DISPUTED LAND DEAL

Waipa Post, Volume 32, Issue 1777, 1 July 1926, Page 5

DISPUTED LAND DEAL

AN OTOROHANGA TRANSACTION. AGENTS CLAIM FOR COMMISSION. A case that created a good deal of interest locally was heard at the Magistrate's 'Court, Otorohanga yesterday, before Mr C. R. Orr-Walker, B.M. R. H. Cowern v. S. Vicary and Brothers. This was an action for commission (£62 10s 6d) on the sale bf land. Plaintiff was* a duly registered land agent and had received instructions by letter in June, 1925, to sell from S. Vicary, but had not received a formal authority. Plaintiff had interviewed a prospective buyer ('H. 'Maxwell) and iquoted the. property to him. Vicary had subsequently interviewed Maxwell and sold the property to him. The claim was on the ground that the purchaser had been found and the property introduced to him by the plaintiff.

R. Cowern the plaintiff, gave evidence that the letter produced was one received last' June from S. Vicary. He had. called on Vicary's solicitors and received particulars of the property from them. Had quoted property to Maxwell at the figure mentioned by Vicary. . Maxwell seemed very keen on the matter, but could not give a definite answer at once. Had seen Maxwell on the matter at least three times. Had told Corbett (Vicary's solicitor) that he had offered the property, to Maxwell. Vicary had called in defendant at plaintiff's office and inquired whether he had given him the property to sell for a month. Plaintiff said "you did mention a month." Vicary said he might take the selling on himself. Had seen Vicary and, he thought, (Maxwell go into Corbett and Mossman's office. Had heard the property had been sold to Maxwell and thereupon had written to S. Vicary claiming commission as arranged. Vicary had thereupon written in reply stating that he did not consider plaintiff had a claim for commission, the sale having been arranged by himself on a different basis to that which he (witness) had offered Maxwell. Cross-examined: Had thought the reference to a month was in connection with the plaintiff's chance of finding a purchaser in a month, but it was not a curtailing of his authority to sell within that period. Had thought the £2500 would be obtainable as the property was worth it. Had known Maxwell was on the lookout for such a property. Had not spoken of the property to anyone else with regard to the sale of that actual property. Had not heard from anyone that Maxwell was after the property in question. Had not received a letter from Vicary stating property was in his hands for a month only. Had not looked on his authority as being confined to one month only. Vicary had told him in September that he was withdrawing the property and would take it on himself to sell. Had seen Maxwell on 10th July at his shop, in reference to his. (Maxwell's) Otewa property, but had also spoken in reference to the Vicary property. Considered that the transaction in regard to the Vicary property was hung up by defendant on some other business of Maxwell's being settled Did not think that Maxwell had told' him that he knew that Vicary's was for sale, when he introduced it to his notice. This closed the case for plaintiff. Mr Patterson, in opening for the defence, said he would show that the plaintiff did not find Maxwell as a purchaser. The facts were that plaintiff (Cowern) though having this property in his hands for sale only had a month's authority. The property had also been offered to Maxwell by Vicary before plaintiff had instructions to sell. Then the plaintiff had had no work in connection with the property, having merely spoken a few words on one or two occasions to Maxwell. ■Finlay Donald McLean, farmer, was called and deposed having in May sold a property next to Vicary's to Maxwell and on that occasion having called the latter's attention to Vicary's property and told him what was wanted for it.< In other word.s he advised Maxwell to inquire for it. This was about June 2nd. Ha was not acting as agent but advanced Vicary's property as an inducement to Maxwell buying his (witness') sections which would be improved by having 'such a frontage and approach. Herbert Maxwell being called stated he remembered Cowern calling on him and offering the property. He had previously heard of the property and had made Vicary a firm offer of £IBOO. Cowern stated £2500 Avas wanted. Had eventually got the property for £2IOO. Had got parties to examine and. report on condition of the house and buildings. Had purchased the property on December 10th.

Cross-examined: Had agreed to pay any commission that might have to be paid. No doubt this was why he got it for £2IOO. Vicary had said there would only be one man, if any. claiming commission. Cowern Avould be the man to claim a commission. Was negotiating with Vicary on 'September 4th, on which date lie had interviewed Corbett and Mossman with Vicary. Had mad ; e an offer before Cowern spoke to him of £I9OO. Vicary kept him waiting for weeks before he refused the £I9OO.

To his Worship': Had not mentioned that he had been in negotiation for the •property to Cowern as he did not wish to prejudice himself. Stanley Vicary, one of the defendants, stated that Maxwell had first approached him during the first week of June. Maxwell made an offer of £IBOO, but he refused it. Maxwell then offered £I9OO. This was also refused. Had put the place in Cowern's hands at £2500 and. phoned Cowern to ask if a month woujd be sufficient time to sell the place and he had replied in the affirmative..

By Mr Cox: Had told Maxwell that £I9OO was no good. Had not told Cowern he had been negotiating with Maxwell. Had come down from £2500 to £2IOO in order to close the estate. H 3 stated to Maxwell that he did not consider he had to pay any commission and had a clause to that effect in the agreement to sell. Was quite certain he had. \vritten confirming the telephone communication with Cowern within two weeks of the first letter. Had been told by Maxwell that Cowern had been negotiating with him and had gone to Cowern afterwards and made the suggestion that the

place was in his hands for a month

only. Had gone to Cowern to withdraw the property from Cowern so that he would deal with the property himself.

Counsel for the plaintiff contended that on the evidence he was entitled to judgment. His Worship stated that as his time was short counsel might put their arguments on paper and send, them on to him and he would make out a written judgment on the case.