Petersen v Moloney [1951] HCA 57

High Court of Australia Dixon, Fullagar and Kitto JJ. Petersen v Moloney [1951] HCA 57

ORDER Appeal allowed with costs. Wholly discharge judgment of Walker J. In lieu thereof adjudge that the plaintiff do recover from the defendant Thomas Francis Moloney the sum of £700 with costs and that the plaintiff do recover nothing from the second named defendant James Arthur Pulbrook. No order as to the costs of the respondent defendant Pulbrook in this Court or in the Supreme Court.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 16 Dixon, Fullagar and Kitto JJ.

This is an appeal from a judgment of Walker J. in an action in which the plaintiff-appellant sued the two respondent-defendants in the alternative. The plaintiff sold and transferred to the defendant Moloney a house and certain furniture and other chattels for a total price of £700. The defendant Pulbrook acted as agent in the transaction, and Moloney paid to Pulbrook the full price of £700. Pulbrook did not pay any part of that sum to the plaintiff. The plaintiff accordingly sued Moloney for the price of the property sold and transferred, and in the alternative claimed as against Pulbrook for money received by him on her account. Pulbrook is now a bankrupt and (as we were informed by counsel) undergoing a term of imprisonment for forgery. Walker J. gave judgment for the plaintiff as against Pulbrook, and for Moloney as against the plaintiff. The plaintiff appeals, claiming that she is entitled to judgment against Moloney.

The case is one of an unfortunately familiar type, in which (prima facie at least) one of two parties must, of necessity, suffer hardship. It is necessary to consider the evidence in some detail, but it is desirable to begin by looking at the pleadings.

The defence of the defendant Moloney was, in substance, a plea of payment. It alleged that he purchased the plaintiff's house and its contents through a duly authorized agent of the plaintiff, namely Pulbrook. And it alleged that on 28th March 1949 he paid the sum claimed to Pulbrook as the agent of the plaintiff and for and on account of the plaintiff. The plaintiff required particulars of the alleged authority of Pulbrook to receive the money, and the particulars given stated that the authority was given orally and was an authority to sell the plaintiff's house and contents for the sum of £700 and to apply the sum of £700 towards the purchase by the plaintiff of another property at Bayswater from a Mrs. Tucker, for whom also Pulbrook acted as agent. The defence of Pulbrook admitted that he received the sum of £700 from Moloney as agent for the plaintiff, and alleged that he had, with the authority and at the direction of the plaintiff, paid that sum to Mrs. Tucker. Particulars of authority to receive the money were given in terms identical with those given by Moloney. The plaintiff, in her reply to each defence, joined issue on the allegations contained in it.