were originally bound by this contract, and 2ndly if the plaintiffs were bound whether assumpsit will lie at their suit? (MAULE, J.: There are cases which show, that though a (10) 1 Ld. Ray. 386. (11) 8 Car. & P. 75. (12) 1 R. R. 783 (3 T. R. 653). (13) 1 R. R. 679 (3 T. R. 148). (14) 1 M. & S. 557. (15) 46 R. R. 509 (2 M. & W. 111). (16) 53 R. R. 161 (5 B. & C. 909; 8 Dowl. & Ry. 643), (17) 40 R. R. 253 (1 Ad. & El. 52; 3 N. & M. 325). (18) 18 R. R. 396 (6 M. & S. 341). |