A COMMISSION CASE.

Evening Star, Issue 12762, 15 March 1906, Page 4

A COMMISSION CASE.

K MR WTDDOWSON's' JUDGMENT. ' :?■ Mr H. Y. Widdowson, S:M., to-day delivered the following xesprved judgment in the case of A. Matheson and Co. v. Jessie I. Brown, a claim for £l6 for. commission on the sale of a house at Glenroy:— The plaintiff, through."-'the solicitation of ■ his canvasser, obtained from defendant authority to sell her property at a price stipulated to be free of commission. The plaintiff's canvasser (Dyer), in his evidence, states that the property was advertised, arid it appears that a * Mrs Stuart called, and agreed to purchase subject to being suitably financed. An agreement was at the same time drawn up and signed by plaintiff on behalf of Mrs Brown and by Mrs Stuart, but did. not include the conditions referred to, and a deposit of £2O paid to the plaintiff. This condition does not appear to have been accepted or acquiesced in by the defendant, and owing to the plaintiff not being able to make the necessary financial arrangements, the sale was ultimately cancelled, and the deposit was returned by the plaintiff to Mrs Stuart. Within a, fortnight afterwards the property was sold by the defendant herself to the same Mrs Stuart, a Mr King having given his guarantee, which enabled the purchaser to complete the purchaser. The plaintiff had nothing to do with, obtaining this guarantee,. but now claims commission on the ground that the sale was effected through his introduction of the purchaser, and, failing his right" to full commission, upon a quantum meruit for his sendees. In Barret v. Brown (6 T.L.A., 463), Lopes, L.J., in giving judgment, said: " The question to be decided was, whose introduction had brought about the purchase? He thought it was brought about by the introduction of the defendants. The first introduction (that of the plaintiff) resulted in nothing; the second (that of the defendants) resulted in a sale, and entitled the defendants to the commission." In Edwards v. Walton (10 N.Z.L.R., 428), Mr Justice Richmond said that actual event was that Mr Griffiths, who was introduced by Walton, did not purchase through Walton, but after some interval of time purchased through Stevens and Gorton. . . . The relation of buyer and seller was really brought about by Messrs Stevens and Gorton." In Taplin v. Barrett (6 T.L.R., 30), a Mr Simonds had been introduced by plaintiffs as a possible purchaser, but owing to the parties not being able to arrange terms he did not then purchase.. The _ property was subsequently placed in the hands of an auctioneer (not the plaintiff), and Simonds purchased at the auction. It was held that- the plaintiff was Hot entitled to succeed, the purchaser having purchased through the intervention of a new agency. And in the latest case of Miller v. Radford (19 T.L.R., 576, 1903), the M.R., in his judgment, says: "It wus important to point out that the right to commission did not arise out of the mere fact that agents had introduced a tenant or a purchaser. It was not sufficient to show that the introduction was a, causa sine qua noil. It _ was necessury to show that the introduction was an efficient cause in bringing about the letting or sale. Here the plaintiffs failed to establish what was a commission precedent to tne right to commission—viz., that they had brought ahoat the. sale. It was open to the defendant in an action like this to _ say either that though the plaintiffs effected a sale they were not his agents, or that though they were his agenfs they had not effected the sale. If the defendant proved either the cue or the other, the plaintiffs failed to make out their case." In the present case •it is clear tiiat the plaintiffs did not effect a, sale, and that Mrs Stuart could not have purchased the property and did not purchase it but for King's guarantee. On these grounds, and from the authorities cited, the plaintiff is not entitled to succeed'. Mansel v. Clements (9 L.R.C.P., 139) does not apply. The plaintiff sets up an express contract, and cannot therefore claim upon a quantum meruit. I ani_not called upon to decide the other contention of the defendant's counsel—•viz., that the defendantis not entitled to commission owing to his breach of duty; but there is another point. Dyer states that the property was advertised, but there is no evidence* to prove Airs Stuart's introduction by that means, and it is questionable, upon the Chief Justice's decision upon the evidence in * Calder v. Harcourt (2 Gaz., L.R.), as to sale of lot 1, therein mentioned, whether the plaintiff haa proved any introduction at all. Judgment for defendant, with costs amounting to £1 13s. Mr Moore appeared for plaintiffs and Mr Adams for defendant.