Held, (i.) that the complete contract in T.'s articles connected with the inventions, and that letter and D.'s acceptance could not be varied by the covering letter addressed to F. as T.'s agent; (ii.) that, as matter of construction, the covering letter was not intended to make the contract conditional upon H. being the English brokers; and (iii.) that even if such a condition were imported into the contract, it could be waived by D., being one for his benefit only. Maconchy v. Trower, [1894] 2 Ir. R. 663.

At a vestry meeting the accounts of the defendant K., a surveyor of highways, were opposed and rejected, on the ground that he had incurred costs in defending appeals without due authority, but in consideration of his offering to pay 501. towards the bill of the attorneys for defending the appeals, a majority in the vestry agreed by a resolution not to oppose the accounts when preAll Parties to Consideration should Sue.]-sented to the magistrates for their approval. Generally, in an action of simple contract all the parties to the consideration should jointly sue. Jones v. Robinson, 1 Ex. 454; 17 L. J., Ex. 36 11 Jur. 933.

By an agreement between the plaintiff and A., B. and C., and the defendant. reciting that the plaintiff had obtained a patent for an improve-the magistrates, and K. having refused to pay the ment in furnaces, and was solely interested in another patent invention; that the plaintiff and A. had obtained a patent for another invention, the plaintiff and B. for another, and the plaintiff and C. for another; it was agreed between the parties, that it should be lawful for the defendant exclusively to use, manufacture, and sell any or all of the patent inventions within certain limits, during the continuance of the several patents, on certain terms: viz. that an office and warehouse should be prepared for the sale of

drafts were of no value :-Held, by Keating, J., | loan, although it could not have been enforced Brett, J., and Grove, J., that, the true construc- until after the expiration of that time. tion of the declaration was that the defendant Per Bramwell, B., under the terms of the conpromised if he did not return the drafts to pay tract there was no power or right in defendants their amount, which was, therefore, recoverable; to repay the money until after an application but per Bovill, C.J., the contract alleged was first made by plaintiff for its repayment. only alternative to return the drafts or pay their amount, and that only the nominal damages arising from the least burdensome alternative were recoverable. Deverill v. Burnell, 42 L. J., C. P. 214; L. R. 8 C. P. 475; 28 L. T. 874.

Alternative or Optional.]-In general, where the contract is in the alternative, the clection is in the party who is to do the first act. Chippendale v. Thurston, 4 Car. & P. 98.

Option with whom-Penalty.]-Under an agreement to perform one of two things, the option is in the person who is to perform; and if one of the two things is prohibited under a penalty, no action will lie for the penalty unti! the party makes his election by performing the prohibited part of the contract. Layton v. Pearce, 1 Dougl. 15.

One Alternative Impossible.]-If an agreement is in the alternative, and one branch of the alternative cannot by law be performed, the party is bound by law to perform the other. Stevens v. Webb, 7 Car. & P. 60.

sideration of the plaintiff consenting to his disA. was in custody on a ca. sa., and, in concharge, B. agreed to pay 351. or to surrender A. to the sheriff; A. on a subsequent day offered to surrender himself to the sheriff, who would not retake him, as the plaintiff had consented to his discharge-Held, that the agreement was absolute for the payment of the 357., and that the other alternative was not satisfied by the offer of the surrender. Ib.

An agreement to do either of two things is not discharged when one of the two things becomes impossible by the act of God. Barkworth v. Young, 4 Drew. 1; 26 L. J., Ch. 153; 3 Jur. (N.S.) 34; 5 W. R. 156.

the interest in which was equal in all respects to those held by other shareholders; that A. by forming the company with two unequal classes of shares, had put it out of his power to comply with the one alternative of the contract, and that, therefore, he was bound to perform the other alternative, viz. to pay 1,000l. Studholm v. Mandell (1 Ld. Raym. 279) followed. Mellquham v. Taylor, 63 L. J., Ch. 758; [1895] 1 Ch. 53: 8 R. 740; 71 L. T. 484; 43 W. R. 297. Affirmed in C. A., 64 L. J., Ch. 296; 8 R. 750, n.; 71 L. T. 679.

Right to exercise Option, whether Determined -Payment by Cheque.]-On 15th June, 1864, plaintiff advanced 5007. on loan to defendants, In the case of an ordinary memorandum of on terms of an agreement between them of that association, according to which the capital is date, whereby it was agreed that "in considera- divided into shares of equal amount, the interests tion of F.'s making an advance for a period of two of the shareholders are equal in all respects. months, such advance shall be repaid at any Where, therefore, in consideration of the assigntime after the expiration of two months from the ment of a lease, A. agreed to pay B. 1,000l. withdate hereof on the application of the said F., in twelve months, or otherwise transfer to B. and further that the said F.shall have the option the like amount in fully paid-up shares in a comwhile the amount remains unpaid of accepting pany to be formed by A., and the company was paid-up shares in the company, or partly paid- formed by A., with preferred and deferred shares · up shares to the amount, or for such amount-Held, that B. was entitled to receive shares, thereof as the said F. may desire, or of accepting a deposit receipt of 17. per share on 500 shares, or any proportion thereof at his the said F.'s discretion." On 17th November in the same year, in pursuance of a resolution of the company that such advance should be repaid, the secretary of the company sent to plaintiff a cheque on the company's bankers for the amount of the said loan, which cheque the plaintiff immediately returned to the defendants, with a letter dated 17th November, in which he declined to receive the cheque, and applied to have 500 shares in the company allotted to him and a deposit receipt of 17. per share on the same forwarded to him in accordance with the terms of the agreement of 15th June. The defendants refusing to comply with his demand, plaintiff brought an action for damages for breach of contract to allot shares and for money lent, to which defendants, amongst other things, pleaded payment within the meaning of the agreement before plaintiff exercised his option:-Held, that the money advanced by plaintiff remained unpaid on 17th November, the date of his demand for an allotment of shares, inasmuch as the sending of the cheque, which was forthwith returned to plaintiff, did not amount to payment, and therefore plaintiff had a right to exercise an option, and to elect to be repaid by an allotment of shares, which application on his part not having been complied with by defendants, the present action was maintainable, the plea of payment not having been proved. Ferguson v. Washoe Mining Co., 17 L.

Or Illegal.]-If one of the parties to a contract stipulates for the option of performing his part in one of two lawful ways, he is, after having once made his election, bound by such election; and if the performance is impossible, and not illegal, he is liable to damages for not being able to perform it. Brown v. Royal Insurance Society, 1 El. & El. 853; 28 L. J., Q. B. 275; 5 Jur. (N.S.) 1255; 7 W. R. 479.

In an action on a policy of insurance against fire, which contained a condition by which the society reserved to itself the right of reinstatement in preference to the payment of claims, a plea by the company that, having elected to reinstate the insured premises, they were proceeding with the reinstatement, when, by order of the Commissioners of Sewers, lawfully acting in that behalf, the premises were taken down, being in a dangerous condition, such condition not being caused by the fire, and that if the premises had not been so taken down, they would have Per Bramwell and Channell, BB. The plain-proceeded with the reinstatement, and would tiff might have exercised his right of option have restored them to the condition they were within the two months from the date of the in before the fire, is a bad plea. Ib.

T. 409.

Where an agreement is entered into between | no debt accrued from the defendant to B. in B.'s two parties, whereby one of them covenants to lifetime, although the new agreement with A. do one of two specified things, if either of the amounted as between him and the defendant to alternatives is to do an illegal act, the whole a rescission of the original contract, which would agreement is void; but if the condition is to do entitle A. as administrator, to sue on a quantum an act which may be effected either by lawful meruit in respect of the work done by B. Crosor unlawful means, the law will presume in thwaite v. Gardner, 18 Q. B. 640; 21 L. J., Q. B. favour of the contract that the contracting 356; 17 Jur. 377. See further, SALE OF GOODS. parties contemplated the former. Lewis v. Davidsm, 4 M. & W. 654; 1 H. & H. 425; 8 L. J., Ex. 78; 3 Jur. 387.

B. & C. 269; 4 L. J. (0.s.) K. B. 167; 29 R. R. ties. Although an entire contract is not

for any reasonable damages:-Held, that these | for the landlord's consent, containing a stipulastipulations did not render the agreement un- tion that the latter sum should not be charged to certain, so as to be incapable of being enforced the purchaser. A deed of assignment, not specispecifically. Parker v. Taswell, 2 De G. & J. fying by whom the sum requisite to obtain the 559; 27 L. J., Ch. 812; 6 W. R. 608. landlord's consent should be borne, having been executed, the purchaser was compelled, by the default of the vendor, to pay it, in order to render his title valid :-Held, that the memorandum was a sufficient note of an agreement by the vendor, collateral with the deed of assignment, and not merged therein, to pay the sum necessary to obtain the landlord's consent to the assignment, and that the plaintiff was entitled to recover the amount which he had paid for that purpose from the defendant. Carrigy v. Brock, Ir. R. 5 C. L. 501.

The terms "goodwill, &c.," in a contract for the sale of a foundry, are not so uncertain as alone to prevent a decree for specific performance of it, for the words "et cætera" point to things necessarily connected with, and belonging to, the good-will, and to be defined in the conveyance. Cooper v. Hood, 26 Beav. 293; 28 L. J., Ch. 212; 4 Jur. (N.S.) 1266; 7 W. R. 81.

Specific performance of an agreement to purchase one-third of a foundry refused, on the ground of uncertainty, the contract not specifying what portion of the purchase-money was to be left in the business, but only a large portion, and not stating when it was to be paid, or how to be secured, and what interest was to be allowed in the meanwhile. Ib.

Promise to do Act-If Horse Lucky.] A. bought a horse from B., and promised that "if the horse was lucky to him he would give 5l. more, or the buying of another horse." It was held that such a promise was too vague to be considered in a court of law. See Guthing v. Lynn, 2 B. & Ad. 232.

To establish Trust-On Conveyance of Realty.] -L. agreed by parol with W. for a conveyance of a life interest in real estate, part of which, a cottage, was in his own occupation. The terms were, that W. should be repaid the purchase money and interests out of the rent, and should allow L. to continue to occupy the cottage. G. swore that this was the effect of the parol arrangement, but two other witnesses swore that they A short time after this had heard W. deny it. agreement, W. asked L. to execute an absolute conveyance of the same life interest to W.'s daughter, an infant, which L. accordingly did, "For such Remuneration as should be and W. entered into possession of the property, Deemed Right."]—A. agreed with B. to do certain leaving the cottage in L.'s possession, rent free. services for such remuneration as should be W. wrote letters afterwards to G. and to J., deemed right-Held, that there was no promise saying that he had bought the property out and that A. should receive anything, nor any engage-out, and offered L. an annuity for life if he would ment capable of enforcement. See Taylor v. Brewer, 1 M. & S. 290.

“So far as the Law Allows."]-A. covenanted with B. to retire from a trade "so far as the law allows." It was held that the parties must fix the limit of their covenant and not leave the Davies v. Davies, 36 Ch. D.

court to do so. 359.

2. PAROL EVIDENCE.

give up possession of the cottage. W., by will, devised his real estate to his daughter, and apPointed B. his executor, and her guardian. B. made L. an offer of the annuity on the same terms as W. had done, but the offer was refused. Thereupon B., as the next friend of W.'s daughter, brought ejectment against L., who filed a bill to restrain it, alleging the parol agreement, and praying an injunction to stay the action, and a re-conveyance of the property on payment of To establish Collateral Parol Contract.]-A what was due :-Held, that evidence of the parol tenant entered on lands on the understanding agreement was admissible notwithstanding the that a lease should be signed at a future time. Statute of Frauds (29 Car. 2, c. 3), and a decree When the lease was presented to him for signa-made declaring the daughter of W. to be a ture he refused to sign unless the landlord would undertake to destroy the rabbits. This the landlord by word of mouth promised to do, and the tenant thereupon signed. The lease contained a clause by which the tenant agreed not to shoot, hunt, or sport on the land, or destroy any game, but to use his best endeavours for the preservation of the same, and to allow his landlord or friends at any time to hunt, shoot, and sport on the land. In an action by the tenant against the landlord, for breach of agreement in not destroying the rabbits:-Held, that this agreement was collateral to, and did not alter or vary the written contract, aud that therefore evidence of such agreement was admissible. Morgan v. Griffith, 40 L. J., Ex. 46; L. R. 6 Ex. 70; 23 L. T. 783; 19 W. R. 957.

On the sale by auction of a lease, containing a covenant against alienation without the consent of the lessor, the auctioneer announced that the landlord would give his consent for a certain sum, then mentioned, which the vendor verbally agreed to pay; and the auctioneer, on the day of the sale, signed and delivered to the purchaser a memorandum of the names of the vendor and purchaser, the price and the amount to be paid

trustee for L., who was entitled to redeem on payment of what was due. Lincoln v. Wright, 21 L. J., Ch. 705. S. P., Haigh v. Kaye, 41 L. J., Ch. 567; L. R. 7 Ch. 469; 26 L. T. 675; 20 W. R. 597.

On Assignment of Leaseholds.]-Marborough (Duke), In re, Davis v. Whitehead, 63 L. J., Ch. 471; [1894] 2 Ch. 133; 70 L. T. 314; 42 W. R. 456.

Part Written, part Oral.]—A., having entered into a contract for supply of iron rails for Vera Cruz, applied to B. & Co., shipowners and brokers, to procure vessels to carry it thither; whereupon B. & Co. on the 19th of November wrote to A. :

We engage to find tonnage for about 5,000 tons of rails to load at M. for Vera Cruz, subject to the following conditions, viz. 1,000 tons to be delivered at Vera Cruz in three months from this time, and 1,000 tons per month afterwards." After a long correspondence and several interviews as to the class of vessels to be chartered, and the flag, B. & Co. on the 11th of December, wrote to A. as follows: "Our engagement to procure tonnage for Vera Cruz, in the letter addressed to your Mr. B. on the 19th November ;