TUSEDAY, MARCH 17th. The Court sat at ten o'clock.

Otago Witness, Issue 851, 21 March 1868, Page 7

TUSEDAY, MARCH 17th. The Court sat at ten o'clock.

AGENCY IN THE SAKE OF A STATION AND

Wright and Others v. Macgregor. — {Special Jury.) — Mr James Macassey and Mr B. C. Haggitt appeared for the plaintiffs, John Thomas Wright, Ro- crt Miller Robertson, and John Stevenson (Wright, Robertson, and Co.) ; and Mr James Smith and Mr "W. D. Stewart were for the defendant, USTeil Joseph Bruce Macgrcgor.

The action was to recover L 287 for work and labor done, in connection with the sale of Cottisbrook and Bald Hill stations ; and the defendant pleaded a general denial. Mr Haggitt opened the pleadings ; and Mr Smith stated the case.

Robert Miller Robertson : I am a member of the firm of Wright, Robertson, and Co., stock and station agents.. Our firm has been in the habit of doing business for the defendant. I remember that we had a run to sell for Messrs Purdie and Dick, which was sold by us at auction in April, 1860. The defendant w*as the purchaser. It was the Cottisbrook station. Mr James Smith and several others were bidders. Mr Smith used the word " We," and I understood he had a partner. Afterwards, in consequence of something said to me by Mr Smith, I had an interview with the defendant. Immediately after the sale, I told the defendaut that if he would put the two stations together, I thought we could a purchaser. The defendant held the Bald Hill station, adjoining Cottisbrook. He said he was quite willing to sell, if he could get a price. I think this passed on the 6th April: it was the day of the sale. I. asked him what price he put on the tv, o stations, and he said that if he could get L 28,000, he would sell. 1 said I thought the figure was large ; but that I would communicate with Smith. I did so ; and Smith said that if Macgre-, gor talked of something like L 23,000 or L 24,000, he thought business might be done. Mr Smith expressed himself as very anxious to procure the stations, as they lay contiguous to one already held by Mr Gellibrand. I saw the defendant, and told him what Mr Smith said, and I added thatif he named L 25,000 0rL26,000, I thought Smith would buy. He said that his price was L 28,000, and that he would not go below it. I then saw Mr Smith, and told him what Macgregor said; and Smith said that he would not give L 28,000. After that period, there were only desultory conversations between me and Mr Smith, until September. I then told him that I thought the stations were to be sold, and that he ought tcf purchase. He said that he was willing to purchase, and he asked me to get particulars as to sheep, &c. , whiGh could only be got at shearing. I

Was acting only for the defendant at this «tfo3&r i iE i »pdrtg^h^ to him; .and,. he said..that r hf w,ouldmot sell kiitil .after,, shearing, |b,ut,thaifi ? h©,^was determined then, to- sell,; -Lriep,ort£cf this to Mr, Smith. The next conversation was after 'shearing*— the end of. or the beginning of February, 186,7.,- ;>I asked the defendant if he , had brought down particulars of the sheep, , injorder that I might communicate them to Mr^Smith, .and to Mr Gellihrand^who was^-then in this country. This took place opposite JHerWY^ , Harries, and Uo's. I told bitn'd thuught ii^t -would be a, good thing to offer the. stafipasj at auction. He said- that he would, think over lifc;-'bnt that we should "sell the Btations. He asked what .. commission we should charge, and I fold , him that the charge was, If per cent. I afterwards said that we would do it forhiai.-for i^. He still demurred to the amount; ; and after some conversation, ,1 said.thgt we-r would charge him but one per cent, To .this he consented. He said that stations were : going up in price, and that he .should ex- ' pect an advance on what he had prej viously asked. I inquired what he wanted, and he said L 35,000. I, said I thought that Smith and Gellibrand would consider it too high ; but .that I would communicate it. to them. I saw them ', both on the matter'; and they 'both ex1 pressed themselves willing to enter into negotiations. The price, they said wa» j too high, and we were to do our best to j bring it down. I said that . Macgregor was in the habit of asking more than he would take ; and that I .hoped a reduction wo\ild be got. It was four or five days before the defendant sold the stations, that he gave me particulars of the . sheep ; and that sale, I believe, was on, the 11th April, 1867. He told me that, he had called two or three days previously ; that Mr Wright was busy writing, and did not take the particulars .from him ; but that now he had brought., them. I took down the particulars from a bit of papery which he had in his hand. The- acreage was 55,000; the sheep 20,666; there were 400head of cattle, 30 acres in crop, and.- a good many improvements. He named L 35,000. We had previously taken, between us, an average of 15,000 or ,16,000, as the total number of sheep. , On the d,ay ( -after I got the particulars, Mr GellibraHd was, in our office "with me, and withi the. defendant. We went into various calculations, and tried to effect, a settlement ; and Mr Gellibrand then made an offer to take the acreage at a valuation, and the sheep; and improvements in the same way : each party to name an arbitrator. The defendant said that he would think over it. In one of our interviews, after getting the particulars of the stock, I made a calculation, and I told the defendant that I thought if he got L 30,000, he would have got a gooi price. On the day after the interview at our office, I saw Mr George M'Lean, Mr Gellibrand, and the defendant, talking at the corner of Princes street and Stafford street ; and that evening the station was sold, at Cargills and. M'Lean's. The defendant never withdrew the run from our hands. On the day or day after the sale, I saw the defendant. , I asked him for an explanation of his extraordinary conduct, in conducting the business i through our office for a whole year, and then going and finishing it in another office. He s?id that we had not been able to o tain his price ; and that he had a perfect right to sell the run without paying us a commission. We afterwards sent him an account, and he called upon us in reference to it. He asked, "What about this account for commission you've sent me?'' I said, "We are perfectly justified ; and we mean to get it." He said that he had a mob of 300 or 400 head of cattle for sale on his property at Silverstream, but that unless we abandoned our claim for commission, he would not put the cattle into our hands for sale, as usual. I refused. I think that we were hib agents for the sale of all his stock, except what he sold privately. I said, "I'll certainly not forego our claim. " We have not done any business with him since. I have been in the . business six or seven years. Our usual charge has been 2\ up to LIO,OOO, and 1 per cent above that .sum. It is really matter of bargain as to stations, in accordance with the magnitude of the property. For "several years, our charge was If per cent.

By Mr Smith : I cannot produce, in my book, any written instructions to sell this property. It is usual for an agent, at the time he is instructed, to write de-wn his instructions. What .you told me, at or about the time of the sale of Dick and Purdie's station, was the cause of my epeaking to, the defendant as to these stations. You told me you were anxious to secure a good station. I believe that I called at your office on one occasion, after this conversation, in order to speak to -you on the stations business. I do not say that, on any other occasion, I, as $he defendant's agent, ever sought you out on this matter.; I had no occasion

to seek you, for I. met you constantly j I never coujd have told you, 1 " I cannot do anything with Macgregor : I think he doesn't mean to Bell." Ino doubt said to you, "I cannot get Macgregor to re* duce his price." It is likely I may have said that if Mr Gellibrand's figure ■waa L 24,000, -we were not likely •to do business. I am perfectly confident that on the day when Purdie and Dick's station was sold, I named Mr Gellibrand and yourself as purchasers in the market, and probable buyers of the defendant's two stations. I now remember that I did once hear that, previous to the Bale of Purdie and Dick s station, Mr Gellibrand had offered the defendant Lll/000 for Bald Hill station. I am sure that the defendant ■was present in our office, with Mr Gellibrand, as 1 have stated. My belief on - that point would not be affected by the defendant denying that he was present. I do not know that the defendant is in the habit of talking of money as "Bugar;" but I know that it is sweet + o him. Re-examined : I did not, at first, write down our instructions, or a detailed description, of the property, because the property was as well known to the expected purchasers as it was to the vendor. John Stevenson, one of the plaintiffs : I recollect the sale of Purdie and Dick's station ; and on that day I heard a conversation between Mr Robertson and the defendant. Mr Robertson said that now was the time to put the two stations, together, and sell them. The defendant said, " You may sell them for L 28,000." About a month or six weeks after this, I saw Mr Smith, and we talked about the price of the runs, which he said he thought was too high — that from L 23,000 to L 24,000 was money enough. About September, 1866, I spoke to the defendant. He said that he was going up, and would bring down all the particulars ; and that we were to try by then to get those "blokes" up to the mark. I understood him to refer to Smith and Gellibrand. In January, the defendant told me he had not brought the particulars ; but lie was going up again next week to put the sheep through the yards, | and then he would bring the particulars. In March or ihe beginning of April, I asked him for the particulars. He said that Ec had given them to Mr Robertson ; and he added, " Now, try what you can do, and get them to book." I knew he meant Smith and Gellibrand. I saw the defendant about every- day from this time until the sale of the station. I saw him in our place on the day the stations were Bold. He came in hurriedly, and said to me, " Now, have you closed for that station?" This was about five o'clock in the evening. He added, "If you don't look sharp and close, I have an offer privately, I shall sell, and you'll be done out of your commission." I heard of the sale next morning. My reply to the defendant when he came into the office was, that I thought some underhand work had been going on. I had on that day seen the defendant with Mr Gellibrand and Mr George M'Lean, at the corner of Stafford street. Some time after the sale, the defendant asked me, "Do your people -insist on the commission for the stations ? If they do, they won't have the sale of 300 head of cattle that I've to sell." By Mr Smythies : I am Bure that I never told you, " I can do more with the old man than anybody else ;" but I do remember your coming across the street to me, and saying, " Stevenson, if you «ant arrange the matter with the old man, nobody can." I did not "own the soft impeachment," nor did I "yield a mild assent." I 'did try to get the "blokes" up to the mark. I spoke to Messrs Robertson arid Wright, thinking it better to leave the matter in their hands. When the defendant came hurriedly into our office in the evening, he did not say, " Can you get me that * sugar' for the station V 1 I did n> >t reply, "You must reduce it by L2OUU or L 3000." He did not say, " Don't get angry, if I can get it. " I never told you, " Macgregor is altogether unreasonable. It is useless my wasting my time in going after him !" I have been too long in the commission business to ran a thing down — I " blow" a thing up, sometimes ; or some folks say I do.

John Thomas Wright, one of the plaintiffs i I did not take au active part im regard to these stations, until Mr Gellibrand came over from Australia, early in 1887 ; but Mr Smith had expressed to me his desire to purchase. I saw Mr Gelli- ! brand on the au ject a good many times. He always expressed anxiety to buy, if Macgregor would name a reasonable price. I mentioned L 35,000, as told me by Mr Robertson. I remember advising Macgregor to offer the runs by auction, because of the difference in the estimates of the value of the stations. Mr Gellibrand once came to ask if Macgregor had brought down the particulars of stock. We had a long conversation. Gellibrand ■aid that if Macgregor would make an

offer for something like L27,d00 ) 1$ would seem, like business. I named L3Q,000. On the morning of the departure of the Panama Mail, in A^ril, 1867, when I was .busy writing for the' Mail, the defendant came to me from the clerk's office, and said, "I've got the particulars of that stock." I said, "I'm very glad to hear it," for we had been waiting for it a very long time. A few more words were exchanged, and then he said, "Good morning," and went away. Neil Joseph Bruce Macgregor, the defendant : I live at Silverstream, and I am a farmer. In April last, I sold Cottisbrook and Bald Hill stations to Mr Gellibrand. I signed the contract shown me, on the evening of the 11th April, about eight or nine o'clock, at Messrs Cargill and M'Lean's office. It wag about five o'clock that I saw Mr .Stevenson, at his office ; 1 did not see him agaiu before the sale. When I went to him, I asked him whether he had got the "sugar" for that country — because, if not, I would get it myself. I did not tell him I had got a private offer for the country. I realised something about L 28,000 on the runs ; I did not pay any commission to Cargills and M'Lean. I went to their office, because of an appointment with Mr M'Lean. I consider that the other side should pay commission, as I was pressed to make the sale. I never met Mr Gellibrand at the plaintiffs'. I was in entire ignorance that they were endeavoring to negotiate a sale to Mr

Gellibrand.

By Mr Smith : I never heard of Mr Gelllbrand as the purchaser, until Mr M'Lean brought us together. Mr M'Lean asked me, in the course off the day, if I had made up my mind to sell ; I said I would, for so and. so ; and he brought us together. I never met Mr Gellibrand in town, that I know of, before the sale, except once at the Shamrock Hotel. Long before I bought Cottisbrook, Mr Gellibrand had offered me Lll,ooo for Bald Hill, and I refused it. Robertson and Stevenson did, from time to time, talk to me about parting with the two stations ; and they said that they could no doubt get me a purchaser at a good price. I said that when I came down after shearing, I would bring particulars of the stock. I never knew anything but what they might be buying for themselves ; and when Mr Maclean spoke of a purchaser, I went to the plaintiffs' place, to see if they had concluded anything, before I bargained elsewhere. I deny that a conversation I etween Robertson and myself took place opposite Herbert, Haynes, and Co.'s, in the course of which he mentioned Mr Gellibrand's name, and an agreement was made that I was to pay one per cent, commission. After I had received the bill for commission, I went to Robertson. I said that I expected a lot of cattle from Silverstream ; and I added, "If this is the way you're going to do your business — charging commission on what you didn't sell — I must change my agents." I said, also, that they should not sell the cattle if they insisted on having the commission on the stations. I knew nothing to the con trary of Wright, Robertson, and Co.'s wanting the stations for themselves ; they never named a purchaser.

Re-examined: I knew, after the sale to me of Cottisbrook, that Mr Smith had bid against me ; and I thought it possible that Messrs Smith and Gellibrand might be intending purchasers of the two stations. But I was in entire ignorance of the fact, from all I ever heard from Wright, Robertson, and Co. Mr M'Lean had been talking to me over and over again about selling the stations before the day of sale; but I had never given him particulars of the stock and improvements. Mr M'Lean spoke to me on the afternoon of the sale; then he went to fetch the purchaser; I went to see if Wright, Robertson, and Co. had done anything; and we met ai^ain at the corner of Manse street, and went to Cargills and M'Lean's. We were there about three hours, completing the agreemeat for the sale.

Henry Driver, stock and station agent, said that one per cent, on the sale of a station realising L 28,000, was below the average charge that would be made by his firm. — By Mr Smith : It is usual, in such a case, 'to take some instructions in writing. — Ro-examined : Although usual, I do not say that it is always done. In most cases, we should like to have something to connect ourselves with the right to sell. This was the plaintiffs' case. Mr Smith : Don't you call Mr Gellibrand or Mr M'Lean] Mr Macassey : No ; not at present. Mr Smith : Then I will— though you have subpoenaed them. George M'Lean : I am a member of the firm of Cargills and M'Lean. I reoollect interviews, about the beginning of last year, with the defendant, about the sale of the two stations. At the first interview, I asked him if he would sell the stations. I was acting in Mr Gellibrand's interest. The interview was

close before the sale. I told him that I had several times said to him that if he J would take a reasonable, price I 'had a purchaser. I asked him, "Is this run in the hands of Wright, Robertson ?" and he said, " No, not more than yours." I then told him that Mr Gellibrand. would purchase ; and then he said, he thought so. 1 sent for Mr Gellibrand. I had to go to an inquest on a fire, and while I was there, I got a note, stating that Mr Gellibrand and Mr Macgregor were in the inquest. I got to the office a v out seven o'clock ; there was an interview between the three ; and when I left to go back to the office, the agreement was being written out. Both Mr Gellibrand and. Mr Macgregor were clients of ours ; but 1 was acting for Gellibrand, and I told Macgregor so. T did not charge Mr Macgroyor any commission. By Mr Macassey : I had several times conversed with Gelubrand about the two stations. I menrioncd Wright, Robertson, and Co. to Macgre^or, because hehad told me that if lie sold by auction, they should have it. He never told me that the stations were in their hands for sale. On the evening of the sale, Macgregor, I think, said he would go to Wright, Robertson, and Co. and see if they would give him an otxer. I have had Macgregor's business, in shipping his wool and supplying his stores, ever since I have been in Messrs Cargill's firm ; and they had it before I joined them. William Gellibrand : I had several conversations with Wright, Robertson, and Co. about the sale of Macgregor's stations. I don't recollect being present at their office, in company with Mr Macgregor ; but I don't contradict what Mr Robertson has said. About three weeks before I bought, I authorised Mr M'Lean to net gotiate the sale ; there was a distincarrangement between us that he was to conceal my name at first, because I thought that Macgregor was irritated by opposition on my behalf, when he bought Dick and Purdie's station. Two or three days before the purchase, I authorised Mr M'Lean to disclose my name. Mr Macgregor and myself were brought together in Sir M 'Lean's office. I think we first i met two days before the sale was completed. I think that when we first met, he made an engagement to be in town on the following day ; that he failed to come ; and that I did not expect him when he came. You, myself, Mr Macgregor, and Mr M'Lean were present at the final negotiation ; and M'Lean conducted the negotiation.

By Mr Macassey : No doubt, I conversed with Mr Wright, and with Mr Robertson, about the sale of the stations ; they gave me to understand they were ao.ting for Macgregor, but I never saw with them any authority from Macgregor. I think that the last time I saw Mr Wright on this subject was three weeks before the sale. He offered me some lambs of Macgregor's ; and I declined to buy. Then he said, " Why not buy the whole — stations and all ? " I said that when he could make me an offer at a reasonable price, I might purchase. It is very likely that I did tell M'Lean that I had been negotiating with Wright, Robertson, and Co. I think I did see Wright after thp particulars of the station and stock had been obtained ; and I believe I did then say, "Your only course,'* or ' '' the best plan for you," "is to put the thing up to auction."

Mr Smith summed up for the defendant. There was a very important principle involved — that no person o:ight to be considered to have l-een requested to take trouble about the sale of property for another, unless the request was most distinctly made, or unless evidence was placed before a jury from which an implication of such request could be most clearly drawn. Was there material in this case for saying that there was such a request, either expressed or implied? There was not : the defendant had been followed, and been coaxed to sell ; and though that was right enough on the part of agents, a man so placed was not to be charged one per cent, as commission. At the outside, the plaintiffs had had only a few conversations- on the subject of the sale. There was not, by implication, any engagement on the part of the defendant, except in the event of the plaintiffs really finding a purchaser and completing a sale. The plaintiffs had not done either.

Mr Macassey, in replying for the plaintiffs, relied upon the evidence generally as establishing that the plaintiffs were those who brought about the sale. Whatever might have taken place with regard to Bald Hill alone, there could be no doubt that there never was — never could have been — a suggestion that Cottisbrook and Bald Hill should be thrown into one and sold, until it was made by Mr ■Robertson. The evidence showed that Wright, Robertson, and Co. were by all the parties regarded as the agents of the vendor in the sale which they were undoubtedly the instruments in effecting. The Judge said that the rule of law was, that where a property was put into the hands of an agent for sale, the agent was

not entitled, to recover remuneration for the sale, unless lie sold the property. But this state of facts might arise : — An agent misjht have a property put into his hands ; he might exert, himself in endeavoring to sell it; he might find a purchaser; ho mi^ht present the person so found, to the owner of the property, or name him, as ready and willing to purchase. If the agent did that, he did enough : he was not to be defeated of his commission by the owner negotiating privately, i>r through another person, to sell to the purchaser so found and brought, or declared, to the owner. The jnry must say whether, in fact, the sale was brought about by the intervention of the plaintiffs : if so, they were entitled to a verdict. As to damages, the cl.urn was for one per cent. 0nL28,000 — or L2SO ; and to that sum the plaintiff Avcrt> entitled, if they were entitled to Anything.

V*ii\liot. for tlio plaintiffs - damages, L 2 >0.