Barnardiston dyer and Pulteney June follow Fenwick v bulman l r Eq in Mr  Pulteney contract with the earl of Essex for the purchase of the manor and  advowson of Wrington in the county of Somerset for pound soon after Mr  Pulteney be ut into possession of the premise appoint Mr York to be his  steward oh look after the manor and to receive the rend and profit arise from  it in September Mr Pulteney go into somersetshire to view his purchase and  after he have see the same he be uneasy at it this estate be chief let out  upon life and York propose to Mr Pulteney to take the purchase off his hand at  the price he give for it but as York be not in circumstance to pay the  purchasemoney he tell Mr Pulteney that his design be to raise the money by  sell the estate out to the undertenant in small parcel Mr Pulteney declare  that he will not sell part of the estate unless he can sell the whole and  thereupon on the that of march in that same year Mr Pulteney and York come to  a agreement relate to this estate which agreement be to the effect follow a  agreement enter into between William Pulteney Esq and Mr James York for the  sale of the manor of Wrington and Ubley with the their appurtenance in the  county of Somerset to James York it be agree that Mr York shall pay to Mr  Pulteney pound for the purchase within two year to be compute from ladyday  next together with interest for the same in the mean time after the rate of  per cent per Ann and that he shall pay such further sum or sum of money as  shall be the value of any life or life that shall happen to die if any before  ladyday next or which be now dead but mention in the particular hereunto to be  live together with interest for the same from the time and at the rate  aforesaid and that he shall pay part of the purchasemoney Barnardiston on or  before midsummer next and the remainder of the purchasemoney at such time and  in such manner as he shall think fit so that the time do not exceed the two  year and the sum not less than at one time upon the performance of the  agreement on the part of Mr York Mr Pulteney agree that Mr York shall have to  his own use and benefit the manor of Wrington and Ubley with their  appurtenance and all the rend and profit thereof which have be due since Mr  Putneys purchase thereof from the earl of Essex or shall hereafter grow due  except the sum of pound S d already pay or account for by James York to Mr  Pulteney and that Mr Pulteney shall and will at any time or time execute such  lease and conveyance for fill up life upon any particular part of the manor of  Wrington and for convey the inheritance thereof as Mr York shall desire he pay  the charge thereof and likewise pay the fine and purchasemoney for such  particular part thereof to Mr Pulteney in part and on account of the original  purchasemoney of pound such particular sum not to sink the interest of the  original purchasemoney unless the sum so pay shall amount to and when the  whole purchasemoney and interest shall be pay Mr Pulteney shall and will upon  the request and at the charge of James York execute proper conveyance for  convey the feesimple and in heritance of the manor LdPremisses or of such of  they as shall remain then undisposed of to James York his heir and assign or  to such other person or person as he or they shall direct and appoint York be  not able to raise the pound accord to his contract and thereupon in a bill be  bring against he by Mr Pulteney in order to compel the performance of it and  thereupon York by the assistance of his friend procure the raise of pound and  that sum of money be pay to Mr Pulteney in York summon the tenant of the manor  of Barnardiston Wrington to attend he and show they a Copy of the contract  make by he with Mr Pulteney the original be in Mr pulteney hand and tell they  at what price they may purchase the fee of their respective estate to which  the plaintiff dyer and great part of the tenant agree the plaintiff accord  enter into a agreement with York for the purchase of part of the land in  Wrington which the plaintiff occupation which agreement be to the effect  follow videlicet be in the manor of Wrington october then contract and agree  with dyer for and on behalf of Mr Pulteney by virtue of a agreement make and  conclude by York with he date the that of march that in consideration of pound  to be pay on the execute the deed of purchase or from that time at pound per  cent Barnardiston er p for the same with good security then to be give for the  same Mr Pulteney shall and will at the same time grant and convey to dyer and  his heir by such conveyance as dyer counsel shall advice clear of all  encumbrance the reversion in fee of the several estate mention in the bill  after the death of the life on the several estate with all rend custom and  service due and Payable for the premise and it be a reed that Mr Pulteney  shall be at the charge of make a good Title in fee of the premise to dyer and  his heir clear of encumbrance and that dyer shall only be at the charge of the  lease and release to he but in this contract there be a proviso that if the  tenant of the manor or any other person shall not purchase or agree for three  four part of the manor then the contract to be void the total m of the whole  purchasemoney which dyer and the rest of the tenant have agree to give for  their estate do not quite come up to the three four of the pound  beforementioned but want pound of that sum Davis who be a counsel live in the  neighbourhood be employ by York and likewise by dyer and the several tenant  that have make contract Barnardiston for this estate to peruse the Title and  settle the conveyance in order to this the first step think proper to be take  be that Mr Pulteney shall send down a abstract of his Title for davis perusal  and such abstract be send down accord after the abstract be send down a  draught of a conveyance be make it be make by Blythman who be solicitor for Mr  Pulteney and send down to Davis and this draught be intend to suit not only  the contract that York have make with dyer but to suit the several other  contract that York have make with the rest of the tenant in this draught as  settle by Blythman there be blank leave for the name of the person that be to  be party to the deed it be draw as a conveyance from Pulteney to the  contractor it be say to have be in pursuance and part performance of the  original contract between Mr Pulteney and York with the consent and  approbation of York and in this draught a covenant be insert whereby York  agree that the premise be free from all encumbrance make by he a short time  before this draught be make namely in the beginning of April Watson who be a  agent likewise for Mr Pulteney writ down to York wherein he tell he that Mr  Blythman have think it necessary to settle the draught in the manner that have  be mention the that of the same month he write another letter to York wherein  he tell he that Mr Pulteney approve of the draught as Blythman have settle it  and tell he far that Mr Pulteney intend that Mr Watson shall receive the  purchasemoney of dyer and the rest of the contractor unless Davis will think  proper to receive it but notwithstanding this letter in the may follow dyer  pay all part of his purchasemoney to York and the that of August follow  Blythman writ a letter to York wherein he tell he that Mr Pulteney be Willing  to convey to the purchaser when this draught be send down to Davis Davis make  the follow alteration in it by insert the name of Blythman and Watson in one  of the blank for the name of the party to the indenture and by strike out all  that Barnardiston part of it which relate to York so that he will have have it  only as a immediate conveyance from Mr Pulteney to dyer and the same to the  rest of the contractor without mention York at all Mr Pulteney refuse to agree  to sign the draught as Davis have alter it after this Mr Pulteney be about to  set out for a journey to spam for the recovery of his health and a short time  before he go he make a conveyance of this estate to Watson as a trustee for he  and thereby empower he to convey the whole or in parcel to the several  contractor while Mr Pulteney be go to spam York make a assignment of his  contract with Mr Pulteney to two relation of his name York he afterward die  and make his wife his executrix Mr Pulteney return from spam and upon his  return declare that nothing far shall be do in this matter upon this most of  the contractor relinquish their contract but dyer insist that his shall be  carry into execution and thereupon Ve bring the present bill against Mr  Pulteney against the two York who be assignee of the contract make by Mr  Pulteney with James York and against the administratrix of James York in order  to have a specific performance of this agreement or at least a personal decree  against the administratrix Mr Floyd argue as counsel for the plaintiff and for  authority cite vern Lord chancellor say that the proposal make by York to Mr  Pulteney in the present Barnardiston er p case be that he will sell the estate  in parcel but that Mr Pulteney refuse to do and declare that he will not sell  the estate at all unless he can sell the whole and thereupon Mr Pulteney and  York enter into the agreement which have be mention after this agreement enter  into York take several step in order to carry it into execution and one of  those step be the contract which he enter into with dyer and at the same time  York enter into several other contract with other tenant of this manor as  these Barnardiston contract be enter into Mr Pulteney be then apply to in  order to complete they for this purpose it be desire of he that he will send  down to Mr Davis a abstract of his Title which he accordinaly do a draught  likewise be prepare by Blythman who be Mr pulteney solicito the draught be  send to Davis and alter by he but Mr Pulteney never agree to those alteration  that be make in the deed and now the present bill be bring by dyer in order to  compel Mr Pulteney specifical to perform his agreement and at least to have  from he the pound which be pay to York in may and if no decree can he have  against Mr Pulteney the bill pray that a personal decree by way of  satisfaction for not perform the contract with the plaintiff may he have  against the administratrix of York and likewise that she may account for the  pound his lordship say that in order to determine the present question three  matter be proper to be consider first whether Mr Pulteney ever give a  authority to York to make these contract with dyer or any other of the  undertenant for and on the behalf of Mr Pulteney and second suppose he do not  as York have a interest under the article which Mr Pulteney enter into with he  and as dyer have a interest under the article which be enter into between he  and York whether he be not entitle to stand in the place of York and compel Mr  Pulteney to perform the agreement which he enter into in the same manner as  York himself can and in the last place whether dyer be not entitle to have a  personal decree against the administratrix of York by way of satisfaction for  performance of the contract which he and York enter into the first of these  matter divide it self into two in the first place whether by the act precedent  to the act between dyer and York it appear that York have a authority to act  as agent for Mr Pulteney and on his Barnardiston behalf and second suppose he  have not whether by the subsequent act which Mr Pulteney or his agent be a  party to there have not be so far a confirmation of the contract which dyer  and York engage in that dyer will be entitle to compel Mr Pulteney specifical  to perform his agreement with regard to the first of these inquiry it must be  determine by the article which be enter into between Mr Pulteney and York and  it be necessary therefore to consider the term of that article by that article  York be to become the purchaser of the estate conditional indeed provide that  he pay pound part of the purchasemoney by midsummer and the rest of the  purchasemoney within two year from the time of the contract but even that  remainder of the purchasemoney be not to be pay in less sum than at a time  there be not one word in this contract that give the least intimation that  York be to act as agent for Mr Pulteney and it clear appear that as between Mr  Pulteney and he he be to become the purchaser so far indeed be true that it be  not intend that he be to continue proprietor of the estate because it be  necessary for he to sell the estate out again in small parcel in order to  raise the sum of money which he have agree to pay Mr Pulteney but that  circumstance make no difference it have be say by the counsel for the  plaintiff that there be a clause in this article by which Mr Pulteney agree to  execute conveyance of the estate to the several party that shall become  contractor and from thence a argument have be draw that York be mere a agent  and true indeed it be that there be such a clause in the article but be that  conclusion to be draw from it it will overthrow the intention of it and the  consequence of this be that be it not for the fact that have happen subsequent  to this contract there be no pretence to say that dyer can come against Mr  Pulteney upon a supposition that Mr Pulteney contract with he by the Agency of  York and therefore it will be proper to be consider whether the transaction  which Barnardiston Mr Pulteney or his agent be a party to subsequent to the  contract between dyer and York will make any difference in the present case  and whether by those act Mr Pulteney have confirm that agreement this will a  good deal depend upon the fact themselves and the letter that be writ and in  the first place it be proper to take notice that there have be no Act do by Mr  Pulteney or any of his agent to confirm this Barnardiston er p contract in  particular which dyer and York engage in but all those act relate to every one  of those contract equal now as to the fact one that have be rely upon be that  Mr Pulteney be acquaint that in the contract between York and the tenant it be  specify that York contract with they for and on the behalf of Mr Pulteney but  then it appear by the proof that Mr Pulteney declare over and over that York  have no authority to undertake for he nor will the letter that have be writ  affect Mr Pulteney in the present case with regard to the first of they it be  indeed say that Mr Blythman can think of no other way than by make the  conveyance from Mr Pulteney to the contractor by the approbation of York but  no argument can be draw from thence to show that in equity he be not consider  the purchaser of that estate by the original contract he have not indeed the  legal Title and that be the reason for intend to make the conveyance from Mr  Pulteney to the contractor but then Mr Pulteney be to convey with the consent  and approbation of York which show that York be consider not as a agent for Mr  Pulteney in this matter and this give a answer to the objection arise from the  first letter nor can a objection of weight arise from the second letter that  indeed do direct Mr dyer and the rest of the contractor to pay the  purchasemoney to Mr Pulteney but that be no more than what York have agree to  by the original contract and with regard to the three letter no great  objection arise from that than arise from the first the next thing proper to  be consider will be the draught of the conveyance that be make in Barnardiston  the present case and with regard to that it will be proper to consider it in  two light one as it be settle by blithman the other as it be alter by Davis as  this draught be settle by Blythman it be extreme clear that York be not bare  consider as a agent in this transaction the conveyance as have be before say  be to have be make by Mr Pulteney to the contractor with the consent and  approbation of York it be say to have be in pursuance and part performance of  the original contract between Mr Pulteney and York and beside York be even to  covenant that the estate be free from encumbrance make by he which clause  manifest speak that York be consider more than a agent but as Davis alter this  bring the case will have be quite different provide Mr Pulteney have agree to  the alteration which Davis make in this draught for he strike out all part of  it that relate to York but then Mr Pulteney refuse to agree to the draught as  thus it be alter to consider then the other fact subsequent to the original  contract that have be make use of as argument in the present case to show that  Mr Pulteney have confirm what York have do one of those fact insist on have be  Mr pulteney send down a abstract of his Title but he can do no less than that  and therefore no inference of this kind can be draw from that nor can any  conclusion of this sort be make from Mr pulteney bring his bill against York  for a performance of his contract that bill indeed he bring subsequent to the  time that the pound ought to have be pay and so far a inference may be draw  from the bring that bill subsequent to that time that MrPulteney do thereby  dispense with the circumstance of the not be pay on the day as it ought Bit as  Mr Pulteney by that bill insist that York shall perform his contract with he  by pay the h it be impossible to imagine that Mr Pulteney have dispense with  the pay the pound at all and that he by his bring the bill shall confirm what  York have do without have that sum of money Barnardiston pay he the bring that  bill import the direct contrary and show that Mr Pulteney insist that the  pound shall be pay he whereas a very small part of that sum have be pay even  to this day another argument that have be make use of upon this part of the  case by the plaintiff counsel have be the conveyance that Mr Pulteney make to  Watson and it have be say that by that conveyance he empower Watson to convey  this estate in the whole or in parcel and from thence a argument have be urge  that Mr Pulteney have change his design which he have at first of sell the  whole of this estate or else not dispose of any part of it but no such  conclusion can be draw from the transaction with Watson Mr Pulteney by his  original contract be bind to convey to the several purchaser that shall be  find for this estate and as he be go to spam there be a necessity for his make  a conveyance of this sort to a trustee in order to inable he to do the same  thing which air Pulteney himself will have be bind to have do thus much may be  proper to be say in order to give a particular answer to the several fact in  the present case from whence argument have be draw to show that those fact  Barnardiston er p amount to a absolute confirmation of the contract which York  have engage in but one observation may be make upon all of they namely that  suppose those act be of a doubtful nature whether they amount to a  confirmation or no the proper construction to be put upon such act be to  endeavour to construe they to be consistent with the original write agreement  of the party and not that they shall vary from it his lordship say he will now  consider the second question in the present case namely that suppose the  plaintiff be not entitle in his own right to compel Mr Pulteney to perform  this contract with he yet whether he be not entitle to do so as stand in the  place of York but his lordship opinion be that he be not do indeed the  plaintiff submit to stand in the place of York in the whole of the agreement  that York enter into with Barnardiston Mr Pulteney the plaintiff will be  entitle to stand in the place of York for the purpose that have be mention  provide the term of the contract between the plaintiff and York have be  perform but that the plaintiff by no mean submit to do and as he do not he can  have this privilege nor be even the term of the contract perform which the  plaintiff enter into with York for it be a express condition of that contract  that purchaser shall be find for three four of the value of this estate  whereas the money which the several purchase come to do not amount by pound to  the three four even of the value of the estate as it be fix upon between Mr  Pulteney and York and beside accord to the term of that contract between the  plaintiff and York the three four be to be compute accord to the real value of  the estate and it be prove that the estate be worth much more than that sum  and as his lordship be of this opinion that the plaintiff be no way entitle to  have a decree for a specific performance of the agreement as against Mr  Pulteney so he be of opinion likewise that as against he he can have no relief  for the pound that he pay but with regard to this last matter the plaintiff be  entitle to a personal decree out of asset against the administratrix of York  and so his lordship be please to decree accord