Day 190 - 23 Nov 95 - Page 19
1 account of the price of the works, until after
2 the completion of the same. The contractors
3 applied to the plaintiffs for an advance upon
4 the security of retention moneys under the
5 contract. The defendants' secretary, in answer
6 to inquiries made by the plaintiffs, erroneously
7 represented to them that there was a certain
8 amount of retention money in the defendants'
9 hands which would be payable after the
10 completion of the works, whereas in fact it was
11 not so. The plaintiffs thereupon advanced money
12 to the contractors on the security of an
13 assignment of the retention money. There was no
14 evidence to shew that the secretary had
15 authority to make the representations which he
16 had made.
17 Held, that it was not within the scope of a
18 secretary's authority to make such
19 representations, and, therefore, in an action by
20 the plaintiffs as assignees of the retention
21 money, the defendants were not estopped from
22 denying that such money was due."
23
24 My Lord, the judgments (which are again quite short) start
25 at page 817, with the judgment of Lord Esher M.R..
26
27 "The question in this case is whether, upon the
28 mere fact that the person making these
29 representations..."
30
31 MR. MORRIS: Sorry, I cannot find it.
32
33 MR. RAMPTON: 817, top right-hand corner; it is two pages on
34 from the one we were looking at.
35
36 "The question in this case is whether, upon the
37 mere fact that the person making these
38 representations was the secretary of the
39 company, and, in the absence of evidence of any
40 express authority or of any course of business
41 from which authority might be inferred, we ought
42 to hold that the secretary was a person upon
43 whose statements the plaintiffs were entitled to
44 rely as having authority thereby to bind the
45 defendants. I am content to give my judgment in
46 the same terms as I employed in
47 Newlands v. National Employers' Association.
48 A secretary is a mere servant; his position is
49 that he is to do what he is told, and no person
50 can assume that he has any authority to
51 represent anything at all; nor can any one
52 assume that statements made by him are
53 necessarily to be accepted as trustworthy
54 without further inquiry, any more than in the
55 case of a merchant it can be assumed that one
56 who is only a clerk has authority to make
57 representations to induce persons to enter into
58 contracts. For these reasons I think the appeal
59 must be dismissed."
60
