A COMMISSION CASE.

New Zealand Herald, Volume XXXVI, Issue 11163, 8 September 1899, Page 3

A COMMISSION CASE.

AN AGENT'S LIABILITY. A case involving the question of the lin« bility of a commission agent with regard to recommending persons as tenants was heard before Mr. H. W. Brabant, S.M., yesterday, when A. Mcleod, commission agent, claimed of T. G. Tanton, gentleman, tho sum of £25 13s 6d for commission alleged to be due to plaintiff for obtaining a* tenants in defendant's Queen-street properties, two men, Bradley and Crick, no arrangement being made with plaintiff as to the amount of commission to be charged. There was a counter claim on the part of defendant for £50, on the grounds that McLeod did not exercise due and proper care to see that tin persons mentioned were solvent and respectable; that, in consequence of this, defendant had been unable to obtain any rent, in addition to loss incurred by bavin.' to effect improvements, and that Bradley had been committed for trial for criminal fraud, and Crick had left the eolonv. Mr. McGregoi appeared for plaintiff, and Mr. Cooper, instructed by Mr. Coleman, for defendant. Mr. McGregor said that in April last Mr. Tanton placed certain Queen-street properties in the hands of plaintiff. Plaintiff introduced to him Bradley, a commission agent, who produced references, and vas ultimately admitted as a tenant. On Mav 31 defendant executed a lease to Bradley, and alterations were effected, which Bradleycould not pay for, and the tenancy shortly after terminated. He submitted that defendant, by taking the matter into his own hands, could not hold plaintiff responsible. Mr. McLeod also introduced Mr. Tanton to one Crick, an electrician, apparently carrying on business in a large way, and' after ail interview defendant appeared to be satisfied with his bona fides, and accepted him also as a tenant. It was admitted that neither of these had proved good terarts, but it was maintained that in consideration of this, McLeod had offered to take steps with regard to re-letting without charging defendant anything in the way of commission. Plaintiff, in evidence, said that he introduced Bradley and Crick to Mr. Tanton, «ho appeared to he satisfied with them. Defendant then asked him what were his terms as to commission, and plaintiff, in consideration of the trouble taken by him in the matter, claimed 5 per cent, on the first year's rent. Witness took another tenant to Mr. Tanton, who replied that, ho could not do any business with him, as he l ad already let the premises. To Mr. Cooper: Witness wrote several letters to defendant, and one letter (produced) introduced Bradley as a desirable tenant. Witness knew that defendant had been at a considerable loss owing to Bradley being in possession, md that Crick had cleared out of the colony. If witness had let the premises to another person he would have claimed commission on one only. Chas. C. Baker said that in caso of a tenant proving to be unsatisfactory, and paying no rent, lie would expect to receive a fair payment for his trouble, which might or might not amount to 5 per cent, on tho first year's rental. What he would expect was a fair remuneration for the time and trouble involved. Mr. Cooper said it was the first time that a question of this kind had come before tho Court. He submitted that plaintiff had not done his work. The question at issue was as to the duty of a land agent. He cited the case of Heys v. Tindall, where the facts were of a similar nature; the agent leaving the owner to satisfy himself as to the respectability of the tenant. In this case the jury found for the owner, whose counter claim for a quarter's rent was upheld. In another case the Lord Chief Justice said that an agent could hardly charge a commission of five per cent, merely for putting a tenant's name on his books, without satisfying himself as to the tenant's solvency and respectability. Mr. Cooper maintained that the onus was on the agent to show that be had introduced a proper person, and that in the present case there was a distinct representation that Bradley was a proper person, which was evidently not warranted by facts. As the facts showed, Bradley had paid nothing, had been committed for trial for fraud a few weeks afterwards, and had died while under committal, Had McLeod mode proper inquiries lie would not have had any claim for commission. The action of McLeod in not wishing to charge commission a second time showed: that he felt that he was not entitled to the first commission, and he submitted that it would be inequitable to charge commission upon a contract which had resulted to the detriment of defendant. The claim was equally monstrous in the case of Crick He submitted that by undertaking to make inquiries, defendant did not relieve plaintiff of the liability to make inquiries also. As to the counter claim, lie submitted that they were entitled to claito damages against McLeod, but was quite prepared to waive the question, and accept a judgment for defendant. He called Thomas George Tanton, the defendant, who stated that McLeod introduced himself to him, and brought Bradley over to the North "h°re to see him. Bradley was accepted as a tenant, on condition that lie effected certain improvements himself. The work was done, and witness had to pay £72 10s, but received nothing from Bradley in the shape of rent. Witness afterwards made a contract with Crick, on the recommendation of McLeod. Evidence was also given as to Bradley's financial position previous to the contract made with defendant. r „ M /' i C( |f gC !- r . submitted that the case quoted by Mr. Cooper was not on. all fours »ith the present. The references produced by plaintiff as to Bradley were distinctly unsatisfactory, and the usual power given to land agents was reserved by defendant. Defendant had used reasonable care and skill on Ins own part, and had gone over the same ground as plaintiff. He submitted that it was absurd to expect that a land agent was to guarantee a tenant for any length of time. The evidence of McLeod should be taken as wholly reliable, and lie had fairly earned what was claimed. He -ad been put to a great deal of trouble in the matter, and was fairly entitled to the commission.