The Gazette 1961 - 64

act on behalf of the bank generally as executor in the winding up of the Irish estate, to receive purchase money and to make thereout such payments as were necessary. In the view of the court the solicitor was authorised to act as the bank's agent in all respects in relation to the estate's Irish affairs and in particular to receive the purchase money and give a discharge therefor. The decision of the court on this issue would have been sufficient to allow the appellant's appeal but the learned judge dealt with the two other issues listed above. The court read both the letter of 4th December, 1950 and the receipt subsequently given as a demand on behalf of the bank. Certain payments were made from time to time out of the money in hands by the solicitor and at no time did either the bank or the solicitor demand from the purchaser a release for any of the money in hands. The court concluded therefore that the solicitor did claim to act as agent for the bank in receiving the money and in giving the receipt therefor. On the third issue, that of ratification, the learned judge pointed out that it was necessary that the person who was deemed to have ratified an act done with his authority should have full knowledge of all the material circumstances in which the act was done unless he intended to ratify the act and take the risk whatever circumstances may have been. The act done in this case was simply the receipt of certain purchase money and the only material circumstance was the payment. Possibly the sol vency or otherwise of the solicitor would have to be considered. Every person who allows another to receive monyes on his behalf and to retaint hem must be deemed to have satisfied himself of the solvency of such a person or to have taken the risk, if risk there be, that the agent either by original appointment or subsequent ratification may mis appropriate the money or when its payment is demanded prove insolvent. The correspondence showed that at various dates between the receipt of the money by the solicitor and May 1952 various payments on account were made by the solicitor out of the purchase money in his hands. The court could not understand the course ot events in any. sense other than that if the bank had not in fact authorised the solicitor to receive the balance of the purchase money that they afterwards became aware that he had so received it and that with knowledge of this fact they ratified his action. Their receipt from him of various payments from the purchase money and the correspondence amounted to such ratification. The appellant was therefore entitled to claim that the purchase money had been paid by him in full and the title being in order and the bank being the registered owners discharged 6?

was held (i) that the letter of the 3rd April 1950 and the surrounding circumstances established that the solicitor was authorised to act as agent for the bank to receive the purchase money and give a discharge therefor. (2) That even if the solicitor had no such actual authority the plaintiffs with knowledge of the facts had ratified the receipt of the purchase money by accepting payments out of it and by subsequent correspondence. (3) That the defendant was entitled to an order for a specific performance of the contract. At the trial Budd J. said that the cardinal factor was the letter written by the solicitor on 4th December, 1950 and that it would have to be viewed in the light of the surrounding circumstances to indicate whether or not the solicitor purported to act as the bank's agent in the collection of the purchase money from the purchaser. He said that the second sentence and the whole of the second paragraph were plainly written by the solicitor as solicitor for the purchaser. There was no indication that the solicitor purported to act for the bank or to collect the money on their behalf. He could only construe it as a demand for the purchase money by a solicitor from his own client. If the purchaser had demanded the return oi his money within a week the solicitor would have had no option but to pay it back because he could not have been regarded in law as holding the money as trustee for the bank. The learned judge also held that on the evidence before him there was no indication that the bank were aware of the circumstances surrounding the solicitor's receipt of the purchase money at any time prior thereto and that they did not purport to ratify his act subsequently. Lavery J., giving the judgment of the court on appeal, said that the issues were (i) was the sum paid to the solicitor as agent for the bank authorised to receive it and give a discharge therefor; (2) if the solicitor had no actual authority to receive and give a discharge on behalf of the bank did he purport to do so, and, if so (3) was his action subsequently ratified by the bank so as to discharge the purchaser ? On the first issue the learned judge held that the instructions given in the first instance to the solicitor and in particular the instruction to deal with " the ultimate disposal of the property " and the solicitor's reply thereto when he said in a letter " I shall be happy to act for you in disposing of the lands" gave to him a wider authority than would arise from his mere appointment as a solicitor with carriage of sale and in particular would authorise the solicitor to receive and give a discharge for the purchase money. Furthermore the correspondence indicated that the solicitor both prior to the date of instructions to sell and subsequent thereto was authorised to