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CLAIM FOE COMMISSION.

ON SALE OF MILL AND flax land.

JURY FINDS FOR PLAINTIFF.

A claim for £560, commission alleged to be due on the exchange of a flaxmill and appurtenances at Foxton and other land at Shannon, for land at Pohokura, formed the basis of an action heard at the Supreme Court Palmerston N., on Thursday afternoon, before His Honour the Chief Justice, Sir Robert Stout, and a jury of twelve. The parties were Enos Silvanus Pegler, of Auckland, estate agent (plaintiff) and Albert J. Gibbs and Alexander Speirs, of Foxton, carrying on business in partnership under the style of “Speirs and Gibbs, flaxmillers.” The case occupied the whole of the afternoon and had not concluded when the court rose. Plaintiff was represented by Mr H. R. Cooper and defendants by Mr Myers. The following jury was empanelled : Messrs W. Reed (foreman), L. Martin, R. W. Munro, A. F. Shaller, F. Needham, D. D. Currie, G. Brock, W. L. McPherson, A. B. Prentice, J. Little and W. H. Bell. Plaintiff set out defendants authorised him as their agent to effect an exchange of the property of the defendants comprising (inter alia) the flaxmill and appurtenances at Foxton, together with certain other lands at Shannon and Foxton for such other property as should be acceptable to them ; that, through the instrumentality of the plaintiff, an exchange was effected of the said property, the defendants taking certain lands at Pohokura, belonging to one W. F. G. Scott; that the value of the said property of the defendants was assessed by them at ,£22,400, and the said W. F. G. Scott took the property at such value ; that the rate of commission fixed by the Auckland Land and Estate Agents’ Association (of which plaintiff is a member), for exchanges in such cases, is 2 per cent, upon the value of the land ; that the plaintiff prior to the said exchange being effected, informed the defendants of such a rate of commission ; that the plaintiff has demanded payment of the sum of £560 as commission at the aforesaid rate, but the defendants have not paid the amount, wherefore the plaintiff prayed for judgment for the sum of £560. By their statement of defence, defendants denied that they authorised plaintiff to effect an exchange as alleged by him ; they admitted that an exchange was effected of their property for the property of W. F. G. Scott, but denied it was through the instrumentality of plaintiff ; they admitted the assessment of the value of their property as stated, and stated that they had no knowledge of the rate of commission fixed by the Auckland Land and Estate Agents’ Association, and denied the same ; they denied that plaintiff informed them of the commission payable, but admitted that the plaintiff had demanded payment of same, and the amount had not been paid ; for a further defence defendants said that if it be proved that the plaintiff was entitled to any commission (which the defendants denied) then they said that the plaintiff agreed that such commission would not exceed the rata of 1% per cent, on the value of the defendants’ property ; alternatively the defendants said that if the plaintiff was entitled to any commission (which they as aforesaid denied), and it be not proved that he agreed that such commission should not exceed the said rate of 1% per cent, commission at that was nevertheless enough to satisfy the plaintiff’s claim.

Plaintiff giving evidence, deposed that he was a land agent at Auckland under the Land Agents Act, and a member of the Land Agents’ Association. Last year one McMurray was in his employ—from July 28 to September. The business the subject ot the action was all carried out by McMurray, and the agreement was signed on October 15. Witness produced a wire from McMurray asking that the commission be reduced, but witness refused, lor the reason that he would lose his seat on the Association if he agreed. Witness applied for the ■commission, but the amount was not paid. To Mr Myers : McMurray was employed by witness at £5 a week and commission on all deals. McMurray was to get out of the commission. Witness got ,£3OO from Scott, the amount of commission being ,£332, an d t^iere was to be obtained later. Counsel: And will this lose you your seat on the Board ? —T don’t think so. Is it not a common practice to make reductions ?—Yes. And you have done it in other cases ?—Yes.

And you have not lost your seat ?—No. Under furthercross-examination plaintiff stated McMurray carried out the whole transaction and he did not know if McMurray had agreed to accept x % per cent, commission. Witness left it to McMurray to get an authority signed by Speirs and Gibbs. He secured one from Scott.

Robert McMurrav, who effected the transaction, detailed various circumstances leading up to the exchange, and produced correspondence in connection therewith. Witness stated that a previous deal affecting Scott’s land at Pobokura and Gibbs’ mill, two strippers on H. Akers’ property, nearly eventuated. The parties went to a Holton solicitor’s office, Where the <jue#tjcm of commission

cropped up. Mr Myers objected to the evidence as irrelevant, as it dealt with a transaction not connected with the present case. Mr Cooper contended that it was relevant to show the jury that Gibbs understood what the commission was to be.

After argument the objection was noted, but overruled, and witness stated that he pointed out the position of agents in the Auckland Association to charge 2]/'2 per cent, to the parties, Scott assenting to this and a note being made by the solicitor. Coming to the present transaction, witness stated that while he was inspecting the mill Gibbs said he objected to the commission, but witness pointed out that it was the fixed scale. Gibbs desired it reduced to x)< per cent, and asked witness to wire plaintiff advising a reduction, in order that the deal might go through. This was sent on October 13, a reply in the, negative being received. Speirs then said, “Don’t go on with the deal.” Gibbs, Scott, witness with Speirs following, went to the latter’s office, where later Speirs agreed to let the deal go on subject to the commission being arranged at a later date. When witness saw Gibbs the latter said, “Leave the commission to me, I can manage Speirs alright.” The agreement was fixed up next day. Witness was to get his share of the commission as agreed with plaintiff from that coming from defendants. Witness was cross-examined at length by Mr Myers as to the whole transaction. Gibbs had been a good friend to witness, having backed him in a business. Gibbs had no doubt given him the mills to sell out of friendship, but they were in other hands for sale in Auckland also. Witness denied that he had told Gibbs that he could take the whole 24 per cent, on the first transaction (which fell through) in payment of bis debt. Gibbs knew witness was in plaintiff’s employ. Witness did not get anything signed by Speirs and Gibbs as to commission, because he looked on Gibbs as a personal friend. Witness denied that at the interview Speirs said that he was dealing with him alone, but said that he would not pay more than I ]i per cent. Later, in front of Bock’s mill Speirs refused to go on with the deal, saying he would pay no more than P er cent., which witness did not agree to take.

Walter F, G. Scott also gave evidence, stating that McMurray informed defendants that the commission would be 24 per cent. At this stage Mr Myers raised a nonsuit point, stating that his clients did not desire to evade payment ot commission, but that they were to pay 1 % per cent., also that they did not recognise plaintiff in the matter, as they were dealing with McMurray. They were willing to pay 1 % per cent, commission any time. A land agent could not sue for his commission unless he had an authority to sell in writing. Mr Cooper contended from the. correspondence that Gibbs must have known that Pegler was McMurray’s employer, and he submitted that the point could not be raised.

After further legal argument, His Honour reserved the point, and Mr Myers opened the case ior the defence.

The Court then rose. The hearing was continued yesterday morning. Alexander Speirs, giving evidence, remembered Gibbs writing to McMurray in September to exchange the Speirs and Gibbs mills. Witness did not know Tegler in the matter at all. He remembered McMurray coming down with Scott, for whom he knew Pegler was agent, on October 12th. On the following day a meeting was held between witness, Gibbs, Scott, and McMurray. McMurray and witness conversed together as to the commission. Witness said they would not sell at per centum. McMurray then suggested that he should wire Pegler to see if he would reduce the commission, and witness said : “You can send the telegram if you like, but I am dealing with you.” Witness understood that McMurray, when he was in Auckland, was there on his own account. When the reply came from Pegler all four met at the post office, and then went towards Bock’s mill, the commission being discussed. When opposite Bock s mill, witness, as he could get no satisfaction, said “he was going home, the deal was off.’’ However, he proceeded to their own mill,* when the matter was further debated between witness and McMurray. Up to this stage witness would only offer i per centum, and later repeated this to McMurray, stating that they would offer i}i at the most to make a deal. McMurray then said : “We will settle at that.’’ Gibbs was informed of this at once, and the agreement subsequently arrived at. Witness was always willing to pay the \V± per cent., and was atiu nrenared to do so. He had always Sed to have anything to do W To : Witness saw some of the letters sent by Gibbs, not all. , Counsel was proceeding to ask witness if he bad seen a letter concerning Scott’s laud having refereuce to the prior deal of Gibbs alone, counsel reading a portion, when Mr Myeis objected, stating that the letter contained lwo parts, one referable to Gibbs’ own private business, and counsel read that part which witness did not know of. If was a very unfair question. Mr Cooper pointed out that the letter was dated September loth, and the letter to McMurray irom

Gibbs was September 15th, and it was possible witness had seen the tormer letter. Under further cross examination, witness said the letters might have been on Pegler’s letter pv, Witness remembered a wire coming from Pegler to wire “approximate offer Pohokura. Scott might deal,’’and Gibbs replying “offer £6 10s,” etc. Witness concurred in this, though he said that “it did not strike hicr who Pegler was.” When McMurray sent the wire to Pegler (which witness read) witness did not care who Pegler was. At the meeting at their mill, it was not because witness had some objection to the Pohokura property that was hanging up the deal. Witness put the matter in the hands of Loughman and Jacobs later, but did not know that Mr Loughman bad written to Pegler making offe.s ..Tout prejudice. Mr Myers: Witness pul the matter into Mr Longhman’s hands, and we admit he did right. Albert John Gibbs, the other defendant, detailed the first transaction with McMurray, and which fell through, witness understanding he was dealing with McMurray, who had informed witness that he was opening a business in Auckland. Witness did not know McMurray was the servant of Pegler in the second deal, but thought he was acting for him, and Pegler for Scott. Letters from Pegler witness treated as on behalf of Scott. Witness corroborated the evidence of the previous witness as to the discussion over commission on the 13th October, and to the sending of the wire to Pegler. McMurray owed witness money, and was anxious to pay it off, hence witness gave him the place to exchange, although witness did not desire the money paid back, as the security was good. Nothing was said as to McMurray being in Pegler’s employ. Had Pegler produced a signed order from McMurray he would have paid the commission. They were always ready to pay McMurray \ l £ per cent, Mr Cooper ; You wrote in reply to a letter from Pegler that settlement was delayed because Speirs was away at Whakatane: “In answer to yours, Speirs is still away at Whakatane?" —Yes.

Counsel : Why did you not say outright, “we don’t recognise you, and don’t owe you any commission ?”

Counsel (producing and reading several letters irom McMurray signed, “E. S. Pegler, per R. McM,”) : Can you tell the juryin face of these letters and your replies, that you did not know Mr Pegler in the deal ?

Witness : I did not know they were concerned financially, or I would not have put the property, as I did, in McMurray’s hands. Counsel produced turtber telegrams from Pegler to witness, and one of September 22nd, and repeated his previous question. Witness : I sent it to Pegler as McMurray said to address letters there. He sent a wire to Pegler as Scott’s agent. Counsel : Then why did you write to Scott’s agent that you bad posted a letter with an offer for the Foxton mills ? Witness: Because McMurray said to post letters there. Witness was cross-examined at length as to the letters which passed between him and Pegler, and also the telegrams. Counsel produced a letter from witness to plaintiff alter the deal resulted, in which witness asked lor particulars of the Pohokura property, and asked him to sell the property, and concluding with, “I hope you will be as successful in this as in the last.

Counsel; How do you explain that ?

Witness: After the deal was concluded McMurray asked me to put business in the way of Pegler, and I wrote the Iqtter to let him deal again with the property. This concluded the defence, and counsel then addressed the jury. In his address, Mr Myers said that the Wellington Chamber of Commerce’s rate for the sale would be ,£292 10s, and the Wellington Land Agents’ Association’s charge ,£405. They were not bound to any scale, however, and there was no agreement, so that defendants were not bound to give an agreed sum. Mr Cooper said that the whole point turned on whether McMurray was Pegler’s servant, and if so, what commission was plaintiff entitled to. He submitted the amount was a fair one and that they should receive judgment for it. His Honour, in addressing the jury, said that the case was unfortunately one of those which come before the Court where business men have not put their agreements in writing. Had this been done there would have been no need for their services. The first point for them to consider was whether Pegler was McMurray’s employer. Some letters and telegrams assumed he was a partner, but there was no doubt he was not. The partnership did not go on, otherwise they would have to sue as partners, arid under the Act only licensed men could sue for remuneration. The case hung on the point; Did Speirs and Gibbs know of McMurray as Pegler’s servant. If so, then the writing to McMurray as “Dear Bert” meant that they were writing to him as the employee of Pegler, who was to sell the property for him. His Honour traversed the correspondence and said that up to October there did not seem to be anything said as to McMurray being in Pegler’s employ, except that McMurray had said he was going to Auckland to join Pegler. The question they had to ask themselves was : Did

Speirs and Gibbs know of the relationship between plaintiff and McMurray, if so, then the putting of the land into McMurray’s hands was putting it into Pegler’s. j. he point turw; - ...they they

believed the evidi I::;. McMurray or Gibbs. A linos. El the letters raine from Auckland, signed “Enos S. Pegler, ;e: \i. McM.”, therefore they mu -,,, have known that McMurray was the employee. If they thought *hai v,- ■ array v. a; '.a? employee, .w : a must a;. ■the first 1. . in the affirmative ; if they did not, then in the negative. As to the second issue, if they answered the first in the affirmative so must they answer the second. As regarded the third isssue, if they considered there was no agreement, then they had to award what they thought a reasonable commission. Traversing the evidence His Honour said that up to the time the parties met at the Post Office, Foxton, there was no agreement. What took place subsequently ? If Speirs bad agreed why did they go to Gibbs about the commission ? This was important for another reason. If Speirs had agreed why should Gibbs say ; Leave it to me, I will manage Speirs alright. Speirs said that McMurray offered to accept I>4 per centum, and this McMurray denied and Scott could not affirm McMurray’s denial. If they believed the agreement was for I>4 and not 2>4 per centum, and answered the first and second issues in the affirmative, they would have to give judgment for £2BO. If they came to the conclusion that there was no agreement, then they had to give a fair award after looking at all the circumstances of the case. It was a matter of evidence and he left it to them to determine. ISSUES. The following issues were pu to the jury, who then retired : r. Was the plaintiff employed or engaged by the defendants to exchange their laud as alleged in the statement of claim ? 2. Was the exchange with Scott effected by the instrumentality ot plaintiff ? 3. If both questions (1) and (2) are answered “yes,” then what amount is the plaintiff entitled to recover ? The jury found as follows : (1). Yes. f2). Yes. (3)- £420. Mr Cooper stated he would move for judgment on Monday, when the question of costs will also be decided.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/MH19140523.2.15

Bibliographic details
Ngā taipitopito pukapuka

Manawatu Herald, Volume XXXVI, Issue 1249, 23 May 1914, Page 3

Word count
Tapeke kupu
3,038

CLAIM FOE COMMISSION. Manawatu Herald, Volume XXXVI, Issue 1249, 23 May 1914, Page 3

CLAIM FOE COMMISSION. Manawatu Herald, Volume XXXVI, Issue 1249, 23 May 1914, Page 3

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