Page images
PDF
EPUB

That

v. Wright (12), on the ground that he undertook to be agent for some third persons, from whom he had no authority. might be suggested if he had said, “The board has ordered the work," but he did not. He contented himself with saying, "Go on, Mountstephen, and do the work, and I will see you paid." I conceive that it was competent to a jury, I go no further than that, I say nothing of the general merits of the case, because they are not before us, to find that the meaning of that answer was, not "I will be liable as surety to the board, if they become liable to you," making the contract one of suretyship, but that it was, "whether the board be liable or not, do the work and you shall be paid," or rather, perhaps, it would be more accurate to say, "though the board be not liable, yet do the work and you shall be paid." At least the conclusion might be drawn, whether the board be liable or not, do the work and you shall be paid. If that be so, it amounts to an undertaking that the board shall employ him in such a way as that they shall pay, or if they do not, then that the defendant will himself pay. It seems to me rather to come to this, "I will pay you for that work, unless you should happen to be paid either by the board, or it may be by the owners, assuming that they come forward and pay, though they be not liable." That is the result. It is a bargain, therefore, deduced from that conversation, to pay for the work, though it was known that there was no person liable at the time, and whether a person should become liable in future or not; that is to say, whether there was or whether there might be any person who could be guilty of a debt, default, or miscarriage in the matter. It is only in respect of such persons that the Statute of Frauds applies.

The leading case upon the application of the Statute of Frauds to a matter of this kind has generally been considered to be that of Birkmyr v. Darnell (9), and in note b, to Mr. Evans's edition of Salkeld, it is stated, that "from all the authorities it appears, conformably to the doctrine in this case, that if a person, for whose use (12) 8 E. & B. 647; s. c. 27 Law J. Rep. (N.S.) Q.B. 115.

the goods are furnished, is liable at all to any other person, the promise is void. except in writing." I think that may very well be modified to, "is liable at all, or if his liability is made the foundation of a contract between the plaintiff and the defendant." That would exclude the case which I put to Mr. Charles, in the course of the argument, of persons, supposing that a third person was liable, and entering into a contract, "assuming him to be liable, I will be answerable for his solvency." If, in such a case, it turned out that he Was not liable at all, the contract would fail, because there would be a failure of that which the parties intentionally made the foundation of the contract. The lex contractus itself would make an end of the claim, and not the application of the Statute of Frauds, whether the contract was in writing or whether it was not in writing. I put the case of its being in writing, but not signed, to make it precise, and did not mean not signed in order to take it out of the Statute of Frauds. I apprehend the answer would be the same whether the contract was signed or not. The law of contract gives you as foundation that a person was taken to be liable, and that the suretyship was a suretyship in respect of that liability. Take away the foundation of principal contract, the contract of suretyship would fail. So, again, if there was a contract with reference to a liability not existing at the time, in respect of the debt not being due at the time and being payable in futuro, that would come under the word default, and there would be no difficulty about that. So if there was a contract, "If A. B. employ you to do work, I promise to become surety for him that he shall pay you,”-in that case the promise would clearly come within the statute, because, although there was no liability existing at the time when the promise was made, there was a liability contemplated; and the liability so contemplated was the foundation for the promise of the defendant. It was a contract of suretyship in respect of a liability to be created, and there again the lex contractus would prevail. There would be the condition precedent to the arising of any liability, namely, that there should

be a principal debtor established before the surety became liable. In all these cases, no doubt, one agrees thoroughly with what was laid down in the Court of Queen's Bench; because you have the case of principal debt contemplated by the parties; suretyship founded in respect of that principal debt. But in order to bring the case within that rule, you must first of all shew that the parties did intend that there should be a principal debtor. In this case, seeing that the parties knew that the board was not liable, and that the plaintiff would not go on, unless he had the board or the defendant liable, and did not care, having the defendant liable, if the board was liable or not, the facts seem to exclude, and the jury might well find that they excluded, the notion of the defendant becoming surety for a liability either past, present, or future upon the part of the board, and would look upon his contract as a contract to pay, whether the board have been, are, or shall be liable or not, as if the words had been, "do that work now and here, and you shall be paid for that work." That is a case of principal liability.

We were asked by Mr. Cole to look at a variety of points in this case, upon which he suggested that the true result ought to be a new trial, and not a reversal of the rule directing that a nonsuit should be entered; but the arguments upon that head appear to receive their answer from the form of the reservation. The Lord Chief Baron appears by the case to have left the question to the jury, whether the conversation took place or not. If it were necessary, we might turn to the notes of the Lord Chief Baron, with which we are furnished under the agreement of the parties, and there it would seem that the question went to the jury in a more specific form; but in whatever form the question went to the jury, that form is not complained of by the present rule. We are not called upon to say whether there might not have been a more precisely right way of leaving it to the jury, by asking them whether the defendant contemplated an original liability, or only contemplated a liability as surety for the Board. No such question was raised; no such ques

tion was reserved, and no such question was moved in the Court of Queen's Bench, or decided by that Court. The question reserved and decided there was to move to enter a nonsuit, if it should appear that there was no evidence either upon the original declaration, or upon the declaration as amended, which ought to have been left to the jury; that is to say, any evidence upon which the jury might find that the defendant undertook a principal liability, whether the Board or the owners became liable or not. The rule was made absolute to enter a nonsuit, on the ground that there was no evidence of an original liability on the part of the defendant. The case before us having been framed and settled to raise the question upon which we are to pronounce judgment, the question for the opinion of the Court of Appeal is stated to be whether or not the defendant is entitled to have the nonsuit entered; if the Court should be of opinion in the negative, then the verdict for the plaintiff is to stand and the judg ment to be entered for him; if it should be of opinion in the affirmative, that the defendant is to have a nonsuit entered; the question then is, whether, at the end of the plaintiff's case, the Lord Chief Baron would have been justified in directing that the plaintiff should be nonsuited, or that there should be a verdict for the defendant.

I do not think it necessary to make any further remarks upon the judgment in the Court below. It is quite clear from the report both in the Law Journal Reports and in the Law Reports, that the judgment is founded upon the notion that, upon the facts, the parties must be taken to have supposed the existence of a principal contract with the board, or, taking Mr. Cole's view, with the owners, before there could be any contract arising with the defendant. It is so stated in the head note in the Law Journal Reports, which is accurately framed in that respect, upon looking at the judgment, "a supposed liability." The facts, however, are such, that the jury might have thought, as I apprehend correctly, that it was a supposed non-liability of the board that led to what took place between the plaintiff and the defendant. In the report in the Law Reports, in

the judgment of Blackburn, J., which I do not presume to criticise, except for the purpose of finding out, as I am bound to do, the reasons on which he proceeded, there is this passage: "We must take it that the plaintiff, when he agreed to do the work, thought that he had got the order of the board, but that he would not have done the work without, in addition to the order of the board through their chairman, the personal promise of the defendant himself that he would see him paid." I am not at all criticising the law as laid down, except so far as it conflicts with Birkmyr v. Darnell (9); but dealing with that judgment upon the question of fact upon which it is founded, I humbly conceive that it assumes the fact differently from what appears upon the case. as laid before us. It assumes that the plaintiff thought that he had the order of the board; whereas it appears upon the case that the plaintiff would not go on because he thought he had not got the order of the board. The result appears to be that the jury might well upon the evidence have found an original liability in the defendant, a liability not falling within the provisions of the Statute of Frauds. As that statute is out of the question, as the liability by such a finding would be established, the entering of a nonsuit upon that evidence is a course which could not have been sustained, and we are therefore bound to reverse the judgment of the Court of Queen's Bench.

CHANNELL, B.-I agree with the judgment which has been delivered by my brother Willes.

KEATING, J.-I am of the same opinion. The simple question is whether the evidence produced at the trial was not such that the learned Chief Baron was bound to leave to the jury the question whether there was an undertaking by the defendant that he would be primarily liable to the plaintiff, or whether there was merely a contract of suretyship on his part. For the reasons given by my brother Willes, I agree that there was evidence which could not properly be withheld from the jury, and in this respect we differ from the Court of Queen's Bench. There was evidence upon which the jury might reason

ably find that the defendant contracted that he would be liable to the plaintiff.

PIGOTT, B.—I have had some doubts, but, upon the whole, I think that there was evidence to go to the jury. The plaintiff was going away, having completed the work upon the sewer. There was

more work to be done in respect of the connections, and the conversation which is set out in the case takes place between the plaintiff and the defendant: the latter says, "Go on, Mountstephen, and do the work, and I will see you paid." There is, therefore, evidence of a direct order to do the work, and the plaintiff proceeds to do it upon that assumption. How could such evidence be withdrawn from the jury? The words, "I will see you paid," can hardly mean, "I will be surety for some one else, and will see that he pays you."

CLEASBY, B.-I have also arrived at the conclusion that our judgment must be in favour of the plaintiff. The jury were of opinion that the plaintiff's version of the conversation between himself and the defendant was correct, and that being taken to be so, it is clear that there was evidence to go to the jury of a contract by the defendant of primary liability to the plaintiff. It is clear that the plaintiff did not do the work on the responsibility of the owners of the houses, and that he would not accept such responsibility. [His Lordship went through the facts relating to the conversation as set out in the case.] The answer of the defendant means, in effect, "Never mind, go on, and you shall be paid." The liability of the defendant upon this contract is quite consistent with the subsequent conduct of the plaintiff.

Judgment reversed.
Judgment entered for the plaintiff.

Attorneys -G. E. Philbrick, agent for John Kitson, Torquay, for plaintiff; Church, Sous & Clarke, agents for Francis & Baker, Newton Abbott, for defendant.

[blocks in formation]

Landlord and Tenant-Distress-Excessive Seizure-Money paid under Protest— Money had and received.

A declaration alleged that the plaintiff was tenant to the defendant of a house, and the defendant wrongfully distrained for cer tain arrears of rent on goods of the plaintiff of much greater value than the said arrears and of the charges of the distress and appraisement and sale, although part of the said goods was of sufficient value to have satisfied the said arrears and charges, and thereby made an unreasonable distress contrary to the statute. There was a second count for money had and received. The plaintiff, before the distress, had assigned the goods seized to trustees, for the benefit of his wife. The plaintiff, his wife, and one of such trustees resided in the house. 91. was in arrear for rent, when the defendant distrained for 181. for rent in arrear and the costs, and seized goods to the value of 1001. The plaintiff offered to pay 91. and costs and charges. This offer was refused, and the money distrained for and costs and charges were paid under protest. The plaintiff suffered annoyance from these proceedings-Held, that the declaration disclosed a good cause of action, and that there was sufficient evidence of an interest in the goods, on the part of the plaintiff, to go to the jury in respect of the first count. And that the plaintiff was entitled to recover upon this declaration the excess of the money paid under protest, and damages for the annoyance he had suffered.

Declaration, first count-That plaintiff was tenant to the defendant of a messuage at a certain rent payable by the plaintiff to the defendant, and the defendant wrongfully distrained for certain arrears of the said rent, goods of the plaintiff of much greater value than the amount of the said arrears and of the charges of the said distress and of the appraisement and sale thereof, although part of the said goods was of sufficient value to have satisfied the said arrears

* Coram Lush, J., and Hannen, J.

and charges, and might then have been distrained for by the defendant for the same, and the defendant thereby made an unreasonable distress for the said arrears contrary to the statute in such case made and provided.

Second count-Money received by the defendant for the use of the plaintiff, &c.

At the trial before the learned judge of the Salford Hundred Court at Manchester, it appeared the plaintiff was tenant to the defendant of a house, and that he had assigned the goods in the house by a post-nuptial settlement to trustees for the benefit of his wife. One of the trustees lived in the house with the plaintiff and his wife, who also resided there and used the goods. The plaintiff went away from home, and on his return found a bailiff in possession of goods seized to the value of 1007., with a warrant of distress for 181. and costs. The amount of rent really due was 91., and an offer was made to pay this sum and costs, which was refused by the bailiff. The plaintiff's attorney then gave a personal undertaking to pay the whole amount under protest, and the goods were given up. The plaintiff suffered annoyance from the acts of the defendant's bailiff. The learned judge directed a nonsuit, on the ground that the plaintiff had no property in or possession of the goods seized, and that nothing could be recovered under the money counts; but gave leave to the plaintiff to move the Court to set aside the nonsuit and have a new trial.

Heywood accordingly moved (on Nov. 7) and obtained a rule to set aside the nonsuit, and for a new trial, on the grounds, first, that there was evidence to go to the jury that the property in the first count of the declaration was the property of the plaintiff; second, that the plaintiff was entitled to recover on the money counts.

Herschel now shewed cause.-The plaintiff had assigned the goods which were seized, and had no property in or possession of them.

[LUSH, J.-Suppose they had been seized by a stranger, would the plaintiff have had no remedy?]

Possibly a special action might have been brought, but he cannot recover upon

a declaration for excessive distress, because the goods are not his. He is not a bailee nor has he the possession. His enjoyment is not interfered with, and if he is a qualified owner it should have been so stated in the declaration.

[HANNEN, J.-Is he no more than a servant?]

The owner of the goods only can maintain the action, and this action would be no bar as against him.

favour of the defendant's contention. Glyn v. Thomas (4) decides that this action will not lie. The plaintiff after paying the amount claimed, ought to replevy or bring detinue. He cannot recover under money counts-Knibbs v. Hall (5).

[HANNEN, J., cited Exall v. Partridge (6).]

If the trustees had paid the money, they could have recovered in an action for money paid. If the goods had been taken

[LUSH, J.-The plaintiff says, I paid away, they might have had an action. you 187. for the 91. due.]

It is not a duress-it is not a wrong to distrain for more rent than is due.

[HANNEN, J.-He has been put to great annoyance, and is he to be without a remedy? LUSH, J.-Has it not been held that distraining per se for an excessive claim is not actionable, but that if money is paid to get rid of the distress it may be recovered?]

You cannot pay money under the distress, and then recover it back; the proper course is to replevy.

[LUSH, J.-If the tenant has made a tender, the landlord is a wrong doer.]

The wrong, if any, is to the trustees. If a stranger took the goods, the plaintiff would still not be entitled to maintain an action.

[HANNEN, J.-Has a man not possession of the chair he sits on ?]

Next, the plaintiff has suffered no damage. His enjoyment was not interfered with.

[LUSH, J.-But is this action founded on wrong to property? There could be no action by the trustees here, because they are not damnified. The goods are not taken away. The principle of the action is that you have put the tenant to greater inconvenience than you need to get your rent.] The real remedy is to tender the amount due, and then replevy.

[LUSH, J.--The plaintiff had the right of enjoyment as against you.]

Tancred v. Leyland (1), French v. Phillips (2), Gulliver v. Cousens (3), are in

(1) 16 Q.B. Rep. 669; s. c. 20 Law J. Rep. (N.S.) Q.B. 316.

(2) 1 Hurl. & N. 564; s. c. 26 Law J. Rep. (N.S.) Exch. 82.

(3) 1 Com. B. Rep. 788; s. c. 14 Law J. Rep. (N.S.) C.P. 788.

Heywood in support of the rule.-Bare possession constitutes a sufficient title as against a wrong doer-Armory v. Delamirie (7). The plaintiff must have had some possession, for it was his house. At any rate the defendant cannot set up the property of the trustees against the plaintiff-Bourne v. Fosbrooke (8).

[HANNEN, J.-In that case the plaintiff had possession. Mr. Herschell says that here he has none.]

If the plaintiff had become bankrupt, the goods would have been in his order and disposition with the consent of the true owner.

[HANNEN, J.-I think not.]

It may be difficult to define it, but there must be a possession in the plaintiff. The law is not that you cannot pay money under a distress and then recover it by action. If a tender is made of the amount due, the landlord becomes a wrong doer. Loring v. Warburton (9) shews that money paid after tender and before impounding may be recovered. The passage from Lord Coke cited in the judgment in Glyn v. Thomas (4) does not apply here. The law of distress for damage feasant is different from that for rent since 2 Will. & Mary, stat. 1. c. 5. s. 2, and 11 Geo. 2. c. 19-Johnson v. Upham (10) per Wightman, J. There may be a doubt whether there was an impounding or not in this case, but Johnson v. Upham (10) shews (4) 11 Exch. Rep. 870; s. c. 25 Law J. Rep. (N.S.) Exch. 125.

(5) 1 Esp. 84.

(6) 8 Term Rep. 308.
(7) 1 Smith's L.C. 316.

(8) 18 Com. B. Rep. (N.s.) 515; s. c. 34 Law J. Rep. (N.s.) C.P. 164.

(9) E. B. & E. 507; s. c. 28 Law J. Rep. (N.s.) Q.B. 31.

(10) 28 Law J. Rep. (N.s.) Q.B. 252.

« EelmineJätka »