SELLING COMMISSION.

Otago Witness, Issue 3112, 5 November 1913, Page 74

SELLING COMMISSION.

AN AGENT’S SALE. In tho Magistrate’s Court on the 21st. f before Mr 11. Y. Widdowson, S.M., Eustaco L. Macassey, trading as E. L Macassey and Co., land agents and hotel brokers, sought to recover from Mrs J. Kenning the sum of £57 18s, being commission for the sale of defendant's hotel property and chattels at Clyde. Mr Hay appeared for the plaintiff, and Mr W. C. MacGregor for tho defendant.

The claim outlined by Mr Hay was that Mr Macassey had seen Mrs Kenning about August last year, and was told by her that she might sell out after the New Year. A buyer named Mack was obtained by Mr Macassey, and the former proceeded to Clyde and effected a purchase for £6OO, goodwilf and furniture at valuation—£lll6. The claim was for reasonable commission on this amount. Mr Hay read various telegrams and correspondence covering his case. Plaintiff, in the box, said his claim for commission was reasonable, being on the Stock Exchange scale Up to £IOOO, oij stock and furniture, the commission, according to scale, was 5 per cent., and per cent, on the goodwill. The scale was altered in January, and he had made his claim on tho whole transaction. He considered that 5 per cent, would be a reasonable commission on the stock and furniture alono

To Mr MacGregor: He was not present at the sale, nor did lie make out the contract note. Ho gave Mr Mack a note of introduction to Mrs Kenning. He did all he oouid to effect the sale, and thought he was entitled to commission for having sent Mr Muck forward to Mrs Kenning. Evidence was also given by James B. Mack, publican at Clyde, as to details of the sale

Mr MacGregor submitted that plaintiff had not shown any case under the Land Agents Act. He had merely proved that he was instrumental in the sale of the property, but not that there was an engagement or employment to effect a sal© for commission. It was precisely to meet the point in the present case that section 13 of the Land Agents Act was inserted. He asked for a nonsuit on the ground that the transaction was an entire transaction, and could not be split up; and since plaintiff could not claim on the sale of the land he could not claim 'On the chattels.

Mr Hay submitted that the correspondence was sufficient evidence of appointment to sell. He claimed that tiie Statute of Frauds covered analogous conditions to the Land Agents Act, and maintained that its interpretation of what constituted or could be construed as an agreement should apply to the present case. The position was that there was a valid contract to secure a buyer. The provision for a written contract applied only to land: therefore the claim for reasonable commissiqji for the sale of chattels was valid. As for the sale of the land, ho submitted that the necessary agreement (which was surely not intended to be hard and fast and formal) was covered by the letters and telegrams. Idle sales of the goodwill and of tho chattels wore distinctly appointments.

Mr MaoGrogor submitted in reply that the contract was an entire contract. The plaintiff had treated it as an entire contract, and whether lie had or not the law 'treated such contracts as entire. He held also that there was no specific agreement or appointment signed by Mrs Kenning. There were several letters emanating from Mr Macassoy, but they could not constitute an agreement involving Mrs Kenning. After the luncheon adjournment evidence was given by Mrs Kenning. After hearing further argument his Worship reserved his decision.