1905 any of those goods when he bought them. In other words, I think he pretended falsely to the persons from whom he got EASTGATE, the goods that he intended to pay for them when in fact he did not intend anything of the kind, and in that way he got possession of the goods. What was the position of the vendors of these goods? In my opinion their position was this. As soon as they discovered that he had bought the goods with no intention at all of paying for them, they were entitled to treat the contract as a contract induced by fraud-induced, that is to say, by a representation, which the purchaser knew to be untrue, that he meant to pay for the goods-and, being entitled to treat the contract as one induced by fraud, they were also entitled, within a reasonable time after they discovered the facts, to disaffirm the contract. The sales extended over a period from February to April 15. On April 20, as Mr. Bowling could not get his money, he proceeded in the county court to recover the price of the goods. He did not at that time know all the circumstances. But very soon afterwards he did know, because, on April 22, two days afterwards, the bankrupt shut up the house and absconded, and under the circumstances committed an act of bankruptcy. It was then, and not until then, that Mr. Bowling discovered that he had been defrauded. What did he do? In my opinion he then disaffirmed the contract, and did that which he was entitled to do, namely, took back his property. Now did the property at the time he took it back form part of the estate of the bankrupt? I do not think it did, and for this reason. I think that the trustee acquired the interest of the bankrupt in the property subject to the rights of third parties. One of those rights in this case was the right of the vendors of the goods to disaffirm the contract and to retake possession of the goods. I cannot say that I approve of the way in which possession was retaken in this case. But in my opinion Mr. Bowling was only taking, though taking it in a wrong way, that which was his own. That being so, I think the application of the trustee must be dismissed. Solicitors: Spence, Gibson & Co.; Parker, Garrett & Parker. H. L. F. In re. WARD, Ex parte. Bigham J. 1905 Jan. 20. TURNER v. WILLIS. Solicitor-Bill of Costs-Cross-claim by Client-Account stated not in Where, a solicitor having a claim against his client for costs, and the client having a cross-claim against the solicitor, the parties agree upon the amounts of their respective claims and state an account shewing a balance in the solicitor's favour, an action may be maintained by the solicitor for that balance, notwithstanding that he had delivered no detailed bill, and that the agreement for the settlement of the cross-claims was not in writing. APPEAL from the Whitechapel County Court. The plaintiff was a solicitor, and the defendant had been a client of the plaintiff's firm. On August 23, 1900, the plaintiff's firm sent to the defendant a summary of the work done by them for him in connection with a variety of different matters extending over a period of fourteen years from 1881 down to 1895. The work in respect of which the claim was made was partly contentious and partly non-contentious. The summary, which contained a rough statement of their aggregate charges in respect of the different matters, but no detailed items, was accompanied by a letter in which they said, "We shall be pleased to make a considerable deduction from it, and if you will give us a call we can no doubt arrange the matter satisfactorily to you." According to the plaintiff's evidence the defendant called on August 24, and saw the plaintiff and his partner (since deceased), when the items of the bill of costs. were fully gone into with the defendant. The defendant had a cross-account against the plaintiff's firm for work done, which he then produced. After the two accounts had been discussed, it was arranged that credit should be given to the defendant for his account, and reductions made in the plaintiff's firm's account, and a balance was struck at 351. to be paid by the defendant to the plaintiff's firm in settlement of all matters between them. This agreement, however, was not in writing. The defendant having failed to pay the said sum of 351., the plaintiff in August, 1904, brought the action in the county court upon the above agreement of August 24, 1900, and upon an account stated. The county court judge held, upon the close of the plaintiff's case, first, that the plaintiff's claim was barred by the Statute of Limitations, which ran from the dates of the work done; and, secondly, that the agreement sued on was an agreement by a client to pay his solicitor a lump sum in discharge of past costs and was not binding on the client, not being in writing; and he accordingly entered judgment for the defendant. The plaintiff appealed. Nield, for the plaintiff. The Statute of Limitations does not apply, for where two parties having cross-accounts against one another go through the accounts and agree upon a balance in favour of one of them, this operates as mutual payment to the amount of the smaller account, and gives rise to a new consideration for the payment of the balance, so that the statute commences to run afresh from the date of the agreement: Ashby v. James. (1) This fact, that there was a new consideration for the payment of the 351., affords an answer to the other ground also upon which the judge decided against the plaintiff. He proceeded upon the authority of In re Russell, Son & Scott (2) and In re West, King and Adams (3), in the former of which it was held that since the Attorneys and Solicitors Act, 1870 (33 & 34 Vict. c. 28), an oral agreement by a client to pay his solicitor a lump sum in discharge of past costs for contentious business was not binding on the client; and in the latter, that under the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44), the same rule applies with respect to non-contentious business. But in those cases there had been nothing more than the mere agreement by the client to pay; there had not been any settlement of cross-accounts giving rise to a new consideration. That distinguishes those cases from the present. D. Warde, for the defendant. It has long been settled law that a solicitor cannot recover the amount of his bill of costs (1) (1843) 11 M. & W. 542; 63 R. R. 676. (2) (1885) 30 Ch. D. 114. (3) [1892] 2 Q. B. 102. 1905 TURNER V. WILLIS. 1905 TURNER V. WILLIS. on an account stated, though the amount has been admitted, without proof of the delivery of the bill: Eicke v. Nokes (1); Brooks v. Bockett (2); and here there was no proper detailed bill. It can make no difference that there was here a crossaccount of the client. The balance remaining in the solicitor's favour is not on that account any the less a claim for solicitor's costs. The object of the Act requiring the delivery of a detailed bill before action is to give the client an opportunity of having the bill taxed. But that object would be defeated if the solicitor were allowed to recover in such a case as the present. He might send in a bill for an excessive amount, and the mischief would be as great in respect of the balance remaining after allowance of the client's cross-account as in respect of the total bill. LORD ALVERSTONE C.J. In this case I think there must be a new trial. We cannot express any final opinion as to the rights of the parties until the facts are ascertained. That must depend upon what the nature of the account stated was. If it turns out that it consisted of entries on both sides, and that the parties agreed the amounts of those cross-claims, and a balance was struck, I think the action upon an account stated might well be supported. But if on the other hand there was no cross-claim by the defendant, and the statement of account merely consisted in the agreement of the amount of the solicitor's bill, then I think that that would not suffice. The county court judge decided against the plaintiff on the ground that the agreement was an agreement by a client to pay his solicitor a lump sum for past costs, and ought to have been in writing. But upon the evidence as it stood I do not think that was so. It was a bargain, not with respect to solicitor's costs alone, but with regard to cross-claims, one side of which consisted of solicitor's costs; and that, in my opinion, is not the kind of bargain which is required to be in writing. But as the defendant's witnesses have not been heard, the case must go back for a new trial to enable the real facts to be ascertained. (1) (1834) 1 Mood. & Rob. 359. (2) (1847) 9 Q. B. 847. KENNEDY J. I am of the same opinion. I think that the objection to this claim would be a good one if all that happened was that an unsigned bill of costs was sent in, and the account stated was merely a settlement of that bill. But here the plaintiff's evidence went to shew that the account was stated with reference to the balance of two cross-claims, one of which had nothing to do with a solicitor's bill. The case of Scadding v. Eyles (1) is inferentially an authority in favour of the view that under those circumstances the claim would be good. It was there held that to a count on an account stated it was a good plea that the account was stated solely of and concerning charges for work done as an attorney, and that no bill was delivered. Mr. Peacock, for the plaintiff, there assumed that it would not be a good plea that the account was stated partly in respect of attorney's charges, saying that "it cannot be said that if, in point of fact, the accounts had been cast up, and a balance struck, a defendant might reopen them if one item related to law proceedings "; and from the form of the plea this assumption does not seem to have been disputed by the other side. RIDLEY J. I am of the same opinion. 1905 TURNER V. WILLIS. Order for new trial. Solicitors for plaintiff: G. Vandamm & Co. (1) (1846) 9 Q. B. 858. J. F. C. |