Chinnock v The Marchioness of Ely
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1865 |
| Date | 01 January 1865 |
| Court | High Court of Chancery |
English Reports Citation: 71 E.R. 447
HIGH COURT OF CHANCERY.
Reversed, 4 De G. J. & S. 638; 46 E. R. 1066 (with note).
Vendor and Purchaser. Statute of Frauds. Agreement. Specific Performance. Damages under Sir H. Cairns's Act.
[220] chinnock v. the marchioness of ely. Nov. 23, Dec. 13, 1864. [Reversed, 4 De G. J. & S. 638; 46 E. K. 1066 (with note).] Vendor and Purchaser. Statute of Frauds. Agreement. Specific, Performance,. Damages under Sir H. Cairns's Act. Where a letter, written by the intending purchaser, containing all the essential conditions of a contract for sale is replied to by a letter of the vendor's agent, which says that the writer has been "instructed to proceed with the sale," and refers to a "draft contract then being prepared and which will be forwarded," the two letters form a complete concluded agreement within the Statute of Frauds. The Court will not, under the terms of Sir Hugh Cairns's Act, award any damages to the Plaintiff in addition to specific performance, where it does not appear that he has suffered any special injury from the delay which has occurred in the completion of the contract. Jane Dowager Marchioness of Ely was, in the month of November 1863, owner in fee-simple in possession of the freehold house, No. 9 Prince's Gate, and stabling thereto belonging, situate in Eunismore Mews, all in the parish of St. Margaret's, Westminster, and as such owner she instructed her solicitors, Messrs. Lethbridge & Mackrell, to sell the said house and stabling, subject, as stated in her answer to the amended bill in this suit, to the stipulations and conditions under which she had purchased the same, and to employ as an agent for effecting the sale one Mr. Edwin Smith. [221] On the 7th of November 1863 Messrs. Lethbridge & Mackrell wrote and sent to Mr. Edwin Smith the following letter:- " 9 Prince's Gate. "25 Abingdon Street, London, S.W., 7th November 1863.-Dear Sir,-We have received instructions from the Marchioness of Ely to employ you in selling her house 448 CHINNOCK V. MARCHIONESS OP ELY 2H. &M. 222. by private contract, provided such sale is effected on or before the 1st day of March next. The price to be 10,000. Possession to be given on the 1st of April 1864, when the purchase is to be completed, arid your fee for selling to be 100, and this sum to include all expenses. Lady Ely is possessed of the freehold of these premises. Her ladyship will have no objection to let this house furnished to a respectable tenant, at a reasonable rent, from the 23d inst. to the 1st March next.-We are, dear Sir, yours truly, " lethbridge & MjVCKRELL." Smith was at the same time informed that he was not to enter into any contract for the sale, which was to be clone by the solicitors, who advised that no sale should be made except subject to conditions similar to those on which her ladyship had purchased the property; but this restriction on his power was not disclosed to the Plaintiff or his agent. This letter was, on the 9th November 1863, shewn, in the course of an interview on other business, by Smith to Mr. Galsworthy, the Plaintiff's solicitor. Galsworthy thereupon asked for and obtained from Smith an order to view the premises, and he communi-[222]-cated what he had heard, and handed over the said order to view to the Plaintiff. The Plaintiff, thereupon, on the llth November wrote and sent to Smith the following letter:- "11 Waterloo Place, Pall Mall, S.W., London, Nov. llth, 1863.-Dear Sir.-No. 9 Prince's Gate.-I agree to give you the price which you are authorised to accept for this freehold house and stabling in Ennismore Mews, viz., ten thousand (10,000) pounds, to include the usual tenants' fixtures, possession as early in March as can be arranged. I shall be obliged if you would forward me the usual contract.-I am, dear Sir, yours faithfully, "fredk. chinnock." By this time, however, the marchioness had ceased to wish to sell the house, and accordingly, by her desire, Mr. Lethbridge, on the 16th November, called on the Plaintiff and requested him to withdraw his offer, which he refused to do except on terms to which Mr. Lethbridge declined to assent, and thereupon Lady Ely, as stated in her answer, "instructed Messrs. Lethbridge & Mackrell to proceed with the sale." These gentlemen accordingly addressed to the Plaintiff the following letter :- "25 Abingdon Street, London, S.W., Nov. 19th, 1863.-Dear Sir.-No. 9 Prince's Gate.-We have been instructed by the Marchioness of Ely to proceed with the sale to you of these premises. The draft contract is [223] being prepared, and will be forwarded to you for approval in a few days.-Yours truly, "F. Chinnock, Esq." "lethbridge & mackrell." Nothing further took place in reference to the proposed purchase until the 21st of December 1863, when Lethbridge & Mackrell sent to Messrs. Galsworthy, the Plaintiff's solicitors, a draft contract for approval on behalf of the Plaintiff, which, besides embodying the terms comprised in the Plaintiff's letter of the llth of November, contained several clauses, some of which were restrictive of the title to bo shewn by the Defendant, and another of which threw upon the Plaintiff the costs of the production of evidence of various sorts. This draft contract was, as subsequently appeared, almost an exact copy of that under which the Defendant had herself purchased the property in question. The Plaintiff's solicitors struck the last-mentioned clause out of the draft, insisting that the Plaintiff had bought upon an open contract. Lethbridge & Mackrell restored this clause, alleging, as the fact was, that Lady Ely had purchased under similar conditions, and that she had only agreed to sell under conditions similar to those on which she had purchased. Messrs. Galsworthy, however, insisted upon their objection, but they assented to the draft in all other respects, and thereupon Lethbridge & Mackrell, by letter of the as. &M.2M. CHINNOCK V. MARCHIONESS OF ELY 449 13tb January 1864, announced to them that they declined to proceed further with the treaty for sale of the premises. [224] On receipt of this letter Mr. John Galsworthy waited upon Lethbridge & Mackrell, and verbally informed them that the Plaintiff', to prevent litigation, withdrew his objections absolutely. On the 14th January 1864 Messrs. Galsworthy wrote to Lethbridge & Mackrell, unconditionally accepting the draft as it stood, and saying that the objection taken to clause 9 had been taken of their own mere motion, as solicitors to the purchaser, and that they now waived it, and had caused one part of the agreement, " with the clause noticed," to be engrossed. The Defendant, however, refused to proceed with the sale on the grounds, first, that the letter of the 19th November 1863, written by her solicitors, was merely a conditional acceptance of the Plaintiff's offer upon the terms of a formal contract for sale being agreed to between the Plaintiff and herself, which never had been done : secondly, that the condition which had been objected to by the Plaintiff, forming the 9th clause in the draft contract submitted to him, was a reasonable clause to be embodied in such formal contract, and that, as the Plaintiff' had not assented to such clause till after she had withdrawn from the bargain, no concluded agreement had ever been come to : and, thirdly, that Smith was not authorized to enter into any such contract as had been come to on her behalf. Thereupon this bill was filed for specific performance of the contract, and for damages either in addition to or substitution for such specific performance; and particularly for damages in respect of the delay which had taken place in the completion of the contract. The cause now came on upon motion for decree. [225] Mr. Holt, Q.C., Kir H. Cairns, Q.C., and Mr. Fry, for the Plaintiff. Under the letters of the llth and 19th November 1863 there was a complete and binding " open " contract, that is without special conditions for the purchase of the house arid stabling, and those two letters taken together are quite sufficient to bind the Defendant under the Statute of Frauds, Kennedy v. Lee (3 Mer. 441): at the interview on the 16th November both parties assumed the existence of a binding contract, and the Defendant's solicitor did not then refor the Plaintiff' to any more formal contract. lu Fowle v. Freeman (9 Ves. 351) and Thomas v. Dering (1 Keen, 729, 746) it was held that an intention to execute a formal contract did not destroy a contract completed in a...
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