SCURR V. SIR ROBERT STOUT

Otago Daily Times, Issue 16663, 7 April 1916, Page 96

SCURR V. SIR ROBERT STOUT

A CLAIM FOR COMMISSION. LAW POINT BEFORE THE APPEAL COURT. A caso oame before tho Appeal Court on Wednesday for tho consideration of a law point—a remit from tho Supremo Court at Dunedin. Tiio plaintiff is Thomas Scurr, carrying- on business as .a land and commission agent as Scurr and 1 Co., and tho defendant Sir Robert Stout, K.C.M.G., Chief Justice. Tho claim is for £96 5s as commission on the salo of certain leasehold property. Tho beiioh was occupied by Mr Justico Edwards, Mr Justico Cooper, and Mr Justico Hosking. Mr T. Neavo appeared for tho plaintiff; Sir John Findlay, K. 0., with him Mr J. L. Stout, for tho defendant. According to the statement of claim the defendant was, on October 20, 1914, tho proprietor of curtain leasehold property and buildings thereon in Princes street, Dunedin, portion of the Manse reserve hold under deed ,of lease from the Otago Prcsbyteriiin Church for a term of 21 years from April 4, 1897. On October 19 plaintiff telegraphed to defondant: "Understand you would soil buildings occupied by Mondy and Stephens. Please advise lowest price, subject to comDefendant replied by telegram that ho was willing to negotiate, and correspondence f< lowed, resulting in a sale to tho Publio Trustee for £5000.

A letter sent by defendant to pl.untiff dated October 20, 1914, contained the following statement:—"My position in regard to the property is as follows:—The present net income from tho property is £220 per year, that is, after paying ground rent, rates, insurance, etc. This incomo is not subject to laud or income tax. If I wero to realise I would have to pay a mortgage tax if I invested on mortgage. Supposing I invested £4500 tho mortgage tax would bo a shado over £14. Then one investing on mortgage must oontemplate some periods of non-investment and some risk of loss. Suppose £16 pe,- annum was put down for that. Then there is the cost of collecting interest, say at 2js per cent. You will therefore soo that if these various sums were capitalised at 5 per cent, tho amount would exceed £5000. Then, you claim a commission, the amount of which you do not stato. I have placed before you my position. Tho place is let to Messrs Mondy and Stephens, but they stated they would meet me if I sold. That would have to be arranged so that they would have a reasonable notice. It is for your constituent to say what he is prepared to offer. Ho cannot expect mo to accept an offer that would redoico my income. I may add; that I would have no objection to a reasonable sum remaining on mortgago." It was contended, that the plaintiff was not engaged or appointed to act as agent in respect of the sale of the property, and the defendant relied on section 13 of "The Land Agents Act, 1912." When the case came on for hearing before Mr Justioe Sim, upon the application of tho defendant-, plaintiff's counsel concurring, it 'was ordered that tho following question of law should be removed to the Court of Appeal:—"Whether the lertter of October, 1914, from the defendant to the plaintiff was an engagement or appointment of tho plaintiff to act as agent in respect of the sale or disposition of tho leasehold property . referred to in the statement of claim in terms of section 13 of 'Tho Land Agents Act, 1912,' or otherwise." In the course of argument Sir John Findlay urged that before a relationship of principal and agent was constituted there must be a request by tho principal to tho agent to act on his behalf, and an express or implied promise to pay commission. Moreover, a person could not be tho agent of both parties without express permission. Mr Neave, in reply, contended that though there might not bo an appointment in express terms, if by reasonable implication the plaintiff had been led to believe that ho was appointed as agent and acted accordingly, tho ordinary rules of law would prevail, and an ambiguous document would be read most strongly against the person who had allowed the other .party to believe in his authority. What was mostly relied on was the reference to commission, the inference being that if a sale were effected at the price mentioned plaintiff was to have commission. The court took time to consider its decision.