MAGISTRATE’S COURT

Otago Daily Times, Issue 21827, 14 December 1932, Page 13

MAGISTRATE’S COURT

Tuesday, December 13. (Before Mr J. R. Bartholomew, S.M.) DEFAULT CASES. Judgment was given for plaintiffs in the following undefended cases: —LaidInw and Gray, Ltd., v. Fred Weir, claim £6 13s, on an account stated, with costs (£1 11s 6d); D. T. Kaler v. James Marshall (Oamaru), 15s costs of action; Moncrieff and Stewart, Ltd. v. W. Miller (North Balclutha), claim £1 4s, tor goods, with costs (8s); Bing, Hams, and Co., Ltd. v. Thomas V. Gibson (Wamiate), claim £2B 12s sd, for goods, with costs (£4 Is 6d); same v. Stanley David Newman, claim £5 3s 7d, for goods, with costs (£1 11s 6d); Wellington Woollen Manufacturing Company, Ltd. v. J. P. Cooper (Otautau), claim £27 16s 7d, for goods, with costs (£4 Is Od); Reddell s, Ltd. v. Henry Evans (Tahakopa), claim £7 15s, for goods, with costa (£1 14s CdJ I; Dunedin Motors, Ltd. (as assignee ot A. H Macpherson) v. E. Little (Invercargill), claim £3l 14s 2d, for work done, with costs (£4 2s 6d). ORDER FOR POSSESSION. Annie Mitchell Erridge v. A. Wills, claim for possession of a tenement at No. 1 Laing’s Terrace, Sutherland street, Dunedin, and for £23 11s rent.—An order was made for possession on or belore Uecember 27 and for the amount claimed, by default, with costs (£4 11s 6d). CLAIM FOR COMMISSION. Eustace Lindon Macassey v. Radio Broadcasting Company of New Zealand (in liquidation), claim £54 10s 6d, tor work performed at the request of the company.—Mr J. M. Paterson (instructed by Mr J. S. Sinclair) appeared for the plaintiff; Mr J. B. Callau for the defendant. —ln this previously-heard case, his Worship gave judment as follows:—-Plaintiff claims £s4'los 6d for work and attendances performed for the defendant company as a valuer on the valuation of V IC furniture and fittings ot the 4i’A Broadcasting Station of the defendant company at Dunedin, made on or about December 14, 1931, the commission being ait the rate of 5 per cent, on stock, valued as i provided by the scale of mercantile charges fixed by the Dunedin Chamber ot | Commerce. No agreement as to remuneration was made by the parties, and the question to be decided is the amount of remuneration the plaintiff is entitled to for his services. Mr J. B. Waters, a past president of the Chamber ot Commerce and vice-president of the Real Estate Institute, produced a scale ol charges issued by the Chamber of Commerce which, he says, was fixed and adopted by the Chamber of Commerce in conference with the Real Estate Institute. This scale, with variations, goes back to 1901. Mr Waters says this is the recognised scale for Dunedin and Otago, and in the absence of any agreement the proper charge for the valuation of any stock or furniture for any purpose is at the rate of 5 per cent. This witness could not give any instance of charging at this rate for valuing furniture, as his firm does not do this class of work. The scale sets out the charge under a number of headings. The item relating to valuers’ fees is not set out under a separate heading, but is appended to clause 7, which is headed; “Hotel 1 roperties and Boarding Houses,” and reads “ Valuers’ fees on valuation of hotel or other stock and furniture, minimum 5 per cent., plus out-of-pocket expenses.’ Mr Waters says the object was to fix the scale for dealing with all classes of furniture for all purposes. If this is so, it is set out very obscurely and ambiguously, and it should properly have been set out as a separate clause under a distinct heading. For the purposes of this case, however, I will assume that the effect of the scale is as claimed by Mr Waters. The Rea) Estate Institute comprises land agents and auctioneers, some of whom are recognised valuers. All land agents and auctioneers are not members of the institute, and many valuers are neither land agents nor auctioneers. Mr Macassey says the scale is the recognised charge amongst business firms who are members of the Real Estate Institute. He says there is not much valuation of furniture apart from hotels and boarding houses, and that he has never departed from the scale charges in the valuation of hotel furniture. He docs not apply the scale in probate valuations —that all kinds of people do probate valuations. There is no valuers’ association, and he does not know what others than members of the Real Estate Institute charge for furniture valuations. Evidence for the defendant company was given by Mr J. L. Little, accountant and fire assessor, who has a large experience, doing the major portion of the fire assessing work in Dunedin. He says he has employed valuers in a large number of cases to value furniture, stock, etc., some being members of the Real Estate Institute, auctioneers, etc., and some are not. He has never been charged the Chamber of Commerce rate, and did not know such a scale existed. He has never been charged on a percentage basis, but the fee was fixed on the time taken and the class of valuation. He has also known of valuations made for insured persons and lias never known of Chamber of Commerce rates being charged. He has at times been asked by members of the Real Estate Institute what was a fair charge to make. Mr C. J. Hayward, who assisted his late father, who had a large experience in valuing furniture for probate, fire losses, and general, and who has this year himself been valuing, says he never heard of the Chamber of Commerce scale until this case, and that charges were never made on a percentage basis. Mr F. Campbell, manager of Seculars, Ltd., Wellington, with 20 years experience of valuing furniture, gave evidence as to charges for such work, and there was also submitted similar evidence by two witnesses taken in Christchurch. The fact that . the Dunedin Chamber of Commerce, in conjunction with the Real Estate Institute, fixed a scale of charges for valuing furniture—a work which is only in part done by members ot the institute —does not by itself establish a charge payable by the public. These bodies have no legislative powers. The scale may be evidence of what is a proper charge, but until it becomes matter of notoriety by being generally acted on there cannot be said to to be any recognised or established charge binding on the public. The scale can only become operative by its acceptance by the public who are chargeable. This case is analogous to that of Young v. Dw5 r er (1926, N.Z.L.R.. 682), which was a case of a similar claim for valuers fees based on an alleged custom. Reed, J„ stated: “The question as to the existence of a custom is a question of fact, and must be proved by the person setting it up. The essentials are notoriety, certainly, and reasonableness. To prove notoriety the evidence must show that amongst the class of persons affected by it it is so well known that in any contract of a nature affected by the usage it must bo taken that the parties must have intended that the custom should form part of the contract. As to certainty, there must be proof of the uniformity of the custom, there must be such a degree of certainty as to its operation as if the terms were embodied m the contract itself.”. Similar evidence of notoriety must be given of the Chambei of Commerce scale to render it binding on the class of person affected by it. Mr Waters's evidence that members of yie Real Estate Institute charge this rate for any valuation of stock or furniture for any purpose is obviously a general statement of his belief and not of actual knowledge, and is contradicted by the express evidence of other witnesses. Mr Macassev states he has never departed from the scale in the case of hotels, but has never charged it in probate valuations. Mr Little's evidence, which is particularly valuable in view of the number of valuers employed by him, including members ot the Real Estate Institute, says this scale has never been charged, and in fact ne hail no knowledge of its existence. Similar evidence was given by Mr Haywaid. It has already been pointed out tliat a laree part of such valuation work is done by other than members of the Real Estate Institute. It appears, therefore that the Chamber of Commerce scale for the valuation of furniture is not only not generally acted on but that even its existence is unknown to those extensively engaged in this business. So the scale cannot be regarded as a customary or recognised charge governing this class of case. 1 laintiff is entitled to claim for services rendered as on a quantum meruit, and m view of the evidence submitted i find that the sum of £lO 10s is proper remuneration.—On the question of costs, Mr Call an said (he sum of £lO 10s was offered lo the plaintiff some time ago. In the circumstances lie asked for the costs ot I the proceedings—His Worship said he must follow the principle adopted by the J Supreme Court in th£. matter. Plaintiff 1 was entitled to costs up to the time the sum of £lO 10s was paid into court, and

£1 5s would be allowed. Defendant would be allowed costs, amounting to > £9 3s, and the amount of one witness's train fare, not yet ascertained. MOTOR COLLISION.

Vacuum Oil Company Proprietary, Ltd., v. Edmund Alexander Duncan, claim £132 10s Bd, damage caused to a petrol tank wagon by the defendant's car. Sir D. Solomon appeared for the plaintiff company; Mr J. M. Paterson for the defendant. —Mr Solomon said the collision occured on July 27 last between Waitati and Dunedin, The plaintiff’s lorry was being driven towards the city, and was proceeding at a reasonable pace on its correct side when the defendant approached in a big Nash car at a terrific pace on his wrong side and collided with the lorry, pushing it into the ditch on the wrong side of the road. Serious damage was done to the lorry. Plaintiff contended that defendant did not have proper control of his car. Mr Solomon said he understood the defence was that the lorry was not lighted, and that, therefore, the plaintiff was guilty of contributory negligence. Evidence would be brought, however, to show that no light was required on the lorry at the time of the collision. —Evidence was given by William Brinsdon (driver of the lorry), John Davis (farmer, Waitati), Arthur Davis, Frank Thomson (engineer), and Harry J. Calvert (motor assessor). —Mr Paterson said the case was being defended because it was submitted that the cause of the accident was that the defendant did not get the warning of the approach of the lorry that he was entitled to get, as the lorry was not lighted. The state of the weather was such that it was the duty of the plaintiff to have his lights on, and the daylight was so weak that the lorry was not visible to the defendant until he was 20 paces from it. The defendant altogether denied the allegation of speeding—Evidence was given by Edmund Alexander Duncan (solicitor, Dunedin) and other witnesses, after which his Worship reserved his decision.