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entered into any agreement with the defendant to the plaintiff for the work to plaintiff, nor by any resolution or order be done, or why a new trial should not authorised any officer of the Board to be had between the parties on the ground agree with him for the performance of the that the verdict was against the evidence. work in question.

The first part of the rule the Court of The plaintiff, for the first time, on the Queen's Bench afterwards made absolute, 20th of November, 1869, through his and the following is a copy of the rule solicitor, applied to the defendant for pay- absolute-inent of the said work, and the defendant "In the Queen's Bench, Thursday, the having refused to pay him, he commenced 30th day of June, 1870, in the 34th year this action.

of Queen Victoria, Mountstephen v. Luke15. At the trial, at the close of the man. Upon reading the rule made in plaintiff's 's case, the counsel for the de.

this cause, on Thursday, the 21st day of fendant submitted a nonsuit the April, in Easter Term last past, and ground that there was no evidence of any upon bearing Mr. Lopes, of counsel for the liability on the part of the defendant. plaintiff, and Mr. Cole, of counsel for the The learned Judge declined to nonsuit, defendant, it is ordered that the verdict stating that in his opinion there was evi- obtained in this cause be set aside, and a dence to support a count in the amended nonsuit entered instead thereof. form hereinbefore set forth, and which he

“By the Court.” at the same time gave the plaintiffliave to Due notice of appeal has been given, add to the declaration.

pursuant to the said Act. 16. The defendant's case

was then

The Lord Chief Baron's notes of the entered upon, and the defendant was called evidence given at the trial may (if necesas a witness. He said that it was untrue sary) be referred to as part of this case. that he said that he would see the plaintiff The question for the opinion of the paid, but that according to his recollection Court of Appeal is, whether or not the at the aforesaid interview he did advise the defendant is entitled to have the nonsuit said Robert Adams, the surveyor, to go entered. with the plaintiff to the owners of the If the Court shall be of opinion in houses in question, and to try to persuade the negative, then the verdict for the them to employ plaintiff to do the work, plaintiff to stand, and judgment to be and that this was all that passed.

entered for him for the damages assessed The learned Judge left it to the jury to by the jury, with costs of suit. say whether they believed the plaintiff' or If the Court shall be of opinion in defendant, and whether the conversation the affirmative, then the verdict for the deposed to by the plaintiff and denied by plaintiff to be set aside and a nonsuit the defendant took place.

entered with judgment for the defendant 17. The jury returned a verdict for the accordingly and with costs of defence. plaintif, 2871. 78. 7d., being the amount claimed by the plaintiff for the work done A. Charles (Lopes with him) for the and materials provided, and admitted upon plaintiff'.—It is submitted that the deci. the trial to be a reasonable and proper

sion of the Court below was wrong, and amount. Leave was reserved to the de- that the plaintiff is entitled to retain the fendant to move to enter a nonsuit if it verdict on two grounds. First, there is should appear that there was no evidence evidence under the amended count, or on either upon the original declaration or the common count, of an original liability upon the declaration as amended, which on the part of the defendant. It must be ought to have been left to the jury. assumed, from the finding of the jury, that

In Easter Term, 1870, the defendant the conversation between the plaintiff and obtained a rule to shew cause why the the defendant was in the terms stated by verdict obtained should not be set aside the plaintiff, and this conversation shews and a nonsuit entered instead thereof, on that a primary liability and not a surety. the ground that there was no evidence of ship was contemplated. Secondly, the an original liability on the part of the contract in any view of the facts is not


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within the Statute of Frauds. That to Birkmyr v. Darnell (9), shews that statute only applies to collateral engage- the Court should take into consideration ments, or to cases where there is a debt the particular situation of the defendant, or liability on the part of a third person, and all the surrounding circumstances as independently of the engagement of the well as the expressions used. So here guarantor. (He referred in support of the Court will look at the conduct of the the last proposition to the following au- parties, which is consistent with the intenthorities-Chitty on Contracts, 8th edit. tion of the defendant that he should give p. 475 ; Brown on the Statute of Frauds a guarantee, but not that he should be (American), 2nd edit. s. 156; Read v. primarily liable. Nash (1), Harris v. Huntback (2), Har- [KEATING, J.-In Keate v. Temple (8) greaves v. Parsons (3), Cripps v. Hartnall the case was left to the jury. See the (4), Green v. Cresswell (5), Couturier v. note to Forth v. Stanton (10). At the trial Hastie (6), Cherry v. The Colonial Bank of of this cause a nonsuit was claimed on the Australia (7). It will be seen, however, ground that there was no evidence to go to that it became unnecessary to give judg- the jury. The only question for us now is ment on this point.]

whether there was any reasonable evidence Cole (Pinder with him).- When the to go to the jury.] facts are rightly understood it will appear There was no evidence of the orginal liathat there is no ground for saying that bility of the defendant. Peckham v. Faria there was any original liability cast upon (11) is much like this case. The head-note the defendant. It must be borne in mind is as follows : “A. & B. came to the plainthat this was not the case of one large tiff's warehouse, and agreed on a parcel of contract, but of a number of small ones, goods for A., and B. said that he would namely, the connections between the guarantee the payment. A. afterwards sewer and the respective houses. The came alone, and ordered other goods, conversation between the plaintiff and the when the plaintiff sent to B., and asked defendant cannot be construed to mean him whether he would engage for A. B. that a primary liability in the latter was replied, 'I will pay you if he does not.' intended. The occupiers being irrespon. The goods were subsequently delivered to sible people, the plaintiff was unwilling A.-Held, that this was a collateral proto trust them, and then the arrangement mise by B., and required to be in writing made was substantially that if the de- by the Statute of Frands.” Here the fendant would be a surety for them, the plaintiff intended to give credit to the plaintiff should do the work. This con- Board, and he sent in his account to the tention is strongly supported by pars. 8 Board. In Throop on the Validity of Verbal and 9.

Agreements, vol. i. cap. 7, p. 255, there is a (WILLES, J.—The jury having found discussion as to the law bearing upon the that the conversation, as described by the point, “When the promise was to see the plaintiff, took place, the only question for promise paid, or words to that effect.” us is whether there was any evidence for The cases upon the subject are collected, the jury. The upshot of the matter is and the conclusions of the author are that the defendant is liable on the count much in favour of the view now submitted for work and labour, or not at all.]

on behalf of the defendant. There was Keate v. Temple (8), cited in the notes no legal incapacity in the Local Board to

make the contract with the plaintiff. If (1) I Wils. 305.

there bad been an appli

ation to it, the (2) 1 Burr. 373. (3) 13 Mee. & W. 661 ; s. c. 14 Law J. Rep.

contract would have been made. The (N.s.) Exch. 250.

question is not in any way affected by the (4) 4 B. & S. 414; 8. c. 32 Law J. Rep. (N.s.) fact of its being a Local Board. But, even Q.B. 381.

if the Court should decide in favour of (5) 1 Wms. Saund., last edit., vol 1, p. 229. (6) 8 Exch. Rop. 40; s. c. 22 Law J. Rep. (n.s.)

the plaintiff, the proper course to adopt, Exch. 97.

(9) 1 Smith's L.C. 274. (7) 38 Law J. Rep. (N.s.) P.C. 49.

(10) 1 Wms. Saund. 211b. (8) i Bos. & P. 158.

(11) 3 Dougl. 13.

under the circumstances, would be to That resolution I must refer to, because direct that there should be a new trial. Mr. Cole made a point on the main ques

Charles, in reply.—The only question tion in this case in respect of the use of here is, whether there was any evidence some of the pipes which were ordered and upon which the jury might reasonably procured in pursuance of that resolution. find a verdict for the plaintiff. Keate v.

An order was obtained from the surveyor, Temple (8), and the other cases relied on, signed by the clerk of the board, and the have no bearing upon that question. If pipes were sent in and delivered to the the contention on behalf of the plaintiff, plaintiff

, who afterwards deposited them that a verbal order is sufficient in point of in the yard of the local board, some of law, is correct, it is clear that there is them remaining in their possession up to ample evidence to support such a promise. the time of the action. Before the twentyThere is no ground for saying that it one days expired, and whilst the main must be in writing. Clearly, the occu- sewer in respect of which the connections piers were not liable, inasmuch as the were to be made with the house drains period of twenty-one days had not ex- was being constructed, the surveyor of the pired. Further, there was no mutual board, notwithstanding that the twentymistake or common

error between the one days had not expired, proposed to the parties. It is a case of primary liability, plaintiff that he should construct the which cannot be turned into a case of connections between the house drains and suretyship by merely calling it so.

the main sewer.

Upon that he received

an answer that the plaintiff was willing WILLES, J.-This is an appeal against if the board would see him paid. a rule made absolute by the Court of Now that is the state of things upon Queen's Bench, directing that a nonsuit the 5th of April, which is the day on which should be entered, upon leave reserved the conversation took place between the for that purpose. The trial took place defondant and the plaintiff, in respect of before the Lord Chief Baron, and it which the plaintiff now insists that the appeared in evidence that the plaintiff defendant has become personally liable to claimed to be paid by the defendant for pay for the work done in respect of the certain work which the plaintiff performed connections. On that day, the 5th of upon the connections between house April, the plaintiff did commence working drains and sewers, that fell within the at the connections between the houses and scope of the Board of Health for the dis. the main sewer, and he continued to do trict of Brixham, of which board the de- so during the month of April and during fendant was the chairman. The board part of the month of May; and it is in contemplated the execution of certain respect of the work done during that works, and especially of certain sewers period that he recovered against the dein respect of those works. On the 19th of fendant the sum of 2871. 78. 7d. With March, 1866, notice was given by the respect to the mass of that sum, it repreboard to the owners of houses in the town sents work and materials provided by the of Brixham to connect their house drains plaintiff after the conversation with the with the main sewer; that notice would defendant which is set out in the case. cxpire in twenty-one days. Under that It has been suggested that, with respect notice, pursuant to the Act, the owners to a portion of the materials which were were bound to do the work during the used during that period, the precise twenty-one days, if they chose to do it amount of which it is not easy to collect themselves, and if they did not do the from the notes, that the materials which work within those twenty one days, then were used were materials which had been the board had authority by the statute to ordered in advance by the board, and had proceed to do the work, and to charge been supplied by the plaintiff to the board. the price against the owners. Upon the Mr. Cole, in the course of bis argument, same 19th of March the board resolved asked us, at all events, to say that, with that the plaintiff be requested to procure respect to such a sum as might represent pipes as mentioned in the case.

those materials, there was an original liabi.

as to

lity on the part of the board, and in respect away after completing the main sewer in of that at least his client was entitled to respect of which he had the orders of the relief. I think it right, however, to say board, and within an hour after he was so that no materials for disposing of that going away, in consequence of an interquestion appear upon the case before us. view which took place between him and The question reserved was simply whether the defendant, he proceeded to begin the or not the defendant is entitled to have a work which he continued to do during nonsuit entered. The sum of 2871. 78. 7d. the rest of April and during May. Now was taken to be the sum for which the it must be observed that it was desired by defi-ndant was liable, if he was liable at the surveyor, that the work should proall, and there was no reservation for the ceed immediately. It would follow, from Court of Queen's Bench, and no question the statement of the interview, that it is raised for us

a reduction of

was desired by Mr. Lakeman, the dedamages. Therefore we are not bound to fendant, that the works should proceed step out of our way to grant a new trial, 'immediately, and that the connections or to direct a reduction of damages in should be made at once. It was known respect of a matter upon which the Case to them all that the twenty-one days raises no question for our consideration. would not expire until the 10th of the I therefore pass by the matter of the same month, and that the owners of pipes which are suggested to have been houses were not liable for work which used.

should be commenced by the board On the 5th of April, it appears that before those twenty-one days had ex. about an hour before the commencement pired; there were five days remaining, of the work in question, the plaintiff was and for those five days' work it is leaving Brixham ; he had finished what clear that the owners could in no sense he had to do at the main sewer, in respect be liable. They might make themselves of which he was employed by the Local liable by employing the plaintiff, but Board, and he was going away with his they had not employed him. It was carts and men. He had not acted apon known, therefore, to the plaintiff and the suggestion of the surveyor that he to the defendant, that 'the owners were should proceed with the connections, be- not liable; and there is no suggestion that cause he had no order from the board. He the owners had desired to interfere, and was willing to go on if the board would they do not appear to have interfered in see him paid. He knew that the board the matter. In respect of the board, the had not ordered any work beyond the plaintiff was going away because he had main sewer, and be would not go on not been employed by the board, and was (though willing to go on if the board not sure of the liability of the board. were liable), because he knew the board He did not doubt the responsibility of the was not liable. When he was leaving, board in respect of their power to pay; after the completion of the main sewer, there was no suggestion by the plaintiff Mr. Adams the surveyor stopped him, and of anything of the kind. The board were requested him not to go away, as there treated throughout as being perfectly was more work to be done. The plaintiff solvent people, and the plaintiff was as asked who was to be responsible for the willing to work for them, if they employed payment; answer by the surveyor that him on the connections, without any the defendant was waiting to see the surety or guarantee, as he had been to plaintiff about it. Now immediately work for them in respect of the main follows the statement of the interview

The defendant, the chairman, between Mr. Mountstephen, the plaintiff, does not appear to have thought that the and Mr. Lakeman, the defendant. I have plaintiff was afraid of the solvency of the mentioned that the plaintiff was about to board. It will appear presently whether abandon, or aboat to leave, or not to he knew that the plaintiff' was hesitating undertake the connections, because of the because he thought that he had not the Board not being liable for them, and not security of being employed by the board, having ordered them.

He was going and whether what the defendant was led NEW SERIES, 11.-Q.B.




to do was not to say,

Go and do the that view also appears to be improbable work, though the board be not liable, and bere; because the object of the parties whether the board become liable to you was (and that object was carried into or not, and you shall be paid for that effect by what followed), that the plaintiff work; in other words, whether it was should then and there commence work not, “Do the work at once, though you

under circumstances in which it was prachave no obvious or apparent paymaster tically impossible that there should be a at present, and for that work you shall be binding contract entered into by the paid,” whether by the owners coming board to employ him upon that work, in forward, if they could be induced to come a way which should be binding upon the forward and give the orders; whether board. All the probability of the case by the Board employing the plaintiff in a seems, therefore, to rest upon the first formal way, under seal if they thought supposition, “Go to work; it is work proper to do so, or, if they did not think that must be done, and you are sure to be proper to do so, by their coming to paid, and though the board are not liable à resolution to pay, or, failing all, at to you at present you shall be paid for the least by the defendant. But if, upon

work which is done.” If that be the prolooking at the language the result of the per view (which we will discuss presently), conversation is, “You are not employed so far from there being any notion on the by anybody now, but as you are here and part of the plaintiffthat he had got the ready, and as it is desirable that the work order of the board, (though I read a passhould be done, do it out of hand, and sage in one of the judgments in the Court somebody shall pay you,” the result is, below, that the plaintiff thought he had that, as nobody else pays, the defendant got the order of the board,”) it should seem must pay. If, on the other hand, it turns that the plaintiff knew that he had not got out that all that was intended was, “ You the order of the board, and that he had not get the board to employ you, and if the an original debtor in the matter at the board employ you, then I will become

time. It seems also that the defendant their surety, and you shall be paid if they was waiting there to induce him to go on do not pay you;

that would at once while matters were in such a condition, have the colour of the plaintiff being sup

that he also knew that there was not an posed to have doubted, not the liability in order of the board, but that he desired respect of entering into the contract, but the plaintiff to go on, knowing that the solvency of the board, supposing that would not go on unless somebody was to they entered into the contract. If there pay him, and with an undertaking that was a suggestion that the board was in. somebody should pay for the work in the solvent, it might very well be that the end. When you exhaust the somefoundation of the contract of the defen- bodies,” you probably find that the one left dant was a future anticipated contract of with the liability is the defendant himself. principal debt between the board and the Now the statement of the interview is plaintiff, who was to be employed by this: The plaintiff had an interview them. But if, as I have already shewn, with the defendant, and the following all suggestion of the insolvency of the conversation took place—The defendant board is removed, that seems to be a said, " What objection have you to make highly improbable result to arrive at, and the connections ?” Answer,

“I have one indeed which, upon these facts, would none, if you or the board will order the be simply to affirm the thing that is work, or become responsible for the paynot.

• ment.” There is no suggestion there of A third view might be taken, namely, the plaintiff being dissatisfied with the that the defendant, Mr. Lakeman, said, board's solvency; it is a statement, “ If “I will take care that the board employ you or the board will order the work." you, and that that shall be done which shall If the defendant had said at that time, amount to an employment of you by the “ The board has ordered the work," he board; or if no such formal employment might become liable, according to the deis given, at least they shall pay you ; cision of the Exchequer Chamber in Collen

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