MAGISTRATE'S COURT.

Otago Daily Times, Issue 13543, 16 March 1906, Page 7

MAGISTRATE'S COURT.

Thursday. March 15. (Before Mr 11. Y. Widdowson, S.M.) Judgment was given fov plaintiffs, by default, in the following cases:—Thomas Deans v. Albert George Stanley (of Gcraldiue). claim •Sl_ 15s lor board and residence (cost's ss); William G. Robertson v. Thomas Lewis (of Port Chalmers), claim £3 3s, balance due for goods (costs Ids); \V. E. HcvnolAs and Co. v. Aiikciel' Bros, (of Mastcrton). claim £5 ISs, for goods (costs 25s Od); Lane and Co. v. Walter Rice (oi Wellington), claim iii 13e 4d, money lent, with intoror-t (costs 23s 6d); Mitchcil and Pickaid v. Charles Ernest Girvan, claim fl Is (costs 3s): A. M'Kinlay v. James Knlor <of Ablratsford), claim £3 7s 6d, for clothing (costs 10s). A. Malhcson and Co. v. Jessin I. Brown.— Claim £16, commission on the sale of a, bouse. —Mr Moore appeared for plaintiffs, and Jlr Adams for defendant.—ln this previously heard case his Worship now gave jr.d-jincnt as follows;—" The plaintiff, through the solicitation of his canvasser, obtained from defendant authority to sell her property at a price stipulated to be free of commission. Tho plaintiff's canvasser (Dyer), in his evidence, states that the property was advertised. Mid it appears thet a Mrs Stuart called, and agreed io purchase subject to being suitably financed. An agreement was at the same time drawn

up and signed by plaintiff on behalf of Mrs' Brown, and by Mrs Stuart, but did not, include the conditions referred to. and a deposit of JE2Q paid to the plaintiff. This condition docs not appear to have been accepted or acquiesced in by the defendant, and owing to tho plaintiff not being able to make the necessary financial arrangements, the sale was ultimately cancelled, and the deposit was returned by ihc plaintiff to Mrs Stusrt. Within a fortnight afterwards the property was sold by the defendant herself to the same Jtrs Stuart, a Mr King having given his guarantee, which enabled the purchaser to complete Hie purchase. Tlio plaintiff had nothing to do v.'ith obtaining this guarantee, but now claims commission on the ground that tho tale was effected through his introduction of the purchaser, and, failing his right to full commission, upon a-' quantum meruit for his wriccs.

In. Barret v. Brown (6 T.L.A., 463), Lopes, L.J., in giving judgment, said-. 'The question to bo decided was, whose introduction had brought, about the purchase? Ho thought it was brought about by the introduction of the defendants. .The first introduction (thai of (ho plaintiff) resulted in nothing; the second (that of the defendants) resulted in a sale, and entitled the defendants to the commission.' In Edwards v. Walton (10 N.Z.I/.K., 428), Mr Justice Richmond said that ' the setual event was that Mr Griffiths, wsio was introduced by Walton, did not purchase through Walton, bat after some interval of time purchased through Stevens and Gorton. . . The relation of buyer and seller was really brought about by Messrs Stevens and Gorton.' In Taplin v. Barrett (6 T.L.R., 30), a, Mr Simonds Ind been introduced by plaintiffs ns a, possible purchaser, but owing to the parties not being able to arrange terms he did not then purchase. The properly was subsequently placed in tho bands of an auctioneer (not the plaintiff), and Sirnonds purchased o*. the auction. It was held that the plaintiff was not entitled to succeed, tho purchaser having purchased tnrough the intervention or a new agency. And in the latest case of Miller v. Radford (19 T.I/.R., 570. 13031, the SI.R. in his judgment, says: 'It was important to point out that tho right to commission did not arise out) of the mere fact that agents had introduced a tenant or a purchaser. It was not sufficient to show that the introduction vras a rtniM. sine qua non. It was necessary fo show that the introduction was an efficient cause in bringing about tho letting or sale. Hero the plaintiffs failed to establish what was a comrrission precedent to the right to commission— namely, that they had brought about the sale. It was open to the defendant in an action like this to say either that though the plaintiffs effected a sale they were not his agents, or that though they were his agents they had not, effected the sale. If the defendant proved either the one or the other, the plaintiffs failed to make out their case.' In the present case it is clear that the plaintiff? did not effect a sate, and that Mrs Stuart could not ha.vo purchased the property, and did not purchase it, but for King's guarantee. On these ground?, and from tho autSinriticn cited, the plaintiff is not entitled to succeed. Jfausel v. C!omciils (!) L.R.C.P., 139) doe 3 not apply. The plaintiff sets up an express contract, and cannot therofoTO claim upon a quantum meruit. I am not called upon to decide the other contention of the defendant's counsel—namely, that plaintiffs are not entitled to commission owing to their breaches of duty; but there is another point. Dyer states that the property was advertised, but there is no evidence to prove Mrs Stuart's introduction by that means, and it is questionable, upon the Chief Justice's decision upon the evidence in Calder v, Harcouvt (2 Gaz., L.R.), as to •sale of lot 1, therein mentioned, whether the plaintiff/has proved any introduction at all. Judgment fo: defendtuvt, with costs amounting to £1 135."

Alexander Kilpatrick v. Stewart M'Donald.— Claim £6 10s Sd, on a judgment summons.— M,r Irv/in appeared for plaintiff, and Mr Moore for defendant.—Defendant having been examined on oath, the case was dismissed,

John Matthews v. John Dowdall (Clyde).— Claim £7 10s, on a judgment summons.— Defendant was ordered to pay the mm claimed, with expenses (10s), forthwith, in default 10 (lavs' imprisonment.

P. J. Helcan and Co. v. James Dean.—Claim £3 3s. on a judgment summons.—Defendant was ordered to pay £2 Ills, still! owing, with expenses (7s), fonvthwith, in default seven days' imprisonment.

Mary Xapier v. John Bunting and Margaret Bunting.—Plaintiff claimed to recover from defendant's possession a sewing machine, unlawfully (iot.air.cd by defendants, or to recover from defendants £14 10s. the value of tho machine—Mr Fraser appeared, for plaintiff, and Mr Hanlon for defendants.—After the case had been gone into very fully judgment was given for plaintiff, ■with cost? (£3 lOsi ldd).

Jessie Thompson Thompson v. Donald Sutherland (Milford Scund).-Claim £38 10s 3d, baknee dm for wages.—Mr Aslln for plaintiff, and Mr Barclay for defendant.—After the case had been gone fullv into plaintiff was nonsuited, with costs (£2 2s).