Category: Agency

Schmaltz v Avery: 1851

An agent who signed a charterparty containing a cesser clause purportedly as agent for an unidentified principal could show that he was himself the principal and could sue on the contract, on the grounds that it was irrelevant to the third party who contracted on such terms to whom he was liable, and that the agent could say that he was his own principal.
[1851] EngR 68, (1851) 16 QB 655, (1851) 117 ER 1031
Commonlii
England and Wales
Cited by:
Well established – Newborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.296384

Andrews v Ramsay: 1903

The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents pounds 100 by way of deposit. The agents paid the principal pounds 50 and, with the principal’s consent, retained pounds 50 as their commission. But it then transpired that the agents had had a side deal with Clutterbuck whereby he paid them pounds 20. In the first action the principal claimed and recovered the pounds 20 as a secret profit made by the agent in breach his duty of good faith. In the second action the principal claimed the return of the pounds 50.
Held: He succeeded – even though he had had the benefit of the agent’s services.
Lord Alverstone CJ said: ‘It is said that the defendants ought not to be called upon to hand over the andpound;50 to the plaintiff because the plaintiff has had the benefit of their services. The principle of Salomons v. Pender (1865) 3 HandC 639 seems to me to govern the case, and it is, in my opinion, amply sufficient to do so. In that case it was held that an agent who was himself interested in a contract to purchase property of his principal was not entitled to any commission from the principal. The principle there laid down is that, when a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal . . It seems to me that this case is only an instance of an agent who has acted improperly being unable to recover his commission from his principal. It is impossible to say what the result might have been if the agent in this case had acted honestly. It is clear that the purchaser was willing to give andpound;20 more than the price which the plaintiff received, and it may well be that he would have given more than that. It is impossible to gauge in any way what the plaintiff has lost by the improper conduct of the defendants. I think, therefore, that the interest of the agents here was adverse to that of the principal. A principal is entitled to have an honest agent, and it is only the honest agent who is entitled to any commission. In my opinion, if an agent directly or indirectly colludes with the other side, and so acts in opposition to the interest of his principal, he is not entitled to any commission. That is, I think, supported both by authority and on principle; but if, as is suggested, there is no authority directly bearing on the question, I think that the sooner such an authority is made the better.’
Wills J said: ‘The andpound;50 in question was paid by the purchaser to the defendants as agents for the plaintiff as part of the andpound;100 deposit on the purchase, and the defendants were allowed by the plaintiff to retain andpound;50 in the belief that they had earned that sum as commission. If the money had all been paid over, and the defendants had had to sue the plaintiff for commission, it seems to me perfectly clear that they could not recover it. They would have no chance whatever of succeeding in such an action, and I think that they ought not to stand in any better position because the plaintiff, believing that they had acted properly, had allowed them to retain the andpound;50. The case ought to be the same whether the commission has already been paid or whether the agent has to sue for it.’
Lord Alverstone CJ, Wills J
[1903] 2 KB 635
England and Wales
Citing:
Applied – Salomons v Pender 21-Apr-1865
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: . .

Cited by:
Cited – Imageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Cited – Nitedals Taenstikfabrik v Bruster 1906
Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.282635

Industries and General Mortgage Co Ltd v Lewis: 1949

When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from the defendant a share of the profits on the resale of property to be purchased with the money lent, and that he was acting as agent for the defendant, but they had no dishonest intention to cause him to persuade the defendant to accept and the rate of commission demanded or to urge the defendant to act disadvantageously to his own interest. Neither V nor the company informed the defendant of the payment to V.
Held: for the purposes of the civil law a bribe meant nothing more than the payment of a secret commission, and proof of a corrupt motive on the part of the payer was unnecessary; once it was established that one party to a contract that made a secret payment to the agent of the other party the law would presume that he had acted corruptly, that the agent had been influenced by the payment to the detriment of his principal, and that the principal had suffered damage at least to the amount of the bribe; in the present case the payment by the plaintiffs to V constituted a bribe and it’s amount was recoverable by the defendant from the plaintiffs as damages or money had and received.
The court discussed difficulties in defining what is a bribe, Slade J said: ‘Sometimes the words ‘secret commission’ are used, sometimes ‘surreptitious payment’, and sometimes ‘bribe’. For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he know to be the other person’s agent. Those three are the only elements necessary to constitute the payment of a secret commission or bribe for civil purposes.’ and ‘Yes, but earlier the learned judge has said that if a gift be made to a confidential agent with a view to inducing him, it is a bribe, and, therefore, in using the later language and referring to the bribes the learned judge is in effect saying: ‘I am using these later presumptions in cases where a bribe has been established and I have already defined a bribe as being only something which has been established as being paid with a certain motive.’ That, of course, would tear up the whole of the learned judge’s observation because he says lower down that the courts will not receive evidence as to what is the motive of the person making the payment. The motive will be conclusively inferred against him.’
References: [1949] 2 All ER 573, 93 Sol Jo 577
Judges: Slade J
This case cites:

  • Explained – Hovenden and Sons v Millhoff 1900 ([1900] 83 LT 41)
    Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .

This case is cited by:

  • Cited – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985 ([1985] 1 Lloyd’s Rep 1, [1985] 1 WLR 640)
    In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
    When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
  • Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003 (, [2003] EWHC 823 (Ch), [2004] IRLR 618)
    A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.

These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.194862

Harington v Hoggart: 26 Nov 1830

An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time ; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities.
References: (1830) 1 B and Ad 577, [1830] EngR 870, (1830) 109 ER 902
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.182547

Smart And Another v Sandars And Others; 6 Jul 1846

References: [1846] EngR 865, (1846) 3 CB 380, (1846) 136 ER 152
Links: Commonlii
Ratio: The mere relation of principal and factor confers, ordinarily, an authourity to sell at such times and for such prices as the factor may, in the exercise of his discretion, think best for his employer: but, if he receive the goods subject to any special instructions, he is bound to obey them. The authority, whether general or special, is revocable. Quaere, whether the factor’s authority to sell can be revoked after he has made advances upon the credit of the goods consigned to him, his authority then being coupled with an interest? In assumpsit, the declaration stated that the plaintiffs had consigned wheat to the defendants, who were corn factors, for sale on account of the plaintiffs ; that the defendants then promised the plaintiffs to obey and observe the lawful orders and directions of the plaintiffs to be given by them to the defendants in regard to the sale and disposal of the wheat, and that, although the plaintiffs ordered the defendants not to sell below a certain price, and although the same was a lawful order and direction in that behalf, yet the defendants, not regarding their promise, sold at a less price. Plea, that, after the delivery of the wheat to the defendants, they became and were under advances to the plaintiffs in respect thereof ; that they gave the plaintiffs notice that they required to be repaid such advances, and that in default they should sell the wheat and repay themselves; and that, although a reasonable time had elapsed, the plaintiffs did not repay them such advances ; whereupon the defendants, for the purpose of reimbursing themselves, sold the wheat for the best prices that could then be obtained for the same, &c. Held, that the plea was bad in substance, there being nothing in the transaction disclosed upon the record, from which it could be inferred that it was part of the contract that at any time the wheat should be forfeited, or the defendant’s authority to sell enlarged, so as to enable them to sell for repayment of advances, without reference to its being for the interest of the principals to sell at that particular time, and for that price.
This case is cited by:

  • Appeal from – Smart & another v Sandars & Others CCP ((1848) 5 CB 895, [1848] EngR 499, Commonlii, (1848) 136 ER 1132)
    A factor to whom goods have been consigned generally for sale, and who has subsequently made advances to his principal on the credit of the goods, has no right to sell them, contrary to the orders of his principal, on the latter neglecting, on . .

(This list may be incomplete)

Last Update: 31-Aug-16
Ref: 302760

Gaussen And Others v W Morton And E Morton; 7 May 1830

References: [1830] EngR 564, (1830) 10 B & C 731, (1830) 109 ER 622
Links: Commonlii
Ratio: A. being indebted to B, in order to discharge the debt executed to B a power of attorney, authorising him to sell certain lands belonging to him, A.: Held, that this, being an authority coupled with an interest could not be revoked.
This case is cited by:

  • Cited – Bailey and Another v Angove’s Pty Ltd SC (Bailii, [2016] UKSC 47, Bailii Summary, UKSC 2014/0106, SC, SC Summary, SC Summ Vid, [2016] WLR(D) 455, WLRD, [2016] 1 WLR 3179)
    The court was asked two questions: ‘The first is: in what circumstances will the law treat the authority of an agent as irrevocable. The other is whether the receipt of money at a time when the recipient knows that imminent insolvency will prevent . .

(This list may be incomplete)

Last Update: 31-Aug-16
Ref: 321444

JC Houghton and Co v Northard, Lowe and Wills: HL 1928

References: [1928] AC 1
Ratio:the court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular arrangement with a third party company. However, the arrangement was one that was against the company’s interests and for the benefit of the third party company which the directors also controlled and which was in financial difficulties.
Held: The law does not make the unreal assumption that agents will reveal to their principals the fraud which they are comitting on them.
This case is cited by:

  • Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd -v- Item Software (UK) Ltd CA ([2004] EWCA Civ 1244, Times 21-Oct-04, Bailii, [2004] BCC 994, [2007] Lloyd’s Rep PN 17, [2005] ICR 450, [2005] 2 BCLC 91, [2004] IRLR 928)
    The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
    Held: A company . .
  • Cited – Jetivia Sa and Another -v- Bilta (UK) Ltd and Others SC (Bailii, [2015] UKSC 23, [2015] WLR(D) 182, Bailii Summary, WLRD, UKSC 2013/0206, SC Summary, SC, [2015] 2 Lloyd’s Rep 61, [2015] 1 BCLC 443, [2015] 2 All ER (Comm) 281, [2015] BVC 20, [2015] 2 WLR 1168, [2015] BCC 343, [2015] 2 All ER 1083)
    The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

(This list may be incomplete)

Last Update: 25-Jun-16
Ref: 215866

Holland v Russell; 13 Jun 1861

References: [1861] EngR 728, (1861) 1 B & S 424, (1861) 121 ER 773
Links: Commonlii
Ratio:Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a letter from the captain, informing him that the ship had received injury, which fact he, without fraudulent intention to deceive, omitted to disclose to the underwriters. The ship waa lost, and B, one of the underwriters paid to A, his amount of the insurance ; but, having subsequently become acquainted with the above circumstance, brought an action for money had and received against him to recover it back. A., before he was aware of B.’s intention to dispute the policy, and acting bona fide throughout, transmitted to his principal the money he had received from the various underwriters; with the exception of a certain amount for which he had allowed the principal credit iri a settled account, and of another which, with the autbority of the principal, he had expended in a suit brought by him on behalf of the principal against C, another underwriter, on the policy :
Held: (In accordance with the decision in Russell v. Thornton, 4 H. & N. 788, affirmed on error, 6 Id. 140), that, in consequence of the concealment from the underwriters of the fact stated in the captain’s letter, the policy was voidable at the election of the underwriters. 2. That A. being only an agent, of which B. was aware, and having, without notice of B’s intention to repudiate the contract, paid over to his principal the amount received from the underwriters, B. was not entitled to recover back from A. his amount of the insurance. 3. That there was no difference in this respect between the money actually paid over by A. to his principal, and the moneys which had either been allowed in account between them or expended in the suit agaitist C, 4. Quaere, whether B. would have been entitled to recover, if he had not known that A. was acting merely as agent?
This case is cited by:

  • Cited – Portman Building Society -v- Hamlyn Taylor Neck (a Firm) CA ([1998] 4 All ER 202, Bailii, [1998] EWCA Civ 686)
    The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
  • See Also – Holland -v- Russell ([1863] EngR 546, Commonlii, (1863) 4 B & S 14, (1863) 122 ER 365)
    . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 284489

Salomons v Pender; 21 Apr 1865

References: [1865] EngR 365, (1865) 3 H & C 639, (1865) 159 ER 682
Links: Commonlii
Coram: Bramwell B
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: ‘It is true that . . the defendant has had the benefit (if it be one) of the plaintiff’s services. But the defendant is in a position to say, ‘What you have done has been done as a volunteer, and does not come within the line of your duties as agent.” And in the same case Martin B. quoted the passage from Story on Agency, where it is said: ‘In this connection, also, it seems proper to state another rule, in regard to the duties of agents, which is of general application, and that is, that, in matters touching the agency, agents cannot act so as to bind their principals, where they have an adverse interest in themselves. This rule is founded upon the plain and obvious consideration, that the principal bargains, in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent, for his own exclusive benefit. It is a confidence necessarily reposed in the agent, that he will act with a sole regard to the interests of his principal, as far as he lawfully may; and even if impartiality could possibly be presumed on the part of an agent, where his own interests were concerned, that is not what the principal bargains for; and in many cases, it is the very last thing which would advance his interests. The seller of an estate must be presumed to be desirous of obtaining as high a price as can fairly be obtained therefor; and the purchaser must equally be presumed to desire to buy it for as low a price as he may.’
This case is cited by:

  • Cited – Imageview Management Ltd -v- Jack CA (Bailii, [2009] EWCA Civ 63, Times, [2009] WLR (D) 56, WLRD, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034)
    The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 281277

Barker v Harrison; 16 Apr 1846

References: [1846] EngR 533, (1846) 2 Coll 546, (1846) 63 ER 854
Links: Commonlii
Coram: Sir James Knight-Bruce V-C
A vendor’s agent had secretly negotiated a sub-sale of part of the property from the purchaser at an advantageous price.
Held: that asset was held on trust for the vendor.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .

Carter, Esq v Sir William Henry Palmer, Bart; 17 Mar 1842

References: [1842] EngR 397, (1841,1842) 8 Cl & Fin 657, (1842) 8 ER 256
Links: Commonlii
The employment of counsel as confidential legal adviser disables him from purchasing for his own benefit charges on his client’s etates, without his permission ; and although the confidential employment ceases, the disability continues as long as the reasons on which it is founded continue to operate.
C, a barrister, who had been for several years confidential and advising couunsel to P, and had, by reason of that relation, acquired an intimate knowledge of his property and liabilities, and was particularly consulted as to a compromise of securities given by P for a debt which C considered not to be recoverable for the full amount, purchased these securities for less than their nominal amount, without notice to P after ceasing to be his counsel.
Held: that C’s purchase, while the compromise proposed by P was feasible, was in trust for P ; and that C was entitled only to the sum he had paid, with interest according to the course of the Court.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .

Railton v Mathews and Leonard and Another; 14 Jun 1844

References: [1844] EngR 683, (1844) 10 Cl & Fin 934, (1844) 8 ER 993
Links: Commonlii
A party became surety in a bond for the fidelity of a commission agent to his employers. After some time the employers discovered irregularities in the agent’s accounts, and put the bond in suit. The surety then instituted a suit to avoid the ‘bond, on the ground of concealment by the employers of material circumstances affecting the agent’s credit prior to the date of the bond, and which, if communicated to the surety, would have prevented him from undertaking the obligation. On the trial of an issue whether the surety was induced to sign the bond by undue Concealment or deception on the part of the employers, the presiding Judge directed the jury, that the concealment, to be undue, must be wilful and intentional, with a view to the advantages the employers were thereby to gain : Held by the Lords (reversing the judgment of the Court of Session) that the direction was wrong in point of law. Mere non-communication of circumstances affecting the situation of the parties, material for the surety to be acquainted with, and within the knowledge of the person obtaining a surety bond, is undue concealment, though not wilful or intentional, or with a view to any advantage tor himself.

Holland v Russell; 9 May 1863

References: [1863] EngR 546, (1863) 4 B & S 14, (1863) 122 ER 365
Links: Commonlii
This case cites:

  • See Also – Holland -v- Russell ([1861] EngR 728, Commonlii, (1861) 1 B & S 424, (1861) 121 ER 773)
    Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .

Clarke v Tipping; 18 Apr 1846

References: [1846] EngR 548, (1846) 9 Beav 284, (1846) 50 ER 352
Links: Commonlii
Coram: Wigram VC
The Defendant had bribed the Plaintiff’s agent to make extracts of false entries from the books of the Plaintiff. The Plaintiff did not move for an injunction on the Defendant’s answer; but, on the cause coming on for hearing, it appeared that Clarke had filed another bill in the Rolls Court, and had obtained in that suit an inspection of those books; and therefore the bill was dismissed. But the principle that an agent could not be allowed to communicate the contents of his employer’s books to another person, and that that person could not publish the information so improperly obtained, was directly admitted by the Vice-Chancellor. A person guilty of bribery takes the knowledge he obtains with no better right to use it than the party communicating it; but here there is neither bribery nor fraud.
This case cites:

This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .
  • See Also – Clarke -v- Tipping ([1852] EngR 434 (A), Commonlii, (1852) 16 Beav 12)
    . .

Grove And Another, Assignees of Liotard, A Bankrupt, v Dubois; 31 Jan 1786

References: [1786] EngR 42, (1786) 1 TR 112, (1786) 99 ER 1002
Links: Commonlii
A commission del credere is an absolute engagement to the principal from the broker, and makes him liable in the first instance. A broker with such a commission may set-off, under the general issue, a loss upon a policy happening before a bankruptcy, to an action by the assignees of the bankrupt, for premiums upon various policies under-written by him, and for which he had debited the broker : but such a loss carinot be proved under a riotice of set-off.

Lady Beresford v Driver; 31 Jul 1851

References: [1851] EngR 754, (1851) 14 Beav 387, (1851) 51 ER 335
Links: Commonlii
The defendant, the plaintiff’s ex-land agent was ordered to deliver up documents to former principal relating to her estate and its management
This case is cited by:

  • Cited – Fairstar Heavy Transport Nv -v- Adkins and Another CA (Bailii, [2013] EWCA Civ 886)
    The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .

Callander v Oelrichs And Another; 12 Nov 1838

References: , [1838] EngR 915, (1838) 5 Bing NC 58, (1838) 132 ER 1026
Links: Commonlii
The court considered the extent of a duty of care which might be owed by an agent.
Bosanquet J. said: ‘The jury were warranted in concluding, that if the Defendants were to effect an insurance upon the terms in question, they undertook to give notice in case of failure: that undertaking arises out of the nature of the case, and the relation in which the parties stood to each other: and according to the principle laid down in Smith v. Lascelles if a merchant is led, from previous transactions, to expect that his correspondent will effect an insurance, he has a right to rely on his discharging that duty, unless he receives a letter to the contrary.
Whether that expectation arises from previous dealings, or from an undertaking to insure in the particular instance, can make no difference; and Buller J. says, ‘Where the merchant abroad has no effects in the hands of his correspondent, yet, if the course of dealing between them be such that the one has been used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insurance will be obeyed, unless the latter give him notice to discontinue that course of dealing.”

Fawcett v Whitehouse; 21 Dec 1829

References: (1829) 1 Russ & M 132, [1829] EngR 859, (1829) 1 Russ & My 132, (1829) 39 ER 51
Links: Commonlii
The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant £12,000 for persuading the partnership to accept the lease.
Held: The defendant was accountable to the new partnership for the money. It would otherwise have been a fraud on his partners. An agent, who was negotiating on behalf of a prospective lessee and who accepted a ‘loan’ from the lessor, held the loan on trust for his principal, the lessee.
This case is cited by:

  • Cited – Simms -v- Conlon and Another CA ([2008] 1 WLR 484, Bailii, [2006] EWCA Civ 1749, Times 17-Jan-07, [2007] 3 All ER 802)
    Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
    Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .