1862.

WORTHING

TON

V.

SUDLOW.

if the Board omitted to take any steps to recover this money from the owners, it would not be right to resist the plaintiffs' claim, founded, not on express agreement, but on an implied one. That plainly shews that, on such a contract, there may arise, by implication, some terms or conditions not in the contract itself. Let us therefore see in what position the parties stand. The Board can only contract for these works in their public capacity-as exercising certain powers given to them by the statute 11 & 12 Vict. c. 63., after they shall first have called on the owners of the adjoining property to do the works specified in sect. 69 of that Act; and, if the owners, on such notice being given, fail to do the work, then, and then only, arises the power given by the statute to the Board to do the work themselves, or, what is the same thing, contract with others to do it; and then, if necessary, to enforce payment against the owners. But their whole power arises on the condition precedent of having first called on the owners to do the work. That being so, the Board applies to the plaintiff's to do the work, that is to say in exercise of the power vested in them under sect. 69. Is this not the same as if the contract had stated, "Whereas we are the Local Board of Health &c., and whereas we have, as such, power to call on the owners of certain premises &c. to do certain work; and whereas we have given them the necessary notices, and whereas the owners have not done the work, we now proceed to do it in pursuance of the authority vested in us by sect. 69, &c."? They say to the plaintiffs, Although primâ facie we should be liable to you for this work, we make a stipulation that you shall not call on us for payment until we have had an opportunity to get the money from the owners of the property." It turns

1862.

TON

V.

SUDLOW.

out that, instead of being in a position to make the contract in that form, they had given no notice to the WORTHINGowners, or had given an insufficient notice, which is no notice at all. My brother Wheeler says, the other party should have inquired into the means possessed by the Board of recouping themselves. I do not see that. It is the case of a man representing that he is invested with powers with which he is not invested; and I agree with those cases where it has been decided that the assumed authority under which an agent acts, must, as against him, be taken to exist (a). I cannot help thinking that it would be a grievous injustice, as well as not carrying out the law as now understood, if it were to be a defence to such an action as this that the Board had failed to give the notices necessary to enable them to collect the fund. On the contrary, I think that an action may be maintained by the plaintiffs against the Board, which represented to them that they had power to collect, from the owners of the property in this street, the fund out of which the plaintiffs were to be paid, when in fact the Board had not done what was necessary for that purpose.

CROMPTON J. I am of the same opinion. The most favourable way to put the case for the defendant is that in which it was put by my brother Wheeler,—that the defendants had agreed with the plaintiffs that they should take their chance of the money being collected from the owners. If it were necessary I should like to look more into this point, and see if to make that a condition precedent to payment was within the inten

(a) See Collen v. Wright, in error, 8 E. & B. 647.

1862.

WORTHING

TON
V.

SUDLOW.

tion of the parties, much more if it was necessary that the money should be first collected. But, taking my brother Wheeler to be correct in that construction, I think, with my Lord Chief Justice, that it is more likely that an agreement ought to be implied here, that when the time for collection came the Board should collect. The contract is, not that the plaintiffs shall have power to collect themselves, but that the Board shall pay these specific sums of money. Does not that necessarily infer that they are assuming to be in a position in which they can collect the money? There may indeed be some doubt as to the extent of the supposed implied engagement. It may mean that they have used, and will use, all proper means to collect the money, or it may mean that they are in a position to collect it ultimately: we cannot put it lower than that. If, by their default (I do not mean in the sense of imputing to them anything wrong), they make an engagement with an implied promise that they are in a position to do that which they are not in a position to do, the case becomes like that where a party promises to pay the value found by an arbitrator, and does not appoint an arbitrator, in which case the other party may

recover.

BLACKBURN J. I am of the same opinion. My brother Wheeler argues that this contract was invalid as ultra vires, because, the Board being about to do work for these private streets, the amount of which was chargeable upon the owners under the 69th section of the 11 & 12 Vict. c. 63., it was requisite, as a condition precedent to the validity of this contract with the plaintiffs, that notice be given to these owners; and he put it that, in

asmuch as a sufficient notice was not given, the Board had no power to do the work. I do not inquire if notice was a condition precedent here, for, when a party contracts with a Board under sect. 85, he is not bound to inquire if they have done enough, as between them and their constituents, to make themselves chargeable. It would be monstrous to throw the burden of such an inquiry on the plaintiffs: it is enough for them to say, we know that by the general law the Board could make this contract if they had done their part, and therefore the contract is good enough so far as we are concerned.

Then comes the question, whether on the construction of this contract the plaintiffs can recover. I am not prepared to say that the partics have not made the collection of this money a condition precedent. It would be a provident condition. And I am inclined to think it would be good enough for the Board of Health to say to the contractor, "Look at the value of the property, and if we find that the money received is not equal to what was expected, there shall be no coming on us afterwards." But although I am not prepared to say on this contract that the Board have not made the collecting the money a condition precedent to pay, I hold strongly (with the Judges who have preceded me) that it amounts to an agreement by the Board to do their part towards collecting the money. It is not, however, necessary to go so far as to say that the money must be collected; for instance, the owners may be insolvent, or the property may be destroyed by fire; in such cases, the Board of Health having no control over the money, I am not prepared to say whether the loss would fall on the contractor. But where the words of an instrument shew that its efficiency is to depend on an act to be done by one party, there

1862.

WORTHING

TON

V.

SUDLOW.

1862. WORTHING

TON

v.

is a contract by that party that he will do all that lies in his power to bring about that act, and that if it is not already done it shall be done. In mercantile contracts, SUDLOW. whether under seal or not, the rule is to look to the intention of the parties. Where, for instance, there is a contract to deliver goods free on board ship on the mate's receipt, it is plain that, although not a word is said to that effect, the goods cannot be put on board until the other side has selected and mentioned a ship, and there is therefore an implied contract that that party shall secure a ship and give notice that the goods may be put on board. So, in the very common case where a party makes a contract with a railway Company to supply them with railway chairs and sleepers, although it is not expressly said that the purchaser is to produce the patterns, it is taken as part of the agreement between the parties that he shall do his part. So here, where from the nature of the thing everybody must have understood that the collection of the money depended on the Board of Health taking proper steps, it is part of the agreement that they shall do their part, or have already done it; and consequently, where they have given a notice which turns out to be bad, they have not done that which they undertook to do.

MELLOR J. concurred.

Judgment for the plaintiffs.