Mat 20, 1899.
May 11.
(Before Mr. Commissioner Kerb and a Jury.)
PREPARING׳ FOB AN AUCTION: WHAT IS THE OHSTOM OP THE BUSINESS?
LINDSEY Y. NORMAN AND BOWEN.
Mr. W. Lindsey, 124, High-road, Chiswick, sued Messrs. Norman and Bowen, auctioneers, 62a, Aldersgate-street, to recover the sum of £1115s., money which they were alleged to have kept, and to which they were not entitled.
Mr. Pocock appeared for the plaintiff, and Mr. Lewis Glyn for the defendants.
The plaintiff, who was formerly in business as a printer, was desirous of selling his plant and machinery by auction. He instructed the defendants to sell them for him. Before the sale he asked them what their terms would be. They told him, he said, that they would charge 5 per cent, commission and their out-of-pocket expenses. Then lie pressed them to know what the out-of-pocket expenses would come to. The reply was that they would be confined to printing and advertising. The sale took place and the receipts came to £469. The commission was £23, but when the defendants sent in their bill the plaintiff found that they had retained £11 15s. for “ men lotting, clearing up, working sale-room, and delivering goods.” That was quite contrary to the ׳arrangement, and the plaintiff now asked to have the amount handed to him.
The defendants’ case was that the arrangement come to was 5 per cent, and out-of-pocket expenses. They were not limited to the advertising and printing. It was a well-known custom of the trade that porterage, etc., had to be paid for.
Mr. Frank Bowen and Mr. Norman gave evidence, and, in support of the custom of the trade,
Evidence was also given by Mr. H. AY. Archer, manager of the Leadenhall branch of Messrs. Jones, Lang and Oo. ; Mr. AVhite, of Messrs. Francis, Nicholls and AVhite; Mr. Derby, of Messrs. Toplis and Harding ; and Mr. AV. C. Perry, of Messrs. Broad and Wiltshire.
The jury found in favour of the defendants, and judgment was entered for them, with costs.
THE ESTATES GAZETTE,
COMMISSION IN JEOPARDY.
To the Editor of the Estates Gazette.
Sir,—AVhat entitles an auctioneer to his commission for letting premises? I was surprised to hear the following verdict given last week at the City of London Court.
Plairitiff, an estate agent, had instructions from defendant himself to let certain premises in the City, and was taken over the premises and given measurements and rental, etc., by defendant. Plaintiff subsequently, on behalf of applicants, made defendant several offers, and gave several orders to riew and particulars to applicants, some of whom defendant showed over the premises himself.
Plaintiff found, a short time after receiving instructions, that the premises were occupied hy one of the applicants, to whom he had given m order to view and particulars in a letter, and plaintiff wrote the tenant, who replied that he did not deny having received p articulars from plaintiff, but hid taken the premises through a riend (whose name, when asked, he would or Mould not mention).
Plain tiff sued defendant for commission, when defendant said he had not given plaintiff or any one instructions to let, but admitted that tenant was in occupation of premises. Tenant being too ill to attend, and plaintiff’s ounterfoil of order to view and press copy letter not being considered evidence, the Judge intered a nonsuit with costs.
If our commissions are now to rest entirely an what tenants say, we had better, I should think, give np lettiig, as very few tenants (even if they can attend) will give evidence against their own landlords.
Yours, etc., LOOKER-ON.
London Cart Horse Parade.—Entries for the parade of London cart horses in Regent’s-park on AVhit Monday have now fiaally closed, with the result that over 830 horses will appear in competition for the valuable prizes offered by the Society. All horses must pass the preliminary examination of the veterinary inspectors, after which they will be examined by four judges for grooming and cleanliness. Four other judges will award the premiums and silver medals offered by the Shire Horse Society for the best horses, irrespective of breed ; and two others will award the prizes for horses of the Suffolk breed. Judging commences in the Inner Circle at 9.30 a.m., and the distribution of prizes and march past, which is the most attractive part of the day’s proceedings, will take place soon after 2 p m.
the defendants might possibly by offer of compensation accompanied by undertaking to repair have made terms with the plaintiffs. Further, the statute clearly contemplates that a reasonable interval shall elapse after service of notice and before action. Can two days’ notice be said, in all the circumstances, to be a reasonable notice? I think not. On the whole, therefore, I am of opinion that the notice was bad and did not comply with the condition precedent to action within section 14 of the Act of 1881. In the view which I have expressed .it becomes unnecessary to discuss whether the plaintiff company has established a right to reenter on the ground that the defendants have underlet; but, as it has been discussed in argument׳, it may perhaps be better to notice at.
It is admitted that there lias been no assignment within the meaning of the covenant against assignment. AVhat has taken place is׳ this. The defendants, having agreed to sell to the new company, have let them into possession׳ pending the completion of the purchase, the new company undertaking to pay all rents, rates and outgoings in connection with the premises or the business there carried on. There is a provision for redelivery of possession to the defendants if the contract should be rescinded. It is contended that this makes the new company the def endants’ undertenants. But on what terms ? The new company pay no rent to the defendants, they have undertaken no obligations to the defendants, except those mentioned, which are not necessarily obligations of tenancy. But it is said the proper reference from these facts is that a tenancy at will has been created. Whether this may be technically so or not, the practical answer to this contention seem® to be that the defendants could not by the exercise of their will turn the new company out. The effective answer of the new company would be— AVe have come in as purchasers and we are willing to carry out our terms of purchase. In plain sense and according to the ordinary understanding of men, this is not a case of underletting at all but merely a case in which the new oompany lias been let in on terms of purchase. Had the covenant been (as is of late years often the case) against parting with possession without license of the landlord, the plaintiff company would have proved a breach of such a covenant, hut they have not established a breach of the covenant in question, which is against underletting only. My learned brethren agree with this judgment. The appeal will therefore be allowed with costs.
HIGH COURT OF JUSTICE.
QUEEN’S BENCH DIVISION.
May 13.
(Before Mr. Justice Day.)
CONVEYANOE OP LAND: ־WORKING OUT PRICE.
BALDOCK AND ANOTHER V• HAWKINS AND OTHERS.
This was an action brought by Mr. William Baldock and Mr. William Stoning Baldock, his son, against Mr. Maurice James Hawkins, Mr. James Alfred Horsford and Mr. AVilliam James Absolam, to recover £70 for work done.
Mr. Brook Little appeared for the plaintiffs ; while Mr. Gover represented the defendant Ab-solam, and Mr. R. J. Wills the defendants Hawkins and Horsford.
Mr. Brook Little said the defendant Absolam had a farm at Bletchingley, Surrey, which lie carried on on philanthropic •and economic principles. In August, 1887, Mr. W. Baldock agreed with Absolam that he or his son should work on the farm at the rate of 3s. 4d. a day, and that the wages should •accumulate in Abso-lam’s hands until it reached £184 5s. 6d., when Absolam agreed to convey to Mr. AV. Baldock seven acres of the farm at £26 6s6 .׳d. per acre. Mr. Baldock ■and his son worked on the farm for nearly 400 days, and then they withdrew from the concern, because Absolam would not give them an undertaking in writing that he would convey the seven acres when the necessary sum had accumulated. Eventually the defendants agreed to pay £70 for the services Mr. Baldock and his son •had rendered.
Mr. W. Baldock was called, and bore out the opening statement of counsel.
AVilliam James Absolam, one of the defendants, stated that in 1897 he had an idea of starting a farm on communistic principles, and he spoke to the plaintiff, Mr. W. Baldock, about it. The purchase money of the farm was to be paid in nine years, and Air. Baldock agreed that he or •his son would work on the farm at the rate of 3s. 4d. per day, and that this money should accumulate until there was a sufficient sum to enable him to purchase seven acres of the farm. If the hooks had been returned to him he should have kept his agreement to pay for services rendered by Mr. Baldock and his son.
The defendants, Horsford and Hawkins, denied that they had made themselves liable to pay the plaintiffs the amount claimed.
Mr. Justice Day gave judgment for the plaintiffs against the defendant Absolam, with costs. He thought that the plaintiffs had made out no case against the other defendants, and therefore he gave judgment for them, without costs.
Mr. Hammond-Chambers, Q.C., and Mr. Boome appeared for the defendant, Steiger ; Mr. Herbert Reed, Q.O., and Mr. A. Clarke-Williams appeared for the defendants, Petrifite, Limited ; Air. Christopher James and Mr. B. A. Cohen appeared for the plaintiffs.
The Court having taken time to consider, delivered judgment allowing the appeal, and ordering judgment to he entered for the defendants.
The Lord Chief Justice read the following judgment of the Court:—The question is whether the plaintiff company has established the right to re-enter upon the demised premises upon either of the grounds of forfeiture alleged, viz., (a) that the defendant company has entered into liquidation ; or (6) that the defendants have underlet the demised premises. First, as to the liquidation—That the defendant company has entered into liquidation is not denied, but it was argued for the defendants—(1) that upon the true construction of the lease the liquidation, within the meaning of the condition or proviso in the lease, must he a liquidation brought about by, or in consequence of, insolvency, which (it was admitted) was not the case here ; (2) that the proviso in the lease only applied in case the individual lessee was bankrupt or had liquidated with his creditors and the company had entered into liquidation in consequence of insolvency ; (3) that, if these contentions failed, the proviso or condition in question did not run with the land so as to bind the defendants, who were assigns merely of t׳he original lessee ; (4) that due notice under the Conveyancing Act of 1881, section 14, had not been given before action, and that this was a condition precedent to the right to maintain any action ; and, lastly (5), that the defendants were, all these contentions failing, entitled to apply to the Court for relief. His Lordship considered all these points seriatim. Coming to the fourth point, his Lord-ship proceeded : —■I have now to consider the remaining, the fourth, point, viz., that no proper notice was given under section 14 of the Conveyancing Act, 1881. Was any such notice necessary? The answer to that question depends upon two considerations:—(1) Is the liquidation in this case equivalent to a bankruptcy within sub-section 6 of section 14 ? And if so (2). AVhat is the effect of sub-section 2 of section 2 of •the amending Act of 1892 ? As to the first I think, looking to the wide words of the interpretation section (2) of ■the_ Act of 1881 referring to bankruptcy, that liquidation is within the meaning of bankruptcy as interpreted by sub-section 6 of section 14 of the Act of 1881. It follows that, if the Act of 1892 has ■lot. effected a difference, the plaintiff company was not hound, as to this ground of forfeiture, ,o give notice at all. Has, ■then, the Act of 1892 made any difference ? X think it has. I think the effect of section 2, sub-section 2, of that Act, which is very difficult of construction, is to take the case of forfeiture for bankruptcy or liquidation out of the cases in which notice is not necessary for one year from the bankruptcy or liquidation. If. then, notice is necessary, has it been given ? To determine the character of the required notice, what it shall contain, and when it׳ ought to he given, it is necessary to consider the scope of section 14 of the Act of 1881 as a whole. The object seems to be to require in the defined cases (1) that a notice shall precede any proceeding to enforce a forfeiture, (2) that the notice shall he such as to give the tenant precise information of what is alleged against him and what is demanded from him, and (3) that a reasonable time dhall after notice be allowed the tenant to act before an action is brought. The reason is clear. He ought to have the opportunity of considering whether he can admit the breach alleged, whether it is capable of remedy, whether he ought to offer any, and, if so, what, compensation, and, finally, if the case is one for relief, whether he ought or ought not promptly to apply for such relief. In short, the notice is intended to give to the person whose interest it is sought to forfeit the opportunity of considering his position before an action is brought against him. The notice in nuestion is dated October 29, 1897, and alleges that the defendants, the company, had entered into liquidation, and, further, that they had broken the covenant to repair. It then proceeds to demand compensation and gives notice ?hat if the defendants fail to remedy the breaches within a■ reasonable time the plaintiffs will re-enter. To the notice is annexed a schedule requiring very extensive repairs to be done, which would require a considerable time <־o accomplish. This notice was served on November 2, and the writ in the action was served on November 4. It is now admitted that׳ the plaintiffs were not in a position to rely upon the alleged breach for non-repair. In these circumstances can this be said to be a proper notice within the Act. ? On the whole, I think not׳. In the first place, if the entering upon liquidation had alone been put forward, the defendants would have had the opportunity of considering whether they had any answer, and, if not׳, whether they could make terms with the plaintiffs, but■ this was impracticable so long as the claim for breach of covenant to repair was made. Again, if non-repair was alone relied on,
fromtottgs.
SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
Alay 15.
(Before the Lord Chief Justice of England,
Lord Justice A. L. Smith and Lord Justice
Collins.)
1 EASE : PROVISO FOR RE-ENTRY : BANKRUPTCY
HORSEY ESTATE (LIMITED) V. STEIGER AND PETRIFITE
(limited).
This was an appeal by the defendants from the judgment of Air. Justice Hawkins at the trial of the action without a jury.
The action was brought to recover possession of certain premises under a proviso for re-entry contained in a lease. On November 4, 1889, the trustees of the will of Thomas Horsey, deceased, demised to John Donnelly and the Patent. Stamped Steel Railway Axle Box Company, Limited, a piece of land for 21 years from September, 29, 1889. By the lease the lessees for themselves and their assigns, and as a separate covenant eacli of them for himself and itself respectively and liis and its respective assigns, covenanted to pay the rent and execute the repairs and not to assign or underlet the premises or any ]!art׳ thereof without the consent of the lessors, such consent not to be unreasonably or vexatiously withheld in the case of a substantial, respectable and responsible person. There was also a proviso for re-entry on■ failure to pay the rent or ■on failure or neglect to observe or perform any of the covenants, or^ if the lessees shall become bankrupt or enter into liquidation for the benefit of or compound with their creditors, or beieng a company shah enter into liquidation whether compulsory or voluntary.” There was a clause in the lease that the expression " lessees ” should include the executors, administrators and assigns of the said John Donnelly and the successors and assigns^ of the said company where the context so required or admitted. On August 1, 1894, the lessors conveyed all their interest in the premises to the plaintiffs, a limited company. On December 13, 1895, the lessees assigned, with the assent of ■the lessors, the residue of ■the term to the defendants. The assent of the lessors was expressly limited to that particular assignment. In December, 1896, the defendant company passed a resolution for a voluntary winding-up, and this resolution was confirmed on January 26, 1897. The liquidation was not because of any pecuniary embarrassment of the company, but the company was an experimental company, and the liquidation was for the purpose of reconstructing it, increasing its׳ capital, and extending its scope, and in furtherance of this object •a new company was on September 27, 1897, duly formed and registered by the same name. On October 30, 1897, a notice under the provision! of section 14 of the Conveyancing Act, 1881, was served upon the defendant Steiger, and a similar notice was served upon the defendant company on November 2, 1897, preparatory to taking proceedings to eoforoe the right of re-entry claimed in this action. T1ln
notice stated as grounds of forfeiture, first, that the defendant company had entered into liquidation ; and, secondly, that the defendants had broken the covenant to repair, ■the notice setting forth in the schedule thereto particulars of the breaches of the covenant complained of. The notice further required the defendants ■to remedy the breaches specified above, and to make compensation in money for such breaches, and stated that, if the defendants failed ■to remedy the breaches of any of them within a reasonable time the plaintiffs would re-enter upon the premises. On November 4, 1897, the present action was brought. On December 2, 1897, an agreement was entered into between the defendant company with Steiger’s consent and the new company, by which the defendant company agreed to assign to the new company their rights and property, including their right and interest in the leasehold premises in question for the residue of the term, subject to the covenants of the lease. No actual assignment of the lease was ever executed, but the new company went into possession. To enable the lessors to rely upon this alleged new ground of forfeiture without the expense of a new action, the parties agreed during the trial of the action that it should be treated as if it had been in existence before the action was brought. The learned judge held that a right of re-entry accrued if either Steiger became bankrupt or the company went into liquidation ; and, further, that there was no ground for limiting the word “liquidation” in the covenant to a liquidation consequent upon pecuniary embarrassment; and that, therefore, the plaintiffs had a right of re-entry upon the entering into liquidation of the defendant company. He also held that, in the circumstances, there had been no breach of the covenant not to assign or underlet without the consent of the lessors. He accordingly gave judgment for the plaintiffs.