. Gowrie, &c.

29, 1910

They crossed to England in the same ship. On the 27th February 1907 Lindsay, on behalf of the respondents, behind the back and without the knowledge of Burchell, entered into an agreement with MacDonald and M'Curdy (described as the grantees) to sell to them the Port Morien Mines for the following considerations, 300,000 dollars par value, first mortgage 6 per cent. bonds of North Atlantic Collieries, Limited, 350,000 dollars Preferred 7 per cent. stock of the same company, and 450,000 dollars Common Stock of the same company. The grantees to pay the defendant company's debts amounting to 12,500 dollars. Before MacDonald came over to England he had been brought into privity with the negotiations between Burchell and Pearson. Discussion had taken place between M'Curdy and Pearson and him as to the merger of the North Atlantic Collieries, the Gowrie and Blockhouse, and the Cape Breton and Broughton Company, and before MacDonald left for England with M'Curdy, Pearson had given him an option on his, Pearson's, interest to enable the former to carry through the arrangement for amalgamation, as it is called, which MacDonald contemplated endeavouring to negotiate with the respondents. It is impossible to contend, in the face of the telegrams which passed between M'Curdy and MacDonald and Pearson on the 26th and 27th February 1907, that Pearson was not the dominating personality in the negotiations which culminated in the agreement of the 27th February 1907. Everything was done with his privity and consent. His consent was indeed apparently considered to be essential. MacDonald and M'Curdy were but Pearson's agents or co-adventurers in the transaction, and the common object of each and all of them was to secure for the company in which they were all interested -the North Atlantic Colliery-the special benefits and advantage which Burchell had shown Pearson that the ownership of the respondents' mine would confer. In that condition of things the appellant brought his action, claiming in his writ of summons 111,200 dollars damages for breach of contract, and in the alternative one-tenth of each class of the securities which formed the consideration for the sale, and 1200 dollars cash, one-tenth of the cash given. In a second alternative he asked for a declaration that he was entitled to these latter things. No pleadings were delivered, but by consent it was ordered by the Court that the whole of the cause should be tried before the official referee, who should have all the powers of certifying and amending of a Judge of the Supreme Court, and should direct judgment to be entered and otherwise deal with the whole action pursuant to Order XXXIV of the rules of the Supreme Court. It was admitted before the referee that by deed dated the 27th June 1907 the respondents' mine was conveyed to the North Atlantic Collieries, Limited. It was not contended before their Lordships, as it was at the trial and in the Courts below, that no "sale" of the

respondents' property had taken place. That point, which was quite untenable, was most properly abandoned by the respondents' counsel, but the finding and judgment of the referee was impeached on two grounds-(1) that the acts of the appellant Burchell were not an "efficient" cause of the particular sale which in fact took place, and (2) that even if they were such a cause, and that he was entitled to some damages, or some commission on a quantum meruit, he was not entitled to the full commission awarded. There was no dispute about the law applicable to the first question. It was admitted that, in the words of Erle, C.J., in Green v. Bartlett (14 C.B., N.S. 681), "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 has not been effected by him." Or in the words of the later authorities, the plaintiff must show that some act of his was the causa causans of the sale-Tribe v. Taylor (1 C.P.D. 505); or was an efficient cause of the sale-Millar v. Radford (19 Times L. R. 575). Upon the question of fact, however, whether the acts of the appellant were in this case an efficient cause of the actual sale, much reliance was placed upon the contents of two letters of the appellant dated the 1st and the 21st March 1907 respectively. In the first of these, after cautioning his principals against having anything to do with MacDonald and M'Curdy and the suggested amalgamation, he wrote I have resisted every effort of my friend Mr Pearson to allow your property to be drawn into this alliance on any terms other than a cash basis, and even then I would not tie the property up to these people unless they were prepared to pay a reasonable forfeit. Failing with me I suppose they are now trying to work direct with you. And in the second of these letters, written after Burchell had become aware of the deal which had taken place, he wrote as follows-"As I wrote you, these people's proposals that have been made to you had been offered to me repeatedly, and seeing that I turned them down on every occasion they sought to work direct, and I should judge by your letter with some success. In reference to these passages it was contended (1) that the appellant should not have taken it upon himself to "turn down" these proposals, but should have communicated them to his principals; and (2) that the acts of an agent cannot be held to be the efficient cause of a sale which he has, in fact, opposed. The answer to the first contention is that there is not a suggestion from beginning to end of this long correspondence that less than one half of the consideration for the sale of the mine should be paid in cash. On the contrary, ready money, at least, to that amount was the great desideratum. The lowest price which Lindsay would in December 1905 consent to take was, as appears from the correspondence, £105,000, half in cash and half in stock. In September 1906 he informed Burchell that he had rejected

Sir H. Montague Allan's proposals, and that his (Lindsay's) directors did not see their way to join any scheme which did not provide for part of the purchase money being paid in cash. Their Lordships do not think that any duty lay upon an agent, such as Burchell was, to communicate to his principals proposals which those principals had theretofore in effect informed him could not and would not be accepted. The answer to the second contention is that if an agent such as Burchell was brings a person into relation with his principal as an intending purchaser, the agent has done the most effective and, possibly, the most laborious and expensive part of his work, and that if the principal takes advantage of that work, and behind the back of the agent and unknown to him, sells to the purchaser thus brought into touch with him on terms which the agent theretofore advised the principal not to accept, the agent's act may still well be the effective cause of the sale. There can be no real difference between such a case and those cases where the principal sells to the purchaser introduced by the agent at a price below the limit given to the agent. Pearson, acting with his associates in the interests of the North Atlantic Colliery, Pearson was the purchaser introduced.

with his co-adventurers acting in the same interest was the actual purchaser in fact nothing was in reality altered but the consideration to be paid. Stock was to be given in a larger proportion than Burchell was authorised to accept. In all other respects the sale made and the sale authorised to be made by Burchell were in effect the same. On this question of fact there was, their Lordships think, ample evidence to sustain the conclusion at which the referee presumably arrived, namely, that the appellant's acts were an effective cause of the sale which actually took place. In their Lordships' view it was the right conclusion, and the finding to that effect ought not, they think, to be disturbed. There only remains the question of damages. The referee found that "the power of sale was a continuing power of sale. By that presumably he meant that the agent's employment was general employment" in the sense in which Lord Watson, in his judgment in Toulmin v. Millar (58 L.T.R. 96), uses those words. This means, however, that Burchell's contract was that should the mine be eventually sold to a purchaser introduced by him, he, Burchell, would be entitled to commission at the stipulated rate, although the price paid should be less than, or different from, the price named to him as a limit. The secret sale deprived him of the benefit of that contract. He lost his chance of earning this commission. In Inchbald v. Western Neilgherry Coffee, &c., Company (17 C.B., N.S. 733), Willes, J., thus lays down the rule of law applicable to such cases "I apprehend that wherever money is to be paid by one man to another upon a given event, the party upon whom is cast the obligation to pay is liable to the party who is to receive the

"a

money if he does any act which prevents or makes it less probable that he should receive it. The negotiations for sale carried on by Burchell extended over two years. From the correspondence it is clear they cost him much in time and labour, and something in money. It was quite open to the referee to take, as the measure of damages, what would have been Burchell's commission at the stipulated rate, 10 per cent. on the consideration actually received for the sale. This is apparently what he did. In their Lordships' view, therefore, the conclusions at which the referee arrived on the nature and limits of the appellant's employment, as well as on the amount of damages to be awarded, are not only sustainable upon the evidence, but are in themselves right. The appeal, in their opinion, should therefore be allowed, the judgment appealed from reversed, and the judgment of the referee restored, and they will humbly advise His Majesty accordingly. The respon dents must pay the costs here, including the costs of the petition for special leave to appeal which were by their Lordships' order reserved, as well as the costs in the Court below.

Judgment appealed from reversed.

Counsel for Appellant-C. A. Russell, K.C.-Burchell, K.C.-Geoffrey Lawrence. Agents-Hill, Son, & Rickards, Solicitors.

HOUSE OF LORDS.
Thursday, November 3, 1910.

(Before the Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Atkinson and Shaw.)

LEES v. DUNKERLEY BROTHERS. (ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.)

Master and Servant - Reparation - Collaborateur-Injury through Negligence of Fellow-Servant - Compensation by Em ployer-Indemnity from Fellow-Servant Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 6.

A workman was injured while at work owing to the negligence of two fellowservants. The employers became liable to pay him compensation, and claimed to be indemnified by the fellow-servants, as liable to pay damages under "a legal liability in some person other than the employer" to pay damage in respect of the injury.

Held that the fellow-servants' negli gence constituted legal liability in terms of the Act, and that the doctrine of collaborateur did not affect the liabilities of servants inter se.

Wright v. Roxburgh, 1864, 2 Macph. 748, approved,

Dunkerley Brothers

3, 1910

The respondents were cotton-spinners, and employed the appellants to control certain machinery. The appellants started this negligently, and in breach of the regulations under the Factory and Workshop Act 1901, sec. 85, for which they were convicted and fined. Owing to this negligence another workman of the respondents was injured, and obtained from them compensation under the Workmen's Compensation Act 1906. The respondents successfully claimed an indemnity against the negligent workmen, under section 6 of the Workmen's Compensation Act, before the County Court Judge, whose judgment was affirmed by the Court of Appeal (COZENS HARDY, M.R., BUCKLEY and KENNEDY, L.JJ.).

The workman appealed.

At the conclusion of the argument for the appellants their Lordships gave judgment as follows:

LORD CHANCELLOR (LOREBURN)—I think that this appeal must be dismissed. An indemnity is payable if it comes within the following words-"Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof." Now here there was an "injury for which compensation was payable," and it was "caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof "--at least that is so in my clear opinion. But it is said on behalf of the appellants - "No, there is no liability of one servant towards another in respect of negligence in a common employment." No authority is quoted for that strange doctrine except a dictum, in one of two reports of a case, which is supposed to have been uttered by Pollock, C.B. I respectfully dissent from that opinion, if Pollock, Č.B., ever expressed it. We are in fact asked to extend, or rather to distort, the doctrine of Priestley v. Fowler, 3 M. & W. 1. I have no desire to extend that doctrine; but I must point out that in that case the Court implied a term in a real contract, whereas in the present case we are asked to imply a contract where it is perfectly obvious that there is no contract at all, namely, in the relation between two fellow servants. I can hardly imagine a more dangerous or mischievous principle than that which it is sought to set up here. It may be right or wrong to say, as Priestley v. Fowler says, that a man is not to be responsible for the negligence of his agents. That is decided law, and I make no comment upon it. But it is a very different proposition to say that a man is not to be responsible for his own negligence. That would mean a free hand to everybody to neglect his duty towards his fellow-servant, and escape with impunity from all liability for damages for the consequences of his own carelessness or neglect of duty. Everyone must have an interest in maintaining the law in a sense hostile to such a proposition, and I should think that of all classes

in the community workmen who work together in many dangerous employments have the greatest interest of all in preventing the doctrine which has been put forward very carefully and reasonably from being accepted.

The EARL OF HALSBURY and LORD ATKINSON Concurred.

LORD SHAW-I concur, and I think it only necessary to add one observation in view of the citation of a Scotch authority - Wright v. Roxburgh, 1864, 2 Macph. 748— which it was said had decided the point now before your Lordships. It is reported in the following language. I read from the judgment of Lord Benholme-"An explosion of fire damp from a sudden introduction of the fresh air by its own downcast, so as to mix with the foul air accumulated during the stagnation in its own workings, was quite sufficient, as the scientific witnesses say, to occasion the explosion. Now it appears to me that Morris, the man by whom this operation was performed, was aware that Phillips and Wright were in the upper workings, and he says himself that he did not think it worth while to send them out. He was aware that this was a dangerous operation. He was told so by two persons at the time and he must have known that it was so. I think that his own experience in regard to the former explosion and accident which happened in the Ell seam ought to have made him cautious in venturing on such an operation, which all the scientific witnesses say was a dangerous one in a fiery pit such as this was. I think, therefore, that as against Morris there can be no doubt that this case is made out." Accordingly there was no doubt then, and so far as I know there never has been any doubt on such a point in the law of Scotland until now. And when I look at the facts of the present case I find that the person against whom this action is brought for indemnification is a person who has been so negligent as to lay himself open to conviction under the criminal law as an offender against the statute. Under these circumstances I venture to agree respectfully but strongly with the Lord Chancellor that it would have the worst possible consequences to allow the ordinary liability to be escaped from as it is here sought to be.

Appeal dismissed.

Counsel for Appellants-Sankey, K.C.Adshead Elliot. Agents - Rawie, Johnstone, & Company, Solicitors.

Counsel for Respondents-C. A. Russell, K.C.-E. C. Burgis. Agents - Percy J. Nicholls, Solicitor.

HOUSE OF LORDS.

Wednesday, November 9, 1910.

(Before the Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Atkinson and Shaw.)

LOWERY v. WALKER.

(ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.)

Reparation

Negligence Dangerous Animal Knowledge of Defendant Persons" Trespassing" in Knowledge of Defendant.

A farmer had a horse which he knew to be savage and to have bitten people. He put it in a field which he knew was habitually used by the public as a short cut, although they had no express leave to do so. The plaintiff was bitten and severely injured by the horse while crossing the field.

Held that the plaintiff was lawfully in the field, and that the farmer was liable in damages.

In the circumstances outlined supra in rubric the County Court Judge found in fact, inter alia, that the field in question had been habitually used by the public as a short cut, though they had no leave so to do; that the defendant knew that the horse had bitten other people. No doubt the plaintiff was a trespasser. He afterwards added the following note to his judgment—“On the question of trespass I came to no definite conclusion. The defendant only occupied for fifteen years. I had evidence of the use of the path for thirty or forty years. The defendant put up a notice fifteen years ago but would not prosecute." He gave judgment for the plaintiff for £100 damages, which was reversed by the Court of Appeal (VAUGHAN WILLIAMS and KENNEDY, L.JJ., BUCKLEY, L.J., dissenting).

The plaintiff appealed, and at the conclusion of the arguments their Lordships gave judgment as follows:

LORD CHANCELLOR (LOREBURN)—I think that this case should be determined upon the actual findings of the learned County Court Judge. It is true that there has been some question about what he decided, and it appears that some little time after he had delivered his judgment he made an alteration in regard to a phrase which he had used. I think that it was quite legitimate to do so, because the word which he used was capable of being misunderstood, or understood in one sense rather than in another; and I see no objection to his explaining to the Court and to the parties the sense in which he used the word. He has found certain facts. He has not found them according to the letter of legal phraseology, but he has presented to us a view of the facts; and I think that what that view-by which we are bound-amounts to is this: He will not find whether there was a right-of-way or not; therefore the plaintiff did not establish that he was in

the field according to a right to be in the field. Again, the learned Judge, I think, found that there was no express leave given to the plaintiff to be in that field; but I think that the effect of his finding is that the plaintiff was there with the permission of the defendant, because he finds that the field had been habitually used by the public as a short cut, and he says that the defendant was guilty of negligence in putting a horse-which he knew to be dangerous-into a field which he knew was habitually used by the public. That being the case, I think that we ought not to refine upon the language which the learned Judge has used. Perhaps it would have been better-indeed I think that it would have been better-had he been more explicit in saying what it was that he did find and what it was that he did not find; but I think that in substance it amounts to this-that the plaintiff was not in this field of right at all; that he was there as one of the public who habitually used the field to the knowledge of the defendant; and in those circumstances it cannot be right that the defendant should with impunity allow a horse which he knew to be a savage and dangerous beast to be loose in that field without giving any warning whatever, either to the plaintiff or to the public, of the dangerous character of the animal. I will not enter upon the further field of law-itself somewhat wide and not free from many difficulties-because I do not think that the facts of this case require that we should enter upon that field. Under those circumstances and for those reasons I think that the appeal ought to be allowed.

EARL OF HALSBURY-I entirely concur with the judgment which the Lord Chancellor has delivered and with the reasons which he has given, and I only wish to say one additional word with regard to the question of what the learned County Court Judge has found. The learned Judge used an ambiguous word. I suppose that nine out of ten people would distinguish between a person who was at a place as of right and a person who was a mere trespasser. The learned Judge did, I think inadver tently, in the first instance use the word "trespasser," which would have carried the learned counsel for the respondent all the way that he wants to get, to a somewhat difficult and intricate question of law upon which various views may be enter tained. But seeing that there was a misapprehension or might be a misapprehension-of the sense in which he used the word "trespasser," the learned Judge himself points out in terms that he does not find, and did not intend to find-as I think indeed the whole substance of his judgment shows that he did not intend to find-that the injured man was a trespasser in the sense in which that word is used strictly and technically in law. I think that we are bound by the finding of the learned Judge, and I should hesitate very much to assent to the view which Vaughan Williams, L.J., seems to have entertained, that there was something wrong in his adding that to