MAGISTRATE'S COURT.

New Zealand Herald, Volume LVIII, Issue 17828, 8 July 1921, Page 9

MAGISTRATE'S COURT.

LAND COMMISSION.

QUESTION OF CONTRACT.

Reserved decision was given by Mr. J. W. Poynton, S.M., in the Magistrate's Court yesterday, in a case involving a claim for commission amounting to £38 15s, on the sale of a property. The plaintiff was C. R. Jennens (Mr. Booking), and the defendant D. Wilkie (Mr. Dickson). The evidence showed that there was a written offer and acceptance, but the sale afterwards lapsed with the consent of the vendor. The purchaser stated that this was because he could not get the £300 required for the first mortgage at 6 per cent, interest. It was offered to him at 7 per cent.

"It is settled law," said the magistrate, " that ajri agent's commission is earned when he brings about a binding contract between the vendor and purchaser. His claim is not affected by whatever takes place afterwards. He is not, unless by special arrangement, barred from getting his commission if the conveyance is not executed owing to some disagreement, arrangement, or mutual release between the parties. But if there is a conditional acceptance of the offer, and such condition cannot be fulfilled, the right to commission lapses." There was a conflict of evidence as to what was said about the mortgage. On the evidence, said the magistrate, a reasonable jury could not find that the purchase was subject to the condition that the money could be got at 6 per cent., and this condition would have to be proved if an action for specific performance were brought to enforce completion. There was evidence to show that at the time the sale was effected money was not readily procurable at less than 7 per cent., and" the purchaser was informed of this. His subsequent action in signing a request to be liberated from the contract and promisng to pay 7 per cent, for the time the money was idle was inconsistent with the contention that the sale was subject to getting it at 6 per cent. The magistrate was of opinion that a binding contract was brought about by the agent, and that he was, entitled to the full amount claimed. Judgment was given accordingly, with costs. Security for appeal was fixed at £15 15s, plus amouift of the judgment and costs.

QUESTION OF WARRANTY. Decision was given by Mr. McKean in a case involving an alleged warranty given with the sale of a boiler. The amount claimed was £81 5s 3d, sought by Thomas F. Long and John Lineham, trading as the Albion Machinery and Engineering Works, Parnell (Mr. McLiver), from Jensen Bros., machinery dealers, Parnell (Mr. Terry). Plaintiffs alleged that they purchased the boiler on a warranty that it had been inspected ajid would stand 901b. pressure, and on a promise that a Government certificate for that pressure would be furnished. Owing to defendants' failure to supply the certificate, the boiler had to, be again inspected and also repaired, and it was then certified that it would stand 801b. pressure. A contempl j.ted re-sale thereupon fell through. Plaintiff asKecT ror a refund on the amount paid for the boiler, cost of repairs and inspection, and general damages, £20. Defendants contended that the alleged guarantee was nothing in the way of a warranty, and that they were only agents in the transaction. Judgment was given for plaintiff for £71 ss, with costs. DISPUTED LIABILITY. Tha question whether the builder or the owner of a house should pay for fittings selected by the owner was the issue in an action brought by Thomas Almond, cabinetmaker (Mr. McLiver), against Mrs. C. New begin, owner of the house (Mr. Mays), for the recovery of" £11, in payment for two mantelpieces delivered. Plaintiff, in evidence, said he first sent the account to the builder, but not receiving payment he sent an account to defendant, who refused to pay it. Mr Mays said that plaintiff sent the builder the account several months in succession, but on the builder becoming bankrupt he sent the account to defendant. It was the custom in plaintiff's trade for the owner to select fittings and for the contractor to pay. The magistrate said that plaintiff had not established his case. He was non-suited, with costs £3 6s.