rity to accept this bill in the partnership name. the jury, however, and I will leave it to them. v. LANE A letter from Lane to Stearne was put in, in which it appeared that the latter was told he must consider the and Another. diamond speculation as a separate affair of his own. but Seymour then proposed to call the co-defendant Stearne; ERLE, C. J., would not allow it, the case for the plaintiff having been closed, and its sufficiency argued. He then put the question to the jury, whether they thought the acceptance was within the scope of the partnership authority. They were unanimous that it was not. Verdict for the defendants (a). (a) Upheld, M. T. HUNT v. GUNN. ACTION for not delivering shares. London Sittings. deliver shares within one month after registration Declaration stated that the defendant was indebted to A contract to the plaintiff in 2501., and that it was then agreed by and in a company between the plaintiff and defendant that the defendant to the plaintiff, should cause to be delivered to the plaintiff sixty shares in the London and Lancashire Fire Insurance Company, with 201. paid upon each share, such shares to be delivered within one month after the complete registration of the company; or, in the event of the non-delivery, that he would pay to the plaintiff 2501. Held, to have been satisfied, by procuring the plaintiff to deed and be execute the registered for the shares, although cer Breach: non-delivery, and non-payment of the said sum. tificates were Pleas: 1. Denying the agreement. 2. The breach. 3. That after the making of the agreement, and before breach, the defendant was entitled to 100 shares in the company, with 101. paid on each share, and was entitled to execute the deed of settlement of the company; and not actually delivered until some time after the expi ration of the month. 1862. HUNT ย. GUNN. that it was then mutually agreed by and between the plaintiff and defendant that the defendant should transfer to the plaintiff his interest in sixty of the said shares, and should empower the plaintiff to execute the deed in respect of the same; and that the plaintiff should accept such transfer in satisfaction and discharge. Averment that the defendant, in pursuance of the said agreement, transferred to the plaintiff his interest in the said sixty shares, and empowered him to execute the deed; and that the plaintiff accepted such transfer, and executed such deed, upon the terms aforesaid, and in such satisfaction as aforesaid. Quain for the plaintiff. Lush and Philbrick for the defendant. On the 20th November, 1861, the parties entered into the agreement declared on, and by which the defendant. agreed to pay 100l. and deliver sixty shares, on which 21. 10s. should have been paid; such shares to be delivered within one month after complete registration; or, in the event of non-delivery, then to pay the further sum of 1507. And the plaintiff agreed to these terms. On the 26th November, 1861, the company agreed that the plaintiff should have the sixty shares. On the 5th December, 1861, the plaintiff executed the deed for sixty of the shares, such as he would have been entitled to under the agreement, and his name was put on the register. On the 1st February, 1862, the company was registered. The company refused to deliver certificates of the shares to the plaintiff. On the 21st March, 1862, the shares were issued, and the company were willing to deliver to the plaintiff the certificates of the sixty shares when ready, his name being on the register. On the 5th April this action was commenced. On the 2nd May the register was sealed, having been made up some time before, and before action. On the 7th May, 1862, and not before, the scrip certificates, i. e. certificates of the shares, were issued; but he could have sold the shares, notice having been sent to him that his certificates were being filled up, but they took some time to prepare. The company still carried on business, and the plaintiff's name was in the share-ledger, where he was credited with 21. 10s. paid on each of the sixty shares. Upon these facts, Lush contended that there was no breach; or that the plea was proved, as the contract was for shares, not certificates. Quain argued that the shares were to be delivered within a month after registration; that shares could not be delivered, but certificates could be; that the Joint-Stock Companies Act provided for share certificates; that the agreement, therefore, must be understood to mean that certificates should be delivered within the month; that there had, therefore, been a breach; and that the plaintiff was entitled to be paid in money. ERLE, C. J.-The contract was for shares, not certificates, and was in substance carried out when the plaintiff became the owner of the shares. The certificates are only the indicia of ownership (a). (a) Vide Ex parte Swan v. The Australian Land Company, 30 L. Verdict for the defendant. J., C. P. 113. See a case similar 1862. HUNT V. GUNN. 1862. GREEN v. REED. London Sittings. ACTION to recover 2001. as commission, for negotiating Trinity Term. Whether, on an and procuring a loan of 2,000l. for the defendant. employment to obtain a loan of money for commission, the commission is payable if the loan, i. e. the power of obtaining it, is procured, whether the money is actually re ceived or not, provided it does not fail through any default of the ployed, but agent em goes off through defect of title Plea: never indebted. Coleridge and Conolly for the plaintiff. Shee, Serjt., and Brown, for the defendant. The defendant had applied to the plaintiff, for commission, to obtain him a loan of 25,000l. on real security. In October the plaintiff had procured the Pelican Insurance Company to engage to advance 20,000l. on real security, and so far as the plaintiff and the company were concerned the negotiation was complete, the only question being as to the sufficiency of the security, and as to which a difficulty arose about title. Their advisers deemed this invalid, and they therefore declined to carry out the loan; or insufficiency but offered to advance 8,000l. on some reversionary interest of security, is a question which of the defendant, which, however, as it would not answer depends in his purpose, he declined to accept, and went elsewhere. He eventually obtained the loan from another company, who contract of em- were satisfied with the security; but the plaintiff claimed ployment. And if nothing his commission on the amount of the loan, as actually every case on the nature and effect of the is said about the event of failure:Semble, the agent is en obtained, so far as he was concerned; and, at all events, claimed to be entitled to some remuneration, quantum valeat, whereas the defendant denied that he was entitled to anything, the money never having in fact been actually meruit if he pro- obtained and received. titled to recover on a quantum cures the loan and it fails on the title. The plaintiff gave evidence as to the trouble he had actually been at; and Tuckett v. Badger (a) was cited. (a) 2 C. B., N. S. 296, where it was held, that where an agent is employed for an agreed commission to sell lands at a given price, succeeds in finding a purchaser at the stipulated price, but the principal, from whatever cause, declines to sell, and rescinds the agent's autho rity, the agent is entitled to sue for reasonable remuneration for his work and labour, and is not bound to a special action for a wrongful withdrawal of authority, and in such a case the contract to pay what is reasonable is implied by law; and semble, that under such cir The defendant was called, and swore it was agreed that nothing should be paid unless the money should be actually received. But the case for the plaintiff was, that the commission was to be paid if the loan was procured by him. ERLE, C. J. (to the jury).—The plaintiff claims for commission. Was there an express contract that nothing should be paid unless the money was actually received? Or was the contract that the plaintiff should be paid his commission whether the money were actually received or not, provided it were procured? The plaintiff says the contract was to pay the commission if the loan was procured. Was it so? Or was it to be paid only provided the money was received? It depends on the contract, for here an express contract is sworn to. As regards the cause of the loan going off, there was no fault or default on the part of the defendant, it was a mere defect of title, which he could not probably be aware of. The jury asked whether, if a man professed to borrow money on property to which he had not a title (a), and the loan was procured, but failed through the want of title, he was liable to pay the commission ? ERLE, C. J.-It depends on the contract, and here an express contract is sworn to, that nothing was to be paid unless the money was received. Verdict for the plaintiff for 907. (b). cumstances the proper measure of damages would be the entire amount of the commission. (a) It was not a case of total want of title, but of mere defect of title; as to which, vide Sikes v. Wild, 30 L. J., Q. B. 325. (b) That is, an amount much less than the commission, and evidently given as a quantum meruit for the trouble actually incurred. The CHIEF JUSTICE did not direct the jury as to that-the case for the 1862. GREEN v. REED. |