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part payment, nor anything given in earnest, nor memorandun in writing signed by the defendant or his agent, which are the other alternatives required to comply with that section. (See Farina v. Home, 16 M. & W. 119, 123; Chitty on Contracts, 10th ed., 366.)
49. Contract for building a ship, payment of the price to be by instalments, payable at certain stages in the adtancement of the work, and that the building is to be done under the superintendence of the purchaser's agent. At what period will the property in the ship pass to the buyer ?
The respective instalments will not be paid until the purchaser's agent is satisfied that the respective stages in the advancement of the work have been reached for such instalments to becoine due as stipulated in the contract. When these respective instalments are paid, the effect of each such payment will be to appropriate specifically to the purchaser the ship so in progress, and to vest in him a property in that ship. For instance, on the first instalment being paid, the property in the portion of the ship then finished vests in the intended purchaser, subject to the right of the builder to retain such portion for the purpose of completing the work, and when each material is subsequently added it becomes, as it is added, the property of the purchaser as general owner. It has been also decided that things which had once been fitted to the ship and formed part of her would also pass, even although at the moment they were not actually attached to the ship; but that things which had been merely bought for the ship, though they were intended for it, would not pass. (Chitty on Contracts, 10th ed., 353.)
50. What is the general rule as to conrersion? A testator directs his real estate to be sold, and bequeaths the proceeds to three legatees. In consequence of the death of one of them in the testator's lifetime, he dies intestate as to that share, Who takes it on his death ?
The general rule is well stated by Sir T. Sewell, M.R., in the leading case of Fletcher v. Ashburner (1 Wh. & Tud. I. C. Eq. 896 ; Haynes's Student's Leading Cases, 165), where he says in his judgment : “Nothing is better established than this principle : that money directed to be employed in the purchase of land and land directed to be sold and turned into money are to be considered as that species of property into which they are directed to be con verted ; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise ; and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed, the owner of the fund or the contracting parties may make land money or money land. The cases establish this rule universally."
The above case is one of partial conversion of land into money by will. The lapsed share will devolve upon the heir-at-law, because it is to him the law gives the real estate in the absence of an express disposition by its owner in favour of some one else, and the Court will not construe this will as expressing indirectly an intention to exclude the heir-at-law at all events, but only in the event of the will taking effect over the whole and every part of the real estate (Ackroyd v. Smithson, 1 Wh. & T. L C. Eq. 949; Haynes's Student's L. C., 167). The heir, however, takes it as personal estate. (Smith v. Claxton, 4 Mad. 492; H. A. Smith's Equity, 438.)
51. E.cplain and illustrate the doctrine of conversion. A. grants leases of two houses to B., with options to purchase. A. dies intestate, as to real estate, except as to one house, which he specifically devises to C., by a will made subsequently to the leases. After A.'s death, B. ecercises his option to purchase both houses. What is the effect of this?
The doctrine of conversion is explained and illustrated by the last answer, supra.
For further information, see the leading cases thereon, and notes to those cases contained in Haynes's Student's Leading Cases, 164–172, e.g., Fletcher v. Ashburner (also in 1 Wh. & Tud. L. C. Eq. 896) and Cogan v. Stevens (also in 1 Wh. & Tud. L. C. Eq. 970), besides Ackroyd v. Smithson, supra.
There are two classes of cases which are exceptions to the rules upon this doctrine of conversion as usually enunciated. They are
(1) sale under the order of a competent Court, of real estate, which order effects an absolute conversion according to the modern cases until the order is reversed, and (2) leases where an option is given to the lessee only thereunder to declare an option to purchase the freehold reversion at any fixed or unlimited time as mentioned in the lease.
The authorities have long ago decided that in a case like the above the purchase money arising out of the specifically devised house will belong to the specific devisee, whilst the purchase money of the other house will belong to the personal representative of A. upon trust for his next of kin. The first house will so pass on account of the presumed intention of the testator by mentioning the house by name to give the devisee the house or its value. The second house will so pass because there is an absolute conversion of the land after the option is shown into money, and there is no will to show the testator's intention to be contrary to what the law provides for the disposal of money. (Snell's Equity, 5th ed., 187, 188.)
52. An ourner of freehold land, which a railway company are entitled to take under their compulsory powers, having received notice to treat, demands a price which the company refuses to pay, and the price is thereupon referred to arbitration under the Lands Clauscs Consolidation Act. Before award the owner dies intestate, and the company shortly afterwards pay the price which he had asked into Court, and take possession. Is the heir at law or the administrator of the deceased owner' entitled to the money so paid into Court ? Give the grounds of your answer.
This is a case relating to conversion by "authority paramount," " 1.e., the Lands Clauses Consolidation Act. The administrator is, in our opinion, entitled to the money so paid into Court, but as there appears to be no authority directly on the point, this opinion must be taken with some qualification by the reader. T'he grounds of our answer are as follows:
The property here has been acquired by the means provided by the Legislature, because the owner refused to consent by contracting for the sale. The means adopted by the company are (1) giving the notice to treat, and as the parties cannot come to terms, (2) arbitration, which latter the company waive their right to, so they (3) pay the purchase money at which the land was offered to them into Court under the Act, and (4) thereupon they take possession. Neither of these things could have been done without the assistance of the Act in the absence of a valid contract between the parties. It is true in Haynes v. Haynes (1 Drewry & Smale, 426), a mere notice to treat followed by the death of the landowner without either contract or the exercise of the compulsory powers of the Act was held insufficient to effect a conversion, but here there was an exercise of the compulsory powers of the Act. (See Haynes's Outlines of Equity, 4th ed., 417.)
53. A testator by his will settles his copyhold estate upon his eldest son A. for life, with remainder in fee to B., his second son, and gives the power of sale during A.'s lifetime to a trustee. A. was not admitted upon the testator's death. The trustee exercises his power of sale, and the purchaser requires that A. should be admitted. Can this be insisted upon ? State the reason for your answer.
If the lord has not exercised his right of seizing the lands quousque, after holding three consecutive customary courts for want of a tenant prior to the completion, the purchaser cannot require A. to be admitted, because the power given to the trustee to sell during A.'s lifetime is an executory interest in the copyholds, such as is very commonly inserted in wills where an immediate sale and only one admission to copyhold lands are desired. The purchaser takes as the nominee of the trustee, who having only such a power and no estate in the lands has no occasion to be admitted, and A. has no occasion to be admitted because the purchaser takes his title direct from the testator's will.
If the lord has seized quousque, then the purchaser could doubtless insist upon A.'s admission, because then the purchaser would technically derive his legal title through a surrender from A., as the trustee has nothing to surrender at law and his equitable interest is defeated by the lord's seizure. (Williams' Real Property, 11th ed., 372, 377).
CUSTOM OF TRADE.
54. In support of his defence a defendant seeks to set up and prove a certain custom or usage of trade. What are the chief essentials to make such custom good and binding in law ?
If there be an invariable, certain, and general usage or custom of any particular trade or place, the law will imply on the part of one who contracts, or employs another to contract for him, upon a matter to which such usage or custom has reference, a promise for the benefit of the other party in conformity with such usage or custom ; provided, that is, there be no express stipulation between them which is inconsistent with such usage. To be binding, however, such usage must be uniform and universal ; but when such invariable usage is proved, it is to be considered as the basis of the contract between the parties; and their respective rights and liabilities are held to be precisely the same as if, without any usage, they had entered into a special agreement to the like effect. But where the usage is one which merely applies to the mode of dealing of a particular house, a party cannot be bound thereby, unless he be shown to have had notice of it. (Chitty on Contracts, 10th ed., 57, 58).
55. A. in June buys of B. 500 tons of iron, to be delivered in about cqual proportions in the following months of September, October and November. The contract is in writing. In August of the same year B. gives A. notice that he does not intend to deliver any iron. In December A. brings an action against B. for nondelivery of the iron. What will be the proper measure of damages ?
The measure of damages is the sum of the differences between the contract and market prices of the like quantity of iron as that which was to be delivered under the contract in September, October and November respectively. (Broun v. Muller, L. R. 7 Ex. 319;