COMMISSION CLAIM

Evening Post, Volume CXVII, Issue 50, 28 February 1934, Page 14

COMMISSION CLAIM

ADVERTISING CONTRACT

UNSUCCESSFUL ACTION

Opposition advertising interests were the participants in a civil case in- the Magistrate's Court yesterday when the Goldberg Advertising Agency, Ltd., sued Francis M. Claike, a director of J. Inglis, Wright, Ltd., for ;£Bl 17s 4d, and Clarke counterclaimed for £144 2s. The' claim was admitted, only the counterclaim being disputed.

Mr. E. Page, S.M., presided. Mr. G. I. Joseph appeared for Clarke, and Mr. J. F. Stewart for the Goldberg Advertising Agency, Ltd.

The admitted claim for £81 17s 4d was for cash advances against commission, made by the company to Clarke and owing by him when he left his employment.

ORDER ?or BUSINESS.

In his counterclaim Clarke said that he was employed by the company as a special representative from about January, 1925,_.t0 May, 1931. Part of his remuneration consisted of commission on advertising business secured by him for the company. As the result of his efforts, the counterclaim stated, the company secured an order from Nathan and Co., Ltd., for the advertising business of Glaxo products for Australia.- On behalf of the Glaxo products the company published advertising matter to the extent of £5764 17s lid in various Australian newspapers. Upon this advertising it secured as its remuneration discounts from the newspapers to -the extent of £576 9s. By an agreement Clarke was entitled to one-quarter of the .£576 9s, being £144 2s, which the company refused to pay.

Mr. Joseph said that his client had commenced work with the company in 1924 as. a special representative, his duty being to approach, various companies in Wellington to secure advertising contracts. . During his seven years' association with the company he transacted something like a quarter of a million pounds worth of business. In 1926 Claike secured from Nathan's tho contract for the South Island advertising of Glaxo, and in 1928, after about 20 interviews with various members of the Nathan family he succeeded in obtaining the contract for the Australian advertising. Under the system of, Clarke's employment it was' necessary for hijn only to obtain a promise of a contract, after which another member of the firm would complete the arrangements. During one of his interviews with the Nathans Clarke was told that but for his intervention the Glaxo contract would have gone to another firm. "There seems to b& a little delay in bringing the , action, ".remarked Mr. Page. Counsel explained that the case was almost completed in February last year, but Mr. T. B. .McNeil, S.M., who heard the case, died shortly afterwards. Since then there had been no opportunity of bringing the parties together. . : BASIS OF DEFENCE. Mr. Stewart's defence was first, that Clarke did not obtain the Australian Glaxo business; secondly, that commission was paid for that business to another commission-earning employee of the company and that under the terms of Clarke's agreement the decision of the managing director of tho company as to who should receive commission was, final; and thirdly, that Clarke had no agreement with the Australian company, which did tho business and which was separate'from the New Zealand company he was.suing. Counsel explained that at the time of the disputed Glaxo contract the shareholding in the two companies was different, there being no relationship between tho companies except Goldberg's predominating shareholding in both.: The figure of £5764 17s lid, mentioned in the counterclaim was entirely incorrect, said counsel, and he submitted that the correct figure was£2sl4.

Mr. Joseph replied that the managing director, whose decision was to bo'flnal, was not Goldberg, who was tho governing director, but Paisley. Counsel had a letter written by Paisley in .which, he recommended:that Clarke's commission should be paid or that arbitration should bo arranged. ■■ ; .

According to Mr. Stewart, Paisley and Clarko left Goldberg's together and were now running an advertising business' in opposition. Paisleys letter was written after ho left Goldberg's. Mr. Joseph said that Paisley left Goldberg's about six months after Clarke did. Paisley wrote the letter while he ■ was an employee of Goldberg's. , ,' . .

Evidence was given by Francis M. Clarke, who said that he was a director of J. Inglis, Wright, Ltd.

■ Evidence for Clarke was given by. two former employees of the Goldberg Agency, Albert D. Paisley, now managing director of J. Inglis Wright, Ltd., and Vincent Noble Beasley, now a public accountant.

For the company, evidence was given by Frank Goldberg, governing director of the Australian and New Zealand businesses, and by Frederick "William Mothes, managing director of Goldberg's in New Zealand. Their evidence was to the effect that the Glaxo contract was/secured by tho firm in Australia.

In the opinion of Mr. Page Clarke had not proved that the Glaxo' contract was secured through his activities and his claim therefore had to fail. The Magistrate commented on the lapse of time .between the dispute and the action, and pointed out that Clarke had taken steps to enforce his claim only as an answer to the company's claim for £81. Another difficulty against Clarke was that Paisley, the man to whom he looked to decide in his favour had not done that.