MAGISTRATE UPHELD

Wanganui Chronicle, Volume 75, Issue 47, 25 February 1932, Page 6

MAGISTRATE UPHELD

PLUNKET SOCIETY CLAIM APPEAL BY VENDOR FAILS SUPREME COURT DECISION Support' for Mr. J. 11. Salmon’s decision in the lower court was given by Mr. Justice Ostler at the Supreme Court at Wanganui yesterday morning when an appeal was made by J. A. Reid against a judgment in favour of the Wanganui branch of tho Now Zealand Society for the Health of Women aud Children. Claim for the recovery of £5O was made in the lower court recently by the society from J. A. Reid, it being stated that that sum was paid in excess for a property purchased in Campbell Street by the society from Reid. Evidence transpired to show that tho £5O had been paid by the society to Stanley E. Read, a land agent of Wanganui, who was acting for the appellant’s solicitors in ob taining a buyer. It was stated that those solicitors knew of no such deposit until four years after the sale had taken place, when a loiter was received by them from the society’s solicitors pointing out the fact and asking for a refund of the money, as it had been paid in excess Appellants wrote to Stanley Read tolling him that he had had no right to take a deposit, and that he was to refund it to the society. Read deducted £35 for commission and sent appellants £l5 as the balance of the £5O. Appellants refused to take the £l5, claiming that Read should refund tho whole £5O to tho society. Mr. J. 11. Salmon held that Read was entitled to his commission, and that the society was entitled to be refunded the £5O, giving judgment accordingly. Counsel for appellant submitted that S. Read’s authority to sell was contained in the agreement. He had no written authority from the vendor and tho only authority ho had was the actual agreement for sale and purchase. There was no evidence of a verbal agreement with Read by the vendors. His Honour: But any firm accepting Read’s offer accepted Read as an agent in the same way ns every agent is appointed in New Zealand. Counsel: But not to take a deposit. His Honour: The legislature recognises that it is a lawful practice for a land agent to receive a deposit. Counsel submitted that It was not so. All it could recognise was that if a land ageut did receive a deposit he must account lawfully for it- It did not say that he could receive a deposit without authority. In this ease a deposit was not received on account of the vendor, but for the purchaser. It was not known to the vendor until four years afterwards, due to no fault of the vendor, but to tho negligence or mistake of the agent. There was no question of a deposit raised at all, and Read had no authority to receive a deposit. The only authority which he had was contained in tho agreement for sale and purchase, and his authority began and ended with the signing of that document. It merely confirmed his authority to find a purchaser and it also ended his authority so far as any further agency was concerned in connection with that authority. His Honour: It is the custom of agents to ask for and receive a deposit on behalf of his principle. It is not a very meritorious claim on your client’s part for if he wins he escapes paying any commission at all. I do not think there is any need te hear the case further. In his opinion, said the Judge, the magistrate’s judgment was correct. It was admitted that Read acted as the agent being employed by appellant. He was employed in accordance with the usual customs unanimously adopted, one which was universally adopted. In his opinion the agent had implied authority in bringing about a sale to accept tho deposit unless he was expressly forbidden to do so. The Land Agents’ Act of 1921 recognised that. The verdict was given for respon dents, who were not called on to answer. Costs amounted to seven guineas against appellant.