CLAIM FOR COMMISSION.

Auckland Star, Volume XXXIX, Issue 68, 19 March 1908, Page 5

CLAIM FOR COMMISSION.

QUESTION OF RESPONSIBILITY. A SALE THAT WAS NOT COMPLETED. An interesting case, dealing with the commission on tXe sale of a farm, was heard in the S.M. Court this morning before Mr. District Judge Kettle. The plaintiif was W. W. Bruce, accountant and commissioner, and lie claimed £50 commission for negotiating the sale of a farm at Hunua, the property of B. C. Climo, who was cited as defendant.

Dr. Bamford appeared for plaintiff, and Mr. Neumegen for defendant.

W. W. Bruce, the plaintiff, stated that he visited Uunua in search of a farm to suit a Sydney client. While there he met young Climo, son of the defendant, and went out to the farm at Hunua. There he met all the family, except the father. Having seen the farm, he wrote put a telegram, which the son sent to his father, worded as follows: "What will you take for the farm, lock, stock and barrel, allowing Mr. Bruce fSO commission?" The family knew at the time that he was searching for a farm for a Sydney buyer. A fortnight later defendant came to witness' office, and signed the agreement produced, agreeing to a £50 commission. Defendant said he thought the commission was heavy. Witness replied, "Then the matter need go no further." Defendant, however, signed the document. Witness then took O'Donohue, the Sydney buyer, and the defendant to- his solicitors, and Brown. There witness considered his part in the transaction to have ended. Defendant said at the time that he wished to conduct any further business through his solicitor, Mr. Neumegen. A few days later witness received a note from Mr. Neumegen, stating that he vras acting as agent to Climo, and that witness was to understand he had no further right to negotiate in any sale of the property.

In answer to the Bench, witness said that he took defendant and his wife to Dr. Bamford's for the purpose of getting the sale completed. O'Donohue had visited the farm and was satisfied to buy at the price. When they went to Dr. Bamford's office witness offered defendant a deposit of £5. Defendant replied that it must he settled through his solicitor, Mr. Neumegen.

Under cross-examination to Mr. Neumegen, witness said he told defendant that £50 was not the usual commission. Defendant was not satisfied about the amount, but subsequently in Bamford and Brown's he confirmed his previous agreement. Witness could not say whether the sale had been completed.

Dr. Bamford: We admit that the sale was never completed.

Witness- added that he considered the sale concluded as far as he was concerned ■when he left the matter in the hands of the solicitors. He had received no commission or fee from his Sydney buyer, and did not expect any.

A. S. C. Brown, solicitor, stated that his firm had been instructed to act for O'Donohue, the huyer. On the sth of the month plaintiff introduced defendant and his wife as the vendors. While at witness , office defendant said he regarded the commission as very heavy, and urged that the ordinary commission rates should be sufficient. Plaintiff pointed out that the sum of £50 -had already been agreed, and defendant finally agreed. Witness said it would be necessary for defendant to give a memo, of the sale. Climo replied that he had been robbed by two lawyers already, and whatever he did would be through his own solicitor, Mr. Neumegen. Witness told him that he had no wish to rob him, and •would go with him to Mr. Neumegen's office. When they got there, witness offered a £5 deposit. Climo stuck out for £50 as a deposit. Witness got the other £45 required from the plaintiff, Bruce, and paid it to Mr. Neumegen, who did not ask him to sign any memorandum. Witness was acting solely as solicitor for O'Donohue. Later on witness informed O'Donohue that there was a shortage of nine acres in the area of the farm, and O'Donohue instructed him to withdraw from the sale. The plaintiff, Bruce, knew nothing of the reason of the withdrawal. Mr. Neumegen applied for a non-suit on the grounds that Bruce had not brought about a binding contract between the purchaser and the vendor.

His Worship, in reply, said that he considered there was sufficient documentary evidence before him to make the contract binding. It was altogether another question whether O'Donohue had the right to withdraw. It was not necessary, under some circumstances, for an agent to write out an agreement, as long as he followed a course which was binding, and in this case Mr. Bruce did so by taking the defendant to the buyer's solicitors. If the acreage was less than he had been given to understand, that was not Mr. Bruce's fault.

Benjamin Climo, farmer, at Hunua, said, on going into the box, that he entered into an agreement with plaintiif to give him £50 for selling a farm of 136 acres for £1000. The farm did not change hands. Mr. Neumegen submitted plaintiff was not entitled to a verdict because the agreements were conflicting, and there was no sale.

His Worship said he was of opinion there was a contract. A deposit had been paid, and there was no withdrawal until 'some time later. There was no doubt that plaintiff had brought about a contract to which O'Donohue wa3 bound, and consequently he was entitled to his commission of £50. A verdict was given accordingly. Mr. Neumegen gave formal notice of appeal.