Boydell against Drummond
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1809 |
| Date | 25 May 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 958
IN THE COURT OF KING'S BENCH.
Referred to, Crane v. Powell, 1868, L. R. 4 C. P. 129; Edwards v. Aberayron Ship Insurance Society, 1876, 1 Q. B. D. 586; M'Gregor v. M'Gregor, 1888, 21 Q. B. D. 429; Oliver v. Hunting, 1890, 44 Ch. D. 208.
boydell against drummond. Thursday, May 25th, 1809. If it appear to have been the understanding of the parties to a contract at the time that it was not to be completed within a year, though it might and was in fact in part performed within that time, it is within the 4th clause of the Statute of Frauds 29 Car. 2, c. 3; and if not in writing signed by the party to be charged, &c. it cannot be enforced against him. And his signature in a book intituled "Shakespeare Subscribers, their Signatures," not referring to a printed prospectus which contained the terms of the contract, and which was delivered at the time to the subscribers to the Boydell Shakespeare, cannot be connected together, so as to take the case out of the statutes, as such connexion could only be established by parol evidence. [Referred to, Crane v. Powell, 1868, L. E. 4 C. P. 129; Edwards v. Abemyrm Ship Insurance Society, 1876, 1 Q. B. D. 586; M'Gregor v. M'Gregor, 1888, 21 Q. B. D. 429; Oliver v. Hunting, 1890, 44 Ch. D. 208.] The declaration stated that the plaintiff and his deceased partner (the late Mr. Alderman Boydell) had proposed to publish by subscription a series of large prints 11 EAST, 143. BOYDELLV. DRUMMOND 959 from some of the scenes in Shakespeare's plays, after pictures to be painted for that purpose, under certain conditions, viz. 72 scenes were to be painted, at the rate of two to each play, and the whole were to be published in numbers, each containing 4 large prints, at' the price of 3 guineas a number, 2 of which were to be paid at the time of subscribing, and the remaining guinea on the delivery of each successive number: and on the delivery of each number 2 guineas were to be advanced by the subscribers towards the succeeding number; and that one number at least should be annually published after the delivery of the first. And then the declaration stated that on the 7th of April 1790 the defendant became [143] a subscriber for one set of prints, and paid his 2 guineas; and that in consideration that the plaintiff and his late partner had promised to perform the conditions on their part as such publishers, the defendant promised to perform the conditions on his part as such subscriber : and then it alleged that although the publishers had performed and were ready to perform the conditions and promises on their part in all respects, and although one set of the prints had been long since published and ready for delivery to the defendant, according to the form and effect of the said conditions, of which he had notice on the 10th of December 1804; and though the defendant was duly requested to accept the said prints and to pay for the same according to the said conditions and his promise, and he did accept two numbers, and paid the plaintiff a further sum of 3 guineas on the delivery of each of those numbers, according to the said conditions; yet he refused when so requested to accept the residue of the prints or pay for the same.' There were other counts laying the contract more generally, and the common money counts. To all which the defendant pleaded non-assumpsit, and that the cause of action did not accrue within six years. It appeared at the trial that the first prospectus of the work was published in 1786, and a second prospectus in 1787. On the first of May 1789 the Shakespeare Gallery was opened in Pall-Mail, with an exhibition of 34 large pictures then finished, and in March 1790 an additional number were exhibited, amounting in all to 56 : and also specimens of several of the prints in a state nearly ready for publication. In April 1790 the defendant became a subscriber to the large prints; (a splendid edition of the letter-press of the plays, and a series. [144J of small prints to bind up with it, forming a distinct part of the proposed plan of publication.) The defendant's subscription was No. 1103, the whole number of subscribers at the close having been 1384. At the time of his subscription the defendant paid his two guineas in advance, and had a receipt given him for the same. The delivery of the first number was made in June 1791 (a), when it was delivered to the defendant's order, who thereupon paid the third guinea and two more in advance for the next number. The second number was delivered to the defendant on the 29th of March 1792, was advertised as before, and the defendant also sent for that, and paid his 3 guineas, two of them in advance for the 3d number as before. These numbers were delivered out at the gallery in Pail-Mall, being the place where the defendant had subscribed. Others were delivered out to other subscribers at Messrs. Boydell's shop in the city. After this time at least one number was delivered to the subscribers in general in every year, sometimes two, and in two instances three within a year, until the whole were completed; but the defendant never sent for any more of the numbers, though he never gave notice of his intention to discontinue taking them in. Nor did the plaintiff ever make any particular demand [145] on the defendant to take the remaining numbers and pay for them till 1807, after the whole work was completed and published; but the rest of the numbers as they came out were regularly laid by for him according to the order of time of his subscription. The last number wap published in 1803, and the number of prints finally delivered to the subscribers who sent for them was 12 more than the (a) It was offered to be proved at the trial that the delivery of the numbers was advertised in some of the public newspapers to give notice to the subscribers, that they might send for them: but Lord Ellenborough C.J. would not receive the evidence, unless it were also shewn that the defendant was in the habit of taking in one of such newspapers; which the plaintiff was not prepared to prove: this part of the cause therefore rested on the fact of the delivery of the two first numbers to the defendant's ,order; but the point was ultimately saved, with the rest: and when it was mentioned again in Court, his Lordship still thought the evidence of notice deficient for the reason before stated. 960 BOYDELL V. DRUMMOND 11 EAST, 146. stipulated number. This was the general nature of the case and of the evidence, which branched out into several questions; but as the judgment of the Court ultimately turned solely on the application of the Statute of Frauds to this case, it is only necessary to state the evidence with particularity as to that point. The first prospectus of the work, in December 17:86, stated the intention of Messrs. Bpydell "to publish...
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