LAND AGENT’S CLAIM.

Waikato Times, Volume 96, Issue 15356, 3 October 1923, Page 6

LAND AGENT’S CLAIM.

EXCHANGE OF A MORTGAGE.

QUESTION OF AUTHORITY.

PLAINTIFF AWARDED COMMISSION

A land agent’s claim occupied the attention of Mr H. A. Young, S.M., at the Magistrate’s Court, Hamilton, yesterday, when F. W. Kemp, land agent, Hamilton, sued Charles Sing, farmer, Hamilton, for £SO, being commission allegedly due on the transfer of a second mortgage. Mr Tompkins appeared for plaintiff, Mr MaoDlarmld, instructed by Mr Russell, acting for defendant. The case for plaintiff as outlined by Mr Tompkins was that defendant came into Kemp's office and gave him authority to sell certain property. They discussed the question of exchanging certain mortgages, it being proposed that the three of them should be disposed of either collectively or singly in exchange for a farm. Sing made it quite clear to him that he was anxious to sell all the properties. Defendant particularly mentioned that he wanted to get rid of the second mortgage. Kemp did a considerable amount of work with Sing, taking him to numerous places throughout the district. As a result of Kemp’s efforts Sing was able to exchange a mortgage over a farm owned by a man named Bull for a much better one at Waharoa. The question of commission was actually brought up by Sing, Kemp replying that he would charge the usual fee of 2J per cent. Later Sing refused to pay any commission, contending that he had never given plaintiff any authority to dispose of the mortgage. Counsel contended that the transaction was clearly an exchange and not a release, as would be suggested by the defence.

Evidence on behalf of plaintiff w*as given by William Tudhope, who had taken a part in the transaction, to the effect that he had always looked upon the deal as an exchange. John Bull deposed to Sing having promised Kemp to pay commission. The defence maintained that Ivemp had been given authority to sell a house and not to exchange a mortgage, and the form of the order entirely bore this out. Sing’s object in going to see Kemp was not to get rid of the mortgage, but to dispose of the house. Other defences of a technical nature could easily be raised, but it was preferred to rely on the merits of the case in refuting Kemp’s claim. Defendant in evidence said that when he interviewed Kemp he had no idea of disposing of the mortgage separate from the house. He desired to obtain a farm in exchange for both. Witness knew that_plaintiff had Bull’s farm on his books, * but that he could not dispose of it while the mortgage remained on it. Plaintiff told witness that he could offer him a security in a property at Waharoa if he (Sing) would release the mortgage on Bull’s property. Kemp made no suggestion of charging any commission on the transfer. Witness actually asked him if there would be any commission, but Kemp replied that there would be none as he merely wished to effect the sale of Bull’s property. To Mr Tompkins;,Witness was keen to get rid of thq» second-; mortgage. As a ;result of Kemp’s work witness ■had actually obtained a sounder mortgage in exchange for'the original one.

Other evidence was called on behalf of the defence bearing out Sing’s denial of the claim. .1 T.

His Worship in summing up took the view that Sing had been anxious to exchange his second mortgage for a better one at -Waharoa, and it was clear that he hadyan idea at the back of his head that he would have to pay some commission. His Worship held that plaintiff was authorised to dispose of the mortgage separately from the house, and judgment would be for the plaintiff for tfie full amount claimed, Court costs £2, witnesses’ expenses £2 11s, and solicitor’s fee £4 3s.