CLAIM FOR COMMISSION.

Mataura Ensign, 29 November 1911, Page 7

CLAIM FOR COMMISSION.

A LUMSDEN CASE. SUPREME COURT ARGUMENT. At the Supreme Court, Invercargill, on Tuesday the case was heard before His Honor Sir Joshua Williams and a jury of four, Cornelius Maloney v. J. S. Nicol and Son, claim"£ls7 10s, commission on sale of property. Mr W. F. Inder appeared for plaintiff and Mr E. R. Bowler for defendants. The following jury was empanelled: Charles Grey (foreman), Joseph Lyons, G. P. Williamson, and J. A. Walker, i Mr Inder said that in consequence of something Maloney had! heard he had in May last approached Mr Nicol, sen., wlio informed him that he had some property near Lumsden for sale and gave liis price as £3 per acre. Acting upon this information Maloney had introduced to the Nicols Mr McArthur as a prospective buyer. On the Sunday and Monday following both Mr McArthur, sen. and his son had looked over the property and decided to buy it. When young Mr Nicol came down in the morning looking for McArthur, jun., Maloney asked him to remember i his commission, but Nicol said that Maloney was not entitled to any commission as he had not a license as a commission agent. They had decided to make him a present, but Maloney said that was no good to him. The price arranged for was £10,659. Counsel submitted that before plaintiff could succeedi in his claim he nmst succeed in proving three things: first, that he was employed to sell tne property; second, that by his instrumentality a sale was effected; and, third, that in the absence of a specific agreement, a fair charge for commission was made. His client was claiming only 1£ per cent., which was below C'liamber of Commerce rates at they now stood. The purchasers of the property had said that if it had not been for Maloney's efforts the property would not have been sold. Cornelius Maloney said he was assistant at the Railway Hotel, Lumsden, and occasionally did business as a commission agent. He had heard that Mr Nicol's property was in the market and saAV Mr Nicol about it. On May 15 he had called Mr Nicol, sen., into the commercial-room of the hotel and asked him whether the property was for sale and what he wanted for it. Mr Nicol said he wanted £3 per acre and had just received a letter offering £2 10s. Witness asked him whether lie (Nicol) would like him to sell it as he thought he could get a buyer. Nicol said : "Yes, I wish you would, as I want to sell it beforo I make more improvements upon it." Witness said he would do his best, and Mr Nicol, thanking him, went out. About a fortnight later he saw Nicol again. He mentioned the matter of purchasing the property first to Mr Mcarthur, sen., and then to his son. Witness thought it a very cheap property. He had told Mr Nicol, sen., that Mr McArthur was a likely buyer. He had asked McArthur if he would poy cash, and 1 McArthur had eaid

"Yes." Nicol said ho did not want all cash as he would sooner leave some on the place because he had not got in the meantime another suitable place in which to invest money. Witness sawi Mr Nicol, jun., abolt commission, but he said witness could not claim commission as lie had no right to it. He also mentioned about making witness a pre-! sent. Witness was present when sale note was signed and witnessed it. Mr Nicol, jun., wrote out the document and gave it to McArthur, who paid him a deposit of £SO and got a receipt. Witness had delivered his account for commission to Mr Nicol, sen., at his own. place on the day of the clearing sale, and Mr Nicol said he had never told witness to sell his place. He had got no particulars regarding the property from anyone except Mr Nicol. It was through witness that the property was sold. He had seen no other agent in tlh> matter at all. He had 1 got his idea of a H P«r cent, commission from a 1010 directory, but knew now that he might have claimed more. He had received no commission from the sale of this property. To Mr Bowler: He had never looked up a directory regarding a commission before and had never before earned a commission on property. He was employed about the hotel, the proprietor of which was his brother-in-law. He saw the Nicols now and again but did not know them well. So far as Nicol could: have known, witness was simply a servant at the hotel. He said nothing to Nicol in the commercial-room about a friend of his (witness) buying the property, and nothing about his being a commission agent. He was not present when the actual price of the property was arrived at. The bargain 'had been struck before witness went lip to Nicols' and and saw the paper signed. He would swear that he did not say: "If I do not get my commission the deal may be off." He had' told Mr McArthur that Nicol had placed the property in his hands for sale. To Mr Inder: Nicol had told him that the property was for sale at £3 per acre. The court then adjourned till next day.