PROCURATION FEE.

New Zealand Herald, Volume LIII, Issue 16373, 30 October 1916, Page 3

PROCURATION FEE.

LAND AGENT'S CLAIM.

DEFENDANT WINS CASE. a i A cask yf interest to land agents was heard ■f before Mr. C. C. Kettle, S.M., at the e Magistral.''. Court on Friday and Saturday. Sann'i \'aile and Son, land agents, - of Auckland (Mr. E. J. Prendercast), i claimed from Ernest Henry fiateman, clerk, of Auckland (Mr. 11. P. Richmond), the sum of £2 10-5, procuration lee at the rate of 1 per cent., alleged to be due to the plaintiffs for work and services rendered I In raising a loan of £250 in June, 1916. Herbert Earle Vaile, a member of the . plaintiff firm, said that the defendant I arranged to purchase a property offered 1 for sale by the firm. The price first - named for the property was £575, with . terms. The defendant said he had £300 . in cash, and asked if the vendors would > take any less if he arranged to pay in • cash. He then asked if the plaintiff could 3 arrange to lend him £250. The loan was r made, and the defendant then made an l offer of £550 cash for the property, which was accepted. A mortgage for £250 on' the property was given by the defendant. The plaintiffs raised the loan, and asked for commission of 1 per cent. The defendant's _solicitors, on his behalf, refused to pay. The plaintiffs carried on business • as land agents and scriveners, and their custom was to charge a fee of 1 per cent, for raising loans. This was a well-recog-nised custom. To Mr. Richmond: Mr. Bateman first suggested that plaintiffs should raise a loan. i Custom of Agents. Joseph Thornes, a land agent, gave evidence corroborating the statement of the previous witness that it was customary for agents to be paid a procuration fee "of 1 per cent, in respect of loans raised. The defence was that there wag no relationship of principal and agont between the parties, and that Mr. Vaile, who was acting for the vendor, undertook by guarantee to find £250 to enable the transaction to be completed. Henry Bateman, the defendant, in the course of his evidence, said he told Mr Vaile that he had £300. Mr. Vaile said that he could find the balance of £250, and, at witness's request, he had this arrangement put in writing. There was no mention of any procuration fee. He heard later that part of the loan had been advanced by plaintiffs themselves. Magistrate Reviews Case. The magistrate said he was not satisfied from the evidence that the relationship of principal and agent had been created. The onus of establishing this rested upon the plaintiff, who had acted for the vendor of the property, and it was his duty as such to endeavour to have the sale I carried into effect. He had also a personal | interest in the commission, which would ! be payable to him on the completion of the sale. The evidence had not clearly established that the relationship between the parties had really been created. After referring to authorities the magistrate added that to establish an agency there must be clear evidence of intention on the • one side to confer, and on the other to undertake, the agency. When the plaintiff • £ a ™ v defendant a guarantee to find ±<250, he was still acting as agent for the ' vendor, with a view to getting the transaction completed, and he had also a personal interest in regard to his commission i on the sale. The circumstances were unusual, and the plaintiff had not clearly established that the relationship of principal and aeent had been created. When the plaintiff gave defendant a written guarantee to find £250, he could easily have added a few words intimating that a procuration fee of one per cent, would be charged. This he did not do, and defendant apparent.,, did not understand ! that any charge was to be made. Judgment was given for the defendant the question of costs being left to the ' parties to arrange.