SUPREME COURT.

Taranaki Herald, Volume LIV, Issue 13791, 24 October 1908, Page 7

SUPREME COURT.

NEW PLYMOUTH SITTINGS

LAND AGENTS' APPEAL CASE

JUDGE DENNISTON'S DECISION

Judge Denniston has delivered his reserved judgment in the appeal case of Nops and Kemp, land and commission agents, Stratford (appellants), v. Patrick Kelly, farmer, Stratford (respondent), hoard at the recent sitting of the Supreme Court in New Plymouth. The appeal was from a decision of Mr A. Turnbull, S.M., in a case heard at Stratford in June. Then Nops and Kemp claimed £40 commission from respondent, and the Magistrate dismissed the claim. The Judge dismisses the appeal, allowing respondents £10 10s costs. The judgment is as follows: — In the Supreme Court of New: Zealand, holden at New Plymouth— Edwin Nops and another (appellants) v. Patrick KeHy (respondent).— Judgment ot ■Dfcnaiston, J.~The appellants, commission agents, were instructed by the r^spon^ent, a farmer, to either sell Ins farm at .£3 10s perjacre or effect an exchange at £4' pet acre. As a result of these instruetidnV the appellants negotiated an agreement by which the respondent agreed to sell his farm to one Hills in exchange for property ot the respondent, the latter receiving a sum of £620 or thereabouts by way ot equality of exchange. The respondent's land was held under lease-in-perpetuity. The appellants and Hills knew that Hills already owned land to make it impossible to make the declaration required under the Land A.ct, 1892-. It may be taken, though the fact is not actually stated", tjiat the respondent had tlie same knowledge. The transfer of the respondent s land was- to ba to Hills' . appointee, and possession was to be given and taken fourteen days after the Land Board for the Taranaki Land District had consented to the transfer of the respondent s land There were a number of complicated stipulations as to the arrangements ot purchase money, payment of mortgages, and such like. It was contended For the appellants that they had earned their commission when this agre< ment was obtained, as they had got a solvent buyer, accepted by the seller. I think, however, that, as the agreement is not the out-and-out sale or exchange they were authorised to obtain, and as we have no evidence of any agreement as to the terms on which they were to -©am-commission on the new agreement, it is a reasonable conclusion that it was the satisfactory completion of the transaction — the ultimate transfer ot the respective properties — that would entitle them to commission. The agreement was never completed. Hills had first suggested his wife as his appointee to take the "transfer, but ultimately appointed one Cannell. A memorandum of transfer, an application to the Land Board for consent and a declaration in support were duly forwarded to the Land Board. Cannell, after the matter had been before the Board, was withdrawn, he giving as a reason that he wanted to take up other land. > 1 am not satisfied that their refusal did not justify the respondent in treating the agreement as at an end. He had done all he could to have the land transferred, in terms of his agreement, to the appointee of Hills. "Was.lV 5 under any obligation to wait till Hills found another appointee, who might again withdraw or be declined? How long was this process to continue ? The respondent did refuse to go on with the transaction. Hills sued him in connection with his refusal. What were the grounds of the action does not appear. The action was not proceeded with. It seems to have been compromised by the agreement of October 1. 1907, a copy of which is attached to the case. Hills thereby undertook to find within three months a purchaser for the respondent's farm at. the price of £3 10s an acre in cash. In default of so doing the original agreement was! to be cancelled. Hills did find a purchaser. The agreement come to by the parties was not that which the appellants procured. There was nothing to show that the non-completion of this last was due to the wrongful act of the respondent — the suggestion is rather the other way. The final agreement was between the same parties, and partly referred to the same matter. But I agree with the Magistrate that this is not sufficient to entitle the appellants to judgment on a "quantum meruit." The sale was to another party by Hills. All the respondent, as far as appears, got from the exertions of the appellants was a lawsuit. The prospective buyer whom they introduced arranged, by way of settling the lawsuit, to find a purchaser for the respondent. I think, with the Magistrate, that this is much too remote :\ connection with the transaction with the appellants to entitle them to commission. Appeal dismissed with £10 10s costs.

Mr Anderson (Malone. Anderson, and Johnstone) appeared for appellants. and Mr Kerr for. the respondent.

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