Macnamara v Martin [1908] HCA 86

Macnamara v Martin [1908] HCA 86 - HCA 1908 case summary — Zoe

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plaintiff entered upon the work, and after a short time introduced to the defendant a Mrs. Daniels who was financially competent, and against whom it appears nothing is known. At that period of the negotiations the defendant seems to have changed his mind. He toll the plaintiff to go no further in the matter, and later on gave him an entirely new set of instructions. To give instruc- tions entirely inconsistent with the original contract is clearly a revocation of the original authority. The plaintiff claims that under these circumstances he has earned something, either the whole £50 according to the contract, or something by way of quantum merwit for services rendered, or that he is entitled to something in the nature of damages for not having been allowed to carry out the contract and earn the commission. The particu- lars of the action in the District Court were in the form of a claim for commission under the special contract, and a claim under the common count of indebitatus asswmpsit. The plaintiff obtained a verdict for £50. On appeal to the Supreme Court that verdict was set aside on the ground that after revocation of the authority the agent had done something inconsistent with his duty to the defendant. Now the act alleged to be inconsistent with his duty to the defendant was this, that being under the impression that the defendant was not behaving fairly to Mrs. Daniels, who had been introduced by him to the defendant, he tried to persuade the defendant to take a different view, and then, having failed in that, drew up a document in the form of an agreement between himself as agent for the defendant and got Mrs. Daniels to sign it. The plaintiff had no authority to make such a contract on behalf of the defendant, and the document was therefore not binding upon the defendant, though it might perhaps have been binding upon Mrs. Daniels if the defendant had adopted it. That is the alleged misconduct. But it had no detrimental effect upon the defendant so far as we know. If it was a breach of any legal duty, and the defendant suffered damage, he was entitled to recover that damage from the plaintiff in some form of proceeding. But damage would be a necessary part of the cause of action. It is not, however, suggested that any harm was caused to anybody by it. The learned Judges of the Supreme Court were of opinion that it was misconduct by

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the agent in the course of the agency disentitling him to recover money he had already earned. The learned counsel for the respondent did not attempt to support that position here: it is not necessary therefore to say anything more about it than that where a man has earned a remuneration his right to receive it can only be taken away by something in the nature of payment, accord and satisfaction, or release. But the learned counsel for the respondent has set up some other grounds, some of which were open to him, and some were not. I will deal first with the alleged ground of misdirection. The learned Judge told the jury, in effect, that if they found that the plaintiff bond fide entered into a contract with a bond fide purchaser, and that purchaser was ready and willing to carry out the contract, then they should come to the conclusion that the plaintiff had done all that he contracted to do, and if they believed that, then the plaintiff was entitled to the £50 mentioned in the contract. That was not strictly correct. The plaintiff was not necessarily entitled to the whole £50, but to a verdict fora sum the amount of which might be what the jury might think his services were worth, not exceeding £50. But it was conceded between the parties at the trial that the plaintiff was really entitled to £50 or nothing. So there is nothing in that point. Another objection to the form of the direction was that the jury might have been led to think that the plaintiff's right to recover depended upon his getting the contract signed. It is clear that that is not so. His rights do not depend upon that. He earned his remuneration if he found a bond fide purchaser irrespective of the signing of the contract. But any error in that statement objected to is rather in favour of the defendant than the plaintiff. That, therefore, is not a ground for reversing the judgment. The third point made was that his Honor refused to direct the jury that if they found that the defendant bond fide objected to Mrs. Daniels as a tenant the plaintiff could not recover. Now that ground assumes that upon a contract of that sort no remuneration is payable unless the principal actually enters into a contract with the person intro- duced. But that is not the meaning of the contract. The defendant sought to show that there was a bond fide objection, and failed, so that the point is not now material. It was sought to

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case was fought on both sides, whether the plaintiff was entitled to £50 or nothing." So no question was raised as to the amount the plaintiff was entitled to on the basis of a quantwm meruit. The learned Judge proceeds : - * The defendant's case is that plain- tiff's claim was based on fraud and therefore plaintiff could not recover anything. Plaintiff claimed that he acted honestly throughout and was therefore entitled to the £50 mentioned in the agreement." Now there is nothing better established with respect to procedure than this, that with regard to the facts parties are bound by the way they fight the case at the trial, and the issue there fought was whether the plaintiff had misconducted himself by getting Mrs. Daniels to sign that contract, she nob being a person who could carry out the contract, and doing that fraudulently. That was the one issue, and that was found against the defendant. Now I do not doubt that upon the cireumstances as proved many questions of fact might have been raised with more or less success at the trial, but it is too late, in my opinion, for the defendant now to raise questions and issues of fact that he did not raise then, and as to which it is obvious that there may have been good reasons why he should not wish to raise them. He therefore raised the one point that Mrs. Daniels was not a person who could carry out the contract, and more, that the plaintiff was guilty of fraud in inducing her to sign the contract. Looking at the points which the learned counsel for the defendant asked the learned Judge to reserve, and at the grounds of appeal to the Supreme Court as a whole, I feel no doubt that that was the one point variously stated. Under these circumstances it seems to me that the appeal must be allowed, because the ground upon which the learned Chief Justice of New South Wales based his decision was this, that though the plaintiff was otherwise entitled to a quantum meruit in respect of the work done before the contract was terminated, he says (1): - "I think the answer to this is, that his previous service was of no value whatever to his principal." I may interpose - Why was it not? Because the defendant would not accept it. The learned Chief Justice pro- ceeds: - " And by his subsequent misconduct, or ignorance of his duty as a commission agent, he forfeited any claim he might (1) (1908) 8 S.R. (N.S.W.), 92, at p. 97.

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Cited By (1)