LAW REPORTS.

Dominion, Volume 4, Issue 1054, 17 February 1911, Page 3

LAW REPORTS.

SUPREME COURT. CIVIL SESSIONS. SALE OF BIRCHHILL ESTATE. AN AGENT'S COMMISSION DISPUTED. A question of whether or not a firm of commission agents was ontitleU. to commission for selling a largo property in Marlborough was tho root of an interesting ease heard in the Supreme Court yesterday before Mr. Justice Chapman and n jury of 12. Tho plaintiffs were Frederick Hales, of Wellington, ' retired sheepfarmcr, Thos. Wilson, of. Wellington, accountant, Benjamin Coleman, of Blenheim, sheepfarmer, Jas.' Brounlie, of Wanganiii, sheepfarmcr, and John Allen Oliver, of Wanganiii, commercial traveller, and tho. defendants Win. Russell Devereux, of Christchurch, land agent, and Devereuxi Kiug and Co., Ltd., land agents, Christchurch. • Mr. Blair appeared for plaintiffs, Mr. T. Young.for,lJevcreux, King and Co., and Mr. F. W. Johnston, of Christchurch, for W. 1!. Devcrcux. /I'ho statement of claim alleged that on November 18, 1909, defendants, or one of them, received .fioOO from Thos. Morland, of Rakaia,'for the uso of plaintiffs. That 011 October 19, 1910, plaintiffs applied to defendants for the payment of this sum, but defendants refused to pay it, and it was still due. Plaintiffs claimed tho XSOO plus interest' at 8 per cent. The statement of defence denied that Wm. Russell Devereux recoived the XSOO or an.v sum from Morland for tho uso of plaintiffs. They denied that this sum or any part of it was duo to plaintiffs by Devereux. Defendants admitted that Devereux, King and Co. received tho from Morland for tho uso of plaintiffs, but they say that it was received as part of the purchase money for an estate known as tho Birchliill Estate, which was sold through the agency of defendant on behalf of plaintiffs for commission in a sum not exceeding .£SOO. Defendant had credited plaintiffs with the sum of £500 in account between them, and therefore was not indebted for any sum'. '

Defendant put in a counter-claim which stated that in or about October, 1909, tho defendant company, by its managing director, W. It. Devereux, was appointed at;ent of tho plaintiffs for the sale of Birchhill. Tno property and stock was sold for .£37,600 to Morland, and on November 18 defendants received tho sum of .£SOO on account of tho purchase money. Defendant company had requested plaintiffs to pay .£59! as commission at 2J per. cent, on tho first ,£3OOO, and 1J per cent, on tho balanco of tho purchase money payable by. Morland to plaintiffs fori tho property, but plaintiffs refused to pay, this or any sum. ■In tho statement of defence to tho counter claim, plaintiffs say' defendants totally failed in their duty to them as their agents, and wero not entitled to commission or any remuneration for anything dono by them, and also that by reason of the representations mado in letters and telegrams to plaintiffs defendants aro estopped from setting■ up any sale to Morland or from claiming commission In respect thereof. ■ - • Mr. Blair explained that tho claim was for tho return, of a deposit of .£'soo paid to tho defendants or one of them. and a receipt for which was given in tho .name of the \ syndicate. Tho amended . statement of defence, lie. pointed out, admitted that the company got the money. The 6nly question was the dispute in regard to tho counterclaim. lio (llr. Blair) abandoned any claim as far as Dovcreux personally was concerned, and was content that a nonsuit be entered as far as lie: \\'a3 : ' concerned.

Mr. Young said his clients had received .£SOO, but they would say they credited it. 1(1 Iu opening his case, Mr.- Young gavo an interesting outline of tho negotiations for tho sale of tho Birchhill Estate, Marlborough, which.: led to tho present .position.: of affairs.. 'Ho suggested that Dovcreux and Company would bo found entitled; to their commission unless: it could bo proved that they had dono anything to forfeit their right, and ho did not think the jury -tould find that. The ,estate- was purchased as a speculation by some wealthy capitalists for J/10,000, tho object of tho syndicate being to cut it up and sell, it to-advantage. This matter was put in tho hands of two agents, who, offered the lands for sale, but tho salo only realised .£12,000 for some 10,000 acres out of 28,000 acres. The matter was put in tho hands of Devereux, King,.and Compauy,• who sold the balanco -for .£117,800, leaving a profit to tho syndicate of .£OBOO. Matters wero left for some time,; and in 1907 Coleman, 1 ono of tho syndicate,-told Devereux that ho could have any reasonable commission •if ho could get, lid of tho proi>erty for tho syndicate. Devereux explained that lie would havo to employ some'one else, and thereupon employed an agent . named Mowatt in Blenheim. Devereux went back to Canterbury, and got another agent. Mr.-Spiers,'to assist his firm. They travelled tho wholo of Canterbury, and at last got two prospective buyers to negotiate, onoi named Somerville, and another named Morland, both well-known Canterbury farmers.' This was early in November, 1909. Mr. Morland wanted to sco overt tho property, and Devereux, at his o.ivn expense,' arranged to bring him, up.to Wellington and on to Blenheim. Mr. Somerville was already interested 'in.the Weljs Hills Estate in Blenheim, and wanted to see it. Devereux arranged with Spiers to take Mr. Somerville to Wells Hills, and if he did not buy ill further there, to bring him on to Birchhill. In Blenheim,, Mr. Morland offered to buy the estate, but as the prico could not be agreed upon there, they came on to Wellington, meeting hero on November 8. .'Mr. Morland.said he.liked tho property, but as ho wanted it for his son and would, necessarily have to mako arrangements, financial and otherwise, he asked for ten days to«enablo liiin to do this. ' .

All option for ten days was signed by Messrs. Hales'and ' Wilson, and dated from November 8. . This really meant up to tho evening of November 18, up to which, time Mr. Morland could feme and say ho would take tho property. Tho syndicate, said counsel,' made tho mistake of supposing that that had only given him an option until tho morning of November 18,'aud this was the root of tho trouble. 111 explaining further 'details in regard to Mr. Somerville's connection with the matter, counsel said Somervillo had, gone lo tho .'estate with Spiers two days after Mr. Morland had got his option. Mr. Somervillc was' annoyed at having wasted timo over the matter when another person had the option, and blamed Devereux, saying he would not deal with him further.. Tho fault, however, was not,with Devereux, but with the syndicate. On November 11 Morland called into Devereux and Company's office, in Christchurch, aud said lis son could not go up to Blenheim because of an operation and other family reasons. Devereux gathered from the conversation that Morland was not going to tako advantago of tho option. Still, counsel pointed out, Morland had tho option, and could change his miud as often as 110 liked up to November 18. 1 Thinking that Morland was not going on, Devereux telegraphed to Spiers, saying that Mr. Morland's son was not going to take the property, and felling him to try and sell to Ho also advised the syndicate to tho abovo effect. Negotiations with Somervillo wero then ontcred into by the syndicate without cancelling Morland's option. On November 10 tho syndicnlo threw Devereux and Company over, and put tho property in the hands of an agent named Griffiths, in Blenheim, who know nothing about the option. Griffiths employed Mowalt, Devereux and Company's agent, to assist him in selling the property to Somervillc. The latter put down JMOOO on November 18, notwithstanding the fact that Morland's option only ended on November 18. At a gathering in Wellington 011 November 17, Somervillo was asked to sign a contract to ' buy tho property for .IDS,OOO. Tho syndicate, as he liad said, thought tho option expired on the morning of November 18, and , the salo was dated November 18, so that it would then appear to havo been made after tho option expired. On November 18, howovcr, Morland walked in with £500 deposit, which it had been arranged lie should put down, and said he intended to purchase', tho property. Following this an action, .was

heard in the Court of Appeal over the mutter, and the Court helit that Morland was entitled to the property; that tho syndicate had no right to sell to Honierville, and that they would, have to get the property back, and hand it over to Morland. Defendant said he wanted lus commission, and tho syndicate said they wcru not going to pay any commission bceanso of tho telegrams tont by JJevereux and Co.- The present nctiqn, i-aul Mr. Young, was as to whether the Devereux firm was entitled to commission on the sale of the property to Morland. Mr. lJlnir moved for a non-suit. lie submitted that tho telegram to Spiers also ono to Mowattand a letter, of November 13 must necessarily preclude any claim for 'commission on tho part of defendant. .Counsel contended that defendant was stopped from.setting up tho salo of tho. estate "to Morland and claiming commission on that, in view of the fact that'thero was a sale to.iSomcrville, mado at his. express request. lie was, ho argued, represented to plaintiffs that Morland's deal.-was off and. that plaintiffs were free to deal with tho As ft result plaintiffs "incurred lfability to another agent. ' \ - Mr. Young urged that it i was not a wilful representation and that detenuant did not como within tho meaning ot tho authorities. It. was not the act of defendants that misled plaintiffs, but their own negligence-and carelessness in not making proper inquiries as to whether Morland had abandoned his option. After hearing legal argument on tho non-suit point his . Honour said he thought to savo expense and.for comcmonco it was better to reserve the leave to movo for .1 non-suit, or for judgmentoh tho whole case. lie would take opinion of the jury on the subjeet. Mr. Blair said tho whole question started off with tho agreement.: I hey admitted that at tho 1 outset Devereux introduced Morland who ultimately bought the property. The syndicate had never from the beginning to tho end questioned the fact that Devereux and Co. bring tl ong a binding agreement.. The whole difficulty arose from something which occurred and for which plaintiff said Devereux was responsible. Tho case really centred round the occurrences which took placo between the giving of the option on November 8, 1909, and its accoptanco on November ib. On November 8 Devereux produced Morland and the option was given. There would havp been no trouble but for tho action of Devereux. Plaintiffs believed that they were free to act on the telegram tliev received from' Devereux that Morland' (lid not intend to complete and acting on this they sold tho property to Somcrvillc. Tho conseriucnco was tho Court of Appeal case. Plaintiffs had already paid Griffiths, tho agent, his commission and now they had Devereux claiming. The question for tho jur.v to ask themselves was if they had received the samo communications would tlie.v not have come to the-' conclusion that they were justified :in selling • to Somerville. Tho plaintiffs know now that Morlnnd did not abandon his option, but according to that communication from Devereux they were given to understand that he. had and they actedaccordimrlv. After hearing evidence at somo lennth tho oa?o was adjourned until 10.30 this morning. ■ . • .'