person to whom it is addressed refuses the contract, the matter is then at an end, and it is no longer in his power to accept the offer at a later period, if he should be disposed to do so, for the treaty is then at an end. What afterwards occurred in the present case is this:-The draft agreement was sent on the 5th of April; a considerable time elapsed before any steps took place, and very little that is material passed in the interval before we get to the 21st of April, further than this: that the solicitor of the Defendant complains of the delay, and states that he cannot allow the matter to stand open. On the 21st of April, the Defendant's solicitor writes a letter to the Plaintiff's solicitor, complaining of the delay which had taken place in settling the agreement, and informing him that unless the agreement is completed and deposit paid on or before Tuesday next, Mr. Marryat will consider the treaty at an end. The 21st of April was a Saturday, and the day fixed, being the Tuesday, was consequently the 24th of April. Now I consider this analogous to the introduction of a new term into the contract. It is saying, "I require the deposit to be paid on or before a particular day." The Defendant was undoubtedly at liberty, in my opinion, to make that a term of the original contract, nor can I see any difference between the making that a term of the original proposal and introducing it subsequently. The contract which he suggests and proposes is an offer to this effect:-I am willing to sell my estate to you for 25,000l. on your paying a deposit of 1,500l. [His Honor here recapitulated shortly the special terms in the draft agreement.] All these are various terms of the contract which he suggested, and if he had added to those, "the deposit must be paid on or before the 24th 1855. HONEYMAN v. MARRYAT. 1855. HONEYMAN v. MARRYAT. 24th of April," that would have been as perfectly good and valid as any one of the other terms specified in the draft contract. If any one of those terms had been omitted from the first proposal, he might, in my opinion, have afterwards introduced them, at any time before the Plaintiff had given an unqualified acceptance of the terms of the original proposal. Suppose, for instance, there had been omitted from the contract a stipulation that the purchaser should not inquire into the identity or title of a little patch of copyhold land, consisting of a rood or two roods in the middle of the property, and before the offer had been accepted by the Plaintiff, the Defendant had said, he had omitted, either from forgetfulness or otherwise, to include in the terms of the contract this stipulation:-that you should not inquire into the title or identity of that bit of land; I apprehend it would have been perfectly open to him to do so, and that the Plaintiff, who would have been at full liberty to have accepted the original offer before, was bound, after the addition had been made, either to accept the offer with the additional term introduced into it, or to reject it altogether. I consider a stipulation for the payment of the deposit money at a particular time exactly in the same point of view, and that the Defendant was at liberty to introduce it at any time before the offer had been accepted by the Plaintiff. The answer to the letter of the 21st was this:-" I have introduced one or two alterations into the contract for your client's consideration, but it is not possible for us to complete by Tuesday," therefore the time is extended by Mr. Marryat's solicitor to Wednesday (the 25th); and on that day (the 25th) he writes to the Plaintiff's solicitor, "I am instructed by Mr. Marryat to give you notice, that he will attend here to-morrow at one o'clock, when on payment of the sum of 1,500l. he will be prepared to enter into a contract for the sale of 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." There certainly was no concluded contract at that time, for up to that time (the 25th of April) the terms. sent by Mr. Marryat, and which were to be settled between the parties and to form a portion of the contract, had not been agreed to or approved of by the Plaintiff or his solicitor. [His Honor next referred to the subsequent proceedings:—The extension of the time for paying the deposit to the 26th, and afterwards the 27th of April; the counter proposal of the Plaintiff on the 26th to pay it after Wednesday the 2nd of May; the refusal of the Defendant's solicitor to concur therein; the default of payment on the 27th of April, the subsequent declaration of the Defendant's solicitor on the 28th, that he considered the treaty at an end; and the tender and refusal on the 5th of May; and he proceeded.] Now the question really is, whether in that state of circumstances the contract was ever concluded? What I have already stated shews, that in my opinion, it was not, and that it was open to either side, consistently with the terms already agreed upon by the two first letters, to add fresh stipulations to the proposed contract, until the terms proposed by either side had been definitively accepted by the other. Mr. Marryat did propose and insist on a term to be added to the contract, which was not agreed to or accepted, and which it has now become impossible to comply with. If the term had been an unreasonable one, if it had been one that had been manifestly made for preventing the contract being entered into, then a different view of this case might have arisen, which at present, in my opinion, it does not admit of. The aspect of the case would 1855. HONEYMAN v. MARRYAT. 1855. HONEYMAN v. MARRYAT. would then have been changed, and might have been different from what it appears at present. The case is complicated from this circumstance :that the term relates to the time when the deposit money shall be paid, and the Court of Chancery does not, except in very special cases, allow time to be of the essence of the contract (a). But the distinction between this case and the cases which relate to time being of the essence of the contract is this :-that in the latter cases there is a concluded agreement, a contract actually entered into, and then the Court considers it inequitable that, by reason of a slight delay, one party to the contract should not have the benefit of that for which he has contracted. But that is a totally different matter from this-whether a person is not at liberty to make a contract in which time shall be introduced as one of the terms of the contract? I look at it exactly in this point of view, as if Mr. Marryat had said, "I require, as one of the terms of the contract, that the deposit shall be paid on or before the 24th or 25th of April," and the opposite party had said, "I agree to all the terms of the contract except that, for I shall not be able to pay the deposit within that time, I shall not be able to pay it until the 3rd of May." The question is, whether under those circumstances, Mr. Marryat, under the terms of these first two letters, would have been bound to enter into such a contract. I am of opinion that he would not; and whatever might be the effect of such a contract when once entered into, to say that he should not be allowed to insist on such a stipulation forming part of the contract, would be going far beyond any of those cases in which the Court has regarded time as not of the (a) Parkin v. Thorold, 16 Beav. 59. essence essence of the contract. It would go to this extent, that a person might not contract that time should be of the essence of the contract. In my opinion, this agreement was not concluded; this was a term which he chose to have added, which was not an unreasonable term, and was not introduced for the purpose of making it impossible for the other party to enter into the conMy opinion is, therefore, that there was no concluded agreement between both parties, and that this demurrer must be allowed. tract. 1855. HONEYMAN บ. MARRYAT. NOTE. An appeal to the House of Lords is pending. WILSON v. WILSON. UNDER June 7, 8. marriage set By his will he appointed the fund equally amongst his eight children; [NDER his marriage settlement, made in 1825, Under his William Wilson, who had survived his wife, had a tlement, A. B. life interest and a power of appointing a trust fund had a power of appointing a amongst the issue of the marriage. The settlement fund amongst directed, that the trust property should "after the death his children. of the survivor of the intended husband and wife, be paid and made over to the child or children of the marriage, and to the issue of such child or children who should have died leaving issue, in such shares" as Mr. Wilson should appoint, and in default of such appointment, "then the same was to be divided among the capital, partly children equally, the issue of such of them as should until the majority of the have deceased being to draw the shares which would children, and have fallen to their respective parents if living." but he after wards postponed the pay ment of the partly until after the death By or marriage of his last sur viving unmarried daughter, the unmarried daughters being in the meanwhile entitled to the income. The appointment was held valid. |