ON APPEAL FROM THE SUPREME COURT OF Principal and agent-Estate agent-Agent for vendor-Authority to receive purchase
money-Whether implied-Burden of proving express authority-Whether evidence of authority or ratification-Acknowledgment of receipt of purchase money-Whether estoppel created-Judgment against one of two defendants- Whether amounting to election for purpose of appeal.
An estate agent, as such, was instructed by the vendor " to find a pur- MELBOURNE, chaser" for her house. The agent found a purchaser and received from him the whole of the purchase price. A contract of sale was executed and subsequently a transfer of the land in the form prescribed by the Transfer of Land Act 1893-1950 (W.A.) was signed and registered. To the vendor's action against the purchaser for recovery of the purchase price the purchaser pleaded that he had paid the estate agent who was the vendor's agent with authority to receive the purchase money. The estate agent was thereupon joined as a defendant and as against him the vendor (in the alternative) claimed the purchase price as money received by him for her use.
Held (1) that there was no evidence to support a finding that the agent had authority to receive the purchase money nor was there evidence of any ratification by the vendor: (2) that the acknowledgment in the transfer although evidence against the vendor did not create an estoppel and (3) that the judgment obtained by the vendor in the court below as against the agent did not for the purpose of an appeal amount to an election to treat the agent as liable to the exclusion of the purchaser.
Morel Bros. &Co. Ltd. v. Earl of Westmoreland, (1903) 1 K.B. 64 (1904) A.C. 11 Moore v. Flanagan, (1920) 1 K.B. 919, distinguished.
Decision of the Supreme Court of Western Australia (Walker J.) reversed.
APPEAL from the Supreme Court of Western Australia.
On 15th March 1949 the appellant with two other persons entered into a contract to purchase a furnished house and a vacant piece of land from one Tucker. In this transaction the respondent Pulbrook was acting as the vendor's agent. Settlement was effected on 5th May 1949, on which date the transfers were regis- tered as were mortgages securing the purchase price, which was advanced to the purchasers by third parties. The purchase price was paid to the agent Pulbrook and he accounted for it to his principal Tucker. The appellant having entered into the contract of sale with Tucker, wished to sell the house which she was at that date occupying and she handed to Pulbrook the duplicate certificate of title and instructed him to find a purchaser. Pulbrook introduced the respondent Moloney and received from him the whole of the purchase money. A contract of sale was then signed by both parties, that is to say, by the appellant and by the respondent Moloney. The transfer of this property was dated 2nd May 1949 and was registered on 4th May…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Petersen v Moloney [1951] HCA 57
Case
[1951] HCA 57
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Western Australia concerning a dispute over the payment of purchase money for a house and its contents. The appellant, the vendor, had sold her property to the respondent, Moloney, through an estate agent, Pulbrook. Moloney claimed to have paid the full purchase price to Pulbrook, who subsequently failed to remit the money to the appellant. The appellant sued Moloney for the purchase price and, in the alternative, sued Pulbrook for money had and received.
The legal issues before the High Court were whether the estate agent, Pulbrook, had the authority to receive the purchase money on behalf of the vendor, whether the vendor had ratified Pulbrook's receipt of the money, and whether the vendor's prior judgment against Pulbrook constituted an election that precluded her from pursuing an appeal against Moloney. The court was required to determine if the evidence supported Moloney's defence of payment to an authorised agent.
The High Court found that there was no evidence to support a finding that Pulbrook had express or implied authority to receive the purchase money on behalf of the vendor. The court also held that the vendor had not ratified Pulbrook's actions, as the alleged knowledge of the payment and subsequent conduct were not sufficiently unequivocal to establish ratification. Furthermore, the acknowledgment of payment in the transfer document did not create an estoppel against the vendor. The court determined that the judgment obtained against Pulbrook in the court below did not amount to a final election precluding the appeal against Moloney, as the appeal sought to substitute judgment against Moloney for that against Pulbrook.
Consequently, the High Court allowed the appeal, setting aside the judgment of the Supreme Court. It ordered that the appellant recover the sum of £700 from the respondent Moloney, and that the appellant recover nothing from the respondent Pulbrook. The respondent Moloney was ordered to pay the appellant's costs of the appeal and the action, with no order as to the costs of the respondent Pulbrook.