GILMOUR & PATTIE V. ELLERM.

Taranaki Herald, Volume LIV, Issue 13157, 7 May 1906, Page 6

GILMOUR & PATTIE V. ELLERM.

A judgment of interest to agients and property-owners has 'been given by Mr T. Hutchison, S.M., in the case Gilm'our and -Battle v. Win. 'Kllex»m. x Mr i.Crrey (Wilson and Gr-ey) appeared for the plaintiffs, and Mr Fiteherbert for defendant. •The S.M. s a id the plaintiffs claimed £30 as commission for the sale of a farm by the defendant. iThe statemtoixt alleged an agreement to pa>y commission upon the introduction ' o* a oustom'er, or in- the alternation plaintiffs claimed judgment upon a q-uantum mcruit. The . evidence of plaintiffs' emlploy<m i en i t showed ttot it -had 'been mafcte in haphazard , fashiota, and there w&s no documtentairy evidence to show the tertms of tho transaction, The S.-M. remarked thai he had therefore t o ga'tlher as well a* ho could from the verbal . expression* cif the par-tires 1 and their* conduct what it was thaJt the plaintiffs had l^j do to ear* "a' commission. .He dddiicod from the evidence, that the plaintiffs were to find a pur ohaser. The first question therefore was: Did tfas plaintiff do .so ?... The facfe in this "connection 'were admitted. The plaintiffs took out to tta defendant's ff a rm' a 'Mr Creelman, who inspected the property and agreed to purchase. The defendant's .eolicitoi accordingly prepared a<n agreement fof sale, which was signed, and upon which a deposit was paid by Creel-m-an. The 'sale, fro waver, never was completed, not -by reason, ol any' a ct or default on the .part of the defendant, but by the default ofi the purchaser, Creelman. It was admitted that the f agreeni'3nt 'was <a giood and binding one. But the defendant contended tlvat. the plaWtiffis had not warned their remuneration because, the sale never having- gone (through, they had not. in fact, brought to him a purcha« t 'i\ The Magistrate thought this proposition could npt l>3 maintainod. When the agent Had introduced a purchaser, who, as the result, paid a deposit an d s%n©d a Hnddng agreom«nt to jjurcliase, the ag>e>nt's ti-tle remuneration had accrued. It may 1;^ true that the defendant got, in ihis toase, a lawsuit and' not a purchaser, "but this was a coniangency wiliich th<e (ven<fcoi^ must be taken to have contemplated, and was a 1 'contingency.. any way, for which the agent was not responsible. Tha first 'case ' which stated this view of the law appeared to be Holford v. Wilson, ISO 7. But there were modern cases to the same effect, of which he quoted Platt v Dopree, L.R. 194; Crogan v. Smith, in Court of Appeal, 7 Times, L.E. 132. The result -was that when the agent introduced a purchaser who oxeoutod a binding contract of sale, he gained his remuneration- Then what avrou»t was the plaintiff entitled to recover in this case ? There was no agreement regulating the amount of commission, nor was there any evidence of a customary rate. On a 'quantum meruit, the S.M, allowed £20, the aniotmt, which the defendant, it appeared, was at one ti mrt prepared to . give upon a completed sale, (with costs.. The Magistrate added, upon tha first point decided in. this judgment, ihat since the heiaring counsel for tho plaintiff had handed to him n newspaper account of a case in the Now Zealand. Court of .Appeal just decided, Latter v. Parsons, -which appeared to be in line with-thel English cases, and another authority in favour of the view he had taken. '