January 21, 1899.
THE ESTATES GAZETTE
94
What was the mandate? What was the implied term in the mandate as to giving up possession? Was it true to say that the defendant need not give up possession until, say, the Greek kalends, or was there an implied term that if the plaintiff found a purchaser the defendant would give up possession within a reasonable time ? The question had only to be stated to see what the answer must be. Clearly there was an implied term that the defendant would give up possession within a reasonable time. The defendant refused to give up possession until the end of the London season. The learned judge left it to the jury to say whether March 15 was a reasonable time for givin״ up possession, and the jury found it was. Upon further consideration the learned judge held that there was the implied term mentioned above. The question as to what was a reasonable time for giving possession must be for the jury, and the learned judge was quite right in the view which he took. The judgment must, therefore, be affirmed.
Lord Justice Chitty agreed. The question was, What were the terms upon which the plaintiff was employed by the defendant? The defendant was in occupation of the house which he proposed to sell. The plaintiff found Mrs. Singleton, who agreed to the defendant’s terms that the price should be £4,000, and that the fixtures should be taken at a valuation. It seemed to his Lordship that there was an implied term of the eir 1oyment that possession, which was under the control of the defendant, would be given within a reasonable time. The question as to what was a reasonable time was for the jury. The negotiations with Mrs. Singleton were broken off for one reason only —namely, because the defendant insisted upon imposing upon Mrs. Singleton a term which, as between the plaintiff and the defendant, was inconsistent with the terms of the original employment. The defendant’s contention came to this, that he could say as against the plaintiff that he would only give up possession when he thought fit to do so.
Lord Justice Collins concurred.
The appeal was dismissed, with costs.
QUEEN’S BENCH DIVISION.
January 17.
(Before Mr. Justice Darling and a Common Jury.)
SALE OP A PUBLIC-HOUSE.
PARKES v. WILLIAMS.
This was a dispute between public-house brokers as to a commission of £100 upon the sale of the Paulet Arms, Paulet-road, Brixton. The plaintiff claimed ■the commission or a share of it, and in the alternative he claimed as upon a “quantum meruit.”
Mr. Shepherd Little was for the plaintiff; and Mr. Cecil Chapman and Mr. Clay for the defendant.
Mr. Little, in opening the case, said that if the real question in dispute was as to what the amount was which was to be paid to the plaintiff, he was quite ready on the part of the plaintiff to come to some arrangement, but he thought that he could show that the defendant had employed the plaintiff to find a purchaser for the house, that he did find a purchaser, and that the defendant had acknowledged that he had done so. On May 10 the defendant wrote a letter to the plaintiff, in which he said that in the event of his selling any of the public-houses, particulars of which had been sent him, he agreed and undertook to divide with him such commission as he might make, and which should be payable upon such transaction. On September 13 the plaintiff’s managing clerk saw the defendant, who gave him the particulars of the Paulet Arms, and the managing clerk afterwards gave Mr. Morrell a card to view the house, and that gentleman afterwards bought the house for £7,000. The defendant in this case afterwards sued for commission upon that sale, and recovered a verdict for £100 and costs, and the defendant now claimed in reference to this commission.
A long discussion took place as to what the claim of the plaintiff should be limited to, and as to what was the meaning of the expression in the defendant’s letter, as to dividing such commission as he should make. A further question was whether the plaintiff was entitled to recover in this action, he having commenced it before the present defendant had received his commission upon the sale of the house. There was also a discussion as to what costs the plaintiff should have in the event of his recovering.
Mr. Chapman said that £31 2s. 6d. was the amount, which would form one-third of what the defendant had received, after making some deduction for costs.
Mr. Little said he would be content to take County Court costs upon this amount.
Mr. Justice Darling: How much would they be?
Mr. Little believed about £20.
Mr. Chapman was told that the amount would be about £25,
COMMISSION CASES.
COURT OE APPEAL.
January 13 and 14.
(Before Lord Justice A. L. Smith, Lord Justice Chitty, and Lord Justice Collins.)
A BEADY AND ■WILLING PUBCHASEE: SEASONABLE TIME POE POSSESSION.
NOSOTTI V. AUERBACH.
This was an application by the defendant for judgment in his favour or a new trial in an action tried before Mr. Justice Bruce and a special jury on November 16 (Estates Gazette, November 19), and brought by the plaintiff, Mr. C. E. Nosotti, who carries on business in Sloane-street, S.W., as Nosotti and Co., house and estate agents, against Mr. Julius Auerbach, the defendant, to recover £125 commission alleged to have been earned by the plaintiff as a house agent upon the sale of the lease of 35, Sloane-gardens, S.W. (part of the new Cadogan Estate), or, alternatively, damages for preventing the plaintiff from earning the commission. In November, 1897, Mrs. Auerbach, acting on behalf of her husband, the defendant, instructed the plaintiff to find a purchaser of the defendant’s interest in the lease of 35, Sloane-gardens, for £4,000, the defendant being in occupation, but intending at that time to go abroad. The lease had about 80 years unexpired, and was subject to a ground rent of £28 per annum. Nothing was said about the time of taking possession, but commission was to be paid on the usual terms. In January, 1898, a Mrs. Singleton called upon the plaintiff and offered £3,850. The plaintiff communicated this offer to the defendant, who refused to take less than £4,000, and said that in addition the fixtures must be taken at a valuation. Mrs. Singleton agreed to these terms, and she required to have possession not later than March 15. The defendant, however, who had afterwards determined not to go abroad, said that he could not give up possession in March, but would give up possession at the end of the London season. Mrs. Singleton declined this proposal, and the purchase went off. The plaintiff thereupon brought this action. The jury found that the defendant employed the plaintiff to sell the lease upon the terms of his giving possession within a reasonable time of the plaintiff finding a purchaser, and that March 15 was a reasonable time. The learned Judge, upon further consideration, gave judgment for the plaintiff upon the ground that there was an implied term in the contract of employment that the defendant would give up possession in a reasonable time.
Mr. Rufus Isaacs, Q.O., and Mr. Cagney, for the defendant, argued that the employment of an agent was to find someone, in the first instance, who would agree to the main heads, such as the purchase price, etc., and then the vendor would negotiate about the rest of the terms; if he had not found a purchaser to agree to the reasonable terms of the negotiations the agent had no right to commission. Counsel also contended that when a person employed an agent to find a purchaser of a long lease of a house of which he was in possession he made no implied promise to go out of possession within a reasonable time. The purchaser might want the lease as an investment, and the vendor might desire to remain in possession as tenant to the purchaser. It was not, therefore, through the defendant’s default that no contract to purchase the lease was effected, and as no contract was brought about by the introduction the right to commission did not arise. They referred to “ Grogan and Boyd v. Smith.” They also contended That there was misdirection on the part of the learned judge, and that the jury were wrong in finding that March 15 was a reasonable time within which to give up possession.
Mr. Witt, Q.C., and Mr. C. J. Peile (instructed by Mr. J. Anscott Bartrum, Old Jewry, E.C.), for the plaintiff, were not called upon.
The Court dismissed the appeal.
Lord Justice A. L. Smith said that there was no misdirection, and he should have come to the same conclusion as the jury, that March 15 was a reasonable time to give up possession. As regards the main question, he based his judgment upon the facts of this case. The defendant was in occupation of the house, and being desirous of selling his leasehold interest in it he put it on the plaintiff’s books, asking the plaintiff to find a purchaser who would be ready and willing to give him £4,000 for it. Nothing was said about the time of giving possession. Mrs. Singleton offered to give £3,850, and the plaintiff communicated this offer to the defendant, who refused to take less than £4,000, and said that the fixtures must be taken at a valuation. Mrs. Singleton agreed to those terms. The question was, Had the plaintiff found a purchaser ready and willing to buy the defendant’s leasehold interest in the house according to the mandate given by the defendant to the plaintiff ? That raised the question,
and Mr. Wolfe was obliged to find new premises, and the only place open to him was half a mile away, the rent being £55 a year, or £20 more than his old rent. The main item in the claim was for £900 for the loss of goodwill consequent on the removal. His turnover was estimated at £2,000 a year. He also claimed for 4¿ years’ extra rent and taxes, and for expenses connected with the removal.
The claimant having given evidence in support of counsel’s statement,
Mr. I. Senior, accountant, gave the results of his examination of the plaintiff’s books.
Mr. J. Mosley, estate agent, estimated that it would take claimant years to recover from the effects of his enforced removal. His total loss he assessed at £982 11s.
No evidence was submitted on behalf of the Corporation.
Addressing the Umpire, Mr. Compston said it had been suggested that there was some “ doctoring ” of the accounts, and also that his client took the North-street property because he knew the Corporation wanted it. Both these suggestions were absolutely unproved, and fell to the ground.
Mr. Bairstow, in reply, considered that the case raised by the claimant had not involved the necessity of calling evidence for the Corporation. Months before Mr. Wolfe took the property in North-street it had been scheduled by the Corporation. The business was not one in any sense attached to the premises, and claimant did not necessarily suffer from the removal. Taking the claimant’s own figures, and debiting the business with fair charges, it was not a paying business. And yet Mr. Wolfe’s first claim against the Corporation, made out without advice, was for £1,511 6s. He submitted that the only thing that could be claimed for was the incidental cost of removal.
The award was reserved.
STREET IMPROVEMENTS AT BRISTOL.
IMPOETANT CLAIM AGAINST THE OOBPOEATION
Mr. Robert Vigers, P.S.I. (Messrs. Vigers and.Co., 4, Frederick’s-place, Old Jewry, E.C.), has been engaged for several days in holding an enquiry as sole Arbitrator in respect of the acquisition of a portion of the Dean-lane Colliery, Bristol, by the municipal authority for the purposes of street improvements.
The case was conducted, on behalf of the claimant, by Mr. G. M. Freeman, Q.C., with whom was Mr. Holman Gregory; and, on behalf of the Bristol Corporation, by the Hon. Alfred Lyttelton.
It appears that the colliery is held under a lease having 21 years to run, and the rent payable to the owner is £248 5s. per annum. There is in addition to that a royalty of 6d. per ton on all coal raised. Notice to treat was served by the Corporation in October, 1897, and the frontage required was 424ft., but in addition to the taking of the land there was interference with buildings thereon, and this was taken into consideration in preparing the claim, which amounted to between £13,000 and £14,000.
The expert witnesses examined were, for the claimant, Messrs. Williams, surveyor and architect, Bristol; Edward Dawson, M.I.C.E., Windsor-place, Cardiff; Wm. Morgan, mining engineer (Messrs. Morgan, of Bristol and London) ; Charles Altenheim, C.E. (Messrs. Cox and Co., Sheffield) ; Thomas E. Danks, manufacturer of machinery, Netherton; Barratt, quantity surveyor, Bristol; Barrow, C.E. ; J. R. Bennett, senior partner in the Bedminster Coal Company; A. L. Ryde, F.S.I. (Messrs. Ed. Ryde and Son, Great George-street, S.W.); John Batey, mining engineer, Bath, and engineer and general manager of the Newbury Collieries; C. A. Hayes, builder and contractor, Bristol; T. Forster Brown, M.I.C.E. (Messrs. Forster Brown and Rees). For the Corporation: Messrs. John Roberts, civil and mining engineer, Swansea ; Richard Fenwick, chimney builder and contractor, Birmingham ; W. J. Rees, F.S.I., Swansea, agent to Sir John Dilwyn ; Peter Addie, F.S.I., Bristol.
SATURDAY HALF-HOLIDAY.
To the Editor of the ESTATES GAZETTE.
Sir,—We thoroughly uphold the suggestion made by Mr. Trollope to close at one o’clock on Saturday, and shall immediately put the arrangement into effect, on finding our neighbours concur.
Tours, etc.,
ARTHUR ALDRIDGE and CO.
79, Park-street, Grosvenor-square, W.
Auctioneers and Estate Agents desiring to secure Partners, Purchase a Business, or engage Professional Assistance, should consult the “Wanted” Advertisements in the centre of the Paper.
®ompmsatimt	Caш.
THE TOWER BRIDGE IMPROVEMENTS.
APPLICATION TO SET ASIDE AWABD.
In the Queen’s Bench Division, before Justices Day and Lawrance, on January 13 and 14, was heard the case of “The Queen v. West (Ex parte London County Council).”
In this case a rule had been obtained by the London County Council calling upon Mr. Henry West to show cause why a writ of certiorari should not issue removing into the Court a certain inquisition, verdict, and judgment with the object of setting the verdict and judgment aside.
Mr. Cripps, Q.C., and Mr. E, Morten appeared in support of the rule; while Sir R. Reid, Q.C., M.P., Mr. Wheeler, Q.C., and Mr. Rylands (instructed by Mr. H. I. Coburn, 54, Leadenhall-street, E.C.) opposed it.
It appeared that the London County Council required certain property belonging to Mr. West for the purpose of carrying out improvements at the northern approach to the Tower Bridge, which had been authorised by a private Act. They gave Mr. West notice to treat, and eventually the question of compensation came before the Under-Sheriff and a jury, who awarded £11,026 for the three houses and piece of vacant land which the County Council required. The case was reported in the Estates Gazette of July 2, the expert witnesses being Mr. H. E. Foster, F.S.I. (Messrs. Foster and Cranfield, 6, Poultry, E.C.); Mr. Edward Tewson, F.S.I. (Messrs. Debenham, Tewson and Co.,) ; and Sir John Whittaker Ellis, F.S.I. (Messrs. Farebrother, Ellis and Co.), for the claimant; and Mr. E. Holroyd Bousfield (Messrs. Edwin Fox and Bousfield) ; Mr. G. A. Wilkinson, F.S.I., of 7, Poultry, E.C. ; Mr. S. Walker, F.S.I., 22, Moorgate-street, E.C. ; and Mr. Walter Barnett, valuer, of Winchester House, for the London County Council. The County Council now asked that the award should be set aside on the ground of excess of jurisdiction on the part of the Under-Sheriff, he having refused to direct the jury to exclude from their consideration the operation of the Act under which the improvements were to be made, and invited them to take into consideration all the circumstances which existed at the date of the notice to treat, including the knowledge that the Act authorised a new approach to the Tower Bridge, in so far as the value of the property at that date would be affected by those circumstances. For Mr. West it was argued that the summing up of the Under-Sheriff did not bear the construction which had been put upon it by the County Council, and that the Under-Sheriff distinctly told the jury that in assessing the amount of compensation they were to pay strict attention to the evidence that had been adduced. Even if the Under-Sheriff had done what was alleged, it was contended that he had been guilty, not of an excess of jurisdiction, but of misdirection, and that in such a case no appeal would lie. In reply, the County Council urged that the Under-Sheriff, in allowing the jury to deal with the property as affected by the works authorised in the Act of Parliament, had exceeded his jurisdiction.
Mr. Justice Day said, having regard to the whole of the summing up, he did not think the Under-Sheriff had exceeded his jurisdiction. Therefore the rule would be discharged with costs.
Mr. Justice Lawrance concurred.
PROPERTY IN LEEDS.
Mr. Wm. Weatherliead, surveyor, of Keighley, sat as Umpire at the Leeds Town Hall, on Monday, in the case of “Wolfe v. Leeds Corporation,” which was the claim of Mr. Zalig Wolfe, pawnbroker, for compensation in respect of the acquirement of his premises for the purposes of street improvements.
Mr. Thos. Winn, F.S.I., Leeds, was arbitrator for the claimant; whilst Mr. Thos. Fawcett, of Leeds, acted in a similar capacity on behalf of the Corporation.
Mr. A. W. Bairstow represented the Corporation ; and Mr. Compston appeared for the claimant. Mr. C. C. Jolliffe (deputy Town Clerk) and Mr. C. Appleton, the chairman of the Property Committee, were also present.
In support of the claim, Mr. Compston remarked that for 12 years Mr. Wolfe carried on business in premises situate in North-street at the top of Lady-lane, opposite to the premises which were the subject of the present inquiry. In July of last year the premises were required by the Corporation, upon which he moved across the road, and for his new tenancy obtained a lease of five years, at an annual rental of £35. Mr. Wolfe did not claim for his previous disturbance ; but he had now been turned out of premises which were even better adapted to his business than the old ones. For some few weeks before he left, the Corporation were engaged on adjoining premises, and laid bare a gable end, which damaged some of his goods. Qn September 27 notice to treat was served,