RESERVED JUDGMENT.

Manawatu Standard, Volume LVI, Issue 142, 18 May 1936, Page 6

RESERVED JUDGMENT.

SALE OF LAND. PLAINTIFFS WIN ACTION. Reserved judgment was delivered by Ilis Honour Mr Justice Ostler in the Supreme Court at Palmerston North, to-day, in the case, hoard last week, in which the executrices of the estate of tho late Thomas James Killick, of Palmerston North, brought an action against Mrs Bessie Holmes, ol Asliliurst, and Albert George Havill, of Asiihurst, with Leslie James List, company director, as an added party. The proceedings were for the recovery of £133 Cs Bd, being commission claimed to be payable on the sale of a section of land used as an hotel site at Ashhurst, and assigned by List to the late Mr Killick. His Honour held that the option which List secured from Airs Holmes for the sale of the land was for himself, alone, and his sale of tho option at a profit was not a breach of legal duty to anyone, or unlawful. The defence had been raised that the sum assigned to Air Killick. was a secret commission and therefore it was irrevocable by List and Foster (List’s partner at tho time of tlie transaction) and their assignee could obtain no better title. “I have already dealt with this point and held that it was not proved that List and Foster were the agents of Havill or of any other purchaser and therefore there is no. proof that this sum was a secret commission,” stated the judgment. “It was next contended that the sum was irrecoverable by List and Foster because they were not registered land agents when they obtained the option or when they induced Havill to agree to the purchase, and the assignee could acquire no better title. The sum assigned, however, was not in fact commission pri-able by Airs Holmes for services rendered to her by List and Foster a.s agents in respect of the sale of the land, although Mrs Holmes was content to represent to Mr Killick that it was. The sum was, in fact, profit made on the resale of an option. Moreover, even if the assigned. siun had been payable as commission on a sale of tho land, it was a solitary transaction and therefore not unlawful. As to the claim that the agreement is void because ill it Air Killick did not disclose his registered name and description, defendants have not proved sufficient facts upon which to base such a claim. There is no proof whatever that the name and description of Air Killick in the agreement is not the name and description under which lie was registered under the Act. I hold, therefore, that this defence fails. “Although Havill has been joined as a- defendant he was no party to the assignment, and having paid all he owes to Airs Holmes. I cannot see any principle upon which judgment can be pronounced against him. Airs Holmes has received all her purchase money, including this sum of £133 6s 8d which she represented to Air Killick was a debt due by her to List and Foster. Therefore judgment must be against her a.lone. She will have to rely on her indemnity in order to recover from Havill. As to the amount of the judgment, although the documents are not as clear as they might be I think their meaning is that Mrs Holmes agreed that £133 6s Bd, less Air Petersen’s costs up to £5, with 5 per cent, interest on that sum until paid, should go to List and Foster, and this is tire sum of money assigned to Mr Killick bv the contract to which Ali-s Holmes was a party. There is no evidence as to the exact amount of Mr Petersen’s costs, but I assume they amount to £5. He must recover these from Mrs Holmes. There will he judgment for the plaintiffs against Holmes for £l2B 6s Bd, with simple interest from October 14 1933, to the date of judgment at 5 per cent, per annum, with costs according to scale, witnesses’ expenses and disbursemeats. I allow no costs to defendant Havill", nor do I certify for the costs of an extra day.”