AGENTS' COMMISSION

Timaru Herald, Issue 170300, 20 August 1920, Page 4

AGENTS' COMMISSION

LOCAL FARM DEAL. MAGISTRATE'S DECISION. ;At the sitting oti 'the- • Magistrate's Court in Timaru yesterday • fok civil business, Mr W. It. MoKean, S.M. delivered -reserved judgment in the case Charles E. GreenaJl (Mr J. Emslie), v. E. Corbett (Mr Fincli instructed by Mr Inglis), a claim for £75 14s being commission on the sale of a- farm by plaintiff for defendant. . The judgment was iu the following terms: — "This is a claim for commission on the sala of a property belonging to the defendant. In July last the matter came before this Court and tlio plaintiff was non-suited. At the first hearing it was proved that the plaintiff was a duly licensed land agent, and was authorised, in writing, to sell the defendant's farmj that he found a returned soldier, Daly, who agreed to buy the farm au'bjeot to his receiving an advance from the Government of ! £2500 • that an application for a' loan for-that amount was made; that £2300 was offered by the Government; that plaintiff offered to lend Daly £2OO to make up the £2500, and that this transaction went off. The plaintiff has now advanced evidence similar to that in the original proceedings, but lias carlied liia case further by calling Daly as a witness. It has now beeii proved that Daly was. willing to accept the £2OO on the terms offered by the plaintiff, and further that he could have found this amount without the plaintiff's assistance and could have completed the transaction. After tho agreement to sell to Daly had been made, the defendant declined an offer from another quarter of a higher price for his_ farm. There was some delay in receiving advice as to the result or Daly's application for a loan, and tho defendant complained of this delay and also told Daly of the higher offer that had_ been made for the farm. He complained of the delay and said that it was costing him £IOO per month to keep a team of horses and a married couple on the farm, and that Daly would have to refund this amount. Daly had apparently not taken legal advice as to his liability, for he thought that he would have to pay the amount claimed by the defendant. But for this he was willing to complete and was able to do so on terms more favourable to defendant than those originally arranged. The terms of sale were not fully set out in the agreement with the defendant.

The plaintiff's authority to sell vs cs contained in a letter written to hini by the defendant, wliicli letter has been lost. _ At the orgiginal hearing the plaintiff gave evidence as to the contents of that letter, and the defendant did not dispute the accuracy of this evidence. That evidence, now repeated, was that defendant wrote asking how the plaintiff wag getting on with South, a possible buyer, who had previously inspected the farm, and also asking the plaintiff if he could not sell to South to push the sale, aaid offering to pay full commission and perhaps a 1 little more if plaintiff could make a quick sale. Oil receipt of this letter the plaintiff saw Mr Huston, another land agent, who was looking for a farm for Daly, and, told him of the defendant's property. Mr Huston inquired whether plaintiff had written .authority to sell and plaintiff showed him the defendant's letter and left it Vi-ith him. Mr Huston read the letter but afterwards lost it. He confirmed tlie plaintiff's evidence as to the contents. The defendant now admits that a leitor was written but denies that it contained an authority to sell to anyone but South. He asserts that he wrote inquiring how the plaintiff was getting on with the sale of the place, :.nd told him that if he brought South hack nan in lie would allow him the full commission, and perhaps a little more. Defendant was anxious at this time to .sell his farm, and it seems strange that ho should, in these circunistanoes, be willing to pay perhaps a little more | than the full commission only in the , event of a sale ,to .one particular man. The plaintiff's evidence as to the contents of the letter is the more probable. Tlie defendant's denial of plaintiff's evidence would have carried more weight had it been made at the original hearing. . I accept the evidence of the plaintiff, and find that he was duly authorised to sell the defendant's farm. It is eon--1 tended that the agreement signed by [ defendant and Daly was one of which I specific performance could net have been decreed, and that as the sale was | not completed the plaintiff ■ is not entitled to remuneration.

His "Worship dealt at length with the authorities quoted, and, continuing, said: "I think that if an agent finds a buyer who, though not bound, is willing to become hound, he is entitled to his remuneration. It is true that tho agreement signed hy Daly does not state that the defendant was to accept a second mortgage for £7oo—the difference between tile purchase price and the amount of the anticipated Government loan. The defendant asserts that he agreed to take a second mortgage for £SOO, . but oil this point I accept the evidence of plaintiff that he agreed to accept a second mortgage for £7OO. The evidence, is confirmed bv Daly,- who gave his evidence very fairly. The reference to the second mortgage was omitted from his agreement with tho defendant's consent because it was understood that Daly, who could find some cash, might not require the full amount. The evidence given by Mr Campbell leaves lip doubt in my mind that the defendant and Daly were agreed as to all the terms of this contract. He says that the defendant on two occasions said that he did not like

the second mortgage, hut would keep to his bargain. The defendant and 1 Daly eventually agreed to let this transaction drop and cancel their agreement. Daly knew that the defendant could sell at a higher price, and gave 110 reason for wishing to allow the transaction to go off, and as on the face of it he seemed to ho throwing

up something out of which he could make money, Mr Campbell would not at once accept a cancellation of the agreement, but suggested that Daly should obtain advice from an independent solicitor. Daly did this, and afterwards signed a memorandum cancelling his agreement with defendant- Defendant then sold his farm through a mercantile firm at an advance of £3OO and the. prico to Daly, and stipulated that as he himself would have to pay the plaintiff's commission the purchaser should pay the commission of the agents who introduced him. I have not thought it necessary to with other points raised hy Mr Finch. I am not prepared to hold that the failure of an agent to obtain the signature of a purI chaser to an agreement qf which specific) performance could he decreed will, if the : sale iis not completed, disentitle the agent to his remuneration for the work he has <3on<3. If in. this case the nonfulfilment of the express condition in ■ the agreement as to the amount of loan had prevented performance of the contract the plaintiff could not have succeeded. . The transaction, went off hecause of the defendant's assertion of a

claim, for. a considerable sum which Daly, apparently quite wrongly, thought could be enforced against him, and made him wish to cancel the agreement. The option for three months which was given hy the defendant for the purchase, the application for the loan, was not put in in evidence, nor was it referred to in argument. This option may have aired some defects in the original agreement. Judgment will he for the plaintiff for the amount claimed (£74 ss), with costs (£lO 13s 8d).