SUPREME COURT—IN BANCO.

Clutha Leader, Volume IV, Issue 207, 28 June 1878, Page 6

SUPREME COURT— IN BANCO.

Tuesday, 25th June. (Before His Honour Mr Justice Williams.)

CAPSTICK V. CHAPMAN.

His Honour delivered judgment in this case as follows : — " This was a case removed from the District Court of Tokomairiro, The plaint states tliat the action was brought to recover L2OO in respect of tho causes of action therein stated, or one of them. The first cause of action — that for false representation — was withdrawn from the Jury at the trial. The Jury found a verdict for the plaintiff for L2OO. The defendant now moves for a new trial on several grounds. The points the defendant's counsel most relied on were those embodied in the second and third grounds of the rub, and were in effect that, on any view of the evidence, the -plaintiff was not entitled to recover on the second cause of action stated in the plaint. From the mode in wliich the cause of action is stated, I think the plaintiff is entitle' 1 to recover, if it can be collected from the evidence either that he entered into a contract with the defendant which he perf owned, or that the contract had been rescinded, and the plaintiff had put himself into a position to recover on a quantam meruit. Tho exact nature of the arrangement entered into between the parties is

the subject of conflicting evidence, but the defendant, who is moving the present rule, can raise no objection if his own account of the transaction be taken hi order to ascertain what the real arrangement was. The first communication that passed between the parties was the letter from • the defendant to the plaintiff, of tlie 16th May, in which he states the Coombe Hay Estate is for sale at 32s 6d an acre, and that if the defendant thinks he would be likely to find a purchaser he would send him fvdi particulars. A few days after the defendant saw the plaintiff at Tokomairiro. Referring to that occasion the defendant, in his examination in chief, says : ' I told Mr Capstick my father had told me to find a purchaser for this place, but that I had written to him on my own responsibility. I think I said my father was willing to pay a commission if he could find a purchaser at the price he wanted. Thia took place about the 19th? In his cross-examination, referring to a conversation with his father, he says : ' I said I had written to . Mr Capstick, and that he was acting as my agent.' Further I on, referring to the conversation at Toko- | mairiro, he says : ' I told him (the plaintiff) if he found anyone to send them to me. Mr Capstick never mentioned the subject of dividing the commission. lied Mm to believe that the usual commission would be charged. He had nothing to do with my father. He would send in his claim to me. I stated that the charge would be for the full commission.' The plaintiff's account of the interview differs somewhat from that of the defendant. He states that something was said about dividing commission, and from his subsequent conduct evidently was under the impression that the defendant was acting under the authority of his father, and that he the plaintiff was merely a sub-agent. This misapprehension, however, is dispelled by the evidence of the defendant, from which it appears that the plaintiff was employed by the defendant alone, that he was his agent, that he had nothing to do with defendant's father, and that he was to send in his claim for remuneration i to the defendant. There i 3 no reason, that I am aware of, why one person should not employ another to find a purchaser for an estate, and agree to remunerate him if he finds, a purchaser, notwithstanding that the estate in question does not belong to the employer, and he has no power to dispose of it. The arrangement between the employer and the agent is altogether independant of the power of the employer to

carry out a sale. On the 21st May, two days after the interview, the defendant writes to the plaintiff, enclosing particulars of the properties for sale. Amongst these is the Coombe Hay estate, comprising about 9900 acres freehold, ' prico thirty -two shillings and sixpence per acre, terms easy — namely, one-fourth cash, and balance can remain on mortgage for a term of years to be agreed on at 7 per cent, interest.' The plaintiff negotiated with, amongst others, the Messrs Brown, who went over the property on the Ist June. On that day Mr Wain came to the plaintiff, and asked if he had sold Coombe Hay, to which he replied that he had not. Ojj/aui then said to the plaintiff, 'If J_M>wn doesn't take it, will you let me have it at the price V To which the plaintiff replied 'Yes? After Wain had gone out of the plaintiff's office, he turned back and said, ' Now you'll let mo have the properly if Brown doesn't take it?' to which the plaintiff replied 'Certainly.' Mr Wain, referring to this interview, says, ' I said I felt inclined to buy it myself, and that if Mr Brown did not take it I would do so. It was further agreed that my deposit was to be LSOO, and Mr Capstick undertook to let me know that night after Mr Brown came in whether Mr Brown would take the property or not.' In the evening the Browns returned, not having decided whether they would purchase or not, and the plaintiff, told them that if they didn't take it the property waa already sold, but said that as they had taken the trouble of coming up he would give them till Monday evening, that day being Friday/ Later the same evening Mr Capstick went up to Mr Wain's house, taking with him a receipt for LSOO, the receipt purporting to be on behalf of Mr Robert Chapman, the defendant's fathor, and gave the receipt to Mr Wain in exchange for a cheque fßr LSOO. On the plaintiff's return to his house that night he found a memorandum from the defendant raising tho price to L 2 per acre. He thereupon made out and forwarded to Mr Wain a memorandum of sale of the property at 32s 6d an acre, with a proviso that, if Messrs Brown purchased before Monday, the cheque would be returned. He also wrote to the defendant that he had sold it to Wain, subject to Messrs Browns' refusal of the offer he had made to them. In the evening of the 2nd June the plaintiff had an interview with the defendant, and the arrangement entered into by the plaintiff with Mr Wain was repudiated by the defendant. Wain's evidence shows that at the interview in the middle of the jday on the Ist June -he had verbally agreed to become the purchaser of the property, and that he was ready and willing to purchase is clear from his handing a cheque for a deposit of LSOO to the plaintiff. It may be that the plaintiff had no authority to receive the deposit or to conclude a binding agreement, and tho case of Homer v. Sliarp (L.R. 19, Eg. 103) seems to show that a land agent who is instructed to find a purchaser has no authority to enter into a contract of sale on behalf of his, principal. In the present case I do not think that the instructions given to the plaintiff would hav*e authorised him to enter into such a contract. This, however, is an argument in the plaintiff' 3 favour, for if it was not part of his duty to enter into such a contract, then when he had found a person ready and willing to purchase at the price and on the terms prescribed, where these terms were certain, and to enter bond fide into negotiations to settle any terms that remained indefinite, he had done all that he was employed to do. If when the plaintiff had done this he bscame entitled to commission, thero is, of course, no difficulty. If, on the other haud, his right to commission depended upon a contract being subsequently, entered into, it becomes material to en*: quire what was the reason that the right never accrued. If the negotiation went off because the intending purchaser backed out of the arrangement, or because the parties could not agree on the term oi, years the balance was to remain on morfr? gage, then, though the commission might; not become due, still it would not be; tln*ough any default of the defendant. If, '- however, when the plaintiff has done his • part the negotiation is brought to a standatill, not for any of these reasons, but by, the inability of tho defendant to continue : it, or by tho unwillingness of the person" whom tlie defendant represented aa being v willing to sell to enter into the negotia-;; tion at all, I tliink it may be fairly said; that it was through the default of the defendant that no contract was entered into,v and' that the plaintiff was prevented from? earning the commission. It may be* saidl that even if the negotiation had continued j it does not follow that it would not have-; gone off on the question of the term fori which the balance was to remain on* mortgage ; but the default of the de?; fendant prevented the possibility of that? question being gone into. As it origi-J nally stood, the plaintiff, though he had? done hia part, might or, might not become^ entitled to commission, but the default of? the defendant made it certain that hej never would become entitled. The plain-Ti tiff, therefore,' Mving done all he had tp| do, is entitled to recover on a qwmbwriyi meruit, and if it is reasonably certain that| but for the default of the defendant thei transaction would have been carried! through, then the measure of damag>|| would properly be th« amount of tlflp commission that the defendant would havej had to pay if the negotiation had been| completed. Tlie case is quite distinct froitt;| where the authority of the agent has beentj revoked before he haa done what he wasi|l employed to do, and it is fully within thej principle laid down in Prickett v. Badgeri (1 C. B. N. S. , 296), and followed in Iwfcl bald v. The Western Nulgherry Coffee Com*!, pany (34 L. J? C. P. 15), and Green v$ Lucas (31 L. T. N. S. 733, and 33 L. T.f N. S. 554). I do not think it material! that in the memo, forwarded by the de-f fendant to Mr Wain on the Ist August wai| fixed for the part to be paid in cash. ByJ the instructions a certain proportion was| to be paid in cash— that is, of course, iri| cash on the completion of the conveyance!! All that the defendant did was to indicate! the Ist August as the time for completion.! The question is, whether Wain was readyj and willling to purchase on the terms prej scribed by the defendant so far. as thel were defined, and there can be no doubt; from the evidence that he was ready and willing. As to the other grounds 'o'i which the rule was moved, I see no reasofl for disturbing 'the verdict. —Rule tiM charged, :with costs." v Jl