Ryan v Horton [1911] HCA 10; (1911) 12 CLR 197 (5 May 1911)

HIGH COURT OF AUSTRALIA

Michael Joseph Ryan Plaintiff, Appellant; and Henry Horton Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

5 May 1911

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

Owen K.C. and Windeyer, for the appellant.

Loxton K.C. and Rolin, for the respondent.

Owen K.C., in reply.

Griffith C.J.

We have had an opportunity of fully considering the facts of this case since the last adjournment, and we do not think it is necessary to reserve judgment. The action was for commission, claimed to have been earned by the plaintiff as an agent, for bringing about a sale of the defendant's estate to Major Smith. The defence was a denial of the plaintiff's authority, and of the allegation that this sale was brought about by his instrumentality. At the trial before Sly J., that learned Judge directed the jury in accordance with the case of Green v. Bartlett[1], that there were two questions for their decision, whether the plaintiff was employed by the defendant, and whether the sale was brought about by the instrumentality of the plaintiff. Counsel for both parties agreed that these were the only questions for decision. The jury answered both questions in favour of the plaintiff, and, as I understand the judgment of the learned Chief Justice, he thought that the jury were justified in coming to that conclusion, but the Supreme Court ordered a new trial upon a ground as to which I think there must have been some misapprehension of the facts. There was a fragment of evidence given by the defendant which, if believed, might have been taken as pointing either to a revocation of the plaintiff's authority, or to a denial of any original authority. The Judges of the Supreme Court thought that the effect of this evidence as showing a revocation of the authority given to the plaintiff had not been sufficiently brought to the attention of the jury, and that therefore a new trial should be granted. But, with all respect, that question was involved in the second question left to the jury, whether the sale was brought about by the instrumentality of the plaintiff. If his authority had been revoked before the work done by the plaintiff had produced any result, then the sale was not brought about by him.

The plaintiff had to establish a chain of causation between his efforts and the result. If his efforts had been interrupted, and the agency determined, before any result had been achieved, he could not recover. The real questions in issue between the parties were left to the jury, and the real objection was that the learned Judge did not lay sufficient stress upon a particular part of the evidence. But that is not a ground for a new trial. A Judge's direction is not open to objection merely upon the ground that he did not give equal emphasis to every part of the evidence. What is due emphasis may depend to a large extent upon the way in which the case is conducted at the trial. When certain issues have been put before the jury with the consent of both parties, and are finally left to the jury, they cannot afterwards apply for a new trial upon a new point not taken at the trial.

The only real question in the case, therefore, is whether there was any evidence upon which the jury, as reasonable men, could find that the sale of the defendant's land was brought about by the plaintiff's instrumentality. There was abundant evidence that the defendant retained the plaintiff as his agent to try and induce Major Smith to buy the land; possibly he fixed a minimum price of £5 per acre, possibly he did not. After the plaintiff had done a good deal of work in trying to bring about the sale, Major Smith agreed to take a lease of the land from the defendant, with an option of purchase at five guineas an acre, and very shortly afterwards bought the land at that price. The point was taken that a lease with an option of purchase is quite a different thing from a purchase. That is a question of fact. It may be in substance part of the transaction of sale or it may be in substance a different transaction. The transaction may be in effect a conditional sale or it may be really a lease with an option added as something extraneous to it. In any view the agreement was a step towards purchase. All these were questions of fact and degree, and they were all involved in the question whether the sale was brought about by the instrumentality of the plaintiff. He was negotiating with Major Smith for more than a year. He had induced him to raise his price to £4 10s. per acre, and Major Smith had given the plaintiff to understand that he would probably be willing to give £5. While the matter was in that position Major Smith told the plaintiff that he had determined not to buy for the present. Two or three days afterwards, however, he resumed negotiations directly with the defendant, and in two or three weeks the whole transaction was concluded. There was evidence that in the meantime the plaintiff's sub-agent was still in communication with Major Smith, pressing him to buy instead of taking a lease. If that evidence was believed—and the jury apparently did believe it—they could reasonably infer that the sale was in fact brought about by the instrumentality of the plaintiff, and I understand that the learned Judges of the Supreme Court were also of that opinion.

I therefore think that the appeal should be allowed and the verdict of the jury restored. The point upon which the verdict was set aside and a new trial granted seems, as I have already said, to have been based on a misapprehension of the facts.

Barton J., and

O'Connor J.,

concurred.

Appeal allowed.

Solicitors, for appellant, McLachlan & Murray.

Solicitors, for respondent, Iceton, Faithfull & Maddock.

[1] [1863] EngR 605; 14 C.B.N.S., 681, at p. 685.