Archbold v Lord Howth

• Jurisdiction: Ireland
• Judgment Date: 27 January 1866
• Date: 27 January 1866
• Court: Common Pleas Division (Ireland)

Com. Pleas.

Coram MONAHAN, C. J.; KEOGH, CHRISTIAN, and O'HAGAN, JJ.

ARCHBOLD

and

LORD HOWTH

Udell v. AthertonENR 1 Law Rec. O. S. 350; S. C. 2 Dow & Cl.288.

Cornfoot v. FowkeENR 7 H. L. C. 750

Hern v. NicollsENR 6 C. B. 319.

Crockford v. WinterENR 6 C. B. N. S. 894.

Wilson v. Fuller Coop. Ch. 308.

Kennedy v. LeeUNK 1 D. F. & J. 518.

Routledge v. GrantENR 9 H. L. C. 712.

Boydell v. DrummondENR 1 Bro. P. C. 543.

Ridgway v. WhartonENR 1 Dow, 272.

Udell v. Atherton 14 C. B. N. s. 576.

Coleman v. RichesENR 6 C. B. 319.

Southern v. HowENR 10 Cl. & Fin. 934.

Cornfoot v. FowkeENR 1 Sim. 1.

Dick 1 D. M. & G. 660.

Pickering v. DawsonENR 11 M. & W. 401.

Wilson v. FullerUNK 4 M. & P. 741.

Molus v. HeyworthENR 7 H. & N. 172.

Rawlings v. BellENR 5 Esp. 133.

Horsfall v. ThomasENR 1 Salk. 289.

Grant v. NorwoodENR 6 M. & W. 358.

Brady v. ToddSC 4T. R. 66.

Flight v. BartonUNK 2 Sm. L. C. 68.

Hern v. Nicolls Dru. Temp. Napier, 577.

Coleman v. RichesUNK 6 Sc. N. R. 894.

Motteux v. The London Assurance Co. Moo. & Mal. 433.

Collett v. MorrisonENR 1 Cr. & J. 220.

Fowle v. FreemanENR 2 Cr. & J. 493.

Field v. BolandENR 10 Cl. & Fin. 934

Wills v. Stradling 3 Ves. 378.

Dowall v. Dew L. R. 1 Ch. Ap. 35.

Nunn v. FabianENR 1 Y. & C. C. C 345.

Horsfall v. ThomasENR 1 H. & C. 100.

Udell v. Atherton 7 H. & . 172.

Udell v. AthertonENR 7 H. & N. 172.

Statute of Frauds Part Performance Action of Deceit Liability of Principal for Agent's Deceit.

608 THE IRISH REPORTS. ARCIIBOLD v. LORD HO WTH (I).* Statute of Frauds-Part Performance-Action of Deceit-Liability of Principal for Agent's Deceit. A circular was sent to the tenants of A, signed by B, his agent, stating that A had consented to give the tenants leases for twenty-one years, at increased rents, and that draft agreements carrying out the proposed arrangement would be sent to them for signature. C received the circular, and subsequently signed the draft agreement sent. Held, that the circular and agreement signed by the tenant did not constiÂÂtute a written agreement binding on the landlord. Semble, the payment of the increased rent by the tenant constituted a " part performance" of the parol agreement sufficient to entitle the tenant to obtain a specific performance of it in a Court of Equity. C, the tenant, was afterwards served with notice to quit by B, the agent of A, and evicted. He subsequently sued A, in tort, alleging that he had frauduÂÂlently concealed from him the existence of the agreement for a lease, and thereÂÂby succeeded in evicting him. Held, that such action could not be maintained by proof that, at the time of the proceedings in the ejectment, B, the agent of A, was aware of the existence of such agreement, and that C had forgotten it ; and that B was aware of C's ignorance, and yet did not inform him of the agreement, B being under no obÂÂligation to inform C of his rights, and A not being liable for the concealment, though fraudulent, of B. Udell v. Atherton, 7 H. & N. 172, discussed. Tills was a motion on the part of the Plaintiff to show cause against a conditional order for a new trial obtained by the DefenÂÂdant. The writ of Summons and Plaint in this action was issued on the 15th of December, 1863, and contained six paraÂÂgraphs. The first paragraph stated that the Defendant, on the 30th November, 1857, agreed with the Plaintiff to give him a lease of certain premises for a term of twenty-one years, at a certain rent, and averred a readiness and willingness on the part of the Plaintiff to perform said contract, and a general perÂÂformance of conditions, and, alleging a refusal by the Defendant to fulfil this agreement, claimed damages for the breach thereof. The second count complained that, after the said agreement for a lease, and while it was in full force, the Defendant evicted the (1) Comm MONAHAN, C. J.; KEOGH, CHRISTIAN, and OTAGAN, JJ. * Repotted by Valentine J. Coppinger, Esq., Barrister-at-Law. COMMON LAW SERIES. 609 Plaintiff from the farm by notice to quit, and obtained judgment Com. Pleas. in ejectment in one of the Superior Courts of Law, and ejected 1865-66. and expelled the Plaintiff, and that the Plaintiff was ignorant ARCH130LD of the existence of the said agreement, and the Defendant was V. LORD aware of it; and that the Defendant, to prevent the Plaintiff HoWTIT. taking proceedings to enforce the agreement, falsely and frauduÂÂlently represented to him, and induced him to believe, that no agreement for a lease in fact existed, and thereby prevented him from taking any proceedings to enforce it. The third paragraph differed from the second merely by stating the representations to have been made after the service of the notice to quit. The fourth paragraph did not charge any misrepresentation, but alleged a fraudulent concealment by the Defendant of the existÂÂence of the agreement for a lease, and that said concealment took place at the same time, under the same circumstances, and with the same intent and effect as stated in the third paragraph as to the misrepresentations. The fifth and sixth paragraphs beÂÂcame immaterial. Numerous defences were pleaded to these paragraphs ; but the questions argued and decided arose upon a defence pleaded to the first paragraph traversing the alleged agreement, and upon the defences to the fourth paragraph, viz. :- 1st. A traverse of the Defendant's knowledge of the existence of said contract, and of his knowledge that the Plaintiff was ignorant thereof. 2nd. A traverse of the concealment by the Defendant of the existence of the contract, and of his having permitted and induced the Plaintiff to act in ignorance thereof. 9. 3rd. A traverse that the alleged concealment was wilful or fraudulent. 4th. A defence alleging that the Plaintiff well knew of the existence of the said executory contract at the time of the alleged concealment. Issue in fact having been joined upon the said defences, the case went to trial, at the Sittings after Hilary Term, 1865, before the Chief Justice of the Common Pleas and a Special Jury. On the part of the Plaintiff it was proved that the Plaintiff's family had been tenants of the lands in question for many years, and that the THE IRISH REPORTS. Plaintiff himself had, in the year 1853, succeeded his uncle a! tenant from year to year of the premises. In 1857, Lord Howth, having had a new valuation made of all his estates, decided upon raising the rents by twenty per cent. ; and accordingly the followÂÂing circular letter was addressed to the Plaintiff, as well as the other tenants, by the Messrs. Stewart and Kincaid, Lord Howth's agents:- " 6, Leinster-street, Dublin, 25th November, 1857.. " DEAR SIR,-We have recently made a revision of the rents of Lord Howth's estate, and after full consideration and consultation with his Lordship, we are desired to make a general change in the rents of the yearly tenants, and of those holdings the leases of which have recently expired, by adding twenty per cent. to the present rents, and at these new rents his Lordship has consented to give the tenants leases for twenty-one years. A notice, thereÂÂfore, to that effect, -will be sent to you from this office, and an agreement for you to sign. " We are, dear Sir, " Yours faithfully, 44 STEWART & KINCAID. " Per H. F. H. " To Christopher Archbold, Tyrrellstown." The initials H. F. H. were those of Mr. H. F. Hamilton, an under agent, in the employment of the Messrs. Stewart and KinÂÂcaid, and whose duty in their office was to carry out all dealings with reference to the portion of his Lordship's property upon which Archbold's holding was situated. A short time after this letter had been received, a man named O'Brien, a bailiff upon the Defendant's estates, called upon the Plaintiff, and tendered him for signature a document in the following terms : " I hereby agree to pay to the Earl of Howth the yearly rent of 133 10s. sterling, for that part of the lands of TyrrellsÂÂtown, situate in the Barony of Balrothery East, and County of Dublin, now in my possession, containing 87A. 3R. 33r. plantation measure, or thereabouts, such rent to commence from the 29th COMMON LAW SERIES. 611 September last, and payable half-yearly ; and I undertake to Com. Pleas. execute a lease of same for a term of twenty-one years, to commence 1865-66. from said 29th September, such lease to contain the usual clauses A .o.ROHBOLD in the Earl of Howth's leases. v. " Dated this 30th day of November, 1857.LORD HOWTH. " CHRISTOPHER ARCHBOLD. " Witness, James O'Brien." Upon Archbold's signature being affixed, O'Brien, the bailiff who had brought it to him, took the memorandum to Lord Howtb.'s office, where it remained until the time of the bringÂÂing of the action. No step was taken, or application made by the Plaintiff on foot of the agreement, although the other tenants, who had signed similar documents, had met the Messrs. Stewart and. Kincaid on an appointed day in the following January, and had obtained leases. The Plaintiff, however, paid the increased rent mentioned in the agreement. In 1860, the Plaintiff being somewhat in arrear in paying his rent, a notice was served upon him, on the 25th of March, 1861, to quit on the ensuing 29th September ; and a demand of possession was made in the December following. In January, 1862, an ejectment on the title was brought in the Court of Queen's Bench, and judgÂÂment was marked on the 24th February, 1862. The Habere was executed on the 20th of March, and some time afterwards the lands were let to a Mr. Arthur, at a considerably increased rent. No evidence was given to prove that Lord Howth, or his agents, the Messrs. Stewart and Kincaid, knew of the existence of an agreement for a lease at the time of the ejectment proceedings. The document signed by the Plaintiff appeared to have come to the hands of Mr. Hamilton, the sub-agent, and to have been deÂÂposited by him in an open drawer in the Messrs. Stewart and Kincaid's office...