Sim, in reply: The question is whether there is any evidence to justify the Magistrate's decision: Stevens v. Hughes(1); Reid v. Crawshaw (2). WILLIAMS, J. :— 66 Cur, adv. vult. The question in the present case seems to me to be whether the negotiation for the sale to Dumbleton was complete so far as Keam was concerned. If it was, then Keam would be entitled to recover. If it was not, then Hinchey would have been within his rights in revoking Keam's authority. I have been unable to find any case where a person acting as a commission agent has been held entitled to recover either commission on sale or on a quantum meruit by reason of his authority being revoked before completion, unless the agent has previously done what he was bound to do. The case of Capstick v. Chapman (3), relied on in the Court below, was expressly decided on the ground that the plaintiff had done all that he had to do. The law is laid down by Lord Esher in the Court of Appeal in Noah v. Owen(4). He says, "The contract here was one of agency, on the terms that if the agent were suc"cessful he would be paid. Under such a contract the agent "might withdraw from the arrangement, but if he did so he "would earn no commission. On the other hand, the person employing the agent was not compelled to allow the agent "to go on with the work, provided the employer had derived "no advantage from the services rendered. If the employer “had derived such advantage, and took the case out of the "agent's hands, and thus prevented him from earning his comImission, the authorities showed that the agent could sue for damages, though not for the commission." He goes on to say that, if it could have been shown that the withdrawal of authority was a trick to deprive the agent of his commission and to take advantage of his services, an action would have lain. In the absence, however, of any such evidence, he held that the withdrawal of authority by the principal was justifiable, and that the agent had no right to recover. 66 66 66 What, then, had the plaintiff in the present case to do in order to entitle him to recover? The remarks of Lord Esher in the case of Grogan v. Smith (5) answer the question. Lord Esher says, 66 right of action if he could show that he did obtain a person "who was ready and willing to enter into a binding contract; "if he could show that the two parties, vendor and purchaser, were really agreed as to all the terms of the contract; that it was prevented from becoming a binding contract only by reason of the fault or default of the defendant in refusing "to make the agreement valid and binding." Is there, then, evidence to show that in the present case Keam had procured Dumbleton as a purchaser who was ready and willing to enter into a binding contract to purchase the lease of the hotel, with the stock, furniture, and effects, at the price of £1,450? The evidence, on the contrary, clearly shows that at the time of the revocation of Keam's authority Dumbleton was not ready and willing to enter into a binding contract to purchase at that sum. He had not been over the premises nor seen the furniture and stock-in-trade, and he, of course, wanted, before committing himself, to go over the premises. The utmost that can be said is that the evidence shows that, if Keam's authority had not been revoked, Dumbleton would most probably have been ready and willing, after he had inspected, to enter into a contract for the purchase. But Keam's business was to find a person who actually was ready and willing to purchase; and if before the time arrived when the person found is willing to purchase Hinchey revokes Keam's authority he is acting within his rights, unless he does so in order to deprive Keam of his commission and to derive a benefit from the services Keam has rendered. Nothing of the kind is suggested here. I think the appeal must be allowed, and judgment entered for the defendant. Solicitor for the appellant: I'. Y. Hall (Invercargill). S.C. 1901. HINCHEY V. KEAM. VOL. XX-91 S.C. 1901. May 1, 2, 10. THE INHABITANTS OF THE ASHLEY ROAD DIS- Bridge-Protective Works-Maintaining and repairing—Right of Contribution "The Public Works Act 1882 Amendment Act 1884," Section 11. Under the powers contained in section 11 of "The Public Works Act 1882 Amendment Act, 1884," the inhabitants of a road district were appointed to have the control of a bridge, and the cost of maintaining or repairing the same was apportioned between such local body and other local bodies of whom the defendant Corporation was one. The controlling body, in pursuance of what it considered its duty in maintaining and repairing the bridge, spent a large sum of money in the erection of a groin or gravel bank in the bed of the river, the object being to divert the stream back to its original channel under the bridge, from which it had, during a flood, broken out, making a new channel in the shingle-bed south of and beyond the bridge and its actual constructed approach. The defendant body protested against the expenditure, and refused to pay its proportionate share. Held, That such expenditure was not a maintaining or repairing" of the bridge within the meaning of those words in section 11 of "The Public Works Act 1882 Amendment Act, 1884," and that the defendant Corporation was not liable to contribute. What is "maintaining" must in every case be decided with reference to the subject-matter, but it must at least mean something directly or indirectly referable to the structure of the bridge. The rule laid down in Reg. v. The Mayor of Lincoln(1), that a prescriptive liability to repair a public bridge, unexplained and unrestricted, includes the liability to repair the highway at the ends of it within the distance of 300 ft., is not applicable to New Zealand, where the obligation is statutory. APPEAL (1) 7 L.J. Q.B. 161. PPEAL on law and fact from the decision of H. W. Bishop, Esq., S.M., given at Rangiora on the 19th of March, 1901. By a warrant dated the 7th of November, 1885, the Minister for Public Works, in pursuance of the authority vested in him by section 11 of "The Public Works Act 1882 Amendment Act, 1884," vested the control of the Ashley Traffic Bridge in the Inhabitants of the Ashley Road District, and apportioned the cost of maintaining and repairing the said bridge among various local bodies. The controlling body was liable to contribute as its share £55 per centum, and the defendant body £15 10s. per centum. Between July, 1898, and September, 1899, the controlling body expended £618 1s. 4d. in erecting S.C. 1901. OF and maintaining a groin or gravel bank in the Ashley River bed, alleging that such works were necessary for the maintenance of the bridge. The defendant body objected to the INHABITANTS work, and refused to pay its proportion, £95 16s. The con- ASHLEY ROAD trolling body thereupon commenced proceedings against the DISTRICT defendant Corporation to recover the amount. The Magistrate INHABITANTS held that the works referred to did not come within the meaning of the words "maintaining or repairing," and gave judg- DISTRICT. ment for the defendants. From this decision the plaintiffs appealed. Fisher and Helmore, for the appellants : The duty of maintaining and repairing involved the duty to maintain a way over the bridge-across the river. The way for the public over the bridge is the thing to be maintained. The Sandgate Urban District Council v. The County Council of Kent(1) shows that a sea-wall and groins, necessary to preserve a road from injury, though not actually forming part of it, were works properly done in maintaining the road. The evidence shows that the southern approach was being washed away. The plaintiffs' duty under the order was not only to maintain the structure of the bridge, but to do all such things as were reasonable and proper to be done to keep the river under the bridge and the bridge over the river, so as to maintain the structure as a way over the river. As to what is included as maintenance, see The Mayor, &c., of Burnley Corporation v. Lancaster City Council(2); The Guardians, &c., of Amesbury v. The Justices, &c., of Wilts (3): The Brecknock, &c., Company v. Pritchard(4). Harper and Johnston, for the respondents : None of the cases cited have any application to this case, where the duties and obligations of the various local bodies are defined and regulated by statute. The case of The Mayor, &c., of Rangiora v. Ashley Road District(5) shows that this bridge only goes over part of the river-bed: it starts from the northern side from a well-defined bank and descends abruptly into the shingle-bed of the river. Although this is so, the respondents have never been called upon to contribute to the maintaining or repairing of the road up to the bridge, but only to the structure itself. V. OF KOWAI ROAD S.C. 1901. Fisher, in reply: The Mayor, &c., of Rangiora v. Ashley Road District(1) is INHABITANTS against the respondents. Since this is a bridge ending in the ASHLEY ROAD middle of a river-bed, it must be clear that the approaches would have to be maintained. OF DISTRICT V. INHABITANTS KOWAI ROAD DENNISTON, J. :— Cur, adv. vult. This is an appeal from the judgment of a Stipendiary Magistrate in favour of the respondents in an action wherein the appellants claimed to receive from the respondents a sum of £95 16s., alleged to be due by them as their contributions towards the maintaining and repairing of the Ashley Traffic Bridge. 66 In 1885 the appellants were, by warrant under the hand of the Minister for Works, made under "The Public Works Act 1882 Amendment Act, 1884," section 11, appointed to have the control of the Ashley Traffic Bridge; and by the same warrant the Minister apportioned the cost of maintaining and repairing the said bridge among various local bodies, the appellants paying £55 per cent. and the respondents £15 10s. per cent. of such cost. In 1897 the Ashley River was in flood, and the appellants, as stated in the evidence of their Clerk, applied to the Government "to give £1,000 to do work to "prevent overflow stopping the traffic and keep stream under bridge." This sum was spent, and a further sum of £150 and moneys amounting to over £600 were expended by the appellants. The works are described in the appellants' particulars of demand as the erection and maintenance of a groin or gravel bank in the Ashley River bed, and fencing the same against cattle and planting it with willows. The bridge extends from the permanent bank on the northern side of the river to a point in the wide shingle-bed, such as in the case of most Canterbury rivers extends beyond the usual channels, from which point a sloping approach is made to such shinglebed. What appears to have occurred is that the river broke out during a flood into a new channel in the shingle bed, south of and beyond the bridge and its actual constructed approach. The object of the works constructed by the appellants was to compel the return of the stream to its original channel in the words I have already quoted, to "keep stream "under bridge." No part of the money now sued for was expended in any structural repairs to the bridge or the approaches. (1) 6 N.Z. L.R. 119. |