{ ie COLE Oe APO Tey red | FE ALP PO Budguent. McCRAY La v__ MALLICK. Knox C.J. The respondent hired a boring plant from the appellant for a period of 6 months from the 15th May the hire of the plant during that pericd, 1g2h respondent continued to use the plant having been made as to payment for its use pellant sued for money payable for hire of enber 1924 relyang on an implied agreenent 1924, and paid £250 for After the 15th November without any yekoon dete enent after that date. The op the plant after the 15th Nov- i to pay for its use. The res- pondent resisted this claim mainly on the ground that cne Miller who was alleged to be the authorized agent of that if the bore were not finished by the the appellant had promised 15th November the respondent ale should have the use of the pHant free of charge after that date until a 2, : oo i the bore was finished, The jury returned a verdict for the appellant for £64-5-9. On al by the present respondent to the Full Court of the Supreme Court the verdict wae set aside and judgnent enteredn fer the respondent on the ground that there vas no evidence to support * cf Fa frp the finding. From this order this app sl is brought by special leave. In my opinion the ap, eal should be allowed. It is clear from the verdict that the jury took the view either that the promised alleg to have deen given by Millar was not in fact given or that Millar had no authority from the appellant to give such 4 promiee, It was clearly open to the jury on the evidence to take either view and it would not be surprising if they regarded the document put forward in support ofthis part of the case with soné suspicion. This line of 3° defonce failing, the position was that the respondent had paid £250 for the use of the pant from the 15th May 192 till the 15th Noveu- ber 1924 and that he continued to use the plant after the expiration of thet pericd without any express agreement for the payment of the _ use of it. During the hiring period a form of ngreexent in writing embodying the terms of the hiring was submitted by the appellant te the respondent for signature by him. The respondent did net figa/ this form of agreement but on the 12th August 1924 sent to the appel- lant an agreexent signed by him in terms different from the form which he had been asked to sign. This agreement,which was never accepted by the appellant, pro- vided that the rentlal of £250 was to cover the use of the plant, from 4, the 15th Way till the 15th of November and that after munditinx com pletion of the term the plant was to be properly stacked and remain on the respondenté* stetion until required by the ellant, On the 13th August 1924 the appellant's solicitors wrote to the respondent's solicitora a letter the relevant portions of which are a6 follows:- "Yesterday s form of agreenent, different substantially from that which was forwarded to your client, was received by post by the Company which bears your elient's signature and is dsted 15th May. . oe . . We observed that the agreeuent is for 6 months certain and makes no provisicn, as was done in the agreement prepared by us, for ks rent in the event of the hirer requiring the use of the plant after the expiration of the fixed period of hire. It must, therefore, be distinctly understood that on the expireticm of the hire period on 15th November next, your client must discontinue the use of the plant and properly stack it and allow it to: remain at the site on the station until the Company requiresit. Tt wust alse be understood that, on the expiration cf the hire pericd, our clients are at liberty te remove it from the This was, ,» dche intention- p PB B eB c e° i be Ga a °& fas = @ rothst your client is seeking by this usans ca ° different to that ;revicusly reed to, and in this wey to cbtain on unfair advantage. The watter is one which seeus to us to be capable of easy solution, but cur clients ere not inclined / to any terms which your client may sesk to impose. " On the 5th Septouber log the respondents solicitcrs wrote sellant's solicitcrs a lettsr containing the following pessage vig:- " Referring to your letter of 13th ultimo Mr Mallick is at present 6. s he returns we will havo the watter attended soon Millar on the matter who informs us that at the expiration of the $ months the » be at his sole disyosal + manag roving Co.Ld. and that @vercll McCray Ha, witli ging director of % e any sisunderstanding , cuout it. Tith An going order." 'It will be observed that this letter shows, £ 5 . ; ehfs solicitors were in cowwunication with Millar and had comuunieated te above men respondent the contents of the letter of the 13th of Aug tioned, and, this teing so, the omission to mention the decuwent dated 1. 6th March 1924 produced at the trial, whieh contained the alleged pro- mise by Millar to which I have referred,called for some explanation. In the a of any explanaticn and having regard to the contents cf the letter of 5th September I think the jury was amply justified in refusing to give effect to the contention based on the alleged promise made by Miliar. On ths 7th October. respondent's solicitors wrote to ap- pellant's sclicitors asking who was entitled to thé boring plant "at the expiration of the present lease." This letter does not appear to have been enswered and nothing further occurred betwea: the parties until after the 15th of Noveuber. On the 19th November the appellant having gone into 'i . &. liquidation the liquidator's solicitorgmade q@ demand in writing on his behalf for delivery of the boring plant. This docuuent so far es relevant is in the words following vig:-"We are instructed by the Li- quidator to now require your client to deliver up possessicn of the Bering Plant as set forth in the inventory forming part of the Hiring ent of 15th May 1924, and to state when it whll be convenient for the Liquidator to take possession. Ws are further inatructed that if your client desires to extend the period of hiring ths Liquidator is willing to do so on con- ditions to be appreved by hin. In the event of your client using the plant or any portion thereof after the date of this letter the Liquid- ator must necess4rily hold your client liable therefcr, & for the rent thereof. n ' These being the ciramstances I find myself unable tc agree with the learned Chief Justice of New South Weles that there was no evid- ence on which the jury could find an. implied promise to pay for the use in wy opinion it respondent had failéd te prove the e wuld haveyuse of the plant after @llegsd promise by Millar that he evewber without payment. In coming to this conclusion the jury may havs been influenced by the opinion they had formed as to the credibility of the respondent and his witnesses, but however this may be I think thet without having the advantage of sesing the witnesses I should on the evidence have arrived at the same con- clusion, Onse this conclusion was reached the correspondence and the conduct of the patties in my opinion afforded sufficient evidence ai the verdict # OVERALL McCRAY LIMITS. v MALLICK. JUDSMENT. see MR_JUSTICR ISAACS. QVERALL MoCRAY LIMITED. v MALLICK. JUDGMENT. eee ISAACS J. The appellant company sued the respondent for £105 for the use of a boring plant with the appellants permission. The plant was not the appellants general property,tut by arrangement with the owner, the Martin Boring Company Limited - which was indebted to the appellantf - the latter was given the right of seliing or hiring the plant on a commission of 10%, In the circumstances of the case the authspity was &@ right because it was in the nature of @ power, coupled with an interest. That it was so regarded is shewn by the fact that without any objection the appellant company hired the plant to the respondent in its own name for six months, and when the cheque for £250 was handed to Millar, the owner's manager, he handed it over to the appel- -lants. After the expiration of that six months -namely 15 November 1924- the respondent wong on using the plant, and this action is brought for the value of that use for seven weeks. 'The question is whether there is any evidence on which the jury could reasonably find a verdict in the appellants favour. It is said there is not,because long before the expiration of the admitted hiring, that is as early as 6 March 1924,Millar, the owner's manager, agreed in writing with the respondent that the latter ---------------- ner r rrr at the end of six months of hiring,, if the bore on the respond } -dents station were not finished, should have the use of the plant ue free until the bore was finished. Thatyis said,negatives any notion of an implied agreement by the respondent to pay for the use of the now plant after the six months. There is in the letter as it/stands a postscript after the signature of Millar, and in these terms:- easing "You can take the second hand zxmm and we will not charge "for same. This casing is at Polly Brewan Boring Site. "D.Millar." The postscript bears evidence ex facie of its having been written later. The letter itself bears date the day the cheque for hiring 2250 was given. i1t was intended between the parties to this action to have their agreement for the six months reduced to writings As they 41a not agree on the terms to be inserted no written agreement wes signed. But by @ document dated 15 May 1924 -that is two months after the date of the Millar letter - the respondent, obviously by his solicitors, sent to the appellant for its execution a proposed agreement already signed by him. There are two important clauses in that document. The 4th says that "any material broken damaged or "not returned to be paid for at the prices mentioned in the Schedule ~ "attached hereto". The Schedule does Wr nontion prices, but the in- -tention of the clause bs clear. The 5th clause says:- "After com- "pletion of the said hiring term the complete plant to be properly "stacked and remain at Bore Site on Polly Brewan Station free of 811 *oharges until required by the said owner", x ¥ Those two clauses are on the face of them inconsistent with the terms of the letter of 6th March. The dooument,bearing date 15 May 1924, waa however not forwarded until sth August, the agreement being intended to maxa operate retrospectively, that is until 15 November 1924. On 13th 19th August, the appellants solicitors wrote with reference to itm, agreeing to that retrospection, and adding:- "it must therefore be "distinetly understood that on the expiration of the hire period on "15 November next, yaar your client mast discontinue the use of the . at the Site on the, Station "plant and properly stack it and allow ee ee ny "requires ath. It myst also be understoed that on the expiration of "the hire period,our clients are at liberty to remove it from the "Site". On 5 September 1924, the respondents solicitors replied saying"that the respondent was absent, and that they had seen Millar "who stated that at the expiration of the six months the pres plant mwould be at his disposal as manager of the Martin Company, and that "the appellant company would have no further interest in it,but that wany further arrangement must. be made by Mallick with Millar". Receiving no answer to this,the respondents solicitors again wrote asking "who is entitled to the boring plant in question at the ex- "-piration of the présent lease". This letter also was silent as to any such arrangement as is now relied on. The Martin Company went into liquidation, and further correspondence took place,none mentioning that arrangement. lt was sprung into notice at the trial, Millar was not called as a witness. Apart from any question of law as to the effect of the letter dated 6th March,not brought to the notice of the appellant,it was in my opinion well within the rights of the jury, as men of the world to refuse to place any reliance on Lt or on any arrangement 1t purported to record. futting that letter aside the way was open for the jury to conclude that the respondent retained and used the property on the understanding that he was doing 80,not as @ trespasser, but by permission and on such terms 4s they thought reasonable, that is on an implied contract to pay ® reasonable sum for the use actually enjoyed, -----~-------------.------------------ The relevant law 4s stated by Bowen L.J. in Phillips v_Homfray (24 Ch.D.et.pp 461-462). puts the position quite cleerly. On the one hand the respondent was under a well understood and cer- ~-tainly an implied obligation to returm the plant to his lessors at the end of the term. Even if he had asoumed to treat the Mariin Com- -pany 4s the rightful person to whom rent was payable he would have '$eeai difficulty in denying the appellants right. See Fisher v Marsh (6 B & S.p.411). Having regard to the proved relations between the two companies 1 think such an attempt would probably Bbeve failed. But he did not adopt that attitude. He denied liability to anyone and rested.on a prior arrangement which the fary ae unreasonably disre- -garded. There is then a kakkixy holding and user by permission, under circumstances that primarily imply a fair recompense to the appeld -lants, without any other circumstances that negative the implication. In my opinion therefore the appeal should be allowed. t Lk owe \ | OVERALL MoORAY LIMITED Y. —-MALLIOK. Sudamens. Baggine J. Econgur in the opinion that thie arpeal mat de allowed. I SmMognize tao foros of the reasonsgiven by the Onief Juatioe of the Supreae Ovurt, againat the verdiet of tho jure But,e® the learned Judge, Points out, the question te not what the Court would find, mt "meotnor there is any evidence frum waioh an inference could be drawa by reasonable men that the defendant retained the plant after tae 15th November on tire, dup Lied promiee that ke would bay the Pladntifé company for ite ueol "Ae usuak, the diffioulty ie with the minor preiesshe E think thera 48 evidonee on whieh the jury, a6 reasonable men, Gould find euch an implied promise, Fovinstange, the company having sent a form i of agreement to be signed by the defendant, containing a provision for @ zontal of £250 forthe first six montha, and fo7él5 porwoek until the Hlant should be returned, the defendant cojetted this form, and sent one of his own which contained (01.5) this provision:~ "after dompletion of the valid hiring tecm the oomploto plant to & 'ye erly atgskod and remain at Bore site on Polly-brewan station : free of gl ohgrges unti) required by the sald omer", This, tho | defendant's form, wae expressed a8 made between the Plaintifl comPany and tho defendant; andit—impiies - not between the Wartin bering domany } and the defendant ~ yivat the plant waa to be free from rent ont "te SS erent et tre fient not-being-uset. It de oxtraordinary that the defer { dent does not in thie form of agreement, or in his selicitor's letter of j Sth Saptemvor 1924,refer in any way to the promise of the Martin Boring Hl Gomany (6ta Harahzoas) ~ "should your bore not be finished at the ond of aix months from beginning of hire from Overall U®ray Ltde,xe tha ! owners of tha said plant will allow you to finish the bore without any extra cost'. It was for the jury to believe orAisbolicvs and to draw legitimate inferences; it iy not the fungtion of the Oourt to set aside the jury's verdict under the @irounstandes.