SUPREME COURT.—IN BANCO.

Tuapeka Times, Volume VII, Issue 382, 15 August 1874, Page 3

SUPREME COURT.— IN BANCO.

Wednesday, 12th August. KITCHINO- T. M'CABTHT. (Before Ilia Honor Mr. Jnptice Chapman.) (From tlie •' Guardian." ) In delivering judgment herein, hia Honor said : I am of opinion that the plaintiff's declaration in this case shows no equity to entitle him to specific performance of the alleged parol agreement which he set 3 up, and that the defendant's demurrer thereto must be allowed. The plaintiff relies upon a verbal agreement, followed by some correspondence ; on the payment of a sum of £30, in part performance ; on a parol admission by the defendant to a third person ; and on a temporary possession to reap crop, also alleged to be in part performance of the agreement. It appears that the plaintiff himself drew up a so-called agreement, which, he alleges, embodies the terms of the verbal agreement between himself and the defendant, but the defendant did not sign it The plaintiff then alleges that he paid to the defendant the sum of £30, in part payment of the purchase money, and that the defendant signed a receipt for the money ; but reliance on this payment, though alleged to be " in part payment of the purchase money," is very properly given up by the plaintiff's counsel, on the authority of Chuan v. Cook, 1 Sch. and Lef., 40. But a receipt was signed for the money ; and it is contended that parol evidence is admissable to connect the . receipt with the paper drawn up by the plaintiff, and so render the two together a valid signed agreement, sufficient to satisfy the Btatute. This, I think, is not admissable, and the cases cited fall far short of that. The leceipt is as follows : —

" I have this day received the sum of £30 sterling from J. F. Batching. " (Signed Michael M'Cabthy." This receipt does not contain one word to connect it with the unsigned draft of the alleged agreement, or, indeed, with any agreement between the parties. The principle of the well known case of Boydale v. Drummond, 11, East 142, applies to this case ; and, indeed, here there is far less connection between the two papers than that which is disclosed in the case cited. ' In Boydale v. Drummond there was the printed prospectus containing a proposal " to publish a magnificent edition of Shakespeare," and there was a book which had for its title, " Shakespeare Subscribers— their Signatures," which the defendant signed. He had also received and paid for several numbers, which fact was relied on, and had then refused to take more. The Court held that the two papers were not so connected iv sense as to enable them to bo treated aa one document ; and that parol evidence was inadmissable so to connect them. In the receipt bofore the Court there is not even the connection which the papers in Boydale v. Drummond disclose, by the fact that one document was a proposal to publish, by subscription, '• an edition of Shakespeare," and the other a list of " Shakespeare Subaoribcrs." Nor do t.hft rlofondaMt'o *»vo letters carry the evidence further. The language of the first letter is pregnant with the inference that no verbal agreement had been finally concluded, nnd this is strengthened by the second letter, in which the defendant writes, " I told you that I would let you know on the following Suuday whether I would sell the place," which words — if they warrant any inference at all — im ply that the matter still lay in negotiation. Then comes the alleged entry into possession. The declaration alleges that : " the plaintiff, with the knowledge of the defendant, and in part performance, Sec., entered upon the land, aud employed his servant to thresh the crops, paying him the sum of £30 for so doing." Now, in all cases in which possession is relied on as part performance it must be unequivocally connected with the agreement, and intended by the parties at the time as a transmutation of the possession. Can this, entry be said to be unequivocal ? In the first place, the defendant himself never went out of possession, nor did he deliver possession to the plaintiff. On the contrary, he remained in undisturbed possession of the principal messuage, and ■ the plaintiff's entry was, by his own showing, for; a temporary purpose only. This reduces it to a mere license to enter and thresh the crops, and when that purpose was served the license became exhausted. I know of no case, in which a mere entry for a temporary purpose, the other party in possession being undisturbed, has been construed as such a possession a3 to amount to part performance. Mr. Macassey contends that the averment that the entry was in part performance, is sufficicient to save the declaration from demurrar, for want of equity. I should have thought so if complete, exclusive, and unequivocal possession— say, for instance of the principal messuages — had been averred; but the plaintiff himself does not even allege possession co nomine, but only entry, and then proceeds to Bhow a limited and temporary purpose. The averment that the deposit of £30, for which the receipt was given, was in part payment of the purchase money does not save it from demurrer, nor do I think the averment of part performance as connected with the entry ha 3 that effect. Eeliance is also placed on the Bth paragraph of the declaration, wherein it is alleged that the defendant after the making of the agreement admitted to certain persons, and among them to one Donald M'Kenzie, that lie had by the memoranda and receipts sold his place to the plaintiff ; and the case of Slattery v. Pooley, 6 M. and W., 664, is relied upon as authority for the proposition that parol evidence of such admission is sufficient to dispense with the signed memorandum required by the Statute of Frauds. But Slattery v. Pooley was not a case under the Statute of Frauds. Tho admission merely extended to identify a fact in the schedule of a deed which had been rejected as evidence for want of a properVcamp. The parole evidence related to the contents of a written instrument, and was not resorted to in order to supply the place of the instrument itself. The admission was such a3 would have been evidence had therebeen.no instrument, and ifc was held not to be excluded by the fact that there was in existence a written instrument, which, having been excluded, by the Court, was virtually lost or destroyed. The same point had just before been decided in JS T ewbold v. Holt, O'M. and W., 662. To . give effect to an admission to dispense wij;h a signed memorandum required by a statute would be to repeal such statute. If a verbal agreement, which the Statute of Frauds requires to be in writing, is attempted to ba set up, no one would, I think, pretend that one or more witnegses, who wera present at the time, could be called to prove the alleged agreement, on the score of the defendant's admission, in the same manner that they could be called to prove an agreement not required to be in writing. On what principle, then, can it be urged that a witness can be called to prove a subsequent admission of what passed ? Such a course would be to substitute weaker for stronger evidence-; to give effect to evidence of less moral weight than that which would be afforded by witnesses who, being by the supposition present at th& time, would testify to all that fell from the defendant. But it is further urged that the admission may have been in writing, and in such terms as to be capable of being connected with the memorandum and receipt. I answer that, under 6ur system of pleading, that i 3 a " material fact,'* necessary to 9onstitute the plaintiff's right to the relief ' which he seeks, which ought to have been averred : and I have na doubt it would have- been not only a 1 erred, but set out, had there not been any '"such writing. Taking all that is relied upon, both singly and combined, I am of opinion that the declaration shows bo ground for specific performance of the alleged^agreement; that the demurrer must be allowed, and that there must be judgment for the defendant.