CLAIM FOR COMMISSION.

Auckland Star, Volume LVII, Issue 67, 20 March 1926, Page 15

CLAIM FOR COMMISSION.

SALE OF AN HOTEL

AGENT GIVEN THE VERDICT

(By Telegraph. — Own Correspondent.!

HAMILTON, this cloy

In the Supreme Court yesterday, W. Woolven, agent, of Claudelands (Mr. Gillies), sued Thomas H. Kelly, hotelkeeper, Cambridge (Mr. Stace), for £279, balance of commission alleged to be due on the sale of the Masonic Hotel, Cambridge. Plaintiff's statement of claim declared that lie entered into an agreement with Victor Cornaga, hotelkeeper, of Auckland, for the sale and purchase of the Masonic Hotel at Cambridge. The commission payable by Cornaga to plaintiff was £350, but defendant entered into an agreement to pay this sum to plaintiff, and Cornaga gave defendant credit for the amount. Defendant paid plaintiff £71 on account, and it was a term of the agreement that he should pay the balance of £270 immediately after the commencement of the year 1926. Plaintiff had applied to defendant for the payment of the balance and had been refused.

The defence was that a special contract was entered into, whereby the total commission was to be £50, to be paid by Kelly.

Counsel for defendant moved for a nonsuit on the ground that no cause of action was disclosed. Plaintiff had carried on the business of a land agent, and not having a license was not entitled to succeed. He also moved a nonsuit on the second ground that there had to be an appointment in writing, and there was none in this case.

After hearing evidence of a conflicting nature, Mr. Justice Ostler said lie had come to a clear decision and had no hesitation in accepting the evidence of the plaintiff," which was supported by Messrs. Gee and Cornaga and the written agreement. Defendant tried to set up an oral agreement at variance with his written one. The onus of proof was on him, and he had not discharged it. The £350 was in substance a loan to defendant, and in that case the defences raised under the Land Agents Act were irrelevant. Judgment was given for the plaintiff for the amount claimed, and costs.