CLAIM FOR COMMISSION

Timaru Herald, Volume XIIIC, Issue 14283, 25 August 1910, Page 6

CLAIM FOR COMMISSION

CASE IN TIMAIiU. At the Magistrate's Court yesterday morning Mr \ . 0. Day heard a claim Ltan.el Gregan (Mr -lonansen, instructed by iieswick ami flams) v. John Gale, commission agent (.Mr Kni.she), claim £3U, and a counter claim, Gale v. Gregan, claim for Jjo.i ios tor commission <jii tlie saie of a property. The statement of claim set out that deiendant wa.s the owner ol a certain leasehold property situate at liaiikside: that on or about the mouth of April I'JIU, defendant as the agent of the plaintiff sold the goodwill of the property to one C. T. .Jessop for the sum oi £-100; that Jessop paid defendant as agent for the plaintiif £SO by way of oenosit, and in part payment of ' the purchase money; that alter deducting JU-0, the amount of commission due to defendant there remained the sum oi £3U, which defendant refused to pay tu plaintiii'; hence the present claim. l'laintiff's evidence iiud been taken in Christehureh. John Gale, the defendant, said that he saw Gregan last November, when tho latter said something about the sale of his property. In pursuance of instructions received in January witness negotiated the sale oi the property, and sent Mr Jessop up to see u. When Jessop came back he told witness that he property was leasehold. Later on both of them_ went up again, and a sale was arranged, Jessop agreeing to pay £IOO for the goodwill taking the liability of £2IOO under the lease. Before this salo defendant had been negotiating for the sale of the 500 acres, as freehold, at £4 15s per acre. Witness's counter claim was based on the rates drawn up by tlie South Canterbury Chamber of Commerce, taking £2-500 as the purchase monej'. Air limslie said that the whole question was whether, in the ease of a sale oi u lease oi tins description, a. commission agent was entitled to commission over the whole value, or jusfc over the value of the goodwill. The lease was in itself somewhat extraordinary, in „uat theie Mas no mention of interest, but if tho rent were calculated it would nearly come to interest at 5 per cent, on £2IOO. Mr Gale, as the audit had been instrumental in shifting all liability Irom Mr Gregan's shoulders on to Jessop'.s, and getting £-j()U for the former. Now it was Air J chop's dutv to pay olf the £2IOO by reason of the compulsory purchasing clause. .Supposing Air Gregan wished tho matter completed he could have taken £2500 putting £4OO in his own pocket, ami I'uyniK £2,100 to Mr Harris, executor ii'r'if t n rust - ■ T, , lis V ' oukl i,;,v * Wh M y e , t i UlVillc ; ,lt t( ' '>'<? salo of the fi-rhold. Counsel quoted a caie holme tho Appeal Court in 11)1)1} Latta ,V 1 iu ' s ''^ s . mid a ca,o in 30 -l, lnv iin.es Reports" (J874) Rimmer v ~!i Y "' U!,l,on hi - ' "ntentioiK 1 ' r - position. li it s'l'uild"' l'" r ';' M ' !lal ' !l ' Mr Chi,. -s. (.11 Id only g<-i hi, commission on what -Ml Giegan made out of the land, then • hat „o"!,| he , Mr Gale's position if l' I ( K'-'t over tlio deal ' || ( , Id not agree with any t uggestion that J. . '.'"."lid wait till l!)|o. j,j, g'n l"' '"' n ' would Mr (Jrcthen" -lolianscn : || e u .„ lll( , st;il |)(i Air Emslie : He is liable now.

Mr Jolinnsen - --- d that the was whether the contract. was tor tho Kale of the lea*e or lor the -ale oi Ihe fivehold. and in dce.de that counsel ivas relying tin the wording <>l the contract il-011. putting nMde previcns tiations. Jll the agreement Je.-sop agreed to purchase x 1)o lease oi ihe property, and nothing »'a< said about taking over the liahdity. His Worship: Jl lie lakes over Ihe lease Jie must lake over the liability. Mr Johansen said one would liavo thought- that ill' Gale would have had something put in the contract in regard 10 vhe payment of commission. His Worship sa.d that the commission due to an agent was .never mentioned in a contract of this sort. Mr Johansen. continuing, said the Court had to decide whether tin agent who had effected the sale of a lease should lie satisiied with commission on the -ale of a goodwill. Assuming that Mr Gale was entitled to commission on the 1 rue ho Id value counsel submitted that he must be .satisiied to receive it when the purchase was actually completed. There was nothing to justify his friend's assumption that plaintiff .should pay the commission on ilie freehold value for the privilege of being relieved of the reliability. Irlis Yt orsliip said he was satisiied that defendant had proved his ease, and that lie had done everything lie was authorised to do. He iound the purchaser, who had agreed to the purchase of the lease, which carried with it the purchase of ihe freehold. The commission charged was reasonable, and lie could see no "reason why it* should be necessary to postpone pavment till 1915, as suggested. He would give judgment on the claim for defendant and costs £3 13s ; and also lor do.endant on the counter claim for £l3 ]-5s r.-n ''"sts £3 13s, which with the ~00 already in Gale's possession would make up the lull £G-3 10s commission.