A LAND DEAL.

Star (Christchurch), Issue 20057, 21 September 1920, Page 8

A LAND DEAL.

AGENT'S CLAIM FOR COMMISSION, CASE IN SUPREME COURT. A claim for conunissiwi on a land deni was heard in the Supreme Court to-day before his Honor Mr Justice er^ Henry Cook, trading as H. H., Cook and Co., Christchurch, sued Roderick M’Kcnzie, formerly of Hawarden, hut now of Whenuakite, lercury Bay, Auckland, shcepfarmer, for £562 10s. The statement of claim set forth that on November 17, 1916, defendant by writing appointed plaintiff his agent .to sell the Mount Whitnow estate, 8769 acres, in the Okuku Hawarden, for .the sum t , l'°Oo its a going concern. On J i y Fh lai7, Pontiff effected the «f\v >t ir h ** estate . ,to A> D ' Kennedy, ” elhugton, wine and spirit merchant, tor the sum named. The claim is commission on the sale. As an alternativo, plaintiff claimed the sum upon a quantum morvit fpr his servuceo m effecting the sale of the. t'Syrou), i . denied that he appointed plaintiff in writing, as by section Id ot the Land Agents Act 1912. his agent to effect the sale, or that" plaintiff effected the sale to Kennedy. Jno statement of defence further set out that if plaintiff was duly appointed to effect a sale, and effected or helped to effect it within the terms of such authority, plaintiff disentitled himself to any commission, as ho mi. dertook to lind for defendant a purchaser who would he able and willing to pay ..a deposit of £SOOO cash or more on possession. Plaintiff introduced Kenuedy to -defendant and assured him that Kennedy was a buyer. He warranted the financial position of Kennedy, representing that Kennedy was a man ot wealth and substance—" a wine and spirit merchant, liko.Fletcher, Humphreys —well able to meet any financial obligations he might enter upon with defendant. Relying on these representations, defendant entered into negotiations with Kennedy tor the sale. When in course of these negotiations Kennedy refused to find toUOO cash deposit, and instead offered ns collateral security for the purchase money ' his equities .in certain hotel properties m Blenheim, Palmerston (North and elsewhere, plaintiff assured defendant that those equities were £ h m> -, anr l that a sum of toOOO could easily he raised on them and promised that he would himself raise that sum on them for defendant. He also promised that he would raise lor defendant a further sum of £6OOO cash by obtaining an increase of £6OOO on the first mortgage of £IO.OOO on Mount Whitnow. By those assurances and promises plaintiff induced defendant to give possession of the estate to Kennedy. After defendant had don 6 that plaintiff endeavoured to raise the sum of £SOOO on the hotel properties, but did not succeed and had not fendTnt raiß,ng any SUm for dcTho case was heard before the Judge and a jury of twelve. Mr J. H. Upham, with him Mr W. J. Sim, appeared for plamtiff, and Mr 0. T. J. Alpers, with him M r C. S. Thomas, for ant. Mr Sim, opening the case for plaintiff said that on July 17 plaintiff, defend™n - Kennedy had a conference in the Clarendon Hotel, after Kennedy had inspected the estate. As a result' a contract was drawn up and agreed to by defendant and Kennedy for the sale and purchase of the estate. There were sheep on the property. A dispute arose between defendant and Kennedy as to the number of • sheep, and they now sought to blame the unfortunate agent, the go-between between two men who. really, were speculators, who were intent on making the hardest, possible deal, and who were uncertain as to, what they wanted. Defendant now, having been unable to get what he wanted, was unwilling tp pay plaintiff f or i honest services in bringing about the deal. The agreement between defendant and Kennedy was that the purchase money slum Id’ be paid by an adjustment of finances. 'There was to be no cash. The contract was contained m an offei by defendant of Julv 19 1917, in which he agreed to sell the estate to Kennedy as a going concern, with 3300 sheep, for £3l 500, payment to be made by defendant taking a second mortgage over Kennedy’s hotels, in whiqh ■ Kennedy, it was stated, had equities of £21,500. Defendant later placed the number of- sheep at 3500. There was a mortgage on the estate : of £IO.OOO, held by the Public, Trustee. Defendant increased it. before the completion of the sale, to £14.000, thereby pocketing the sum of £4OOO. The jhry must consider what contract was brought about by Cook, whether or not it was in the terms of his authority,, and whether or not the contract had been carried out. Herbert Henry Cook, plaintiff, said that the estate was about twenty miles from Hawarden, and was hilly country, and the losses of sheep in a bad snow year were fairly considerable. Kennedy in one year lost 700 sheep. The road leading to'.the estate was bad: in the winter. Defendant came info' possession of the estate by exchange, allowing a valuation of £3 5s an acre for it. Defendant wished to get rid of it because he suffered badly from rheumatism and wished to come t©' Christhnurch for treatment, did not* like the country, and was afraid of the, losses of sheep. of sheep Kennedy declined to pay a cash deposit of £SOOO, and said that he wished defendant to hold to his agreement made in the Clarendon hotel, by which no cash would pass. The Government valuation of the estate was £26,420. Kennedy told witness that his business was worth £t)UUQ..a year,’that he had a big house at the Hutt wonh.£4ooo, that Mrs Kennedy had interests in breweries in Sydney, and that Kennedy’s interest in equities in New Zealand was Worth £21,000. Witness’s claim was based on Uiiimber ol uommerce rates. Stock, .66000, commission at 2J per cent’ £150; land, £25,600, commission ati 2J per cent on the first £3OOO, £75, and li per cent on 'the balance, £337 10s; total, £562 IQs. Mr Alpers questioned witness as to witness’s position in Cook v. Smith a case heard in the lower Court, and asked witness to state whether letters produced in that case were written bv him. Mr Alpers also read from the judgment of Mr S IS. Al’Carthy, S.M. in the case. ’’ his honor said that the jury was not trying that case, and that Cook could not be condemned on it. Mi Uphum: It amounts to blackmail. Mr Alpers: Blackmail by whom? Mr Uph'am: By your client. Mr Sim; Let it pass; these tactics never succeed. His Honor: It is not evidence in this case. Give a dog a bad name and hang him. ■To Mr,.Alpers, witness,said that it was; quite incorrect to state that defendant was induced .to give him authority to sell on a non-cash basis because ho undertook to raise loans of £SOOO and, £6OOO Jot . defendant, and could not raise them without authority. Hie parties agreed *to sell and buy on condition that a first mortgage already on the . estate was' increased from £IO,OOO to £16,000, giving defendant ■£6ooo. and that defendant approved of the securities over Kennedy’s hotel properties. Defendant's wife objected to defendant having anything to do with, hotel properties. Defendant had agreed to pay witness £787, 24 per dent •nor all but only verbally, and witness, on suing, charged the. Chamber of (Joiu.iieivo rates, and reduced the fee to £562 10s.

Mr Alpers read from a judgment by 7°f r Justice , Dcriniston, in ii n I V I an ft witness said that although the transaction complained of hy the Judge was conducted by his employee, witness had nothing to do with it. .. George Henry Thomnson, of Welling! ton, retired land agent, formerly empioyed by H. H. Cook and Co, said that the firm represented to Kennedy that there were 3500 sheep on the estate. Kennedy afterwards said that that, number was not on the place. Defend ant said that he thought that the total would be found if the sheep were mustered. Kennedy’s equities,, he thought were worth about £21.100 ’ Mr T homas, opening for defendant, said that defendant admitted that plain! tiff acted as his agent and sold the estate to Kennedy, but defendant agreed to sell on only one understanding namely, that Cook should obtain for him £SOOO on account of Kennedy’s eouities and £6OOO by an increased mortgage on the estate, maaing a total to defendant of £II,OOO. The main defence rested on the fact that Cook had failed to carry out- that agreement.