HUGHES v. POLITAN BOARD OF WORKS. The plaintiff replied that he decidedly objected to the prosecution of the works on his land till his claim had been disposed THE METROof. The defendants, however, on the 16th March, entered upon the plaintiff's land and began such works. The plaintiff accordingly filed his bill, and obtained an ex parte injunction to restrain the defendants from making or continuing to make the sewer without his consent, or until a proper compensation should have been made to the plaintiff in respect of the land, right, or easement required by them for the construction of the sewer. R. Palmer, Q.C., and C. Hall now moved to dissolve the injunction. [They said that the question had been determined in favour of the defendants in The North London Railway Company v. The Metropolitan Board of Works (1). The defendants submitted to pay compensation, under the 135th section, in respect of damage occasioned by their works.] Cole, Q.C., and Drake, for the plaintiff : The 135th section must be read together with those which followed; and if the defendants required a legal easement in the owner's land, they must pay for it. [The principal sections of the Metropolis Local Management Act, 18 & 19 Vict. c. 120, bearing upon the question are set forth in the case above mentioned.] Sir J. ROMILLY, M. R., said that he had no doubt that the case was governed by the decision of Sir W. P. WOOD, V.-C. If it had not been for that decision, his Honour would have thought it right to have gone more carefully into the matter. It was obvious that the 135th section of the Act gave a separate power to the defendants from those contained in the 150th and two following sections. The 135th section, by itself, gave power to the Metropolitan Board of Works to make sewers as they might think fit. If this power was controlled by any subsequent sections, it must be controlled by clear and distinct words. The only controlling word was the word " "easement" in the subsequent section. He doubted if, when "easement was mentioned in the Act, it was intended to refer to the kind of easement referred to in the plaintiff's bill. His Honour thought it was not so intended, and so Sir W. P. WOOD, V.-C., thought, after hearing an elaborate argument, and his judgment had not been disturbed. The exercise of the option given to the defendants by the statute, of proceeding under the 135th or (1) P. 166 above (Johns. 405); and see the cases there cited. [ 987 ] other sections, was not a question of honesty or dishonesty on THE METRO their part, but depended upon whether, for the purpose of HUGHES ť. POLITAN BOARD OF WORKS. making the sewer, they made it without affecting the surface, or found it more convenient to make it nearer to the surface, when it would become necessary to take the land and buy the easement. In the latter case they proceeded under the 150th-153rd sections; in the former under the 135th section; and the only question, then, was one of damage, which was to be settled as provided by the section, according to its amount, by the justices of the peace, or by arbitration under the provisions of the Lands Clauses Consolidation Act. This being so, the defendants had acted within the power given to them by the Act, and they were quite willing to pay such compensation for the damage sustained as might be settled. As their plan did not involve the taking of the land or the easement, under the 150th-153rd sections, there was no necessity for them to proceed by public advertisement. The defendants had only done what they were justified in doing, and the injunction must be dissolved, with costs. IN THE COURT OF EXCHEQUER. M'LEAN v. NICOLL. (7 Jurist, N. S. 999-1000; S. C. 9 W. R. 811; 4 L. T. N. S. 863.) The memorandum of a contract for the sale of goods required *by the Statute of Frauds (1) must express every essential element of the contract. The defendant ordered from the plaintiff, inter alia, two lookingglass frames, to be filled with the best plate-glass. The plaintiff then sent to the defendant an invoice enumerating the articles, without mention of the glass to be supplied, of which invoice the defendant acknowledged the receipt, without taking exception thereto in respect of any of the articles to be sold: Held, that the invoice and answer together did not constitute a memorandum to satisfy the Statute of Frauds. Bailey v. Sweeting (2) discussed. It THIS was an action for goods sold and delivered, and for goods bargained and sold, and for the hire of goods by the plaintiff let to hire to the defendant, and on an account stated. Plea, Never indebted. The cause was tried at Guildhall, at the sittings during Hilary Term, 1861, before Bramwell, B. appeared that the plaintiff was a looking-glass manufacturer, and that on the 18th December, 1860, the defendant called at his shop, and ordered the goods mentioned in the invoice below. He desired that the goods might be sent to Jersey to be delivered there, and it was agreed that the glass should be plate-glass of the best quality, and that the plaintiff should insure it from breakage. The plaintiff, on shipping the goods, sent the defendant the following invoice: "Mr. NICOLL, "1861. "Jan. 8, 1861. "Bought of Charles M'Lean, 78, Fleet Street, and 1861. June 11. [999] [ 1000 ] £22 0 0 1 15 0 M'LEAN 1. NICOLL. To which the defendant replied in the following letter: "MIDVALE HOUSE, JERSEY, Jan. 18, 1861. SIR,-You advise having forwarded a printed list, patterns, and prices; it has not reached. In your account I apprehend there must be some mistake; your charge for loan of cases and packing is equivalent to their value. Please rectify this. "Yours truly, "Mr. M'LEAN, London." "EDWARD NICOLL. The ship by which the goods were sent was lost, and the goods were rendered useless. On this evidence BRAMWELL, B., ordered the plaintiff to be nonsuited, for want of a memorandum as required by the 17th section of the Statute of Frauds (1), with leave to move for a rule to set aside the nonsuit, and enter a verdict for 48l. 10s., if the Court should be of opinion that the documents in evidence constituted a sufficient memorandum. O'Malley having obtained a rule accordingly, Hayes, Serjt., and Thrupp showed cause, contending that the documents put in at the trial did not set out the actual contract. (They cited Cooper v. Smith (2), Bailey v. Sweeting (3), Archer v. Baynes (4), and Goodman v. Griffiths (5).) O'Malley and D. D. Keane, contrà, contended that the defendant, by his answer to the invoice, acquiesced in its accuracy as a statement of the real contract. (CHANNELL, B.: It was part of the original contract that the looking-glass frames should be filled with the best plate glass, and there is no mention of that in writing.) POLLOCK, C. B.: We are all of opinion that the rule must be discharged. We all think the memorandum must contain all the terms of the contract. Now, the invoice, taken with the answer, does not contain all the terms of the contract. No doubt cases have decided that an invoice, responded to by a signed letter, may form a memorandum to satisfy the Statute of Frauds. But in those cases it was held that the memorandum must contain all the terms of the contract; and the invoice, taken with the answer, does not contain all the terms of the contract, according to the evidence of the plaintiff; one term of the contract, relating to the quality of the glass, is not mentioned in the invoice at all; and as the memorandum (1) Now Sale of Goods Act, 1893, s. 4. (2) 13 R. R. 397 (15 East, 103). (3) 9 C. B. N. S. 843. (4) 82 R. R. 792 (5 Ex. 625). should contain all the terms of the contract, we cannot hold MARTIN, B.: I am of the same opinion, and I wish to express my concurrence with the case in the Common Pleas, as I think it has been misunderstood. The effect of that case, with which I concur, is this that if, after a contract has been made, there is a writing, stating what it was, and conformable to the real contract, the statute is satisfied thereby. There is no new law in that; it is mentioned in Sugden's Vendors and Purchasers; it has existed for years, and has never been questioned. If the contract be in writing it is evidence of itself; if it be a verbal contract, the written evidence of it must be subsequent to the contract; and the document, if corresponding to the verbal contract, and signed, is sufficient. But, as my brother CHANNELL has pointed out, the writing in this case does not correspond in every respect to the real contract. CHANNELL, B.: I also am of opinion that the rule should be discharged. I feel no doubt as to the case of Bailey v. Sweeting, nor that an invoice and letter, taken together, may constitute a memorandum to satisfy the statute. It has often been said that the statute was intended to prevent fraud and perjury, by putting an end to contracts unevidenced by writing. The more correct view is, that the contract still exists, but that it cannot be put in force. I think that, when we inquire whether a verbal contract corresponded to the writing, we may be letting in the very evils which the statute was meant to avoid. But it is too late to dispute the cases on this subject. I quite agree that it is not necessary to show every individual incident in the contract, but that a substantial contract must be shown. Is the substantial contract here set out in writing? I think not. The frames were to be fitted with the best glass, which was a M'LEAN V. NICOLL. |