but that he had no authority from his principal to do so. The defendant, Wm. Coles, now says that he was authorized by his father to bid 20,0001. but he clearly told Smith that his authority extended to 19,500l. only, and there certainly is so far an inconsistency in his deposition. According to Smith's evidence, Mr. Trecothick, knowing that 20,000l. had been bid by two persons, says, 'Coles shall have it.' Not considering Wm. Coles (who acted in this instance as an agent for his father) in the character of a trustee, and supposing this contract had been signed by Smith, can this Court refuse to give the party the benefit of such a contract. I think it cannot, deciding according to law. If Smith had sunk any circumstance, with the knowledge of Coles, from the view of Mr. Trecothick, particularly that Young had offered 20,0001. that might be a ground for refusing to interpose by decreeing a specific performance, and for leaving the parties to an action at law. It was Mr. Trecothick's business to consider whether more could be got or not; for Smith clearly meant to contract for a sale at 20,0001. Young's conduct in this business is extremely material: he does not at once advance upon his first offer, when he is told another had bid the same sum, but two days afterwards he bids 1000l. more, and his letter, offering 250001. is not written until the 15th of November. Mr. Trecothick clearly meant to sell for 20,0001. on the 6th of that month. As to inadequacy of price, the cases cited as to reversions, go upon quite different grounds. A pretium affectionis, or of convenience, cannot be considered as to inadequacy of consideration; and even inadequacy of price is not of itself sufficient to induce the Court to refuse a specific performance, unless it be so gross that fraud is evident upon the face of it. Accidental subsequent advantage signifies nothing. If a man contracts for an annuity, and dies immediately after, the deed cannot be set aside. Then, if this contract has been duly signed, the Court must execute it, unless there be something in the situation of the parties which ought to prevent it. A trustee may buy from his cestui que trust, if it be clearly 1804. COLES versus TRECOTHICK and Others. 1804. COLES versus TRECOTHICK proved there is no fraud, advantage, or concealment, and the whole transaction be fair. Fox v. Mackreth established, not that Mackreth might not have purchased beand Others. cause he was a trustee, but because from his situation he was placed in such circumstances to acquire knowledge as to the value of the property that he could not be permitted to buy. That case was therefore rightly decided, upon the ground that advantage was taken, and not upon inadequacy of price; but I have always thought that Lord Thurlow, Lord Kenyon, and the House of Lords, were wrong in refusing an issue. Where a man is a trustee of a coalmine, he is in a situation of gaining information, which no other person can obtain, and he must prove that he has communicated all that he knows. But here the whole execution of the trust is devolved upon the cestui que trust, and all the requisite knowledge for ascertaining the value of the property is with him. It is true that, in all cases where the trustee is the agent for the buyer, there is a great probability of fraud; but here it is scarcely possible to feel the situation of trustee as applicable; and I think that if there ever was a case where the strict rule could be relaxed it is in this. My opinion therefore is, that there is nothing in this part of the case to withhold a decree for a specific performance if the terms of the statute have been complied with. "The first part of the statute relates to wills. It states that a devise must be in writing, and be signed by the party. Upon this part of the act I cannot but think that the legislature must have intended a formal signature of the party, and not the bare writing of his name in the body or any part of the instrument. It then goes on to agreements, and requires, upon any contract or sale of land, there shall be an agreement, or some note or memorandum in writing, signed by the party, or some person lawfully authorized. It is difficult to say that a mere casual signature, if attested, would be good, but yet it has been so held. It can never be a signing, I think, within the act, if the party means to do some further act 1804. COLES versus TRECOTHICK towards perfecting the transaction; but it is a different thing to say that one simultaneous act is not an agreement. It has been determined in the King's Bench that the taking down the name of a purchaser at a sale and Others. by auction by the auctioneer, is a signing within the statute, the auctioneer being considered as the agent of both parties. It is true, that Lord Chief Justice Eyre differed with Lord Mansfield's decision in Simon v. Motivos (1), as to an auctioneer's note. He thought it might be good with respect to goods, but not as to land. I confess that I can trace no weighty distinction between the cases. It is, however, now clear, that an agent need not be authorized in writing, and that an agreement in writing may be dissolved by parol. In Bawds v. Amherst, Cha. Prec. 403, there was no signing, and so undoubtedly it could not be a good agreement; for where it is only a draft and not completed by signing, though it is all in the party's own writing, it is not good; and in Welsford v. Beazley, already cited, Lord Hardwicke professes not to disturb that case. A man, when he signs his name at the beginning of an instrument, may not mean to pledge himself to all that follows; but Lord Hardwicke held, that a letter subsequently written, referring to, and promising to perform a written agreement, though not signed, is sufficient to take the case out of the statute. It is true, that where a person signs as a witness, he cannot dissever himself from that act; but I think that the case of Welford v. Beazley, decided by Lord Hardwicke, goes the length of proving that Phillips here signed as a party. It is at all times dangerous to hold, that an auctioneer can delegate his power; but here the prices are settled by the party himself, and there can be no risk. The sellers in this case consist of three persons, who unite in giving the same authority to one agent, Smith and Glover prove the authority, and that Mr. Trecothick himself so understood it. Walton's authority is sufficiently proved by Coles' letter; and the language of the agreement, though in the singular number, is no proof of want of mutuality. (1) Vide ante. 1804. COLES versus TRECOTHICK and Others. "As to the point, whether the receipt is sufficient evidence of the agreement, being unstamped, that defect may be cured by a subsequent stamp, which is authorized upon the the payment of an increased penalty. But it ought to have either stated or have referred to the agreement, so that it might be identified with it. If the case stood on the receipt alone, I should have great difficulty, but I do not decide this case on the receipt. Upon the whole, I am of opinion that Smith was the authorized agent of the defendants, Coles, Snaith, and Trecothick; that the Jatter had authority to agree to contracts; and that he has inade the signature of Phillips as good as Smith's. "There must, therefore, be a decree for the specific performance of this agreement,' CHAMBERS and WIFE versus CHAMBERS and WIFE versus GOLDWIN.-Jan. 31. Appeal from a decree pronounced by Lord ALVANLEY, when Master of the Rolls. An assignce of a mortgage, in general cases, takes it entirely at his own risk as to what is due from the mortgagor to the mortgagee, but if the mortgagor makes no objection to the demand for a length of time, and deals with the assignee of the mortgage without objecting to the account of the · original mortgagee, he cannot have a decree to surcharge and falsify against that assignee, but must resort for redress to the original mortgagee. Accounts settled and signed, cannot be falsified except for error: but if error be manifest, the Court will correct it, notwithstanding any stipulation between the parties. Error must be specifically charged in the bill, and proved; otherwise the Court will not open an account. A mortgagee cannot have profit, by way of commission, for receiv ing the produce of the mortgaged estate, A trustee or agent is not entitled to commission unless he remains upon the spot, and attends to the management of the estate. GOLIN. THE circumstances of this case, and the arguments of the Counsel for both parties, were very fully reported 3 in the LAW JOURNAL (vol 1, p. 19 and 113) by the gentleman who then conducted that branch of the work. It came before the LORD CHANCELLOR upon an appeal against the decree (1) pronounced in Hilary Vacation, 1801, by Lord ALVANLEY, then Master of the Rolls, and from the extreme complication of the circumstances, and the difficulty of the case, was ordered by the LORD CHANCELLOR to stand over, until he could give it that reconsideration and undivided attention which it required. We now present our readers with his Lordship's decision, in which the principles upon which the Court acts in such cases, and the material points of this case, are stated with uncommon clearness and precision, and the whole freed from that labyrinth of perplexity, in which, from the length of the pleadings and the variety of facts, it was necessarily involved. LORD CHANCELLOR. "This case comes before the Court upon an appeal from the decree made by the late Master of the Rolls, and the questions which have been agitated, arise out of circumstances which I shall shortly recapitulate. It appears that a Mr. Ratcliffe, to whose property the plaintiff has become entitled, was seised in fee of certain estates in the island of Jamaica, and that by deeds dated the 11th of August, 1781, reciting that Theodore Foulkes having advanced to him 9000l. currency of the island, and also entered into engagements to pay other debts for him, he had proposed to put Foulkes into the immediate possession of the said estates, which were also to be under the immediate management and direction of the latter. By these deeds Mr. Ratcliffe conveyed the premises to Foulkes, his heirs, executors, and a ministrators, in trust, to manage, cultivate, improve, and work the same, and take, consign, and sell the whole crops, rents, and produce, as he should think proper as factor, but on the account, and at the risk of Ratcliffe, and apply (1) Vide 5 Ves. jun. 834. 1804. CHAMBERS and WIFE GOLDWIN. versus |