SALE OF A HOTEL.

New Zealand Herald, Volume LXV, Issue 19991, 6 July 1928, Page 14

SALE OF A HOTEL.

COMMISSION CLAIM FAILS.

DISMISSAL OF APPEAL.

[BY TELEGRAPH. —PB.ES S ASSOCIATION.] WELLINGTON, Thursday.

Saying that it did not wish to hear counsel for respondent, tho Court of Appeal dismissed the appeal of J. M. Samson, a Dunedin auctioneer, against the decision of Mr. Justice Sim in April last in a claim for commission.

Appellant claimed £125 from the White Star Brewery as commission on the sale of a sub-lease of a hotel. The appointment, however, was not in writing and the company repudiated the promise to pay the commission. An action was brought in the Supreme Court last April to obtain the commission, and respondent company relying on section 30 of the Land Agents Act af 1921-22, which provides that all appointments of> land agents must be in writing, were successful in their defence and appellant was nonsuited.

Mr. A. T. Donnelly, on behalf of the appellant, contended (1) that section 30 of the Land Agents Act did not make a contract for a land agency not in writing, unlawful, but merely barred tlw agent's right to sue on the contract ; (2) absence of written authority might bo waived by the principal; (3) the principal was precluded from setting up a statute when he agreed not to set it up as a defence, or where the general principle of estoppel applied; (4) that the Court was entitled to apply to the provisions of the Land Agents' Act the same principles as were applied by the Courts of Equity to the Statute of Frauds in order to prevent the Statute from being made an instrument of fraud. Mr. Donnelly then said that the requirements of a written contract had_ been waived by respondent company and the company had in effect agreed not to set up an absence of authority as defence. This was a case where the doctrine of estoppel applied. Having heard the argument along these lines the Court adjourned. On resuming it stated that it did not desire to hear Mr. F. D. Sargent, counsel for respondent.. The appeal was dismissed With costs on the lowest scale.