Sandford v Porter and Waine

CourtCourt of Appeal (Ireland)
Judgment Date29 June 1912
Date29 June 1912
Porter And Waine.












Solicitor and client — Implied authority to issue execution after judgment — Trial — Misdirection — R. S. C. I., 1905, Order XXXIX, R. 7 — “Substantial wrong or miscarriage” — Joint tort-feasors — Verdict erroneously directed for one of several defendants — Jurisdiction to set aside on motion of co-defendant.

Held, by the King's Bench Division and the Court of Appeal, that B was not entitled to a new trial on the ground of excessive damages, but that there was misdirection.

Held, by the Court of Appeal, reversing the judgment of the King's Bench Division (Kenny and Wright, JJ., from whom Palles, C.B., dissented), (a) that the Court had jurisdiction to set aside the judgment in favour of A on B's motion, though C had remained quiescent; (b) that under the circumstances of the case the misdirection was capable of inflicting injustice on B, and that without speculating whether or not this in fact occurred, the case did not come within Order XXXIX, R. 7; and that the judgments in favour of A and against B should therefore both be set aside, and a new trial had of the action.

Purnell v. Great Western Railway Co. and Harris (1 Q. B. D. 636) followed.

Appeal by the defendant, R. J. Porter, from the judgment of the King's Bench Division, dated the 16th May, 1912, refusing a motion on his behalf to set aside the verdict and judgment against him in the action, on the ground that the damages awarded were excessive, and assessed on a wrong principle, and on the ground of misdirection by the Judge at the trial, and for a new trial, and that “such judgment as may be entered against the defendant R. J. Porter may be also entered against the defendant Charles Waine,” on the ground that Waine was the client and principal, and Porter the solicitor and agent, who was impliedly authorized by his retainer to do the acts complained of; the alleged misdirection being the instruction of the learned Judge to the jury that there was no such implied authority. The notice of appeal, besides seeking for a new trial, asked that the judgment directed at the trial for the defendant Waine be set aside on the ground of misdirection; and, on the further ground that if the defendant Porter was liable, the defendant Waine was jointly liable with him.

The action was brought to recover damages for illegal seizure, under a fi. fa. upon a judgment afterwards set aside, and £5 4s. paid by the defendant to the sheriff's officer to release his goods. The defences of Porter were traverses, leave and licence, and payment into Court of £5 4s., in respect of the liquidated demand and £10 10s. in respect of the seizure. The defendant Waine delivered a separate defence, in which he denied any personal responsibility for the tortious acts complained of, and denied that Porter was retained by him as solicitor, or acted as his solicitor, or had any authority from him to do the acts complained of, which he alleged were done by Porter, not for the benefit of Waine, but for the benefit of Porter personally. Waine also paid £15 14s. into Court in satisfaction of the plaintiff's claim.

The plaintiff accepted the £5 4s., satisfaction of the liquidated demand, and joined issue on the defences as to the seizure.

The action was tried before Lord Justice Cherry and a special jury, at the Belfast Spring Assizes, 1912. A number of witnesses were examined, and several documents put in evidence; but, for the purposes of this report, the substance of the material evidence may be shortly stated as follows:—

The defendant Charles Waine was a china manufacturer at Longton, Staffordshire. He had a partner in his business named John W. Holt. The plaintiff was a tradesman in a small way, who kept a shop at Portrush, where he carried on a general business, including the sale of crockery ware, such as tea-sets, muffineers, &c. Waine had in Belfast an agent named James Thompson, and in Longton a debt-collector named W. T. Lockhart. In June, 1910, the plaintiff purchased through Thompson from Waine goods to the value of £14 15s. 6d. On the first invoice there was written at foot, “Terms, net monthly,” and each invoice was headed in print, “No discount allowed on overdue accounts.” In January, 1911, Sandford (the plaintiff), not having paid for the goods supplied, Holt gave the debt to Lockett to collect; and Lockett, on the 19th January, 1911, wrote to the defendant, Porter, a solicitor practicising in Belfast, enclosing the invoices, and directing him to issue a writ without application. Porter, accordingly, on 25th January, 1911, served Sandford with a writ of summons at suit of Waine, for £14 15s. 6d. debt, and £1 5s. costs.

On the 30th January, 1911, Sandford sent to Porter a cheque for £14 15s. in payment of Waine's account, and of £1 5s., costs. In the covering letter, Sandford stated that the way he arrived at the figures in the cheque was by deducting £1 5s. 6d., for discount. Porter lodged the cheque on account of debt and costs, but by letter of 31st January, 1911, claimed 10s. more costs, inasmuch as the remittance had not been made within four days after service, and the costs of affidavits of debt and service had been incurred; and, unless same was remitted by return, threatened to mark judgment. If paid, he (Porter) would communicate with the plaintiff as to the claim to discount. On the same date Porter wrote to Lockett, to know whether the discount was to be allowed. Lockett wrote to Porter refusing to allow discount. On the other hand, Sandford in his evidence at the trial said that Thompson informed him that he was entitled to discount. On the 2nd February, 1911, Porter wrote to Sandford that unless £1 15s. 6d. were remitted by return of post, judgment would be marked on the next Saturday, February 4th. Judgment was not, however, then marked. On the 7th February, Sandford called at Porter's office in Belfast, and had an interview with his son, George Porter, who had charge of the case, and paid him the 10s. extra costs. Letters were subsequently written by Thompson to Sandford advising him to pay nothing more, and assuring him that no judgment would be marked.

On the 23rd February, Porter wrote to Sandford, that it was apparent that he did not intend to pay “the balance debt.” He returned the 10s. paid on the 7th February, and announced that he would mark judgment for the balance of the debt. He added that Thompson had told him that Sandford was not entitled to discount. A further affidavit of debt, 6d. in amount, was made by a son of Holt, who acted as Waine's book-keeper. Judgment was marked against Sandford, on 24th February, for 6d. debt and costs, and a fi. fa. marked to levy £5 4s. lodged with the sheriff, who, on 7th March, 1911, seized under it, and was paid by Sandford under protest. On the 13th March, 1911, Porter sent Lockett a cheque for £14 l5s. 6d., amount claimed by Waine for debt, and recovered.

On the 14th March, 1911, Sandford served notice of motion to set aside the judgment of 24th February, on the ground that he was entitled to the discount he had claimed, and that there was therefore nothing due at the time the judgment was marked. On the 21st April, the motion was heard by the Lord Chief Baron, and Kenny and Wright, JJ., who gave leave to amend the notice of motion by inserting therein the ground of surprise, and thereupon set aside the judgment with costs. The present action followed.

The plaintiff was examined at the trial, and detailed the fact and correspondence above outlined. He also gave evidence of special damage which it is unnecessary to set out in detail. An agent of Glass & Co., tea merchants, proved that they refused to fulfil plaintiff's orders, after the seizure. At the close of the plaintiff's case, counsel for Waine asked for a direction on two grounds—(1) that there was no evidence that Porter was solicitor for Waine, or that he was instructed by Waine to recover the debt; (2) that there was no authority from Waine to Porter to levy execution. The Lord Justice refused to direct at that stage.

For the defendant Porter, his son George Porter was examined. He said he had no letter giving instructions to levy execution. The instructions to sue were from Lockett, but Waine was the client.

George Porter was the only witness produced on behalf of the defendant Porter.

John W. Holt (partner of Waine) was the only witness on behalf of Waine.

He said that he handed over Sandford's debt to Lockett for collection. Lockett had no authority from him to incur any liability for costs. He (Holt) did not authorize anyone to issue execution against Sandford, and he (Holt) did not hear of it until after it took place. He knew Lockett employed solicitors on his behalf. Lockett never to his knowledge collected debts by levying execution. Young Holt (witness's son) had no authority from the firm to make the affidavit of debt.

At the close of the evidence Waine's counsel again applied to have a verdict directed for him; and, as stated in the certificate, Cherry, L.J., directed a verdict for the defendant Waine, on the ground “that he did not authorize the execution, and that the defendant Robert J. Porter had no implied authority from him to levy execution,” and he gave judgment for Waine with costs, and directed the £15 14s. lodged by him in Court to be refunded. His Lordship left to the jury the question of damages against the defendant Porter only; and in his charge instructed the jury that they were not entitled to award punitive damages against him, but that they were bound to award only such sum as they thought would represent the actual pecuniary loss which he had sustained through injury to his business. D. M. Wilson, K.C., for the plaintiff, objected to this part of the charge, but no other objection was made...

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