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7 corrections, most recently by doug.butler - Show corrections


[before His Honor the Chief Justice ] BOTTING v. TOWNSEND

The Crown Solicitor (Hon. C. Mann, Q.C ) for the   plaintiff; the Attorney- General (Hon. J. W. Downer Q.C.) with Mr Harold Downer, for the defendant.   In this case judgment, was entered by consent, it having been arranged that £3,477 3s. 3d., together with £839 5s. 7d. already in Court, should be paid

to the plaintiff, each party to pay his own costs. LEONARD V. ROGERS. Mr J. H. Symon, QC, with Mr C.C Kingston for the plaintiff; the attorney-General (Hon. J.W.Downer Q.C.), with W.C. Bolt and Mr W.D.Scott for the defendant. This was an action brought by Ernest Alfred Leonard, merchant, of Perth, West Australia, to compel Selina Rogers, of Tusmore, to specifically perform a contract entered into by her for the sale of 160 acres of land, known as Sarnia, and situated on the South-road, for the sum of £3,000. He also claimed £1,000 damages. The defendant pleaded that she had refused to carry out the contract in consequence of fraud, misrepresentation and concealment of Arthur Bean, by whose advice it had been entered into. No witnesses were called on behalf of the plaintiff but correspondence and documents that had led to the agreement being entered into and the subse- quent refusal of the defendant to carry out her part of the contract were put in. The evidence for the defenco showed that Mr. Arthur Bean, who with his wife were on the most intimate terms with the defendant, and often visited her, went to her residence at Tusmore in June, 1880. He was very excited, and said that he had got an offer for £3000 for Sarnia, and that was an admirable offer, and the defendant had better take it. This was the first time he had spoken to her about it, and she had previously no idea of parting with the property. Mr Bean, however, had in September of the previous year been in communication with the Commissioner of Crown Lands, with a view to selling the property to the Government, who proposed to use it as a cemetery, for £37 10s. per acre, or just double the price at which he subsequently advised Miss Rogers to sell it. In September, too, Mr. Townsend had, at the request of Mr. Bean, made a valuation on the estate, and set down its worth at £40 per acre. Mr. Bean had also been on the ground testing the nature of the land. Defendant did not at once accept the offer, but consulted Mr. Scott, her

solicitor, in reference to tho matter. Mr Scott advised that the land certainly should not be sold for less than £3,000, but. told her to see some valua- tor in the matter. She did not do th sub- sequently saw Bean, who represented that he had telegraphed to his prlncipal at Geolong telling him that he could have the property for £3000, and that he had replied that he would take it for that if he could not get it for less. Nothing further was done in the matter for some time, with the exception that correspondence passed between Messrs. Bean Brothers and Mr. Scott. At an interview on July 20, 1880, at which the defendant and Messrs. Arthur and George Bean were present, George Bean, who was represented as the purchaser's attorney, said the land was wanted for growing flax.   There was a lease on the property, and the defendant stipulated that the sales should be made subject to that lease, which brought in a rental of £80 a year. The Messrs. Bean objected, but three days later wrote a note to Mr. Scott saying   that they had communicated with their principal and were glad to say that everything had been arranged satisfactorily. In the draft conveyance that was prepared the name of Mr. Arthur Bean appeared as the purchaser, and after correspondence in reference to the fact a telegram addressed to the plaintiff at Western Australia by the defendant drew forth the  

reply that he was agreeable to the property being conveyed to Mr. Arthur Bean. The defendant not being satisfied with the telegram, after making en- quiries declined to convey to Mr. Arthur Bean and subsequently the plaintiffs name was subsituted in the conveyance. About this time,, however, the defendant became aware that Mr. Bean had in 1879 offered the property to the Governmen and she therefore declined to complete the contract. The Government had Mr. Bean's offer of the land open for a considerablet time, and the Superintendent of Cemeteries made three reports to the Commissioner of Crown I.ands on its adaptability for a cemetery. There were two sites before tho Government - a property at Dry Creek and Sarnia - but a motion by Mr. Parsons having been carried in the House that the new cemetery should be connected with the city by rail Sarnia was abandoned. Previous to the Cabinet deciding on the matter Mr. W. H Bean in conversation with the Commissioner, said he wanted them to decide quickly one way or the other, as otherwise he would not be able to offer the section for salo In reply Messrs. J. N. Blyth and Wadham were called to show what was the real value of land in the neighbourhood of Sarnia. Mr. Wadham gave it as his opinion that Sarnia itself in 1879 was worth about £16 per acre. His Honor intimated to Mr. Downer that all he had to show was that Mr Arthur Bean had stood in a fiduciary relation towards the defendant.

Mr. Downer addressed the Court at length on the evidence to establish the position and urged that it would be a shocking thing that a person should be compelled to complete a sale that she had been induced to agree to solely by the representations of a friend whom she had trusted, but who unfortunately bore the dual position of friend to her principal, if not agent to someone else. Mr. Belt followed in support. Mr. Symon pointed out in reply that there had been no fiduciary relation between Mr Arthur Bean and defendant. The defendant had acted most de- liberately and carefully all through, and instead of trusting altogether to Mr. Arthur Bean had con- sulted her solicitor before coming to any deflnite agreement.   His Honor said he did not think the rights of the parties depended upon him exploring the somewhat intricate relationships between Bean Brothers and the plaintiff in the case. He thought, too, it was indifferent for the purpose of deciding the case whether Leonard was the actual purchaser or whether his name was employed by Arthur Bean in some way for the benefit of his firm. He therefore did not intend to pronounco an opinion upon that question. Secondly, for tho decision, in the case it

was unnecessary that he should express a final opinion with respect to the value of the Iand. If he were to express such an opinion it would probably be that tho valuation placed upon it by Mr Towns- end was certainly a somewhat sanguine on; but   his experience had been so slight that he would feel diffident in putting his judgment in such a matter against one with so much experience as Mr. Towns- end. The decision of the case appeared to depend on whether 0r n0t a fiduciary relationship had been   established. It was unnecessary, in order to make out such a relationship, that Arthur Bean should be the agent for the purpose of selling either with large or limited powers. It was sufficient if he undertook the position of fiduciary adviser in any manner, and was accepted in that position. He perfectly agreed that when two persons met to buy and sell property it was not incumbent on tho purchaser to place the vendor in possession of all the knowledge which in- duced him to enter into the bargain. There were many cases that established that where a purchaser made protestations with respect to the value of pro- perty he was seeking to acquire, although it turned out that the protestations were much in his favour, the purchase was not set aside because the buyer in all these cases said with respect to the subject matter it was nought. But it was evident that the circumstances which transpired in this case were such as very readily to displace Mr. Bean from the mere position of the buyer. He was a friend of the family and on confidential and intimate terms, and being actuated by proper feelings of benefiting his friends he had at the same time pointed out that the property was of a value, which, if invested in money, would produce a larger income than, the rent received from Mr. Putland, tho lessee of the land. It was stated by one of the ladies that he said he felt it to be his duty to do the best he could with respect to tho property. That statement was uncontradicted. That being the case, Bean having expressed his   sense of duty to make the best he could of the pro- perty for tbo benefit of his friends, he went there       and told them that he had an offer. He advised   them that it was a good offer. He did not say that he was willing to give £3,000 for the property, but that he had an offer that was not likely to be re - peated and advised them to accept it. The ladies seemed to have the opinion that they ought not to do anything without the advice of a solicitor. Mr. Bean did not, however, withdraw from his position on that account. They went to Mr. Scott, who ad-

vised that the property should not be sold under 3,ooo, but said he was not competent to give an opinion as to its value, and told them to take the advice of Mr. Mais, or some specialist. They did not choose to act on his advice, but to rely on what Mr. Bean had represented to them. They went back to Mr. Bean, who said he had offered the property to the Geelong purchaser for £3,000. So that they had the advice of Bean that it was his duty to do the best he coald for them, and his statement that he had committed them to the extent that he had told the purchaser he could have the property for £3,000. On that statement of facts he could not doubt that Bean had undertaken not a complete agency that entitled him to dispose of the defendant's property, but had undertaken the functions of adviser to the defendant      

witn regard to the value of the property and what she should do in the matter. That being established, the law was clear. It was not what the property was worth, but whether a person accepting the posi tion as to advising another as to the value of her property, it was his duty when giving that advice to communicate all the facts of the case. The facts of this case were that he had been in communication with the Government and offered to sell them the property for twice the sum he advised the defendant to take from Leonard. In addition to that he had made explorations of the property, and had ascer- tained the nature of the subsoil, and found out how far it was suitable forthe purpose for which the Govern- ment required it.' He did not think in the judgement he thought it his duty to give it was necessary to go further than that. In his opinion if there had been   evidence established of no subsequent negotiations with the Government by Mr. Bean, however honest his intentions might have been with respect to the welfare of the ladles, the fact that he had omitted to communicate to them that the property had been valued at £40 per acre by Mr. Towsend,and had been under offer to the Government at £37 10s. per acre, and that the Government had at one time entertained the proposal for the purposes of a cemetery was clearly in the eye of the law a breach of his duty as the defendant's confidential adviser, whatever his motives might be, and of this he ex- pressed no opinion. He had failed in the duty he had undertaken of communicating all the facts in his possession, and which were material in order to enble her to arrive at a judgment. Having failed to communicate these essential facts to the defen- iant, who was acting on his advice, he could not himself become a purchaser, and it was clear, also, that Leonard, for whom he was affecting to be act ing as agent, could not become the purchaser if Miss Rogers chose to repudiate the contract. It followed, therefore, that the plaintiff was not entitled to the specific performance of the contract relied on in this case, and the judgment would be or the defendant, and with costs.   The Court then adjourned.