January 28, 1899.
THE ESTATES GAZETTE
182
Irgal ®Aptrs.
By a Barrister.
[The writer will answer any question relating to real property law, or to the practice of Agents. Auctioneers, and Surveyors, under “ Queries and Eeplies. ׳]
A “contracting out” dispute is very often a delicate one, but we do not think that there can be much doubt of the correctness of the decision of the Court of Appeal in the interesting case of “Newsby v. Eckersly,” which we report in another column. It had been arranged between the parties that the plaintiff on giving up possession of a farm held by him of the defendant should receive from the defendant compensation for certain unexhausted improvements, the amount to be fixed by two valuers who should also go into the question of dilapidations. It ultimately happened, however, that the valuers made no award and did not appoint an umpire, whereupon the plaintiff brought an action to recover compensation according to the original agreement, whilst the defendant counter-claimed for dilapidations, and at the trial at Leeds Assizes a verdict and judgment were entered for the plaintiff.
The point upon which the defendant appealed was that the plaintiff was not entitled to sue him in the High Court for compensation, but ought to have proceeded according to the provisions of the Agricultural Holdings Act of 1883, of which section 57 enacts that “ A tenant shall not be entitled to claim compensation by custom or otherwise than in manner authorised by this Act in respect of any improvement for which he is entitled to compensation under or in pursuance of this Act, but when he is not entitled to compensation under or in pursuance of this Act he may recover compensation under any other Act of Parliament, or any agreement or custom, in the same manner as if this׳ Act had not passed.” This was the section principally relied on by the defendant, but others were mentioned in the course of the arguments, and the question was whether by virtue of them a landlord and his tenant were	prevented	from
making a bargain with one	another
as to the terms on which ■the tenant should go out and the landlord should come in. Could they, in other words, “contract out” of section 57? Lords Justices A. L. Smith, Ohitty and Collins thought that they could, as the section must be	con-
strued to apply to tenants claiming under th s Act which the plaintiff here was not doing, inasmuch as the compensation provided for in the agreement covered matters with regard to which no compensation is provided for in the Act. Said Lord Justice Chitty, “ Section 57 only applies to tenants claiming compensation under the Act”; and added Lord Justice OoDins, “ The plaintiff bases his claim on his bargain, and not on the statute.” Why, in fine, if the legislature had wished to prohibit ׳! contracting out,” did they not say so, as they did in the Ground Game Act?
According to the decision of his Honour the Judge of the Marylebone County Court, the plaintiff in the commission case of “Jones •v. Robinson” had forgotten the old proverb lhat two words are required to a bargain. He was suing to recover from the widow and executrix of a Mr. W. F. Robinson, £20, the alleged agreed commission due to him for introducing a purchaser for 114, Holland Park-avenue. His case was that a Mr. Clatworthy had “ made an offer” of £700 for the premises, which had been accepted. He admitted, however, that Mr. Clatworthy had never become tenant, and that he had received a letter from the late Mr. Robinson, in which that gentleman asked, “ How on earth can I grant a lease when one is already granted ? ”—■an extremely natural question. But again, Mrs. Robinson, though not denying that the Jones-Clatworthy offer had been made, stated emphatically that it had never been accepted—she was quite certain that she would have heard of it if it had been. The maxim we have quoted came in right here. His Honour did not think that■ there was any evidence that the offer had been accepted, and
understand that if he sold the property himself he would have to pay the full commission.
Cross-examined: Bird said that witness did sell the property, as he wrote to Messrs Heelas himself. Defendant did not turn round and say to Mr. Moule (witness’s clerk) that he withdrew, the property in August, 1897. Witness offered to accept £12 10s., under the circumstances, but without prejudice, but told Bird that if he did not pay that sum the original claim would remain good against him.
Mr. Daniel Heelas, a director of the company, and two clerks in Messrs. Cooper’s office, also gave evidence for the plaintiffs, and after a long legal argument,
His Honour, in giving judgment, said that the case was a very interesting one to lawyers, the law affecting the case being very peculiar —extremely strict in one sense and extremely elastic in another. As to commission, the general law might be stated that if property was put in the hands of an agent to sell on commission he would be entitled to that commission if he introduced a properly solvent purchaser. If, however, instead of finding a purchaser, he found somebody who, on his own account, found a purchaser, the agent was not entitled to ■his commission, because he did not find the actual customer. Commission was an exceptional reward, and could only be allowed in cases where certain conditions were fulfilled —it was a risk which the agent took; he went for the chance of a good thing, and if he failed ha failed. He had already pronounced in favour of the plaintiffs on the point that the instructions were not revoked, and he also found distinctly in favour of the plaintiffs on the point that there was no break of continuity, that there was no new departure. But as to the facts, on which the cast must depend; the defendant asked Messrs. Cooper to write to Messrs. Heelas for him, naturally wishing that it should go through an agent, as he was related to .one of the partners, but he was not particular who bought the property provided he got his purchaser. A difficult point, in his judgment, was the inference that supposing Messrs. Heelas purchased they would not have been found by the agents but were really found by Mr. Bird himself. Another point in the case was that the plaintiffs wrote to Messrs. Heelas and Co., who declined. No doubt Mr. D. Heelas and his brother purchased with the view that the company might eventually require the premises, but they did not buy in the name of the company, nor were they authorised by the company, in any way. j That raised another point which might be for- , mulated thus—that the agents never found a purchaser. They applied to Heelas and Co., who did not buy ; they did not apply to Messrs. Heelas, who did buy. These were both difficult points, and he chose the easiest, which was the last, to decide; and he thought that went against the agents. He quite agreed, however, that it was a matter for argument. He really did not know how he should decide the other point if he were pressed. He must, however, decide against the plaintiffs as to the commission. They were certainly employed to write the letter, although he did not know be could say that it ultimately profited the owner in the strict sense of the term. Of course, it was in consequence of that letter to Heelas and Co. that Heelas Brothers became aware that the place was for sale, but still he thought all the plaintiffs were entitled to was the cost of the letters they wrote, and the interviews they held. He gave judgment for plaintiffs for five guineas, the plaintiffs to have costs up to the payment into Court; the subsequent costs being awarded to the defendant.
Horsham Union Revaluation.—The professional revaluation of this entire Union has recently been completed, and all objections before the Assessment Committee heard and disposed of. The Union embraces 15 parishes, and involved 9,447 separate assessments, 76,576 acres of land, 6,287 houses, and the usual railways and other special properties, the whole forming a total gross estimated rental of £210,721. There were about 355 properties affected by the notices of objection served, all of which the committee patiently heard, but (with one small exception) came to the conclusion that no grounds had been shown for interfering with the valuer’s figures.
accrued to them if the alleged agreement of April 16 had been carried out, and the benefit which accrued to them under the substituted agreement, which they said was substituted in consequence of misrepresentation. He thought, therefore, the objection in point of law failed. The matter of fact was much more difficult and much more serious. His Honour then went at length into all the circumstances, and concluded by saying that the case had been an extremely painful one to him, and had given him extreme anxiety. He had been unable to avoid giving pain to one side or the other, but he had done his best to arrive at the right conclusion. There must be a verdict for plaintiffs for the amount claimed, with costs.
Leave was given to appeal.
MARYLEBONE COUNTY COURT.
January 16.
(Before His Honour Judge Stonor.)
NO EVIDENCE OF AGREEMENT.
JONES V. ROBINSON.
Mr. Morton Jones, auctioneer and house and estate agent, of Notting-hill-gate and Praed-street, sought to recover from Mrs. Eleanor Robinson, widow of the late Mr. Walter Frederick Robinson, of 83, Ladbroke-grove, and executrix of his estate, £20 as commission for introducing a purchaser for the premises, 114, Holland Park-avenue.
The plaintiff’s case was that the deceased gentleman instructed him to find a purchaser for the property. As a result of his efforts a Mr. Clatworthy made an offer of £700, which the deceased ultimately accepted. Plaintiff’s commission for introducing a purchaser was settled at £20. Mr. Robinson soon afterwards died, and although Mr. Clatworthy never became tenant of the premises, it was maintained that the commission had been earned by the plaintiff.
In cross-examination the plaintiff admitted receiving a letter from the deceased gentleman m which the expression occurred: “ How on earth can I grant a lease when one is already granted?” Mr. Clatworthy, although he had entered into a contract with Mr. Robinson for the purchase of the property in question, had never seen fit to enforce the contract.
For the defence, Mrs. Eleanor Robinson, the defendant, stated ■that the property in question was purchased half with her money and half with her late husband’s. Mr. Robinson had been in the habit of consulting her when purchasing or disposing of their property, and if he had agreed to sell the property in question, as stated by the plaintiff, she was quite certain that she would have heard of it. Nothing about accepting such an offer had come to her knowledge, although she knew that such an offer had been made.
His Honour found that there was no evidence of an agreement on the part of the deceased gentleman to accept the offer put forward by the plaintiff, and non-suited him, with costs for the defendant.
READING COUNTY COURT.
January 19.
(Before His׳ Honour Judge Lushincton.)
" WHAT IS FINDING A PURCHASER ? ” COOPEtt AND SON V. BIRD.
Messrs. J. Omer Cooper and Son, auctioneers and estate agents, Reading, sued Mr. Bird, cf Prospect-street, Reading, for £25, being commission in respect of the sale of certain premises in Minster-street, Reading, belonging to Mr. Bird. Liability was disputed by Mr. Bird, who had paid £5 into Court, his contention being that the plaintiffs were not instrumental in effecting the sale.
Mr. S. Brain represented the plaintiffs, and Mr. Cranstoun, barrister, appeared for the defendant.
Mr. J. J. Cooper, a member of the firm, said that the commission on the sale of property to the value of £1,000 was 2¿ per cent. Witness saw Mr. Bird in his office several times in relation to the sale of the business. He produced his diary for November, 1896, wherein it was stated that the defendant instructed him to sell the premises in Minster-street, then occupied by Mr. Callow, for £1,200. Witness tried to find a purchaser, but could not do so owing to the condition of the thoroughfare in question at the time, “improvements” being then in progress. He wrote to Messrs. Heelas, Sons and Co., Limited, at the defendant’s suggestion, offering them the freehold of the property for £1,200, but the offer was declined. The order to sell the property was not countermanded, and ultimately witness heard that Messrs. Heelas had purchased the property, in June or _ July last. Witness wrote to Mr. Bird, pointing out that as he introduced the property to Messrs. Heelas, he was entitled to his commission, which, however, defendant declined to pay, on the ground that he did not
COMMISSION CASES.
WESTON-SUPER-MARE COUNTY COURT.
January 16.
(Before His Honour Judge Austin.)
A QUESTION OF FACT.
MASTERS AND MOON V. MARriN.
Messrs. Masters and Moon, auctioneers, Weston-super-Mare, sued Mr. Thomas J. Martin, draper’s valuer, Villa Rosa, The ¡Shrubbery, Weston-super-Mare, for £11 5s., balance ot commission on the sale of defendant’s house at £1,400.
Mr. F. E. Weatherly (instructed by Mr. W. B. Lillmgton) was for plaintiffs; and Mr. V achell (instructed by Messrs. Smith and Sons), defended.
Mr. Weatherly said the point in dispute was as to whether plaintiffs were entitled to 2¿ per cent, commission on the whole of the purchase money of defendant’s house, or 2¿ per cent, up to £500 and only l¿ per cent, beyond that sum. In February, 1898, defendant instructed plaintiffs to let or sell St. Helene, and on April 16 Mr. Moon, having heard of a probaDle purchaser went in the morning to see defendant. He met him in Church-road driving towards town, and defendant expressed his preference for the sale rather than the letting of the property. Moon said, “ Of course, you will pay the usual commission?” and defendant replied in the affirmative. On April 18 defendant called at plaintiff’s offices, and suggested that they should get their client to sign an agreement to lease the house with the option ox purchase. He asked what the commission would be, and Mr. Masters replied, “ 2¿ per cent.” Defendant replied that he had made arrangements with the other agents in the town to accept less commission, and in consequence of this statement plaintiffs agreed to accept 2¿ per cent, up to £o00 and l¿ per cent, for the balance of the purchase money. Plaintiffs got their client to sign the memorandum of agreement, and the same evening Mr. Moon took it to defendant, who signed it and also induced plaintiff to sign a paper agreeing to accept the reduced commission. The purchase was completed some time in August or September, and quite by accident the plaintiffs, in conversation with other agents, found, it tvas alleged, that defendant’s statement was a complete fabrication and, so far from their having made any special arrangements with defendant he had actually received letters from Messrs. Wans-brough and Messrs. Lalonde stating their terms to be 2¿ per cent, commission on the purchase money. Plaintiffs accordingly sent in their bill on ¡September 21 for the 2j per cent, commission on the whole of the purchase money. No notice was taken until October, when defendant called at plaintiffs’ offices, but plaintiffs were out. Correspondence ensued, plaintiffs asserting that they had been tricked into agreeing to take this reduced remuneration. On October 26 defendant presented his cheque for £25 6s. at the plaintiffs’ offices, saying, “ You can take it or leave it.” Plaintiffs placed this amount to the credit of defendant, and now sued for the balance.
Evidence bearing out the opening statement was given.
The defence was a denial in toto of any fraud, defendant asserting that he made no agreement with plaintiff (Moon) on April 16 re paying the usual commission of 2¿ per cent., or that he told the two partners together that the other agents were accepting less, and by this means induced the claimants to do likewise. His version was that the only time the question of commission cropped up was at his house on April 18, when Moon brought the memorandum of agreement signed by the purchaser of St. Helene. Before signing it himself he asked Moon what his commission was to be, and the answer was, “The usual 2¿ per cent.” He replied that he could do better than that, and Moon answered “What are you prepared to give?” He (defendant) said “2¿ per cent, up to £500, and l¿ per cent, beyond that sum.” Plaintiff said, “ I had better take it,” and subsequently signed an agreement to that effect, which he (defendant) prepared.
After hearing a considerable amount of evidence, including that of Mr. J. P. Board, the purchaser of St. Helene, Mr. S. Lalonde, and Mr. S. L. Wansbrough, and the speeches of the learned counsel engaged in the case,
His Honour, in giving judgment, said the sum at issue was absurdly small, but the issue itself was a most serious one, and he wished most sincerely that the parties had elected to have had it tried by a jury instead of throwing upon him the burden of finding on which side the truth lay in the case. However, they had not chosen to have one, and he must dispose of the matter as best he could. With regard to the case of “Vernon v. Keys,” quoted by Mr. Vachell, he did not think it was a case in point in this instance, and he considered there was a good case in law; the measure of damage—if he believed the plaintiff’s story—being the difference between the benefit which would have
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