A LAND AGENT’S CLAIM.

Stratford Evening Post, Volume XXXV, Issue 34, 8 February 1913, Page 2

A LAND AGENT’S CLAIM.

INTERESTING COMMISSION CASE DECIDED. ' VERDICT FOR DEFENDANT. The Magistrate’s Court yesterday was occupied for the greater part of the day in hearing the adjourned case, in which the D.0.A., in the bankrupt estate of Janies Hodge, claimed from John Wilks, of Brecon Road, Stratford, the sum of £B6 11s Gd, later amended to £69 Os lid. The brief facts of the case, as they appeared from evidence given on the day of the first hearing, and also in yesterday’s pi’oceedings, were that in the beginning of 1911, the defendant John Wilks owned two farms at Norfolk Road, near Inglewood, one being leasehold and the other freehold. He placed these two farms in the hands of the bankrupt Hodge for sale for cash. About twelve months after they had been put in Hodge’s hands, meeting Wilks in Stratford one day, asked him if he would consider an exchange of his farms for one David Kelly’s interest in a livery stables at Kaponga. Later on, Hodge and Kelly together approached Wilks, and then all three drove to the Norfolk Road farm, when Kelly inspected the two properties, and said he was quite agreeable to exchange his stables for Wilk’s interest in the farm. The following day Wilks drove out to Kaponga and inspected Kelly’s stables, and agreed to the exchange. On the 17th of January, 1912, the defendant and Hodge and Kelly called on Mr W. G. Malone with instructions to have the necessary documents prepared to complete the exchange, and thereupon an agreement of exchange was signed by the parties.

In his opening address on the previous Friday, Mr Wright stated that Wilks had paid in.some way or another £SO, and plaintiff now claimed the balance, £69. Plaintiff was suing on the ordinary rates of commission, namely, 2£. per cent, on the freehold, and 5 per cent, on the goodwill of thtf lease, while the plaintiff, on oath deposed that when the properties were put into his 'hands there was nothing said about commission. Mr Cecil Wright appeared for the plaintiff and Mr Cyril H. Croker for the defendant.

Cross-exafnined by Mr Croker James Hodge (whom we will call the plaintiff) deposed that he had for four years been a land agent in Stratford, but it was only from June 10 to June 12 that he was in business on his own account. Before this, he had acted as land agent for Mr J. D. Morison, but he had had no access to Mr Morison’s books, and did not complete the deals. He did not know how many sales he had made when in business on his own, and had not his books in court. He met Wilks casually, and said, “How about that Norfolk Road property?” or words to that effect, and Wilks "said he would sell or exchange. The prices were £l2 an acre for the freehold and £4 ids an acre for the goodwill of the lease. He tried to sell it and twice introduced men to Mr Wilks: they wouldn’t touch it. Witness thought that Wilks was asking too much, and considered that £lO an aft’e for cash was a fair price for the freehold and £2 cash fair price for the goodwill of the lease. He knew Wilks wanted to sell, but ho did not know why. Wilks had mentioned to him that the Loan and Mercantile were pressing him. Witness 'knew that Wilks wished to get out of it, and that he wanted the casli badly. Mr Croker: And ho agreed to pay commission ?—Witness ; There was no arrangem'ent as to the amount. He told me that if I was successful in fixing the deal he would give me the usual commission and would not mind give me something over and above that commission.

Mr Croker: Did you ever tell Wilks what commission you were charging? —Witness: No.

Mr Croker then questioned witness as regards another exchange in which witness had engaged the services of defendant. Plaintiff admitted that he had wrung Wilks up on the telephone, and asked him to interview one Charles Ludwig Kasper, licensee of the Kaponga Hotel, with a view to effecting an exchange between Kasper and Gooch, who owned property at Toko. The arrangement was that if the exchange was effected witness and Wilks were to have the commission. Witness admitted that Wilks had done all that was required of him, and the agreement of exchange was duly signed.

Questioned by Mr Croker, witness said that the exact words which passed between himself and the defendant were that Wilks said, “if you get this deal through my share of the corarnisison will go pretty well to square up over the Norfolk Road deal.” Witnes said :“Yes; it’ll just about clear you up.” Ho denied absolutely thta he had said to Wilks : “When we get these people to sign up, we’ll call our commission square at £50.” Witness explained that there was a clause in the agreement which stipulated that Gooch should finance within a week. This Gooch had not done. Mr Newton King had financed Gooch, and his (witness’s) claim for commission was not admitted. He had been going to sue for the amount as he considered that both he and Wilks were morally entitled to the commission. With regard to the Norfolk Road properties, the freehold was subject to heavy mortgages, Wilks had had to pay £4OO in settlement before the exchange was agreed on. He did not advise Wilks to sell out. Wilks was keen on it, and there was no need for any persuasion. Kelly was not keen on it. Ho admitted that • the values of all the properties had been “boosted” up.

His Worship: Well, you know, in these exchanges they usually are. John Richards, land agent, deposed that the customary commission on exchange of freehold was 2i- per cent. This was not reckoned on the equity, but on the total amount. As regards commission on the sale of a goodwill of a lease with a purchasing clause, it had been his usual practice to make an arrangement'beforehand. As ho understood it, commission was calculated on a 2J per cent, basis on the freehold; that was to say, that if the purchasing clause was at £8 and the goodwill of the lease £5, he would calculate commission at 2* per cent, on the £l3, or what the purchasei had to pay to obtain tho freehold. Witness thought that a claim of 5 per cent, on tho goodwill was unusual; at the same time it was reasonable. Mr Croker, in opening the case for tho defence, said that it had been admitted that this was an exchange and not a sale. Hodge brought the parties together, with tho result that Wilks took Kelly’s stables at Kaponga and paid £4OO into the bargain, and Kelly took the leasehold and freehold farm at Norfolk Road. As regards commission, Wilks suggested fo Hodge that £SO would be a fair thing seeing that it was an exchange. Hodge replied; “That’s all right we’ll fix that up.” Fifty pound each was the amount that he paid in full satisfaction of tho claim. Hodge never made any definite claim against Wilks for commission. Wilks met Hodge and gave him some £8 altogether. Then one day Hodge rang up Wilks on the telephone, and told him that he was trying to work an exchange between two people, one an hotelkeeper, and one a farmer. Wilks interviewed Kasper (the hotelkeeper) and shortly afterwards Hodge came to Kaponga, where, in the Kapongastables, Hodge' said to Wilks: “If we get these people to sign up, we will call it square at £so.That was

the .original arrangement. One of his defences was, therefore, accord and satisfaction. Another defence was that the deal between the parties was not a sale bnt an exchange, and consel, as authority, quoted the case of “Scholium v. Franich,” a decision given by His Honor Mr Justice Edwards in August, 1911, in which His Honor stated practically what is the law now standing in New Zealand with regard to exchanges for land, Which is, that in the absence of a binding custom and of any special arrangement, an agent for sale who induces his principal to agree to an exchange is not entitled to commission as upon a sale, but only to remuneration for the value of his services. Counsel submitted that in this particular case, as there had been no special agreement for payment of any liquidated sum as commission, the agent was entitled to only a reasonable remuneration for the value of his services and that he had already been overpaid in that respect. Another defence raised by Mr Croker was that judgment must be for the defendant since the statement of claim set out, “To commission at 2i per cent, on the sale of 192 acres.” And, again, “commission at 3 per cent, on 227 acres.” Yet it had been admitted that this was an exchange, and not a sale. Mr Wright asked permission to amend the statement of claim, but Mr Croker objected on the ground that already Mr Weight had twice amended his claim and had now long since closed las case, and His Worship said that at this stage of the proceedings he would not consent to such a course.

John Wilks, farmer, residing on the Brecon Road, and defendant in this action, 'gave evidence in support of his counsel’s opening. At the time of Kelly’s inspection of the farm at 1 Norfolk Road he (Wilks) had talked with Hodge abount commission, and had said, “Well, Jim, seeing that this is an exchange, if you get' £SO apiece, you will do fairly well.” Hodge said, “Oh, we’ll fix that up all right.” He did not know what commission the other side had paid.

Mr Wright: We admit they paid £45.

As to the hotel exchange, Hodge rang him up, and asked him to see Kasper, giving witness details of Mr Gooch’s property. He saw Kasper, and next day Hodge came into the stables and said, “Well, now if we can get these men to sign up, I’ll let you off at fifty quid.” Before that conversation he thought he owed Hodge £SO, loss £B, he had paid. The next he heard about commission was a letter from Mr Wake. He paid Mr Wake in August last the £SO, less the £8 already paid, but Mr Wake had said the D.O.A. would not accept this.

Witness under cross-examination by Mr Wright, denied having asked Mr Hodge to make a special effort to effect a sale or exchange, yet lie admitted that he had gone into his financial position with Hodge, and had even told him that the Loan and Mercantile were pressing him. The reason why ho had brought up the question of the commission at the Kaponga stables was because ho wished to have the amount of the commission definitely settled.

Thomas Henry Gooch, Kaponga, hotelkeeper, gave evidence as to commission on the hotel exchange. He did not know of Wilks in the matter. Hodge claimed the money for himself, and made no reference of any other party having a share in the commission. Copies of letters wore produced.

Mr Ken rick dispensed with any further argument on the part of counsel, and delivered judgment. He stated he did not'see that the matter was a very difficult one. The case was the result of land agents carrying on business which at any rate was not legitimate business. Land agents ran after business, and tried to induce people to dispose of their

properties cither by sale or exchange, and the question of commission was always left in the background. Land agents who carried on a proper legitimate business either arranged their commissions before hand or told their clients that they would charge the usual commission, and gave them to understand what they would have to pay. Those sort of cases never came into court. This case was simply brought about through want of some arrangement between the parties. Hodge had said there was no agreement; Wilks had said there was an agreement, namely that Hodge would accept £SO. The first statement relative to tho £SO was- a suggestion that came from defendant himself. Mr Kenrick considered that tho answer given by defendant to Mr Wright was a reasonable one. Defendant did not feel that the arrangement Wilks and ho had made as regards commission was very definite, and so ho got plaintiff’s word that if the matter was fixed up they would call it square at £SO. He thought there was a great deal in that, though it was a question of oath against oath, and the evidence was hardly sufficiently corroborated. But, putting that point aside, Mr Kenrick went on to say that the plaintiff had received the sum of £SO from one side and £45 from the other side. These properties were put into the hands of Hodge for a sale, which ultimately resulted in an exchange. Evchange was a very different thing from a sale, and he thought in these exchanges special arrangements should be made. Very often one or both sides had mortgages on their properties, and it would be seen in this case that besides there being mortgages, Wilks, had had to pay the sum of £4OO to complete. His Worship stated that the case quoted by counsel for the defendant was a case almost similar to the one ho had before him, and what Mr Justice Edwards laid down in that case had always been of assistance to him, namely, that unless a plaintiff fully proves that an arrangement was made as to commission and showed what that arrangement was, then the Court would have to go into tho circumstances and would say what was a reasonable remuneration for the work done. He thought on tliis one point alone that 'the remuneration paid tho plaintiff was a reasonable amount. Kelly had paid £45, and Hodge in accepting this in full payment had made it clear that this was a reasonable amount. He thought that Hodge having received £45 from one side and £SO from the other had been fully paid, and in his opinion plaintiff had received all the money he was entitled to. Judgment would be for . the defendant, with costs £ll 16s 2d, on the £B6 Us 6d, the amount of the original claim.