SUPREME COURT.

Evening Star, Volume VII, Issue 2061, 13 December 1869, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Day. (Before His Honor Mr Justice Ward.) GILLIES AND STREET V. SI‘LEAN. Mr Macassey for the plaintiff ; Air Barton for defendant. Mr Macassey stated the case. It was a claim for commission for the sale of an estate belonging to the defendant, the commission on which amounted to Ll2O, in addition to which was a claim "for advertising to the amount of L 3 15s. The real claim was for L 23 15s, the amount, as common in such actions, having been exaggerated. The defendant pleaded not indebted, excepting in the sum of L 3 15s, the amount due for advertising. The case had been tried in the Resident Magistrate’s Court, but Mr Strode could not decide upon the evidence before him on which side the right lay, as Air Street, on the part of the plaintiffs, swore that no special agreement was entered into respecting the amount of commission to be charged on the sale of the property ; while the defendant swore that it was agreed on the part of the plaintiffs to charge 11 per cent. Air A. C. Strode, Resident Alagistrate, on being called, said that the case was tried before him on the 6th August. The defendant was sworn, and stated that he agreed with Mr Street in his room to charge a commission of 14 per cent. Mr Street swore there was no special arrangement. At the close of the evidence the plaintiffs proposed to accept a nonsuit. Cross-examined by Air Barton : It was in course of delivering his judgment that the plaintiffs chose to accept a nonsuit. Re was about to deliver judgment for the plaintiffs, for he considered there being no balance between tjio testimony of plaintiff and defendant, he should have awarded the usual commission. He did not recollect clearly any discrepancy of statements made by defendant and plaintiff as to a conversation with Air Street in his room respecting the amount of commission to be charged. John Wviglft and Charles Reid, commission agents, gave evidence as to the usual rates of commission on sales of property being “2J per cent, on the value. Robert Gillies remembered the defendant haying a private interview with Air Street. Immediately gftenvards Air Street wept into his (Mr Gillies’) room, where he took down the instructions to sell the property, He

had seen Mr M'Lean once or twice since, but no mention was made of commission. lie had seen Mr Martin, the purchaser, who told him he had seen Mr M'Lean, and that he had also seen the property, with which ho was much pleased. Mr Street gave evidence in accordance with the statement of Mr Macassey as to the arrangement between the defendant and himself. Mr Barton for the defence addressed the jury to show that the question had arisen from lapse of memory on the part of Mr Street, whose evidence contradicted that of his client. Mr Barton placed the defendant in the witness box, who stated that it was agreed between Mr Street and himself that the commission should be per cent. In cross-examination by Mr Macassey, the defendant said that he had been in tbe lunatic asylum sometime ago. In the Magistrate’s Court he stated some time after their first interview, five or six days perhaps, Mr Gillies in his office wrote down instructions as to the sale of the property. He was introduced to him by Mr Street. The jury found for the plaintiffs that they were entitled to 2J per cent, commission.