Savage v Canning

• Jurisdiction: Ireland
• Judgment Date: 08 June 1867
• Date: 08 June 1867
• Court: Common Pleas Division (Ireland)

Com. Pleas.

Coram MONAHAN, C.J.; O'HAGAN, J.; and MORRIS, J.

SAVAGE

and

CANNING

Kirkman v. Jervis 7 Dowl. 678.

Robson v. TurnbullENR 1 F. & F. 365.

Harris v. MontgomeryUNK 20 L. J. C. P. 221.

Hurcum v. SterikerENR 10 M.& W. 553.

Cannan v. Reynolds 5 E. & W. 553.

Cutter v. Powell 2 Smith, L. C. 1.

Teal v. AutyENR 4 B. Moore, 542; 2 Br. & B. 99.

Gray v. HillENR Ryan & Moody, 420.

Griffith v. YoungENR 12 East, 513.

Mayfield v. WadsleyENR 3 B. & C. 357.

Mavor v. PyneENR 3 Bing. 285.

Bragg v. Cole 6 B. Moore, 114.

Harman v. ReeveENR 18 C. B. 587.

Davenport v. DaviesENR 1 M. & W. 570.

Law v. ThompsonUNK 15 M. 7amp; W. 541.

Wilkin v. ReedeENR 15 C. B. 206.

Lucas v. TarletonENR 3 H. & N. 117.

Cocking v. WardENR 1 C. B. 858.

Buttermere v. HayesENR 5 M. & W. 456.

Kelly v. WebsterENR 12 c. B. 283.

Chater v. BeckettENR 7 T. R. 201.

Grimshaw v. LeggeENR 8 B. & C. 324.

Mechelen v. Wallace 7 A. & E. 49, 55, 56.

Buttermere v. HayesENR 5 M. & W. 456.

Vaughan v. HancockENR 3 C. B. 766.

Hodgson v. Johnson 1 E. Bl. & E. 689.

Green v. SaddingtonENR 7 E. & B. 503.

Mayfield v. WadsleyENR 3 B. & C. 357.

Cocking v. WardENR 1 C. B. 858.

Mavor v. PyneENR 3 Bing. 285.

Bragg v. Cole 6 B. Moore, 114.

Harman v. ReeveENR 18 C. B. 587.

Gray v. Hill Ry. & M. 420.

Neal v. Viney 1 Champ. 471.

Earl of Falmouth v. ThomasENR 3 Tyr. 26; 1 Cr. & M. 89.

Corrigan v. Woods 1 Ir. Rep. C. L. 73.

Franklin v. MillerENR 4 Ad. & E. 606.

Avery v. BowdenENR 5 E. & B. 714.

Reed v. HoskinsENR 5 E. & B. 729, 744.

Mavor v. PayneENR 3 Bing. 285.

Bragg v. Cole 6 B. Moore, 114.

Cocking v. WardENR 1 C. B. 858.

Cocking v. WardENR 1 C. B. 858.

Kelly v. WebsterENR 12 C. B. 283.

Buttermere v. HayesENR 5 M. & W. 456.

Vaughan v. HancockENR 3 C. B. 766.

Carrington v. RootsENR 2 M. & W. 248.

Reid v. LambENR 6 Ex. 130.

Falmouth v. ThomasENR 3 Tyr. 26; 1 Cr. & M. 89.

Harvey v. GrahamUNK 6 Nev. & M. 762.

Planche v. ColburnENR 8 Bing. 14.

Archard v. HornerENR 3 C. & P. 349.

Smith v. Rereward 7 A. & E. 544.

Tennyson v. O'BrienENR 5 E. & B. 497.

Chater v.BeckettENR 7 T. R. 201.

Cocking v. WardENR 1 C. B. 858.

Teal v. Auty 4 B. Moore, 542.

Harman v. ReevesENR 18 C. B. 587.

Cutter v. Powell 2 Smith, L. C.1.

Special Contract invalid under Statue of Frauds — Action on Common Counts — Executed Contract — Election to abandon Express Agreement — Amendment of Bill of Particulars at Nisi Prius.

434 THE IRISH REPORTS. SAVAGE v. CANNING (1). Special Contract invalid under Statute of Frauds-Action on Common Counts-Executed Contract-Election to abandon Express Agreement-Amendment of Bill of Particulars at Nisi Prius. Where a special oral contract is entered into between Plaintiff and DefendÂant, if the part to be performed by the Defendant involve several terms, one of which falls within the provisions of the Statute of Frauds, the contract cannot be enforced by the Plaintiff if the Defendant rely on the Statute. In such a case, if the entire work and labour to be done under the contract has been performed by the Plaintiff, and the benefit of it accepted by the DeÂfendant, the Plaintiff can recover the value of the work and labour under the common count on a quantum meruit, although the evidence or proceedings in the case may establish that, up to the trial, he insisted on the special contract : it is not necessary that the Plaintiff, before bringing this action, should elect to abandon the special contract. The Plaintiff's bill of particulars referred merely to the special contract. Held, that an amendment of the particulars at the trial, by which all reference to any special contract was omitted, was properly allowed by the Judge. Tins case had been tried before Fitzgerald, B., at the Armagh Spring Assizes, 1867. The first count of the Summons and Plaint stated that, in consi deration that the Plaintiff would negotiate for the Defendant the purchase of a certain estate at Rostrevor for a less sum than £26,000, the Defendant promised to pay the Plaintiff the difference between the price for which the estate should be purchased and £26,000. It then averred that the Plaintiff did negotiate the purÂchase of the estate for £25,500, and a performance of all conditions, and that the sum of £500 had not been paid. The second count was similar to the first, but substituted £23,000 and £22,500 for £26,000 and £25,500. There were also the common counts for work and labour, and on an account stated. The particulars indorsed were in these words : " 1866, 30th April. Amount due on special agreement within stated, £500. " Interest thereon since 30th April, 1866." (1) Comm MONAHAN, C.J. ; O'HIGAN, J. ; and MORRIS, J. COMMON LAW SERIES. 435 To the special counts the Defendant pleaded, traversing the Conn. Pleas. agreements alleged, and also other defences which became the sub 1867. ject of demurrer, and the nature of which is not material in the SAVAGE present case. CANNING. v. . To the common counts there were only traverses pleaded. The Plaintiff's evidence was that the estate, the subject of the negotiations, was the property of a Col. Roxburgh, with whom the Plaintiff had been joined in working a quarry on the estate ; that the Defendant was anxious to purchase the estate, and that Mr. Browne, the Defendant's attorney, called upon Plaintiff on the 7th September, 1865, and asked him to negotiate the purchase of it ; that Plaintiff said he would do no such thing, as the purchaser might turn him out of the quarry ; that Mr. Browne then proÂmised him, on behalf of the Defendant, a lease of five acres of the quarry for twenty-one years, at a rent of £150, and authorized him to purchase for £26,000, and undertook that the difference between £26,000 and any lesser sum he could purchase it for should be his own. The Plaintiff went over to London, and saw the Defendant, and communicated with Col. Roxburgh, who, however, was then engaged in negotiations with other parties, and nothing was then effected. In April, 1866, the Plaintiff ascertained that Col. RoxÂburgh had agreed to sell the estate, with the exception of a certain portion, of which the value was £3000, to a Mr. Ross, for £22,000, and told Browne that he thought Ross had not the money ready, and would part with his bargain for £500, and asked him whether he had the money ready. Browne said that he had. The Plaintiff induced Ross to transfer his bargain for £500, and telegraphed to inform the Defendant of that fact, and went to Browne, who again promised the lease and the £500. Next day the Defendant teleÂgraphed to say the money would be ready. The conveyance of the estate was completed on the 30th April. The Defendant had reÂfused. to grant the lease, and had filed a petition to restrain the Plaintiff from working the quarry. To that petition the Plaintiff had filed an answering affidavit, relying on the promise of the lease. On cross-examination, the Plaintiff said that his action was brought on the agreement of the 7th September, entered into with the Defendant's agent, and that he would not have undertaken the ne 436 THE IRISH REPORTS. Cm' Pleas* gotiation of the purchase without the promise of the lease ; that the 1867. money was comparatively insignificant ; that the lease was the pri SAVAGE mary and principal part of the arrangement. CANNING. The Plaintiff gave in evidence three deeds-1st, a conveyance of the estate from Roxburgh to Ross, of the 26th April, 1866 ; 2ndly, a declaration of trust by Ross in favour of the Defendant, of the 30th April, 1866 ; and, 3rdly, a conveyance from Ross to the Defendant of the 30th April, 1866. Plaintiff having closed his ease, counsel for the Defendant thereupon called for a non-suit, on the ground that the agreement of the 7th September, 1865, was an entire agreement, of which the essential, or at all events a principal part, was relating to land ; that no action could be maintained, upon it, for want of any writing, under the Statute of Frauds ; and that the particulars showed that the common counts were only for money due under the special agreement. The Judge's opinion was in favour of the objection. Counsel for the Plaintiff then applied for liberty to amend the particulars by omitting all reference to the special agreement. The Judge allowed the amendment, subject to the objection of counÂsel for the Defendant, the Defendant to be allowed to plead anew as he might be advised to the common counts with the amended particulars. The particulars, as amended, stood thus :-" 30th April, 1866, the Plaintiff, under the common counts, claims £500 comÂpensation for his work and labour, and loss of time and trouble in negotiating the purchase of the Rostrevor estate for the Defendant, the sale of which was completed on the above day." Counsel for the Plaintiff further applied to be allowed to give further evidence, with a view of showing evidence in writing of the agreement stated in the special counts; and, on the Judge's granting the appliÂcation, he gave in evidence the cause petition filed by the Defendant against the Plaintiff, 18th August, 1866, and the Plaintiff's affidavit, by way of answer, 8th September, 1866. This document, however, failed to satisfy the requirements of the Statute. Counsel for the Defendant declined...