F. C. authority or employment as plaintiff's agent to purchase; (iv.) CRIBE V. DWIER. that the defendant did not remove the timber with full knowledge and by leave and license of the plaintiff; (va.) that the term was not omitted from the contract of sale of 10th June, 1908, by the mutual mistake of plaintiff and defendant; but (vb.) it was so omitted by the fraud of Campbell; (vi.) that the defendant did not wrongfully enter upon plaintiff's land between 10th June, 1908, and 30th November, 1908, and cut and remove therefrom timber belonging to the plaintiff. The jury also found that the plaintiff had suffered no damages, and that the value of the timber removed by defendant was £125 168. 4d. Lukin and Macgregor, for appellants: The learned Judge misdirected the jury on the third question. Campbell was agent for both parties. Authority to purchase land does not authorise a purchase with a reservation of the timber thereor. Bowstead on Agency, 4th Ed., p. 85; Rosenbaum v. Belson (1). The omission of the term from the written contract was not in the ordinary course of the employment, and the respondent must be taken to have knowledge of the omission. The respondent has allowed Campbell to perpetrate a fraud on the appellant, and cannot now rely on it. By his indiscretion he enabled the agent to commit a fraud, and must suffer as against the other innocent party. Henderson & Co. v. Williams (2), Jacobs v. Morris (3). The appellant neglected the ordinary precautions of business. Lickbarrow v. Mason (4), Babcock y. Lawson (5), Nash v. De Freville (6), Farquharson Bros. Ltd. v. King & Co. (7). Apart from the question of indiscretion, as it was not within the scope of Campbell's authority to agree that respondent should have an allowance of time for the purpose of removing the timber, and as it was not an act done for the appellant's benefit, his action is not binding on appellant. Ruben v. Great Fingall Consolidated (8). The evidence shows that the respondent knew that the term was being omitted from the agreement, and must be assumed to know the agreement overrode the offer. They also referred (1) [1900] 2 Ch. 267. (2) [1895], 1 Q.B. 521, at pp. 528-9. (5) 1879, 4 Q.B.D. 394. (6) [1900], 2 Q.B. 72, at p. 83. (7) [1902], A.Č. 325. (8) [1904], 2 K.B. 712. to Elliott v. Gilchrist, Watt & Co. (1), and on costs of different issues to Wagstaffe v. Bentley (2). Feez K.C. and Real, for the respondents: The contract was partly written and partly oral. Campbell was acting within the scope of his authority in making it, or, at least, within the apparent scope, and the appellart is bound by his action. Halsbury on Laws of England, Vol. I., pp. 161 and 201; Baker v. Taylor (3), Hambro v. Burnand (4), Lysaght Bros. & Co., Ltd. v. Falk (5). [SHAND J. referred to May v. Platt (6).] If Campbell had no authority, the appellant must accept or reject the contract in toto. Welch v. Hancock (7). It was a term of the contract that respondent had the right to remove timber for four months. The agreement re the timber was a collateral agreement. Halsbury on Laws of England, Vol. VII., p. 528; Erskine v. Adeane (8), Keith v. McEdward (9). The appellant is estopped from denying the contract. New Brunswick and Canada Railway Co. v. Conybeare (10), Homeward Bound Gold Mining Co. v. Macpherson (11), Jervis v. Berridge (12), Barwick v. English Joint Stock Bank (13), Udell v. Atherton (14), Wake v. Harrop (15). The respondents are allowed to show the true consideration for the contract. Clifford v. Turrell (16), Bayspoole v. Collins (17), Frith v. Frith (18). They also referred to May v. Platt (19), Refuge Assurance Co. Ltd. v. Kettlewell (20), Thompson v. Hickman (21), Rimmer v. Webster (22). Macgregor, in reply. C.A.V. COOPER C.J. The judgment I am about to read was written by my brother Shand, and is the judgment of the Court. (His Honour then read the facts, which appear on pp. 243 to 246, and (1) 1888, 3 Q.L.J. 93. (2) [1902], 1 K.B. 124. (3) 1906, 6 St. R. N.S. W. 500. (4) [1903], 2 K.B. 399. (5) 1905, 2 C.L.R. 421. (6) [1900], 1 Ch. 616. (7) 1907, 7 St. R. N.S.W. 404. (8) 1873, L.R. 8 Ch. 756. (9) 1895, 16 N.S.W.L.R. 182. (10) 1865, 9 H L.C. 711. (11) 1895, 17 N.S.W.L.R. Eq. 281. (12) 1873, L.R. 8 Ch. 351. (13) 1867, L.R. 2 Ex. 259, at p. 265. (14) 1861, 7 H. & N. 172. (15) 1861, 6 H. & N. 768. (16) 1841, 1 Y. & C Ch. 138. (17) 1871, L.R. 6 Ch. 228. (18) [1906], A.C. 254. (22) [1902], 2 Ch. 163 at p. 169. F. C. CRIBB v. DWYER.' Cooper C.J. F. C. CRIBB V. DWYER. Cooper C.J. continued) :-In answer to the questions left to them by the learned Judge, the jury found, amongst other things, -In answer to Question 2-That it was a term of the contract of purchase, and agreed to by Campbell, that the respondent should for four months from the completion of the contract have the right to fell, cut, and carry away any timber then growing or lying on the land. In answer to Question 3-That the agreement to this term by Campbell was within the scope of his authority, as the appellant's agent to purchase the property. And in answer to Question 56.-That this term of the contract was omitted therefrom by the fraud of Campbell. The appellant, by his notice of appeal, attacks these findings as unsupported by the evidence, and also attacks the consequential findings to the effect that the respondent's removal of the timber was not wrongful, and that no damages are recoverable. And he further alleges that the learned Judge misdirected the jury by not directing them that Question 3, answered by them in the affirmative, could only be answered in the negative. On these grounds the appellant asks that a new trial may be granted, or that judgment may be entered for the appellant for £125 16s. 4d., being the sum found by the jury to be the value of the timber removed by the respondent. The learned Judge gave judgment for the respondent, and ordered the sum of £140 6s. 9d., being the sum paid into Court, with a denial of liability, to be paid out of Court to the respondent, together with the accrued interest thereon. 66 As the jury, in answer to another question left to them, found that the appellant did not know that it was agreed between the respondent and Campbell that the respondent was to have four months within which to remove the timber, it is obvious that the word contract in their answer to Question 2 must have been used by them to describe the agreement actually made between Campbell and the respondent. But in that case it is equally obvious that the same word in their answer to Question 56. must have been used to describe the document (Exhibit 1) which was signed by the respondent and Campbell. The jury, in fact, whilst apparently believing the appellant's evidence that he was ignorant of the term relating to the timber, and never assented to it personally, appear to have also believed the respondent's evidence that he made a written offer to sell the property for £1 17s. per acre, with the right to remove the timber during a period of four months; that Campbell fraudulently stated that this offer had been shown to the appellant and accepted by him; and that Campbell thereby induced the respondent to sign Exhibit 1 without insisting upon having the term relating to the timber set out in writing there. The jury's right to come to these conclusions cannot, I think, be questioned. There is ample evidence to support them; and they are, I think, the conclusions to be deduced from their answer to Questions 2 and 56., which the appellant is seeking to set aside. But construing these answers as I have construed them, the appellant's counsel probably would not quarrel with them. The answer which they are really attacking is the answer to Question 3 -that the agreement by Campbell to the term of the contract relating to the right to remove timber was within the scope of his authority as the appellant's agent to purchase the land. They contended that there was no evidence to support this finding; and in that case they argued that the respondent, having reduced the contract into writing by signing Exhibit 1, cannot vary it by introducing a term to which the appellant never gave his consent, and which was only stated to be a term of the contract by a person who, as the respondent must be taken to have known, had no authority to make a contract embodying that term. They argued further that, although the respondent may have been induced to sign Exhibit 1 by Campbell's fraudulent statement, the appellant cannot be made responsible for Campbell's fraud in this respect; and they invoked the well-known principle of law that when one of two innocent people must suffer for the fraud of a third person, he shall suffer who, by his indiscretion, enabled such third person to commit the fraud. The appellant, they urged, was an innocent person, and justified in assuming that Exhibit 1 contained the whole of the contract. Now that he has been put in possession of the property by the respondent, and has incurred expenses in subdividing and reselling portions of it, he cannot be asked to renounce his contract of purchase, F. C. CRIBB v. DWYER. Cooper C.J. F. C. CRIBB v. DWYER. and at the same time cannot fairly be asked to give up to the respondent a portion of the property (the timber), which he intended to purchase, and which the respondent led him to suppose he was purchasing with the land for £1 17s. per acre. The respondent, they urged, on the other hand, was not equally innocent, but was at least guilty of indiscretion in trusting to Campbell's statement, and in signing Exhibit 1 in the form in which he did sign it, and parting with the property without first ascertaining that Campbell's statement was true. The chief conflict therefore seems to be as to the scope of Campbell's authority. Counsel for the appellant contended, amongst other things, that Campbell really acted as agent for both parties. There is no finding of the jury to this effect; nor am I able to discover any evidence which could support such a finding. It is true the respondent agreed to pay, and did in fact pay, to Campbell a substantial commission; apparently as remuneration for bringing the respondent's property to the appellant's notice. It is true that Campbell not only signed Exhibit 1 as agent for the appellant, but in that document also signed his name, together with the words, "Auctioneer and Commission Agent," above the respondent's signature; and it appears from the respondent's evidence that at the interview, when Exhibit 1 was signed, Campbell asserted that he was acting for both parties. But I am unable to regard any of these circumstances as furnishing any evidence that Campbell was, in fact, the respondent's agent for any purpose whatever. Having got the respondent to consent to give him a commission, if the sale was completed, he seems to me to have been troubled by a not unnatural misgiving that he had no real right to receive it, and in signing Exhibit 1 as " Auctioneer and Commission Agent" above the respondent's signature, and in claiming to occupy the position of agent for both parties, he seems to me to have been trying to give some colour to the fiction that he really did occupy some position which justified him in accepting a commission from the respondent. Returning to the question which seems to me to be the crux of the case the question whether the jury's finding with reference to the scope of Campbell's authority as agent for the appellant |