lowing morning, informed him that he had inspected the original lease and found that the land-tax was payable by the landlord; he also assured the defendant that the blinds

were worth 201. The latter then verbally assented to the memorandum, subject to the proposed alterations and to the inspection of the blinds by a competent person on his behalf. On the evening of the 8th of January, Lofts brought the agreement mentioned in the bill, and the defendant wrote the words, and signed his name to it in pencil as therein mentioned, not meaning thereby to make an actual or final agreement, but as an expression merely of his assurance that if there were no unusual covenants in the lease from Sir R. Sutton, he would be willing to enter into the agreement; and if it should appear that the lease contained no objectionable clauses, he intended that the pencil marks should be rubbed out and the agreement properly signed in ink and exchanged. The defendant also stated that he was never informed and was not at the time of filing his answer aware that the plaintiff ever assented to the agreement with the conditional term as to the contents of Sir R. Sutton's lease which the defendant had introduced therein, and he did not believe that the plaintiff ratified or consented to such alteration before the defendant had altogether repudiated the agreement and declined to take the house. The defendant further stated that on the day on which he received back the draft from the solicitors of the plaintiff, his attention was called to a paragraph in a daily paper with respect to an attempted suicide of a female who had escaped from a house of ill-fame in the same street, and in consequence of this information the defendant caused inquiries to be made from which he ascertained that it was utterly out of the question to take his wife to reside in the plaintiff's house, as there were several houses of ill-fame of a very infamous character in the immediate neighbourhood of the house, one being the next door but one to it, two or three nearly opposite, and one in particular directly opposite.

Mr. Wood and Mr. Glasse, for the plaintiff, urged that the agreement was clearly

binding on the defendant, and that he had ratified it by his subsequent conduct and communications with the agent of the plaintiff. In the case of railway shares, the Court had decreed specific performance of a parol agreement to purchase-Duncuft v. Albrecht (1). The judgment of Sir William Grant, in Ogilvie v. Foljambe (2), went the whole length of the present case. The right to a good title did not grow out of the agreement between the parties, but was a right given by law. It was a matter of every day's practice that a party might by his acts and conduct waive a right which he possessed, and that that might be done without its being reduced to the shape of a specific contract. The defendant had waived his right to call for the lessor's title by having settled and signed the draft of the lease.

The Solicitor General, Mr. Lloyd, and Mr. Elmsley, for the defendant.-No agreement was concluded between the parties, and the bill contained no averment to the contrary. The memorandum was merely a proposal for and introductory of an agreement- Huddleston v. Briscoe (3), Stratford v. Bosworth (4). It did not appear that Lofts had any authority to bind the plaintiff by the second memorandum, subject to the alterations introduced by the defendant. If Lofts had no authority, the defendant was at liberty to abandon the agreement-Holland v. Eyre (5). If the plaintiff was not bound, there was no mutuality, and, consequently, no contract-Kennedy v. Lee (6). The original. memorandum was abandoned, new terms were introduced, and the heads of the first memorandum were altered by the defendant. It was contended, for the plaintiff, that the agreement, if any, must be considered to have been created by the memorandum signed by the defendant, and by the letters between him and the solicitors. But the whole course of the negotiation shewed that the agreement was conditional and inchoate, and indicative of future inten

(1) 12 Sim. 189. (2) 3 Mer. 53. (3) 11 Ves. 583. (4) 2 Ves. & B. 341. (5) 2 Sim. & S. 194. (6) 3 Mer. 441.

tion. The signature to the memorandum was not executed as required by the Statute of Frauds (7); it was not attested by Lofts until some time after the defendant had signed his name; it was not stamped until after the date of the solicitors' letter to the defendant on the 18th of January 1848, and the signature and remarks of the defendant being in pencil, raised a presumption in law that they were written animo deliberandiDoe d. Perkes v. Perkes (8), Winsor v. Pratt (9), Hawkes v. Hawkes (10), Edwards v. Astley (11), Ravenscroft v. Hunter (12), Rymes v. Clarkson (13), Parkin v. Bainbridge (14), Francis v. Grover (15). Admitting that the plaintiff was at the time of the treaty entirely ignorant of the character of certain houses in the neighbourhood, the defendant was also ignorant of it, and it would be a great hardship to impose the property upon him with knowledge of the defect. The Court would try such a case as the present with the utmost strictness; and if the defendant could not have the house for the purpose for which alone he wanted it, a decree for specific performance would not be made. The case of Shirley v. Davis (16), which held the contrary, and cases of that class, had been constantly disapproved of- Sugd. Vend. and Purch. vol. 1. p. 538. (10th edit.) Very great uncertainty existed in the law on the subject of completing a contract, where a defect was not known either to the principals or agents in the matter. On this head reference might be made to the following cases, in which the decisions were conflictingEarly v. Garrett (17), Cornfoot v. Fowke (18), Fuller v. Wilson (19), Taylor v.

(15) 5 Hare, 39; s. c. 15 Law J. Rep. (N.s.) Chanc. 99.

(16) In the Exchequer, cited in 6 Ves. p. 678. (17) 9 B. & C. 928; s. c. 8 Law J. Rep. K.B. 76.

(18) 6 Mee. & W. 358; s. c. 9 Law J. Rep. (N.S.) Exch. 297.

(19) 3 Q.B. Rep. 58; s. c. 11 Law J. Rep. (N.S.) Q.B. 251.

Ashton (20), Gibson v. D'Este (21). It might be submitted that the clauses in the leases of Sir R. Sutton were special and unusual-Church v. Brown (22). The approval by counsel of a draft was not a waiver of the right to call for the title of the lessor Deverell v. Lord Bolton (23). Lastly, there was no evidence to shew that the defendant could have immediate possession, and he was, therefore, entitled to abandon the agreement-Fildes v. Hooker (24).

Mr. Wood replied.

April 18.-WIGRAM, V.C.-Before and in the month of January 1848, the plaintiff was lessee for years under Sir Richard Sutton of the house which is the subject of this suit, with the yard or garden at the back. The property was derived under two leases; and as I understand (for it does not, I think, appear upon the pleadings), the yard or garden or some part of it was part only of the parcels comprised in one of the leases. The residue of the parcels comprised in that lease is now vested in third persons not before the Court. The covenants in both leases, mutatis mutandis, are the same, and amongst them is a covenant empowering the landlord to enter and determine the lease, upon breach of any of the covenants. In January 1848 the defendant agreed or treated for a lease for seven, fourteen, or twenty-one years of the house, &c. The agreement or treaty was on the point of completion, when the defendant made a discovery respecting the houses in the neighbourhood which rendered it impossible that he could use the house as a residence for his family, the purpose for which alone he wanted it. Upon this, on the 17th of January 1848, he wrote to the plaintiff's solicitors, declining to accept a lease of the house in question. The bill has since been filed, and the main question in the cause is, whether the defendant, at the time of writing the letter of the 17th

of January 1848, was bound to accept a lease from the plaintiff or not. The facts necessary to raise the question are these The plaintiff employed a house-agent to let the house for her. A gentleman named Lofts was the agent's clerk, and was the person who negotiated the matter personally with the defendant. The plaintiff employed her solicitors, but the defendant had no professional assistance (except his own) before the 17th of January 1848. On or about the 7th of January 1848 Lofts (on the part of the plaintiff) and the defendant had come to general terms, upon which the plaintiff was willing to let, and the defendant to accept, a lease of the house in question. A memorandum, intended to express the terms of this agreement, was prepared by Lofts, signed by the plaintiff, and tendered to the defendant for his signature. After some discussion between Lofts and the defendant it was arranged that a more formal agreement should be prepared by Lofts. This accordingly was done; and on the 8th of January 1848 (I think I must assume this date, and not the 7th, but it is immaterial,) Lofts again saw the defendant, and tendered the new memorandum for his signature. This memorandum bears date the 7th of January 1848, and is in the following words (vide supra). The writing occupies two pages, leaving a small space sufficient, perhaps, and not more than sufficient, for the mere signature of the parties and the attestation of a witness. The defendant, after reading the memorandum in the presence of Lofts, wrote, in pencil, on the third or fly leaf of the memorandum, opposite or nearly opposite to the place left for the signatures, the following words :-"I have no objection," &c. (ut supra); and afterwards, at the instance of Lofts, wrote the following words in pencil, immediately below what he had previously written:-"I agree to these terms, subject to the above observations." He then delivered the paper to Lofts, who took it away with him, and gave it to the plaintiff's solicitors. The latter prepared the draft of a lease, and on the 14th of January 1848 sent it to the defendant, with a letter of that date, stating that it had been prepared in accordance with the agreement. 15th of January 1848 the defendant re

On the

turned the draft lease, with sundry alterations in and remarks upon it in his own handwriting, and with his name and initials subscribed thereto, and accompanied by his letter of the same date. The solicitors, on the receipt of this letter, on the same day returned the draft to the defendant, with their remarks thereon, and accompanied by their letter of the 15th of January 1848. The result of these communications between the solicitors and the defendant (as I understand it,) was that the solicitors submitted to all the alterations which the defendant required in the draft lease, with a single exception, which was this: the draft as prepared prevented the defendant from assigning or underletting the premises without licence, whereas he required that his power to assign or underlet should be unconditional, and which the solicitors declined. In this state the matter was on the 17th of January 1848, when the defendant wrote his letter of that date, finally determining the agreement. Some further communications took place between the solicitors and the defendant, in which they abandoned the only point then in controversy between them, as to the terms of the draft lease, and insisted that the defendant was not, on the 17th of January 1848, in a condition to refuse to accept the lease.

Several points were taken for the defendant. One, that on discovering the character of certain houses in the neighbourhood of that for which he was in treaty, he had a right to abandon the agreement. I much wished for an authority to be produced in support of that proposition, for it cannot be denied that the interests of the defendant will be affected most seriously if the contract is to be enforced in equity. The law as stated by Sir Edward Sugden respecting defects in subjects of contract (and I believe correctly) is this, that if the vendor at the time of the contract does not know of the existing defect in the estate, the Court will enforce the contract: otherwise, perhaps, if the defect be known to the vendor, and be one which a provident purchaser could not discover. I presume that the same law exists, where the purchase is affected by a nuisance in the neighbourhood. The hardship of the position of the defendant in this case is, that he is

compellable to accept a lease with a present knowledge of a defect, which he may possibly be bound to disclose to a purchaser or lessee under himself. Legal reasons of great weight may, however, be adduced in support of this state of the law, and the utmost weight I can give to the consideration is that I must, in other respects, try the case strictly between the parties.

Another point was, that there was no signing of the memorandum within the Statute of Frauds. The question is, could I bind the plaintiff upon that memorandum of agreement which she signed, and that which was truly signed in the defendant's name, if that which was written in pencil had been written in ink, and if Lofts was dead, and nothing more passed or was known than what the paper discloses ? If I could have said that the pencil memorandum was in the first instance deliberative, the second memorandum leaves no room for doubt that the party who wrote the words "I agree &c." must have intended something more than the previous memorandum expressed. Is the circumstance changed by the fact that the writing was in pencil, or by the evidence of Lofts? think not, and that the letters which followed support this construction.

I

The third point deserves great consideration. The defendant says that he made great and material alterations in the memorandum which was brought to him on the 8th of January 1848; that Lofts had no authority to accede to them; that the memorandum so altered was only a proposal by the defendant as he had rejected the proposal of the plaintiff, and that until she had herself assented to them, there were no terms agreed upon between her and the defendant, and she was not bound. The defendant states in his answer that Lofts said he would shew the memorandum to the plaintiff's solicitors, and the defendant has never been informed, and is not aware that the plaintiff ever assented to the agreement with the conditional terms introduced by him. If the defendant is right in his premises, i. e. if the memorandum with the pencil additions was a mere proposal signed by the defendant for the plaintiff's acceptance or rejection, and if the plaintiff had not acceded to it before the 17th of January

1848, the defendant's conclusion is, I think, correct. For, upon such hypotheses, when the defendant wrote the letter of the 15th of January 1848, there was no agreement, and the case still rested in proposal. In that letter the defendant says, my terms appear upon the draft lease, and I require the plaintiff to assent to or refuse them. The assent was by the solicitors' letter of the same day qualified as to a material part, and this according to the case of Holland v. Eyre left the defendant at liberty. Nothing more passed before the letter of the 17th of January 1848.

It becomes necessary, therefore, to examine the premises upon which the defendant's conclusion is founded.

If I were at liberty to speculate, I should hazard a conjecture that, between the 8th and the 17th, the plaintiff had been informed of what had passed between Lofts and the defendant on the 8th, and that she adopted the acts of Lofts as her agent. But whatever my conjectures on this subject may be, if it be necessary that the plaintiff should prove an actual acceptance by her after the 8th, I cannot upon the pleadings or evidence now before me make a decree in favour of the plaintiff. The point is prominently put forward in the answer as a substantial ground of defence to the bill. The onus lay upon the plaintiff. The witnesses to prove it were Lofts or the solicitors, the former of whom has been examined by the plaintiff, but no evidence is given on the point. As far as actual evidence goes, this point is with the defendant. But this point in the defendant's case cannot be considered as disposed of in argument without inquiring whether Lofts, or the solicitors who clearly adopted his acts, had not an implied authority to conclude with the defendant an agreement on the plaintiff's behalf with the variations introduced by the pencil memorandum. The question may be thus stated: whether, if the plaintiff had authorized Lofts to sign the memorandum of the 7th of January on her behalf, Lofts, upon the same being signed by the defendant, had not an implied authority to bind her by signing the same with the pencil additions thereto. I have had much difficulty in coming to a conclusion upon this point. I have doubted whether there

is anything substantial in the variation introduced; but upon the best consideration I can give the case, I think the variation is substantial-that is, if Lofts, being duly authorized to sign the memorandum as originally prepared, had signed it with the pencil additions, the plaintiff might have refused to confirm it, and would not have been bound by the signature of Lofts.

To try this question, I begin by assuming the variation to be substantial, and that the defendant had filed his bill to enforce such an agreement on the 8th of January 1848, before anything further had passed between the parties, to which the plaintiff in this suit put in a plea which really raised the question, whether Lofts had implied authority or not. I am satisfied that if such would have been the position of the parties on the 8th, it was unaltered on the 17th, in the absence of all evidence that the plaintiff had assented to the defendant's variations of the agreement proposed by her.

In estimating the weight to be given to the pencil additions, regard must be had to the position of the plaintiff herself as lessee under Sir Richard Sutton. Whatever her wishes might be, she could not, nor could the defendant, dispense with the covenants in Sir Richard Sutton's leases. Whether usual or unusual, the proviso for re-entry for breach of any covenant made it indispensably necessary to the plaintiff as well as the defendant, that those covenants should be inserted in any lease the plaintiff might grant. The lessee might well look into the leases before he agreed to accept a lease of the property in them, but his lease must contain them, or at all events he must observe them. The plaintiff could not do otherwise than insist upon the insertion of the covenants, whether usual covenants or not. If, then, on the evening of the 8th of January 1848, the plaintiff had been informed of the conditional agreement which Lofts had made, might she not have said, "I have no power to dispense with, nor could the defendant accept a dispensation from one of the covenants in Sir Richard Sutton's lease, whatever their nature may be. The insertion of all these covenants, whether usual or unusual, in the defendant's lease, is a matter not of choice but of necessity. The defendant may, before he agrees,

satisfy himself as to the covenants. But I will not leave to future litigation a term in the contract which I cannot possibly dispense with. Therefore, it was that I authorized an absolute contract, and I will not be a party to one that is conditional on such a point"?

I am satisfied, that unless the difference between the memorandum as originally drawn and as altered by the pencil additions, could be treated as unreal, the plea must have been allowed. In considering the point, regard must be specially had to the positions both of the plaintiff and the defendant. With respect to Sir Richard Sutton's leases, whatever the willingness of the plaintiff might be to meet the defendant's objections, she could not dispense with the covenants in Sir Richard Sutton's leases. If the plaintiff might have objected, so might the defendant; and, therefore, there could be no agreement until both had assented to the same terms.

But it may be argued, that the covenants in Sir Richard Sutton's leases are so plainly not unusual, that the distinction between the memorandum as originally drawn and as altered by the pencil additions is merely verbal. Upon the former of these points (the character of the covenants) I give no opinion; and as an abstract proposition I will not deny that a case might exist in which the Court might be bound to consider an attempted distinction as plainly nugatory. But the case cannot be of that character, only because the Court may after agreement come to the conclusion that the covenants are not unusual. The case to be brought within the scope of that reasoning should be one in which the Court is in a condition to meet the defence as plainly litigious, and nothing else, and looking at the covenants, cannot treat it as real. In this case, the plaintiff had a right to say, she will not be bound by an agreement pregnant with future litigation respecting a point she could not concede. I lay out of the case the concession made by the plaintiff after the 17th of January. The question before me is, what was the position of the parties upon that day? I think it was the same as it was on the 15th.

There are two other points which I shall briefly notice before I state the