Conditions precedent.-Liability of Defendant.

523

N. C. 106. But if the parties have clearly left it to the employer to decide as to the sufficiency of the compliance with the contract, his decision is conclusive as long as he acts bona fide; Stadhard v. Lee, 3 B. & S. 364; 32 L. J., Q. B. 75. In building contracts, payments on architect's certificates during the work, are considered as payments on account of the sum eventually found due; and the time of completion is not generally of the essence of the contract. Lamprell v. Billericay Union, 3 Exch. 283. An alteration made by the defendant in the written conditions will not enable the plaintiff to dispense with them, and sue on a quantum meruit. Pattinson v. Luckley, L. R., 10 Ex. 330.

An architect's certificate for work done does not dispense with the necessity for a previous written order where required by the contract. Tharsis Sulphur & Copper Co. v. M'Elroy, 3 Ap. Ca. 1040, D. P.

It may be here noticed that, in the absence of fraud, no action will lie against an architect for improperly certifying or refusing to certify. Stevenson v. Watson, 4 C. P. D. 148.

Liability of defendant.] Where the defendant had contributed to the funds of a building society, and had been party to a resolution that certain houses should be built, it was held that this made him liable to an action for work done in building those houses, without proof of his interest in them, or in the land. Braithwaite v. Skofield, 9 B. & C. 401. So a subscriber, who is one of a committee for managing the affairs of a hospital, is personally liable to the creditors of the hospital, for goods supplied with the sanction of the committee. Burls v. Smith, 7 Bing. 705. For cases on the personal liability of partners, members of clubs, shareholders, &c., see ante, p. 498, et seq.

As to the liability of a company after its incorporation for preliminary expenses incurred by the promoters in its establishment, see Melhado v. Porto Alegre Ry. Co., L. R., 9 C. P. 505; In re Hereford, &c., Engineering Co., 2 Ch. D. 621, C. A.; and other cases cited post, Part III., Actions by and against Companies.

Where orders are given by a public officer, acting on behalf of a public body, or of a known department of the State, and in discharge of his duty as such, it is to be presumed that personal credit is not given to him, and he is not liable. Macbeath v. Haldimand, 1 T. R. 172; Goodwin v. Robarts, L. R., 10 Ex. 344, 345, per Cockburn, C. J. This rule applies to such officers as a colonial governor; commissary; commanding officer of a regiment, or of a king's ship; justices contracting to build a county bridge, &c. Allen v. Waldegrave, 2 B. Moore, 621; Myrtle v. Beaver, 1 East, 135; Unwin v. Wolseley, 1 T. R. 674; Palmer v. Hutchinson, 6 Ap. Ca. 619, P. C. But, where navigation commissioners employed the plaintiff to do certain of the works, all the acting commissioners were held personally liable. Horsley v. Bell, Ambler, 770. So where the defendant, the clerk of a county court, ordered the plaintiff to fit up the court, and the bill was allowed by the county court judge, it is for the jury to say whether the work was not done on the clerk's personal credit; for it was no part of his official duty to give such an order, nor did the facts exclude the presumption of personal credit. Auty v. Hutchinson. 6 C. B. 266.

The defendant requested the plaintiff to take care of and show his (the defendant's) house, and promised to make him a "handsome present;" it was held that this was evidence on which the plaintiff might recover a reasonable recompense for work and labour. Jewry v. Busk, 5 Taunt. 302. But where a person performed work for a committee, under a resolution entered into by them," that any service rendered by him should be taken into consideration, and such remuneration be made as should be deemed

right," it was held that an action would not lie to recover a recompense. Taylor v. Brewer, 1 M. & S. 290; see Roberts v. Smith, 4 H. & N. 315; 28 L. J., Ex. 164. There is no implied promise to pay an arbitrator for his trouble. Virany v. Warne, 4 Esp. 47. But see Swinford v. Burn, Gow, 8 per Dallas, C. J., contra; and In re Coombs, 4 Exch. 839; Hoggins v. Gordon, 3 Q. B. 466. A master may sue for the work and labour of his apprentice, against a person who harbours him after his desertion; for he may waive the tort. Foster v. Stewart, 3 M. & S. 191. A barrister cannot recover, even on an express contract to remunerate him for professional services rendered as a barrister; Kennedy v. Broun, 13 C. B., N. S. 677; 32 L. J., C. P. 137 ; Mostyn v. Mostyn, L. R., 5 Ch. 457; see also Broun v. Kennedy, 33 Beav. 133; 33 L. J., Ch. 71; but he may recover on an express contract, for services rendered to the guardians of a union as returning officer. Egan v. Kensington Union, 3 Q. B. 935, n., Ld. Denman, C. J. A physician might, at common law, recover his fees, on an express contract to remunerate him. Veitch v. Russell, 3 Q. B. 928; and see, since the Medical Act, ante, pp. 460, 461. Where A., who was employed by the defendant to transport goods to a foreign market, delegated the entire employment to the plaintiff, who performed it, it was held that the plaintiff could not recover from the defendant a compensation for such services; for there was no privity between them. Schmaling v. Thomlinson, 6 Taunt. 147. See further, cases cited post, p. 539. Where the plaintiff, having a contract jointly with A., to do certain work for a company, assigned the contract to A., with the company's consent, on a promise by A. to pay plaintiff a certain sum when the contract was completed, and the contract was afterwards abandoned as between A. and the company and replaced by another; held that the plaintiff could not sue A. for the money upon the completion of the substituted contract. Humphreys v. Jones, 5 Exch. 952.

A sheriff cannot sue a solicitor for his fees for executing a writ of execution, unless there are special circumstances from which a jury may infer an undertaking to pay them. Maybery v. Mansfield, 9 Q. B. 754. Nor can the sheriff's officer who executed the writ maintain the action; Royle v. Bushby, 6 Q. B. D. 171, C. A.; unless the solicitor directed that that officer should execute it, in which case such undertaking is inferred; Foster v. Blakelock, 5 B. & C. 328. The officer must sue the solicitor who employed him, and not his client. Walbank v. Quarterman, 3 C. B. 94; Maile v. Mann, 2 Exch. 608. Where an architect is employed by the owner to draw plans, and obtain tenders for the execution of works, it is usual for him to employ a surveyor to take out the quantities, who is to be paid by the builder whose tender is accepted; if, however, by the act of the owner the work does not proceed, the latter is bound to pay the surveyor for taking out the quantities. Moon v. Witney Union, 3 N. Č. 814.

As to when a claim for work and labour, and when one for goods sold and delivered is applicable, the rule is thus laid down: "If you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having bestowed his labour at your request on your materials he may maintain an action against you for work and labour. But, if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and materials to any other person. No right to maintain any action vests in him during the progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered, or (if the employer refuses to accept) a special action on the case for such refusal ; but he cannot maintain an action for work and labour;" per Bayley, J., in

Liability of Defendant.-Repairs of Ships.

525 Atkinson v. Bell, 8 B. & C. 277, 283. See also Cotterell v. Apsey, 6 Taunt. 322; Heath v. Freeland, 1 M. & W. 543; and cases cited, ante, p. 470; the power of amendment renders these distinctions less material than they were formerly; it must, however, be remembered that if the claim is not properly made for work and materials, but for not accepting a chattel, it may be defeated by a defence under the Stat. of Frauds, s. 17, vide ante, pp. 469, 470.

A contract for work and materials supplied in and about the work is not within sect. 17 of the Stat. of Frauds. ante, p. 469. It may be within sect. 4, ante, p. 468, if it must continue beyond a year; but not if it will not necessarily continue beyond the year. See cases cited, ante, pp. 468, 469.

Liability of defendant-Repairs of Ships.] The owner is liable for necessary repairs done, or supplies provided for a ship by the master's order. Webster v. Seekamp, 4 B. & A. 352; those are necessary which the owner as a prudent man would have himself ordered, although not absolutely necessary. S. C. Id.; The Riga, L. R., 3 Adm. 516. The plaintiff must prove that the goods supplied are necessaries. Mackintosh v. Mitcheson, 4 Exch. 175; Gunn v. Roberts, L. R., 9 C. P. 331 ; and that neither the owner nor his recognised agent, able to obtain supplies, was present at the port. S. C. Id. Where the master dies during the voyage the mate becomes master, and is consequently invested with the incidents of the post. Hanson v. Royden, L. R., 3 C. P. 47. Registered ownership-that is, proof of registration; see 17 & 18 Vict. c. 104, and 18 & 19 Vict. c. 91, is prima facie evidence of the liability of those parties for the repairs of the ship. Cox v. Reid, Ry. & M. 199, and see Hibbs v. Ross, L. R., 1 Q. B. 534, where the former cases are considered. Such evidence may be rebutted by proof of the beneficial interest having been parted with, and of the legal owner having ceased to interfere with the management of the ship; Young v. Brander, 8 East, 10; Jennings v. Griffiths, Ry. & M. 42. The true question in cases of this description is, "Upon whose credit was the work done?" S. C. Id. 43, per Abbott, C. J. Even although the order was given by A., who without the defendant's knowledge or authority was registered under the Merchant Shipping Act, 1876 (39 & 40 Vict. c. 80), s. 36, as managing owner. Frazer v. Cuthbertson, 6 Q. B. D. 93. Where the owner A. agreed to sell to B., who appointed T. to be master, and he was registered as such, and plaintiff did repairs on the order of T., A. was held not liable, he not having done anything to sanction T. appearing as his master. Mitcheson v. Oliver, 5 E. & B. 419; 25 L. J., Q. B. 39, Ex. Ch. See Frost v. Oliver, 2 E. & B. 301; 22 L. J., Q. B. 353; Preston v. Tamplin, 2 H. & N. 684; 27 L. J., Ex. 192; The Gt. Eastern, L. R., 2 Adm. 88; and Burdick v. Lordan, W. N. 1878, p. 129, C. A. A person who takes a share in a ship under a void conveyance is not liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as (that is, by acts or words assumes the character of) owner. Harrington v. Fry, 2 Bing. 179. An undertaking by the defendant's solicitor "to appear for Messrs. T. & M., joint owners of the sloop A.," is evidence against the defendants of the joint ownership. Marshall v. Cliff, 4 Camp. 133. A part owner of a ship is not necessarily a partner; and if, as ship's husband, he has fitted her out, he may sue the other part owners separately for their shares of the expense. Helme v. Smith, 7 Bing. 709.

Whether a mortgagee of a ship, before possession, was liable to repairs was formerly much doubted; Briggs v. Wilkinson, 7 B. & C. 30; but now when a transfer is made only by way of mortgage in the manner specified in the Act, 17 & 18 Vict. c. 104, ss. 66, et seq., the mortgagor continues

owner, except so far as may be necessary for making the ship available as a security for the mortgage debt. And when a mortgagor has been allowed by the mortgagee to continue in possession and to use and navigate the ship, and the mortgagor orders necessary repairs to be done, the shipwright has a lien as against the mortgagee for his work and labour. Williams v. Allsop, 10 C. B., N. S. 417; 30 L. J., C. P., 353; see Johnson v. R. Mail S. Packet Co., L. R., 3 C. P. 38.

Work as agents.] Generally a commission to sell may be revoked, and the death of the principal is a revocation; Campanari v. Woodburn, 15 C. B. 400; 24 L. J., C. P. 13; and the agent is not necessarily entitled to any remuneration, unless he can show that he has been put to expense or trouble before the revocation, from which a contract to pay on a quantum meruit may be implied; and a private sale by the principal without his agent's instrumentality, will not entitle him to his commission on the price. Simp son v. Lamb, 17 C. B. 603; 25 L. J., C. P. 113. And where an estate agent is to receive a certain percentage for finding a purchaser, he is entitled to nothing if he fails to find one before his authority is revoked; but if he finds one, and the seller is unable or unwilling to complete the sale, the agent may recover on a quantum meruit at least for his labour, if not the whole stipulated percentage; Prickett v. Badger, 1 C. B., N. S. 296; 26 L. J., C. P. 33; and in such a case the title to remuneration is not a question for the jury, but of law. S. C. But where the defendant contracted with the plaintiff to sell tickets for the defendant at a certain percentage, and the defendant afterwards revoked the plaintiff's authority before any were sold, but after some trouble had been taken and expense incurred by him, and the plaintiff acquiesced in the revocation, it may be left to the jury whether there was a rescission by consent, and a new contract to pay for past labour on a quantum meruit. De Bernardy v. Harding, 8 Exch. 822 ; 22 L. J., Ex. 340. As to the right of an auctioneer to remuneration where his authority has been revoked before the auction, see Rainy v. Vernon, 9 C. & P. 559, cor. Ld. Denman, C.J. The plaintiff was to place the shares of the defendant's company, for 100l. down and 400l. when they had been allotted; before they were all allotted the directors caused the company to be wound up: held, that the plaintiff was entitled to remuneration for the work he had done, he having been prevented completing it by the act of the defendants, and the court, acting as a jury, awarded him 250l. Inchbald v. W. Neilgherry Coffee, &c. Co., 17 C. B., N. S. 733; 34 L. J., C. P. 15. See further Moffat v. Laurie, 15 C. B. 583; 24 L. J., C. P. 56.

Where a broker is employed to find a buyer, he is entitled to his commission if he introduced the parties, though the principals eventually settled the terms; and, semble, if several brokers are employed separately, the one who first introduces the parties is entitled. Cunard v. Van Oppen, 1 F. & F. 716. The above was a case of shipbrokers, and was perhaps governed by the proof of custom at the trial; but in the absence of express stipulation, or of fraud, the rule seems reasonable in other like cases. The plaintiff was employed by the defendant to sell an estate for him, upon the terms of being paid commission if the estate were sold, and a fixed sum if not sold. The estate was sold by the defendant himself to a person, who had first heard of the estate being in the market from the plaintiff's advertisement. It was held that the plaintiff was entitled to the commission, the relation of buyer and seller having been brought about by what the plaintiff had done. Green v. Bartlett, 14 C. B., N. S. 681; 32 L. J., C. P. 261. See also Lockwood v. Levick, 8 C. B., N. S. 603; 29 L. J., C. P., 340, and Mansell v. Clements, L. R., 9 C. P. 139. It seems that the purchaser may be asked "whether, but for the plaintiff's intervention, he would have bought the property?'

Work as Agents.-Performance.-Value.-Defence.

527

S. C. See further Tribe v. Taylor, 1 C. P. D. 505; Fisher v. Drewitt, 48 L. J., Ex. 32; Bayley v. Chadwick, 39 L. T., N. S. 429, D. P.

Where A. employs B. to procure a loan on mortgage of A.'s property, for a certain commission, and B. procures a lender who declines to make the advance, only because of A.'s inability to give a good security, B. is entitled to the whole of the commission. Green v. Lucas, 33 L. T., N. S. 584, Nov. 1875, C. A.

Performance.] The plaintiff must prove a performance of the work and labour according to the terms of the contract; or if there is a deviation from those terms, an assent of the defendant to the deviation. Vide ante, p. 521. Thus in an action to recover the value of a riding habit, for which the defendant's wife had been measured, but which was returned to the plaintiff on the day on which it was delivered, it was ruled to be incumbent on the plaintiff to prove that the habit was made agreeably to the order. Hayden v. Hayward, 1 Camp. 180. So, a herald who sues for making out a pedigree, is bound to give some general evidence of the truth of the pedigree. Townsend v. Neale, 2 Camp. 191.

Where an agent A. has, without the knowledge of his principal B., agreed to receive from C. 3,000l. as profit to himself, out of a purchase by A. on behalf of B. from C.; B. on knowing of the agreement, before A. has received the 3,000l., may adopt A.'s agreement and sue C. for the 3,000l. Whaley Bridge, &'c. Co. v. Green, 5 Q. B. D. 109. See also cases cited post, p. 538.

Value.] In what manner the value of the work done is to be calculated where there is a special contract and deviations from it, has been already mentioned, pp. 509, 521. Where a tradesman finishes work differing from the specification agreed on, he is not entitled to recover the actual value of the work done; but (if anything) only the stipulated price, minus the sum necessary to complete the work according to the specification. Thornton v. Place, 1 M. & Rob. 218; Chapel v. Hickes, 2 Cr. & M. 214. In an action for work and labour as a surveyor or architect, in the absence of express agreement, it is a question for the jury whether the commission charged is, under the circumstances, a reasonable or unreasonable charge. Chapman v. De Tastet, 2 Stark. 294; Upsdell v. Stewart, Peake, 193.

Defence.

By Rules, 1883, 0. xxi. 3, "a defence in denial must deny such matters of fact from which the liability of the defendant is alleged to arise, as are disputed." See also O. xix. r. 17, ante, p. 283. By r. 15, ante, p. 283, the defendant must plead specially all facts, not previously stated, on which he relies, and must raise all such grounds of defence as if not pleaded would be likely to take the plaintiff by surprise. And by r. 20, ante, p. 283, a bare denial denies the making of the contract in point of fact only, and not its sufficiency in point of law.

It is a good defence that the work was done under a special contract not executed. Jones v. Nanney, 1 M. & W. 333. Or, that the defendants, being a corporation, did not contract under seal, or with the formalities required by the act of incorporation. Cope v. Thames Haven Ry. Co., 3 Exch. 841. So that the defendants, guardians of a union, are charged for work done by a surveyor, which it was no part of their duty to order. Paine v. Strand Union, 8 Q. B. 326.

If the defendant has received no benefit from the work, it having been improperly executed by the plaintiff, the latter cannot recover anything,