Taylor v Smith [1926] HCA 16

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48 HIGH COURT [1926.

{HIGH COURT OF AUSTRALIA.}

TAYLOR 3 . é 4 ' ' 2 . APPELLANT; PLAINTIFF, AND SMITH . ' 3 % : . : . Responpent. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

H. 0. or A. Principal and Agent—Authority to sell land for net sum—Right to retain excess over

1926. that sum—Authority in writing to sell for certain sum and to retain excess

em —Signature obtained by misrepresentation—Principal not able to read without

Metsourne, — glasses—Non est factum—Action for money had and received—Money paid May 19, 20, away by solicitor under mistake of fact—Recovery from payee—Ratification.

21; June 10.

An authority to an agent to sell property for a certain sum net does not,

1500x033... in the event of a sale being effected for a larger sum, entitle the agent to retain

nee any sum in excess of the amount of his commission calculated on the usual scale.

Where money is, without the authority of the principal, paid by his agent to a third party under a mistake of fact, the money may be recovered by the principal from the third party in an action for money had and received.

Holt v. Ely, (1853) 1 El. & Bl. 795, followed.

The respondent, who owned a certain property, signed a document in which it was stated that he gave to the appellant the sole offer of the property for a certain sum and that he agreed to allow to the appellant as bonus or commission any excess over that sum which might be obtained by the appellant from the purchaser, At the time of signing the respondent had not his reading glasses, without which he was unable to read, and he was induced to sign it by the representation that it was a mere authority to sell.

Held, that the respondent was not bound by the document.

A sum of money having, without the respondent's authority, been paid by the respondent's solicitor to the appellant under the erroneous belief that the respondent had agreed to pay it to the appellant,