SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 2136, 11 March 1908, Page 1

SUPREME COURT.

CIVIL SITTINGS.

(Before llis Honor Air Justice Chapman.)

fho civil sittings of tl»o Supreme Court wore, resumed yesterday; Williams and Kettle Ltd. v. A\ liam Aloricc, Francis Aloricc and David Alorieo, claim £079 8s commission on sale of property and stock at To A roll a for, £-15.279 15s. or alternatively, such sum vis the Court mav fix upon. / Mr H. 11. Hell K.C., instructed by Mr J. IV. Nolan, appeared for plaintiff* and dir GY A. De.Lautour, with Mr Stock, represented the defendants.

The following jury was empanelled : —lt. S. Chilton, (foreman) A. S. Evansp T. It. Itobertson, H. E. Clerk, H. D. Itobertson, M. Wilson, J. East, S'. Holland, AV. 51. Howard, It, Atkins, C. :H. Hyde, E. V. Luttroll, F. H. Lawton. Mr Bell det’.iiled the ease for the plaintiffs.

Jolin Henry _ Colebonrne, manager Yff:’TUß’Hostings braiieli of Williams and Kettle Ltd., stated on,Saturday 10th August lie left Auckland per the Union S.S. Co.’s Waikare for Gisborne. . Met Mr James Balfour for tlie first time on the steamer and in the course of conversation, their identity was discovered to each oilier. Mr Balfour then handed a letter to witness addressed by him to witness’ firm. He said ho wanted to buy a property and witness • arranged to meet him at 9.30 on Monday morning at the firm’s Gisborne office. Met Mr Wyllie at 9- o’clock and the ap-' pointnient was kept, WyMio being present. They went round to Mr Wyllio’s oflico in Lowe street and the property list was gone through and calculations as to carrying capacity, etc., were entered into. To Aroha was mentioned. After he had selected the properties of which lie wanted particulars, Mr Balfour said that ho wanted it in black and white as properties were as-a rule in many agents’ lands and the first agent to give particulars in black and white is the -one entitled to the commission if a sale was effected. The reason lie mentioned this was that- he was used to dealing in land and tin's would save any bother. Mr Balfour and witness then went with ah appointment for midday to hand over the .required particulars and instructed the lady typewriter to prepare these. Handed the particulars to Mr Balfour, who read them over. Mr Wyllie came up and said, “You’re looking at the list of .properties.” A reference was made to Mr F. Hall’s option and it was stated that more particulars would be' available after Mr Wyllio had inspected it. The option was not granted through witness’ firm so far as he was, a ware.

Mr Bell read a letter written on 12th

August from Williams and Kettle to Mr Balfour, enclosing particulars of other properties and stating chat MiHall's option was for ten days. Witness met Mr Balfour on flic Saturday afternoon. They walked up as far as Roebuck road and then ieturned and crossed to the lvaiti to see a property belonging to a itnoss. Gisborne properties wore discussed and Te Aroha and_ other properties were mentioned. Went to Napier the next day. .By'Mr De Lantour: In the roadstead, remembered pointing out to Mr Balfour the direction of the Paritu property, which he commended to him. Was sure that at- die conversation in Mr WyUie’s office that To Aroha was mentioned'and : fc wts discussed in a general way. Mr Hall Was an, esteemed client of w illiams , and Kettle’s. Mr De Lautour: Do you think it probable Mr Wyllie would ,ommqnd it when he knew it was under option to Mr Hall? Witness: Ho did do so. Mr De Lautour: What did he sii? ? Witness: He said it was a good property. AVitness stated that Mr Balfour did not say he was not returning to Gisborne if tlio Hastings properties were unsuitable and that he was going to Canada. By Mr. Bell: There was iro possible reason why a property under option should not have been commended to a person. G. It. AVyllie, auctioneer and land and stock agent for Williams and Kettle, Ltd., stated lie joined the firm five years ago. Saw Mr D. Morice about the To Aroha property about Ist August as he thought they had as good a chance of selling it ns any other firm. AVitness said that Mr Lowry, of Hawke’s Bay was coming up and lie required a property of that size. Mr Morico said he would give particulars and turned over a lot of papers, but found that he had only one copy and witness 'asked that lie bo allowed to get a copy typewritten. This was agreed to. The commission Avas referred to, and Mr Moriee said, “It .will bo 1) per and you will have to rebate me J per cent. Don’t forget.” AVitness said, that that was all right. Mr Lowry did not come up as expected, but did not think lie told Mr Moriee of this. Shortly after this, the conversation in witness’ office took place, when the carrying capacity was gone into, as were other details. Called Air Bailfour’s special attention to the fact that there was an unused portion of 1500. acres. AVitness said lie was go - i ing to inspect the place and that if Mr Hall did not avail himself of the option, he would be pleased to deal with him. ferw Mr Balfour reading the particulars of the To Aroha sta7 t ion "and he said that lie was discussin" them with Mr Colebonrne, On the Monday, witness heard that Air Balfour was negotiating with some other agents. He returned from Napier on Wednesday 21st and teard that lie was going to see the place with Murray Roberts agent, -anv Mr Balfour later and went up to mention the matter, but some one came up and lie got away. Before receiving the (letter withdrawing the property from sale, saw ivir Balfour at Aliller’s corner and said to I- m “I: understand that you are - tying. Te Aroha through another agent, t cannot understand it. AVe gave you the nartlenlars,” - He said. M we.it to Murray Roberts -is they I «wiM have more influence m bringing about a deal as tjiey are Moriee s agents. The mortgage with Murray Bobercs was mentioned. “At any rate, sa (. Air Balfour, “1 shall produce "our correspondence before I buy it. Was ill when the property Wifi withdrawn. Air Bell read'letters showing that when this advice was received, the firm wrote that it had first supplied the narticulars to Mr Balfour On the 9th Moriee Bros., wrote, stating that they failed to understand t, eir object and failed to see how f, 1L ‘ 11 {' formation they supplied to Mi Balfour concerned them. The him ieplied on the same date claiming commission. The property was purchased oil September 7 th. AA’itness continuing, stated y.at. when a property was in the hands of several agents, it was. a recognised thin" that the agent giving the fiist particulars received the commission Had known of such cases,.but Jiatl no. experienced it himself. . The rebate was to bo to David Monce. . Bv Air De Lautour: Air Aloricc did not‘tell him that the property was, in a great many agents hands and, tbev were about to withdraw' it and. he did not refer to the option given: to Air Hall. Did not say.that if nothin" came of the option it would be I withdrawn. It was not only on the: statement that Air Lowry required, such a property that Air Moiice gave the particulars. They had forms for taking - instructions, but there were none in this case. They did not al ? ways use the forms but Re cornel produce one. They had the A\ aimaha property without- a form. Denied that Air Moriee saw Witness a week

later' when ho said something about Mr. Lowry not coining up. His duty was to go up and inspect the place for Air Halil and see if he was getting value at £5 per acre. Valued it at £33,60 o,which was less than £5. Air Hal! wan toil to make £l,000 or £SOOO and that a margin must he left. Accordingly witness left a margin. By Air Bell: Air Aloricc was an agent and he had never known one agent ask another to fill up a form. AVould not have asked for particulars had he known there was an option. Constance Oirtor, typist, in the employ of Williams anil Kettle, slated that Air Colobourno asked, witness to type out the particui'.ars of tlioT’o Aroha property. The work took her half an hour and when it was done, Mr Colobourno handed it to Air Balfour, who was looking at the particulars near the door.

By Air Do Lantour: Passed near the men as she went out of the door and was close enough to see what the paper was. • A. S. ' AAoichsmanu, manager for D.ilgoty and Go., deposed that it was the practice among land agents that the person "first giving the particulars should - receive the commission. On several occasions lie had lost commission through such ail event. By Air Do Lautour: If an agent delivered a sealed envelope without any remarks, ho could not claim, but the agent must acquaint the prospective buyer that it contained the particulars.

j. B. KoHs, managing director of Common, Shelton and Co. Ltd., and L. O. Ingram, stock agent for Common, Shelton and Co., gavo similar evidence. ' . Air De Lautour said that there wero only two quesions at issue, one being, was there an authority to sell to a particular person, or whether the plaintiffs introduced Air Balfour to the property and from that did a sale result? David Alorieo, commission agent, and until recently part owner of the To Aroha sheep station, stated that in 1906, it was decided to sell and it was put in the hands of various agents, one of whom were Murray, Roberts and Co. They knew the properfcy was in other agents’ hands and before dealing, witness had to be consulted. Mr AVyllie called about 19th July, 1907, / and asked if they could havo it for sale. AVitness replied that it was in too many agents’ hand and they thought of withdrawing it. Mr AVyllie then said that Air Lowry with one of his (AVyllie’s) principals would arrive the next morning and that he wanted an investment and that lie would like to show liiin' particulars of To Aroha. AA’itness agreed to this, but as lie had only one copy, Air AVyllie tookjt to copy. The authority was gi.ven for sale" to Air Lowry. About- a week afterwards he saw Air AVyUlio and made a remark about Air Lowry's non-arrival.-, Ho gave vo particular reply. Murray, Roberts submitted an offer from Air F. Hall and lie obtained, an option. Heard from Murray, Roberts on 17th August that Air Balfour was a probable buyer and met him on 3Lst. On .'September 2, sent out tlio circular read in court to all the agents in whose hands the property was. At this time Air Balfour had an option and the sale was completed on 7th. Saw Mr Davis, (acting manager of AVilllaw.s and Kettle’s), on that day, who asked if- the option on Te Aroha was off. AVitness said, “I don’t see why you ask.” Was then asked to see Air Foster, who put the same question •and witness replied similarly. Air Foster said that they had an enquiry from Napier and another from Hawke’s Bay. Witness stated that if the property was not sold under that option it was withdrawn. By Air Bell: Air Anderson rang up to say that they had a client and lie asked for an’ option. Air Bell: Did he not telephone to be first in the field? AVitness: You had better ask a subsequent witness. Witness was not quite sure if the telephoning was on 17th August. Had told Murray, Roberts that there was no other agent in it. Could not say if this was on 17th August. AA’itness asked the question because they would not deal until they knew there was no second agent. Took Alurray, Roberts’ assurance that there was no other agent • this was on Air Balfour’s statement.

Air Bell: Why was it so important to you to know this? AVitness: Becauso we did not want any double claim for commission. Witness stated that as Air AVylliie was going down the stairs, he (Wy-. Hie) said “AAVvo just got .it for Lowry.” AA 7 itness said, “And about commission?”. Ho said lie had arranged li per cent of which I per cent was to be rebate. Murray, Roberts'were paid the commission when the payment was made for the stock on February G. Murray, Roberts were Alorjce Bros’ station agents. Air John Roberts had a mortgage on the property. They received 1-) per cent; had no arrangement at first for a rebato and he arranged that if any other agent sold it, the firm would get -J- per cent, and if Afurniry, Roberts sold it, witness was to receive ; v per cent. If AVilliams and Kettle were 'the first to introduce the client,, they would have received the commission. The withdrawal circular' was sent to AVilliams and Kettle as well as the other agents,_ although he knew that at the time, it was not quite right. AA 7 . F. J. Anderson, manager for Murray, Roberts and Co., stated that on 17th August, ho saw Air Ballfour, who was looking for a property. Air., Balfour stated that he had seen Air AVyllie, but he had no properties that suited him. The first property witness' mentioned was' Te Aroha and be inquired if Wyllio had not mentioned it. He said, “No. Where is it?” AVitness then gave him directions. Was satisfied that Air Balfour had not received particulars and lie' accordingly supplied them and produced a.copy, Read the particulars to him and* it did not' appear that be had heard of the matter. AVitness did not know his strength and said, “Probably tliis is a little too much?” Air Balfour asked what was the amount of the purchase money and witness replied that it was over £40,000. He said he could manage that aiid asked when lie could see the property, which he desired to do that day. AVitness said that lie could not do* this as there was an.option which would not expire for a few .days. Air Balfour went to Napier and on 24th August witness telegraphed him asking it' lie wanted the _ option. He readied to secure tin option for a fortnight and tq send plans. AVituess telephoned Air D. Alorice .but. lie failed*to get- an option. Air Baifour came up on 2btli and unspectod the nlace accompanied by Runcnnan, the firm’s stock agent, They returned on 30th when an option was given in favor of Alessrs Baliour and Holdswortli, the latter being m Christchurch and came up on \\ ednesday 4th September. Balfour and Holdswortli went to t)>e estate, driven by Air Alitmty. Un Saturday 7th an agreement was drawn up. Bv Mr Bell: Thought Wyllio would, have mentioned Te Aroha to Balfour. Told Air Hall about it and lie saiu ho was not buying it. 6:iw Air Hall, some months later when he sud that AVyllie had offered it to lnm and witness* reminded him that lie had mentioned it first, and Air HalJ agreed and saiil that if lie bought, ir would be through witness. -»r Hail asked for an option and witness secured this. Naturally thought that as Air Balfour had been in town for four or five days, someone would have told him about To Aroha. Had Air Balfour mentioned that another agent had snolcen to him of the matter, be woivhl* not have taken any action. James Balfour stated that bo left Canterbury in search of a sheep run. Alet Air Colebourue coining to

Gisborne and he offered to; drive witness to Mr." Humphrey Rn.yly’.s. No other property was mentioned. Did not romoinbor going to Air AVyllie’s office. No calculations were made in any office. At Williams and Kettles’ office witness was handed ail envelope containing particulars of ii property they mentioned. Glanced down a letter attached and noticed that there were four names of properties, but he was unfamiliar with Ataori names. AVhoii ho opened the envelope, was standing noai\(ho counter. Did not look at the descriptions of the properties and put them with other similar papers. His Honor: Do you moan that you kept mil agents’ papers and particulars during your tour of tlio North Island? AA’itncss: A’os, I did.

Witness continued tint lie called upon Murrary Roberts ami Co., and Hr A mlorson showed him particulars of To Aroha. Had not heard of To A roll n previously. Had seen or hoard from Williams and Kettle. Went to Murray Roberts’ office on 17th August, hut this w-j's not in consequence of hearing anything from Williams am! .Kettle or anyone else. It was a pure aceidelvt tliai'dio wont to Murray Roberts at all. Mr Do Lautour: Did the sale tako place as a result of the efforts of Murray Roberts? ' Alt 1 Bold: I objeet to that. His Honor : That is the question for the jury to decide. Witness stated that ho wrote his u

ifo to tho effect that if ho «. : d lot take tlio Hawko’s Bay property, ho would return to Ouiterbury. This was after receiving the envoi on o lVun Williams and Kettle. Saw Mr Combourno on the Saturday afternoon, but no business was mention'd. His station agents in Canterbury wire Dalgety and Co., and lie came hue with tiie intention of meeting their representatives, but Mr Elliot end Mr Waclismann wero both aw ;.y. By Mr Boll: Had no 'll ten'ion of wasting Mr. Colebourne’s time or to fool liim. Did not • remember going to Mr Wyllie’s office, but Ids recollection of the incidents of the Monday morning was clear enough. Did not remember if any properties were discussed. Knew tint some documents wore being typed for him and knew that they'were the usual particulars of properties. Did not know it the papers referred to the properties mentioned. Mr Colebourne supplied witness with the particulars of seme properties, but he did not know what their names were. Did not know what tiino the papers-were being typed. Was not in close business conference with -Mr Wyllio and Mr Colebourne for an hour and a half. Did not say that he wanted the particulars in black and white, lut said that lie was used to dealing in land. Did not say that the. one who g ive the first particulars should receive tlio commission. Was prepared to contradict Mr Colebourne and Mr Wyllio. Might have written this in a letter, but it bad reference to Hawke’s Bay. Mr Bell: • Now I toil you it is not in the letter. When you find tlio condition of your memory, are you still prepared to contradict them ? Witness: Yes.

Witness did not know that the particulars of the Te A roll a property was typed specially for him, hut knew that something was typed for him. Mr Colebourue and Air AVyllie did not say that Air Hall had an option and they, did not offer to take him over To Aroha. Air Bell then read the letter from Williams and Kettle stating that Air Halil had an option and that Air Wyllio could supply particulars if it was not sold.

Air Bell: Do you now say that you did.not know of the option ? Witness: I did not fully read the letter. Air Bell: Air AVyllie stated that ho said “Hullo, you are looking at the papers.” Do you contradict that? Witness: Yes.

AVitness stated that had the pipers made any impression on his mind, lie would have remembered and taken them to bis friend Jerram.

Air Bell: A T ou had a complete vacuity of mind, Air Balfour. AA 7 itncss stated that Air. Colebourue told him that generally speaking, the land here was too dear and lie took that impression. Air Bell: AAkis it a mere farce, Mr Colebourne’s qction and the typing oE the- papers? AVas it expected that you would put them in your pocket and take no further notice? AA 7 itnoss: I put them in my pocket. Air Bell: Do you tell the jury that Air. Colebourue and yourself talked for some hours anti the property was not mentioned ? Witness: AVc talked about the value of town sections, etc., and so forth.

Air. Bell: Does it not appear to you that your account is most unreasonable? x

Witness: I am telling the truth. Air'. Bell: Did you telLAIr. Ctlebourne that you had gone to Murray, Roberts? AVitness: Certainly not. Mr. Bell: How do you reconcile that with honorable behavior? AA 7 itness: I had a good'reason. I had done with AViiUiamsvand Kettle. I thought the place was'dead until I went to Murray, Roberts. Mr. Bell: AA 7 hy did you not 101 l Air. Colebourue that you had i. een to Murray, Roberts, and Co. ? AVitness: Because I was done with them.

: Air. Bell: Let 1310 ask you another question. AA 7 hy did you not tell Air. ■ Colebourue that you were done with -hinr?

AVitness: I had no reason to. ‘ Tho Court adjourned at 5.35 p.m., and resumed at 7.

' Addressing the jury, Air. Do Lautour repeated that the questions were, AVas there a general authority given to plaintiffs or a particular authority? The question also arose, Did the plaintiffs introduce the matter and effect a sale? AVliat should decide the jury was, AVliat witness was the least interested? Air. Balfour came here a stranger, and lie had no interest in the question at all. What possible motive could ho have in wilfully telling such a story as that he did not recollect the conversation in the Lowo-street office? AA-liy, lie’asked, did Colebourue not communicate with Alorice? Ho quoted authority to show tint if the parties were merely introduced by an agent, and nothing more, they could claim no remuneration. It was not sufficient that an envelope was put uto a man’s hand. For the plaintiffs to succeed, they would need to prove that the sale was effected solely through their intervention. And, lie urged, who could challenge the statement- that Air. Anderson was his agent? Even if- the plaintiff’s story was accepted by the jury, he consul-, ered that the whole amount was not recoverable. Air. Bell also referred to the authorities. Addressing the jury, bo suggested t-lmt'Air. Balfour was pot

disinterested. Ho thought that as , Murray, Roberts, and Co. had a mortgago that they would bo likely to - have more influence on tho matter. It was remarkable that tho typist would be delayed, from her lunch and , given special work, which was in regard to the To Aroha property. Could the jury really think that this was right? Tho story was utterly unreasonable, incredible, and improbable, and the jury was asked to accept a statement almost miraculous if true, lie did not. ask the jury lor in exhibition of Machiavellian intellect, but lor common sense, and he put the story to thorn. Was it probable that the whole thing could pass from a man’s mind? lie put it to tho jury that Air. Anderson must know that the plaintiff's were entitled Lo the commission. The evidence, be submitted, spoke all one .way, and if there was any difference, lie asked tho jury to give their attention to what'was reasonable, and not rambling and inconsistent. Air. Balfour made a mistako about tlie reference to black and white in the letter to Williams and Kettle, but it showed that lie scorned to desire a rambling, incoherent account. Tho whole -solution was this: Air. Anderson was very careful, but ho was misled into the trip by Air. Balfour, and Air. Anderson stated that- bo would not have gone on with tho transaction had ho known that another agent had spoken about ‘tho matter. .. He got his friend in a moss and tried to pull ‘ him out, and tho % result was the .improbable story. His Honor, summing up, said that the circumstances were very peculiar, and tho jury would have to consider tho somewhat peculiar evidence with great care. The questions were: AA’ere the plaintiffs instrumental >n the sale, and were the plaintiffs authorised generally or particularly? If a verdict was given for plaintiff, tho amount claimed would have to bo allowed, and not a portion of it. Air. Alorice stated that the arrangement with AA 7 illiams and Kettle was only with reference to Lowry, but he admitted that if a man had been brought up, the sale might have been effected, and it was open to the jury to bold that the deal was a' general instruction, but that was for tho jury to decide. Assuming that Mr. AVyllie was acting with tho authority of Alorice Bros., and that it was of a general character, were the company substantially instrumental in bringing about tlie sale, or was its power so slight that it did not affect matters at all? The fact t-liatf Mr. Anderson had earned a commission for his company must not influence the jury. If the -plaintiff's story was true, Air. Balfour should have read the papers, 1 , or should, perhaps, have remembered when speaking to Air. Anderson. If Air. Balfour’s story was -accepted it came to this: He went through Taranaki, AVaikato, Bay of Islands, and be came here, on'his way back to Canterbury. Perhaps he had begun not to investigate minutely, but take general impressions, as ho seemed to do in this ease. He pocketed the papers, and never bothered about them again. It was singular that, knowing Air, Jerram, who was a capable man, ho never opened tho subject of Te Aroha before him. He said Te Aroha was not in his mind, and this must be settled by the jury. It was possible that Air. Balfour and Air. Colebourue were truthful, but it might have been that Air. Balfour’s mind became a blank. Also, Miss Carter’s evidence had to be considered. After a 'retirement of over three hours, tlie jury returned at 5 minutes to 1 a.m., when the foreman announced that they could agree on a threefourths majority for the plaintiffs. The jury thereupon found for the plaintiff's. His Honor entered judgment for the plaintiffs for the full amount claimed, viz., £679 3s, with costs as per scale, witnesses’ expenses, and disbursements. , Second counsel’s fee was certified for.

The Court then adjourned until 10 a.m. this morning.

NAPIER SITTINGS

Press Association. NAPIER A larch, 10

In the Supreme Court, George Adams was sentenced two years imprisonment for attempting to do grievous bodily harm by striking a man with an axe. Counsel for accused subAdams’ good character, but the police report show twelve convictions for various offences, and His Honor commented strongly’ on the ease with which such testimonials were' ob-„, tained. David Davis Trow was acquitted on a charge of carnally knowing a girl under 1G years of age at AYaipu'kurau.