CH. XIX. S. 5. held that the traveller could recover substantial damages from Contracts of the manufacturer for not forwarding samples at the end of two Employment (Agents). years; and further that the manufacturer was not excused from fulfilling his agreement by the destruction of his manufactory by fire (2).

Foundation of right to commission. Green v. Lucas

Secret commission and bribery. Shipway v. Broadwood.

Del credere agent.

Loss of com

mission by negligence;

The mere introduction of the contracting parties to each other, will not entitle the agent to his commission. But if the relation of buyer and seller is really brought about by the act of the agent, he is entitled to commission, although the actual sale was not effected by him (a). And it appears to be now settled, that if an agent be employed to procure a loan, his contract is completed when he procures a person who is able and willing to advance the money: and that, although the negotiation afterwards goes off, whether by the act or default of the intended borrower, or that of the intended lender, the agent is still entitled to his commission (b).

The taking of a secret commission from the party negotiated with is a fraud which will justify dismissal (c); and also will avoid a contract, as appears from Shipway v. Broadwood (d) where a veterinary surgeon was employed by the defendant to look out for a pair of horses and the defendant bought them subject to the veterinary surgeon certifying their soundness, but the plaintiff failed in an action for the price on the ground of having offered a bribe to the veterinary surgeon—whether accepted or not being declared by the Court not to be material.

A del credere agent is one who, for a higher commission, guarantees to his principal the due payment of the price of the goods sold by the agent to third persons (e).

Where, by reason of the misconduct, negligence, or unskilfulness of the agent, the principal derives no benefit whatever from the acts of the latter, he is not entitled to claim his commission in respect thereof (f).

() Turner v. Goldsmith, [1891] 1 Q. B. 544, C. A., distinguishing Rhodes v. Forwood (1876), 1 App. Cas. 256, on the ground that in that case there was no express agreement to employ; and see Roberts v. Barnard (1884), C. & E. 236; Northey v. Trevillion (1902), 7 Com. Cas. 201; Ogdens, Lim. v. Nelson, [1903] 2 K. B. 287, per Lord Alverstone, C.J., at p. 299, directing attention to the view taken of Rhodes v. Forwood in later cases; Moon v. Camberwell Borough Council (1903), 89 L. T. 595, C. A., affirming Ridley, J.

(a) Per Erle, C.J., Green v. Bartlett (1863), 14 C. B., N. S. 681, 685; Toulmin v. Millar (1887), 58 L. T. 96, H. L. ; and see Tribe v. Taylor (1876), 1 C. P. D.

505; Mansell v. Clements (1874), L. R., 9 C. P. 139; White v. Baxter (1883), C. & E. 199; Lumley v. Nicholson (1886), 34 W. R. 716.

(b) Green v. Lucas (1875), 33 L. T. 548, C. A.; Fisher v. Drewett (1878), 39 id. 253, C. A.; and see Prickett v. Badger (1856), 1 C. B., N. S. 296; and per Willes, J., id. 308.

(c) Boston Deep Sea, &c., Co. v. Ansell (1888), 39 Ch. D. 339, C. A. ; and p. 248, ante.

(d) Shipway v. Broadwood, [1899] 1 Q. B. 369.

Contracts of Employment (Agents).

Therefore, where a broker who had purchased goods for his CH. XIX. s. 5. principal on credit was induced by the vendor to delay delivery till the credit had expired, when the buyer refused to receive them; it was held that the broker could not claim his commission (g). So, if a factor has been guilty of such misconduct in selling the goods of his principal, as to render the sale useless, or to subject his principal to an actual loss, he is not entitled to his commission (h). And if an auctioneer, employed to sell an estate, be guilty of negligence or unskilfulness, whereby the sale becomes nugatory, he is not entitled to recover from the vendor any compensation for his trouble (i).

of service.

An agent cannot recover commission upon any transaction or illegality which is, in itself, necessarily illegal, e.g., for effecting a sale of shares in an illegal association or undertaking (k); or where the commission is agreed to be paid on a consideration which is corrupt (1). But he may recover commission for doing an act for his principal, although such act would be illegal if certain requisites were not afterwards complied with by the principal-the agent not being employed to perform them; as for obtaining an insurance on a voyage for which a licence is necessary (m).

So, a person who acts as an appraiser cannot recover his Appraiser. commission, if he be not duly licensed under the Appraiser Licences Act, 1806, 46 Geo. 3, c. 43, s. 5 (n).

SECT. 6.-Builders (0) and other Workmen.

tract to build, &c., must be in writing.

A contract to build, alter, or repair a house, or the like, and to When a conprovide materials for the purpose, need not be in writing, unless it is not to be performed within a year. Such contracts do not fall within sect. 4 of the Sale of Goods Act, 1893, 56 & 57 Vict. c. 71 (p. 340, ante), re-enacting the repealed sect. 17 of the Statute of Frauds, and 9 Geo. 4, c. 14, s. 7, inasmuch as a contract to build, alter, or repair a house, or the like, is not in law a contract for the sale of goods, even as regards the materials, but an entire contract for work and materials (p).

CH. XIX. s. 6.

Where a contractor agrees to execute certain work, according Contracts of to a plan and specification, there is not any implied warranty, on the part of the person with whom he contracted to do the work, that it can be done in a way and under the conditions mentioned in the specification. And, if the work cannot be done in that way, and the contractor does it in another way, which is more expensive, he cannot recover the extra expense, in an action for damages as for breach of the supposed warranty (q).

Employment (Building Contracts). Variation. Thorn v. Mayor of London.

Extras.

When the

amount of the

reduced, because of the

Where, by the terms of the contract, extras are to be ordered in writing, the party is liable only for such as are so ordered (r); and on a building contract, no acceptance of the work and materials by the employer can be implied, because he cannot, as in the case of goods sold and delivered, return the same (s).

If there be an agreement that a specific sum of money shall be claim may be paid for the performance of any work, the claim may be reduced, by showing that the work or materials were of an inferior description and value; and the demand may be altogether defeated, by showing that the work is totally inadequate to answer the purpose for which it was undertaken (†).

badness of the

work.

Building Act.

Certificate of

But if there be nothing in the case amounting to a contract to complete the work before any remuneration shall be due-as in the case of a shipwright undertaking, in the same way that shipwrights ordinarily do, to put a vessel in repair-the workman may, after he has proceeded with a portion of the work, refuse to continue it unless he is paid for the work he has performed; and he may recover to that extent (u).

A contract for the erection of a building, in contravention of the London Building Act, 1894 (x), cannot be enforced (y).

If a building agreement contain the usual clause, that the party architect, &c. will pay upon receiving an architect's certificate that the work has been done to his satisfaction-the fact of the work having been done to the satisfaction of the engineer in the one case, and the obtaining a proper certificate in the other, is a condition precedent to the right to receive payment (2). And it has been held, that the architect's merely checking the builder's charges, and sending

(2) Thorn v. Mayor, &c., of London (1876), 1 App. Cas. 120; Tharsis Sulphur, &c., Co. v. M'Elroy (1876), 3 App. Cas. 1040; Sharpe v. San Paulo Rail. Co. (1873), L. R., 8 Ch. 597.

(r) Russell v. Da Bandeira (1862), 13 C. B., N. S. 149.

(s) Munro v. Beatt (1858), 8 E. & B. 738; Tharsis, &c., case, supra (q).

(t) Chapel v. Hickes (1833), 2 C. & M. 214; Allen v. Cameron (1833), 1 C. & M. 832; Farnsworth v. Garrard (1807), 1 Camp. 38; 10 R. R. 624; Duncan v.

Blundell (1820), 3 Stark. 6.

(u) Roberts v. Havelock (1832), 3 B. & Ad. 404; and see Sinclair v. Bowles (1829), 9 B. & C. 92.

(a) 57 & 58 Vict. e. cexiii., Chit. Stat. tit. "Metropolis," amended by Act of 1898, 61 & 62 Vict. c. cxxxvii., ib., vol. xiv., tit. "London."

(y) Stevens v. Gourley (1859), 7 C. B., N. S. 99, decided on the repealed Metropolitan Building Act, 1855, for which the Act of 1894, is substituted.

(z) See Milnerv. Field (1850), 5 Ex. 829.

them to the party who employed the builder, is not a sufficient certificate to entitle the latter to sue: although no objection be made to his claim, on this ground, until the trial (a).

There is not any implied agreement by the party for whom the work was done, to procure the required certificate (b). Nor, where buildings are erected on a man's own land, under an agreement to pay for the same on receiving the architect's certificate, will the mere fact of his taking possession of the building be evidence of his having waived the condition as to the certificate (c). But equity would relieve in such a case, if it were shown that the certificate was withheld by collusion between the architect or engineer, and the party for whom the work was done (d); and he would also be liable at law (e).

CH. XIX. s. 6.
Contracts of
Employment
(Building
Contract).

contract.

Where a contract to build for a lump sum is abandoned after Abandoned part execution, the builder cannot recover as upon a quantum meruit in respect of the part executed, as was held in a case where Hedges. the employer himself completed the building (ƒ).

Sumpter v.

SECT. 7.-Printers (g).

matter.

In Poplett v. Stockdale (h), Best, C.J., ruled, that the plaintiff, Libellous a printer, could not recover any compensation for printing for the defendant, "The Memoirs of Harriette Wilson;" it being a work of grossly immoral and libellous nature. And, on the other hand, if a printer, after he has printed part of a work, discovers that it contains libellous matter, and in consequence thereof refuses to complete the printing of the work, he may nevertheless recover for so much as he has actually done (i).

So a printer cannot recover for labour or materials used in Printing of printing a work, unless he affix his name to it, pursuant to the name. statute (k). Nor can he recover for printing, or for assisting to

(a) Morgan v. Birnie (1833), 9 Bing. 672.

(b) Smith v. The Mayor, &c., of Harwich (1857), 2 C. B., N. S. 651.

(c) Munro v. Butt (1858), 8 E. & B. 738; followed in Sumpter v. Hedges, [1898] 1 Q. B. 673, C. A., infra.

(d) M'Intosh v. Great Western Rail. Co. (1850), 19 L. J., Ch. 374, app.; Scott v. The Corporation of Liverpool (1858), 27 L. J., Ch. 641.

(e) Batterbury v. Vyse (1863), 2 H. & C. 42; Clarke v. Watson (1865), 18 C. B., N. S. 278.

(f) Sumpter v. Hedges, [1898] 1 Q. B. 673, C. A.

C.C.

(g) See Powell on the Law specially affecting Printers, Publishers, and Newspaper Proprietors (2nd issue, 1889), at p. 56 of which is a table of the lengths of notices to which compositors, readers, and others are entitled, compositors and readers being entitled to two weeks, and printers to one month.

(h) Poplett v. Stockdale (1825), R. & M. 337.

(i) Clay v. Yates (1856), 1 H. & N. 73. (k) 39 Geo. 3, c. 79, s. 29; 2 & 3 Vict. c. 12, s. 2; re-enacted by the Newspaper Act, 1869, 32 & 33 Vict. c. 24; Bensley v. Bignold (1822), 5 B. & Al. 335; Marchant v. Evans (1818), 8 Taunt. 142.

32

CH. XIX. s. 7. circulate a periodical, of which he falsely makes affidavit that he Contracts of is the sole proprietor (1). Nor can the proprietor of a newspaper Employment (Printers.) recover for non-performance of a contract for printing such paper, before filing the requisite affidavit (m).

Delivery of whole work.

By the custom of trade, a printer was ruled in 1808 to be bound to complete and deliver the whole work before being paid for printing it (n); so that where an impression was destroyed by fire whilst on the premises of the printer, he failed to recover anything, although a large number of copies had been actually delivered (o).

Breach of contract, made an offence.

Conspiracy and Protection of Property Act, 1875.

Employers

and Workmen Act, 1875.

SECT. 8.-Servants and Workmen.

(a) Statutory Regulations.

The contracts of master with servants and workmen have long been the subject of much statutory regulation whereby summary jurisdiction of a penal nature was given to magistrates to enforce such contracts. In 1823, by 4 Geo. 4, c. 34, breach of contract by servants or artificers was made "an offence" punishable by imprisonment, and this Act, though modified by the Master and Servant Act, 1867, 30 & 31 Vict. c. 141, was not finally repealed until 1875 (p). Then the Conspiracy and Protection of Property Act, 1875, 38 & 39 Vict. c. 86, repealing 4 Geo. 4, c. 34, and the Master and Servant Act, 1867, constituted breach of contract an offence punishable by summary jurisdiction only in the two cases where (sect. 4) the workman was employed in the supply of gas or water, or where (sect. 5) the breach of the contract involves injury to persons or property.

The Employers and Workmen Act, 1875, 38 & 39 Vict. c. 90, which applies to "workmen " (q), as defined by sect. 10 of the Act, excluding domestic servants, but including servants in husbandry, and also "seamen " by sect. 11 of the Merchant Seamen (Payment

(1) Stephens v. Robinson (1832), 2 C. & J. 209.

(m) Houston v. Mills (1834), 1 Moo. & Rob. 325.

(n) See per Mansfield, C.J., Gillett v. Mawman (1808), 1 Taunt. 137. In Mawman v. Gillett (1809), 2 Taunt. 235, it appeared that no custom bound printers to insure.

(0) Adlard v. Booth (1835), 7 C. & P. 108.

(p) See Chitty's Statutes, 5th ed., tit. "Master and Servant;" Howell's Labour Legislation, Labour Movements and Labour Laws; Howell's Handy Book of the Labour Laws; Howell's Trade Unionism, New and Old; Cohen and

Howell's Trade Union Law and Cases.

(q) This will include a "potter's printer;" Grainger v. Aynsley (1880), 6 Q. B. D. 182, where the Court suggested "manual labour" as the keynote of the definition; but it does not include an "inventor," although he was a practical working mechanic; Jackson v. Hill (1884), 13 Q. B. D. 618; nor does it include an "omnibus conductor;" Morgan v. London General Omnibus Co. (1884), 13 Q. B. D. 832, C. A.; nor the "driver of a tramcar;" Cook v. The North Metropolitan Tramways Co. (1887), 18 Q. B. D. 683; but includes the driver of a trolley for a warehouseman; Yarmouth v. France (1887), 19 Q. B. D. 647.