SUPREME COURT, WELLINGTONIN BANCO.

Daily Telegraph (Napier), Issue 3786, 3 September 1883, Page 3

SUPREME COURT, WELLINGTONIN BANCO.

AVednesday, Auoust 29

(Beforo their Honors the Chief Justice aud Mr Justice Richmond.) ERASER V. KENNEDY. Appeal from the decision of Robert AVard, Resident Magistrate at Marton, in Avhich the present appellant Avas defendant, and the respondent was plaintiff. Tho respondent, Kennedy, met D. Eraser, tho appellant, avlio instructed him to sell a property at' Carnarvon consisting of 1100 acres freehold and some leasehold property, at £G per aero, agreeing that if Kennedy found a purchaser he should have £100 commission. Kennedy advertised tho property in the i Napier papers, but the appellant didnol see T the advertisement. In consequence of these advertisements ono Ralston called upon Kennedy, who referred him to D. Eraser.

It then appeared that tho property belonged to T. Fraser, the appellant's brother. After some bargaining Ralston bought the Avholo property for £0500. Kennedy then applied to D. 'Fraser for his commission, Avhen he denied his liability, but said he would endeavor to get £25 from his brother for Kennedy's trouble. Kennedy then sued Fraser, and recovered £100, from which judgment the latter appealed—Mr Brown for the appellant: The agreement Avas for a specific sum of £100, in case of a sale for £6' per acre, and Ralston bought for loss. The plaintiff must sue in his special contract: ho cannot recover on a quantum meruit. Tho special contract was not performed. The appellant has done nothing to put. it out of his power to perform tho contract. Hull v. ILghtman, 2 East, 145 ; MoiFatt v. Lawrio, 1. C.B. 553 ; Moffatt v. Dixon, 13 G. 13. ; Capstick v. Chapman, 4 N.Z. Jur., 24.— Mr Bell, for tho respondent, Avar? only called on as to the measure of damages. There is nothing to show that the Magistrate gave judgment for the amount of the special contract; he may havo given the £100 for the quantum meruit. Prickctt v. Badger, 1 C.B. N.S. 297 ; Rimmer v. KnoAvles, 30 L.T. 490.—The Chief Justice: I think the respondents have succeeded in this case. Thoy claim in these particulars of demand £100 as for work and labor and as commission. They may, perhaps, be said to have failed in showing that the special contract was performed, Avhich was that a purchaser should be obtained at £0000, but the j- did find a purchaser, Avho bought at £GSOO. It looks as if the vendor and purchaser had arranged it so that the £100 should go into the pocket of the purchaser instead of the agent. The fact is, that if the appellant made the contract on behalf of tho seller, he revoked it, and put it out of the poAvcr of the agent to complete the contract. I think therefore that lie must be looked on as having revoked tho contract, and that under such circumstances ha must make compensation to the agent for Avork and labor. The Resident Magistrate has assessed this at £100, and I am not ablo_ to see that ho wa.s not justified in so assessing it. There is nothing to slioav that he Avas wrong in Law for so doing. I think therefore that the appeal must bo dismissed.— Mr Justice Richmond : I concur.—Appeal dismissed.