RESIDENT MAGISTRATE'S COURT.

Otago Witness, Issue 1325, 21 April 1877, Page 5

RESIDENT MAGISTRATE'S COURT.

Thursdat, 11th Akul. (Before John Bathgate, Esq., R.M.) George Moran v. Half-way Bush Road Board. — Claim of LSO, damages sustained to plaintiff's sections numbered 64 and 66, situated in the township of Anderston. Mr Bathgate for plain tiff, and Mr Stout for the defence.— Mr Stoat contended that the .plaintiff was estopped from recovery, inasmuch as he had previously recovered L 2 for the same cause of action, A further defence jvas Not guilty.— His Worship decided to hear the evidence, — Frank Petre, Civil Engineer, desposed that in regard to section 64, the water flowed on to it through the natural fall of the land having been changed when Dale street was being constructed, and by reason of no provision having been made for carrying off the water. An additional cause of damage was the defective construction of a certain culvert, which produced an extra flow of water on plaintiff's land. If a proper water table hal been made along Dale street no damage would have been done, — At the conclusion of the evidence for the plaintiff, Mr Stout asked for a non-suit, on the ground that there was no proof of the Board being incorporated. — The case was adjourned, His Worship intimating that he would visit the ground. Thomas R. Dodds v. Thomas KendalL— Claim of L3 los, for the detention of a certain document given to the defendant for the purpose of obtaining signatures thereto, in connection with the South Dnnedin Conference. Mr E. Cook for the plaintiff. The defendant said that he detained it because he was not paid for his services. His Worship ordered the petition to be givon up immediately on payment of trro guinw

Monday, Apeil 16th. (Before John Bathgate, Esq., E.M.) John Forbes v. John M'Kegg.— Claim of L 69 17s 64. The defendant did not appear. Mr Stout for plaintiff said that the defendant had nied a declaration of insolvency under the Debtors and Creditors Act. Judgment for the plaintiff, with costs. James Baird v. Barron.— This case was heardsorae days ago, and judgment reserved. H|a Worship now gave judgment for L2l, with i costs. ! Whitelaw v. Tame.—H is Worship now delivered judgment in this case as follows : — This suit, at the instance of White Jaw, a commission agent, » to recover £60 commission alleged to be due by the defendant, on sale of property at Maori Kill. Qhe fact of the sale of the property to Richard Oliver was Admitted, but the employment of the plaintiff was denied. It was proved that on a previous occasion the plaintiff had applied for particulars of the property for sale, which were furnished by the defendant, but the plaintiff did not succeed in effecting a sale. Latterly trie plaintiff met Oliver on his return from England, when Oliver asked him if he knew of any property in the neighbourhood for sale. He mentioned the defendant's, and it was arranged that he should obtain and furnish particulars. !The plaintiff wrote a note to defendant, asking him for particulars, but before the defendant received the note he met the plaintiff, he told him he wanted particulars of the property for a "friend." Tho defendant gave the particulars, and Mr Oliver's n*me was mentioned as the intending purchaser. The plaintiff furnished Oliver with ttie particulars, who said that ho would go and see the property. He went accordingly, and meeting the defendant there, conc'uded the bargain with him. It was proved to betheoustom in Dunedin for the vendor to pay the broker's commission, or in other wordi, if a broker introduced two principals, he was p»id commission by The vendor. The first question is • Was the plaintiff authorised to act as the defendant's agent in the matter? It is not necessary that the appointment be in writing. In the words of Lord Cranworth (Pole v. Ltath, 33, L.J., Chancery, 155, H.L.), " an agency may be created simply by placing another in the situation in which, according to the ordinay usages of mankind, that other is understood to represent and act for the person who has so placed him. " The defendant furnished the particulars to the plaintiff, knowing that he was not a principal, and by that act placed him in a position to effect a sale as hu agent. If Oliver had said, on receiving the particulars from the plaintiff, " I will accept the offer," and had accepted it accordingly, could the defendant have repudiated the transaction on the ground th.t the plaint ff was Dot hia agent? I think not. In giving the particulars to the plaintiff, an auctioneer and commission agent, I think the defendant thereby constituted the plaintiff his agent quod hoc. The defendant is himself experienced in business, and if he desired that the plaintiff should understand he was not authorised to act as hu agent, be should have said so at the time. The defendant laid some stress on the plaintiff, saying the inquiry was for a friend. This was the same expression he used on the first occasion. The Mr interpretation, in my opinion, of what passed, in that the plaintiff had a purchaser in view. There is no friendship in business, and I can only look on the word as a mere euphemism, to indicate a probable purchaser. Being of opinion that an agency is implied in the circumstances, and taking into consideration the usage proved, (hen then is no further difficulty in the c««e. It is not necessary, la order to earn hi* commission, that the broker should complete the transaction. "Where* broker first introduces two principals to each other, he earns hia commission." (Wilde, B. Gibwn v. Crick, 31, L. J. , Ex., 304.1 •• The law is clear that the broker who first introduces the purchaser, although the negotation is completed between the princioul* is entitled to commission." (Erie C. J. Cunard v. Van Oppen, 1, Post and Fin, 71&) The defendant completed a sate with Oliver as a result of the plaintiffs de/ihiitr with Oliver, and has been benefited by the plaintiff's agency. There was no other intemediary. I come therefore to the conclusion, although with a little difficulty, the case being a narrow one, that in the circumstances the plaintiff Is entitled to commission. Judgment will be for the plaintiff for £60, with costi. George Munro y. Corporation of Dunedin.— In this ewe, the plaintiff sought to recover the stun of LIOO damages, caused to his land situated in Cargill street, in consequence of the negligence of the defendants in permitting water to Sow on it Mr Stout for the plaintin, and Mr Haggitt for the defence, which was Not guilty.— Plaintiffs grounds of complaint were — (1), that the water running down the street channel overflowed ana percolated to his land ; (2), that the defendants used an imperfect service pipe, the leakage from which kept plaintiff's land in a wet condition ; (3), that the main pipe burst in February last, and the water overflowed on plaintiff's land. — The plaintiff deposed that he complained to Mr Davis, defendants' inspector, about the matter, but no proper service-pipe was put down until Friday last, after the action had been commenced. Several other witnesses were called in support of the plaintiff's case.— -Mr Haggitt. in opening the case for the defence, said that it would take two shapes. In the first place, there was no negligence on the part of the Corporation, and it was only in the case of negligence that, the defendants could be held responsible. Then, in the next place, supposing that Hia Worship should be against him on the legal objections that he would advance, then he would contend that the plaintiff had very much over-stated the amount of damages which he had sustained. He would show by the best possible evidence that there was no inherent neglect in the laying of the pipe. It wa3 not true that the pipe broke as one portion of it withdrew from the other. Whether the damage arose from the rain, earth-slipping, or the hUI slipping, he contended that the Corporation was not liable. In support of his view of the case he cited sections 57 and 80, of the Municipal Corporations Ordinance, 1865. The law was also laid down in Addison on Torts ; but there were two very recent cases which bore upon the point: The firat was Ferra v. Gommismners of Sewers, L.R., 4, Ex., and 28, L.J., Ex. 202. The next case was Baker v.. Vestry Marykbone, 35, L.T.N.S., 129, and 24, W.R. 848; Blythv. Birmingham. Water Works Company, 25, L. J., Ex., 212 ; WJiitehotae v. Birmingham Canal Company, 2/, L.J., Ex, 25.— Mr Stout having i replied, his Worship decided to hear evidence 1 in order to determine whether or not the facts as proved would bring the case within the scope lof the authorities cited.— The evidence for the defence was then proceeded with. MrMirams, when under examination, said that the whole of the locality was in a moving condition. He estimated the whole of the damage at L 47. Judgment reserved.