CLAIM FOR COMMISSION.

Manawatu Herald, Volume XXX, Issue 443, 19 December 1908, Page 3

CLAIM FOR COMMISSION.

Plaintiff Accepts Nonsuit.

The case of Walter Baxendale Giesen, land agent, of Feilding, v. Barbara Ellen Austin, widow of the late Herbert Austin, flaxmiller of Foxton, and executor under his will, was heard before Mr Justice Cooper, at Wellington, yesterday. Mr Young appeared for plaintiff, and Mr Treadwell for the defendant. The statement of claim set forth that on June 7, 1904, Herbert Austin was part owner of a properly situated at Halcombe, and known as the Burnside Estate. This property had been disposed of on various occasions to various purchasers at prices part of which had been paid and part of which were payable to defendant at future dates, with interest, and the prospective profits to which Austin was entitled was ,£4OOO. In June, 1904, Austin employed plaintiff to dispose of his interest in the estate and profits at a discount of not less than and agreed to pay him as commission an amount equal to the difference between ,£IOOO and the actual amount of the discount arranged for. Plaintiff effected a sale of Austin’s interest in the estate in June, 1904, at a discount of only ,£750, and thereupon became entitled to commission to the amount of ,£250. Austin had died, leaving a will, of which the defendant, his widow, is the executrix. Plaintiff had made demand upon the defendant for payment of the commission (,£250), but she declined to pay, and he now claimed the sum with interest from June 29, 1904.

In the statement of defence it was stated that defendant did not know what interests her late husband had iu the property. She did not know whether her late husband was entitled to in connection with this matter, and therefore denied that plaintiff was employed to dispose of his interest in the estate, or that any commission was due or owing to him. As a further defence, Mrs Austin said that all the claims which plaintiff alone had against her husband had been paid during his lifetime. Defendant also alleged that plaintiff alone had particulars of the amounts received on account of the commissions, and had not accounted v to her therefor; and considerable sums of money in excess of the amount sought to be recovered were owing by plaintiff to the estate of her husband.

When plaintiff had concluded his evidence his Honour intimated that the claim for commission had not been clearly made out. He suggested that the question of assessing the quantum meruit should be left to the Court. Plaintiff elected to accept a nonsuit with a a view of taking further action.