Levin Land Agent's Claim

Horowhenua Chronicle, 4 February 1916, Page 2

Levin Land Agent's Claim

CASE UJjtiAliSSEi). lleserved judgement was delivered in Levin yesi.eruay, by All i'oyirton, t'.i\l., in the case oi Urey l l '. i'iuilips v. Thomas Kennedy, a claim for Allais 10s. llie judgment ran as follows:— The plaintiff is a Land Agent. Acting 011 authority ol the delemkint he sold defeiitant's larni at Alanakai. tlie esoot terms relating to the commission payable on the traiihaction aio disputed. The claim is ior feommssion 011 tho sale oi the land, also on the rtale ol the stock. i'revious to the sole — some two or three years before it tooK place— plaintiif liad given defendant a written authority for the sale 01 the farm, ihe date 011 this authority is illegible and 011 this ground the writing wa3 objected to—it being contended that verbal evidence of the elate could not be given. It does not appear to tie that the question of the date can be oi any importance. 11 is admitted i>y the defendant tdiat tne authority was given and it hus been proved that the arrangement, if any, then made, or implied about commission, was aifter--v. aid varied, therefore this document, lor tlie purpose ol arriving a.t .a resolution of the question oi how much commission is .payable, is valueless.

The evidence is contradictory m soni •• particulars bu.t 1 find on it that these lacte are proved.—(l) After a protective buyer was found by the plaintiff, defendant came to plaintiff's olfke ut Lovin by appointment and it was there agreed thait the commission to be , aid on the sale of the farm was £50. Tins i o admitted by the defendant, but ho says that amount was fixed upon omy on condition that the bargain was to be completed forthwith. This limitation is denied by plan tiff and tiie weight at evidence supports his contention that there w-as not such condition imposed. {2). The terms theu offered by the purchaser were not ac-

cepted and the negotiations were broken off. (3). Further negotiations took place on the basis of allowing so much off 1 the purchase on account of the house which was not in good condition, but these came to nothing. (4). Finally the defendant offered li'is farm through his agents, Murray, Koibents and Company by a telegram dated 2SJth September "Kennedy will not accept less than thirteen ten. liuy■er to pay commission" and the sale wa.: completed on this offer.

The plaintiff held a, deposit of £1.50 from the purchaser and paid £100 of this over, keeping back £50, which lie now claims, was part payment of his claim.

The defendant did not acknowledge plaintiff's riglut to retain this £50 as he understood before lie completed that the commission was to be paid by the purchaser in accordance with the conditions in his telegram. The purchaser had repaid to Irani £2o of this CoO, and this was repaid at the request of plaintiff, which shows that plaintiff must have understood that the commission was to be - paid by the purchaser, not the seller. Such request inconsistent with his claim.

It is quite clear, on. the evidence that there was never in the mind of the defendant, after he sent the last telegram of the 27th September., any idea that lie would have to pay ny portion of the commission. That would not, of course, exempt him rn ordinary oases, as", when an agent t> employed to effect a sale, there is an implied contract, on the part ot the seller, to pay him a reasoiuuble or customary commission, even without any express agreement, but here. there ivas, in defendant's ltund at least a detinue uiilerstaudnig that The commission was to be paid by the purcuaser Whatever the plaintiff may liavo honestly thought aibout it, the minus ut the parties were never at one. There was not that necessary concurrence uie

"consentur ad idem" to constitute a contract. It lotlows ir-oiu what na> been 'staged albove, under the heactmg of offer and acceptance tnat it is an essential ol a valid contract that the parties should assent" to the same thing; in the same sense they must have tlie same intention and this intention wuut be declared. li there is no evidence as to the intention of the pajtiea fciiere can be no contract, and similarly, ii it appears tliey were negotiating or contracting with regard to different tilings or in contemplation ot diverse terms, there is an aibsence of the essential equity ana consequently no contract (Halsbury Laws of England V 01.7 p. 354), fn the case of i'alck v. Williams, 1000. A.C. „17t>. P.O. the parties agreed to correspond by a telegraphic code. The intention of the plaintiff was to direct that a cargo of copra should be taJsen from Fiji to Europe. Owing to a misunderstanding of the message cabled from Norway, tlie defendant, a slup broker, chartered the vessel to take shalo from Sydney to Barcelona. On au action for daaimges against the defendant it was held that, in such a casj, i-t was incumbent on plaintiff to sho.w that the proposal made by him, and accepted by the defendant is so dear and unambiguous that the defendant cannot be heard to say that he misunderstood it. In this ease the plaintiff should not have been misled by any action of the defendant. It was clearly defendant's intention that the buyer should pay commission, and it the plautiff misunderstood him, it was not any lault of the defendant.

The part of tlie claim, that, refers ;o the sale of stock must also fail. i •must find, as a fact, on the eviden.-o that there was no authority whatever to the plaintiff to. sell it and that the sale did not take place through any effort on his part. He is therefore, not entitled to commission on the sale of the stock. Judgement will be for the defendant with costs, £8 10s 6d. Security '-r appeal was fixed at £lo plus costs.