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1862.

LONGHURST v. ELWORTHY AND OTHERS.

Surrey

Summer Assizes. THIS was an action of ejectment to recover possession in an action of of a house, of which possession had been taken by the de- ejectment,

when the writ fendant Elworthy, but was defended by or on the behalf contains no re

trospective of a building society.

words, the only The writ was dated on the 5th July last, and merely qy

cry whether the stated that the plaintiff then claimed to be entitled to plaintiff was

entitled to pospossession.

session at the

time of the date Lush and Laxton for the plaintiff,

of the writ.

And although Hawkins and Honyman for the defendants.

the defendant

may have enThe plaintiff was lessee of some land (on which the house tered before

Jooconfthe 20th May then, that enwas afterwards built) under a ground lease of the 29th May, the

Ways try will not 1861.

sustain the ac

tion, though it On the 14th of June, 1861, he applied to the society in might sustain

c an action of question, the Temperance Permanent Building Society, for ires a loan of 4001., in order to build the house, on the security of a mortgage of his leasehold interest in the land; and on the 2nd of July, 1861, it was resolved by the board that the 4001, should be advanced to the plaintiff-1501. on the execution of the usual mortgage, and the remainder on the completion of the buildings; and on the 2nd of July, 1861, this resolution was announced to the plaintiff in a letter from the secretary.

On the 31st of December, 1861, the mortgage deed was executed, and recited that the plaintiff was a member of the society, and that the society had agreed to advance 4001. to him on a niortgage of his ground lease, and then it transferred his interest under such lease to the society, and provided that until the monthly subscriptions, which were to begin in February, 1862, should be in arrear and unpaid, or until default should be made by the plaintiff in the observance of the covenants in the ground lease, or of any of the rules or by-laws, the plaintiff might continue in possession. But in case of default as aforesaid, that is,

1862.

LONGHURST

ELWORTHY and Others.

either in performance of the covenants of the lease or of the rules and by-laws of the society, or in case he should become bankrupt or insolvent, then the trustees of the society might enter into possession, and let or sell the premises. By the ground lease the houses were to be completed on the 25th of December, 1861, but the ground landlord had extended the time, and in the month of January, 1861, they were still unfinished. On the 11th of that month the plaintiff wrote to the society that he authorized them to transfer their interest in the mortgage to one Marriage, who, however, doubted whether he could accept such transfer, so it was not acted on, and on the 18th of January, 1862, the society took possession of the premises. For that entry an action of trespass had been brought, and on the 5th of July last, the present action of ejectment was brought by the plaintiff to recover possession, as being then entitled to possession.

Lush, in stating the case for the plaintiff, said, that as the ground landlord had extended the time for completing the houses, there had been no breach of covenant under the lease, and, as the subscriptions did not become due till February, there was no breach of rules or by-laws when the society entered in January.

Hawkins cross-examined the plaintiff to show that he owed far more than the value of his property, with a view to prove a breach of the condition as to becoming bankrupt or insolvent; but

The learned Judge ruled that the condition meant becoming bankrupt or insolvent by adjudication of a Court of Bankruptcy.

Hawkins then elicited that on the 5th of July, when the action was brought, subscriptions had become due which were unpaid thereupon.

The learned Judge intimated his opinion that as the question was whether the plaintiff was entitled to possession

at the time this action of ejectment was brought, and as 1862. the trustees had then a right to enter and take possession,

" LONGHURST he was not entitled to recover. For the entry in January,

ELWORTHY assuming it to be wrongful, the remedy was an action of and Others. trespass, which had been brought. The writ in this action was not retrospective; it simply stated that on the 5th of July the plaintiff was entitled to possession, which he clearly was not.

Thereupon the plaintiff was nonsuited.

Guildford Civil Court, coram Martin, B.

TOPPING v. HEALEY.

Surrey

Summer Assizes. THIS was an action by an auctioneer and estate agent In an action

by an agent for his commission on a loan.

who has been First count, for not accepting a loan alleged to have employed to

obtain a loan, been procured for him by the plaintiff on his employment, and has pro

cured it, but it whereby be lost the commission earned by the plaintiff on has not been such loan.

accepted and

received by the Second count, for commission and for work, &c.

employer, he

is entitled to The defendant denied that the plaintiff had procured the recover, not

necessarily the loan as alleged, and denied that he was indebted for com

full commismission.

sion, but a

reasonable reHawkins and Țalfourd Salter for the plaintiff.

muneration. Denman and Philbrick for the defendant.

On the 16th of April, 1862, the defendant wrote to the plaintiff in these terms :

“I hereby authorize you to negotiate for me for an advance of 10,0001., on mortgage of my freehold property at Twickenham and a mill in Hampshire, either in one sum at 41 per cent. per annum, for interest, or in two sums of 6,0001. on the Twickenham property (the interest not to exceed 45 per cent.), and 4,6001. on the mill in Hampshire

1862.

Topping

HEALEY.

(the interest not to exceed 5 per cent.), the advance or advances not to be made for a term of less than three years. And in consideration of your so doing, I will, if you procure the money, pay you a commission of 1l. 10s. per cent.; and will undertake to accept such loan. And I hereby agree to pay you a commission at the same rate, if, resulting from your negotiations, I accept a smaller sum; but no commission to be paid unless you succeed in procuring a loan. And if I should have procured the loan before you can offer it me, this agreement will be cancelled.”

Next day (April 17) the defendant wrote the plaintiff another letter, thus:-

“ Probably you might not have been sufficiently impressed with the importance of getting the money for the mill property first, anyway. Now the purpose of this is to tell you distinctly, that I could not accept the money on the land until the mortgage on the mill property was settled.”

On the 26th of April, some solicitors at Wigan wrote to plaintiff for particulars, and on the 28th wrote to him that they had a client willing to advance the 6,0001. on the freehold ground rents at Twickenham, and the plaintiff thereupon wrote to the defendant to that effect.

On the 29th of April there was an interview between the plaintiff and the defendant, at which, however, the plaintiff stated that there was no withdrawal of the previous authority.

On the 5th of May, the solicitors at Wigan wrote that their client was willing to advance the 10,0001. for a terin to be agreed upon, at 44 per cent., provided the value of the security was 19,0001., and on the same day the plaintiff wrote to the defendant for his answer as to the proposal for the 6,0001., and the next day (on the 6th) communicated to him the above offer of the Wigan solicitors for the loan of the whole sum of 10,0001.

1862.

TOPPING

HEALEY.

On the 7th of May, the defendant wrote to his solicitor, Dixon, that he had written to the plaintiff on the 17th of April, that he could not deal in any way with the Twickenham property until the mill should have been either mortgaged or sold, and that on the 29th he had told him that he was determined to sell the freehold ground rents, and that under those circumstances the plaintiff had done wrong. And on the 12th of May the defendant's attorney, Dixon, enclosed this to the plaintiff.

The negotiation went off, and no money was actually obtained by, or advanced to, the defendant, who declined to pay the plaintiff any of the commission, while the plaintiff claimed the whole, amounting to 1501.

Denman, on behalf of the defendant, submitted that there had been a revocation of the original authority.

The learned BARON thought that there was not, and the jury expressed a similar opinion, and his Lordship, in leaving the case to them, said, as the money had not been actually received by the defendant, the plaintiff was not necessarily entitled to his full commission, but only to so much as they thought his trouble might be worth (a).

They found for the plaintiff, damages 1001.

(a) Vide Green v. Reed, ante, p. 226, where, although the Lord Chief Justice did not in terms so direct, he did not exclude it, and the jury acted upon it, evidently

understanding it as so left to them.
And see the case of Prickelt v.
Badger, there cited. See also
Thompson v. Clark, ante, p. 181.

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