Clarkson Booker Ltd v Andjel
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER |
| Judgment Date | 06 July 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0706-1 |
| Court | Court of Appeal |
| Date | 06 July 1964 |
[1964] EWCA Civ J0706-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Judge Block Mayor's and City of London Court.
dated 14th January, 1964
Lord Justice Willmer
Lord Justice Davies and
Lord Justice Russle
Mr Adrian W. Hamilton (instructed by Messrs Stephenson, Harwood & Tatham) appeared on behalf of the Appellants (Defendant).
Mr W. Alan Macpherson (instructed by Messrs Norton, Rose, Botterell & Roche) appeared on behalf of the Respondents (Plaintiffs).
In this difficult case we have had the greatest possible assistance from counsel on both sides, and for my part I should like to acknowledge my indebtedness to them both for the excellent arguments which they have presented.
The appeal is from a judgment of His Honour Judge Block given in the Mayor's and City of London Court on the 14th January 1964, whereby he found for the plaintiffs for the sum of £728. 7s.6d., being the cost of booking flights for some twelve people from Athens to London in October 1961. There is no dispute that the plaintiffs (who are travel agents) bookedthose flights at the request of the defendant. The defendant's case was that in booking the flights he was acting as agent for a company called Peters & Milner Limited, who traded as Antigone Travel Services. It was his case at the trial that he disclosed to the plaintiffs that he was acting only as agent for Antigone Travel Services. But the defendant's evidence on this point was not accepted by the learned judge, who found that the defendant contracted as if he were a principal. There has been no appeal against this finding of the learned judge.
The defendant also offered some evidence to show that he was in fact acting as an agent, but this evidence was ruled by the learned judge to be inadmissible. To save the necessity for an adjournment in order to enable the defendant to obtain further evidence as to the fact of his agency, the case proceeded by agreement on the basis, accepted by counsel for the plaintiffs for the purpose of argument, that the defendant was acting as agent for an undisclosed principal. In this court we intimated that we were not prepared to deal with the case on a basis that might prove to be only hypothetical. Counsel for the plaintiffs thereupon conceded on instructions that the defendant, in booking the flights in question, did in fact act as agent for undisclosed principals, namely, peters & Milner Limited.
It was proved by evidence which the learned judge accepted that in supplying the tickets at the request of the defendant the plaintiffs were giving him credit having previously done business with him on credit terms. The defendant, however, sought to escape liability on the basis that the plaintiffs, upon discovering the identity of the undisclosed principals (namely, Peters & Milner Limited), elected to pursue their remedy against the principals.
What happened was that on the 26th July 1962 (nine months after the issue of the tickets), not having received payment, the plaintiffs through their solicitors wrote both to the defendant and to Peters & Milner Limited holding both of them liable. It is not necessary to quote both of these letters in full, but I thinkit right to refer to one sentence in the letter addressed to Peters & Milner Limited, which was as follows: "In our clients' contention this money may well be payable either by you or Mr Andjel, though not, of course, by both, and we would inform you that unless we receive payment of the said sum of £784. 7s.6d. by first post on Tuesday, the 7th August, proceedings against you for the recovery of the same may be commenced without further notice". A similar threat of proceedings without further notice was contained in the letter addressed to the defendant.
It is abundantly clear that up to this point the plaintiffs had certainly made no election. But eight days later, after a further exchange of letters, the plaintiffs wrote to Peters & Milner Limited on the 3rd August a letter in the following terms: "Further to our letter of the 1st August, our clients have instructed us to proceed to obtain judgment against you in order to safeguard their interests. However, when this has been obtained, they may be prepared to consider terms for payment". This letter produced no response, and accordingly on the 4th September 1962 the plaintiffs issued a writ against Peters & Milner Limited, which was duly served. The plaintiffs, however, did not in fact proceed with this action. After an interval the solicitors acting for Peters & Milner Limited wrote to the plaintiffs' solicitors on the 15th November 1962 informing them that the company was insolvent, having virtually no assets and substantial liabilities, and that it had been decided to put the company into voluntary liquidation. The plaintiffs accordingly took no further action against Peters & Milner Limited. Instead they wrote again, through their solicitors, to the solicitors for the defendant, again holding the defendant liable, and in due course, on the 13th December 1962, issued the writ in the present action.
It is in these circumstances that the point is taken for the defendant that the plaintiffs, having elected to start proceedings against Peters & Milner Limited, are now debarred from asserting their claim against the defendant. The (contention on behalf of the defendant is that this is a case of true election inthat, with full knowledge of the facts, the plaintiffs deliberately and unequivocally chose to pursue their right against the principal, which was a right Inconsistent with their right against the defendant as agent. Reliance is placed on a statement contained in Powell on Agency (second edition) at page 270 where the following is put forward as proposition (v): "T. (a third party) starts proceedings against P. (the principal) or A. (the agent). The initiation of proceedings against P. or A. is strong evidence of election, though not necessarily conclusive. That is so whether T. issues a writ or files proof of his debt in bankruptcy proceedings". This proposition is not accepted by the plaintiffs as a correct statement of the law. It has been submitted on their behalf that a plaintiff is barred only if he has sued one or other, (that is, principal or agent) to judgment. It is conceded that he cannot then proceed against the other. But that, it is said, is not a true case of election; the remedy is barred because the cause of action has merged in the judgment. It is contended that nothing short of judgment against the principal is sufficient to bar the plaintiff's remedy against the agent. In the present case It is said that there has been nothing amounting either in law or in fact to an election, so as to preclude the present action against the defendant.
The learned judge, In dealing with this aspect of the case, quoted at some length from the speech of Lord Blackburn in ( Scarf v. Jardine 1881, volume 7 Appeal Cases, page 345). I need not quote again the passage from Lord Blackburn. Suffice it to say that he expressed the view that there could be no more unequivocal act than instituting proceedings against one of two possible debtors; this, he thought, amounted to a final election to take that debtor as liable so as to preclude the plaintiff thereafter from suing the other debtor. The learned judge, having quoted the passage from Lord Blackburn, described the events which happened in the present case and then proceeded as follows: "The plaintiffs then hear of the pending bankruptcy or voluntary liquidation of the thendefendant company, the travel agency, and in these circumstances they abandon that action and choose to pursue Mr Andjel. It seems to me that this falls far below the determination of election in the case of Scarf. It seems also clear from the authorities that this is a question of fact for the determination of the court, and in all the circumstances I am unable to see that any election has been made by the plaintiff company which precludes them from succeeding against Mr Andjel". The learned judge was thus treating the question as one of fact, and he concluded on the facts that the plaintiffs had not made any final election so as to preclude them from suing the defendant.
The authorities cited on behalf of the plaintiffs were mostly cases where one or other of the parties had been sued to judgment. Thus in ( Priestly v. Pernie 1865, volume 3 Hurlstone & Coltman, page 977), the plaintiff, who had sued the master of a ship to judgment and execution in respect of a claim arising out of a bill of lading, was held to be debarred from subsequently suing the shipowner in respect of the same claim, even though the judgment against the master remained unsatisfied. Some reliance, however, was placed upon a passage in the judgment of Baron Bramwell, which appears to indicate that in his view no final election is made until judgment has been taken. What Baron Bramwell said was; "The very expression that where a contract is so made the contractee has an election to sue agent or principal supposes he can only sue one of them, that is to say, sue to judgment. For it may be that an action against one might be discontinued and fresh proceedings be well taken against the other".
( Kendall v. Hamilton 1879, volume 4 Appeal Cases, page 504) was another case of one of two debtors being sued to judgment. It was decided by the House of Lords that a fresh action against the other debtor was not maintainable. I think that the ratio of the decision appears from what was said by Lord Cairns at page 515 of the report as follows: "When the appellants sued Wilson and MoLay and obtained judgment against them…. they exhausted their rightof action, not necessarily by reason of any election between two courses open to them, which would imply...
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