(460.)

GILLOW AND CO. v. LORD ABERDARE.

[OCTOBER 27TH, 1892.]

Principal and Agent –Commission—House Agents—Authority to Sell.

This was an appeal from a decision of Mr. Justice Hawkins (8 The Times L. R., 676), who had held that there was no question in the case for the special jury before whom the trial took place last June, and had given judgment for the defendant. The action was brought to recover the amount of a commission which the plaintiffs, a firm of house agents, claimed on the sale, in February, 1891, of the ground lease of a house known as No. 1, Queen's Gate, by the defendant to a Mr. Tooth. It was admitted that Lord Aberdare had instructed the plaintiffs to either let his house furnished or for a term of at least five years unfurnished, or to sell the ground lease. It was, in fact, let to Mr. Tooth through the instrumentality of the plaintiffs in February, 1890, for some months at 100 guineas a month. Commission on this transaction was claimed by and paid to the plaintiffs. Mr. Tooth was to have continued in the house until March, 1891, as Lord Aberdare's tenant, but in February of that year he purchased the ground lease for £11,500-the price at which the plaintiffs had been instructed by the defendant to sell it. Mr. Tooth had had some quarrel with the plaintiffs, and had, in fact, refused to make any offer to buy the lease of the house through them, and had carried on his negotiations on the subject through other house agents, to whom Lord Aberdare was stated to be quite willing to pay the commission. It was not denied that when the plaintiffs had let the house to Mr. Tooth he had said something as to his being likely to make an offer for the ground lease if he found it suited him; but the learned Judge at the trial had held that there had been no evidence that the plaintiffs had brought abɔut the relations of vendor and purchaser in the matter, and he had given judgment in consequence against them. The plaintiffs in this appeal sought to have that decision set aside, on the ground that the learned Judge ought to have left it to the jury to say whether they (the plaintiffs) had had authority to sell the lease, whether such authority, if given, had, in fact, ever been withdrawn, and whether the sale to Mr. Tooth had or had not been the result of their having introduced him to the respondent.

one.

The appeal was dismissed.

The MASTER OF THE ROLLS characterised the case as a hopeless The respondent had instructed the appellants to do one of three things. They did one by letting the house furnished. They had then sent in their claim for their commission on such letting and this had been paid. They had had no authority to let to a tenant and then at the end of this tenancy to enter into absolutely new negotiations on behalf of the respondent for the sale of the lease to him or anybody else. It was not contended that they had ever made any arrangement

to give the tenant an option of purchase, and all Mr. Tooth had said to them about purchasing the house had been that if he liked it he might buy it. The sale to the tenant had not been brought about by the introduction of the plaintiffs, with whom Mr. Tooth, indeed, had refused to have any dealings, but had been the result of independent action on his part in going to another firm of house agents and in making an offer to the respondent through them for the ground lease. Lords Justices LOPES and KAY concurred.-(T. L. R., C. A., vol. ix., p. 12.)

(461.)

DENNIS v. GOULD.

[OCTOBER 29TH, 1892.]

Mortgagor and Mortgagee-Surveyor's Certificates—Action of Negligence. (For the Appeal in this Case, see p. 79 infra.)

A mortgagee cannot, in the absence of fraudulent representation and of contract, maintain an action of negligence against a surveyor, employed by and on behalf of the mortgagor, on whose certificates he has advanced money.

Mr. Justice WILLS, in giving judgment, said the Official Referee had decided on the ground that there was no evidence of any contract between the plaintiff, the mortgagee, and the surveyor, the defendant, and he had decided rightly. The Official Referee had tried the case with great attention and care, and his decision was right. As usual in such cases the building owner had no money to make the necessary advances to the builder, and there was to be a mortgage for the purpose to Dennis, who was to make the advances; but Hunt, the mortgagor, employed Gould as the surveyor, whose certificates were accepted by Dennis, who made the advances. The Referee had found that the certificates were given with great carelessness, though not fraudulently, and the question was whether Dennis could maintain the action against the valuer. It appeared plain that he could not do so according to the decision of the House of Lords in the well-known case of Peek v. Derry. That was a case of a prospectus to be shown to subscribers, and it was held that an action could not lie apart from fraud. That case was quite analogous to the present, in which the certificates were to be shown to an unknown mortgagee. There were, indeed, the decisions in Cann v. Wilson-which was, however, before Peek v. Derry and Scholes v. Brook, in which it was laid down that there must be a contract of employment between the parties to the action. The decision in the latter case was expressly put upon the ground that the parties had been brought into communication and that there had been a contract between them. Here there was no such contract between the plaintiff and the defendant. There was, therefore, no authority for the action. This was the more remarkable as there must have been hundreds and thousands of such cases within

the last 40 or 50 years, and the mortgagee must have suffered in thousands of such cases, and yet there was no authority to show that such an action could be maintained without a contract between the parties. The Official Referee, therefore, was right in holding that this action could not be maintained.

Mr. Justice COLLINS concurred. The action, he said, could only be maintained on one of two grounds; either on a representation, which must, however, have been fraudulent, or on a contract, which did not exist between these parties. It was clear that the surveyor was employed by Hunt, the owner of the land, and who could not make the necessary advances, and therefore got a mortgagee to make them, and employed Gould to give certificates for the advances. But there was no employment of Gould by Dennis, the mortgagee, nor any contract between them. As to any supposed agency of Hunt for Dennis, there was no trace of it, and Hunt was not his agent in employing Gould. There was, therefore, no contract between the plaintiff and the defendant, and the Official Referee held rightly that the action could not be maintained.

Appeal accordingly dismissed.-(T. L. R., Q. B. D., vol. ix., p. 19.)

(462.)

GOSLING v. WOOLF.

[NOVEMBER 3RD, 1892.]

Landlord and Tenant-Lease-Assignment of Underlease-Grant of Underlease-Title-Right to call for Lease of Assignor or Lessor -"Leasehold Reversion"-Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 3, sub-s. 1; s. 13, sub-s. 1.

Under a contract to sell and assign a term of years derived out of a leasehold interest in land, or to grant a lease for a term of years to be derived out of a leasehold interest with a leasehold reversion, the intended assign or lessee has the right to call for the lease under which the intended assignor or lessor holds.-(L.R. [1893] 1 Q.B., p. 39.)

(463.)

IN RE BETTINGHAM-MELHADO v. WOODCOCK.

[NOVEMBER 5TH, 1892.]

Landlord and tenant-Repairs-Sanitary defects-Liability for-Covenant in lease-Construction.

This was a summons to obtain the decision of the Court as to whether, upon the construction of a covenant in a lease, expenses incurred in consequence of sanitary structural defects, which the

landlord would be called upon to remedy by the Public Health (London) Act, 1891, were to be borne by the tenants or the landlord. The premises in question, No. 1, Delahay Street, Westminster, were held by a firm of solicitors under a lease made in 1890 by a surviving trustee. The premises had been occupied by the tenants or their predecessors in business for many years previously. The lease contained a covenant by the tenants to pay all rates, taxes, assessments, and outgoings whatsoever, whether Parliamentary, parochial, local, or otherwise, now or at any time during the said term to be imposed, charged, or assessed on the said premises or the owner or occupier thereof except land tax and landlord's property tax, and to keep the premises "in a tenantable state of repair-damage by fire and tempest "and all ordinary wear and tear alone excepted." The Public Health (London) Act, 1891, contains provisions as to the abatement of nuisances on premises similar to those in the General Public Health Act, 1875, which provide that, in case of a nuisance arising from structural defects, the landlord is the proper person to be served with notice to abate, and has the duty cast on him of remedying the defect. The nuisance was, in the month of February last, found to exist on the premises arising from defects of drainage. According to the defendants' advisers the defects were chiefly in matters arising from ordinary wear and tear and long user. The tenants applied to the landlord, asking him to remedy the defects, and informing him that they should get the sanitary authorities to move in the matter if he did not do so. The result of communications between the parties was that an arrangement was come to, under which the tenants got the work done and paid for it on terms of the cost being ultimately borne by the persons who would have had to bear it in case the landlord had been called upon by the sanitary authority to put the matter right, and had acted on such notice. The landlord took out this summons to have it determined which party was liable.

Mr. Justice NORTH considered the case so clear that he wondered at the parties bringing it into Court. On the showing of the words apart from authority, he considered the tenants liable, and on authority it was equally clear. Among other cases he applied was a decision of the Court of Appeal, Budd v. Marshall (L.R. 5, C.P.D., 481), relied on by both sides on the construction of covenant, in which the word 'duty" occurred, but the word "outgoing" did not, and the majority of the Court, Lords Justices Bramwell and Baggallay, held that the tenant was liable, while Lord Esher (then Lord Justice Brett) differed, giving, as Mr. Justice North pointed out, as a reason that the word "outgoing" did not occur. On the other point his Lordship said that the fact that the tenants had covenanted to do repairs that were not caused by ordinary wear and tear did not lessen their obligation under the other covenant. The tenants had covenanted to do repairs, apart from ordinary wear and tear, and had also covenanted to pay outgoings, which in this case might include repairs on account of ordinary wear and tear, which they were not liable for on the second covenant. -(T.L.R., Ch.D., vol. ix., p. 48.)

(464.)

ELLIS, APPELLANTS, v. LONDON COUNTY COUNCIL,
RESPONDENTS.

[NOVEMBER 6TH AND 7TH, 1892.]

Metropolis-Street-Addition to old buildings—-Extension of boundary fence-Distance from centre of road-"Existing street"-Metropolis Management and Building Acts Amendment Act 1878 (41 & 42 Vict. c. 32), s. 6.

It is provided by 41 & 42 Vict. c 32, s. 6 that from and after the passing of that Act no house or building shall be extended in such manner that the external wall or front of any such house or building, or if there be a forecourt or other space left in front of any such house or building, the external fence or boundary of such forecourt or other space shall be at a distance less than the prescribed distance from the centre of the roadway, provided the construction or extension of any house or building in or abutting upon any street existing at the time of the passing of the Act may be begun and completed in like manner in every respect as if the preceding provision of this section had not been made.

The appellant was the owner of a house and garden abutting upon an old public carriageway. The house of the appellant as well as several others were erected on either side of the road prior to the passing of the above-mentioned Act. In 1889 the appellant pulled down the wall which separated his garden from the road, and erected a new fence a few feet further back from the road. He subsequently commenced to build shops upon the site of the garden, and extended his boundary fence to its original position, which was less than the prescribed distance from the centre of the roadway. The respondents required him to set back his boundary fence.

Held, that the road was an existing street" at the time of the passing of the above-mentioned Act, and that, therefore, the appellant could not be required to set back his boundary fence.-(L.T., Q.B.D., vol. lxvii., N.S., p. 558.)

(465.)

TUCKER v. VOWLES.

[NOVEMBER 8TH, 9TH, 10тн, 1892.]

Vendor and Purchaser-Restrictive Covenants-Property sold in PlotsBuilding Scheme-Representations by Vendor-Plan-Printed Form of Agreement.

If a vendor prepares a plan of a building estate shewing lots with houses marked on them, and an intending purchaser is shewn that plan, and his agreement with regard to a plot purchased by him hap