Magistrate's Court

Southland Times, Issue 18058, 30 January 1903, Page 4

Magistrate's Court

THURSDAY, 29th JANUARY. Before Mr S. E. McCarthy, S. M. ' CLAIM FOR COMMISSION. The Magistrate gave judgment in the caso John A. Mitchell v. Thomas Fleming, claim for £25 commission— Mr Kattray for plaintiff, Mr Stout for dcfen dant. The court held that defendant gave the plaintiff an authority in writIng, emqiowering him to pell tlio for. irier's Craighthorn property, ihe authority to remain open for a weeta from 29tb November last. The plaintiff submitted the property to F.Morrah, who gave an offer in writing, introducing some fresh . terms.. _ ..' PlaintiS pointed out the! ;^«^f6hoe,S Morrah verbally authpri*d : plaintiff to endeavour to necare some modification of defen<3ttnt'B terms and if unsuccessful to jmrchase on the baejs of the (lefendftnt'p authority tp j

sell. It was suggested that, this verbal offer was a mere fabrication, but the only basis for such a suggestion was that in his letter to the defendant of the 4th December plaintiff referred to Morrah's offer as being in writing 1 . Plaintiff had such un offer, .and the reference to it alone muy have been the result of the Hurry in which the letter was written. In any event this was too slender a foundation on which, to rest an imputation of perjury. The delay by plaintiff in communicating Morrah's offer doubtless rose through nl'sence of sufficient opportunity occurring to the plaintiff to carry out his promise to Morrah of endeavouring to induce the defendant to modify the terms of his authority to sell. As a result of his interview with defendant on December 3rd, plaintiff inferred that that there was no chance of any modilication, ami verbally notified defendant of Morrah's intention to become a purchaser on . the terms Vt the authority during a train journey from Invercargill to fioro on 4th December. Defendant denied that he was explicitly informed of the sale and immediately on arrival of the train at Gore wrote his revocation and caused it to be delivered to plaintiff. In order to lend strength to his denial defendant swore that he had determined to revoke his authority to sell on the day after he had given it. The defendant was admittedly a shrewd business man, but did not at once communicate his intention to revoke to the plaintiff thougli he saw him twice before the journey to Gore several days later. Tho mere statement of defendant's view carried its condemnation, and the court would reject his denial, and accept plaintiffs statement that he verbally communicated to defendant Morrah's determination to buy. It was also stated that negotiations were renewed a few days after ttie revocation, between defendant and Morrah. Keeping these facts in view one was naturally led to j infer that defendant's revocation was- a mere device to deprive plaintiff of his right to recover commission It had been decided in Moir v. Martin ,(7 Times L R. 330) that where the defen dant and purchaser being agreed as to all the terms, a contract was not entered into <by reason only of the former's refusal.. to make tho agreement binding, the agent was entitled to recovgr commission. Even assuming! in defendant's favour that the plaintiff did not, before the revocation, inform him of Morrah *s determination to buy. yet tho plaintiff had before revocation found a purchaser and was entitled to recover. Defendant had also given plaintiff authority to sell, tho authority to be existent for a week. In such a case, directly the agent accepts the authority and starts to work thereunder tho defendant has given a quid pro quo for the agreement to allow the authority to lemain open because he thereby establishes between himself and his principal relations of a fiduciary character, which previously were non existent. Assuming this opinion to be well founded, it was apart from all other considerations. beyond the defendant's power to revoke plainplaintiffs authority to sell until after the expiration of the stated^ period. Judgment was recorded for plaintiff for amount claimed and costs £5 NO DEFENCES. Judgments were given for plaintiffs in J. E. Watson v. P. Brodrickl (Winton), for £1 2s. costs 15s ; same v. T. Tait (Patearoa), for costs £1 Is lid. JUDGMENT SUMMONS. Jane Goff v. D. McFadgsn, was a claim of £7 5s 6d on judgment summons. Mr J. Macalister, for the plain till, disked the Court to make an order for payment without examination of the debtor, or in default of payment iiu- ! pose imprisonment. The amended Imprisonment for Debt Act, although it. practically abolished imprisonment, didnot upset the jurisdiction of the Court in cases where the debt had iteen contracted by any species of *raud. The statement of a claim on the original summons alleged frand, and to that the defendant had confessed judgment under his own hand. Counsel drew his Worship's attention to t/he legal Interprelatitfn of "confessed judgment," which meant confession of the cause of action as well a9*< of the debt. Defendant was not estopped by the judgment frons giving any explanation.— Defendant said that when he confessed judgment he was under the impression that he simply confessed to owing the amount claimed. He had no ideal that he was confessing to fraud. He was earning 28s a week, and had to support two young children.

His Worship said that tfie Court could not go outside the confession. Defendant was an intelligent man. n.nd must be presumed to have understood the judgment.— Order made for the payment of the money forthwith, in default one month's imprisonment, warrant not to issue if deiendant paid regular weekly instalments of ss. AN OLD DTSBT. N.M. & A. Co. v. A. Manson (F.yre Creek), claim £62 14s for supplied in 1896.— Mr Lillicrap lor plaintiffs; Mr W. Macalister for defendant, who had previously pleaded the Statutory Limitations Act, but the plea had been disallowed. After hearing evidence, Judgment was given for plaintiffs for £19, costs.