grossly incorrect, he is not entitled to recover anything for his CH. XIX. s. 11. Contracts of Employment (Surveyors). Valuers. neration. It is usual for architects and surveyors to charge for their Their remutrouble a percentage on the cost of the works with reference to which they are employed. But in two cases (t) the propriety of this mode of remuneration has been questioned. (r) Moneypenny v. Hartland (1824), 1 C. & P. 352. (s) Jenkins v. Betham (1854), 15 C. B. 168. (t) Upsdell v. Stewart (1794), Peake, 193; 3 R. R. 685; Chapman v. De Tastet (1817), 2 Stark. 294; 19 R. R. 725. Breach of contract to for. IN the present chapter it is intended to give a very short outline of the law of contracts relating to subject-matters not already specifically treated in Chapters X. to XIX., so that this book may embrace in more or less detail all the special subject-matters upon which a contract may be made. SECT. 1.-Loan of Money (a). (a) Loans without Security. [See tits. "Money Lent," "Promissory Note," Bullen and Leake on Pleading, 4th ed., pt. 1; Roscoe's N. P. Evidence, vol. i.] The contract of loan of money (a) differs from bailment (as to which see ante, Ch. XIV.), in that the actual money lent is not to lend, damages be re-delivered by the lender, but an equal sum is subsequently to be repaid. It is a simple contract not requiring writing, and substantial damages are recoverable by the intending borrower for the breach of it (b). In most cases the lender takes an acknowledgment in writing from the borrower and either an I. O. U. or a promissory note, or a bond or deed. If the loan is secured by a covenant in a deed, the specialty merges the simple contract, and the lender can only sue on the specialty covenant; if there is a promissory note, he will during the currency of the note be estopped from suing otherwise than in accordance with its terms (c); but after it has become due, he can sue on the note, (a) For re-opening, &c., unconscionable, &c., loan of professional money-lender under Money Lenders Act, 1900, 63 & 64 Vict. c. 51, see p. 553, post. (b) Manchester and Oulham Bank v. Cook (1884), 49 L. T. 674; and see South African Territories v. Wallington, [1897] 1 Q. B. 692, infra (b). (c) See ante, Ch. XVI., sect. 4. and add a claim for money lent, and the promissory note may be CH. XX. s. 1. used as evidence in support of money lent. The plaintiff must prove the loan of his money; mere payment of money by the plaintiff to the defendant is not sufficient; it may be that the plaintiff paid the money in liquidation of an antecedent debt (d), or that it was a gift, but the law presumes against gifts except as between parent and child. Nor does this action lie, if the money was not lent to the defendant personally, but to another person at his request (e); though it will lie if the defendant alone was in fact the borrower, although the money was delivered by the plaintiff to another person at the defendant's request (ƒ). So, where the defendant gave a memorandum, whereby he acknowledged the receipt from the plaintiff of a sum of money ' on the behalf of the E. E.," an infant, and promised to be accountable for such sum on demand; it was held, that the memorandum was evidence to support a count for money lent, as against the defendant (g). So, money advanced upon a contract to repay it on demand, or to execute a mortgage, may, after refusal to execute the mortgage, be recovered in an action for money lent (h). In James v. Cotton (i), it appeared that the plaintiff agreed to let land to the defendant on building leases, and to lend him 4,000%. to assist him in the erection of twenty houses, the money to be repaid by June, 1828. The defendant agreed to build the houses, to convey them as a security for the loan, and to repay the money. When six houses were built, and 1,168/. had been advanced, the plaintiff requested the defendant not to go on with the other fourteen houses; and, the defendant having desisted, it was held that after June, 1828, the plaintiff might recover the 1,1687. on the count for money lent. Loan of Money. on security. Where money is lent generally upon, or is secured by, a deposit Money lent of goods, the lender has his remedy by action against the borrower, without returning the goods; and, to discharge the borrower, there must be a special agreement to stand to the pledge only (k). So, where money is lent on mortgage, and the mortgage deed contains no covenant, either express or implied, on which an action can be maintained for such money, the lender may recover it in an action for money lent (1). (d) Cary v. Gerrish (1801), 4 Esp. 9; Welch v. Seaborn (1816), Stark. 474. (e) Marriott v. Lister (1762), 2 Wils. 141; Butcher v. Andrews, Salk. 23. (f) Bull v. Sibbs (1799), 8 T. R. 327. (g) Harris v. Huntback (1757), 1 Burr. -373. (h) Bristowe v. Needham (1842), 9 M. & W. 729. (i) James v. Cotton (1831), 7 Bing. 266. (k) South Sea Co. v. Duncomb (1732), 2 Str. 919. (1) Yates v. Aston (1843), 4 Q. B. 182; CH. XX. s. 1. Loan of Money in Money deposited with a banker by his customer, in the ordinary way, is money lent to the banker, to be repaid when called for by cheque (m). Where money is advanced by a parent to a child, it appears that Advancement the presumption is that such advance was by way of gift, and not by way of loan (n). to child. Money lent on illegal contract. Evidence in support of. Fraudulent concealment of lender's identity. So, money lent for the express purpose of accomplishing an illegal object cannot be recovered by the lender. Therefore, money lent for the purpose of gaming or playing at an illegal game cannot be recovered (o). But money lent, to enable the borrower to pay a bet which he has already lost, may be recovered by the lender (p). Where money is lent without any stipulation as to the time of repayment, a present debt is created which is in general repayable at once without any demand; but where the promise was to pay a sum "on request," the request is part of the contract, and must be proved, and no action arises until request be made (q). A bill of exchange or promissory note in the ordinary form, seems to be evidence of money lent, as between the payee and drawer of the former, or the payee and the maker of the latter (r). But an instrument payable on a contingency, in the following terms "Nine years after date I promise to pay to sum of with interest, provided D. M. shall not return to England, or his death be duly certified in the meantime; "-was held not to raise any presumption that the sum had been lent (s). the So it appears that an I. O. U. in which the holder-plaintiff's name is not mentioned, is not evidence of money lent by the holder to the party signing it (t). Nor is the mere fact of the plaintiff producing at the trial a cheque on his bankers, drawn by him in favour of the defendant, and proving that he handed such cheque to the defendant, any evidence of money lent by the former to the latter (u). If the lender fraudulently conceal his identity and the borrower borrow under the fraudulently induced belief that he is borrowing Mathew v. Blackmore (1857), 1 H. & N. (m) Pott v. Clegg (1847), 16 M. & W. (n) Per Bayley, J., Hick v. Keats (1825), 4 B. & C. 69. (0) M'Kinnell v. Robinson (1838), 3 M. & W. 434; Foot v. Baker (1843), 5 M. & G. 335. (p) Ex parte Pyke (1878), 8 Ch. D. 754, C. A.; and see post, Ch. XXI., sect. 5 (b). (q) See Bullen and Leake's Pleading, notes to Money Lent. (r) Per Bayley, J., Morgan v. Jones (1830), 1 C. & J. 162. (s) Morgan v. Jones (1830), 1 C. & J. 162. (t) Fesenmayer v. Adcock (1847), 16 M. & W. 449; but see Douglas v. Holme (1840), 12 A. & E. 641. (u) Per Patteson, J., Pearce v. Davis (1834), 1 Moo. & Rob. 365; Bleasby v. Crossley (1826), 3 Bing. 430. Loan of from another person than the lender whose reputation in business CH. XX. s. 1. is such that the borrower would not have knowingly borrowed of him, the borrower may repudiate the contract within a reasonable time after discovering the fraud (x). (b) Loans on Security. [See Coote on Mortgages, 7th ed., A.D. 1904; Fisher on Mortgages, 5th ed., A.D. 1897; Reed's Bills of Sale Acts, 12th ed., A. D. 1904; Chitty's Statutes, 5th ed. tit., "Bill of Sale."] Gordon v. Street. Where money is lent upon security, the security may be either Pledge. transferred in possession to the lender to hold until the money is repaid; this kind of transaction, which is called "pawning" or "pledging," we have already treated under the head of Bailments, ante, Ch. XIV. sect. 4; or the borrower may retain the possession Mortgage. of the security and transfer the property in it to the lender, to the intent that if the money be repaid, the lender shall re-transfer the property to the borrower, and if it be not repaid, the borrower shall give up the possession, as well as the property to the lender. This kind of transaction is termed a mortgage, and so is the Bill of sale. instrument by which it is effected, but where the security consists of goods, the instrument is usually termed a bill of sale, and must be in conformity with the requirements of the Bills of Sale Acts, 1878 and 1882, 41 & 42 Vict. c. 31, and 45 & 46 Vict. c. 43 (y), and must be in the form scheduled to the Act of 1882. A legal mortgage of land, which must be by deed, ordinarily Legal morttransfers the property in the land to the lender, or mortgagee, the gage of land. borrower or mortgagor covenanting to pay the money lent at a stated day, usually six months from the date of the mortgage, with interest in the meantime until the repayment of the principal. The interim management of the property, and the powers of the mortgagee to enforce payment of principal or interest, are regulated by sects. 15-30 of the Conveyancing Act, 1881, if the mortgage was executed after that Act and the mortgage deed does not expressly avoid the operation of it; otherwise they must be sought for in the mortgage deed. Substantial damages may be recovered for non-performance of an agreement to lend upon security, the measure of the damages being not the sum agreed to be lent, but the loss sustained by the breach, as was held in a case where the defendant agreed to take 16 debentures in a company and paid the first but failed to pay (x) Gordon v. Street, [1899] 2 Q. B. 641, C. A. (y) The Bills of Sale Acts, 1878, 1882, do not apply where possession is delivered by the lender; see Manchester, Sheffield, Damages for not lending. |