Mooney v Williams [1905] HCA 34; (1905) 3 CLR 1 (15 September 1905)

HIGH COURT OF AUSTRALIA

Mooney Plaintiff, Appellant; and Williams Nominal Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

15 September 1905

Griffith C.J., Barton and O'Connor JJ.

Gordon K.C. and Blacket, for the appellant.

Cullen K.C. (with Peden), for the respondent.

Gordon K.C., in reply.

The judgment of the Court was delivered by:—

September 15

Griffith C.J.

In this case there has been an equal division of opinion amongst the learned Judges before whom the matter has come. At the trial Simpson J. thought that, certain facts having been found by the jury, the plaintiff was entitled to recover. When the matter came before the Full Court Cohen J., was of the same opinion, but the other two learned Judges, Walker J. and Pring J., held that the plaintiff had failed to establish his case, and made the rule absolute to enter a verdict for the defendant.

The facts are in a small compass. It appears that one Lycett in April, 1902, made an offer to sell to the Government of New South Wales a locomotive crane for £235, offering to make some alterations in it and deliver it in good working condition within a week after receipt of an order. At that time the crane did not belong to him. Subsequently, on 13th May, the appellant bought the crane and authorized Lycett to sell it to the Government. At that time Lycett had informed him that the Government were probable buyers, but there was no contract in existence between Lycett and the Government. On 19th May the Department of Public Works sent to Lycett an order in these terms: "Please supply for the Central Railway Station, c/o. F. H. Small, engineer-in-charge steam loco. crane as quoted £235, to be delivered or despatched within two days from date." That was not an acceptance of Lycett's offer. At that time, therefore, there was no contract between the parties. It may be regarded as a qualified acceptance of the offer, but if that is so, it was equivalent in law to a new offer for the crane on altered conditions. This was accepted by Lycett, who at that time had been appointed by the plaintiff as his agent. The crane was delivered in accordance with the contract. Now, the question for consideration is whether the contract was made by Lycett as agent for an undisclosed principal, the plaintiff, or on his own behalf. He says that it was made on his own behalf. If the offer which he made on his own behalf had been accepted simpliciter, there and then, the plaintiff could not have come in and asked to be made a party to that completed contract, on the ground that Lycett had afterwards agreed to accept him as a principal. But there was no contract between Lycett and the Government until Lycett had become agent for the plaintiff. Under those circumstances the contract was one made by an agent acting for an undisclosed principal. This is a very ordinary practice, and the rule to be applied in such cases is perfectly well known and settled, that the principal may come in and claim the benefit of the contract subject to any rights that the third party may have as against the agent. No question of that sort arises in this case. The learned Judge left to the jury the question whether the contract so made by the Government was made with the plaintiff directly or through his agent Lycett. The jury found that it was, and that the plaintiff had delivered the crane and had done nothing to estop him from claiming payment from the Government.

The only question considered by the Full Court was whether the plaintiff could be considered a party to the contract sued on. They held that he could not, because Lycett was not acting as his agent when he made the first offer. But that offer was not a contract and it was not accepted. When the new offer was made he was the agent for the plaintiff. The case relied on by the majority of the Supreme Court has therefore no application. The contract in controversy at the trial was that arising from performance of the request made by the Government on 19th May. On the evidence that was the first day on which any contractual relationship existed, and at that time, as the jury found, Lycett was agent for the plaintiff. There was a conflict of evidence on the point, and the jury believed that of the plaintiff.

The only other question is whether the plaintiff is entitled to be paid. Clearly he is, unless the defendants can establish that they have already paid him or someone authorized by him to receive payment. Before payment was made he gave notice to the Government that he was the principal and that Lycett was his agent in making the contract. He sent an account in his own name on an ordinary voucher, attended himself at the Department, and asked for the money. He was asked how he would like the money paid, and said that he wished it paid into his credit at the Commercial Bank of Sydney. After that, however, by some mistake the Government paid the money to Lycett. The consequence is that, having paid the wrong person, they must pay it over again. They must pay the person who was the principal when the contract was made, of which fact they were informed, and it is no answer to say that they have paid the agent.

It is not necessary to refer to the other interesting points raised in the discussion of the case. But it would be very singular if when a person, whose property is sold by his consent, informs the purchaser that it is his property he could not, in the absence of any special circumstances giving the purchaser rights as against the person by whom the sale is made, recover the price from the purchaser. It is not necessary to refer to the authorities on that point.

We are therefore of the opinion that the learned Judge who presided at the trial, with whom Cohen J. agreed, was right, and that the appeal should be allowed and the verdict restored.

Appeal allowed with costs. Order appealed from discharged with costs. Rule nisi discharged with costs. Verdict for the plaintiff restored.

Solicitors for the appellant: Pigott & Stinson.

Solicitor for the respondent: The Crown Solicitor for New South Wales.