SUPREME COURT.

Lyttelton Times, Volume CVI, Issue 12587, 23 August 1901, Page 3

SUPREME COURT.

. * . IN BANCO. Thursday, August 22. (Before bis Honor Mr Justice Denniston.) BAKER V. HOPKINS. ' This was an appeal from the decision of the Stipendary Magistrate at Christchurch in which Oharles George Baker, appellant, sough* the reversal of -a judgment of the lower Court in a case in which he had been plaintiff and Allan Hopkins, commission agent, defendant. There wais also a counter claim in which Hopkins had claimed commission. Mr Stringer appeared for the appellant, and Mr Lougbnam for the respondentMr Stringer, in opening the caiso, stated that the appellant had given the respondent authority to let or sell a property known as the Black Horse Hotel. The respondent had then entered into negotiations with two persons named Nicholls and Hammond, and they had signed an agreement which the appellant had been satisfied with. The respondent had subsequently written a letter to Mr Hill, solicitor for the appel-. lant, stating that as he was solicitor for Baker and receiving money on his account the writer concluded his work was <$ an end. Counsel submitted the real point was whether alb was implied on a commission agent to find a ratal purchaser able and willing to purchase. A deposit had been paid to Hopkins, who was the agent and had made the contract. Baker had asked for the deposit, but Hopkins had said, "I will give you that later." Appellant had concluded be had better take the matter from Hopkins's hands, and had written to the future purchasers, saying the money should go to Mr Hill, his solicitor. It.befog admitted that the would-be purchasers had been unable to carry out their contract made the question whether cir mot Hopkins 'had completed hi® contract to find a purchaser. Counsel submitted' that the words "able and willing to purchase" in the respondent's contract had not been fulfilled, and .therefore hie was mot entitled to commission. Sale, in fact, meant a completed sale, or letting, a completed letting. Counsel cilbed cases in favour of his cowtemibkm. Be) submitted that respondent had not earned his commission, as he had not found a purchaser " able" and willing to purchase, and he must have known that uue purchaser's resources were limited, as he had tried to ffoamoe him. The 'Magistrate had taken a mistaken view of the taking of the matter out of Hopkins's bands. Baker had simply warmed the lntendtag purchasers that payments to Hopkans would ndt.'be payments to him. Mr Loughnan, for the ueispondent, contended! that the case was more a question of fact than of law. In all the cases cited in argument there had been an open instruction to the commd&skm agent to sell or let, and if 'uoere had been nothing: more than that it would be the duty of the agent to find am able and wiling purchaser, and if he dU mot do so .thm he would not be entitM to commission. Ho submitted that had the .agent let the hotel or not was not entirely the question.- Hopkins had said in his evidence that he had told Baker he had let tike hotel to •Nichols and Hammond, and that hie (Hopkins) was financing them. With that knowledge Baker had accepted the contract, onid counsel submitted Hopkins had then earned Us commission'. Hopkins had beem unable to finance the purchasers. He would have financed them but for a letter which Hammond had received from Baker and shown to Hopkins, stating that any micaieys paid to Hopkins were not to be consiidlered as paid to him (Baker). < His Honor: There is no evidence of that letter. You are contending on that letter, but it was (mot produced, amid there was n!o evidence regarding its contents. Counsel submitted that Baker, having left Hopkins under the impression that his services were at ail end, was liable for com-

umbsioo. in delivering said the contract had 'been reduced to -writing, and to that he must refer. Baker had authorised) Hopkins to let the hotel, and, on letting it, Hopkins would receive commission. The simple question was: Had Hopkins produced any evidence which justified the Magistrate's finding that he had let the hotel, or any evidence that he had been prevented from completing the letting by the action of Baker? The agreement meant that Hopkins should find a purchaser able and willing to purchase. This was equal to finding £IOOO for the goodwill and payment for. stock. Until that was done, until a person able and willing to pay that, or does pay at, or a person whose terms the owner of the hotel accepts is found, the respondent had mot carried out his contract. As a result of tne transaction, the hotel had, in fact, not been let, and the appellant -had only got an agreement. The case amounted to a commission agent wanting a sum of money for inducing a maw to ©liter into a contract w.ach 'he could not fulfil. There was nothing to show the grounds of tttie Magistrate's judgment, but he (his Honor) presumed that he 'had thought Baker had done something which had prevented Hopkins carrying out has contract. The onlv act of Baker was the writing of the letter, and if Hopkins relied upon that letter as sufficient justification for his withdrawing from the matter,-.it certainly rested with him to show that the contents of the letter justified his withdrawing. He had entirely failed to show that anything done by the appellant had prevented Tils earning the commission. He (Bis Honor) concluded the Magistrate had arrived at a wrong conclusion, and the appeal would be allowed, with £7 7s costs. The Court rose at 12.30 p.m. LAW NOTICES. ' X 'ty Fbiday, August 23. (Before his Honor Mr Justice Denniston.) IN CHAMBERS, 11 a.m. Re Donald H. Monro, deceased. —Motion for letters of administration. Mr Cowlisha.w. .: Re Jas. Henry Wrenn, deceased.—For; consideration of report. Mr Widdowson Re Robert E. Stoddart, deceased.—Motion for letters of administration.. Mr Loughrey. Re John Hancox, deceased (Mr Johns-; ton), and re Thomas ■ Lucas, deceased' (Mr 1 Weston).—For probate. Sime v. Hume and another.—Originating summons. Mr Johnston. Re Elizabeth A. Livingstone, deceased.; — For letters of administration. Mr Joynt. Wade v. Overton.—For judgment. Campbell v. Campbell.—For judgment.

[Per Press Association.] WELLINGTON, August 22. In the Supreme Court the following sentences were passed:—Charles Cockley, for horse stealing, twelve months' imprisonment; Edward Creasby and George Kelly, for theft, eighteen months' imprisonment.