1865. EDGELL บ. DAY. pay over the same to A. Edgell; but in case the purchases respectively or any of them should be rescinded or set aside, then to return the respective deposit monies on such purchases to the respective purchasers who should have deposited the same with the Defendant; and that the Defendant, in consideration of such retainer and employment, promised A. Edgell to receive and hold and pay over the monies according to the terms last aforesaid, and not otherwise; and that he never promised to account to A. Edgell for the monies deposited by the purchasers on the sales in the first count mentioned, except as aforesaid; and that at the times when the supposed breaches of promise in the first count mentioned, in not paying over the deposit. monies therein mentioned to A. Edgell or the Plaintiff, the purchases respectively on which the same were deposited with the Defendant had not nor had any of them been completed nor had any of the deposit monies become forfeited, nor had A. Edgell or the Plaintiff become entitled to receive the deposit monies or any of them. To the second count Sixth. A traverse of the retainer and employment of the Defendant. Seventh. A denial that the Defendant received the money as agent and on the terms alleged. To the common counts Ninth. To all except 1,6047. 10s. never indebted. Issues on all the pleas. On the trial before Willes, J., at the Middlesex sittings after Easter Term, it appeared that the action was brought to recover the amount of deposits paid to the Defendant on occasion of the sale of certain property situated in Bedfordshire, and interest upon each deposit from the time of its receipt by the Defendant until the time of payment of the same to the Plaintiff. The Defendant paid into Court the amount of the deposits; but contended that he was not liable to pay interest on them until the completion of the purchases to which they related. A. Edgell was sole acting trustee under the will of John Francklin, deceased, and had power under it to sell his real estates and apply the proceeds for the benefit of his children. A. Edgell employed the Defendant, an attorney and solicitor at Saint Neots, in the county of Huntingdon, to sell the estates; it was agreed that it would be desirable to sell them in lots; but before taking that step the Defendant offered them to W. Smith, who agreed to become purchaser of part, and the following memorandum of agreement was signed by them : "Memorandum of agreement made and entered into this 31st August, 1859, between G. Day, of &c., gentleman, (as the agent of A. Edgell, Esq., the sole acting trustee under the will of John Francklin, late of &c.), of the one part, and W. Smith, of &c. of the other part, whereby the said G. Day agrees to sell to the said W. Smith, who hereby agrees to purchase the farm-house, homestead, land and premises at Potton aforesaid, part of the estate of the late John Francklin, deceased, being part freehold and part copyhold, &c., for the sum of 8,000l., subject to the annexed conditions as far as the same apply to a sale by private contract. Except that the said W. Smith has this day paid to the said G. Day the sum of 1,000l. as a deposit and in part payment of the purchase money, as the said G. Day doth hereby acknowledge, and that he is to pay interest at 4 per cent. from the 6th January next on the unpaid purchase money till completion, which is to be on or before the 25th March next at the option of the said W. Smith, &c." At the time of signing this agreement a deposit of 1,000l. was paid by W. Smith to the Defendant. : The third condition in the printed particulars, annexed to the memorandum of agreement, was as follows:— "The purchaser of each lot shall immediately after the 1865. EDGELL v. DAY. 1865. EDGELL V. DAY. sale pay one guinea for the auctioneer and one guinea for the agreement, and also pay into the hands of Mr. G. Day, as agent for the vendor, a deposit of 151. per cent. upon and in part of the purchase money, and sign an agreement for payment of the remainder thereof and to complete the purchase on or before the 1st November next at the office of Mr. G. Day, &c." On the 24th September the remainder of the estate was sold in lots by auction. The Defendant attended the sale and received the deposits, giving receipts" as agent for the vendor." In completing the purchases, the purchasers were represented by their own solicitors. After the sale, A. Edgell requested the Defendant to pay the deposits, including W. Smith's, to his account; which the Defendant declined to do on the ground that it would be a breach of trust towards the purchasers if he parted with them before the purchases were completed, and that he would be liable to refund them to the purchasers unless the purchases were completed. The Defendant then wrote letters to several solicitors of high standing asking their opinion on the point; their answers were to the effect that a solicitor receiving the deposits paid on the sale of his client's estates holds them as a stakeholder between his client and the purchasers. These answers were communicated to A. Edgell. In January, 1861, a suit in Chancery was instituted on behalf of the infant children of John Francklin, and in April, 1862, the usual decree was made. A. Edgell died on the 22nd February, 1863, having appointed a co-trustee, and subsequently new trustees were appointed. This action was brought under an order of the Court of Chancery in the name of his executrix, an indemnity being given to her by the trustees. The purchases were not all completed till 1864: during the interval the Defendant retained the deposits. The Defendant was prepared with evidence to show that it is the custom in the counties of Huntingdon and Bedford on employing auctioneers on a sale of landed property for the solicitor to prepare the particulars and conditions, and for the auctioneer to be paid a commission of one and ahalf or two and a-half per cent. on the amount of the purchase monies and sometimes an agreed sum, the solicitor taking the deposits; the reason for this arrangement being that many of the country auctioneers are not persons of sufficient substance to be entrusted with large deposits. The learned judge assuming that the jury would find that such was the practice all over England, directed a verdict to be entered for the Plaintiff, reserving leave to move to enter a verdict for the Defendant. In Trinity Term, Joseph Brown obtained a rule nisi accordingly, on the ground that the Defendant was not liable to pay the deposits to the testator, A. Edgell, until the completion of the respective purchases. Coleridge and Dowdeswell showed cause.-The Defendant was employed as attorney and agent of A. Edgell, and payment to him was payment to his principal; The Duke of Norfolk v. Worthy (a). And he received the deposit as attorney for A. Edgell and to account to him, and therefore is liable in this action; Stephens v. Badcock (b), Bamford v. Shuttleworth (c). An agent cannot set up jus tertii against his principal; Dixon v. Hamond (d). It is sufficient if it can be collected from the whole instrument, however informally, that the party was acting as agent; Story on Agency, s. 154, p. 103, 4th ed. An auctioneer who is employed to sell an estate and who receives a deposit from the purchaser is a mere stakeholder; Harington v. Hoggart (e): his position is peculiar, being the representative of the vendor as well as the vendee. In Sugden's Vend. and Purch. p. 50, ch. 1, s. 3, 1865. EDGELL บ. DAY. 1865. EDGELL v. DAY. par. 20, 14th ed., after stating that "the auctioneer should not part with the deposit until the sale be carried into effect, because he is considered as a stakeholder, or depositary of it," it is added, "the same rule applies to a solicitor receiving a deposit:" for which is cited Wiggins v. Lord (a), but in that case there were in the contract for purchase words sufficient to show an intention to constitute the solicitors for the vendors stakeholders. [Keating, J. The third condition here shows the contrary.] In Edwards v. Hodding (b), which was an action by the purchaser against the Defendant, who was attorney for the vendor as well as auctioneer, to recover a deposit, the Defendant had paid the money over of his own wrong, and he would have had an answer to an action by the vendor. Joseph Brown and Douglas Brown in support of the rule. The payment of the deposit to the Defendant was on condition of the purchase being completed, and if the condition were not performed he would not be justified in handing it over. In Edwards v. Hodding (b), cited in Sugden's Vend. and Purch. p. 50, ch. 1, s. 3, par. 20, 14th ed., Chambre, J., said, p. 820, "This is not an absolute payment by the Plaintiff to the Defendant as the vendor's agent, but a conditional payment; or, as it is more properly called, a deposit. The Defendant receives it, knowing the condition, that there should be a good title; and he knows that that condition is not performed: he nevertheless takes on himself, with this knowledge, to pay over the money, which he was not warranted in doing." The Duke of Norfolk v. Worthy (c) was the case of a private person, not a solicitor, acting as agent for a vendor. In Bamford v. Shuttleworth (d), the auctioneer signed the memorandum of agreement as agent for the (a) 4 Beav. 30. (c) 1 Camp. 337. |