CHANCERY APPEALS.

[L. E.

HEARD v. PILLEY.
Specific PerformanceVendor and PurchaserStatute of Frauds, s. 8Contract
by Agent appointed by ParolDemurrerPleadingSufficiency of Allegation 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 ap
pointed merely by parol.
Demurrers by the two Defendants, the agent and the vendor, were over
ruled.
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 sub
sequently 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.

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CHANCERY APPEALS.

of the Plaintiff; and that the Plaintiff offered him one-third of

the profit to be made on a re-sale of the premises, or 10 in case
the Plaintiff should elect not to sell them. The authority and
instructions given to Pilley, as stated in the bill, were entirely
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 ViceChancellor 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 trans
action 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)
(2)
(3)
(4)

22 Beav. 72.
Law Eep. 5 Eq. 91.
2 H. & M. 465.
4 East, 577, n.

(5) Sug. V. & P. 14th Ed. p. 703;

Dart's V. & P. 3rd Ed. p. 599.
(6) 2 Ph. 266.
(7) 4 My. <& Cr. 134.

549
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1869
HEABD

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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 per
formance of an unexecuted contract, but to oblige the agent, who
had obtained a conveyance of the estate, to convey it to the Plain
tiff. 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. Nuttall (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 con
fidence, and a fraud upon the Plaintiff, against which the Court
has power to relieve.
(1) 2 Atk. 71.
(2) 4 East, 577, n.
(3) 1 Russ. & My. 53.

(4) 33 Beav. 540.

(5) 2 Ph. 266.
(6) 4 My. & Cr. 134.
(7) 14th Ed. p. 145.

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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 con
stitute 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 alle
gation 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 re
lating 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 para
graph 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.

CHANCEKY APPEALS.

552
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1869
HEARD

p "

[L. E.

The only authority which has been cited in support of that proposition is Bartlett v. Pielzersgill (1); but that case does not
govern the present one, for that was a case in which the conveyance was executed, and in which it appears, from the short statement 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 Plain
tiff, 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 eventsit 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 pur
chaser." I t is not altogether unworthy of remark that it is ex
pressly 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.

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553

himself, and to deny the agency. I think that would be an

attempt to make the Statute of Frauds an instrument of fraud;
therefore I agree with the judgment of the Vice-Chancellor, and
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 perform
ance 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;
(1) 4 East, 577, n.

Vciw IV.

2 Y

Mr. A. Watson.

L. J j .
1869
HEARD
PlLLEY.