Harvey v Edwards, Dunlop and Co Ltd

(1927) 39 CLR 302

---

(Judgment by: Knox CJ, Gavan Duffy J, Starke J)

Harvey
vEdwards, Dunlop and Co Ltd

Court:

Judges:
Knox CJIsaacs J
Higgins J

Gavan Duffy J
Starke J

Legislative References:
Instruments Act 1915 (Vic) - s 228

Case References:
Stokes v Whicher - (1920) 1 Ch 411
Macrory v Scott - 5 Exch 396

Hearing date: 18, 21 March 1927
Judgment date: 13 April 1927

---

Judgment by:
Knox CJ
Gavan Duffy J
Starke J

On the trial of this action Dixon, A.-J, found that on the 13th October, 1925, an agreement had been made orally between the appellant, the respondent, and the Interstate Stationery Co Ltd, by which, in consideration that the plaintiff would refrain from signing judgment against the Company, the defendant agreed to execute a certain power of attorney in the form approved, to send it to the attorney under power without unreasonable delay, and to instruct him to sell in such time and on such terms as would allow him to pay principal and interest at 8 per cent. to the respondent at its London office before the end of February, 1926. He held, further, that a term was necessarily implied in this contract that the appellant had not done and would not do anything calculated to prevent or impede the sale taking place and the proceeds being applied in payment of the amount owing to the respondent in manner provided. At the trial it was argued for the appellant that this agreement was a special promise to answer for the debt of another within the meaning of s 228 of the "Instruments Act," but this contention was overruled. Consequently the question whether there was a sufficient note or memorandum of the agreement to satisfy the requirements of the section did not then arise.

On the opening of this appeal, two questions only were suggested for argument

(1)

whether the agreement was within the provisions of s 228; and

(2)

if so, whether there was a sufficient note or memorandum of it to satisfy the requirements of the section. Another argument attacking the finding of Dixon, A.-J, and the authority of solicitors to act for the appellant, was attempted in reply, but the court refused at that stage of the case to entertain it.

In the view which we take of the second question, we find it unnecessary to consider whether the first was correctly decided in the Supreme Court. The Statute of Frauds requires

(a)

an agreement in writing, or

(b)

a memorandum in writing of the agreement.

It is well settled that any document signed by the party to be charged or by some person authorised by him, which contains all the essential terms of the agreement, is a sufficient memorandum. It is also well settled that the memorandum "need not be contained in one document; it may be made out from several documents if they can be connected together." They may be connected by reference one to the other, but further,

if you can spell out of a document a reference in it to some other transaction you are at liberty to give evidence as to what that other transaction is, and if that other transaction contains all the terms in writing then you get a sufficient memorandum within the Statute by reading the two together

[Stokes v Whicher, (1920) 1 Ch 411 at p 418.]

In the present case an agreement in fact is established. That agreement was arrived at in the course of conversations between the solicitors for the respondent and Messrs. Crisp and Crisp, solicitors, who were acting on behalf of the appellant, and with his authority, and was completed on the 13th of October. On the 14th October the respondent's solicitors wrote to the appellant's solicitors a letter in the words following, viz: --

EDWARDS, DUNLOP, AND CO v INTERSTATE STATIONERY CO LTD.

Dear Sirs, --

We write to confirm our telephone conversation of 13th inst.

Our client is prepared to withhold the signing of judgment herein on the following terms: --

1.

Power of attorney as drawn by you to be sent to Scottish solicitors, with instructions to sell in time to have money paid to our client's London house by 28th February, 1926. Interest to be at 8 per cent., instead of 7 per cent., as proposed.

2.

Consent to sign judgment to be given by you on our undertaking not to use the same before 28th February, 1926, unless the action of your client in Melbourne or anything in connection with the Scottish transaction justifies its use. Our client's London solicitors to have liberty to inquire into the Scottish transaction and our client to act on their service.

3.

The above case to be adjourned from month to month pending settlement. We enclose your draft power of attorney as requested by you.

Please let us have your consent to judgment. We will also require to see documents duly signed before they are sent to Scotland.

Yours faithfully,

EGGLESTON AND EGGLESTON.

We regard this letter as a confirmation in writing of the verbal contract already concluded on the 13th of October, and not as an offer of new terms. On 4th November, 1925, the appellant's solicitors wrote to the respondent's solicitors a letter in the words following, viz: --

EDWARDS, DUNLOP, AND CO v INTERSTATE STATIONERY CO LTD.

Dear Sirs, --

We are forwarding herewith power of attorney, duly executed by Mr Harvey. Kindly return same to us to-day, as we are anxious it should catch the first mail to Scotland.

We are preparing the consent to judgment, and will let you have same, together with the letter accepting terms of settlement, as early as possible.

The property in Scotland, we understand, has already been sold, so that there should not be any difficulty whatever about your clients being paid by due date.

Yours faithfully,

CRISP AND CRISP.

On their face the letters of 14th October and 4th November refer to the same transaction, namely, a proceeding between Edwards, Dunlop and Co and the Interstate Stationery Co Ltd This connects the two letters together, and reference to the terms of the letters adds to this connection, for the later letter deals with the very matters spoken of in the earlier letter. Then a power of attorney is referred to, which upon being examined is found to authorise the attorney for the appellant to sell certain real property in Scotland, and out of the proceeds of sale to pay to the London office of the respondent the sum of £489 0s. 9d., with interest from 1st March, 1925, till payment. Some question arose as to the rate of interest set forth in the power of attorney, for on the 5th November the respondent's solicitors returned the power of attorney as requested by the letter of the 4th November, and stated that "the power of attorney meets with our approval except as to the rate of interest, which you have undertaken to alter from 7 per cent. to 8 per cent." The appellant's solicitors acknowledged this letter on the 7th November, that they had altered the rate of interest from 7 per cent. to 8 per cent., and had forwarded the power of attorney to Scotland. They repeated these statements in a letter of 9th November, written in reply to a letter of respondent's solicitors dated 6th November, asking for formal notification of the alteration of the rate of interest and the despatch of the power of attorney. On 18th February, 1926, appellant's solicitors wrote to the respondent's solicitors, informing them that the instructions given under the power of attorney had reached the solicitors acting in Scotland, and that the property had been sold, but that the money could not be handed over until receipt of a disposition executed by the appellant; and on the 24th February they wrote that the disposition had been sent to appellant's solicitors in Scotland, and that "the matter ought to be settled in London by the end of this month." All these letters expressly refer to the same transaction, namely, Edwards, Dunlop and Co Ltd v Interstate Stationery Co Ltd., and are connected up as a correspondence by reference to preceding letters in the correspondence and by the subject-matter dealt with. Finally, on the 23rd March, 1926, the solicitors wrote enclosing consent to judgment under the seal of the Company. In these letters, connected together in the manner indicated, the solicitors for the appellant acknowledge and recognise, in our opinion, an agreement between the parties and the terms of that agreement can be gathered from them. They contain all the terms of the agreement found by Dixon, A.-J, and so are sufficient to satisfy the requirements of the Statute of Frauds.

For these reasons we are of opinion that the appeal should be dismissed.