COURT OF APPEAL.

Dominion, Volume 3, Issue 796, 20 April 1910, Page 7

COURT OF APPEAL.

NEGLIGENCE OF LEGAL FIRM, ' . THEIR CASE FAELS. ■■ 111 the Wanganui appeal of James iPaton Watt and Louis Cohen, (nejg and solicitors, of Wapgwini, v. Aubrey James Willis, farpier of Wangainnv heard,pp April '4, judgment was t]eSlivered .yesterday by the. Chief Justice i |(Sr .Stout), Mr. Justice Williams, | ! and. Mr. J.nstice Chapman.--At the hearing "of the appfial, Mr. i MaHin Chapman, K.C., with' him Mr. 0.-A. Atkinson, appeared fpr the appellant firm of solicitors, and Mr. George "Sntehison, of Wanganui, fpr the re'spondent, Willis. , The appeal was in regard to a jndgr meet of Mr. Justice Edwards, delivered 'in a case on appeal from the decision of . the' magistrate at Wanganui.' The cas» feefore the magistrate, Mr. William Kerr, '• 1 S-IC/ was an action oii a bill of costs, teres M fe. 9d„ for prpfes--4pia}senrj<!Gß rendered; counter-claim pnt jfprvird by Wife etpfced tjiat in rrOctoSer, Mi, ho employed Messr?, Watt agd: Cohen to act for him in preparing , ' ''Kasg land, pn the left |)an)£ pf the •Wanganni Elver, from Jlarry Conner to i . himself (Willis). He, not knowing that Cowper' .was himself a lessee, or that the.lease drawn up by Jtlessrs. Watt and ~ . Ojhen was an under-lease, entered into »Ji:&iMjnsirt >kh ?ho""StepK<!n Milder for;ths sale, pf the goodwill of the lease. When refused to complete the djitract Messr?. Wijtt aiji Cohen advised that he had, a . good cause' of action afainst,. Milngr. Willis, thereupon proceeded ip. the Supreme Coijri for specific performance, and at the trial it was discjpssdjthat (ftp Jppsp'hiild b7 WiUis wa§ M»?-upi}gHeass, Jcdgment w ftfJlS. Sow given/ againgt WjHjs, with costs- ,' When isfil.fiTn? sn§d Willi? for pay? ment. of/ the biU fl.f cptts, he counter? elausfd £$ for daPWß<3' su(ferfid, a§ he ajlegod, thrwjg)} the negligence of Jus colicitors. Tfca magistrate fcgld tjjat Mr/ Watt was piijtj ot .acHpnanlp hegljgs?c§, and gave judpißpt ' for Willis against the legal fifpTfor costs, disallowing:; the item of <£56. . When the matter was brought before Mr;' Justice Edwards ' on -appeal, his Honour-said the mora snilfnJ and better ' njethpd ■of preparing $. sub-lease 1 was, - ip his ppinipn; reifer in; distinct' terms to the headlease. It .vag, howeyar, a very i common i practice psfc tg dp ; pp. The' magistrate had held that the result of this , park ■ nership relation between Mr. v Watt and Mr-Cphog wf*s.that the wjiole knpvdpdge o_f \each partner with respect ito projfes-, - sjonal ,work done by either partner bnbshalf . of the partnership fnust be -impntid to the so that in'this case Mr. Cohen (who was in charge of the copjmpp law branch of the firm's business)must be, deemed to have known that the leasfe referred to.in the contract between Willis'and Milner was a vmb-lease, and Mr. Watt (who hafl con-, Irpl pf the conveyancing department), inust'be deemed to have kjiewn'the pa-

tufe',:arid form of the, contract, and ■i that V Mr. Cohen was instituting a . sTjit • for. enforcing; specific, perfprniance pf. the contract. JJp authority had been BJiadfertlis proposition,, and his Honour was, quite satisfied that it was erroneous. There could be 'no dpnbt/ however, in ppjnjon,.thaf: experienced counsel; if asked to'advise as to-ihe in-. stitutiO'n.' of /the action" against; Milher . upon "V case which di'sptosed 'only such fa6ts'is. were'in Mr." Cohen's possession, would, either have called for further,information,. or would have., drawn attention ,-; to'. the., fact.. that .the plaintiff ■in finch- an. action could not' succeed unless he;;could establish 'a good title. - If a .". solicitor■ proceeded,; ' after: suph^aji. ? jnti-. ■'-■: mation,'without inquiry into. his..clients .wqiiltiiin.Bis'.Hpgour's 'opinion, . ho'Jguilcy of,actionable:;negligence,.i.:His, Honour considered that, as Mr. Cohen '•' had acted both as solicitor and' counsel in;the.action against Milner;'he failed to gjyp his .(.he benefit: pf suqh skill '■. andicarp as'Willis was!.entitled tp re« eoiye.from him' v ' and".that Willis's Tpss waf'attributable entirely to such failure. The./appeaK'was" "dismissed, with', ten guineas-costs,;. : -"".'-' ~•■'". Iff^the,'course .pf. : .Ws judgment, the .Cnief-.;Justice said that the short .question' involved in ' the' case' was 'as follows:; Were; Messrs: , Watt and' Cohen guilty of negligence in the conduct of d suit in the Supreme Court?' There was npthing on . the; face of the-under-lease '• frbm'Cowper to' show that it was an '.'• the under-lessee, Willis, djd, hpt/.appear to.'have'.khown that it 'Was ; ..an-:under or sub-lease,.' In the suit for: apeqjfic perfPrmftiice, '■ ne question had " . beenf raised .that- Milnorlcnew : that it was,.;an,, under.-lease. v: .If had been' assumed, ■;■. apparently, 'or-..proved, thatvhe . did •BotK-knew Willis's title,, and relied .'.'■ »n.at.-being'/a. lease': ■ If .this had been a case in which a plaintiff had'eome te a'solicitor, knowing thai: he had only and produced a docur roent which purported to; be a lease and not-;ah .under-lease, and.'advised' him to commence. proceedings,., his .'Honour doubted if the solicitor who had compliedlwitb hipfreqiiesi would have, been guilty of negligence, though there was a duty on a solicitor to advise his client :. ?f,' t°-• enter intp ■.'litigation that must ™, J -,V, 'If, however, in v this. ,-. case, the;..,;,lease , misled. ■ Messrs.. Watt and Cohen, it was. a lease prepared bv theniSfttf?j ",W' 'here' was "no evident that SSiS.'fe- that if was 'a n under-lease. Willis .-did not 'seem to. have made any to his solicitprslrto Z ntle.-Jind this : lease, if if cpuld be • deemed., a representation that if'was -a &£'s F*i* 'sMm< *as, as his Honour had. already remarked, one proSi by and in a form'not . nsjiaUy. adopted, in .uiideNeases...' An action for specific performance could not ff^ i( h ? vendor hod not a lease but had only an under-lease. This had been decided m the suit, 'and could not Incontroverted. " That being so, ■if a mitor left everything to' hjs solicitor, -must: not a. prudenf.spHpitOT see thai .he ;suitor had, a legal. status entitling kim ,to..recover? He was. not bound to guarantee success in a suit.' He "might bif wrong.in.his Jaw, and for'that he' would be liable, tut if: ha ad-yiaed-without taking the trouble to make inquiries, he acted as no prudent and skilful solicitor would not, and he was .guilty, of negligence.. : This: was -really -such a. case. His Honour was-eatiefied that;thfl grounds upon which Mr. Justice ildwards- had, based his judgment wore good, ; and, in Jus ppinion, the appeal must be dismissed, Justice Williamsand Mr. Justice Chapman concurred in tk opinion that , VVt!ll9 rflnst succeed, ,Tha,appeal; waa, therefore,' dismissed .With costs.on the lowest seaje, as from > « distance..'