SALE OF MOTOR CARS.

King Country Chronicle, Volume XXIV, Issue 3151, 8 May 1930, Page 5

SALE OF MOTOR CARS.

CLAIM FOR COMMISSION. AGENTS SUE PRINCIPALS. WHO MADE THE SALE? A claim by H. J. Free and Co., formerly motor agents of Te Kuiti (Mr. J. D. Vernon), from Campbell Motors, Ltd., motor merchants, Auckland (Mr. T. C. Webster, Auckland), for the sums of £49 16s and £49 10s as commissions on the sale of motor cars, formed the subject of litigation heard before Mr. J. G. L. Hewett, S.M., in the local Magistrate's Court on Tuesday last.

Counsel for the plaintiffs set out that the defendants had appointed the plaintiffs their agents in Te Kuiti, to receive a commission on all cars sold through their agency or instrumentally, as follows: On American cars, 20 per cent, off list price; English cars, 18 per cent, of list price. That on or about 21st day of November, 1929, the defendants duly sold a Rugby special tourer to one R. M. Somerville (who was introduced by plaintiffs to the defendants) for a price of £249. That subsequently about January, 1930, the plaintiffs sent one J. Hoe to the defendants for the purpose of inspecting, and if satisfactory, purchasing a Singer car. That as a result of such introduction, the said J. Hoe purchased a Singer car from the defendants at the price of £275 cash. Therefore, the plaintiffs claimed: (1) The sum of £49 16s, being commission at the rate of 20 per cent, on the American car sold to R. M. Somerville; (2) the sum of £49 10s, being commission at the rate of 18 per cent, on the English car sold to J. Hoe. AGENCY AGREEMENT. No agreement had been drawn up between the parties with to the transfer of the agency, other than mention of intention to do so in a letter written on September 27, 1929, by the Campbell Motors to plaintiffs, stating that "the agency agreement had not been drawn up, but that this would be done next week as soon as the general manager returns from south."

Counsel held that the agency contract, however, was what it was claimed to be, and that his clients were entitled to the commissions claimed under the provisions of Campbell Motors' letter.

John Nesbitt O'Brien, who was at the time of the transactions referred to, partner in the firm of H. J. Free and Co., said his firm took over from Caley Motors, Limited. The first communication with defendants re agency was when witness went to Auckland and saw defendants with a view to arranging to continue the agency. Subsequently witness saw Mr. Bedford, of Campbell Motors, Limited, in Auckland, when if> was arranged that witness should take over the agency. No document was signed with regard to this. Witness purchased a car at that time, being allowed the, usual discount. Witness went and had a look at the different makes of cars for which he was to be agent. Witness knew R. M. Somerville, who was the owner of a Rugby car and a customer of witness'. In of last year witness discussed with Somerville the question of trading his car in and taking a new Rugby. They could jiot come to terms, however, and witness suggested that Somerville should see Campbell Motors in Auckland.

With regard to the car sold to J. Hoe, witness said that the latter continued to be a customer of witness. An interview took place at Te Kuiti between witness, Bray, the mechanic, Hoe, and Parker, a Campbell Motors' salesman. Conversation had led to motor cars, when Hoe complained about not being able to get spare parts for his Rugby truck. Bray referred Hoe to Mr. Parker "as one of the firm in Auckland, and to go crook at him for a change." Hoe, in a joking manner, said he would not buy any more Rugby products. Witness knew that Hoe had wanted to buy a light second-hand car, and witness had been to some considerable trouble on Hoe's behalf. Hoe said he was going to sell his big car and buy a Morris Minor. Bray pointed out the unsuitability of the Morris car for Hoe's requirements.

Mr. Vernon: Salesmanlike. Hoe became interested in the Singer, and asked the price of a 4-door sedan. It was arranged that Hoe should go to Auckland to meet Parker. Witness learned shortly afterwards that Hoe had bought a" car, and Yam Hoe, Hoe's., brother drove the car into witness' garage on the return from Auckland to be serviced. Witness sent out an account for commission to Campbell Motors.

"WHAFFOR." The only acknowledgment of this was a return of same with "whaffor" written in red pencil across the face of the document. Cross-examined: Witness did not know if the agency agreement had ever been drawn up. Mr. Webster: Then there is no agency agreement drawn up? Witness: Not that I know of. Plaintiff denied that he had any agency for Morris or Austin cars. At this stage His Worship, referring to the terms under which transactions between the parties were to be carried out, suggested that it was agreed that 20 per cent, and 18 per cent, discount or commission was to be allowed; whether it was to be discount or commission, it was the same thing. . Counsel for defendants submitted that there was a difference between discount and commission, which he prop6sed to point out. v Mr. Vernon: Campbell Motors used the term "agency agreement" in their letter and it doesn't matter whether "discount" or "commission" was stipulated. Mr. Webster: The 18 per cent, and 20 per cent, refer to discount to a purchaser. His Worship: What is the difference between discount and commission in tlllS C 3.56 • Mr. Webster: Quite a lot, I submit, and I propose to address the Court on that later. Mr. Webster (continuing): Why did you not during the discussion with Hoe mention direct to Hoe that he should purchase a Singer car?

Plaintiff: Why did Parker not do it? —lt was mentioned subsequently by him.* Re-examined: Martin was the agent for the Morris Minor car. To Mr. Webster: Hoe had not paid for the work done by Free and Co. on the Singer. W. G. Somerville, formerly a director of Caley Motors, Ltd., said his firm was for a considerable period connected with Campbell Motors, Limited, in regard to the agency. Witness dealt with Durant products from Campbell Motors. . Caley Motors had refused the Singer agency because they held the Austin and another English car agency. Witness' firm also at that time had the Hudson and Essex agency. On one~occasion a purchase of a car had been made by a person in this district, and witness had received the commission. His Worship, at this stage drawing attention to the letter, pointed out that the commission or discount was allowed only in cases of cash transactions. "With regard to the in which a direct trade-in had been made between the purchaser and Campbell Motors, Limited, the latter had offered the whole transaction to H. J. Free and Co. to allow the latter to bring the transaction within the terms of the letter. Somerville had first approached Free and Co., but could ribt come to finality with the latter as the tradein price asked was too high. "You could have got the Somerville transaction on the usual terms if you had only accepted the offer of. Campbell Motors, and got your 20 per cent," continued His Worship. . Mr. Vernon: Campbell - Motors would have got over that by putting 20 per cent, on to the purchase price of the trade-in.

Charles Bray, motor mechanic connected with Free and\Co., gave evidence in respect of the conversation which took place on the occasion when witness, J. Hoe, O'Brien and Parker had a conversation, which terminated in Hoe apparently deciding to go to Auckland with, the object of purchasing a Singer car -—' which he did. Subsequent service to the car was not charged to Hoe. . Cross-examined: Witness declared; that O'Brien had mentioned the sale of a car to Hoe. WHO MADE THE SALE? The first witness called for'the defence was Ernest Parker, salesman for Campbell Motors. He recalled the conversation between witness, Hoe, O'Brien and Bray. In reply to a question by His Worship as to whether, in the event of witness inducing Hoe to take & Rugby truck, Free and Co.would have been entitled to the commission, witness admitted that they would have been entitled if they were dealers. Hoe refused to purchase a Durant, and mentioned that he was thinking of buying a light English car. Witness then, mentioned that his firm were agents for the Singer car, in which witness got Hoe interested. Mr. Webster: In this case the car seems to have been sold in spite of the agents. His Worship: Oh, no. Surely, it is the duty of the salesman to assist in the sale and not to defeat the agent or to take the sale from him.

Witness: I only thought that Free and Co. were negotiating for the Durant'and the t Rugby. -I did not know they were trying to interest Hoe in a Singer. Mr. O'Brien did not know that I had got Hoe interested in a Singer until he returned from inside the office. Continuing witness said that he understood there was no agent for the Singer in this territory. Witness considered he was the only man who had been concerned in the deal which had resulted in Hoe purchasing a Singer. Cross-examined: Mr. O'Brien had been with the party when the question of another car for Hoe was discussed.

CHERCHEZ LA FEMME. - Mr. Vernon: You say that Mr. O'Brien was called into the office by a girl? Witness: Yes. Mr. Vernon: You would be surprised to learn that Mr. O'Brien never employed any girl in his office. Witness: A girl called him away, in any case. Mr. Vernon: Did not Mr. O'Brien go and get the car catalogue, for instance, from the office? Witness: No. Mr. Vernon: Then if Joe Hoe says that Mr. O'Brien brought the catalougue out, he is under a delusion?. Witness: I must have been asleep if that was the case. Joe Hoe, fruit merchant, Te Kuiti, gave evidence in regard to the conversation that transpired outside Free and Co's. garage. Parker had been the first man to "interest" witness in a Singer car. He could not remember whether either O'Brien or Bray had ever mentioned singer to him.

WHO SAID "SINGER?" To Mr. Vernon: Witness remember- ; ed O'Brien going to the office for something, but he could not say whether it was a catalogue. Witness said he might buy a Morris from "Dutchy" Martin. He would not be certain, however, who really mentioned Singer first. Re-examined: Witness could not remember whether or not he had any free service from Frse and Co. on the Singer car. He had had the car in the latter's garage, but could not say whether he had the account for same as yet. His Worship, after hearing the evidence, said in view of the conflict of. t testimony, the most reliable evidence was that of the letter. The latter was written by car merchants to people who spld cars in Te Kuiti, and surely the latter must have been entitled in some way to consideration for sales made. The only consideration could be in terms of the letter. A price list had also been forwarded, including those cars referred to in the dispute. With respect to a transaction made between Somerville and Campbell Motors direct, the latter had offered opportunity to the agents to bring such transaction within . terms of the letter, if cash was paid. • This the agents had not availed themselves of, however, and as a conse- » quence could not claim the commis- ■ sion. 1 Judgment was therefore given for* plaintiffs for the sum claimed in re* i spect of the English car only, £49 los,- : I with costs £9 Bs.