SUPREME COURT

Hawke's Bay Tribune, Volume IV, Issue 241, 25 September 1914, Page 7

SUPREME COURT

NAPIER. (Before His Honour Mr. Justice Denniston). YESTERDAY. Tic: attention of the court was occupied with the bearing of a case in which 'Javid Whyte and Cu., Hastings, aplealed against the magiirtrate’s decision a giving judgment for Victor Emanuel i inter. Wairoa, in connection with a ounter-claim for commission (£62 10/-) >n the sale of .shares. Mr. Blair appeared for the appellant. Did Mr. Lusk lor the respondent. The appeal sei out that the magisrate was wrong (1) in deciding that the ale cf shares in Winters Limited from he plaintiff to William Frederick ■Kans was not brought about by the ’efemlant company through the agency .-f David Whyte; (2) in deciding that ':o plaintiff's letter to the defendant <n August 15th tlid not affect the ad'ission by the plaintiff that he had i- ti-m-ted the <1 >ii adants to sell his hares in Winters Linnte i ; (3) and that he judgment was wrong in fact and n law.

i His Honour said that to succeed the ■ppellavts would have to establish that here was a contract between David Vhyte and Co. to pay the commission, •”d that the letter (produced) was an ■dmission. Mr. Blair said the existence of an to pay £62 70/-, was an adnission. He submitted that the magisrate had not directed his attention to ■scertaining what the original contract vas between the parties as to the terms tpon which the commission was to be ■>ayable in respect to the shares in Vinters Limited. He had said that it vas immaterial to consider that quesion. He submitted that in order to trrive at the decision in this case it vas necessary for his Worship to ascerain exactly what services had to be Performed, so that the defendant com—•any might earn the commission. He vas referring to the making of the conraet. There was, he contended, an ■xpressed contract to pay commission, '’he evidence as to the terms upon vhich YVhyte was instructed had been iverlooked. He (Mr. Blair) submitted ihat the contract was not what is called t> special contract, and that the eoinnission became payable by Winters limited upon the introducing of the nirehaser. The commission was earned vhen Evans purchased the shares, vhich was actually completed in April, ’912. Even if the facts did not estabish a legal right to commission, the •ircumstanees of the interview of Augist 15th constituted a contract in the ’.ature of a compromise, of which a etter produced was regarded as an idmission. The magistrate treated the ■•tatemeiit regarding Mr. Whyte’s conersation during his interview with Vinter as substantially collect, and •et said, in efi'eet. that the conversaion <,in which a verbal contract was ■lleged to have been made) did not take >lace. He submitted that Winter’s “videnee from beginning to end was uneliable, aril contended that the shares veto only sold to Evans as a result of he introduction by Whyte. Mr. Blair ■eviewed ihe evidence at length. Mr. Lusk said the original employnent ol Whyt” was not for the sale of ;har; : >s in Winters Limited, but to obain further capital to go into the usiness. As it was, the transaction lid net bring in any capital into the .usiness at all. Mr. Whyte had him?lf stated that he was to find a man ith two or three thousand pounds apital, and from the evidence it was •erfeetly clear that there was no emloyment lor the sale of shares at all. he suggestion to find fresh capital was ever carried out. Winter had nothing ■ hatever to do with the sale of shares y Bi-oail to Evans, and Whyte could ave no claim in that respect, except torn a .-ale by VVinter. It was Broad dio entered into negotiations with wuns through Air. Hindmarsh, and if >ny commission was earned it would 'ave b-cn through Broad. His Honour said the original claim >ad not been suppwted. Whyte’s ransactioiT. with Evans were never 'anied out. and < ame to an end. And here was no authority for saying that t claim could bo made on the meie in■■roduction. The appellant had no real •ause of action against W:nl<>i-. Winter 'as never liable to pay Whvte any toney at all. and that being the ease e was bound to sav that the appellant 'nd tailed to establish his case. The appeal was dismissed with £lO 0 - costs.