LAW REPORTS.

Dominion, Volume 4, Issue 1054, 18 February 1911, Page 15

LAW REPORTS.

SUPREME COURT.

CIVIL SESSIONS. SALE OF BIRCHFIELD ESTATE. AN AGENT'S COMMISSION DISPUTED. .Tim wholo of yesterday morning and part of tho afternoon was occupied by Air. Justico Chapman in hearing tho concluding evidenco, and tho addresses of counsel, in the commission case concerning t'Ho liirchtield Estate, Marlborough, .in .which Frederick, liales, rr.. tired sheep-farmer, ■Wellington, and others, claimed from Devorcux, King, and Co., commission agents, Cliristclmrch, for tho return of a £500 deposit alleged to havo been paid to defendants as part-purchase money for ■tho estate. Defendants counter-claimed for £594 as commission on tho sale of tho estate. Mr. A. Blair'appeared for plaintiffs and Mr. T. Young and> Mr. V. V. Johnston (Christchurcli) for defendants. .Addressing tho jury Mr. .Blair directed attention to the statement which; •had been mado as to tho largo profits' tho syndicato was alleged to havo mado on the salo of tho estate. Counsel for .tha defendants- had, ho contended, mado this point to impress upon tho jury that this "enormously wealthy syndicato" had made a pot of money and was endeavouring to keep a hardworking land agent out of his commission. flio syndicato had already paid £500 commission to ono firm of commission agents on. thq salo. of tho estate, and it was, ho urged, taking up an extraordinary position to say, that because plaintiffs mado a fair profit they should also pay tho agent who had landed tliein m all tho troublo that had .arisen. Plaintiffs had been landed in a Supremo Coiirt and an Appeal Court' , action after which it could bo under- . stood, tliero was not much profit. Tha plaintiffs had not mado £5000 on the ,salo.and if-they had what was that : divided between six persons aftor working tho property for 2$ years and taking,all risks. Ho did liot suppose tho individual members of tho , syndicato; wo.uld make more than Devcrcux would.' If .they mado a profit of 10 per cent that would bo all tliey would niako land it was only a fair return on their monjy. After tho interview with Mor,land, Dcvercux had wired: "Soil to ;Somerville." The only natural meaning to bo taken .from this was, he urged, that the original inquirer who hold tho option (Morland) had gone off and the way-.was'- clear;, to offer; tho property to, tho'-next prospective buyer. Tho who!?'trouble.'lio contended, had arjsen out ;of.,tho,.telegrams sent "by Devereux and if Dovereux "had' taken • tho' pre-' .caution to,, write down tnily Mor!land.hid said tliero' woiila'. havo*!-been ' no' trouble.' Instead' of this, 'it " was ho let his : fancy run riot .and. sprit'' his own . statement of tlio; position. Tlio only duty plaintiff tasked of Dovereux was that .-ho- as agent was 'to tell them what hapi>encd,; but what ho did'say landed thein in trouble. lii his address to tho jury Mr.' Johnston urged that tliero was no misconduct'oil tlio 'part of '. Devereux.' - Tho conclusion- lie came to from what Marland said was tho samo conclusion that nnyonc would havo-drawn. Norio of tho -communications sent by Dovereux said that Morland declined his option, but that his son would not go up to Birehhill. Therefore,, beforo the syiidicqto s6Id tV fo Som'crvillo they; 'sh'riuJd havo 'sent somo communicatiopi ftb.-lre-ycreux, instead of placing tho ■ niatFer in tho'hands of" : an entirely now agent. After■ coquetting iii.tljo way tlicy liadj he.urged', tho- syndicato' only liad themselves to blame. ; Tlio syndicato, lio contended, did not rely on anything written by Dovereux, but backed aim filled until November 17, thinking that Morland's option expired on the night of November 17, instead of on November 18, as was really tho casbl'. It. was i all very well to say Devereux was not justified in'placing tho construction' ho did on what Morland said,'but, counsel urged, the inference draw'njb'y Devereux 'was the ' interpretation -any ordinary person would have put on tho matter. Plaintiffs, "he urged, wero to blamo for not having mado the inquiries theyshould have made.

In summing up,, his Honour' said ho proposed to put it to tlio jury whether they found for plaintiffs or defendant. He understood tliat- tliero was no question about the amount: 1 He was afraid a good deal of irrelevant inatter had been introduced by both sides/ with tho object of .winning tlio sympathy of tho jury. Ho did not seo that jt mat-tered-whether .'the. .syndicato mado a profit or a loss. _ The expenses incurred by tho commission agent did not matter cither, as it .was part of tho agent's business. : The jury must look ;at-the central-facts of tho case, and 'seo'how it stood; '' They'knew that Mr. Morland and Mr. Somcrvillo' were prospective buyers, and that' before it j coulcl bo decidcd which was entitled to 'the property thoro'had.to be a Supremo |Court action, and then a Court.of Api peal. case. '.- .Tliis w-as'an expensive dispute,- and now Devcrcux camo .'forward' and claimed their commission,-.-: and i plaintiffs claimed the return of the £500 ;deposit. The jpicstion for tho consideration ;of tho jury was, whether. Devc'rcux and Co. had performed their,duty, and whether by reason of what; they did in regard to Morland's option they had failed to, do their duty, and so landed Hales'.and Co. in this expense of which so much had been - heard. This was a question to bo determined hy the jury, and .ho thought tho beit light to bo thrown on tho matter was by a careful perusal of the various documents. In discussing tho'telegrams from Devereux, saying that Morland's son would not go to Birehhill, his Honour said- the whole question,was: Was it reasonable to read theso as announcing that Devereux meant that tho business with Morland was at an end, or that it meant, as Dovereux said, anyono but a lunatic would understand, that any action taken must bo taken still bearing in mind tho option to Morland. Shortly, tho [joints were: AVas Dcvercux! justified ill sending the telegrams ho did send after Morland saw him?-,.Wero Hales.and Co. justified in acting on them; or should they havo .read into them in each caso Mr. Morland's unexpired option? • Tlio jury retired at 3.30 p.m.' s and returned at: 5.45 p.m. with a verdict lor Devereux and Co.

. Jlr. Young asked for judgment .with costs. His Honour referred to tho 'nonsuit point raised by Mr. Blair on tho ground that Dovoroux's misconduct precluded him from recovering any commission, and that lie was cstonned from setting up the sale to Morland, in view of tho fact tliat tliero was a salo to Somcrvillo, carried out at his express request. There was. ho said, tho noint of whether any allowance should bo made for tliis to'bo considered. , . His Honour asked if counsel had argued tho nonsuit point as fully as they intended.' 1 • It was dccidod that tho nonsuit should be argued further. Mr. Blair asked the Court to reserve leave to move for-a new trial, on tho ground that the verdict was agaiiut tho Weight of evidence. The date to arguo tlio nonsuit point is to bo fixed later.. IN CHAMBERS. POSSESSION OF A PROPERTY. At a sitting in Chambers, beforo Mr. Justice Chapman, final application was mado by Mr. 11. B; Williams, who appeared for plaintiff in tho caso Stephen Edward Powria y, Patrick John Sulli.

van, a claim for possession ol a certain property at iCilbirino, and £fl mesne profits. Tho action concerned a mortgage for £500, which defendant obtained over his land, ho covenanting to paj- plaintiff £2 18s. Id. a month as principal and interest. _ Default was made,'and on-application by plamtill to tho Registrar of the Supremo Court the property was sold, but defendant refused to giro ..up possession. His Honour, after hearing Mr. \iilliams's application, entered judgment for possession of tho 'property,, and allowed plaintiff tosts £9 9si, in addition to cbsts already' awarded.' Defendant did not appear. ■ Tho Court adjourned at G p.m. until Thursday next.