Pain v Coombs
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1857 |
| Date | 21 April 1857 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 634
BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICES.
S. C. 3 Sm. & G. 449; 3 Jur. (N. S.), 307, 847.
[34] pain v. coombs. Before the Lord Chancellor Lord Cranworth and the Lords Justices. April 21, 1857. [S. C. 3 Sm. & G. 449 ; 3 Jur. (N. S.), 307, 847.] A parol agreement was entered into for a lease on terms, which, by the direction of the proposed lessor, the proposed tenant instructed a solicitor to reduce to writing. The solicitor took down the terms as stated by the tenant, and afterwards prepared from them a draft agreement, embodying these and other terms, and sent it to the lessor, who afterwards, and without objecting to it, let the tenant into possession, and directed the solicitor to prepare a lease in conformity with the draft agreement, but subsequently objected to the lease so prepared, and gave the tenant notice to quit. Held, 1. That the delivery and taking of possession was a sufficient part performance of the agreement, as expressed in the draft, to exclude a defence founded on the Statute of Frauds. 2. That there being a conflict of evidence on the question whether the covenants agreed upon had not been already broken, the proper decree was to direct the lease to be dated at a time antecedent to the alleged breaches, and to require from the Plaintiff an undertaking to admit in any action that the lease was executed on the day of its date. Qucere - whether possession taken previously to, but continued after, a parol agreement, may not be such a part performance as to exclude a defence founded on the Statute of Frauds. 1DEG. &J.3S. PAIN V. COOMBS 635 This was an appeal from the decree of Vice-Chancellor Stuart, directing the specific performance of an agreement alleged to have been entered into by the Defendant to grant the Plaintiff a lease of a farm in Wiltshire called Milford Farm, of which the Defendant was tenant for life. The negociations between the parties commenced in October 1854, when the Plaintiff with his father, Mr. George Pain, had an interview with the Defendant on the occasion of their inspecting the farm. On that occasion it was observed that a projected extension of the London and Southwestern Railway would pass through the farm, and the Plaintiff and hia father pointed out to the Defendant the injury which would be caused to the farm by the intersection of it and the severance which would be thus occasioned. The Defendant replied that the injury would not be so great as might be supposed, because the Plaintiff would have the power of under-letting the lower part of a field which was so intersected, and that he might get 8 an acre, which would pay him better than farming it. The Defendant added [35] that the Plaintiff could do just as he pleased with the farm, as he (the Defendant) was going abroad. On the 24th of October 1854, an interview took place between the Plaintiff, the Defendant, and Mr. Henry Philemon Ewer, an auctioneer and land agent, who was employed by the Plaintiff to look over the farm, and Mr. Ewer deposed that at this interview the terms of letting the farm were definitively settled and agreed to between the Plaintiff and Defendant, and that, with the sanction and at the request of the Defendant, the Plaintiff and Mr. Ewer instructed Mr. Hodding (who acted as solicitor for the Plaintiff and the Defendant) to reduce the terms of the agreement to writing. On the 25th of October 1854, the Plaintiff and Mr. Ewer told Mr. Hodding that they had arranged with Mr. Coombs for the Plaintiff to take the farm called Milford Farm, and that he was to prepare an agreement. Mr. Hodding thereupon reminded them that it was the privilege of the landlord's solicitor to do that, and that therefore he had better have Mr. Coombs's instructions. Mr. Ewer, however, said that Mr. Coombs was quite agreeable, and that the application was made to Mr. Hodding by Mr. Coombs's direction. The Plaintiff and Mr. Ewer then stated the terms of the agreement to Mr. Hodding, who took them down in writing as follows :- " James George Coombs, Milford, Wilts, gentleman, and Thomas Pain, brewer. Agreement for a lease. Farm and lands at Milford in J. G. C.'s " (meaning James George Coombs) "occupation, called Milford Farm, about 150 acres arable, 50 acres meadow, barns, yards and stablings, together with seven cottages and a ten-quarter malt-house (the dwelling-house, garden and orchard excepted), rent 50s. an acre, including cottages and malt-[36]-house ; term, fourteen years from Michaelmas 1854, if J. G. C. shall so long live. Coombs to be allowed to put in the present wheat crop, to be paid for the tillages and hay, which is to be taken at a valuation market price; straw to be taken at a spending price, Mr. P." (meaning the Plaintiff) "being allowed sufficient for litter for his horses. Mr. Pain to have the privilege of farming the land as he pleases, doing the same in a good husbandlike manner, keeping it in a good state and doing no unnecessary waste, and to be at liberty to dispose of the whole of the produce. Mr. Coombs to put the whole in repair, Mr. Pain to keep it in tenantable repair, being allowed rough materials." A day or two afterwards, Mr. Hodding caused the following draft agreement to be prepared and sent to the Defendant:-"An agreement made this day of 1854, between James George Coombs, of Milford, in the county of Wilts, gentleman, for himself, his heirs, executors and administrators of the one part, arid Thomas Pain, of Salisbury, in the same county, brewer, for himself, his heirs, executors, administrators and assigns of the other part, as follows, viz., the said J. G. Coombs doth hereby agree to grant, and the said Thomas Pain to accept, a lease, of all that farm and lands, arable, meadow and pasture, containing, by estimation, 200 acres more or less, and called Milford Farm, together with the barns, yards, stables, and other buildings and premises thereto belonging, and also seven cottages or tenements, and a ten-quarter malt-house near or adjoining the said farm, lands and premises (except the dwelling-house, and the garden and orchard belonging to the same, and now occupied by the said J. G. Coombs), all which said premises are situate, lying and being at Milford aforesaid, and are now in the occupation of the said James G. Coombs, or his under-tenants ; to hold the [37] same for the term of fourteen years 636 PAIN V. COOMBS 1DEO.&J.38. (if the said James G. Coombs shall so long live), from the twenty-ninth day of September now last past, at the yearly rent of j500, clear of all rates, taxes, charges and assessments whatsoever, Parliamentary, parochial or otherwise (except the land tax and quit rent), to be paid half-yearly on the 25th day of March and the 29th day of September in every year, the first payment thereof to begin and be made on the 25th day of March now next ensuing; and the said indenture of lease shall contain the following covenants upon the part, of the said Thomas Pain (that is to say), to allow and permit the said J. G. Coombs to put in the present wheat crop; to pay for the tillages and hay upon the said premises at a valuation to be made in the usual manner, the hay being valued at a market price ; also to pay for all the straw that shall be left in or about the premises by a valuation in like manner, the same being valued at a spending price (the said Thomas Pain, however, being allowed sufficient straw for the litter for his horses); to permit the said J. G. Coombs to hold over the several meadows, called respectively and (NOTE.-This was left in blank in the draft), till Lady Day next (he paying or allowing the said Thomas Pain for the same at the rate of 50s. per annum, from the 29th day of September now last past for each acre, and in that proportion for any less quantity than an acre); also to hold over the barns and the farmyard till Lady Day next, the said T. Pain having a right-of-way over the farmyard to the stables and other buildings; to till, cultivate and manage the said lands in a good and husbandlike manner; to keep and preserve the buildings, gates, stiles and fences, belonging to the said premises in good and sufficient repair during the said term, except the same be damaged by fire or any inevitable accident, and the same being first put in good and tenantable repair by [38] the said J. G. Coombs as after mentioned ; not to grub up, destroy, cut or injure any of the trees, woods or underwoods, growing on the said premises except as hereinafter mentioned: nor to plough, break up or convert in tillage, any of the pasture lands; to permit the said J. G-. Coombs, or the next tenant of the said premises, from and after the 24th day of June, in the last year of the said tenancy, to enter into and upon the said arable lands in course for a wheat crop to prepare and sow the same ; also to permit him or them to sow together with the last year's crop of him the said Thomas Pain such quantity of clover, rye or other grass seeds, as the said J. G. Coombs, or the next tenant of the said premises shall think proper; and that he the said Thomas Pain shall and will harrow in the same grales, in a good and husbandlike manner : and to leave all the manure which shall be made or produced during the last year of the said tenancy, and from the last year's crop in the bartons and backsides of the said premises, for the use of the next tenant or tenaaits of the said premises; and also to cut and plash the hedges at proper ages and seasons, and make and throw up the ditches in a good and husbandlike manner; and a proviso for the re-entry of the said J. G. Coombs, in case of non-payment of the rent for the space of twenty-eight days after either of the said days of payment, or of the non-performance or non-observance of the covenants, or of the bankruptcy or insolvency of the said Thomas Pain; and that there shall be contained the following covenants on the part of the said J. G. Coombs...
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