lig) v Gold

lig) v Gold - [1912] HCA 23 - HCA 1912 case summary — Zoe

[110]

draw an irrational one. It is that Broughton & Co. were with the defendants' consent appointing the plaintiffs sub-agents or assistants to themselves in the disposal of the property. The plaintiffs, by showing Broughton & Co.'s telegram to Bruce, evidently as the reply to their own telegram to the defendants, and by at once going on with the endeavour to sell the property to Bruce's principal, treated Broughton & Co.'s telegram as their authority. It is clear that Broughton & Co. were not divesting themselves of their own position as agents, and, therefore, clear that they were employing the plaintiffs as their sub-agents. Then the latter wrote the defendant Young on the 30th. They say, and it is accepted, that they wrote before receiving Brough- ton & Co.'s letter of the 28th to which I will refer in a moment. After referring to their own telegram of the 28th, and to that from Broughton & Co. they add: "Having the property direct from yourself we cannot recognize Mr. Broughton or any other agent in the sale if it comes off." They describe the Broughton telegram as a "reply" to their own, and they show that they knew Broughton to be an agent by the phrase " Mr. Broughton or any other agent." And there is no fact in the case which could justify the assertion that they had the property direct from. the defendants. It was an untruth, so manifest to the defendants that they could not be looked on as admitting it, if they treated it with silent contempt. Is it "the ordinary practice of man- kind" (to use the phrase of Lord Esher M.R. in Wiedemann v. Walpole (1), to answer a groundless assertion of that kind? Are there "circumstances which render it more reasonably probable that a man would answer" such an assertion - as Bowen LJ, put it in the same case (2)? That learned Lord Justice quoted from the judgment of Willes J. in Richards vy. Gellatly (3), his statement that the notion had been long exploded that the omission by the recipient of a letter to answer it amounted to evidence of an admission of the truth of the statements contained in it, though Willes J. thought that "it may be otherwise where the relation between the parties is such that a reply might be

[117]

tiffs. Yet they remained silent, and I think no other construe- tion can be placed on such a silence but that the cardinal fact was admitted. Notwithstanding, therefore, that they had asserted a direct agency, the writings and their own conduct show that the plaintiffs had received and acted upon an appointment as_ sub-agents to Broughton & Co., and it does not prejudice the - position of the defendants that this sub-agency was created with their knowledge and approval. As to the rest of the evidence, the plaintiffs contend that the subsequent communications either explained the previous ones as meaning a direct agency, or altered the relations of the plaintiffs with the defendants so as to consti- tute such direct agency. I do not agree with either of these contentions. The plaintiffs having been appointed by Broughton & Co. their sub-agents with the knowledge and approval of the defendants, and there being no pretence, that if Broughton & Co. were not displaced on 28th May, such a displacement had since occurred, the mere fact that the defendants afterwards, and at_ times when circuity would have imperilled the negotiations, allowed the plaintiffs to hold direct communication with them, and, at the plaintiffs' desire, answered their telegrams and letters direct instead of insisting on their passing through Broughton & Co., is not in my judgment any evidence of a direct agency. It does not point to such a conclusion either by explaining or by altering the effect of the previous communications and dealings. There was no break in the plaintiffs' negotiations with Gillespie. 'They were dealing with the same "genuine buyer" who was the subject of their telegram of 28th May which resulted in their becoming Broughton & Co.'s sub-agents. These negotiations, although protracted, were all the one transaction in view of which the sub-agency had been constituted. Nor can any ponderable argument for the plaintiffs be founded on the use in the telegrams of the word " offer." That term had previously been applied by all parties to the inception and continuance of the original employment of the plaintiffs, and its unaltered use certainly cannot be adduced as evidence of an altered relationship.

[149]

done anything further in connection with the sale,and had rested his claim upon the meritorious effect of his efforts up to that date, it would have been a question whether he had not taken his chance of Broughton's authorization to convey Young's offer with all its consequences. But that is not the case. Even assuming Tibbits acted riskily in showing Bruce the telegram, he was not bound to go a step further. He had entered into no binding agreement to pursue the matter, or to say another word or write another line, or take another journey in connection with the property. And so, giving the fullest possible force to the use of the Broughton telegram, it still remains an authority - direet or indirect from Young - which cannot affect the subsequent dealings or negotiations. Then Tibbits makes the position for the future clear beyond possibility of doubt by his letter of the same date, He says in it that he had wired Young, and received a telegram signed Broughton, mentions that the proposed buyer is genuine, and adds " Having the property direct from yourself we cannot recognize Mr. Broughton or any other agent in the sale if it comes off." The statement that he had the property direct is quite consistent with all that happened. He had asked Young direct, and got an answer in reply to that request and therefore presum- ably by the personal authority of Young, which happened to be true. That letter is as distinct an intimation to Young as can well be imagined, that at all events all future efforts to sell the property must be on the basis stated, and the parties being already in a business relation, I take it the principle of the cases cited in International Paper Co. v. Spicer (1) to which I may add Roberts v. Hayward (2) applies, and Young cannot take refuge in silence. He might have replied refusing the further services of Tibbits on the terms required. In such a case silence may be considered by the appropriate tribunal as equivalent to assent. If Young had replied to the letter of 28th May in the affirmative of course no question could arise. And his conduet may be taken by the jury as equivalent. That was a question for them. Obviously Falck v. Williams (3) cannot govern the

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Judgment (190 paragraphs)

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