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[L. E.
HEARD v. PILLEY.
Specific PerformanceVendor and PurchaserStatute of Frauds, s. 8Contract
by Agent appointed by ParolDemurrerPleadingSufficiency of Allegation of Contract.
A contract for the purchase of land made by an agent will be enforced,
although the agent be appointed merely by parol.
In a bill filed by a purchaser for specific performance of a contract for sale,
it was alleged that the contract was made by one of the Defendants as agent
for the Plaintiff, but that the agent claimed the benefit of the contract for
himself. It appeared by the statements in the bill, that the agent was ap
pointed merely by parol.
Demurrers by the two Defendants, the agent and the vendor, were over
ruled.
The decision of Malins, V.C., affirmed.
Bartlett v. Pichersgill (1) commented on.
An allegation in a bill by a purchaser for specific performance that he was
informed by his agent that a written agreement was executed, followed by
statements referring to the agreement as actually made:
iZeW, on demurrer, a sufficient allegation of the execution of a written contract.
VOL. IV.]
CHANCERY APPEALS.
22 Beav. 72.
Law Eep. 5 Eq. 91.
2 H. & M. 465.
4 East, 577, n.
549
L. JJ.
1869
HEABD
p^^y
CHANCERY APPEALS.
[L.E.
VOL. IV.]
CHANCEEY APPEALS.
C. J.
SELWYN,
L.J.:
In this case two questions have heen raised; first, whether there
is any sufficient allegation in the bill, that an agreement was, in
fact, entered into by the Defendant Pilley in writing so as to con
stitute it an agreement which could be enforced, having regard to
the provisions of the Statute of Frauds; and, secondly, as between
the Plaintiff and the Defendant Pilley, whether there is such alle
gation of agency as is consistent with the provisions of that statute,
and which can be enforced.
With regard to the first point, we did not think it necessary to
hear the Bespondent's counsel; for although the statement re
lating to the letter from Sugden does not amount to a positive
allegation, still, coupling it with the subsequent statement to this
effect, " That Pilley entered into the said agreement with the said
Samuel Sugden and Bobert Brown, the tenant, respectively as the
agent for and on behalf of the said James Bowe Heard," and with
other statements in the bill, I think there is sufficient allegation of
an agreement, and an agreement constituted by the letter written
and signed by the Defendant Sugden, so as to render it impossible
for him to set up a case that there is no contract in writing relating
to this property. Then with regard to the agency of Pilley, in the
first place, the fact of the agency is distinctly stated in the para
graph which I have read. And although it may be true that he
afterwards disputed or questioned that agency, the fact must be
taken as clear and indisputable. This bill is therefore brought
into the category of those very common billsa bill alleging a
contract entered into in writing with a person averred to be the
agent of the Plaintiff, and praying specific performance against the
agent and against the person with whom that agent has entered
into the contract. That is a bill of a very ordinary description,
and it is a startling proposition to say that unless the bill alleges
that the agency was constituted by writing, such a bill cannot be
sustained.
CHANCEKY APPEALS.
552
L. JJ.
1869
HEARD
p "
[L. E.
The only authority which has been cited in support of that proposition is Bartlett v. Pielzersgill (1); but that case does not
govern the present one, for that was a case in which the conveyance was executed, and in which it appears, from the short statement of the case, which is in a note, that the bill was a bill by the
Plaintiff seeking for a conveyance to the Plaintiff as against the
Defendant, to whom a conveyance had already been made. The
statement is this:" The Defendant bought an estate for the Plain
tiff, but there was no written agreement between them, nor was any
part of the purchase-money paid by the Plaintiff. The Defendant
articled for the estate in his own name, and refused to convey to
the Plaintiff, so this bill was brought to compel a conveyance."
That is, after the conveyance had been executed the bill was
filed by the Plaintiff seeking for a conveyance of that estate
from the Defendant, to whom the conveyance had been made.
That entirely distinguishes that case from the present, which is an
ordinary suit by a principal, bringing before the Court an agent
and the person with whom the contract has been entered into.
Assuming the case of Bartlett v. Piehersgill to be good law, it
cannot, I think, be considered as laying down any such general
proposition as is contended for by the Defendants. At all eventsit would be subject to qualifications, especially to those which are
mentioned by Lord St. Leonards in the passage in his book on
Vendors and Purchasers (2), which has been read to us by Mr.
Berkeley, and it is also subject to the qualification established by
Lord Hardwiehe in the case referred to of Willis v. Willis (3),
where His Lordship says: " There is another way of taking a
case out of the statute, and that is, by admitting parol evidence,
within the rules laid down in this Court, to shew the trust from the
mean circumstances of the pretended owner of the real estate or
inheritance, which makes it impossible for him to be the pur
chaser." I t is not altogether unworthy of remark that it is ex
pressly stated in this bill that " Pilley said he had not capital with
which to speculate." I cannot at all accede to the argument urged
in reply, that, under these circumstances, when the agent goes to
the principal and says, " I will go and buy an estate for yon," it
is not a fraudulent act on his part afterwards to buy the estate for
(1) 4 East, 577, n.
VOL. IV.]
CHANCEKY APPEALS.
553
G. M.
GIFFAKD,
L.J.:
Vciw IV.
2 Y
Mr. A. Watson.
L. J j .
1869
HEARD
PlLLEY.