RESIDENT MAGISTRATE'S COURT.

Daily Telegraph (Napier), Issue 3549, 23 November 1882, Page 3

RESIDENT MAGISTRATE'S COURT.

This Day,

(Before Captain Preece, R.M.) Banner and LidJle v. John Young.— Claim £75 for work and labor done and commission. Mr Lascelles appeared for the plaintiffs, and Mr Lee for the defendant. For the defence it was argued (1) a denial of any retainer, and (2) that there wae no sale made nor bargain concluded. The legal points of the case having been argued at considerable length by Mr Lascelles, evidence was taken as follows: — Joseph Liddle, being sworn, deposed that he was a partner in the firm of Banner and Liddle, the plaintiffs in this action, and was acquainted with the defendant. Had his first business transaction with defendant about April, 1881, when defendant asksd witness to advertise his place for sale. The advertisement was inserted in the Daily Telegeaph of July 9th, 1881. (Newspaper put in). The defendant approved of and paid for the advertisement. Since then defendant had never until a few days ago stated bis unwillingness or inability to sell. The firm had endeavored to sell the property ever since, and took more than usual trouble with the matter. The last person with whom witness had negotiations was Mr Limbrick, whom witness urged to buy the place. Mr Limbrick did not seem to care about it at first, but on October 31st he made Mr Limbrick an offer. The amount of mortgage the firm held over the property was £1250. The price of the place was to be £3000. Mr Limbrick was willing to put down £700 cash, and a three month's bill, endorsed, for £100, also £50 each at six, ten, fourteen, eighteen, twenty-two, twenty-six, thirty, thirty-four, and thirty-eight months, bearing interest at 8 per cent. Mr Young, the defendant, agreed to the terms. He asked to have the terms on a slip of paper to give to hie solicitor. The above terms were discussed with the defendant, and Mr Limbrick was prepared to purcdase on the terms. Defendant did not at that time nor bad he since asked for any alterations of those terms. Witness gave Mr Young the paper asked for, and next morning Mr Lee came in with it in his band, and used words to the effect that "they would settle it to-morrow." Mr Lee did not suggest any alterations in the terms on behalf of Mr Young. Defendant did not come to witness the next morning. Raw Mr Lee, however, who said he had not seen Mr Young. Later on witDess saw defendant, who gave certain reasons for not delivering up possession at once. There were some debts out, and defendant wanted a month's time in which to collect them. Witness nrged him to give up possession earlier, as Mr Limbrick wanted to go in at once. When witness left defendant that evening it was with an understanding that defendant would send up word next day whether he would be prepared to leave in a week or a fortnight. Witness knew that Mr Limbrick would wait for that time. The defendant ajjain failed to keep hie appointment, and witness communicated by telephone with Mr Murton at witness* Spit stores, and asked him to fetch Mr Young to the instrument. Mr Young could not hear well through the telephone, and Mr Murton conducted the conversation on behalf of Mr Young. In reply to witness , enquiry as to when defendant was coming up to town, the latter replied to the effect that it was all off. Witness rejoined expressing surprise at such decision, and asked why he withdrew after agreeing to the terma. To this question the reply came in Mr Young's voice, " Ob, because I am offered £500 more." Witness saw Mr Lee and told ♦he latter what had transpired. Mr Lee said, " Ah, the fool, he will have to pay me," and witness added, "he will have to pay me too." Witness spoke again through the telephone and lold Mr Young tbat Mr Lee was very irate about the matter, but be received no anewer to that. Defendant had never spoken to the witness about the matter since until Tuesday last when he offered £15 to settle the matter. Witness refused it. The comraiseion charged (2£ per cent) was fair and reasonable for a sale.

By Mr Lee : The advertisement was taken out of the paper by defendant's direction?. It was probable that this was done at the suggestion of the firm and not by Mr Young. Witness did not coneider the authority to sell had concluded when the advertisement was stopped. Had not eeen another advertisement since in Mr Young's own name offering the hotel for sale. When Mr Lee

came to witness with the terms of sale in his hand there was some conversation about the smaller bills from six to thirty-eight months being secured. The bills could have been approved, and would, had Mr Young desired it. Mr Lee bad further expressed an opinion that Mr Young would not sell the stock at the price named. Subsequently defendant himself agreed to that matter during a conversation at Ruddock and Fryer's corner. Witness believed, when Mr Lee came to him, that it was for the purpose of drawing the deed. Witness telephoned to the Spit on the first interview to save Mr Lee the trouble of going down to see the defendant. That was on November Ist. Mr Limberick's terms were subject to his finding everything as defendant had stated. The words defendant used with respect to furniture, &c, were " You step out and Limbrick steps in." No ". sale note " had ever been employed by the plaintiffs in previous transactions, and witness did not thiDk that such would be required in the present case.

By Mr Lascelles : Mr Young asked £3000 only, and that was offered. Everything connected with the sale was completed except the taking over of the property.

Mr Lee admitted that the words heard by Mr Liddle through the telephone about the bargain being off, &c, were used by the defendant.

H. R. Murton deposed that on two occasions be bad conversations about tbe matter in dispute with Mr Young. The second time he saw Mr Young he handed that gentleman a letter containing the account for commission. Mr Young said he did not think he would have to pay it, as Messrs Banner and Liddle had nothing in writing to prove the agreement. At neither interview did Mr Young deny to witness that a sale had been been made or bargain concluded.

By Mr Lee : It did not strike witness that defendant's language to him implied that he could not be made to pay because there was no writing to prove the agreement with Mr Limbrick. Witness nnderetood it the other way. Would not be surprised to hear that Mr Young meant other than what witness understood him to mean.

By Mr Lascelles : He would not believe hat be meant 6uch, however.

W. T. Limbrick said that certain terms of purchase were discussed between himself and Mr Liddle for the purchase of Mr Young's hotel. He had been agreeable to those term?, and, if wanted, he would sign the agreement now. He had also been agreeable to allow the defendant a week or a fortnight to give up possession.

By Mr Lee: Witness first asked Mr Banner one day in the street if he knew of anything to suit him. Subsequently Mr Liddle introduced the sale of Mr Young's hotel, and witness said he thought h would suit. Witness had not been all through the hotel, nor did he know how many rooms were in it. Mr Liddle informed him of the value of the furniture, and witness took it for granted. It was just in the beginning of this month that bo arranged terms with Mr Liddle. Remembered about the Ist or 2ad November speaking to Mr Lee on the subject, but was uncertain what transpired. Did not understand that he was to pay Banner and Liddle anything for procuring the house for him. It was simply a matter of meeting Mr Banner in the street, and asking if they could do anything for him.

By Mr Lascelles: As a late publichouse keeper witness was quite prepared to back his own opinion as to what the house was like inside. He remembered when it was built.

H. A. Banner gave evidence of being present duriag the discussion that took place at Messrs Ruddock and Fryer's corner about the sale of the hotel. The matter being discussed when witness arrived was respecting the time of giving up possession. On leaving witness Mr Young pronrised to send up word at 4 o'clock whether he would give up possession in a week or a fortnight. Mr Lee joined witness and his partner in representing to the defendant that he c©uld easily leave in a week. By Mr Lee: Witness did not understand that the matter was unsettled at the time of the conversation referred to, and was dependant on Mr Youug's answer. The whole transaction was then completed as far as Mr Limbrick and the plantiffs were concerned.

Mr Lascelles remarked that, as his learned friend on the other side did not dispute the rate of commission charged, he would call no more witnesses.

Mr Lee said he would not call any witnesses. The facts of the case bad been narrated very much as he (Mr Lee) would have narrated them himself. The question was what was the outcome of it all. Perhaps Mr Laacelles would now address the Court.

Mr Lascelles said he would] do nothing of the kind. The practice in civil cases was, the world over, that the party who had the right to begin had the right to conclude.

Mr Lee explained that he had expected that Mr Laseelles would address the Court first, and give him the right of ireply to any fresh law authorities or precedents that might be brought forward by his learned friend.

After a rather sharp discussion between the counsel, His Worship ruled in favor of Mr Lascelles' contention.

Mr Lee then addressed the Court, and submitted that no sale had been completed that would entitle the plaintiffs to the commission claimed, certain necessary elements to the agreement being wanting up to the last interview. Messrs Banner and Liddle were certainly entitled to something for their trouble, but Mr Lee held that the £15 offered by Mr Young was quite sufficient remuneration for anything that had been done by them.

Mr Lascelles replied at considerable length to the objections urged by Mr Lee, and pointed out that the evidence was entirely favorable to the plaintiffs. If Mr Young had anything to offer in evidence that would have been useful to hie case, why bad be not been placed in the witness box ? It was the defendant, and the defendant alone, who bad prevented the completion of the deed of purchase. His Worship said the cisc was one of some importance, and he would reserve judgment in the meantime.

The Court then rose,