June 17, 1899.
THE ESTATES GAZETTE,
1042
Mrs. Hanson called upon the plaintiff, and explained to him that she and her husband desired to sell their business. She therefore put the matter in plaintiff’s hands to find a purchaser. Mr. Todd took the particulars, and it was agreed that the terms of commission should be 5 per cent., with the price of valuation, rent, out-of-pocket expenses and cost of advertisements. The plaintiff’s case was that the business was disposed of through his instrumentality. On receiving instructions he immediately placed particulars of the business upon the register, and advertised it. Among others, he sent particulars to a Mr. Mades, and on January 4 defendant asked him to take the business off his books. Plaintiff afterwards went to Suttou, and was told that Mr. Mades had purchased the business.
For the defence, Mr. Thompson said his case was that the plaintiff was not the person who introduced the purchaser. Several weeks before defendant consulted plaintiff he mentioned to the miller’s agent (Mr. De la Mare) that he wished to sell the business.
Mr. Mades stated that Mr. De la Mare had advised him to buy the business before he received particulars from plaintiff. Directly the particulars came to hand he returned the document to plaintiff.
In cross-examination witness admitted that ilthough he had had several conversations with Mr. De la Mare respecting the business, he did not go to view until after copy of particulars had been received from plaintiff. He further admitted that the remark was made that by saying he knew of the business being for sale before plaintiff communicated with him he was likely to get a reduction, as there would thus be no agent’s commission to pay.
His Honour obs :rved that this was not very elevating, but was very natural, and he was not prepared to say that it was dishonourable.
Evidence was given by Mr. De la Mare to the effect that it was through him that the purchase was effected.
His Honour said the case was not an easy one to decide, an agent being only entitled to his commission where he effectually introduced the purchaser. He held that Mr. De la Mare’s recommendation fell, as it were, upon deaf ears, and that although defendant returned the agent’s order immediately, yet it was not until after he had received it that he went to view the business. Judgment would be given for the plaintiff.
BRIGHTON COUNTY COURT.
June 2.
(Before his Honour Judge Martineatj.)
AN INVEN TORY IN DISPUrE.
FAIRBROTHER AND CO. V. TAYLOR.
This was a case in which the plaintiffs, Messrs. Fairbrother and Co., a firm of auctioneers, claimed from Mrs. Taylor, a Hastings lady, a sum of £7 6s. 5d., balance of commission alleged by the plaintiffs to be due to them on the scale of 7¿ per cent■• on one year’s rent of a certain house which had been leased by defendant, and 5 per cent, for the sum obtained for the furniture, with 10s. 6d. added for making out a contract.
The plaintiff’s case was that they were in-itructed by Mrs. Taylor to find a purchaser for the remainder of the lease of No. 7, Hampton-place, together with the furniture. They !ventually did dispose of the lease, and sold the furniture for £160.
For the defence it was alleged that Messrs. Fairbrothers had agreed to carry the matter entirely through without any effort on the part of Mr. and Mrs. Taylor, including the making of an inventory and obtaining the landlord’s consent to the transfer of the lease. Mrs. Tayloi stated that she and her husband were put to trouble in the matter, and the inventory being wanted in a hurry, she had to use one she had made some time before.
His Honour, however, held that in the absence of any specific mention of the same, an inventory was an “ extra,” and that in obtaining a purchaser the plaintiffs had carried out their duty. He gave judgment for the plaintiffs, with costs.
Groat Central Railway Company, under permission from the railway company and at their own expense. It is occupied by the appellants as a coal office in connection with their wharf for the purpose of receiving and executing orders for, and distributing to small dealers and to- consumers, the coal׳ consigned to the appellants at their wharf. It is used solely by and for the purposes of the appellants, and is not used by or for the purposes of the railway crm-pany. It is convenient to the appellants and to the railway company, for the proper conduct of the business transacted between them in connection with the appellants’ share of the coal traffic of the railway company, thait the appellants should have in close proximity to the point where the railway company deliver the coal a structure in the nature of an office where they can dispose of their clerical business in connection with (a) the delivery of coal to the appellants by the railway company ; (b) the speedy clearing of coal from the wharf шаг the sidings of the railway company, ■which is a matter of importance both to the coal merchant and the railway company, the former desiring to avoid !the payment of a siding rent in respect of uncleared trucks, and the latter desiring their trucks to be cleared and available for use again as׳ soon as possible ; (c) the receipt of orders for the sale of coal. It is more convenient for the conduct of the business that such office should be situate on the premises of the railway company and within !their coal yard than outside it. The learned magistrate found ■that the structure did no¿ come within the words, and was, in point of fact, not used for the purposes of, or in connection with, .the traffic of the railway company, and was therefore, not exempt from the necessity of a license. He convicted the appellants accordingly, subject to the present ease.
Mr. C. A. R resell, Q, C., appeared for the ap pellants; and Mr. Horace Avory and Mr. Daidy for the respondents.
The cases of “ Ooole v Lovegrove ” (L.R., 1893, 2 Q.B., 44), ami “Manchester, Sheffield and Lincolnshire Railway Company v. Bamslei Union ” 67 L. T., 119) were cited in the course of the argument.
The Court allowed the appeal.
Mr. Justice Day said he had no doubt that the learned magistrate was wrong. In his c-pinion the structure was “ used for the purposes of, or in connection with, the traffic ” of the railway company, and was therefore within the exemption. There was no other reason for its existence.
Mr. Justice Lawrance delivered judgment to the same effect.
that in 1894 the defendant set up an apparatus for lighting Glen Chess with electricity, and he intercepted the water for the purpose of working a turbine in connection with the electric light., and also• of pumping water to the house. The result was that when the water was intercepted the river below the turbine became dry, and the trout were destroyed. The defence was that the Chess was not a trout stream, and that an overshot wheel and a turbine had existed at Loudwater Mill for forty years before action being brought; that there had been no change in the working of the turbine, except that it now worked a dynamo instead of a paper mill; further, that the owners of Rickmansworih Park had acquiesced in what had been done.
Mr. Warrington, Q. 0., and Mr. Methold appeared for the plaintiff, Mr. Renshaw, Q.C., and Mr. Richary, of Woodfin, for the defendant.
Mr. Justice Kelcewich said that what the plaintiff said in her pleadings and proved by her witnesses, showed most conclusively by the evidence of Mr. F. M. Birch, that the water in the river suddenly rose and fell, and that that was destructive of the fishing. Mr. Birch went out in -the morning and! found the river full. Suddenly the water went down, leaving the fish lying on the mud. There was strong and irresistible evidence both with regard to the fishing and the mill that the periodical rise and fall of the water was caused on the defendant’s premises. He must therefore grant an injunction, with costs.
NOT “HEADY AND WILLING.”
BLAKELEY AND CO. V. WATSON.
M ssrs. Blakeley and Co., of 5, Marine-parade, Brighton, sued Mr. E. Watson, of 26, Ohrist-church-road, Streatham-hill, for £8 5s., commission for their exertions in finding a purchaser “ ready and willing to complete ” for the lease of a house, the property of the defendant. The plaintiffs’ story was that in December, 1898, they were instructed to find a new tenant for No. 9, New-steine. A Mr. Syrett, a commercial traveller, viewed the ■house, and agreed provisionally to take it for a lease of seven, 14 or 21 years, as might prove most satisfactory, and pay £110 rent per annum quarterly. Eventually, however, Messrs. Blakeley received a wire from Mr. Watson saying that unless the negotiations were completed by a certain time, the matter would be declared “off.” Mr. Syrett, being a commercial traveller, was not able to consult his solicitors in time, and the transactions fell through.
COMMISSION CASES.
QUEEN’S BENCH DIVISION.
June 7.
(Before Mr. Justice Ridley.)
3ALE OF ADVOWSON: DISPUTED INTRODUCTION.
BROUGHTON ROUSE V. THOMSON.
In this case the plaintiff, Mr. Edvard Broughton Rouse, a solicitor and ecclesiastical agent, sued the Itev. William Thomson to recover commission on the sale of an advowson at Tetbury, in Gloucestershire. According to plaintiff’s case he sent particulars of the living to the defendant under the heading “ G 11,” without telling him the name of if. A visit by the defendant to the locality was, however, afterwards arranged, and ultimately the defend ant purchased the advowson, for which originally £11,000 was asked, for £7,500. It appeared that the defendant’s case was that the purchase was not brought about through the instrumentality of the plaintiff, as he knew of the advowson being for sale before the plaintiff communicated with him, the vicar, Mr. Hor-ivood, who sold, having seen him months before on the subject of purchase. It was said! he wrote to the plaintiff to warn him tihat he- knew about Tenbury before he called his attention to it, adding that he did so lest- he should claim for haring introduced if.
Mr. Cecil Chapman appeared for the plaintiff, and Mr. Bray, Q.C., and Mr. E. H. Pollard for the defendant.
Mr. Justice Bruce held that the plaintiff had not made out that he introduced .the advowson to the defendant, and therefore could not succeed.
Judgment was accordingly entered for the defendant, but there was a stay of execution with a view to an appeal.
EPSOM COUNTY COURT.
June 2.
(Before his Honour Judge Lttshington, Q.C.)
AN EFFECTUAL INTRODUCTION.
TODD V. HANSON.
This was an action brought by Mr. Langton Todd, house and estate agent, of Clapham-road, London, for the recovery of a sum of £12 2s. from the defendant, who was formerly the owner of a baker’s and grocer’s business at Sutton.
Mr. J. A. Hawke, counsel for the plaintiff, stated that on November 21 last year
June 9.
(Before Mr. Justice Stirling.)
INJUNCTION: STOPPING FLOW OF SEWAGE.
STAPLETON V. THE UPTON-ON-SEVERN DISTRICT COUNCIL AND OTHERS.
In this case the plaintiffs, the Lady Abbess and two sisters of a convent known as Si. Mary’s Abbey at Powick, in Worcestershire, applied for an injunction to restrain the defendant council from stopping up or cutting off the flow of sewage from the convent into the sewers of the defendant council, and for a mandatory order to compel the defendant council to remove an obstruction recently placed by them in the convent sewer for the purpose of stopping tlie flow of sewage therefrom. This action arose out of another one which was brought by a neighbouring landowner against the defendant council with the object of obtaining the abatement of a nuisance caused by the overflow of the convent sewage upon the land of the plaintiff in that action. It appeared that the defendant council, in order to abate one nuisance had caused another, for, according to evidence now tendered on behalf of the convent authorities it seemed that the present state of affairs constituted a most serious danger to the health, not only of the inmates of the convent, but also of other residents in the neighbourhood and persons passing along the main road between Upton-on-Severn and the city of Worcester.
Upon the motion coming on for hearing, counsel for the defendant council suggested that as the present state of affairs could not obviously be allowed to continue some temporary measures should be taken to remove the nuisance, and after some discussion the defendant council ultimately undertook as a temporary measure, and without prejudice to any question raised by the action, to construct at their own expense forthwith upon the plaintiffs’ lands, unless a more suitable site could at once be obtained, a proper sewage tank and any necessary works and to empty the same by means of sewage carts as often as necessary. Upon this undertaking the motion was directed to stand over generally.
Mr. Butcher, Q.C., and Mr. Ashton Cross appeared for the plaintiffs Mr. Jenkins, Q.C., and Mr. G. R. C. Lawrence for the defendant council; and Mr. Upjohn, Q.C., and Mr. J. Henderson for the plaintiffs in the former action, who, at the suggestion of the Court, and with their assent, had been made defendants in the present action.
ai fromMttgs.
SUPREME COURT OF JUDICATURE COURT OF APPEAL.
June 8.
(Before the Master of the Rolls, the Presi dent of the Probate Division and Lord Justice Römer.)
LEASE OF MINERALS: LETTING DOWN
SURFACE: COVENANT FOR COMPENSATION.
THE EARL OF WESTMORLAND V. THE NEW SHAULSTON COLLIERIES COMPANY (LIMITED).
This was an appeal from a decision of Mr Justice North. The plaintiff was tenant for life of estates in the West Riding of Yorkshire, under the will of the late Countess of Westmor land. The defendants were colliery owners and lessees of two seams of coal from Crossley Brothers, Limited, who were grantees of minerals from the late Countess by deed made in 1865. The object of the action was tu restrain the working of the coal so as to let down r-he surface. The upper seams had been worked previously to the grant, and the defen dants were working two deep seams. There was evidence that some subsidence of surface had occurred before action brought in eonse quence of the defendants’ workings. The de fendants justified their conduct on the ground that they were working properly and that they had the right to cause such subsidence, sub ject to the payment of compensation. It was not contended that a grant or lease of minerals of itself gave a right to let down the surface ; but it was contended that the covenants on the part of the grantees, particularly a covenant to make compensation, were sufficient to imply a right to work in a proper manner even if subsidence was the result. Mr. Justice North considered himself bound by certain decisions in the House of Lords, especially the. case of “Davis v. Treharne” (6 App. Cas., 469) (which he thought undistinguishable from the present case), to grant the injunction asked for. The defendants appealed.
Mr. Warrington, Q.C., Mr. Strachan, Q.C., and Mr. O. Leigh Clare were for the appellants ; Mr. Phipson Beale, Q.C., Mr. Swinfen Eady, Q.C., and Mr. Roskill for the plaintiff.
Their Lordships affirmed the decision of Air. Justice North without calling on counsel for the respondent.
The Master of the Rolls said he did not see his way out of the cases as decided. He used that form of expression because “ Davis v. Treharne ” in the House of Lords settled the law. Previously to that- decision there was a great deal more doubt than there had been since. As he understood “ Davis v. Treharne,” if before that decision a landowner had granted or demised minerals with power to work and get the minerals without- expressing anything to confine that right, it would have been doubtful what his rights were ; the House of Lords in -that case decided that such grant or lease did not alone render it necessary for him to reserve a right to support the surface, but that he had such right unless there was something in the grant inconsistent with that right. The House of Lords might just as well have decided the other way consistently with the previous eases. He had, therefore, the right to support unless there is something in the instrument inconsistent with that right. Taking that as •he test, and it was a rigid test, he did not see hi., way to differ from the decision of Air. Justice N orth.
The President of the Probate Division agreed. Lord Justice Römer agreed. The case, he said, had been so fully and so accurately dealt with by Air. Justice North that he did not- wish to add anything to wliat had been said by him and by his brethren here.
Their Lordships allowed the injunction to h suspended in case of an appeal to the House of Lords on the defendants undertaking to abide by any order the. Court might make as to damages if subsidence occurred in the meanwhile.
QUEEN’S BENCH DIVISION.
June 12.
(Before Air. Justice Day and Air. Justice Lawrance.)
WOODEN STRUCTURE: PREMISES OF RAILWAY
COMPANY: LONDON BUILDING ACT, :894.
ELLIOTT AND CO. V. LONDON COUNTY COUNCIL.
This was a special case stated by Air. Curtis Bennett, the Aletropolitan Police Alagisbrate, before whom the appellants were convicted under the London Building Act, 1894, of unlawfully -setting up a wooden structure without the license of the London County Council. It was admitted that the structure was a wooden structure, and the only question was whether it came within section 86 of the Act, which exempts from the provisions as to licenses for wooden structures “ structures or erections erected or set up upon the premises- of any railway company and used for the purposes of, or in connection with, the traffic of such railway company.” The structure in question was put up by the appellants, who are coal merchants in the habit of having coal consigned to them at their wharf in the Carlisle-street coalyard of the
HIGH COURT OE JUSTICE. CHANCERY DIVISION.
June 8.
(Before Air. Justice Kekewicii.)
INTERCEPTING WATER FROM RIVER : INJUNCTION.
BIRCH V. m’farlane.
This was an action brought by Mrs. Birch, the owner of Rickruansworth Park and Seots-hridge Alill, on the river Chess, for an injunction to restrain the defendant, Air. William AlcFarlane, the owner of a property called Glen Chess, higher up the river, from intercepting and penning up and then releasing the water of the river, or otherwise from hindering, preventing, or in any way interfering with the continuous and natural flow of the water down the river to the plaintiff’s property so as to interfere with or diminish tho full accustomed and continuous supply of water to the plaintiff’s property as! the same was enjoyed before the defendant interfered with .the same; and for damages. It appeared (as the plaintiff alleged)