RESIDENT MAGISTRATE'S COURT.

Southland Times, Issue 1557, 29 March 1872, Page 3

RESIDENT MAGISTRATE'S COURT.

(Before H. MCulloch, Esq., R.M.) Wednesday, Maeoh 27th. Martin Brown was charged bj Mrs Foster with having made use of threatening and abusive language at Kew early on the morning of Sunday. Mr Matthews appeared for defendant. From the evidence given by complainant, it appeared that early on the morning of the day named her attention was attracted by hearing a noise outside her house. On going to the door, she saw defendant, who loudly accused her of having manufactured " greasy butter," besides possessing moral tendencies ot an equally slippery nature. In reply to questions put, complainant said tbat it was her personal character, and not her commercial morality, she was desirous of vindicating. The Bench, who admonished defendant regarding some previous transactions of a similar kind, ordered him to pay a fine of 40s, and find sureties to tl-e amount of £5 to keep the peace for six months.

Tbttbsday, Mabch 28. Kee Chang, charged on remand with fraudulently disposing of a quantity of spurious gold, was remanded to Riverton, the case to be heard on the 3rd proximo. Crrc_ Cases. auctioneeb's commission. Osborne v. Smith. — This was a claim for £40 commission, at the rate of 2£ per cent on the purchase price (£1600) of the property known as tbe Prince of Wales Hotel. A sum of £20 was paid into court in full satisfaction of the demand. Mr Macdonald appeared for plaintiff, and Mr Wade for defendant. Plaintiff deposed that he was commissioned to dispose of certain properties in Invercargill, belonging to defendant, amongst others the property in question. These instructions were conveyed to him by letter, dated from Bradford, England, December, 1869, where defendant was located at that time. Acting under instructions from defendant, Mr Wm. Conyers also communicated with witness on the subject. Tbe question of commission was spoken of between witness and Mr Conyers. That was on the occasion of his (witness) making some arrangements tor tbe sale of the Dee-street corner block, one of the other properties so placed in his hands for sale. Mr Conyers was then told that the commission would be 2£ per cent. Witness had from first to last taken a great deal of trouble to get the Prince of Wales property disposed of. Defendant subsequently returned to Invercargill, and repeated interviews were held upon the subject. At first defendant consulted witness about leasing the hotel to different parties. The name of Mr Powell of the Albion Hotel was mentioned by defendant as a likely party to lease the premises. On 29th January last, witness saw defendant, and informed him that Mr Powell had some thoughts of purchasing the hotel. He (plaintifl) communicated that intelligence from information he had picked up. He also told him at the same time that Mr Dykes of the Bridge Inn had some idea of purchasing it. On 9th February witness ascertained tbat Dykes did not intend to make a purchase, and he afterwards saw Mr Powell on the subject. At tbat interview plaintiff recommended Powell to purchase the property, and he requested him to call upon him and he would furnish him with all the requisite information on the subject. To this request Mr Powell replied " All right," but he never called. Subsequently plaintiff saw Mr George Smith on the subject, and negotiations were entered into between him and defendant. These negotiations resulted in the property being placed under offer to Mr George Smith for three days at the price of £1,5C0. Nothing came of that offer. On Monday, the 12th, witness went to defendant and made him an offer of £1,800 for the property adjoining that of the Prince of Wales. Defendant then informed him that Mr Macrorie was in course of negotiating the hotel. Witness asked, " Who's to pay Macrorie for selling the hotel ?" Defendant answered, " Nay, Ido not know." He asked again, " Are you going to pay him, or is Powell ?" He replied again, " Nay, 1 do not know." Witness proceeded to say — I told delendant that be had better take care what he was about. A few days before this, either on the 7th or the 9th, defendant told me that Macrorie was

looking after it. The reply I made was— "Could M-icrorie not mind bis own business ? " On Friday, the 16th, I ascertained that the property had been sold to Powell. The Court— When was it that you saw Powell ? Had you not seen him on the subject since you asked" him to come round to your place ? Witness— No, I knew tbat there was no use seeing him. Examination continued— On the Wednesday previous I submitted an offer of £1500 on behalf \ of a penth m n whose name Ido not wish to mention, "tf hen Smith told me that the property bad been sold to Powell, he did not. that I recollect, state the amount. As I had all along anticipated a dispute, I then asked him—" Who's to pay Macrorie ? " Mr Smith replied—" I suppose I will." I asked — " Th- n who's to pay me ? " He said—" How much ? " I replied— "2h per cent." The answer he made was that he would not acknowledge it. Afterwards I sent " in my account, which elicited a letter from him, dated 23rd February, acknowledging receipt of the account, and offering withdrawal commission 1 at the rate of 1 \ per cent on such amount as might be agreed upon. The letter went on to say — '• You had the property in your hands a long time for sale, and did not get a purchaser. Was 1 Ito be for ever prevented from selling it, if it did 1 not pass through your hands ? The feeling 1 ' know you have towards another agent, would, I was sure, prevent you from dealing with him, ■ and you know Mr Powell declined doing business 1 with you." The property never was withdrawn from my hands up to the date when it was sold. Up to that time I had it in my hands treating 1 for it. r Mr Macdonald— Let me ask you about the practice of tbe trade in such cases. When a i property is placed in an agent's hands, and sold i by another without ever having been withdrawn, what commission is charged ? Witness — Full commission. I always decline having anything to do with properties wben other agents are employed. Mr Wade— We don't want to know what you 1 do ;we want to know what is the custom. Witness — Well, that's the custom to you, then. Cross-examined — Have you had many offers to submit at the reserved price? Witness — No, none. Mr Wade — You had the property two whole years in your hands, and you never succeeded in getting an offer equal to the upset price ? To the Court — The reserved price waß to cover £1600. Mr Wade — You never had an offer which either Mr Conyers or you were authorised to accept ? Witness — No. Mr Wade — You first heard from defendant that Mr Powell wanted to lease the hotel ? Witness — Yes ; Powell and other parties. Mr Wade — That was before you saw Powell on the subject. Witness — Yes. Mr Wade — It was after that that you saw . Powell ? Witness — Yes. Mr Wade — You never saw Powell after the conversation you have alluded to ? Witness — No. Mr Wade— You knew Powell would not deal with you P Witness — No, no ; that is wrong. Powell and I were friendly to the last, and there is no use of Smith attempting to raise up a barrier between him and me. Had the business been conducted by me it would have been Mr Wade — Will you keep quiet ? The Court — We don't want to hear all that. Answer the questions. Mr Wade — Had you settled accounts with defendant up to a certain date ? Witness — Yes, I gave him a cheque for a little too much, more than I should have done. Mr Wade — It strikes me he has given you a little too much, more than he should have done. Mr Wade — The defendant then withdrew the corner property, on which the brick building has been erected. Witness — The reason of that was The Court — Answer the question, and make any explanations afterwards. Witness — Well, yes ; he withdrew it. The reserved price was £900. The building was sold to the bank conditionally, and I agreed to take H per cent, on £900 in full payment of my claim. Mr Wade — Did you not at the same time ask for an allowance for the trouble you had been at with the Prince of Wales ? Witness — No, I did not. In answer to other questions, the witness said — I did not come to the conclusion that the property could not be sold at the price fixed. I consider that the property should have remained in my hands until I sold it. I had frequent interviews with Mr Conyers on the subject. Mr Wade — But you never bad any success in selling the property ? Witness — I would have succeeded had it not been for the unwarrantable interference. On being further interrogated, plaintiff said — I submitted an offer of £1500. I would not have closed for £1600 without consulting with defendant. I would have been prepared at once to accept of Mr Geo. Smith's offer of £1500. I do not know that it was to be a condition of the acceptance of that offer that it was to be cash. I understood defendant conceded the £100 in consideration of Mr G. Smith having been his tenant. I anticipated this dispute, but it was not because I consider that I am charging more than I am entitled to do. Mr Wade — At all events, you were quite prepared for a dispute ? Witness — Yea, 1 was. To Mr Wade— Had Smith told me that he withdrew the property before the sale was completed, I should only have been entitled to £20; I must however explain tbat had the withdrawal been made with the view of selling the property, I would have been entitled to receive the full commission. Mr Wade — If the seller found the purchaser, would you be entitled to claim the full commission in that case ? Witness — Yes, that is very often done. Mr Wade — Had you ever any offer from Powell ? Witness — No. Mr Wade — Then all you bad to do with Powell was suggesting to him that he should purchase the property ? Witness — Yes, that is all; but Smith consulted me about leasing it to him. Mr Wade — The advice you gave was no doubt valuable, but that is nothing to the case. In answer to other questions, witness said that he did not remember making any arrangement with defendant that 2£ per cent, should be charged if the property was sold, and if not sold only reasonable expenses. He never told Smith that there was no chance of getting tbe reserved price. Richard Powell deposed that he purchased the property in question. He dealt with defendant and Mr Wade. He spoke to Mr Macrorie about it, but did not employ him. Previous to that i he had bad some conversation with plaintiff about it. The conversation took place in the street. To the Court — I do not think plaintiff gave me any information about the property. Examination continued — Mr Osborne asked i me to come round to his place and see him. I do not recollect whether that was before or after I had seen Mr Macrorie. I paid £1,525 for the > hotel. 'Ihe price originally asked was £1,600. t The negotiation was closed through Mr Wade, as my solicitor, i By Mr Wade — I do not think that it was from anything plaintiff said tbat I was induced to • purchase the property. He simply spoke to me . about it as a public event, and I certainly had no ■ idea at that time of becoming the purchaser. A , considerable time elapsed before I thought of i making an offer. I did not make up my mind I until I made the offer. It was at the solicitation • of Mr Macrorie or his assistant, Mr Renwick, I that I did so. The conversation with plaintiff . had nothing at all to do with the purchase. D. Macrorie deposed to the property having i / been placed in his hands about the Bth or 9th

February. He effected a sale, but the terms were afterwards altered. I applied to defendant for my commission. This would be about the 16th February. I then learned for the first time that it had been in Mr Osborne's hands. Mr Smith declined to settle with me unless I agreed to pay Mr Osborne half the commission, which I agreed to do. The sale was finally concluded on the 15th ult. The witness was examined and cross-examined at considerable length as to the practice of the trade when properties were in more than one agent's hands, to which he replied that the custom was to divide the commission, as he had offered to do in tliis case. G. F. Martin was also examined as to the usage, and gave it as his opinion that an auctioneer situated as plaintiff was was entitled to clam lull commission. John Blacklock, examined on the same point, gave it as his opinion that where the sale could j not be conducted without the intervention, or at all events reference being nm le to the principal, the as*eut was only entitled to claim half comI mission* i Mr Osborne was recalled, and stated that since last New Year the demand for property in ' Invercargill had shown a marked improvement. In opening the case for the defence, Mr Wade contended that the evidence showed that nothing existed that could be interpreted as a trade practice, consequently the case fell to be dealt with as one for breach of contract, and that the onus of proving that he had sustained damages devolved upon the plaintiff. As bearing on the general import of the case he cited from Addison on the law of contracts, wherein it is laid down — " That an estate agent, employed to sell an estate for commission at a given price, who succeeds in finding a purchaser at the stipulated price, but the principal then declines to sell, and revokes the agent's authority, the latter is entitled to sue for a reasonable remuneration for his services, and the amount of his commission on the price would seem to be the sum to which he is fairly entitled ; but if the authority is revoked before it is executed and a purchaser has been found, it does not follow that he is entitled to sue upon an implied contract for remuneration for his work and iabor in endeavoring to find a purchaser or a tenant. If it is the practice of house agents to charge a fee for entering property to be let or sold in their register book, and the employer has notice of this, or it iB proved to be a known custom of the trade, the employer will be bound to pay this fee, although the authority may be revoked, or the agent may have failed to render any beneficial service. This registration fee is all that the house agent is entitled to charge for the ordinary services, in the absence of any special instructions for advertisements." He called the defendant, who deposed having placed the property in plaintiff's hands by letter from England in 1869. On his arrival in Invercargill the following year, he saw plaintiff, and told him that he was sorry he had not succeeded in finding a purchaser for the property. Nothing more transpired until the occurrence of the fire in Tay-street. Mr Dalgliesh then spoke to witness about selling the tenement in Dee-street. Mr Osborne took the negotiation in hand. Witness said to plaintiff that he had advertised to charge 1£ per cent, commission, and asked what he was going to charge him on the sale of either the corner or the Prince of Wales property. He replied, " Ifl sell, 2£ per cent. ; if not, seasonable sum for my trouble." These were his very words. The sale to the Bank fell through, and defendant subsequently went to Melbourne. On returning, defendant had had a settlement of accounts with plaintiff. A sum of £12 was agreed on for the corner allotment. Plaintiff then asked him what he was going to allow for the Prince of Wales property. He (witness) was going to mention £15, but he did not do so. Plaintiff replied, " Well, let that stand over until we make up a correct account." To the Court — The £12 was paid as withdrawal commission on the corner property. Examination continued — A day or two afterwards, Mr Renwick told witness that he could get a purchaser for the Prince of Wales. Witness replied that if he could he would pay him for his trouble. He had lost about £600 upon it, and he was very anxious to get rid of it. Renwick afterwards called upon witness and inquired what price he wanted. The answer was £i6OO. Renwick then said that he thought he could persuade Mr Powell to buy i*. It was these negotiations that led to a sale. The sale was arranged within a week after my return from Melbourne. To the Court — I intended to pay Osborne for his trouble, and Macrorie, Eenwick's employer, for the sale. To Mr Wade — I consider Osborne gave up all hope of being able to effect a sale. Still I did not wish to act sharply with him, and if he had brought me a purchaser it would have been all right. I was very anxious to get rid of it. Cross-examined — The conversation alluded to as having taken place between Osborne and myself occurred between the 16th and 23rd. Mr Macdonald — Up to the time the sale of the property was effected, had the property been withdrawn out of plaintiff's hands ? Witness — I consider that I withdrew it a week or two before the sale. Mr Macdonald — When did you withdraw it ? At what date ? Witness — I am not sure. It was about the early part of February. In reply to other questions witness said — On the 16th February I saw plaintiff and told him that the property had been sold. Mr Macdonald — Was the property withdrawn at this time from Osborne ? Witness — Yes. Mr Macdonald — When was it withdrawn ? Witness — I can't say. Mr Macdonald — Was it not in Osborne's hands up to this date ? Witness — At that time it was in his hands. Mr Macdonald — What did Mr Osborne say when you told him that the property had been sold? Witness — He talked about it being dishonest and dishonorable, and said he would make me pay the full commission. Cross-examination continued — Osborne told me that there were three or four parties wanting to lease the hotel. He never mentioned Powell's name as being a likely purchaser. He merely told me that he wanted to rent it. To the Court — That was in the month of January. To Mr MacdonaM — When Osborne spoke to me about leasing the hotel, I said that I must find a purchaser if possible. The property was placed in Benwick's ha^ada the latter part of January. J. 8.. Itenwick deposed as to the practice of the trade that where a property got into the hands of two agents, the one who effected the sale received the commission, the other being entitled to nothing. He mentioned an instance in which a property placed in Mr Macrorie's hands had lately been sold by Mr Osborne, and no commission was paid to the former. Mr Osborne was again recalled by Mr Macdonald, and denied that anything had been said about the Prince of Wales property when the settlement for the corner property took place. After counsel had addressed the Bench, the Magistrate said that he would reserve his judgment till Tuesday. Lahey v. M'Lean. — Mr Wade for plaintiff, and Mr Macdonald for defendant. This case, which had been heard some months ago in the Resident Magistrate's Court, was carried by appeal to the Supreme Court, where the judgment of the Magistrate was reversed, and the case remitted back to the Magistrate's Court for the purpose of having the damages assessed. After the point had been argued by counsel, the Court reserved judgment till Tuesday,

It is statedin the Journal de VEclairage au Gaz of Paris, that petroleum can be converted into a permanent solid, which , will burn without liquifying and may be preserved in a firm mass for any period of time. The process is not given, and ie . said to be secret.

SOUTHLAND HOSPITAL. The statutory annual meeting of subscribers was held on Tuesday evening in the Council-hall. The audience, which waß wholly confined to subscribers, showed a good average attendance. Mr Thomas Pratt was elected chairman. A report from the committee of management was read and considered. It congratulated the subscribers on the satisfactory state of the financial affairs of. the institution. "This result," it went on to say, " is the more gratifying inasmuch as the committee have had to encounter an unexpected drawback in the Provincial G-overnment having since they (the committee) entered upon their duties, reduced hospital subsidies by onehalf, and also that during the same period the number of in-door patients has been more than usually large." Increased liberality on the part of the public was earnestly counselled. The number of patients treated during the year was stated as follows *. — ln-door, 78 ; outdoor, 238, making the total 316. The cost per head, including the house-staff, had been a fraction under Is per day. The house was reported to be in a thorough Btate of repair, and no expense beyond that of current expenditure was anticipated during the ensuing year. A House-surgeon, in the person of Dr Grig-or, had been appointed at a salary of £125 per annum, be (the surgeon) retaining the right to undertake private practice. By an arrangement made with the Provincial Grovernment provision had been made for the hospital surgeon attending the gaol and police. By that means the committee received the salary allowed by Grovernment for these services. The House-surgeon's report alluded to an increase in the number of in-door and a decrease in tbat of the out-door patients. The average number of days each patient had remained in the hospital during the year was as reported 37. The death-rate, reported to be above the average, is attributed to the admission of incurable diseases. The general management and sanatory condition of the hospital were favorably mentioned, a circumstance which was attributed to the committee's careful supervision. The report concluded with a reference to the question of patients being admitted either incurables on subjects more fit for a Benevolent Institution. " Situated as we are in the centre of a very large district, and subject to the drifting in of such patients from up-country hospitals, it is," the report set forth, " too much to allow that such cases become fairly chargeable on this place, more especially with a reduced Government subsidy. With a view to meeting the difficulty at present, I think the committee ought to introduce a system of * duration of residence within a certain boundary' as warranting such cases becoming chargeable on the institution." From statements appended to the report, we learn that the admissions during the year were 55 males, and 14 females. Discharged — cured, 38 males aud 10 females ; relieved-- 10 males and 5 females ; died, 5 males and 2 females ; remaining in Hospital, 7 males and 1 female. The diseases treated were 49 medical and 29 surgical. The seven patients who died varied in age from 46 to 76 years. The balance sheet showed the operations of the year to have begun with a deficit of £3 19s 4d ■ the expenditure for year amounted to £755 4s 2d. The receipts for the year were — Public Subscriptions £295 10 4 Provincial Government subsidy for May and June, 1869 ; from June to December, 1870, and from Jan. vary to June, 1871, including interest 712 0 0 General Government subsidy, from Ist July, 1870 to 31st December, 1871 75 0 0 Total income £1082 10 4 After deducting expenditure and deficit, a sum of £323 6s lOd was carried to the credit account of the current year. A note appended to the statement set forth that the Provincial Government subsidy of £ to £ on public contributions from Ist July to 31st December, 1871, is still owing, and amounts to £49 6s 7d. A number of questions were put in reference to the report and balance ] sheet, which elicited the information that j the "balance carried to the current year's account was shown as on the 31st December last. Since then the amount had been reduced. Including the subscriptions received to date, the amount at the credit of the institution did not at present exceed £300. Messrs Dalgliesh and Wade argued that the statement showing the financial affairs of the institution ought in future to be brought down to the date of meeting. The president, Mr Lumsden, replied tbat the balance had, for the convenience of adjusting the Government subsidy, to be struck as on the 31st December of each year. On the other hand, the date for holding the meeting was fixed by statute for the month of March. He admitted this to be an inconvenience, and thought that steps should be taken to repeal the ordinance, so as to enable them to hold their meeting within a few days of the balance sheet being made out. In answer to Mr Dalgliesh, the president said that the amount paid by the Government in respect of the surgeon's attendance upon the gaol and police was £75. The Committee had not reverted to the old arrangement with the surgeon. Dr Monckton, the previous surgeon, received at least double what they were now paying Dr Grigor. He added — Tbe reduction of the Government subsidy would to some extent embarrass their operations, but judging from the liberality that had been evinced by the public, he ! did not think that there was any real i cause for alarm. i Allusion having been made to the ) minutes of the previous meeting, theße I were read and formally confirmed, i In furtber discussing the report, Mr R. Gilmour stated that very grave rea-

sons existed for increased liberality o n the part of the public. The subscriptions for 1871 amounted to £292. Last year they were £296. The actual expenditure during both years was £900. Now that they were only getting the £ for £ subsidy, it was obvious that there would be from £100 to £150 deficiency to be made up. The treasurer, Mr Morrison, pointed out that a sum of £94 6s 7d was due by the Government as subsidy from Ist July to 3 1st December last. On the 31st December of this year, £100 would be due by tbe Provincial Government. Mr H. E. Osborne moved, and Mr J. Dalgliesh seconded, that the report be adopted, and the thanks of the meeting tendered to the retiring committee. The motion was carried unanimously. The committee of management for the ensuing year was then elected by ballot, resulting in Messrs Morrison, Hare, i Perkins, Gilmour, Lumsden, Webster, I Tapper, Montagu, and Saunders being ! appointed. Mr Lumsden was re-elected j president, and Mr Morrison treasurer. The meeting then adjourned.