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Cases.

Wyld v. Hopkins.

23rd, by Martin, Q. C., and Willes, for the plaintiff, and by Watson, Q. C., for the defendant.

Cur. adv. vult. The judgment of the Court, consisting of Pollock, C. B., Parke, Alderson, and Rolfe, BB., was now delivered by

Pollock, C. B.-We have considered the two cases which were argued before us, that of Reynell v. Lewis and of Wyld v. Hopkins, and give our judgınent in those only; but we think it right to state fully the principles on which our judgment proceeds.

The question in all cases in which the plaintiff seeks to fix the defendant with liability upon a contract express or implied, is, whether such contract was made by the defendant, by himself or his agent, with the plaintiff or his agent: and this is a question of fact for the decision of the jury upon the evidence before them.

The plaintiff, on whom the burden of proof lies in all these cases, must, in order to recover against the defendant, shew that he (defendant) contracted expressly, or impliedly: expressly by making a contract with the plaintiff, impliedly by giving an order to him under such circumstances as shew that it was not to be gratuitously executed—and if the contract was not made by the defendant personally, it must be proved that it was made by an agent of the defendant, properly authorised, and that it was made as his contract.

In these cases of actions against provisional committee-men of railways, it often happens that the contract is made by a third person : and the point to be decided is, whether that third person was an agent for the defendant for the purpose of making it, and made the contract as such.

The agency may be constituted by an express limited authority to make such a contract, or a larger authority to make all falling within the class or descrip to which it belongs, or a general authority to make any, or it may be proved by shewing that such a relation existed between the parties as by law would create the authority; as for instance, that of partners by which relation when complete one becomes by law the agent of the other, for all purposes necessary for carrying on their peculiar partnership, whether general or special, or usually belonging to it; or the relation of husband and wife, in which the law under certain circumstances considers the husband to make his wife an agent. In all these cases, if the agent in making the contract acts on that authority, the principal is bound by the contract, and the agent's contract is his contract : but not otherwise.

Cases,

Wyld v. Hopkins,

This agency may be created by the immediate act of the party: that is, by really giving the authority to the agent; or representing to him that he is to have it, or by constituting that relation to which the law attaches agency; or it may be reated by the representation of the defendant to the plaintiff that the party making the contract is the agent of the defendant, or that such relation exists as to constitute him such; and if the plaintiff really makes the contract on tie faith of the defendant's representation, the defendant is bound; he is estopped from disputing the truth of it, with respect to that contract; and the representation of an authority is quoad hoc precisely the same as a real authority given by the defendant to the supposed agent.

This representation may be made directly to the plaintiff or made publicly, so that it may be inferred to have reached him, and may be made by words or conduct.

Upon none of these propositions is there, we apprehend, the slightest doubt: and the proper decision of all these questions depends upon the proper application of these principles to the facts of each case, and the jury are to apply the rule with due assistance from the judge.

There are few, if any of these cases, in which it is contended that authority was directly given by the defendant to the party making the contract, to make it for the defendant; rarely has that circumstance been proved by direct testimony-in one it was said that it was to be inferred from a conversation in which the defendant er. pressed his satisfaction that the expenses were moderate. That was evidence of the fact for the consideration of the jury; entitled to more or less weight according to the other circumstances of the case.

But it is contended, and that formed the chief part of Mr. Mar. tin's argument and a part of that of others) that the relation of coprovisional committee-men constituted an association, or a quasi copartnership, in which one was agent for the other, for the purposes of all preliminary proceedings necessary to enable them to obtain an act: or that the fact of their being co-promoters of the scheme, coupled with the fact that no money was supplied for the expenses of it, was evidence to go to the jury, that each authorised the other to contract for those purposes, on his behalf and that of the other promoters-it was insisted that where there was no other evidence than the mere fact of the defendant having already agreed to be a provisional committee-man, there was a sufficient case, or at least a case for the consideration of the jury to prove an authority given by

Cases.

the defendant to every other committee-man to give the order out of which the contract arose, by himself, or by the solicitor or secretary, Wyld v. Hopkins. or an authority to such solicitor or secretary to give it on behalf of the committee.

We think that no such consequence follows as matter of law from the mere fact of the defendant agreeing to be a provisional committeeman—such an agreement amounts to no more than a promise that he would act with other persons appointed or to be appointed for the purpose of carrying some particular scheme into effect. The term “ committee” means an individual, or a body, to whom others have committed or delegated a particular duty, or who have taken on themselves to perform it in the expectation of their acts being confirmed by the body they profess to represent or act for: an agreement to be a committee-man is an agreement to become one of that body. The schemes may be various—to establish an hospital, or place of emigration, to which persons are to subscribe merely from charitable motives; or partly from these motives, partly from others; or a proprietary school, or literary institution, or assembly-room, in which they are to be beneficially interested as shareholders-or to obtain an act for a bridge, drainage, railroad, or canal: but whatever the objects may be, it seems to us to make little or no difference in the position of the person agreeing to act as a committee-man, if the object of some, most, or all, is gain to themselves individually: the legal consequence is the same as if the object of the parties were the most charitable and benevolent, though the result may be practically very different, in exciting an improper prejudice in the minds of a jury when the evidence is laid before them for their consideration. Such an intended association constitutes no agreement to share in profit or loss, which is the characteristic of a partnership. It would be absurd to suppose that such a relation could be meant to be created by any of those who consented to act. Could it be imagined that a person would agree to be a partner, not only with those who were then named committee-men, but any that should afterwards be named by themselves, or by the projector of the company; and could those who subsequently agreed to become members suppose that those previously named could ever have so intended? The truth is, the agreement to become a provisional committee-man means neither more nor less than what the words express: viz, an agreement to act on the provisional committee in carrying into effect the preliminary arrangements for petitioning Parliament for a bill, and so to promote

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Casee.

Wyld v. Hopkins.

the scheme. If afterwards the provisional committee-man does act, he is responsible for his acts.

But there are other cases in which the question does not assume so simple a form; and where there is evidence that the defendant has not only consented to be a provisional committee-man, but has authorised his name to be inserted in a prospectus, not generally, but a particular prospectus, in which, in some cases, certain persons are described as the acting committee, in others, solicitors are named, or engineers, or a secretary.

If such a prospectus has been so publicly circulated, with the defendant's consent, that the jury would presume the plaintiff knew of it, or if the plaintiff has had it shewn to him, at or before the time of making the contract, and has in either case acted upon it in making the contract, the question is, what inference ought a reasonable man to draw from the contents of that paper? This must of course depend upon the terms of each particular prospectus.

If the prospectus state merely the names of the provisional committee and nothing more, and no light can be derived from the context, that circumstance does not alter the liability of the defendant. If not responsible as being one of that committee in fact, he cannot become so by the representation of the fact.

If it state the names of the acting committee also, where that has been appointed, is the meaning, that the acting committee is to take the whole management to the exclusion of the provisional committee, their provisional character having ceased, in which case the provisional committee would not be liable ? or does it mean that the provisional committee-men have appointed the acting committee or the majority of it, on their behalf, and as their agents, in which case they would be liable for the contracts of the acting committee, or the majority, made as such agents?

Again, does it mean, where the solicitor's name is mentioned, that such person would be regularly employed in that character, by those of the committee who acted, or that he was already appointed by all whose names are mentioned as their solicitor, to do all solicitor's business on their behalf; and then would arise a further question, what was the business, at the time of the contract, usually transacted by solicitors for companies, intending to obtain an act of Parliament, and on behalf of the company-which is a question of fact to be proved by evidence.

The same remark applies to the appointment of secretary.

Cases.

Wyld v. Hopkins.

Applying these observations to the two particular cases before us, we think that in that of Reynell v. Lewis there was some evidence to go to the jury of the employment of the plaintiff, and that there was no misdirection ; but we think that we ought to grant a new trial on payment of costs, in order that it may be submitted to another jury, and fully considered by them upon the principles above laid down. In the other case of Wyld v. Hopkins, we entertain so much doubt whether there was any evidence at all to go to the jury, that we think there ought to be a new trial generally, without the condition of the payment of costs.-Rules absolute accordingly.

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