ELTHAM MAGISTRATE'S COURT.

Hawera & Normanby Star, Volume LXVIII, Issue LXVIII, 11 July 1912, Page 2

ELTHAM MAGISTRATE'S COURT.

WEDNESDAY, JULY 10

(Before Mr Kenrick, S.M.)

POLICE OFFENCES

TFROM OilU. OWN COK,EEtfI'C>NI.EN r.l

For allowing a chimney to be on fire H. Rochfort was fined ss, with costs 7s. On a charge of false pretences—uttering a valueless cheque—Frank Corvell was convicted and sent to gaol for 14 dass

Judgment by default was given in the following cases: M. Mark v. Joseph Adams £-1; costs 10s. L. Webby v. C. Leatham 6s 6d. costs os. O. Meuli v. A. Julian, £2 3s 6d; costs, Bs. New Zealand Advances to Settlers' Department v. M. McLeod and A. McLeod, £7 19s 4d; costs.lls. AGENT'S COMMISSION CASE. J. Wheeler, land agent, v. Ann Mitchell, claim £112 for commission on sale of Mrs Mitchell's farm at Tirimona.— This case was before the Eltham Magistrate's Court on June 26, when the evidence for the plaintiff was given, and was reported in the Star on June 27. Mr Weir appeared for the plaintiff, and Mr Sellar for the defendant. Mr Sellar called

H. Halliwell, solicitor, Hawera,Avho deposed that after receiving a message irom Wheelej 1, he had written to one of the mortgagees—Mr -Hammond—asking if he would be prepared to accept payment of the mortgage he had on Mrs Mitchell's property, with interest up to June 30. Mr Hammond, declined. Witness had never informed* Wheeler that the existing mortgages could be bought.

Ann Mitchell, defendant, deposed that she was OAvner of the property. She fivst saw Wheelev on Good Friday.' when i he came to the farm with Mr Sanson. Mr Sanson said he brought Mr Wheeler to see the farm, as he (Wheeler) was going to finance him (Sanson) to buy the farm. Did not know that Mr Wbeel-c-r was a land agent until after he had gone. Never saw Wheeler's note-book that he <>aid he worked out the commission in. Sanson asked witness to let him have the farm at £29 per acre. Declined, but afterwards said, as there was no commission to pay, would let him have it for £29 ]os. Did not authorise Mr Mitchell to sell the farm. Always did her own business. The farm'had been in her name for 18 years, and she bought a;id sold her own stock. Had seen Mr Wheeler on Saturday, Avhen he came with Mr Anderson. Mr' Sanson, and Sanson's son. Wheeler said he wanted to lift the mortgages. Witness sjiicl it could not be done. Either Mr An- ; der.son or Mr Wheeler said they could | rj.ri.st-; £2,000. Signed the agreement I. xpecting that they were going to lift ! the mortgages. Had doubt that the i mortgages could bs lifted until she was j assured by Wheeler.Did not understand \ that she had anything to do with the ! liftinc of the mortgages. Did not hear l Mr Wheeler say that his commission would be £112. Did not authorise MiMitchell to arrange anything about commission. Understood that the cost, £27. would cover all her costs. The mortgages were still on the property. Fixed the price of the farm herself.

By Mr Weir: Mr Mitchell took Mr Sanson over the farm. Told Mr Sanson the price of the farm —£30. Mr Sanson said he was quite satisfied, but that he had to get his money in from his other farms before he could purchase. Mr Sanson and his wife came out again on Sunday, and his wife said she liked the farm. Mr Sanson said he had not got word of his money. Next saw Mr Sanson when he came out with Mr Anderson and Mr Wheeler. The cattle were sold on the Saturday after Good Friday. Told Mr Mitchell what she wan feed for the cattle. Had the farm in the hands of three other agents for sale. Was not anxious to sell. Mr Mitchell was in bad health. Promised to pay other agents commission, but did fiix the amount. Did not know anything about Mr Wheeler's position. Mr Anderson read over the agreement to her, and she understood it. Mr Anderson and Mr Wheeler said the mortgages could be lifted. Did not hear Mr Anderson say anything about commission. From beginning "to end heard nothing abnnf. commission.

By Mr Sellar: Did not authorise MiMitchell to fix the price. All the terms were agreed to by herself. £27 was to cover all her expenses for the lifting of the mortgages. Did not recognise any other expense. This was the only witness for the defence.

Mr Sellar, in addressing the Court, said that no evidence of agreement to pay commission had been given. He pointed out the inconsistencies of Wheeler's evidence. Wheeler had stated that lie spoke to Mrs Mitchell about the commission, but two other witnesses (Messrs Sanson and Anderson) had stated that it was to Mr Mitchell that commission was mentioned. Ah to the question of holding the deposit, Mr Anderson had stated" that Mrs Mitchell was to hold the deposit, winch was different to what Wheeler had stated. Mr Anderson had also stated that he did not remember anything having been said to Mrs Mitchell about commission. Counsel pointed out that everything of importance ab the interview was put to Mrs Mitchell definitely. Mr Mitchell was not in any way appointed as Mrs Mitchell's agent. He asked the court to scrutinise the case from the point of view that Wheeler was acting for Sanson and acting for Mrs Mitchell, too. If he admitted, which he did not, that Wheeler was agent, he would prove that he was not entitled to commission, as he had been guilty of misrepresentation. He quoted a case—Jones v. Taylor—in which the Jiidge had held that an agent had to carry out his duty with skill, care and diligence. Was it care and diligence on the part of Wheeler to tell Mrs Mitchell that she could lift the existing mortgages when he knew it could not be done? He quoted Wright, who said that an agent who acts in the interest of the third party rather than in the interest, of his principal, was not entitled to commission.

Mr Weir, for the plaintiff, said that four witnesses had testified that the question of commission had been mentioned, while the defendant, who seemed a hit hesitating about answering some of the other questions put to her, answered this one very emphatically. He asked the Court to consider that the outstanding; feature of this transaction was that the nlace could not have been sold unless the commission had been agreed to. The financing required that the commission should be paid. If tho essence of the contract renuired that the commission had to be rcaid. then the signing of the agreement by Mrs Mitchell was a ratification of the bargain. The defendant had put the farm into the hands of other ag°nts for sale and hnd agreed to pay them commission. Why should she no+ pay his client? As to_ the question of mi Representation raised by conn sol for defendant, h^> pointful out that +'i" transaction 1-xirl "•ot>« thronqrh. and there was "otMn"" 'i thnt point, of. cnnirl not, ]\*\ hnl/J that PnT>«on. the r»nrpha 9pr. was to p«y cn^'nisHon s'npn he had to loso on tW ■^^'.ilisn+inn of mor totems, +"• the noint, of misrepresentation, ho'con+«nrl"d t-^o+, thp'-e boen «^ vi'fni li'-»"4 ~* dn+" on +hf> "ovt. o f vn,n ft i A *, TTi?. AVovsiiij^^ i*y jvivin" in fly merit, .c">irl t|i," a W as an nrriinnvv coir'boon introducsd by the agent. The!

vendor and purchaser met first, and the purchaser knew all the particulars about the property before he met plaintiff, but he-had some mortgages which he could not sell. At this point Wheeler came in and stated that he could realise on Sanson's mortgages. They then went to defendant. Defendant did not go to the agent. The plaintiff had no written authority to sell the farm, and he (his Worship) was not satisfied that there was sufficient evidence of verbal authority. Evidence of a verbal agreement must be strong and clear. If a land agent chose to transact business Avithout Avritten authority, then he must take the consequence. Plaintiff would be non-suited. Costs £5 14s. Mr Weir asked for leave to appeai, Avhich Avas granted; security of £20 to be deposited in the Court.