Page images
PDF
EPUB

1905

Plaintiff and defendant had the first conversation in New York. Defendant says he then told plaintiff that the Argument. property had been in Scott's hands. There was no condition as to plaintiff consulting Scott. As far back as 9th of April defendant had an intimation that plaintiff had a purchaser. The object of plaintiff's agency was to secure a purchaser, and he accomplished it as soon as defendant's letter of 23rd May was posted in New York. It was not till 28th May that Scott closed his sale of the property: Addison on Contracts, 888; Calloway v. Stobart, 14 M.R. 658. The evidence establishes that it was defendant's clear intention to hold himself responsible for the commission. Defendant had a general power of attorney from his father given many years ago. Plaintiff should not be driven to look to the principal in such a case. Defendant did not say in any of his letters that he was acting for his father. He should have said distinctly that he was only acting as agent and that plaintiff must look to Rev. Mr. Rokeby. There was an implied contract on part of defendant to pay this commission. The question of non-liability of defendant was not taken until after action brought. In any event it is a matter of intention to be gathered from the contract and surrounding circumstances as to whether the principal or the agent is liable: Wright, 438; Green v. Kopke, 18 C. B. 557. The contract here was to find a purchaser, that was made with defendant alone; the contract was fulfilled, and the agent was liable. It was a matter of indifference as to whether plaintiff knew or not that defendant was acting for his father. The agent should name the principal as the person responsible: Ex parte Hartop, 12 Ves. 352. The contract was made in defendant's name. Plaintiff has a right to sue either. Even when the principal is known, credit may be given to the agent, and there is the right to sue either: Calder v. Dobell, L.R. 6 C.P. 486. The trial Judge has found as a fact that defendant is

1905

Argument.

personally responsible; that is like the finding of a jury and should not be disturbed. There was no binding contract to carry out the sale to Ross, the father could have repudiated it.

Howell, K.C., in reply. The only case of an authority. against defendant is Calder v. Dobell, L.R. 6 C.P. 486, that was an action between principals. The leading case on the point is Gadd v. Houghton, 1 Ex. D. 351; that case was followed in Haigh v. Suart, 1890, W.N. 213; Ogden v. Hall, 40 L.T. 751. Prima facie, defendant was acting as an agent; if he did, he was not liable, unless it was shown he was to be looked to.

The judgment of the Court was delivered by

DUBUC, C. J.-The first point to be considered is, whether the plaintiff was employed by the defendant to find a purchaser for the property in question, and whether he found one acceptable to the defendant so as to earn the commission.

The question of the employment was first mentioned at an interview between the plaintiff and the defendant, in New York, in February or March, 1903. The matter was afterwards referred to by correspondence. The price asked for at first was $15 an acre. The plaintiff, by his letter of the 16th May, informed the defendant that he had received a solid offer of $12 per acre in cash. On receiving that letter, the defendant answered on the 19th May that he will consult his father about it; and, on the 23rd May, he writes again that his father will accept $12 per acre. After receiving the letter, the plaintiff went with his purchaser, I. M. Ross, to the office of Mr. Howell, who was known by the plaintiff to be the solicitor of the defendant, and Ross handed him a cheque of $500 as a deposit on the purchase.

The plaintiff had been employed to find a purchaser, and he had found one ready and willing to purchase the farm for the price and on the terms asked for by the defendant. The defendant had accepted the offer by his

1905

DUBUC,C.J.

letter of the 23rd May. It is argued that the acceptance was conditional, because, in that letter, he said that the Judgment. land had also been in the hands of Scott for sale, and he asked the plaintiff to see Scott and arrange with him about the commission. But, as he puts it, it is only a request; it is not a condition that the offer will not be accepted unless that is done. He does not tell him that the sale has to be made through Scott.

It is also claimed that the sale made by the plaintiff was only completed on the 1st June, when Ross handed the cheque to Mr. Howell; that Scott had in the meantime made a sale of the property and had informed the defendant of it by telegram on the 28th May, and that the sale by Scott had the effect of revoking the authority of the plaintiff. It is laid down that, where several brokers are employed independently about the same transaction, the accomplishment of the object of the agency by one operates as a revocation of the authority of the others. A. & E. Enc. of Law, vol. 4, p. 967. What was the object of the agency here? It was not to make a complete sale, because neither Scott nor Bell was empowered to sign a contract of sale. The object was to find a purchaser who would accept the terms of the defendant. The plaintiff was the first to find such a purchaser. If the above principle is to be applied, it was Scott's authority which was revoked by the accomplishment of the object of the agency, and not the plaintiff's. But the plaintiff did more than find a purchaser ready and willing to buy; his purchaser paid $500 on the purchase to Mr. Howell who received the money, as acting solicitor or agent of the defendant.

The defendant contends that he heard of Scott's sale by telegram on the 28th May, and that he accepted it while it was only on the 1st June that Ross' cheque was handed to Mr. Howell. The evidence, however, does not show that Scott's sale was in any way completed on the 28th

1905 May; or that, on the 1st June, it was in a more advanced Judgment. stage than the sale made by the plaintiff. The sale made to the purchaser found by Scott was also made through DUBUC, C. J. Mr. Howell, and he had not heard of it on the 1st June. The defendant finally accepted the purchaser found by Scott, but he had already, by his letter of the 23rd May, accepted the plaintiff's offer, and consequently the plaintiff's purchaser. The fact that in the letter he refers to Scott as regards the commission does not alter the main feature of the transaction. And the explanation afterwards given by the defendant that, on receiving Scott's telegram, he thought the sale was made to the joint client of Bell & Scott, which meant, of course, that the purchaser was the one found by Bell, and that an arrangement had been arrived at between Scott and Bell about the commission, showed that, at that time, the defendant contemplated and intended to accept the purchaser found by the plaintiff. On the above facts, I think there can be no doubt that the plaintiff had done what was necessary to earn his commission.

The next point raised is whether the defendant can be held personally responsible for the commission, or whether the plaintiff's only recourse is against the defendant's father in whose name the property stood and who lives in England.

The defendant had told the plaintiff that the land belonged to his father. As a rule, when a person contracts in the name of another and gives the name of his principal, the contract so made is considered the contract of the principal, and involves no liability on the part of the agent. 4. & E. Enc. of Law, vol. 1, p. 1119. Wright on Principal and Agent, p. 428. But it is only a general rule, and Story on Agency, 306, who lays down the same doctrine, after stating that the agent in such a case incurs no personal responsibility, adds the following qualification: "unless the other circumstances of the case lead to

1905

the conclusion that he has either expressly or impliedly incurred, or intended to incur, such personal responsi- Judgment. bility." At p. 309, the same author, after reviewing the

law of other nations on the subject, says: "Our law does DUBUC, C. J. not, any more than the law of those nations, exempt the agent from personal responsibility, where he chooses, by his own act or contract, voluntarily to incur it, or where, from his own conduct, or the form of the act or contract, it is necessarily implied or created by operation of law."

In the present case, the defendant had been, to the knowledge of the plaintiff, living and working on the farm in question for a number of years. When the plaintiff and the defendant met in New York, the plaintiff states that the defendant told him he had not sold his farm at Headingly. The plaintiff says further that, when he told the defendant that, on his return to Winnipeg, he would try to sell his farm for him, the defendant said: "Very well, if you, when you return, call in, I will give it to you." The defendant, in his evidence, says that he told the plaintiff then that the land belonged to his father; this is emphatically denied by the plaintiff. The trial Judge must have believed the plaintiff's statements against those of the defendant.

In his letter of the 19th May, after receiving from him the offer of $12 an acre, the defendant says to the plaintiff that he is writing his father about it and will let him know. Four days after, on the 23rd May, the defendant writes again to the plaintiff and tells him that he has heard from his father that he will accept $12 per acre; and, after referring to Scott, he says: "Will you please call on him and arrange regarding commission as of course I cannot afford to pay more than one commission." The plaintiff knew then that the defendant could not have heard from his father in reply to his letter of the 19th May. This rather wild and incredible statement of the defendant was such as to warrant the plaintiff in believing,

« PreviousContinue »