1089
THE ESTATES GAZETTE,
June 24, 1899.
with, the matter. He had nothing to do with the acts of misconduct alleged. He was not interested1 in the sale of the goods, or in changing the padlock on the premises. The charges made by him consisted of the usual fees allowed under schedule, and׳ amounted to 18s.
The jury found a verdict for the plaintiff as against the defendant Bird, assessing the damages at one farthing; and as against Messrs. Ivimey and Purdon for the full amount claimt d.
The foreman of the jury said that in their opinion Mr. Bird deserved to receive a caution.
GREENWICH COUNTY COURT.
June 16.
(Before His Honour Judge Addison, Q.O.)
A PUBLIC-HOUSE BROKER'S CLAIM FOR
SERVICES.
MATTHEWS V. FORD.
Mr. Frederick Annerley Matthews, a public-house broker, carrying on business at Moor-gaite-street-chambers, E.O., claimed £26 5s. for services rendered to Francis Joseph Ford, a commercial traveller in the employ of Messrs. Holland and Co., distillers, and formerly proprietor of the Station Hotel, Sidcup, but now residing at Blackheath-hill.
Mr. J. H. Welfare appeared for the plaintiff, and Mr. Lawless, instructed1 by Messrs. Marchant, Benwell, and Marchant, was for the defendant.
The circumstances of the case were that the defendant having been fined at Greenwich Police Court for being drunk, the Dartford bench refused to renew his license. He appealed, and the license was renewed on condition that it was transferred1 as soon as possible. On behalf of the plaintiff it was alleged׳ ׳.hat he called upon the defendant andinttroduced to him as a purchaser a Mr. Eastland, of the Bick-ley Arms, Chislehurst, who agreed to purchase, depositing £100, but the purchase was not completed. He■ did not sue for commission, but for services rendered, such as taking an inventory.
For the defence, it was contended that the agreement with the plaintiff was that he should be employed’ only if the purchase were completed, and it was stated that so far from the plaintiff introducing Eastland the latter introduced him. It was also contended that it was stipulated both by the Dartford bench and Messrs. Beasley and Co., brewers—the lessors of the house—that the holder of the license should reside upon the premises, and that while Eastland was willing to transfer the license of the Chislehurst ׳house he was not willing ^ to do this. It was stated that there was an action pending for the return of the £100 deposit.
Mr. James Henry Harris, managing clerk to Messrs. Marchant, Benwell and Marchant, deposed to serving notice upon Eastland to ■complete the purchase, and stated that it never had been completed.
His Honour, who commented upon the fact that Eastland had not been called as a witness, gave judgment for the defendant, with costs.
NORWICH ASSIZES.
June 15.
(Before Mr. Justice: Mathew and a Common Jury.)
ACTION1 FOR POISONING CATTLE.
DRING V. DUFF.
This was a peculiar case and one of considerable interest to owners of pleasure gardens.
The plaintiff, who is the executor of Mr. Edwin Peele, deceased, and carries on his farm, sued ■the defendant for injury done to his cattle in the following circumstances:—‘The defendant. Captain Duff, is the tenant of Stanfield Hall, near Wymondham, and sub-lets the park to the plaintiff to feed׳ his cattle upon. Into a dry pit in the park the defendant’s gardenei from time to ■time threw garden refuse containing stalks and leaves of tobacco plant, dahlias, and anemone japónica. The plaintiff’s cattle had access to the pit.
On November 16 and 17 last thirteen out of twenty-three two-year-old beasts were taken seriously ill, nine of which, worth about £8 10s. each, died, and the remaining, four, although they recovered, were stunted and depreciated in value. The refuse in the pit was found to have been pulled about by the cattle.
For the plaintiff a number of veterinary surgeons were called, who deposed that the symptoms and post mortem appearances of the cattle pointed to an irritant narcotic poison, and Mr. Sutton, the county analyst, and Mr. Corder, the well-known botanical chemist at Norwich, gave the results of their analyses of the contents of the stomach of the cattle. They found an irritant narcotic poison, which they were of opinon was the product of the tobacco plant and the anemone japónica, some of the chewed stalks of which were found in the rumen or first stomach of the animals. There was no trace, they said, of any poisoning by acorns, which had been suggested by the defence.
The jury returned a verdict for the plaintiff, with damages £78.
The counsel appearing were, for the plaintiff. Mr. E. E. Wild, and, for the defendant, Mr! T. 0. Blofeld.
contract was entered into the representative of Messrs. Bromley, Son and Kelday suggested that when the time for completion arrived his firm should be employed to do the nece^ary work. As a matter of fact, ■there was no necessity for the services of the brokers, and therefore he contended that the plaintiff was entitled to receive the whole of Ms deposit.
Mr. Justice Bruce: Then the only question now is whether Messrs. Bromley, Son and Kelday are entitled to retain £52 10s. for services rendeied ?
Mr. David replied in the affirmative. He maintained that the onus of proof was upon Messrs. Bromley, Son and Kelday.
Mr. Macoun said his clients never had a clear authority to part with the money. The master directed them to pay the deposit, less 100 guineas, into the Court, and they obeyed that order. At his suggestion his clients paid a further sum of 50 guineas into Court.
Mr. Justice Bruce : How about the remaining £52 10s. ?
Mr. Macoun said his clients hod rendered plaintiff services for which they were entitled to £52 10s. They negotiated the purchase, and it was not their fault that the contract had not been completed.
Mr. Ford■, of the firm of Bromley, Son and Kelday, auctioneers and pub'lic-house brokers, stated that on the evening of November 3, 1896, he received a telegram from the defendant Staples asking him to come down to the Wellington Inn, High Barnet. He went down and saw both the plaintiff and the defendant Staples. He asked plaintiff £5,500 for the house, but eventually it was agreed that he should have it for £5,000, all at. The plaintiff asked Mm if Ms firm would act for him, and he replied in the affirmative. The following morning the parties came to his office and signed the oonlract. On that occasion the plaintiff agreed to pay Ms firm £52 10s. for carrying everytMng through.
After other evidence had been called,
Mr. Justice Bruce gave judgment for the plaintiff on the claim and counterclaim as against the defendants, Messrs. Bromley, Son and Kelday, with costs. He also made a special order as to other costs incurred as between the defendants.
LORD MAYOR’S COURT.
June 19.
(Before Sir Forest Fulton, Q.C., Common Serjeant and׳ a Jury.)
ALLEGED IMPROPER DISTRAINT.
NISBET V. IVIMEY AND PURDON AND BIRD.
The plaintiff, Mr. Percy Nisbet, forwarding agent, 1, Water-lane, Tower-street, sued the defendants, Messrs. Ivimey and Purdon, auctioneers, and Mr. George Bird, a certificated bailiff, to recover damages for misconduct in connection with the execution of a distress for rent placed in their hands by the plaintiff.
Mr. Arthur Powell (instructed by Mr. Greig) was counsel for the plaintiff, and Mr. Lewis Glynn (instructed by Mr. Letchford) for the do ferdant, Mr. G. Bird. The other defendants were not represented׳.
The plaintiff said he was the lessee of certain premises known as 8, Fowkes-buildings. The cellar he let■ to a Mr. Barrington at a rental of £15 a year. On September 29 last, Mr. Barrington was owing £11 15s. Negotiations were entered into with the defendants, Messrs. Ivimey and Purdon, by the plaintiff’s chief clerk, Mr. E. A. Smith, and on November 24 Mr. 'Smith, believing these gentlemen to be qualified distraining brokers, instructed them to make a distress upon Mr. Barrington’s goods. Messrs. Ivimey and Purdon were not qualified brokers, and they placed the matter in the hands of the defendant, Mr. Bird, who was a certificated׳ broker. After the distress was put in Mr. Barrington saw the plaintiff, and requested a withdrawal of the distress. That was not acceeded to, and! he (Barrington) made various threats. The plaintiff accordingly told the defendants, Messrs. Ivimey and Purdon, to be very careful. By the statute five days must elapse after the seizure before the goods were sold. The defendants, however, removed the goods on: the 25th to Bermondsey, and sold them on the 26th. The goods seized were madt up into 52 lots, and the proceeds of the 3ale amounted to £5 16s. The account sent in by Messrs. Ivimey and Purdon was grossly excessive. As a result of the distress an action was brought by Mr. Barrington for illegal acts committed during the distress, and׳ the action was settled by the payment of £20 and costs. In consequence of the illegal acts of the defendants he (plaintiff) now claimed to be compensated.
Mr. George Bird, builder and decorator, Bush House, Bush-road, Deptford, said that he held a certificate from the County Court■, and had׳ acted as bailiff for ten years. In November last he was instructed by Messrs. Ivimey and Purdon to execute a distress warrant. ” The warrant was signed by the auctioneers. He (defendant) went to 3, Wator-lane, and levied a distress on the goods he found in the cellar. Messrs. Ivimey and Purdon had the goods removed to their place, and from that time he had nothing further to do
A difficulty arose about the title, and on July 23 the defendant wrote his solicitors saying that, owing to the complicated nature of the title, he withdrew from the purchase. The plaintiff claimed £600 as the loss he had sustained by reason of the defendants refusal to complete.
Mr. Hansell (Mr. E. P. Hewitt with him), for the defendant, argued that there was not a sufficient memorandum in writing to satisfy the Statute Of Frauds. There was no memorandum signed by the defendant which contained the vendor’s name either expressly or by reference. The contract commenced with the offer of July 11 without the name of the vendor. There was no document which incorporated the letter of July 7. The signature of tile party to be charged must be to a memorandum which contained the whole terms, or referred to an existing document, which contained the missing link. The letter of July 11, signed by She agents, did not help the plaintiff, because it was after the memorandum signed by the defendant. In “Williams v. Gordon” (6 Ch. Div., 5) the facts were the same as in this case, and the Master of the Rolls (Sir George Jessel) held that there was not a sufficient memorandum. That case had not been overruled or dissented from. “ Filby v. Hounsell ” (1896, 2 ш., 737) was different; there the offer was expressed to be to the agent. In ihat case Mr. Justice Romer agreed with “ Williams v. Gordon” (supra).
Mr. S. H. Day, for the plaintiff, contended that all the documents must be read together, including the letter of July 7. The offer of July 11 was incorporated in the acceptance. It had׳ the same date, price, and name of house. Churchman and Sons appeared in the document as agents for the owners, and who they were could be proved by parol. “ Rossiter v. Miller” (3 App. Cas., 1,124) and “Filby v. Hounsell” (1896, 2 Oh., 737). The letter of repudiation also showed to whom the offer had been made.
Mr. Justice Darling, in giving judgment, said that, apart from the letter of July 7, !■here was nothing .to show to whom the offer was made. From the letter of July 7 he gathered that the defendant was thinking of being the purchaser Of Caryll Hurst. The question was, could the vendor be ascertained by means of a clear reference to another document? He erme to the conclusion that the reference was clear. In the letter of July 7 the name of Le Blanc appeared, also the name of the house, and the expression, “the owner writes us.” He thought there was a sufficient memorandum, to satisfy the Statute of Frauds. _ It was said by the defendant’s counsel that it was only a contract to enter into a contract, and, therefore, not• ■sufficient. He was against that contention, the point having been settled by the case of “Rossiter v. Miller” (supra), judgment for the plaintiff for £300 damages, with costs.
Stay of execution granted pending an appeal.
June 21.
(Before Mr. Justice Bruce.)
ACTION FOR RETURN OF A DEPOSIT.
STIRLING V. STAPLES AND OTHERS.
This was an action brought by Mr. Stirling, a licensed victualler, against Mr. George Staples, also a licensed victualler, and Messrs. Bromley, Son and Kelday, public-house brokers, of Finsbury-pavement, to recover £250, the amount of a deposit which the plaintiff paid when lie entered into a contract to purchase the Wellington Inn, High Barnet. The defendant-staples admitted the plaintiff’s claim, while the defendants, Messrs. Bromley, Son and Kelday, counterclaimed for £52 10s. for services rendered.
Mr. David appeared for the plaintiff ; Mr. Willies Chiity for the defendant Staples ; and Mr. J. Ritchie Macoun for the defendants, Bromley, Son and Kelday.
Mr. David, in opening the case for ■the plaintiff, said in November, 1896, the defendant, Mr. Staples, was proprietor of the Wellington Inn, High Barnet, and he orally agreed to sell the house to the plaintiff, all at, for £5,000, but stipulated that the terms of the contract must be approved by his brokers, Messrs. Bromley, Son and Kelday. A telegram was sent to Messrs. Bromley, Son and Kelday, whose representative met the parties at the Wellington Inn. At that meeting the plaintiff gave a cheque for £250 as a deposit, and this was handed to the representative of Messrs. Bromley, Son and Kelday, in order that bis firm might hold it as stakeholders. At this time the vendor had no lease and did not get one until December 31, 1897. An abstract, was not delivered to the plaintiff until March 11, 1898, and then it was discovered that the covenants were not usual, and the plaintiff could not accept the title. In consequence of this the contract was not completed, and the defendant Staples agreed that the deposit should be returned to the plaintiff, but Messrs. Bromley, Son and Kelday would not return it. They, however, paid ■the amount into Court, less £52 10s., which they said they were entitled to for services rendered. It appeared that when the
for breach of the covenant to repair. The defendants served a third party notice upon navis claiming indemnity from him under his covenant in the assignment. At the trial, before Mr. Justice Ohannell, at Birmingham, the learned judge found that there had been a breach of the covenant to repair committed during the possession of John Matin and of the defendants, and gave judgment for the plaintiff subject to a reference as to the amount of damages, and he ■held that the defendants were entitled to indemnity against Davis. Davis appealed.
Mr. O. Leigh Clare appeared for Davis ; Mr. A. T. Lawrence, Q.O., Mr. T. Douglas, and Mr. S. Joyce Thomas appeared for the defendants.
The Court dismissed the appeal.
Lord Justice A. L. Smith said that, tike the learned judge in the Court below, he was not absolutely clear upon the construction of the covenant in the assignment. Upon the whole, however, he had come to the conclusion that the learned judge was right. These houses were old houses, and the defendants, as executors, were selling them to Davis. How was the covenant to be read? The first part of the covenant—“ and the purchaser doth hereby covenant with the vendors that he will henceforth pay the rent by the said lease reserved ” — contained no limitation, and was a covenant to pay the rent, no matter when it accrued due. Nor was there any limitation in the next sentence in the covenant. The clause went on:—“And from the payment and performance thereof respectively will keep indemnified the vendors,” etc. That was, thai Davis would keep the vendors indemnified from liability to pay the rent and perform the covenants, and that meant that, whatever liability the vendors were at that time under in those respects, Davis covenanted to indemnify them against. The judgment was therefore right.
Lord Justice Rigby concurred. Each of the parties knew the condition of the premises and the terms of the lease. Davis knew that the covenant in the lease had not been performed by the defendants or their testator, and he agreed by the covenant in the assignment to indemnify them against■ their breach of covenant. That was not an unreasonable construction of the covenant, because it might be assumed that he gave less for the lease than he would otherwise have done.
Lord׳ Justice Vaughan Williams agreed.
HIGH COURT OF JUSTICE. QUEEN’S BENCH DIVISION.
June 16.
(Before Mr. Justice Darling.) CONTRACT TO PURCHASE HOUSE: STATUTE OF FRAUDS: ASCERTAINING VENDOR.
WALTERS V. DE BLANC.
This was an action to recover damages for bleach of contract to purchase a house belonging to the plaintiff, and known as Caryll Hurst, West Grinstead. The facts of the case raised an interesting point under the Statute of Frauds. In July, 1898, the defendants, having seen the house, made the plaintiff’s agents a verbal offer. On July 7, 1898, the plaintiff’s agents, John Churchman and Sons, wrote to the defendant as follows: —
“Horsham, July 7, 1898.
“Dear Sir,—Re Caryll Hurst, West Grin-stead. The owner of the above writes us, ‘I was not here this morning until too late to telegraph. I could not entertain for a moment the offer of £2,050 for the whole property; my lowest price would be £2,600. The land, ׳building, planting, road-making, etc., have cost me out of pocket £200 more than this, but I will make some sacrifice (but not more than this) if I had an offer to purchase outright. The house and grounds up to the iron fence is what I offer to let for £110, or to sell for £2,200. This is what I have spent on it. The additional four and three-quarter acres I purchased for £650, and it has cost me, including draining, planting, legal expenses, etc., over £709, and I cannot think of selling it for appreciably less.’ Trusting you will see your way to increase your offer,
“We are, yours, etc.,
“John׳ Churchman and Sons. “C. W. Le Blanc, Esq.”
On July 11 the defendant went to the offices of Messrs. Churchman and Sons and signed the following document: —“ I, the ^ undersigned, agree to purchase Caryll Hurst, W est Grinstead, Sussex, at the sum of £2,450, dated July 11, 1898,-—C. Willoughby Le Blanc.” On the same day Messrs. Churchman and Sons sent the defendant the following letter: —
“ Dear Sir,—Caryll Hurst, West Grinstead. Referring to your call of this morning, as promised we wired the owner, saying you had offered £2,450 for above, and we, as agents for the owner, accept this offer. The contract to be prepared bv vendors’ solicitors; will you kindly let us have the name and address of your solicitor, and oblige,
“ Yours,
“John Churchman and Sons. “C. W. Le Blanc, Esq.”