February 11, 1899.
THE ESTATES GAZETTE
218
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AGRICULTURAL RATES ACT, 1896, with Introduction and Notes, and the Agricultural Rates Order, 189fi. A useful guide for Land Agents, Valuers and Agriculturists. By Sidney Wright, M.a.
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ГНЕ AUCTIONEERS’ MANUAL, — A oomplete
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“ Estates Gazette,’■ 6, St. Bride Street. LONDON, E.O.
Last week we reported two commission cases of some interest. In the action brought by Captain Sir Hawtrey Cox, Bart., to give the gentleman his full title, against Mr. Cardinall, for commission for finding a purchaser for a Colchester brewery at the price of £90,009, Mr. Justice Darling considered that the question turned upon the true construction of the commission note. Did the note with its extensions give the plaintiff the exclusive right of negotiating the sale during the time limited, or did it leave the defendant still at liberty to effect or endeavour to effect a sale in other quarters? Mr. Justice Darling took the latter view, and gave judgment for the defendant. The case reinforces advice which we have often had occasion to give in this column, namely, that one cannot be too careful in drawing up a commission note. In a ,‘heavy” transaction, indeed, we consider that it would be, as a rule, well worth while to show the document to a solicitor, putting to him the specific point as to which one wishes to be “ safe.” This could not be made a very expensive process, and would be to a great extent in the nature of an insurance.
The plaintiffs in “ May and Bowden v. Schreiber” were more fortunate than the military baronet, for the Maddox-street auctioneers recovered the full amount of their claim for letting the ground floor and basement of a house in Wigmore-street. The defence set up by Mr. Schreiber was that it was not until a claim was made upon him for commission that he had any idea that the plaintiffs had introduced the tenant, and even if that was so he contended that he was only a director of the Schrieber Company, and gave the plaintiffs their instructions in that capacity. He was quite sure that he told the plaintiffs he was acting on behalf of the company. If he was liable he did not dispute the amount of the plaintiffs’ claim, but his case was that he was not liable. Mr. Schrieber admitted in cross-examination that his interest in the company was 5,000 shares out of 10,000, and the result was what we have above stated. The West-end firm may be congratulated upon it. The defence, “ It is not me, Smith, that you ought to sue, but the Jones Syndicate,” is often raised nowadays, being in especial very common in actions in which printers and stationers are suing for the price of prospectuses, articles of association, and so forth. Such a plea is occasionally successful, but the tendency is becoming more and more marked nowadays— and judges know it—for men of business to think and say, “ I want to have nothing whatever to do with companies or syndicates or promoters. Give, me the name of the man to whom I am to look for my money, and I will tell you what I think of it.”
“ You have been guilty of a very questionable transaction here, and I am not sure yet what action I may take in the matter.” These were the words of his Honour Judge French to the defendant in “ Wright v. Wright,” which we report in another column. We must say that we think they were thoroughly deserved. In fact, we have seldom met with a case which exemplified more strongly the salutary nature of the legislation which introduced the practice of granting certificates to bailiffs and of cancelling them on the misconduct of the holders. We do not know the course which will be ultimately taken by the Shoreditch County Court Judge, but the words we have quoted are significant, as is the fact that the high bailiff was directed to “ take this man’s name and make inquiries.” From our report it will be seen that the defendant, a certificated bailiff, had levied on the plaintiff’s goods for £3 9s., and subsequently agreed to warehouse them for her until she could pay. Since then, it was alleged that Mrs. Wright had ,paid £8 12s., but that the defendant still refused to return certain of the goods, his not very comprehensible defence being that he had warehoused them on behalf of the lady’s son. “ What does that matter ?	.	.
It is past comprehension. Are you really a bailiff ?” asked Judge French, and promptly gave judgment for the plaintiff for the return of the goods detained. We repeat that we do not know what the upshot of the ease will be for Wright. But we do know that it is for the interest of all respectable bailiffs that strict supervision should be kept over the doings of the general body of those officials by such vigilant and impartial judges as Mr. French,
TO READERS.
The Manager will esteem it a favour if readers of the “ESTATES GAZETTE ” will kindly mention the name of the paper when communicating with any firm in regard to properties advertised or referred to therein
BROMLEY COUNTY COURT.
January 31.
(Before His Honour Judge Emden.)
CLAIM FOB DILAPIDATIONS.
HtJDG'S V. BRADSHAW.
In this case plaintiff claimed for arrears of rent, etc.
Mr. Weller was for the plaintiff, who said he was the landlord of the house known as 8, Oroydon-road, Penge, which he let to the defendant, James Bradshaw. It was then thoroughly done up, but when defendant left, he found that a great deal of damage was done, and he claimed 13s. for rent, and for damage £7 10s.
Cross-examined by Mr. Gregory : Defendant had been tenant of the house five years. He had laid out a good deal on it. He had no complaints of the water coming through the roof.
Mr. E. W. Harris, auctioneer and house agent, of Beckenham, said he had been over the house and it had not been subjected to fair wear and tear. The ceilings were knocked about in a manner which must have resulted from wilfulness or gross negligence on the part of the tenant.
Defendant was called and said he was in the house six years. It was patched up when he went there, and he had constantly lodged complaints as to the need for repairs.
His Honour said it was quite clear that there were some dilapidations, and judgment would be given for £4 10s. with costs.
HTgal ©opus.
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 Beplies. ’]
The circumstances of “Smith v. Johnson” were undoubtedly peculiar, if not absolutely novel. The case, however, is of a good deal of interest to house owners and builders. Briefly, the dispute was ¡this. The defendant had supplied the plaintiff with mortar for some building operations. The plaintiff erected the building, but the County Council made him pull it down and rebuild, on the ground that the mortar did not satisfy the requirements of the Building Act of 1894. The plaintiff thereupon brought this action, in which he sought to recover from the defendant the whole cost of pulling down and rebuilding, and also the loss of ground rent, and Mr. Justice Bruce gave judgment in his favour for £101. The learned Judge held ׳that the mortar was defective when supplied by the defendant, and that as it was in a wet state the plaintiff could not by reasonable diligence have discovered this. This seems reasonable enough, and the case may doubtless serve as a warning to builders and contractors. We confess, however, that the contention of the defendant’s counsel that the damages were too remote is, in our opinion, a weighty one. The learned gentleman in effect urged that it could not have been in the contemplation of the parties that if the mortar were bad the plaintiff would have to pull down and rebuild, and would, moreover, lose ground rent. With regard to the pulling down and rebuilding, it might, perhaps be said that ignorance of the law excuseth not. But under ordinary circumstances would not the claim in respect of loss of ground rent be somewhat speculative and problematical? Perhaps the lawyers will be given yet another chance of discussing “Hadley v. Baxendale” and its related cases in the Court of Appeal.
A well-known rule of law is that a person who undertakes for reward any duty or employment is under an implied contract to act with reasonable care and diligence in the course or conduct of that duty or employment, and a corollary of this proposition is that it is the duty of an auctioneer to take the same care of property entrusted to him for sale as a prudent man would of his own. One may go back as far as the reports of the venerable Espinasse for an authority for this, if one were needful. Strange to say, however, the defendants in a case this week at the Wandsworth County Court seemed inclined to dispute it. His Honour Judge Lushington had before him an action in which an art expert named Hayman sued a Streatham firm of auctioneers, Messrs. Burton, Smith and Co., to recover £3 15s. 6d., the value of a Chelsea china group, sent them for sale in perfect condition, and nob sold. The plaintiff alleged that a cherub of the group was broken, and the only defence raised by the defendants (according to the somewhat meagre report which has come under our notice) was that Messrs. Burton and Co. “took no risks.” But the Judge held that the defendants were liable for the safe custody of all articles entrusted to their care, and gave judgment for the plaintiff for £2 10s.
were out of repair, and that there was a breach by the landlord of his contract with the plaintiff’s husband.
The damages were assessed at £85.
The Deputy-Judge said he must consider how judgment should be entered.
LORD MAYOR’S COURT.
February 1.
(Before Sir Forrest Fulton, Q.C., Common Serjeant, and a Jury.)
DISPUTE BETWEEN TENANTS: ACTION FOB.
DAMAGE BY WATEB.
HICKS V. COHEN AND ANOTHER
Mr. W. Digby Hicks, colour and chemical agent, 7, Maneliester-avenue, sued the defendants, Messrs. Cohen and Barnes, walking-stick manufacturers, of the same address, to recover £112 13s. 9d., being the value of goods which the plaintiff said had been damaged by water which proceeded from the defendants’ premises above his own.
Mr. Lewis Glyn (instructed by Mr. Van-damm) was counsel for the plaintiff, and Mr. Jones (instructed by Mr. Chaplin) represented the defendants.
The plaintiff said that at the time of the occurrence he was the tenant of the ground floor and basement at 7, Manehester-avenue, while the defendants were the occupiers of the upper floors of the premises. On January 3, upon entering his premises, he found his place flooded with water, which came through the ceiling from the defendants’ premises, and went right through into the basement. He saw one of the defendants, Mr. Barnes, and told him he (plaintiff) had made a cursory glance round, and found he had sustained heavy damage by the water, though he could not say how much. The damage done he now estimated at £112 13s. 9d. One of the defendants had told him that the whole cause of the damage was that a tap had been left turned on by a boy in his employment.
Mr. H. M. Oohen, one of the defendants, was called, and said his men had been warned not to throw water down the drains, as they were being seen to. On the Saturday prior to January 3 the premises were all right when he left. On the Monday he found, on arriving at the premises, that the place was flooded. He had never heard the suggestion that a boy had turned a tap on for the purpose of washing his hands, and, finding the cistern empty, had forgotten to turn it off again. The witness also ■said that his men were told by the people repairing the drains that there was no water in the cistern, so that he could not see why they should turn the tap on.
Mr. Barnes, also a member of the defendant firm, said he knew on the Saturday that there was no water in the cistern. On the Monday, when the place was flooded, he found that the waste pipe had been plugged at the bottom by one of the workmen’s aprons. He had questioned all his people as to whether they turned the tap on, and they all denied it.
Mr. Henry May, foreman to the defendants, said that on the Saturday he cautioned all the people not to use the lavatory sink. All the water on that day was obtained from the next - door building.
Ultimately it was announced that a settlement had been arrived at, and, by consent, a juror was withdrawn.
SHOREDITCH COUNTY COURT.
February 2.
(Before His Honour Judge French.)
BAILIFF AND JUDGE; “A VEBY QUESTIONABLE TRANSACTION.”
WRIGHT v. WRIGHT.
A certificated bailiff, named Henry Wright, of 75, Hackney-rcad, was sued by a lady of the same name for the return of goods illegally detained by him. It appeared that the defendant levied for £3 9s., and as the lady could not find the money he agreed to take all her goods and warehouse them until she could pay. Since then the plaintiff had paid the defendant £8 12s., but he still declined to return certain of the goods. Defendant argued that plaintiff had no claim on the goods, but that he warehoused them on behalf of her son.
Judge French ; I must say I don’t like the look of this transaction. He gets the whip hand over this woman in an extraordinary way for a certificated bailiff. I don’t think this was really a distress; it has more the look of an agreement between the plaintiff and the defendant, and the defendant must act up to his part of it.
Defendant: I did it for her son.
His Honour: What does that matter? You have a distress warrant in your pocket, and yet you come to an agreement of this description. It is past comprehension. Are you really a bailiff?—Yes, certainly.
The Judge: You have been guilty of a very questionable transaction here, and I am not sure yet what action I may take in the matter. Judgment for plaintiff. (To the high bailiff): Take this man’s name, and make enquiries. This is a serious matter. (To the defendant): Be careful jyhat you are doing now.