C. A. 1904 obligation to pay over to them, and not to Powell & Thomas, who had no authority from Evan Jones & Co. to release him POWELL & from that obligation, or to deal with it in any way. For these reasons I think that the conclusion arrived at by Kennedy J. THOMAS V. EVAN JONES was correct, and the appeal must be dismissed. & Co. Stirling L.J. As to the cross-appeal and the application for a further declaration in favour of Evan Jones & Co., I cannot see my way, having regard to the decision of the Court of Appeal in Lister & Co. v. Stubbs (1), which seems to have been correctly appreciated by Kennedy J., to go beyond the declaration made by the learned judge. MATHEW L.J. I agree. In my opinion it is established that, in point both of law and equity, Evan Jones & Co. are entitled to recover from Cowperthwaite the sum which he has received by way of commission from the Law Guarantee and Trust Society. The kind of transaction carried out in this case was one which is of frequent occurrence in business. It was argued on the evidence that Cowperthwaite was only a subagent of the plaintiffs, Powell & Thomas, and not the agent of Evan Jones & Co. It frequently happens in matters of business of this kind that an agent, who is employed to render services for a principal, finds that he is not in a position to render those services himself, and, with the knowledge of his principal, he applies to another person, who may have greater facilities for carrying the transaction through. I think that the ordinary course of business in such a case as this is that the last-mentioned person takes the position of agent to the principal. It would be difficult in such cases to suppose that the principal would assent to the conduct of the business in which he was interested being transferred to a person who did not in carrying it out undertake the obligations of an agent towards him. As a matter of sound business it would generally be necessary that such should be the relation. In this case Powell & Thomas, not being able themselves to find any one to provide the amount required by Evan Jones & Co., applied to Cowperthwaite in the matter; and it was arranged (1) 45 Ch. D. 1. C. A. 1904 THOMAS v. & Co. Mathew L.J. that, if he succeeded in getting the money, he should have a share of their commission. The correspondence shews that Evan Jones & Co. were informed of this arrangement, and POWELL & assented to it. They were afterwards placed in direct communication with Cowperthwaite; and, subsequently to their EVAN JONES introduction to him, he, as it appears to me, took the position of their agent in the matter, and ultimately, as representing them, he got the business carried through with the Law Guarantee and Trust Society. That being so, he became entitled to a share of the commission which was to come out of the pockets of Evan Jones & Co. Cowperthwaite, however, had stipulated with the Law Guarantee and Trust Society for a further commission; and I think it may be taken that, in carrying out the arrangement for the advance required, they charged such an amount as would cover the commission which they had to pay to Cowperthwaite. He would thus be receiving two commissions, both of which would be paid by Evan Jones & Co., a position which he cannot in point of law be allowed to maintain. It is argued that Cowperthwaite was only the sub-agent of Powell & Thomas in the matter; but there seems to me to have been ample evidence in this case to justify the judge in arriving at the conclusion that Cowperthwaite was agent for Evan Jones & Co., and was liable to hand over to them the sum which he had received by way of commission from the Law Guarantee and Trust Society. But, independently of this view of the case, and of any difficulty there might be by reason of the supposed absence of privity of contract between Cowperthwaite and Evan Jones & Co., another view of the case was successfully presented to the learned judge, namely, that it would be inequitable under the circumstances of this case that Cowperthwaite should be allowed to obtain two commissions, both of which would be paid by Evan Jones & Co., and therefore that he was bound to account to them for what he had received from the Law Guarantee and Trust Society. I agree in the alternative view so taken by the learned judge. With regard to the cross-appeal, in which we are asked to make a further declaration beyond that made by the learned C. A. 1904 judge, I doubt whether such a declaration as is asked for could properly be made; and, even if the Court had jurisdiction, POWELL & having regard to the fact that the Law Guarantee and Trust Society is not a party to the action, I certainly do not think it EVAN JONES Would be right for us to make such a declaration. THOMAS v. & Co. Appeals dismissed. Solicitors for plaintiffs: W. & W. Stocken, for Digby Powell, Newport, Monmouth. Solicitors for defendants: Williamson, Hill & Co., for Ingledew & Sons, Cardiff. Solicitor for Cowperthwaite : C. F. Ingram. 1904 Oct. 28; Nov. 18. E. L. HERMANN v. CHARLESWORTH. Contract-Illegality—Marriage Brokage. An illegal marriage brokage contract is a contract for reward to procure for another in marriage, as husband or wife, a certain specified person. A contract for reward to introduce another to persons of the opposite sex with a view to matrimony is not illegal, nor is it illegal to contract for reward to procure for another in marriage some person generally as distinguished from a specified person. APPEAL from the Westminster County Court. The defendant is the proprietor of a paper known as The Matrimonial Post and Fashionable Marriage Advertiser. In the early part of September, 1903, the plaintiff, Miss Hermann, a lady of thirty-three years of age, in consequence of an advertisement she had seen in the defendant's paper, had an interview with the defendant, and entered into an agreement with him that, in consideration of his introducing her to gentlemen with a view to marriage, she would pay him, as a "special client's" fee, the sum of 521., of which 477. was to be returned to her after the expiry of nine months in the event of no marriage or engagement taking place within that period. On September 8 she paid to him the said sum of 521., and on the same date signed a further agreement in the following terms: "In consideration of being introduced to or put in correspondence with a gentleman through the influence of the proprietor of the paper entitled The Matrimonial Post and Fashionable Marriage Advertiser, and in the event of a marriage taking place between such gentleman and myself, I hereby agree to pay to the said proprietor the sum of 250l. on the date of my said marriage." The defendant introduced her to several gentlemen, and interviewed and wrote to others on her behalf, but no marriage or engagement took place, and in January, 1904, the plaintiff brought her action in the High Court to recover back the 521. as money paid by her as the consideration for a marriage brokage contract. The action was remitted to the county court. The county court judge held that the contract under which the money was paid was a marriage brokage contract, and as such was illegal and void, but that the parties were not in pari delicto, the defendant being the more culpable as having instigated the making of the contract for purposes of profit to himself, and that, as the plaintiff had repudiated the contract before the illegal purpose of procuring an engagement of marriage had been carried into effect, she was entitled to recover the money back. The defendant appealed. Lush, K.C., and Schiller, for the defendant. This was not an illegal contract; it was not a marriage brokage contract at all. The bargain was simply to advertise for the plaintiff and to give her introductions to suitable persons with a view to matrimony. But even if it was a contract to procure a husband for the plaintiff, it was not open to objection. The old cases in which contracts for procuring marriage for reward were held void were cases in which the contract was not for procuring marriage generally, but for procuring marriage with a named person, and in which the person procuring the marriage was a guardian or confidential servant, or some other person standing in a fiduciary position to the person who was to be procured in marriage. In Hall v. Potter (1), where a bond (1) (1695) Show. P. C. 76. 1904 HERMANN V. CHARLES- v. CHARLES- 1904 had been given by one Thomas Thynne, the appellants' testaHERMANN tor, to the respondent's husband conditioned for the payment of a sum of money upon the marriage of the said Thynne with Lady Ogle, and the respondent assisted in promoting the marriage which afterwards took, place, the House of Lords ordered the bond to be delivered up to be cancelled. It does not appear from the report in what relation the respondent's husband stood to Lady Ogle, nor was any reason given by the House for their decision, but it is to be presumed that they proceeded upon the reasons urged by the appellants in their reply: "that the not vacating such bonds when questioned in a Court of Equity would be of evil example to executors, trustees, guardians, servants, and other people having the care of children." And in Scribblehill v. Brett (1), where the appellant claimed to be relieved against a certain lease upon the ground that it was obtained by the uncle of the respondent for brokage in procuring the same marriage as in the last-mentioned case, namely, between Thomas Thynne and Lady Ogle, it was contended "that the taking of bonds, or making bargains, as rewards for procuring marriages, though not voidable in strictness of law, had always been declared fraudulent and set aside in Courts of Equity, because such transactions tended to corrupt executors, trustees, guardians, servants, and others having intimacy with persons of quality and fortune, to betray them into unhappy or improvident marriages." The House, without giving any reasons, ordered the lease to be annulled. Secondly, assuming that this was a marriage brokage contract and illegal, the money paid under it cannot be recovered back, for the contract was partly performed by giving the plaintiff introductions and doing work on her behalf: Kearley v. Thomson (2), following Taylor v. Bowers. (3) Compton-Smith, for the plaintiff. The contract under which the money was paid by the plaintiff was a marriage brokage contract and illegal. No distinction can be drawn between a contract to introduce to possible husbands with a view to (2) (1890) 24 Q. B. D. 742. (1) (1703) 4 Bro. P. C. 144. (3) (1876) 1 Q. B. D. 291. |