Maconchy and Others v Trower

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Court: King's Bench Division (Ireland)

Maconchy and Others

and

Trower.

MACONCHY AND OTHERS v. TEOWEE. ContractPrincipal and agentCovering letterConditionWaiver. T., who was desirous of floating a gold mining Company in England, sent, through his broker F., a letter to D., a Dublin stockbroker, offering him a specified fee in consideration of the Company going to allotment, and D. allowing his name to be used as stockbroker. D. signed a letter of acceptance, which had also been forwarded to him by T., through F., and sent the acceptance to F. in a covering letter addressed to F., in which D. mentioned that he signed the acceptance on the distinct understanding that Messrs. H. (an English firm of stockbrokers) also joined. The Company's prospectus was issued, but instead of the Messrs. H., Or. & Co., stockbrokers of equally high standing, appeared as the English brokers of the intended Company. D., who was only interested in not being associated with what were commonly known as mining brokers, made no objection to the substitution, did not withdraw his own name, and acted as Dublin broker until the Company went to allotment. In an action for the fee: Held, 1, that the complete contract in T.'s letter and D.'s acceptance could not be varied by the covering letter addressed to F. as T.'s agent. 2, That, as matter of construction, the covering letter was not intended to make the contract conditional upon H. being the English brokers. 3", That even if such a condition were imported into the contract, it could be waived by D. being one for his benefit solely. APPEAL by the plaintiffs from the judgment of the Court of Appeal dated the 2nd February, 1893, reversing the judgment of the Queen's Bench Division, dated the 21st December, 1892, which set aside the verdict and judgment entered for the defendant at the trial, and ordered a verdict and judgment to be entered up for the plaintiffs for one thousand guineas, and costs. The action was brought by the plaintiffs as assignees in bankruptcy of Francis E. Du Bedat, formerly a stockbroker, to recover £1150, of which £1050 was claimed under a special contract for the use of Du Bedat's name as stockbroker for a company floated by the defendant, and the balance for commission and brokerage. The plaintiffs obtained leave to serve the writ on the defendant out of the jurisdiction: see 30 L. E. Ir. 480, where the writ of summons VOL. II. 3 F H. L. 1893. Nov. 24. and the material parts of the correspondence afterwards given in evidence at the trial will be found stated. The statement of defence, besides traversing the causes of action, pleaded specially, (a), that it was a term of the alleged contract that Du Bedat should do all he could to qbtain applications in Ireland for shares in the Company, and that Du Bedat did not endeavour to obtain applications for shares, or otherwise forward the interests of the Company; (b), that the contract sued on was conditional on Messrs. Haggard, Hale, and Pixley being appointed the London brokers of the Company, which event did not happen, and the contract fell through; (c), that the contract was rescinded ; [d), that the defendant was induced to enter into the alleged contract by the fraud of Du Bedat in representing that he was a solvent broker, able to push the Company, whereas he was insolvent. The plaintiffs replied by joining issue, and pleaded that it was by the act and default of the defendant that the said Haggard, Hale, and Pixley did not act as London brokers of the Company, and that the defendant, notwithstanding, acted upon and took advantage of the said contract; and also waiver of the condition before breach. The action was tried before Sir P. O'Brien, C.J., and a special jury in the Trinity Sittings, 1892. The material letters are given at length in the report, 30 L. P. I. 480 ; and the other evidence so far as is necessary for the purposes of this report is sufficiently stated in the judgment of the Lord Chancellor, infra, p. 665. The Lord Chief Justice directed the jury that the contract sued on was entered into, and in answer to questions left to them the jury found that Du Bedat did not do all he reasonably could to obtain shares and get shares underwritten; that the contract of October was rescinded ; and that the defendant did not authorize Fox to write the letter of the 4th November, 1890. The Lord Chief Justice, on these findings, entered judgment for the defendant with costs. On motion by the plaintiffs, the Queen's Bench Division (Holmes, Gibson, and Madden, JJ.) set aside the verdict and judgment for the defendant, and ordered a verdict for one thousand guineas, and costs, to be entered for the plaintiffs. On the 2nd February, 1893, the Court of Appeal (Palles, C.B., and Fitzgibbon, and Barry, L.J J.) reversed tbe decision of the Queen's H, L. Bench Division. MACONCHT v. The Attorney-General for Ireland; Gordon, Q.C., and Courthope TROWER. Monroe (of the English bar), for the appellants. The Eight Hon. J. Atkinson, Q.C., and Carson, Q.C., for the respondent. LORD HERSCHELL, C. (1) : My Lords, this action is brought by the trustees in bankruptcy of Mr. Du Bedat, a bankrupt, to recover from the defendant the sum of 1000 guineas alleged to be due under an agreement entered into between Mr. Du Bedat and the present respondent. The respondent Mr. Trower was desirous of bringing out a company for the purchase of a gold mine, which was called in the first instance the Lucknow Company, and afterwards the Wentworth Gold Fields Proprietary Company. He had been brought into communication with Mr. Fox, who appears to have been a member of the firm of Musson and Company, stockbrokers at Liverpool, and there had been some negotiations between him and Musson & Company, and steps taken to arrange that Musson & Company should act as the Liverpool brokers, and the firm of Haggard, Hale, and Pixley as the London brokers. They were desirous of obtaining for the purposes of the Company, or, perhaps, I should rather say for the floating of the Company, the name of a Dublin broker on the prospectus, and, accordingly, Mr. Fox entered into communication with Mr. Du Bedat with a view to arranging that he should be the Dublin broker. Certain letters passed between them upon which some reliance has been placed ; as it seems to me more weight has been given to them in connection with the construction put upon the subsequent dealings of the parties than is their due; but a letter was written by Mr. Du Bedat on the 29th September to Captain Fox a relation of Mr. Fox, who was in Mussou's firm, saying," Our fee (1) The following report of their Lordships' judgments has been kindly supplied by J. A. Maconehy, Esq., Official Assignee. 3 F2 H. L. has always been £1000"; and on the same day Mr. Du Bedat 1893- telegraphs to Mr. Fox at Liverpool, " Our fee would be £1000 MACONCHY gubj ect to approval with Haggard and yourselves. Have never TEOWEE. received less." On the 1st October Mr. Trower writes to Mr. Fox a Lordt Musson's, saying, " I shall be pleased to accept the terms named Hersohell, C. b D Bedat, viz. '£l'000, in consideration of his firm consent y Mru ing to act as brokers in Dublin to the Lucknow Company." He encloses that in a more private letter beginning, " Dear Fox," in which he says : " I enclose letter of acceptance in respect to Mr. Du Bedat's offer to act as broker to our Company for a payment of £1000. If you consider that it will be decidedly to our advantage to secure Mr. Du Bedat's services, please consider the enclosed letter as binding. I have not seen Haggard to-day, but will try and do so later." Mr. Fox did not treat that letter, which was written by Mr. Trower to himself, as completing a contract with Mr. Du Bedat, and did not apparently communicate its terms to Mr. Du Bedat. But a few days afterwards, that being on the 1st October, on the 9th October Mr. Trower was at the office of Musson & Company in Liverpool; and there two letters were drawn up, the one of them a letter addressed by Mr. Trower to Mr. Du Bedat; the other a letter addressed by Mr. Du Bedat to Mr. Trower. They were drawn up in the office of the broker ; the one which was addressed to Mr. Du Bedat was signed by Mr. Trower, the other was left with a blank for the signature of Mr. Du Bedat. On the 9th Octobef Mr. Fox writes to Mr. Du Bedat this letter:" The name of the mine I wrote you about has been altered from Lucknow to Wentworth Gold Fields. I enclose you a letter from the vendor, who has been here to-day, and also one for you to sign, which please return me signed, if you approve. It is a copy of the one we have signed." He then speaks of bright views of the mine and of the Company, and adds this postscript, " Messrs. Haggard, Hale, and Pixley are the London brokers." In that letter were enclosed the two documents to which I have referred, which purported, on the face of them...