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Decisions of the Superior Courts of New South Wales, 1788-1899

Ennis v. Inglish (1842) NSW Sel Cas (Dowling) 453; [1842] NSWSupC 67

agency

Supreme Court of New South Wales

Dowling C.J., Stephen and Burton JJ, January 1842.

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 237.

A person who collects rent as an agent for another has no title to the money so collected and must account for it to the principal.*

Assumpsit for money had and received by the defendant to the use of the plaintiff. Plea non assumpsit.

At the trial before Stephen J. and two assessors on the 18th November last, the case proved was this: The plaintiff an aged and infirm man, being possessed of three houses in Pitt Street, went with two grand children to board and lodge in the defendant's house, for which he was to pay at the rate of 30s a week for himself 10s for one child and 7s for the other. It was agreed between the plaintiff and defendant that the latter should receive for him the rents of the three houses, amounting to £10 a week which she was to collect on his account. When received she was to have the management of the money, she paying herself out of it as it came in the charge for board and lodging and other incidental expenses.

She either collected the money herself, or sent one of the grandchildren to receive it. When received she deposited it in a drawer in the plaintiff's room of which she kept the key, and took out of it from time to time money as she wanted it to pay herself for the board and lodging and other expenses incurred on the plaintiff's account. The plaintiff boarded and lodged in the defendant's house about four months and then left, the defendant having during all that time received the rents of the houses amounting to about £116.

No set off was pleaded and the plaintiff by his counsel stated in the opening of the case that he only went for £54, giving the defendant credit for disbursements on his account so as to reduce his claim to that amount. He rested his case upon proof of the facts above stated. There was no evidence offered for the defendant, but it was contended that the action for money had and received was not maintainable and that if any, it must be an action of account or relief might be sought in equity for an account, for the defendant could only be considered as bailiff or trustee for the management of the money. It was argued that there was nothing specific, no account rendered or any balance stated as money had and received, for which an action of assumpsit could be maintained. No evidence had been given of a particular sum nor of any amount actually due, which was necessary to support the action and the case of Harvey v. Archbold (1825) [ Harvey v. Archbold (1825) 3 B. & C. 626, 5 D&R 500, Ry. & Mood. 184, 107 E.R. 865] was cited.

The learned Judge however thought the action maintainable and the plaintiff had a verdict for £54. On a former day a motion was made to enter a nonsuit and the same argument was urged. No one appeared on the part of the plaintiff to maintain the verdict.

Dowling C.J. Being at first impressed with the seeming weight of the argument urged on the part of the defendant the Court took time to look into the point.

I am of opinion that the action was clearly maintainable. To support this action all that was necessary for the plaintiff to prove was the receipt of money by the defendant and his title to recover it. There was proof here of the receipt of money from time to time for a period of about four months and the deposit of it by the defendant in a drawer in the plaintiff's room of which she kept the key. The only prima facie question was on whose account and to whose use did she primarily receive it. It was not disputed that the rents of the three houses were the proper moneys of the plaintiff. Then on whose account did the defendant receive them? Her whole authority to receive them was derived from the plaintiff. She did not receive them to her own use. It was true that she was authorized by him to deduct the amount of the board and lodging and other expenses incurred on his account, and so far she was to be the hand in managing the money, first by receiving it on his account, and then deducting such sums as he had agreed to allow her for the board and lodging and other expense to which she had been lent on his behalf.

Still however the principle of principal and agent subsisted. She had no legal title to the money herself. It was his originally. She was sui juris, and had a right to the money when received though she had a lien upon it with his consent for the amount of her claim upon it for board and lodging and other expenses. It was primarily received by her on his account and to his use, though subject to his directions as to its appropriation. She was clearly charged by proof with specific rents during a period of four months and she offered nothing to discharge herself. She had no trust, other then as agent to receive on plaintiff's account and pay on his account. In the case of Harvey v. Archbold there was no evidence whatever offered on the part of the plaintiff for which a verdict could be entered. The plaintiffs left the note of the accounts wholly unexplained, and for anything that appeared to the contrary the defendant owed the plaintiff nothing. Here the defendant was charged with the receipt of money sufficiently specific on the plaintiff's account to cast upon her the burden of discharging herself by set off, or other medium of discharge.

The industry of Stephen J. has found out a case in point, Lorymer v. Stephens (1834) [ Lorymer v. Stephens (1834) 1 Cr. M. & R. 62, 4 Tyr. 869, 149 E.R. 994] where it appearing upon an account current and not stated, that the defendant was prima facie indebted to the plaintiff. The Court held that the defendant was liable for the amount of his gross receipts as money had and received to the plaintiff's use. In that case the defendant was captain of a ship whose peculiar employment by the plaintiff, who was the owner, gave him authority to appropriate monies to the ordinary uses of the vessel and large disbursements were admitted by the plaintiff to have been made on his account so as to reduce his demand.

But for the limitation of the plaintiff's demand in this instance to £54, he would have been entitled to recover the whole of the money traced to the hands of the defendant unless she could have discharged herself by set off from that liability. Rule refused.

Published by the Division of Law, Macquarie University