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Farnsworth v. Garrard, 1 Camp. 38; Montriou v. Jefferys, Ry. & M. 317. Thus an auctioneer, through whose gross negligence the sale becomes nugatory, can recover nothing for his services. Denew v. Daverell, 3 Camp. 451; see ante, pp. 455, 456, 461. Where the plaintiff had contracted to repair completely some chandeliers for 10., and returned them incompletely repaired, in an action for work and labour it was held that the plaintiff could not recover anything, at least in this form of action, though the jury found that the repairs were worth 51. Sinclair v. Borles, 9 B. & C. 92, and vide ante, p. 521. So, where A. contracts to do work and supply materials upon the land of B. for a specific sum, to be paid on the completion of the whole, A. is not entitled to recover anything until the whole work is completed, unless it is shown that the performance of the contract was prevented by the default of B. Appleby v. Myers, L. R., 2 C. P. 651, Ex. Ch. In this case the completion of the work on the defendant's premises was prevented by a fire there, and the court held that by the contract the work to be done was entire, and that the defendant did not warrant that his premises should continue in such a state as to enable the plaintiff to do the work. But, where the contract is not thus entire, the defendant must pay pro tanto for the work done by the plaintiff. As where a shipwright undertook to put a ship into thorough repair, and, before the work was finished, required payment for the portion done, without which he refused to proceed, and the ship thereby lost her voyage, it was held that he was nevertheless entitled to recover for the work done. Roberts v. Havelock, 3 B. & Ad. 404. So, where the ship was burnt in the plaintiff's dockyard before the repairs were completed, the plaintiff was held entitled to recover for the work done. Menetone v. Athawes, 3 Burr. 1592. And the same principle applies where the work has been badly done. Farnsworth v. Garrard, supra. By stat. 38 & 39 Vict. c. 84, s. 5, a person having a claim against a Parliamentary returning officer for work and labour, &c., in respect of an election (except publication of the accounts), must, within 14 days after the return, send to him the particulars of the claim in writing, and he is liable only in respect of claims included in such particulars; such claims are liable to a taxation by the Mayor's Court, London, or by the County Court, which is final for all purposes.

By stat. 46 & 47 Vict. c. 51, s. 29 (2, 3), every claim against a candidate at a Parliamentary election in respect of any expenses incurred on account or in respect of the conduct or management of such election, which is not sent in to the election agent within 14 days after the return, shall be barred. By sect. 30, in the case of an action in a disputed claim for such expenses, where the defendant admits his liability, but disputes the amount, the amount is to be referred for taxation, unless the court on the applica tion of the plaintiff otherwise directs.

Where A. engaged with defendant's landlord to build a house on defendant's land, and A. made a sub-contract with the plaintiff to do part of the work, and defendant separately agreed, to pay over to the plaintiff directly, all money due for such part of the work upon a discharge from A., it was held that the defendant's agreement did not make him liable to the plaintiff for work and labour, but only on the special agreement. Sweeting v. Asplin 7 M. & W. 165. Where the plaintiff agrees to do work for a certain sum on a false representation by defendant of the quantity of work to be done, he may repudiate the contract; but if he perform it, he can only recover the stipulated sum in this action. Selway v. Fogg, 5 M. & W. 83.

As to defence to action by builder, that the work was done under a contract, which entitled him to payment by his employer, out of a special fund only, see Williams v. Hathaway, 6 Ch. D. 544.

Action for Money Paid.

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An agent entrusted to sell land for his principal on commission, is not entitled to any remuneration if he became himself the purchaser. Salomons v. Pender, 3 H. & C. 639; 34 L. J., Ex. 95, citing Story on Agency, § 210. See also Morison v. Thompson, L. R., 9 Q. B. 480, cited post, p. 538.

An agent cannot recover a bribe promised to induce him to enter into a contract on behalf of his principal, even though the promise did not affect his mind, and his principal was not prejudiced. Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549.

As to the defence arising under the Stamp Acts to a claim for brokerage, vide ante, pp. 234, 248.

ACTION FOR MONEY PAID.

The plaintiff, in an action for money paid, must prove, if denied by the defendant, 1. The payment of money by the plaintiff; 2. That it was paid at the request of the defendant, and to his use.

The payment of money.] The payment must be proved as a fact; the admission of the payee is not admissible against the defendant, vide ante, p. 67. To prove, as against C., payment by A. to B. for work done by B. for A., for which C. is ultimately liable, it is sufficient to show that A. received from B. an invoice of the work done, that on Feb. 25th he sent B. a cheque for the amount, and on the next day received back the invoice from B. with a receipt, and that B. received the cheque on the 26th, at 9 a.m., and sent the receipt: the receipt is then admissible as a link in the evidence. This was held to be evidence of payment at 9 a.m. on the 26th, without producing the cheque or showing that it was honoured. Carmarthen & Cardigan Ry. Co. v. Manchester & Milford Ry. Co., L. R., 8 C. P. 685.

The plaintiff must prove that money was paid; giving a security, as a bond or warrant of attorney, is not sufficient; Taylor v. Higgins, 3 East, 169; Maxwell v. Jameson, 2 B. & A. 51; unless, perhaps, where a bill or note is taken from the plaintiff, by a creditor as payment of the defendant's debt. Barclay v. Gooch, 2 Esp. 571. So, stock cannot be considered as money; Nightingal v. Devisme, 5 Burr. 2589; unless it be so treated by the parties, as where it was transferred to the defendant with the view to a sale for defendant's use. Howard v. Danbury, 2 C. B. 803.

The plaintiff must prove that the money paid was his money. Thus, an under-tenant, whose goods had been distrained and sold to strangers by the original landlord, for rent due from his immediate tenant, cannot maintain an action for money paid to the use of the latter; for immediately on the sale under the distress, the money paid by the purchaser vested in the landlord, in satisfaction of the rent, and never was the money of the undertenant; Moore v. Pyrke, 11 East, 52; but it is otherwise where the undertenant, or a stranger redeems his goods with his own money. Exall v. Partridge, 8 T. R. 308. See post, p. 533, and other cases there cited.

Defendant's request.] The plaintiff must prove a request by the defendant, express or implied. Alexander v. Vane, 1 M. & W. 511. Thus, where the lessee is to pay the lessor's expenses of granting a lease, and the lease has been granted, the lessor may recover his own solicitor's bill as money paid to the use of the lessee. Grissell v. Robinson, 3 N. C. 10. A subsequent assent to the payment will be evidence of a previous request; 1 Wms. Saund. 264 b, (2); and if there be a request to pay, the plaintiff may recover the money, though the debt so paid be one that could not be

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enforced; e.g. a time bargain, which as a wager is void by 8 & 9 Vict. c. 109, s. 18, post, p. 550. Knight v. Cambers, 15 C. B. 562; 24 L. J., C. P. 121; Rosewarne v. Billing, 15 C. B., N. S. 316; 33 L. J., C. P. 55. See also Thacker v. Hardy, 4 Q. B. D. 685, C. A. And where the plaintiff, at the defendant's request, has made bets for him, in the plaintiff's name, and would incur disqualification, and sustain injury, if he did not pay the losses consequent on such bets, the plaintiff has, on the bet being made, an irrevocable authority from the defendant to pay such losses. Read v. Anderson, 10 Q. B. D. 100. If there be no request, plaintiff cannot recover, though he has paid a legal debt of the defendant. Stokes v. Lewis, 1 T. R. 20. Costs and expenses, incurred by the mortgagee, in relation to the mortgaged property, cannot be recovered from the mortgagor, as money paid. Ex pte. Fewings, 25 Ch. D. 338, C. A.

Where, in the absence of usage, a broker purchases stock to fulfil a contract entered into by him for his principal, but which his principal refuses to make good, he cannot sue his principal in this action. Child v. Morley, 8 T. R. 614. So where the party to whom the stock was contracted to be sold, on the defendant's refusal to transfer, bought the stock himself, and sued for money paid, to recover the difference in the price of the stock, it was held that this action could not be sustained. Lightfoot v. Creed, 8 Taunt. 268. But, where there is a usage of the Stock Exchange that brokers should be responsible to each other on time contracts (vide ante, p. 512), and the seller's broker is obliged to pay money in consequence of his principal's default, he may reimburse himself in this form of action. Sutton v. Tatham, 10 Ad. & E. 27; Bayliffe v. Butterworth, 1 Exch. 425; Pollock v. Stables, 12 Q. B. 765; Smith v. Lindo, 4 C. B., N. S. 395; 27 L. J., C. P. 196 ; 5 C. B., N. S. 587; 27 L. J., C. P. 335, Ex. Ch. See Westropp v. Solomon, 8 C. B. 345. In such cases it is immaterial whether or not the principal knew of the usage. S. CC.; Grissell v. Bristowe, L. R., 4 C. P. 36, 49. It makes no difference to the broker's right to recover, that the company, in which the shares had been bought, is being wound up, and therefore the shares cannot be transferred to his principal. Taylor v. Stray, 2 C. B., N. S. 175, 197; 26 L. J., C. P. 185, 287; Chapman v. Shepherd, and Whitehead v. Izod, L. R., 2 C. P. 228. Where the broker, who had been authorized to buy shares at a certain price, was called upon by the seller, according to the rules of the Stock Exchange, to repay him a call due after the sale, and paid by the seller in order to enable him to transfer the shares, the principal was held liable over to the broker in this action. Bayley v. Wilkins, 7 C. B. 886. In the event of the death, bankruptcy, or insolvency of the principal, whereby he will be unable to take up the stock, which the broker has bought for him on his own credit, the broker is justified in immediately selling the stock, and claiming the difference against the bankrupt's estate, subject to a set-off for any loss arising to the estate from such sale being made before the settling-day, the customary time for selling out stock, on default of the principal to take it up, (vide ante, p. 516); Scrimgeour's Claim, L. R., 8 Ch. 921; see also Crowley's Claim, L. R., 18 Eq. 182. Where the broker is, otherwise than through the fault of his principal, unable to meet his engagements, and thereby becomes a defaulter under the Stock Exchange rules (r. 171 of 1883, ante, p. 518), and his contracts are closed in accordance with those rules, his principal is not bound to indemnify him against the loss thereby occasioned to him. Duncan v. Hill, L. R., 8 Ex. 242, Ex. Ch. There is an implied agreement between the original lessee and each successive assignee of a term, that the latter shall indemnify the former from liability on breaches of the covenants of the lease during the possession of the assignee; such agreement is implied, although each assignee expressly covenants to indemnify his immediate assignor against all subsequent

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breaches; the lessee is in the position of a surety to the lessor for the assignee. Moule v. Garrett, L. R., 5 Ex. 132; L. R., 7 Ex. 101, Ex. Ch. ; and see Roberts v. Crowe, L. R., 7 C. P. 636, per Willes, J.; and Crouch v. Tregonning, L. R., 7 Ex. 88. As to recovery by lessee against the assignee under this indemnity, of costs, to which he has been put by the action against him, by the lessor for breaches of covenant, see Howard v. Lovegrove, L. R., 6 Ex. 43.

A legal obligation to pay for another's benefit will be equivalent to a previous request; as where one person is surety for another, and is called on to pay, the money paid may be recovered, though not paid by the desire of the principal; per Ld. Kenyon, Exall v. Partridge, 8 T. R. 310. See also Johnson v. R. Mail S. Packet Co., L. R., 3 C. P. 38. So if one co-bail pays the whole debt. Belldon v. Tankard, 1 Marsh. 6. So, if an accommodation acceptor is sued on default of the drawer to pay, the acceptor may recover in this action; and he may sue alone though the loan was in fact advanced on account of the plaintiff and his partner, and paid out of their joint funds. Driver v. Burton, 17 Q. B. 989; 21 L. J., Q. B. 157. So the indorser of a bill, who has been sued by the holder, and paid him part of the amount of the bill, may recover that amount, in an action for money paid against the acceptor. Pownal v. Ferrand, 6 B. & C. 439. See also Ex pte. Bishop, 15 Ch. D. 400, C. A., whence it appears that the indorser may also recover the interest which he has been compelled to pay. But if the drawer voluntarily pays the holder of a bill, which he had drawn and indorsed for the accommodation of the acceptor, without having received any notice of dishonour or any request from the acceptor to pay it, he cannot sue the latter for money paid; for there must be either legal obligation or request. Sleigh v. Sleigh, 5 Exch. 514. A person who pays a bill for the honour of one of the parties to it, may sue him for money paid. But he must prove noting or protest before the payment. Vandewall v. Tyrrell, M. & M. 87, as explained in Geralopulo v. Wieler, 10 C. B. 707; 20 L. J., C. P. 105. When an executor has paid legacies in full, and is afterwards obliged to pay the legacy duty, it was held, in Foster v. Ley, 2 N. C. 269, that he might recover the amount paid for duty in an action for money paid against the legatee. See Bate v. Payne, 13 Q. B. 900.

Where several are sureties, and one is compelled to pay the whole, he may recover in this action from each of his co-sureties a rateable proportion of the money so paid. Cowell v. Edwards, 2 B. & P. 268; Deering v. Winchelsea, El., Id. 270. A co-surety may sue as soon as he has paid more than his rateable share, but not till then. Davies v. Humphreys, 6 M. & W. 153, 168, 169; Ex pte. Snowdon, 17 Ch. D. 44, C. A. He may pay the debt when due, without waiting for a demand or an action, and may then sue for contribution. Pitt v. Purssord, 8 M. & W. 538. The amount recoverable from each co-surety is ascertained by reference not to the number of principals, but to the number of sureties; Kemp v. Finden, 12 M. & W. 421 ; and at law, the contribution was in proportion to the number of the co-sureties, without regard to their solvency; Cowell v. Edwards, 2 B. & P. 268, 269; Browne v. Lee, 6 B. & C. 689, 696; but in equity he was entitled to contribution, taking into account the numbers of solvent co-sureties only. Peter v. Rich, 1 Ch. Rep. 19; Hole v. Harrison, 1 Ch. Cas. 246; Dallas v. Walls, 29 L. T., N. S. 599, L. C. & L. J. J., M. T. 1873. See notes to Deering v. Winchelsea, El., supra, and White and Tudor's Lead. Cases in Equity, 3rd ed. p. 95. Under the J. Act, 1873, s. 25 (11), ante, p. 282, the rule of equity now prevails. Where A., B., and C. became sureties for D. by three separate bonds, and one of them was compelled to pay D.'s debt, each of the others must contribute, in proportion to the amount in their respective bonds. Deering v. Winchelsea, El. of, supra. And even

although A. did not know, when he became surety, that B. and C. were also sureties. Craythorne v. Swinburne, 14 Ves. 160, 165, per Ld. Eldon, C. A surety A. is entitled to the benefit of any security his co-surety B. has taken from the principal debtor C., although B. consented to be surety, only on the terms of having the security, and A. when he became surety did not know of the agreement for security. Steel v. Dixon, 17 Ch. D. 825. See also Atkins v. Arcedeckne, 24 Ch. D. 709. In these cases the true nature of the transaction itself is to be considered without regard to the form of the instrument by which the relation is created; Reynolds v. Wheeler, 10 C. B., N. S. 561, 566; 30 L. J., C. P. 350, 351, per Williams, J. Thus, where the plaintiff had drawn a bill, which C. accepted, and the defendant indorsed (both plaintiff and defendant putting their names for C.'s accommodation), the plaintiff having been obliged to pay the bill, was held entitled to recover contribution against the defendant as co-surety. S. C. So where the defendant and plaintiff, both indorsed a promissory note of C. as sureties for him, the defendant signing first. Macdonald v. Whitfield, 8 Ap. Ca. 733, P. C., ante, p. 359. Where two are jointly liable for the expenses incurred for their common benefit, and one dies, the survivor, who pays the whole, may sue the executor of the deceased for money paid for the defendant as executor. Prior v. Hembrow, 8 M. & W. 873; semb. accord. Batard v. Hawes, 2 E. & B. 287; 22 L. J., Q. B. 443. If premises are let to several persons for the use of a company or partnership of which the lessees are members, and one of them is called upon to pay rent, he may sue the co-lessees for contribution. Boulter v. Peplow, 9 C. B. 493; 19 L. J., C. P. 190. So, if one of a managing committee is obliged to repay a loan, borrowed for a club, by authority of the committee, he may recover contributions from each of the others. Mountcashel, El. of, v. Barber, 14 C. B. 53; 23 L. J., C. P. 43. If one partner advances to another the capital which the latter is to contribute to the joint capital, he may sue for the amount. French v. Styring, 2 C. B., N. S. 357; 26 L. J., C. P. 181. partner who pays a note, in which he has joined some of the other partners, may sue them for contribution in this action, though the money raised on it was for partnership purposes. Sedgwick v. Daniel, 2 H. & Ñ. 319; 27 L. J., Ex. 116. But, one partner cannot in general sue another in this form of action, for contribution to a joint partnership liability. Brown v. Tapscott, 6 M. & W. 119, 123; Worrall v. Grayson, 1 M. & W. 166. The partnership account must first be taken. One tenant in common of a house, who expends money on ordinary repairs thereon, not being such as are necessary to prevent the house from going to ruin, cannot sue his co-tenant for contribution. Leigh v. Dickeson, 12 Q. B. D. 194.

A

As a general rule, this action does not lie for contribution or indemnity against a person jointly engaged with the plaintiff in doing a wrongful act, by which the plaintiff is put to expense. Merryweather v. Nixan, 8 T. R. 186; or where money is paid in furtherance of an illegal transaction. Mitchell v. Cockburne, 2 H. Bl. 379; Aubert v. Maze, 2 B. & P. 371. But, where the plaintiff was not aware that the transaction was illegal, or where its nature is doubtful, he may sue on the implied contract to indemnify. Betts v. Gibbins, 2 Ad. & E. 57; Pearson v. Skelton, 1 M. & W. 504; and see Dixon v. Fawcus, 30 L. J., Q. B. 137; 1 Smith's Lead. Cas., notes to Lampleigh v. Braithwait; and post, pp. 550, 551.

A notice to the party by whom an indemnity is given is not necessary before defending an action; but if such notice is given, and he refuses to defend the action, he is estopped from saying that the person indemnified was not bound to pay the money. Duffield v. Scott, 3 T. R. 374; and see Jones v. Williams, 7 M. & W. 493. The only effect of want of such notice is to let in proof that the course pursued was not justified under the circum

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