CUNEEN V. SHAW 6/1931

rE Ei shoe ke od

parece

80" Tuly {94}

CUNNEEN V__ SHAW. Grrvare bufly oF)

The existence of the agreement alleged in the first count was negativea by the verdict of the Jury, and Mr Loxton's main aggument has centred around the facts of the case in their rela tion to the second count of the declaration,

Construing the second count most favourably to the appellant, it alleges' an agreement to employ the respondent as solicitor for two purposes, first, to perfect the title of Watts, the purchaser, so ag to carry out the obligations imposed on the @pellant by the ontrect of the 12th February 1923 and/or the conveyance of 19th March 1923; and, socondly, to protect the appellant against the making of my claims

by Watts for damages for. breach of warranty or fraudulent misrepresen~

tation,

In my opinion the first of these two contractua} obligations must be taken to have been substantially performed by the respondent in November 1928, when he convefed the pustanding interest ta Watts.

nd we must take the Jury's verdict as affirming that the alleged

Lapreement to carry out the second obligation, was not made, 2

2.

This last answer is sought to be met by the gontention that the respondent was guilty of a breach of his duty as solicitor to the ap~ pellant when, in November 1928, he did not fully protect the latter from all claims based on fraud or breach of warranty.

But this is an allegation of negligence; and it was not relied upon in the pleadings or particulars or mentioned at the trial. When a juryman made an observation, not ohscurely suggesting liability in negligence, the learned trial Judge pointed out very emphatically tnat this question was not raised. No objection was taken to his doing so, This is not surprising because liability for negligence is not absohute but relative to changing circumstances; and the field of admissible evidence would have been greatly altered if negligence had bem pleaded.