CLAIM FOR COMMISSION

Evening Star, Issue 16996, 19 March 1919, Page 8

CLAIM FOR COMMISSION

DEAL THAT FAILED FOR FINANCE. In the Magistrate’s Court yesterday Mr Widdowson, S.M., was long engaged in hearing the case of Siovwright, Haggitt, and Co. (Mr J. S. Sinclair) v. Janies CalI laghan, of Green Island (Mr A. S. Adams), a claim of £B2 3s 5d as commission on the sale by way of exchange of a farm at Green Island, the property of defendant. The defence rested mainly upon an tion that the transaction (which never came to fruition) was conditional upon the defendant being financed. In arguing the case after the evidence had been heard (it was published yesterday), Mr Adams stated that it was impossible for an agent who represented both parties (there was a commission from both sides) to have given the services to Callaghan that he was entitled to have. An agent should give his client the benefit of his experience in just such questions of finance as had been involved for defendant in this case. He was a dairy farmer, with no assets free, and the transaction meant absolute ruin for him, since the balance of equity due from him to Roxby (the owner of the farm to be exchanged) amounted to £2,500, which would have had to be financed on margins or second mortgages. It was an impossible transaction, unless by someone interested in carrying it through, as Haggitt and Co. were undoubtedly interested, to get two commissions. Counsel would go so far as to say that when a land agent approached a man such as defendant with a proposition of this kind, he could not discharge himself of his duty without clearly explaining to the client that he was not merely exchanging his property, but also undertaking to find, within two or three weeks, seme £2,C00 or £5,C00 in cash. Unless the Court acted upon some such rule, men of the class to which defendant belonged wore simply at the mercy of anyone who might come along and induce them to enter into an agreement. The Court would hold also, he submitted, that it was the duty of plaintiffs to insert something in the agreement to the effect that it was subject to finance. This agreement should have contained provision that it was subject to Callaghan being able to make the necessary financial arrangement. Counsel submitted that the story of defendant and his wife—that the plaintiffs’ agent had given them assurance that upr-a signature everything would be all right—was a reasonable) story. Defendant was not seeking to evade the transaction, nr.-d would carry out the bargain now if the agents found the money. Mr Adams also argued that there was no authority in writing (as required) for entering into the agreement, i bacauso the authority in existence was not produced arid signed till after the contract > was signed- j Mr Sinclair said counsel for the defence j bad talked a great deal about agents’ i duties. But there was another aspect of duty to be considered—the principal's duty. Surely in circumstances such as those obtaining in the present case there had been a certain duty devolving on the principal to disclose his financial position. It had been Callaghan's duty to point out to the agent his position in regard to completion of the deal. During the several discussions he should have stated his financial position. This case was one in which the principal of the agent who was negotiating with the other client for exchange —tins principal in whose behalf the agent was running about all over the country—was apparently “ a man of straw, who had known all the time that he was rmt in a position to go on wit;i the transaction. It was suggested that no iimuiry had been made by the agent as to Callaghan’s means, but it was submitted bv plaintiffs that an effort was made. Mr Roxby, whose property was the one to bo exchanged, stated that in Ins presence Mr Coombs (the agent for plaintiffs) questioned defendant as to bis means, and that defendant deliberately out him eff, and led him to believe that he did not require any interference in his financial affairs. Defendant suggested that there was no word of finance until the minute before the agreement was produced, but this was an impossible suggestion, and tire reasonable inference to be drawn was that—-as Mr Roxby and Mr Coombs said—there was inquiry, and Callaghan was not prepared to discuss finance. Defendant suggested that the sale was to be subject to plaintiffs arranging all the finances, but be admitted that he did not give particulars of the properties or what portion the money was to bo raised on : and he and his wife also admitted that they had gone secretly to get finance from Wright. Stephenson. If the agent was to arrange finance, why had thev done this? The Magistrate reserved his decision.