The case has lately been decided by the Court of Appeal.[[145]] Bowen and Fry, L.JJ., affirming the decision of Hawkins, J., Brett, M.R., dissenting. The grounds upon which the Master of the Rolls bases his judgment are that, although an authority might imply an authority to pay, yet, as betting contracts were void, and as the only inconvenience to the agent consists in his being barred from pursuing a calling to which the law wholly objects, no promise could be implied that such authority should not be revoked. His lordship considered that as a matter of fact defendant had revoked plantiff’s authority to pay; thus differing on that point from Hawkins, J. Bowen, L.J., treats the whole question as an inference of fact. In his lordship’s opinion, the only inference of fact proper to be drawn was that if the agent carried out his contract, and involved himself in a difficulty, from which he could only escape by paying money, the defendant was to indemnify the plaintiff; further that the plaintiff had paid the bets by virtue of a contract between himself and his principal, that the latter should not revoke the original contract.
His lordship therefore treats the matter somewhat differently from Hawkins, J., for it will be observed that in the Court below, Hawkins, J., treats the implied authority to pay as an inference of fact; which was no doubt amply justified by the previous dealings between the parties, while he deals with the question of revocation of authority as a matter of law.
However, perhaps the result of the authorities may be shortly expressed in the following way:—(1) Authority to pay is implied in authority to bet (a) where the agent lays the bet in his own name, (b) and where to the knowledge of the defendant non-payment of the bet would entail serious inconvenience to the agent.
(2.) That under such circumstances the authority to pay is irrevocable directly the bet has been made.
But it would seem that the cases do not expressly decide how the law would stand in two cases. (1) Where the agent lays the bet, not in his own name, but in that of his principal, thus incurring no personal responsibility. (2) In cases where the principal instructs an agent who is not a professional betting man or not (at any rate to the knowledge of the principal) in any other way connected with the turf so as to incur such penalties for default as the plaintiff in Read v. Anderson would have incurred. Would the risk of mere social obloquy give the agent such an interest in paying the bet, as to make the authority to pay irrevocable? or supposing the agent belonged to a club, a fact which was unknown to the principal, by the rules of which the committee were empowered to expel any of its members who failed to discharge debts of honour. It will be observed that in nearly all the cases alluded to above that the principal’s knowledge, actual or implied, of the agent’s responsibility, was the ground of inferring an authority to pay from the authority bet. |Agent’s authority revocable before bet made.| Of course this question of revocation only arises after the bet has been made, when the responsibility of the agent has attached. There is no doubt, as remarked by Hawkins, J., in Read v. Anderson, that the agent’s authority might have been revoked before the bet was made.
In actions against the agent as in Bridges v. Savage,[[146]] the defence of wagering and gaming is often raised, i.e., that the person to whom the instructions were given had acted not as agent but as a party to the wager. In the former case it was raised by the principal, who was sued for indemnity; in the latter by the agent, who was called upon to account for winnings. To avoid such difficulties in future it would be wise both for persons who employ commission agents, and for the latter who execute commissions, to have the terms of their bargain definitely in writing. “Please back for me,” “Taken for you,” seem to form a contract of agency on which no such question could arise.
What agent must prove.
Of course the agent must prove that the payment made to the winner of the bet was an authorised payment. In none of the cases as between principal and agent has any dispute arisen either as to whether the bet remained valid to the end, or whether the horse really lost or won. It is however, by no means impossible that such questions might be put in issue. Supposing after the bet was made the nominator of the horse, in respect of which the bet was made, died, so that (at any rate according to the new Rules of Betting) the bet would be off, or supposing defendant had instructed plaintiff to back horse A; horse B is placed first by the judge and A second, but B is disqualified afterwards for reasons which would cause the bets to go with the stakes.[[147]] It is obvious that if the agent paid on this as for losses he could not recover from his principal. The real point of difficulty is on what evidence the Court would act. It is submitted (1) That the employment of an agent to make bets in a betting market implies an authority to bet according to the rules and usages of such market, and that the Court would look at the Rules of Betting or other document proved to regulate such transactions. (2) That in all bets the question whether a horse is the winner or the loser is impliedly to be determined by the Rules and Conditions under which the particular race is run. We shall hereafter, page 74, deal more fully with the term “winner,” but it will be noticed all the cases thereunder were decided on a construction of the Rules and Conditions.[[148]]
Gaming Amendment Act, 1892.
But the law respecting the rights of the agent against his principal has lately been materially altered by the Gaming Amendment Act, 1892, 55 Vict., c. 9. This Act provides that “any promise express or implied to pay any person any sum of money paid by him under, or in respect of any contract or agreement rendered null and void by the Act 8 & 9, Vict., c. 109, or to pay any sum of money by way of commission fee, reward or otherwise in respect of any such contract, or of any services relating thereto or in connection therewith shall be null and void, and no action shall be brought to recover such sum of money.” Of course the cases already dealt with will still apply to transactions which took effect before this statute came into operation. But as to dealings between principal and agent to which the act applies, Read v. Anderson can no longer have any application. As has been pointed out above, the principal’s right of action against his agent to recover winnings remains untouched.