CHUBB J. declined to make this request, as a Judge's notes are not evidence, except when specifically so declared, and they are not so declared in a case of this nature. He decided that the defendant must call witnesses. Evidence was then given by the defendant. In addition to the evidence referred to in the judgment of Cox v. Mosman and Isles, Love & Co. (1), evidence was given that the plaintiff had not offered to return the horse to the defendant; that he had leased, trained, and attempted to sell the horse, and still had possession of him. The plaintiff gave evidence explaining these actions, saying that it was necessary to care for the horse, and keep him in good condition; that the lease was a saving of expense; that any share of his winnings would have been appropriated in reduction of damages; that he offered to return the horse to Mosman, who refused to accept him; that he did not offer to return to the defendant, owing to the defendant's assertion that he was acting as agent for Mosman. Woolcock and Wassell, for the plaintiff: There was not ratification by Bell, and no express ratification by plaintiff. There was no implied ratification. The dealings with the horse were intended merely to lessen the expenses of maintenance. Acts done to minimise loss do not constitute ratification. Mechem on Agency, p. 173. The onus of proving unequivocal acts of adoption has not been discharged. Fitzgerald v. Dressler (2), Paley on Principal and Agent, p. 28; Marsh v. Joseph (3), Cornwal v. Wilson (4), Mainwaring v. Brandon (5), Cassaboglou v. Gibb (6), Freeman v. Baker (7), Devaux v. Conolly (8). No clear adoptive acts are shown which are capable of referring only to ratification. Cox was incapable of ratifying in law, as the contract was not made in his name or on his behalf. Keighley, Maxted & Co. V. Durant (9), Howard Smith & Co. v. Varawa (10), Watson v. Swann (11). The form of pleadings affords no evidence of ratification. The claims are alternative, and in one, at least, repudiation is (1) 1909, St. R. Qd. 45. (3) [1897] 1 Ch. 213. (5) 1818, 2 Moo. 125. (6) 1882, 11 Q.B.D. 797. F (7) 1833, 5 C. & P. 475. F. C. Cox v. ISLES, LOVE & Co. F, C. Cox v. ISLES, Chubb J. relied upon. The cases where allegations in pleadings established ratification were before the Judicature Act and do not apply now that alternative pleading is allowed. Evans on Principal and Agent, 2nd Ed. p. 79. O. III., r. 5. The plaintiff had not full knowledge of all material circumstances. Macleod and Graham, for the defendants: There may be ratification by mere acquiescence without acts of adoption. The Court will lean in favour of the agent where evidence of previous employment is shown. Ratification must bear to the whole, and not to part of the contract. The knowledge necessary must be of fact, and not of law. There is no necessity for plaintiff to know the legal effect of the act. Avowed repudiation does not nullify ratification by subsequent acts of adoption. Acts of ownership in respect of goods purchased amount to ratification. The bringing of an action by a principal on a contract amounts to a ratification of the contract. They referred to Encyclop. of English Law, Vol. 11, p. 492; Story on Agency, 9th Ed., p. 296; Evans on Agency, 2nd Ed., p. 79; Brewer v. Sparrow (1), Smith v. Hodgson (2), Ferguson v. Carrington (3), Hovil v. Pack (4), Soames v. Spencer (5), Waithman v. Wakefield (6), The Australia (7), Willinks v. Hollingsworth (8), Smith v. Cologan (9), Powell v. Smith (10), Republic of Peru v. Peruvian Guano Co. (11), Forman & Co. Propty. v. Ship “ Liddesdale” (12), Keay v. Fenwick (13) Hunter v. Parker (14), Coggs v. Bernard (15). No matter what plaintiff said, his acts must be taken to show his intention. He had all knowledge of the facts by the end of March. His writ claimed rescission. No case was made for rescission at the trial; but the plaintiff affirmed the contract, and claimed damages. It is inequitable for plaintiff to now say that he did not ratify. CHUBB J. This new trial, granted by the Full Court, was limited to the questions whether or not the plaintiff, or his principal, (1) 1827, 7 B. & C. 310. (2) 1791, 4 T.R. 211. (7) 1859, 13 Moo. P.C. 132. (9) 1788, 2 T.R. 188 (note). THE QUEENSLAND LAW REPORTER. MARCH, 1910. Bell, ratified the contract made between the defendants, (as agents), and Mr. Mosman, for the purchase of the racehorse Dalliance. I do not propose to discuss the evidence exhaustively. I think it sufficient to say, as regards plaintiff's principal, Bell, that there is no evidence against him, and I therefore find that he did not ratify the contract. As regards the plaintiff, I do not think the fact that he did not offer to return the horse to defendants, Isles, Love and Co., or repudiate to them the contract as soon as he found Irving's certificate was not in accordance with his instructions, is of very much importance in the case, for the reason that the plaintiff, up to the first trial at any rate, regarded the defendants, and the defendants regarded themselves, as Mosman's agents. Indeed, Mr. Isles, before me at the trial, said that he still thought that they were Mosman's agents, and it could not, I think, have suggested itself to the plaintiff, at the time when he should have repudiated, if at all, to formally repudiate the contract against these defendants. I do not therefore rely on this fact for my decision. I do not think that his evidence shows that in his interview with Mosman the plaintiff unequivocally repudiated the contract. What did take place there is, in my opinion, quite consistent with the plaintiff deciding to keep the horse, and sue Mosman for breach of warranty, and I find that plaintiff did not repudiate to Mosman. The acts of the plaintiff, with knowledge of Irving's certificate as it was, in leasing the horse to Bell on shares as to winnings, trying to sell him, and keeping him in Victoria for several months at considerable expense when he could have been sent back at once to Brisbane for a few pounds, and there tendered or offered to Mosman, are evidence of ratification, and much more consistent with ratification than with repudiation. Again, although plaintiff, in his writ, claimed against Mosman a rescission of the contract, he ignored this in his statement of claim, and made his case against defendants for, amongst other things, fraudulent misrepresentation, breach of warranty, and breach of duty as his agents, which, as regards the case alleged for breach of warranty, necessarily involves an affirmance of the contract. A more absurd charge of fraudulent misrepresentation against a reputable firm of commission agents, in respect of a transaction in which they were only interested to the extent of a half of the N. C. Cox x. ISLES, Chubb J. THE QUEENSLAND LAW REPORTER, MARCH, 1910. F. C. Cox v. ISLES, LOVE & CO. Chubb J. commission (£6 17s. 6d.), it is hardly possible to conceive. It From this judgment the plaintiff appealed to the Full Court. Macgregor and A. D. Graham for the respondents. After hearing counsel for the appellant, and without calling on the other side, the Full Court (Real, Power, and Shand JJ.) dismissed the appeal. Appeal dismissed, with costs. [IN THE FULL COURT.] BAGNALL v. LAHEYS LIMITED. Workers' compensation-Worker or independent contractor-The Workers' Compensation Act of 1905 (5 Edw. VII., No. 26), 88. 2, 4. B. and his son were engaged by the respondents to fell pine on a certain section of land, and to do everything necessary to prepare the pine logs for carriage, at the rate of 6d. per every hundred superficial feet, and a bonus of a specified amount if the work was well done. No time was fixed within which the work was to be completed, and they were at liberty to commence or cease work at any hour they chose. They were allowed to employ other labour only in the event of extra labour being required to keep up the requisite supply. They were bound to prepare sufficient timber to keep the mill supplied, but were not at liberty to cut more timber than was necessary for that requirement. Of these matters the respondents were sole arbiters. While the work was in progress, B. and his son did other work at the request of the respondents, and received seven shillings each per day therefor. While engaged in felling pine, an accident occurred, and B.'s son was killed. Held, that he was a worker under The Workers' Compensation Act of 1905, and that the defendants were liable to pay compensation. SPECIAL CASE STATED BY A POLICE MAGISTRATE. The appellant was a timbergetter, and the respondents a company duly incorporated, and carrying on business as sawmillers and timber merchants. In answer to an application made by him, the appellant received from the respondents a letter in the following terms:-" With reference to employment at our Canungra Mill, we have just received a memo. from our manager at the above mill, who states he can either give you employment at falling pine at sixpence (6d.) per 100 feet, and one penny (ld.) per 100 feet bonus as the sections are completed, or falling scrub at the rate of 6s. 6d. per day. If you decide to accept this offer, you will require to go to Canungra on Tuesday next, and we would like to know your decision in the matter, as we have other applicants, and do not want to send more men than are really wanted." The appellant and his son proceeded to Canungra, and on 15th September, 1908, were engaged by the respondents to work at scrub-cutting and such other work as they were directed to do at seven shillings per day each. It was intimated to them that a little later the respondents would 1909. Cooper C.J. |