Sale of Goods-Statute of Frauds, section 17.-Parol Alteration of Written Contract-Rescission.

A contract for the sale of goods exceeding 10l. in value, being reduced to writing as required by the 17th section of the Statute of Frauds, it was subsequently agreed ver. bally between the parties that the times for commencing and concluding delivery should be each a fortnight later than the times for commencing and concluding delivery respectively fixed in the written contract:-Held, that by the 17th section of the Statute of Frauds, this latter agreement not being in writing could not be "allowed to be good" for any purpose, and therefore that the previous contract remained unaffected by it, and could be enforced in all its terms.

The declaration stated, that whereas it was agreed between the plaintiff and the defendants that the plaintiff should sell and deliver to the defendants, and that the defendants should accept from the plaintiff within a certain agreed period, which elapsed before suit, a large quantity of cloth at certain prices to be therefore paid by the defendants, and then agreed upon between the plaintiff and the defendants, yet the defendants refused to accept or pay for the said cloth, although afterwards and before suit all things were done and happened, and all times elapsed necessary to entitle the plaintiff to have the said goods accepted and paid for by the defendants, whereby the plaintiff lost the difference between the agreed price and the lower price to which the said goods fell. There was also an indebitatus count. The defendants pleaded a denial of the agreement, a denial of the plaintiff's readiness and willingness to deliver, that the cloth was not according to sample, that the contract had been rescinded, and to the second count the general issue.

At the trial, before Bramwell, B., at the Summer Assizes for Manchester, the following facts were proved.

On the 12th of August, 1864, the agent of the defendants ordered of the plaintiff, NEW SERIES, 35.-EXCHEQ.

through his agent, 1,500 pieces of cloth, equal to sample, at an agreed price. A memorandum of the contract was signed on behalf of the defendants. It contained the clause, "To be delivered, commence in three weeks, complete in eight to nine weeks."

On the 18th of August a further order was given for 1,500 pieces, and a memorandum was signed on behalf of the defendants. The delivery clause was, "To follow on after order given 12th instant, and complete in ten to twelve weeks."

The plaintiff delivered a portion of the cloth; but the defendants objected to the quality, and refused to receive it. After considerable discussion, a verbal agreement was come to between the parties, on the 23rd of September, that the cloth delivered should be taken back, that the first contract should be cancelled, and that the times for the commencement and completion of the delivery under the second contract should be respectively postponed for a fortnight; it being further stipulated that the first instalment should consist of not less than 150 pieces. On the 14th of October the plaintiff delivered 130 pieces, which the defendants rejected, as being neither equal to sample nor the proper quantity; and on the 15th of October the defendants gave notice to the plaintiff that they cancelled the order.

The plaintiff wrote in reply that the time for commencing delivery was the 21st of October. On the 21st of October he tendered 220 more pieces, which the defendants refused to accept. A further tender of a sufficient number of pieces to make up the number ordered was made before the 17th of November.

Bramwell, B. nonsuited the plaintiff, on the ground that the first two contracts had been rescinded, and that the third contract could not be enforced, as there was no memorandum of it in writing sufficient to satisfy the 17th section of the Statute of Frauds.

The plaintiff subsequently obtained a rule nisi, calling on the defendants to shew cause why the nonsuit should not be set aside, and a new trial had, on the ground that the plaintiff was entitled to recover on the old contract.

Holker and Baylis shewed cause.-The direction of the Judge was perfectly right. A contract which is required by the Statute

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of Frauds to be in writing, and is reduced to writing accordingly, can be rescinded by parol, though it cannot be varied in its terms by parol-Goss v. Lord Nugent (1), Stead v. Dawber (2). It will be said that Moore v. Campbell (3) is an authority to the contrary; but it is not so in fact. There goods in a ship were sold under a written contract, one of the terms of which was that they should be delivered from the quay. It was subsequently agreed by parol that the goods should be warehoused. It was held, that the parol agreement did not rescind the written agreement, but the reason was that the parties did not intend to rescind it absolutely, and no material alteration was made. Here the intention was that the contract of the 18th of August should be abandoned, and that of the 27th of September substituted; but the letter was not reduced into writing, nor was there any delivery and acceptance of goods under it so as to satisfy the Statute of Frauds. Besides, the plaintiff cannot recover on the contract of the 18th of August, because delivery under it was to follow on after the delivery under the contract of the 12th of August; therefore it ought to have commenced immediately after the cancelling of that order on the 27th of September; and the tender on the 14th of October was too late; so that the plaintiff fails to prove the allegation in his declaration of readiness and willingness to deliver.

Mellish supported the rule.-The delivery under the contract of the 12th of August need not have been completed for eleven or twelve weeks from that date, and therefore the delivery on the 14th of October was in time under the contract of the 18th of August, as following directly after the full time allowed by the first contract. But this point was not taken at the trial, and the nonsuit ought not to be sustained on that ground, because the difficulty might perhaps have been got over if inquired into.

[BRAMWELL, B.-I agree that to justify a nonsuit on a ground not taken at the trial an irresistible case ought to be made out.]

(1) 5 B. & Ad. 58.

(2) 10 Ad. & E. 57; s. c. 9 Law J. Rep. (N.S.) Q.B. 101.

(3) 10 Exch. Rep. 323; s.c. 23 Law J. Rep. (N.S.) Exch. 310.

I contend that the contract of the 18th of August was not rescinded by the parol agreement of the 27th of September. In the first place the parties had no intention to rescind it, but merely to alter it in one particular, and in the next place the words of the 17th section of the Statute of Frauds are, that no contract for the sale of goods for the price of 10%. or upwards "shall be allowed to be good," without a memorandum in writing or part delivery. It cannot be good for any purpose, and therefore cannot rescind a previous contract. Smith v. Hudson (4) supports this view. In Goss v. Lord Nugent (1) and Stead v. Dawber (2), the plaintiffs were suing on the amended contracts, which of course they could not do. Moore v. Campbell (3) is strongly in the plaintiff's favour. There it was held that the plea that the contract had been rescinded was not proved under circumstances resembling these.

Cur. adv. vult.

CHANNELL, B. (Jan. 12).—In the case of Noble v. Ward, I have to read the judgment of my Brother Bramwell.

This case was tried before me at Manchester, and the plaintiff was nonsuited. The case comes before us on a rule to set aside that nonsuit. I think it was wrong, at least on the ground on which it proceeded. The action was for not accepting goods on a sale by the plaintiff to the defendants. The defendants pleaded, among other things, that the contract had been rescinded, and that the plaintiffs were not ready and willing to deliver. The facts were, that a contract for the sale and delivery of goods from the plaintiff to the defendants, at a future day, was entered into on the 12th of August, which may be called contract A; that another contract for sale and delivery by the plaintiff to the defendants, also at a future day, was entered into on the 18th of August, say contract B; that before any of the days of delivery had arrived, the plaintiff and the defendants agreed verbally to rescind or do away with contract A, and to extend for a fortnight the time for the performance of contract B, that is to say, the plaintiff had a fortnight longer to deliver, and the defendants a

(4) 34 Law J. Rep. (N.S.) Q.B. 145.

fortnight longer to take and pay for those goods. This, on principle and authority, was a third contract, call it C. It was a contract in which all that was to be done and permitted on one side was the consideration for all that was to be done and permitted on the other-see per Parke, B., in Marshall v. Lynn (5). It remains to add, that the declaration would fit either contract B. or contract C, and that goods were tendered by the plaintiff to the defendants in time for either of those contracts. My note and my recollection of my ruling are, that contract B. was rescinded and contract C. not enforceable, not being in writing. I think that was wrong. Either contract C. was within the Statute of Frauds, or not. If not, there was no need for a writing. If yes, it was because it was a contract for the sale of goods, and so within the 17th section of the statute. That says, that no contract for the sale of goods for the price of 107. or upwards shall be allowed to be good, except there is an acceptance, payment or writing. The expression "allowed to be good" is not a very happy one; but, whatever its meaning may be, it includes this at least, that it shall not be held valid nor enforced. But this is what the defendant was attempting to do. He was setting up this contract C. as a valid contract. He was asking that it should be "allowed to be good" to rescind contract B. It is attempted to say that what took place when contract C. was made was twofold. First, the old contracts were given up; secondly, a new one was made. But that is not so. What was done was all done at once, was all one transaction, one bargain; and had the plaintiff asked for a writing at the time and the defendants refused it, it would all have been undone, and the parties remitted to their original contracts. I think, therefore, that on principle it was wrong to hold that the old contract was gone. Moore v. Campbell (3) is an authority to the same effect. It is true that case may be distinguished on the facts, namely, that there what was to be done under the new arrangement in lieu of the old was to be done at the same time; so that it might well be the parties meant,

(5) 6 Mee. & W. 117.

not that the new thing should be done, but if done it should be in lieu of the old. Such an argument could not be used in this case. But it was not the ground of the judgment there, which is, that the new agreement was void. The cases of Goss v. Lord Nugent (1), Stead v. Dawber (2), and others, only shew that the new contract C. cannot be enforced, not that the old contract B. is gone. I think it was not. Inconvenience and absurdity may arise from this. For instance, if the defendants signed the new contract and not the plaintiffs, the plaintiffs would be bound to the old and the defendants to the new; or if in the course of the cause a writing turned up signed by the plaintiff, then they would. first rely on the old and afterwards on the new contract. But this is no more than may happen in any case within the 17th section, where there has been one contract only. But then it was said before us, that the plaintiff was not ready and willing to deliver under contract B. Probably not, and he supposed contract C. was in force. In answer to this, the plaintiff contended before us that this point was not made at the trial; to which the defendant replied, neither was the point that the old contract was in force. My recollection is so; that the case was opened and maintained as on the new contract; but I agree with Mr. Mellish, that a nonsuit ought to be maintained on a point not taken at the trial, only when it is beyond all doubt. I cannot say this is. Consequently, I think the rule should be absolute; but, under the circumstances, the costs of both parties of the first trial ought to abide the event of the second.

The case, in my Brother Bramwell's opinion, turning on what was his own impression, he was desirous that this judgment should be read as his own judgment. But I am authorized by the Lord Chief Baron and by my Brother Pigott to say, that, although I have read it as the judgment of my Brother Bramwell, it is a judgment in which we all agree.

Rule absolute.

The 6th section of 4 Geo. 2. c. 28, while it gives a lessee the right to surrender notwithstanding his contracts with his underlessee, leaves untouched the sub-interest, though it be merely an agreement for an underlease; and the effect of a new demise after the surrender for the residue of the original term is to make the new lessee the assignee of the reversion of the term created by the surrenderor.

S. surrendered his lease to W, his lessor, after making an agreement (containing a stipulation to pay rent and repair) for an underlease to F, who entered and afterwards assigned his interest to the plaintiff, and who gave an indemnification to him, and assigned it over to the defendant's testator, who covenanted to indemnify the plaintiff; after the surrender W. granted a new lease for the remainder of S.'s term to H:-Held, that H. was in exactly the same position as S, and that F. having had to pay to H. money for rent and non-repair, in consequence of the default of the defendant's testator, and the plaintiff having repaid F, F. was entitled to recover such monies from the defendant.

The declaration stated that in the lifetime of the defendant's testator, on the 10th of October, 1862, by an indenture then made between the plaintiff and the said testator-reciting an agreement between William Solomon Smith and Jephthah Fawsitt for a lease from the said Smith to the said Fawsitt of a certain messuage, for a term of twenty-one years from Michaelmas day, 1857, determinable as therein mentioned, at the yearly rent of 36. 158., payable quarterly, and subject to the several clauses and stipulations therein contained, and reciting an indenture of assignment from Fawsitt to the plaintiff of his interest in the said agreement, the plaintiff did assign to the testator all his

* Decided in Trinity Term, 1865.

estate and interest in the said agreement, subject to the payment of rent, &c., therein contained, and the testator Phillips did thereby, for himself, his executors, &c., covenant with the plaintiff, his executors, &c., that he, the testator, his executors, administrators or assigns, would from time to time pay the rent reserved as and when the same should become due and payable, and also duly observe and perform the several clauses and stipulations in the said agreement contained, and which on the tenant's part ought to be paid, &c., and also should and would from time to time and at all times thereafter, keep harmless and indemnified the plaintiff, his executors, &c., from all actions, suits, or other proceedings which might be brought or prosecuted against the plaintiff, his executors, &c., and all damages and costs incidental thereto by reason of the non-payment of the rent or non-observance or non-performance of the clauses in the said agreement contained, or any of them, or in relation thereto. And that the testator from the time of the said indenture became and was tenant of the said messuage, upon and subject to the terms of the agreement, and that the plaintiff did all things, &c. to entitle him to have the said covenants observed by the testator, and to sue the defendant for the matters hereinafter mentioned, and that all necessary times in that behalf elapsed; yet the testator did not pay the said rent as and when the same became due, and that after the said assignment to the testator, and after he became tenant of the said house under and by virtue thereof (to wit), on the 29th of September, 1863, two quarters of the said rent became due and payable, which the testator wholly failed to pay, nor did the testator, after the said assignment, duly observe the several clauses in the said agreement contained, and which on the tenant's part ought to have been observed, but therein wholly failed, and wholly failed to observe a certain clause and stipulation in the said agreement by which the tenant was bound to keep the said house in repair and do certain repairs thereto, and by reason of the non-payment and of the non-observance of the said agreement, certain actions, &c. were brought and prosecuted against the

plaintiff, and he thereby and incidental thereto sustained certain damages and costs; yet the testator did not, nor did the defendant as executrix as aforesaid, keep harmless or indemnify the plaintiff against the said action, suits, proceedings, damages and costs. And the plaintiff has been called upon and obliged to pay and has paid the said damages and costs, and has been and is by means of the premises otherwise damnified.

Pleas-Non est factum; denial of the breaches alleged; and, lastly, plene administravit.

As to the last plea, replication and interlocutory judgment of future assets quando acciderint.

Issue on the other pleas.

At the trial, before Channell, B., at the Sittings in Middlesex after Easter Term, 1865, the following deeds were put in evidence :

The agreement between Smith and Fawsitt dated the 26th of October, 1857, referred to in the declaration.

An indenture dated the 21st of January, 1860, by which Smith and one Hyland joined in surrendering Smith's lease to the Dean and Chapter of Westminster.

An indenture of lease dated the 23rd of January, 1860, from the Dean and Chapter to Hyland for thirty-four years (the remainder of Smith's term).

An indenture of assignment dated the 1st of January, 1862, whereby all the interest of Fawsitt in the agreement of the 26th of October, 1857, was assigned to the plaintiff.

The indenture of assignment dated the 10th of October, 1862, between the plaintiff and the defendant's testator (set out in the declaration).

It was proved that a quarter's rent of the premises being due at Midsummer, 1863, Hyland (claiming under his lease from the Dean and Chapter) brought ejectment against Fawsitt, and obtained possession (judgment being signed for want of appearance) before the rent of the Michaelmas quarter was due. It was proved also that Fawsitt had paid 59, including 251. for repairs, 181. 7s. 6d. for half a year's rent, and 13. 2s. 3d. for the costs of the action Hyland v. Fawsitt; and

that the plaintiff when applied to had given Fawsitt's attorney a bill for 591. on account of debt, and 77. for his costs, and that Fawsitt's attorney afterwards sued the plaintiff on the note and took 401. in satisfaction of the claim. The plaintiff now sought to recover what he had so paid.

CHANNELL, B. directed a nonsuit, with leave to the plaintiff to move to enter a verdict for such sum as the Court should think fit; and T. E. Holland having obtained a rule accordingly,

W. C. Beasley appeared to shew cause; but

G. R. Clarke (with whom was T. E. Holland), being called on by the Court, stated the plaintiff's case. The statute 4 Geo. 2. c. 28. s. 6. (1) provides that where a lease is surrendered for the purpose of a renewal, old underleases shall stand on the same footing with respect to the new lessee as they did before to the original lessee. By the surrender Hyland agreed to purchase of Smith a portion of the premises originally demised to Smith, and instead of taking a mere assignment of that part from Smith, he got a new lease of the residue of Smith's term from the Dean and Chapter; so that he did not

(1) This section enacts, "That in case any lease shall be duly surrendered in order to be renewed, and a new lease made and executed by the chief landlord or landlords, the same new lease shall, without a surrender of all or any of the underleases, be as good and valid to all intents and purposes as if all the underleases derived thereout had been likewise surrendered at or before the taking of such new lease; and all and every person and persons in whom any estate for life or lives, or for years, shall from time to time be vested by virtue of such new lease, and his, her and their executors and administrators shall be entitled to the rents, covenants and duties, and have like remedy for recovery thereof; and the underlessees shall hold and enjoy the messuages, lands and tenements in the respective underleases comprised, as if the original leases, out of which the respective underleases are derived, had been still kept on foot and continued; and the chief landlord and landlords shall have and be entitled to such and the same remedy by distress or entry in and upon the messuages, &c. for the rents and duties reserved by such new lease, so far as the same exceed not the rents and duties reserved in the lease out of which such underlease was derived, as they would have had in case such former lease had been still continued, or as they would have had in case the respective underleases had been renewed under such new principal lease."