1855. HONEYMAN v. MARRYAT. your client, that unless the agreement is completed and deposit paid on or before Tuesday next (a), at one o'clock p. m., for which purpose he will attend here on that day and time, he shall consider the treaty at an end." On the 23rd of April, the Plaintiff's solicitor in answer stated, that as his client had left town it would be impossible to complete on the next day, as suggested, and asking to put off the appointment. The Defendant's solicitor, on the 25th of April, wrote to the Plaintiff's solicitor as follows:-" I am instructed by Mr. Marryat to give you notice, that he will attend here to-morrow (b), at one o'clock, when, on payment of the sum of 1,500l., he will be prepared to enter into a contract for sale of this property, and that if your client does not pay the deposit and enter into a contract for the purchase at that time, he will consider the treaty at an end." The Plaintiff's solicitor, in a letter to the Defendant's solicitor, on the 26th of April, stated, "Before this agreement is signed, there is a question to be settled as to the amount of the deposit, and on which I must first take my client's views." On the same day (26th of April), the Defendant's solicitor wrote as follows:-" Mr. Marryat declines to enter into a contract for the sale of the property without payment of a deposit of 1,500l. In consequence of your letter, Mr. Marryat has appointed to call here to-morrow (c), on his return from the city, at 3.30; and unless your client, or some person on his behalf duly authorized, meets him here, at that time, (a) The 24th of April. (b) The 26th. (c) 27th of April. time, and pays the deposit and signs the contract, Mr. Marryat will instruct Messrs. Snell & Co. to proceed to the sale of the property." Before sending 1855. HONEYMAN V. this letter, the Defendant's solicitor received a letter MARRYAT. from the Plaintiff's solicitor, offering to pay the deposit of 1,500l. any day after Wednesday next (a), whereupon the Defendant's solicitor added a postscript to his letter of the 26th, as follows:-" P.S. Since writing the foregoing, I have received your letter of this day. I beg to say that Mr. Marryat will not allow this matter to remain in its present unsettled state until after Wednesday next (a), and that he requires the terms before stated to be carried out." On the same day (26th of April) the Plaintiff's solicitor wrote to say that his client would not be prepared to pay the deposit until next week, and offering to pay the 1,500l. any day after Wednesday next (a), and asking for the engrossment, so that he might, in the meantime, get it executed. The Plaintiff did not pay the deposit of 1,5007. on the 27th of April, but on the following day (28th) his solicitor again wrote and offered to sign the agreement and pay the 1,500l. deposit any time after Wednesday (2nd of May). The Defendant, however, insisted that the treaty was at an end, and declined to renew it. The Plaintiff afterwards (on the 5th of May) tendered the 1,500l., and offered to sign the agreement, but this also was refused, and he filed this bill for specific performance, alleging a contract to the above effect. To this bill the Defendant put in a general demurrer. Mr. Roupell and Mr. Haynes, in support of the demurrer. Mr. VOL. XXI. (a) Viz., after the 2nd of May. C 1855. HONEYMAN บ. MARRYAT. Mr. R. Palmer and Mr. Morris, in support of the bill. Mr. Roupell, in reply. Huddleston v. Briscoe (a); Hyde v. Wrench (b); Ridgway v. Wharton (c), were cited. The question on this demurrer is, whether the Plaintiff is entitled, against the Defendant, to the specific performance of a contract for the sale of a house and grounds at Wimbledon. The contract alleged by the bill consists of certain letters written by the agents of the parties. The first letter was written from the agent of the Plaintiff to the agent of the Defendant, in these terms:-" I yesterday went over this property with a client of mine, and he has instructed me to make you an offer amounting to 25,000l., &c. Should you feel disposed to fall in with his view, on hearing from you to that effect, I will immediately put myself in communication with you as to the purchase." On the following day, the agent of the Defendant wrote this letter:-"We have received your letter of the 3rd instant, which we have communicated to Mr. Marryat, and he has authorized us to accept the offer made on behalf of your client, subject to the terms of a contract being arranged between his solicitor and (a) 11 Ves. 583-591. yourself. (c) 3 De G. M. & G. pp. 677, 693. yourself. Mr. Marryat requires a deposit of from 1,2007. to 1,5007., and the purchase to be completed at Midsummer-day next." There can be no question with respect to the rules upon which this Court acts in these cases, and I am of opinion, that if the words, "subject to the terms of a contract being arranged between his solicitor and yourself," had been omitted from this letter, these two letters would together have formed such a complete and perfect contract as this Court would have enforced. But Mr. Marryat, as he was entitled to do, would not enter into any agreement, except " subject to the terms of a contract being arranged between his and the Plaintiff's solicitor." In my opinion, this is rather a contract to enter into a contract, of which three of the terms were specified, that is to say, the amount of purchase-money, the time when the contract should be completed, and the amount of the deposit, and that the rest of the contract was to be made the subject of future communication between the parties themselves. I do not consider it, as has been argued before me, in the light of a counter proposal, but more properly in the light of a contract to enter into a contract, with respect to which the Defendant submitted to be bound by three of the terms, and, with respect to the remainder of the terms, they are to be settled by future arrangement, and, if they could be agreed on, then the contract was to be a valid contract. On the following day, the solicitor of Defendant sent certain proposals, for the purpose of completing the remainder of the contract, consisting of nine different items, defined in the draft" Memorandum of an Agreement," which purported to be made between the Defendant on one part, and leaving a blank 1855. HONEYMAN V. MARRYAT. 1855. HONEYMAN v. MARRYAT. for the name of the Plaintiff (whose name had not been communicated to the Defendant) on the other. If upon these terms being received by the Plaintiff, he or his agent had written "I agree to and approve of these terms, and I am ready immediately to execute the contract," then, in my opinion, there would have been a binding and complete contract between both parties. But that was not done, and the question here is, whether, until the contract had been completed, and the terms of the contract finally settled between both parties, it was not open to either of them to make a stipulation as to the deposit payable, in addition to and beyond that which had been at first specified. Now if I am right in the view I take of this case, that these two letters constituted a contract, of which some of the terms were fixed and the others remained to be settled, then it follows that the remaining terms of the contract were to be treated exactly in the same view as if that had constituted the first communication between the parties. I apprehend it is quite clear, that if the owner of a property writes to another person and states to him, "I am willing to sell my estate to you for 25,000l.," with certain other specified terms, and the person to whom that communication is addressed writes back in return, "I accept your offer," without more, that binds both parties, and neither party is at liberty to add to or qualify the terms of the contract. But if before the answer is sent the owner says, I omitted something which I consider essential, and I desire that it shall be one of the terms of the contract to be entered into between us, he is at full liberty to do so, and has full power to vary his proposal, at any time until it has been actually accepted; and if this offer is not accepted, but the person |