“Plaintiff Made Mistake In Thinking Two Directors Were Honourable Men.”

Star (Christchurch), Issue 18450, 28 April 1928, Page 2

“Plaintiff Made Mistake In Thinking Two Directors Were Honourable Men.”

JUDGE SIM COMMENTS ON EVIDENCE GIVEN IN CLAIM BY J. M. SAMSON AGAINST WHITE STAR BREWERY

44 ' I 'IIK plaintiff made the mistake of thinking that "Mr Jt Lambert and Mr Saunders, the two directors of tbe company, were honourable men whose word was their bond. They were not that. They repudiated the verbal undertaking given to the plaintiff through Mr Paseoc, and Mr Lambert aggravated his offence by giving what lie must have known to be false evidence in the witness box.” These words were used to-day by Mr Justice Sim in the Supreme Court in entering a non-suit in the case in which James Martin Samson, of Dunedin, claimed £l2o as commission from the White Star Brewery, Ltd., in connection with the sale of the Junction Hotel, Rangiora.

11 is Honor said that tbe plaintiff was employed by the defendant to find a purchaser f qr a sub-lease of the Junction Hotel at Rangiora. The plaintiff found a purchaser, who duly completed the purchase. The plaintiff took part in the negotiations that resulted in the purchase, and there was a definite agreement between the plaintiff and two of the directors of the defendant that the defendant should pay the plaintiff £125 as commission, Grierson and Davies having agreed to contribute £l2 10s towards that sum. The plaintiff was not appointed in writing, and the only question to be determined was whether or not he was entitled to recover his commission, notwithstanding the provisions of Section 30 of the Land Agents Act, 1921-22. His Honor added that it was contended by Mr Donnell}- (for plaintiff) that in the circumstances the defendant was estopped from alleging the want of a written appointment, and further that to allow the statute to be pleaded in answer to the plaintiff's claim would be to make it an instrument of fraud.

“In my opinion the facts do not raise a case of estoppel, or bring the

case within the authorities relied on by Mr Donnelly. It is said in ITalsbury that a party cannot rely upon noncompliance with the Statute of Frauds where it would in effect be a fraud on his part him to do so.’ But a landowner. is not guilty of what amounts in law to fraud by relying on a statutory defence such as that afforded b}- Section 30 of the Land Agents Act. Ilis conduct may be mean and shabby, but that does not make it fraudulent, and I agree with what Mr Justice Chapman said in discussing the corresponding section of the Land Agents Act, 1912. There appears to be a clear authority for holding that the defendant is entitled to rely on Section 30 o£ the Act as a bar to the plaintiff’s claim, and I hold accordingly that the plaintiff is not entitled to recover his commission.

“I regret to have to arrive at this conclusion,*but I cannot see any escape from it. The plaintiff is nonsuited, but I do not allow the defendant any costs.”

At the hearing. Mr Donnelly appeared for plaintiff and Mr Sargent for defendant.