Sir John Edward Harington, Baronet, against Hoggart
| Jurisdiction | England & Wales |
| Date | 1830 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 902
IN THE COURT OF KING'S BENCH.
S. C. 9 L. J. K. B. O. S. 14.
sir john edward harington, baronet, against hoggart. Friday, Nov. 26th, 1830. An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities. [S. C. 9 L. J. K. B. 0. S. 14.] Assumpsit for money had and received to the use of the plaintiff, for interest, and upon an account stated. Plea, general issue, with a notice of set-off. At the trial before Lord Tenterden C.J., at the Middlesex sittings after Michaelmas term 1829, a verdict was found for the plaintiff for the damages in the declaration, subject to the opinion of this Court on the following case :- The defendant and Evan Phillips his partner (who died in 1817), were employed by the plaintiff in July 1813, as auctioneers, to dispose of an estate in Monmouthshire, and not having sold the same on its being put up to auction, they on the 10th of August entered into the following agreement for the sale of the same by private contract to F. Secretan, at the sum of 10,0001. The purchaser is to pay down immediately a deposit of 201. per cent, in part of the purchase-money, and sign an agreement for payment of the remainder on or before the 29th of December 1813, on having a good title. [578] The purchaser shall have a proper conveyance of the estate at his own expense, on payment of the remainder of the purchase-money agreeably to the third condition ; and be entitled to the rents and profits from the said 29th December 1813, up to which time all outgoings will be cleared. The estate was described in the conditions, as the Cadvor and Pen y Craig estate. I agree to purchase the estate described in this particular, agreeably to the annexed conditions^ and to give for the same the sum of 10,0001. including the timber. frederick secretan. 1B.&AD.579. HARINGTON V. HOGGART 903 We agree to sell the estate described in the particular, agreeably to the annexed conditions, for the sum of 10,0001., including the timber. hoggart and phillips, Agents to Sir John Edward Harington, Bart. On the 20th of August 1813, Secretan paid into the hands of the defendant and his partner, under the agreement, the sum of 20001. as a deposit. On delivery of the abstract of title, objections were taken on the part of the purchaser, and he delayed completing the purchase. A bill in equity was filed against him to compel a specific performance, on the 4th of November 1816, of which the defendant had notice. The objections to the title were over-ruled, and the purchaser accepted the title under the decree of the Court. The purchase was completed on the 12th of April 1822. On the 8th of November 1816, the following notice was served, by the plaintiff's attornies, on the defendant:-" We do hereby, at the request of our client, Sir J. E. Harington Bart., give you notice, that you [579] are forthwith to invest the sum of 20001. paid into your hands as a deposit, on or about the 10th day of August 1813, by Mr. F. Secretan, (upon his contracting for the purchase of the Cadvor and Pen y Craig Farms in Monmouthshire, belonging to Sir J. E. Harington,) in the purchase of Exchequer bills or other Government securities; and that, upon your supplying us with the particulars of the securities wherein the same shall be invested, Sir J. E. Harington is ready and willing (if desired) to indemnify you against any loss that can be lawfully sustained by the said 20001. being laid out in the purchase of such securities : and we do hereby give you further notice, that in case of your non-compliance with the above direction, it will be expected that you pay full legal interest on the said sum of 20001. from the date thereof; and this notice is also given without prejudice to the claim for interest already accrued upon the same sum from the 10th day of August 1813, which Sir J. E. Harington and Mr. F. Secretan, or either of them, now have and will hereafter enforce." The defendant and his partner, on the 13th of November 1816, returned the following answer:-"We will thank you to obtain Mr. Seeretan's authority, and the balance of the account shall be immediately invested." To this the solicitors replied:-"If you consider the authority of Mr. Secretan any way necessary for the investment on Government security of the 20001. received by you on account of the sale of the Cadvor estate, you are at liberty to apply for the same, we neither admit such authority necessary, nor, if it were, that it is our duty to obtain the same." Secretan never consented to the investment. On the 13th of April 1822, the solicitors wrote to the defendant, informing [580] him that the contract for the sale of the estate was completed; and that they had an order from Secretan for paying over the deposit of 20001. to their client. The letter proceeded as follows :-"We have therefore to request you will furnish us with an account of your charges herein, and also a statement of the investments of the 20001. and accrual of interest thereon, pursuant to notice; or, if you prefer taking the balance of the deposit after deducting what may be due from Sir J. E. Harington, with interest at five per cent, from the...
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