Gregory v Fearn
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 24 June 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0624-2 |
| Date | 24 June 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J0624-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Birkett and
Lord Justice Romer
Mr T.R HEALD (instructed by Messrs Corbin, Greener & Cook agents for Messrs Huntsman, Donaldson & Tyzack, Nottingham) appeared on behalf of the Appellant
The RESPONDENT did not appear
This was an action by an estate agent for a commission of £100 alleged to have been earned under an agreement dated 20th April, 1952. The first point which has been noticed is that the date I have mentioned, 20th April, 1952, was a Sunday, and the learned Judge in the Court below concluded against the Plaintiff upon the ground, among others, that the agreement fell within the prohibition of Section 1 of the Sunday Observance Act, 1677, 29 Charles II, as having involved the doing of business or work in his ordinary calling upon the Lord's Day by a tradesman, to wit, an estate agent.
On the view I take, it is not strictly necessary to decide that point. But it seems to me, as at present advised, that Mr Heald is right when he says that an estate agent is not a tradesman within the contemplation of that section, even if the execution by him of a contract of this kind was the doing of business or work in his ordinary calling. At first sight, Mr Heald's argument appeared to be difficult, because the formula in the Act is "no tradesman, artificer, workman, labourer or other person whatsoever"; and assuming that an estate agent is not a tradesman, he manifestly would be, prima facie, within the formula "other person whatsoever"; but it has long been established that those words "other person whatsoever" are to be construed ejusdem generis with those that precede it: so that in order for the Defendant to succeed on this point, it must be shown that an estate agent is a tradesman or something sufficiently like a tradesman to be covered by the ejusdem generis rule. The case of Palmer v. Snow, reported in 1900 1 Queen's Bench, page 25, which has the added force of being a decision of Mr Justice Channel, shows that one who carried on the profession of a barber was not a tradesman, since a barber (so it was there said) does not commonly buy or sell things. If that be the kind of criterion to be applied, it would appear to me to exclude an estate agent from the formula in the Sunday Observance Act; but, as I have said already, it is not strictly necessary to express a concluded view on that matter, since there is another ground upon which the learned Judge decided against the Plaintiff, and against that part of the decision, as it seems to me, Mr Heald battles in vain.
The form of the contract which was made on this Sunday in April 1952 was not quite the usual form of an estate agent's contract. For one thing, there was a lumpsum commission and not a percentage, and the obligation was expressed thus: "I agree to pay him a commission of £100 when sold" — that is when the property was sold — "and the said property shall be deemed to be sold and the commission payable on the receipt of a deposit or on a purchase agreement being entered into by a purchaser". Now, there was no deposit in fact received by the Plaintiff and it would, therefore, be necessary, in order that he should succeed, for him to show that a purchase agreement was entered into by a purchaser within the meaning of the contract.
Now, it may be (and I will assume that it is,...
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