54 / 144
On the construction of the statute the Court held,
following Dallow v. Garrold, that once it had been
conceded that a composite amount consisting
of a judgment debt plus costs constituted property
recovered or preserved within the meaning of the
section, it followed that a judgment for costs
alone came equallv within it. On the question of
the grounds on which the Court should exercise
its discretion to make a charging order, the Master
of the Rolls said that if,
prima facie,
a solicitor is
entitled to the order, some good reason must be
shown for depriving him of it. He did not propose
to assert, as a matter of principle, that the discre
tion should be exercised against the solicitor only
in cases where some conduct of his own. made it
unjust to give him the relief asked for, but he
thought he was entitled to say that, in a case
where no conduct of the solicitor was involved, it
would require very exceptional circumstances to
justify the Court in refusing to the solicitor that
security in respect of the fruits of his labour to
which under the section he was,
prima facie,
entitled.
Commission "on introducing a purchaser."
QUESTIONS sometimes arise as to the right of a
house-agent to commission on the sale of a house
by private treaty when he has done all that was
incumbent on him in introducing a person who is
willing to purchase, but the sale has gone off
through no fault of the agent. In a recent English
case the plaintiff was a house agent who had
entered into a verbal contract, confirmed
by
letter,
to endeavour to find a purchaser for the defend
ant's house. The letter continued : "In the event
of my introducing a purchaser I look to you for
the payment of the usual commission in accord
ance with the scale fixed by the Auctioneers'
and Estate Agents' Institute of the United
Kingdom." The price originally fixed by the
vendor was ,€3,7;50 but she subsequently reduced
it to £3,150. The plaintiff introduced a person
willing to purchase the property at the stipulated
price and the deposit was dub/paid. The defend
ant's solicitors sent to the intending purchasers'
solicitors a draft contract for approval, but before
the contract had been signed by the intending
purchaser he received a letter from the defendant
stating that as the result of domestic difficulties
she was withdrawing the property from sale.
The plaintiff applied to the defendant for payment
of commission, which was refused; and he thereupon
instituted proceedings claiming that in introducing
a willing purchaser he had done all that was
required of him under the contract of agency.
The defendant contended that the commission
was payable only
if
the person
introduced
actually purchased the property or entered into
a legally binding purchase agreement. The English
King's Bench Division decided in favour of the
defendant, Hilbery, J., said that the matter had
been settled by previous decisions. The language
of the contract had been chosen by the plaintiff
and the position could be summed up in a sen
tence : where a party chooses to say "my com
mission will be payable on my introducing a
purchaser" it means that such commission will
be payable only when someone he has introduced
has actually purchased. He quoted authority to
show that there was no room for the introduction
of an implied term in the contract binding the
principal not to refuse to complete the sale to
the party introduced by the agent. Such an im
plied term could be introduced only under the
compulsion of some urgent necessity. Neither
could the plaintiff recover on a
quantum meruit,
where, as in the present case, he had reduced the
terms of the contract into writing and they had
been accepted by the defendant. The legal position,
as clearly stated in the decided cases, seems to be
one in which the law does not follow closely what
the layman at least will regard as the path of
equity. It is open, however, to the agent in
choosing the language of his agreement to protect
himself by express stipulations as to the events in
which his right to commission shall accrue;
and there seems little doubt that an extension of
the ordinary grammatical meaning assigned by
the Courts to the word "purchaser" would intro
duce an undesirable element of uncertainty into
the law. (Jones v. Lowe 61 T.L.R. 53). Sec also
Luxor (Eastbourne) Ltd. v. Cooper (1941 A.C.
108).
OBITUARY.
MR. HENRY H. GRACE, Solicitor, died at his
residence, 62 Ranelagh Road, Dublin, on 14th
December, 1944.
Mr. Grace served his apprenticeship with the
late Peter C. McGough, Dublin, was admitted in
Trinity Sittings, 1891, and practised at 35 Dame
Street, Dublin, up
to
the year
1897. He
entered the Estate Duty Office. Dublin, and was
Controller from 1923 to 1935, when he retired.
MR. WILLIAM DORGAN, Solicitor, died at Cork, on
28th December, 1944.
Mr. Dorgan served his apprenticeship with the
late Mr. Henry B. Julian, Cork, was admitted in
Trinity Sittings, 1891, and practised at Cork
under the style of Burke and Dorgan.
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