LAW REPORTS.

Dominion, Volume 5, Issue 1423, 25 April 1912, Page 3

LAW REPORTS.

CLAIM FOR COMMISSION. ON SALE OF LAND. SHOULD IT HAVE BEEN ALLOWED? When tho Court r>f Appeal resumed yesterday morning, tho first case heard was that of M'Kcan v. Brice. iin appeal fi'otii a Supremo Court decision of Mr. Justice Sim, who had awarded respondent (plaintiff' in the original action) tho sum of ,£75 as commi.--sion on the sale of a property. On the Bench yesterday were tlin Chief Justice (.Sir Jiobort Stout). Mr.' Justice Dennis'.on, Mr. Justice Cooper, and Mr. Justice Chapman. Mr. T. t>. Weston appeared for the appellant, and Mr. C. U. Collins, of Martori, for the respondent. . In the original action, Francis Richard Hammond Brice, commission agent, of Morton, claimed J:15O from Thomas Jl'Kean, farmer, of Taumarunui, as commission on the sale of a property. It was then set out that on February 11, 191U, Mrs. M'Kean (wife of Thomas M'Kean) entered into an agreement with Messrs. Smith and Miles to sell to them, for £2%], u section of Crown land in the Huuua Survey District held by her under a license to occupy with right of purchase. Of the purchase money. .£SOO was payable in cash. As to the balance, tho equity oE redemption of certain properties (belonging to the purchasers) in Wellington was to be accepted by Mrs. M'Kean in part satisfaction, and tho remainder was to be secured by a second mortgage. Brice, it seems, had been endoavouring since May, 1909, to find a purchaser for the property, and for sonio time had Iwn in negotiation with one Beard. Tho object of the sale to Smith and Miles appeared to have been to enable them to resell to Beard, for .they sold the section to him at the price of ■E3ISI. The Land Board, however, refused permission for a transfer to Beard, vrh.3 sought to impose a condition as to tho future sale of the section. Beard then agreed to resell to one Prince for .£3355 13s. This proposed tra-nsfer was approved by tlin Land Board, but the ran-saction could not be completed, as Prince eventually refused to carry it out. The section was subsequently sold by Mrs. M'Ke-an to another purchaser for .E2OOO, and.this transaction was duly completed. • The question submitted to tho Supreme Court was whether, in these circumstances, Brice was entitled to recover any commission in respect of the sale to Smith and Miles.

Mr. Justice Sim, who heard the case, gave judgment for Brice for .£75. From this decision, M'Kean appealed on tho ground that it was erroneous in point of law and fact. Legal argument occupied until after 3 p.m., when the Court reserved decision. MIRAMAR, LTD. THE WONDERLAND COMPANY. . AND THE GUAEANTOKS.' The affairs of Miramar, Ltd., and the Miramar' Athletic Park and Wonderland Co., which figured in an action in the Supreme Court last year,, formed the subject of argument in-the Court of Appeal yesterday afternoon; tho matter having been brought up again on account of plaintiffs in the previous action, not being satisfied with the learned Judge's decision. The Court yesterday com-' prised the Chief Justice (Sir Robert. Stout), 31r. Justice Denuiston, Jlr.'Justice Cooper, • and' Mr. Justice- Chapman. The parties were Hcathcote Bcetham Williams, Dudley Bruce Hill, and Arthur Spry Gtvavas, Carl.yon, all of Hnn-kc's Bay, appellants, and .Miramar, Ltd., of Wellington, respondent. , Mr. C. P. Skwrott,. K.C., with him Mr. &'; J3. . Morison, appeared for the appellants, and Mr. 11. D. 8011, K.C., with him Mr. C. H. Treadwell, for the respondents. ... in the original action, heard last September, the plaintiffs (Williams, Bill and Carlyon)- sued for specific relief,' and claimed that, by a deed dated March 21, VM (and executed in consideration of their guarantee to an overdraft of JMjo at the Bank of New .South Wales for the Miramar Athletic Park and Wonderland Company), the defendant company (Miramar, Ltd.) had agreed that, if the guarantee were not discharged, they would, on March 31, 1900, allow the guarantors to remove the buildings and fixtures (other than tho fences) at Wonderland. In this event a certain contract to purchase between Miramar, Ltd., and the Wonderland Company was to.be terminated. Or, in the alternative, Miramar, Ltd., would pay to plaintiffs tho sum of .£2351 55., and take over the lands and buildings, belonging to the Wonderland Company, and terminate' the agreement.

In addition to denying several matters, Miramar, Ltd.,. defended the action upon the ground that Williams, Hill, and Carlyon had lost their right under the guarantee, and, moreover, by certain conduct, had precluded themselves from mdking any further claim. Mr. Justice Edwards, who heard the case, delivered his decision on October 17 last. In the course of his remarks, he said: "The claim arises ' under a deed, datod March 21, 1008, made between Miramar, Ltd., tho defendant company of tho first part, another company called the Miramar Athletic Park and AVonderland Company, Limited (which I shall hereafter .call tho Wonderland Company), of the second part, and the plaintiffs of the third part. By an agreement dated April 11, JOO7. subsequently adopted by, and made binding upon, the Wonderland Company, Miramar, Ltd., agreed to >-ell to the Wonderland Company, and the Wonderland Company agreed to purchase, certain lands at Miramar for the sum of <£11,7jG 55., to be paid by instalments of 20 per centum on or before July 11. 1007, XlO per centum on October 11, 1007; 10 per centum on January 11, 100S, and the balance on April 11 M 2, with interest at the rate of £b per rcntnni per annum, computed from Julv 11. By this agreement the Wonderland Company was precluded from usin" the lends 1 hereby affected for any purpose other than as a private nark, and otherwise as therein specifically ftatrd. Tho Wonderland Company paid to Miramar Ltd., on May S, 1907, JSiM ,')>.,- being tho first instalment of purchase money payaule under this contract, but made no further payments either for principal or interest. . Prior- to March 21. 1908, the Wonderland Company became indebted to its bankers, and to other creditors, in very largo sums of money. There were also then owing by the Wonderland Compiny to Miramar. Ltd., two further instalments of purchase money, amounting to £2351 55.. and arrears of ihterost. Each of the plaintiffs (Williams, Hill, and Canyon) was then the owner of a very large number of fhnre* in Hip Wonderland Company. The plaintiff Hill, who wag a director of that company, held 5(00 of those shares, each share representing £\. Die Wonderland Company thus bein" in financial straits, and tho plaintiffs being anxious to save their moneys sunk in that company, an arrangement" was come to whereby ,(• was agreed Hint the plaintiffs suiiild guarantee tho payment of a furthnr advanco by the bankers of the Wonderland Company to that company of me siim of J;J8.13. iinmi receiving certain wciintics. and upon Miramar. Ltd.. agreeing, o a modification of the contract of niirchnsp of April 11. 1907. Miramar i<lll., (fid so agrco. weral reasons for this are suggested. Tho real reason anpears to have hcen that Miramar. Ltd vn? nnxjoiis that (he sale to the Wonderland Company should be carried into efl;iit.< I his. however, is ruiito immaterial. .Mie cloed of Mnrch 21, 1!i(18, was accordinglv executed for the purpose of carryin'.; thesp arrangement': into effect." After reviewing the h-rms of (he <W,l and the happenings subsequent to tho drnwiiH- of that document, his Honour said IIm! Hi n ros.-ilr nl' the deed Hip jdniiitiffs 'Williams, Hill, and Carlyon) nad at the end or March, 1900, three alternatives open to them:

Fust, they could abstain from declaring any election under the deed, in whicii case (he Wonderland Company's right* under the ajrrecmttt of niirchn«<? with the defi-ndint com pony would conlinue, subject lo the chart's then existing Ihemiu ju favour 'of the plniirrilK 'J'lii- k:,< Hip onlv vested riulit which the plaintiffs or the Wonderland Cnmp.iny had under the contract of purchn.-o.

The_second alternative wa> that, bv c;iv. ins due notice, of tlmir olrrtinn 111 tliat behalf, Hip nlniiififft could have ■ acrjuired th" riprht to rnmnvp Hie Vimiflinpj, ptc. upon the land affected by the agreement.

The (liircl alternative was Hint liy giving due notice in that behalf they might have acquired ilm right to chum from (ho tlofi-iiilniit company the ?iim of J.'235l ss.

His Honour took it In be beyond all question Hint Hie time iixed for electing what nltiTiiiilivi' llicv uvjiileil themselves of, viz.. March 111, l!)0!l, \v;is the t'.«.-enei> of the contract. A< the plaintiff* did not affect to exercise, their right, of election until November 23. 1010, it whs really unnecessary to deUrminu precisely the last day upon which they could have exercised it. .Who!her il was Miiitli 31 or April I. 1!!0!i, is fiiiile imniiiteri.il. It appeared, however, to he tolerably phiin that it. was March 31. L'lainlilfs must therefore fail because on their own showing they fiiilcil to elect in lime. Judgment was Riven for Ilm defendant company (Miramnr, Ltd.) with costs ainountiiiK" to .£l2B 13s. lid. J'rom this decision, the plaintiffs (Williams, Hill, and Carlyon) now appealed on the ground that it was erroneous in fact and law.

J*egul argument was not completed when the Court adjourned until 10.30 a.m. today.