CHANCERY APPEALS. . [L. E.

HEARD v. PILLEY.

Specific PerformanceVendor and PurchaserStatute of Frauds, s. 8Contract by Agent appointed by ParolDemurrerPleadingSufficiency of Allega-tion of Contract.

A contract for the purchase of land made by an agent will be enforced, although the agent be appointed merely by parol.

In a bill filed by a purchaser for specific performance of a contract for sale, it was alleged that the contract was made by one of the Defendants as agent for the Plaintiff, but that the agent claimed the benefit of the contract for himself. It appeared by the statements in the bill, that the agent was appointed merely by parol.

Demurrers by the two Defendants, the agent and the vendor, were overruled.

The decision of Malins, V.C., affirmed. Bartlett v. Pichersgill (1) commented on. An allegation in a bill by a purchaser for specific performance that he was

informed by his agent that a written agreement was executed, followed by statements referring to the agreement as actually made:

iZeW, on demurrer, a sufficient allegation of the execution of a written contract.

A HIS was an appeal from a decision of Vice-Cbancellor Malins, overruling' the demurrers of the two Defendants in the above suit.

The bill was filed by James Bowe Heard against William Pilley and Samuel Sugden, and stated as follows:

The Defendant Pilley suggested to the Plaintiff that he might advantageously obtain a lease of a house in Fore Street, in the City of London, belonging to the Defendant Sugden, adding that he himself had no capital with which to speculate. The Plaintiff accordingly employed Pilley to obtain for him a lease of the house, and to purchase the interest of the outgoing tenant. Pilley subsequently agreed with Sugden, in his own name, for a lease of the house, and informed the Plaintiff that he had done so, and told him that the agreement was contained in a letter from Sugden, dated the 19th of October, 1868; and he also paid the outgoing tenant 100 for his interest.

The bill then stated that Pilley entered into the agreement with Sugden and the tenant respectively as the agent for and on behalf

(1) 4 East, 577, n.

VOL. IV.] CHANCERY APPEALS. 549

of the Plaintiff; and that the Plaintiff offered him one-third of L. JJ. the profit to be made on a re-sale of the premises, or 10 in case 1869 the Plaintiff should elect not to sell them. The authority and HEABD instructions given to Pilley, as stated in the bill, were entirely p ^ ^ y verbal.

Pilley subsequently refused to give the Plaintiff the benefit of the lease, and the Plaintiff accordingly filed the present bill, praying that it might be declared that Pilley had entered into the agreement with Sugden as his agent, and that Sugden might be decreed to grant a lease of the premises in accordance with the agreement.

Both the Defendants demurred for want of equity, but the Vice-Chancellor overruled the demurrers. The Defendants accordingly appealed.

Mr. Glasse, Q.O., and Mr. Jolliffe, for the Defendant Pilley:

There is no distinct allegation in the bill of any written contract between Sugden and Pilley: it is merely stated as being alleged by Pilley. This is not sufficient to support the bill: White v. Smale (1); Clarlc v. Lord Bivers (2); JacJcson v. Oglander (3). But our principal ground of objection is, that the bill alleges no written appointment of Pilley as the Plaintiff's agent; the transaction between them was entirely by parol. This is, therefore, an attempt to constitute Pilley a trustee for the Plaintiff by a parol agreement, which is contrary to the 8th section of the Statute of Frauds. This very point was expressly decided in Bartlett v. Pickersgill (4), where it is laid down that a parol agency does not create a trust which can be enforced against the agent. This case has never been overruled, and is referred to as a binding authority by Lord St. Leonards and Mr. Dart in their treatises on Vendors and Purchasers (5).

The cases relied on by the other side are distinguishable. In Dale v. Hamilton (6) there was a partnership. In Taylor v. Salmon (7) there was a letter referring to the agency. In other

(1) 22 Beav. 72. (5) Sug. V. & P. 14th Ed. p. 703; (2) Law Eep. 5 Eq. 91. Dart's V. & P. 3rd Ed. p. 599. (3) 2 H. & M. 465. (6) 2 Ph. 266. (4) 4 East, 577, n. (7) 4 My.

CHANCERY APPEALS. [L.E.

cases the Statute of Frauds was not pleaded by the Defendant, or else the question arose as an independent point, whether the relation of solicitor and client existed between the parties.

[The LORD JUSTICE SBLWYN referred to Willis v. Willis (1).]

Mr. Lawrence, for the Defendant Sugden.

Mr. Cotton, Q.C., and Mr. Berkeley, for the Plaintiff: The Plaintiff is not seeking relief against Pilley, but he asks for

specific performance against Sugden, alleging that the contract with Sugden was in reality the Plaintiff's contract; and he establishes that by averring that Pilley was his agent in the transaction. The contract between Pilley and Sugden is sufficiently alleged in the bill as having been made in writing, and there is therefore nothing inconsistent with the Statute of Frauds in the Plaintiff's claim. The case of Bartlett v. Pichersgill (2) is clearly distinguishable from the present case, for it was not a suit for specific performance of an unexecuted contract, but to oblige the agent, who had obtained a conveyance of the estate, to convey it to the Plaintiff. Moreover, it is very doubtful whether that case would be considered good law at the present time, for it appears inconsistent with the 8 th section of the Statute of Frauds, which excepts the case of trusts arising by implication. The cases of Lees v. Nut-tall (3), Davies v. Ottey (4), Dale v. Hamilton (5), and Taylor v. Salmon (6), are in our favour. There is a distinction between the 1st and 8th sections of the Statute of Frauds: in the 1st section, which relates to conveyances of interests, it is required that the agency should be evidenced by writing ; but this is not required by the 8th section, which treats of agreements. This distinction is remarked by Lord St. Leonards in his treatise on Vendors and Purchasers (7). The conduct of Pilley was a breach of confidence, and a fraud upon the Plaintiff, against which the Court has power to relieve.

(1) 2 Atk. 71. (4) 33 Beav. 540. (2) 4 East, 577, n. (5) 2 Ph. 266. (3) 1 Russ. & My. 53. (6) 4 My. & Cr. 134.

(7) 14th Ed. p. 145.

VOL. IV.] CHANCEEY APPEALS.

Mr. Jolliffe, in reply: There was no fraud in the conduct of Pilley. He acquired no

special information, and gained no advantage of any kind from the relation in which he stood to the Plaintiff.

SIR C. J. SELWYN, L.J.:

In this case two questions have heen raised; first, whether there is any sufficient allegation in the bill, that an agreement was, in fact, entered into by the Defendant Pilley in writing so as to constitute it an agreement which could be enforced, having regard to the provisions of the Statute of Frauds; and, secondly, as between the Plaintiff and the Defendant Pilley, whether there is such allegation of agency as is consistent with the provisions of that statute, and which can be enforced.

With regard to the first point, we did not think it necessary to hear the Bespondent's counsel; for although the statement relating to the letter from Sugden does not amount to a positive allegation, still, coupling it with the subsequent statement to this effect, " That Pilley entered into the said agreement with the said Samuel Sugden and Bobert Brown, the tenant, respectively as the agent for and on behalf of the said James Bowe Heard," and with other statements in the bill, I think there is sufficient allegation of an agreement, and an agreement constituted by the letter written and signed by the Defendant Sugden, so as to render it impossible for him to set up a case that there is no contract in writing relating to this property. Then with regard to the agency of Pilley, in the first place, the fact of the agency is distinctly stated in the paragraph which I have read. And although it may be true that he afterwards disputed or questioned that agency, the fact must be taken as clear and indisputable. This bill is therefore brought into the category of those very common billsa bill alleging a contract entered into in writing with a person averred to be the agent of the Plaintiff, and praying specific performance against the agent and against the person with whom that agent has entered into the contract. That is a bill of a very ordinary description, and it is a startling proposition to say that unless the bill alleges that the agency was constituted by writing, such a bill cannot be sustained.

552 CHANCEKY APPEALS. [L. E.

L. JJ. The only authority which has been cited in support of that pro-1869 position is Bartlett v. Pielzersgill (1); but that case does not

HEARD govern the present one, for that was a case in which the convey-p " ance was executed, and in which it appears, from the short state-

ment of the case, which is in a note, that the bill was a bill by the Plaintiff seeking for a conveyance to the Plaintiff as against the Defendant, to whom a conveyance had already been made. The statement is this:" The Defendant bought an estate for the Plaintiff, but there was no written agreement between them, nor was any part of the purchase-money paid by the Plaintiff. The Defendant articled for the estate in his own name, and refused to convey to the Plaintiff, so this bill was brought to compel a conveyance." That is, after the conveyance had been executed the bill was filed by the Plaintiff seeking for a conveyance of that estate from the Defendant, to whom the conveyance had been made. That entirely distinguishes that case from the present, which is an ordinary suit by a principal, bringing before the Court an agent and the person with whom the contract has been entered into. Assuming the case of Bartlett v. Piehersgill to be good law, it cannot, I think, be considered as laying down any such general proposition as is contended for by the Defendants. At all events-it would be subject to qualifications, especially to those which are mentioned by Lord St. Leonards in the passage in his book on Vendors and Purchasers (2), which has been read to us by Mr. Berkeley, and it is also subject to the qualification established by Lord Hardwiehe in the case referred to of Willis v. Willis (3), where His Lordship says: " There is another way of taking a case out of the statute, and that is, by admitting parol evidence, within the rules laid down in this Court, to shew the trust from the mean circumstances of the pretended owner of the real estate or inheritance, which makes it impossible for him to be the purchaser." I t is not altogether unworthy of remark that it is expressly stated in this bill that " Pilley said he had not capital with which to speculate." I cannot at all accede to the argument urged in reply, that, under these circumstances, when the agent goes to the principal and says, " I will go and buy an estate for yon," it is not a fraudulent act on his part afterwards to buy the estate for

(1) 4 East, 577, n. (2) 14th Ed. p. 145. (3) 2 Atk. 71.

VOL. IV.] CHANCEKY APPEALS. 553

PlLLEY.

himself, and to deny the agency. I think that would be an L. J j . attempt to make the Statute of Frauds an instrument of fraud; 1869 therefore I agree with the judgment of the Vice-Chancellor, and HEARD I think that both of these demurrers were properly overruled, and that both Petitions of appeal must be dismissed with costs.

SIB G. M. GIFFAKD, L.J.:

In this case, although the paragraph relating to the letter from Sugden would not amount to a sufficient allegation of agreement between the Plaintiff and the Defendant, I am satisfied that when you take it in connexion with the other statements in the bill, there is a clear allegation of an agreement in writing signed by Sugden. That being so, the only other question is that which is raised by the case of Bartlett v. Piclcersgill (1), and it is enough to say that here there has been no conveyance from Sugden to Pilley, and that the whole object of the bill is to enforce specific performance between the Plaintiff and Sugden. Pilley is brought here simply to be bound, and nothing else, and no conveyance is sought from him. I cannot help adding, as regards the case of Bartlett v. Piclcersgill, that it seems to be inconsistent with all the authorities of this Court which proceed on the footing that it will not allow the Statute of Frauds to be made an instrument of fraud.

Solicitor for the Plaintiff: Mr. G. K East. Solicitors for the Defendants: Mr. W.T.Bateson; Mr. A. Watson.

(1) 4 East, 577, n.

Vciw IV. 2 Y