RESIDENT MAGISTRATE’S COURT.
Tuesday, April 13. (Before J. C. Crawford, Esq., R.M.) CIVIL CASES. Gladman Smith v. Colonel Western.—-Tudg-ment in this case, which had been adjourned for the purpose of procuring evidence from Picton, was given. As our readers are aware, it was an action to recover £l6, commission bn £BOO, at which amount plaintiff was to have sold property for defendant. A sale was not effected, and plaintiff sued defendant for commission and costs incurred whilst endeavoring to effect a sale. Nothing material was adduced at yesterday’s sitting, and his Worship gave judgment. He said ho had written a judgment, which he would have altered had he seen reason to do so. But no such reason had been shown. The price of the property to bo sold was fixed at £BOO, and on that amount Mr. Smith, as commission agent, was to receive 4 per cent, if he effected a sale, and 2 per cent, if ho properly advertised the property and used duo diligence. Duo diligence was a matter necessarily required to enable plaintiff to recover, and ho was to secure a purchaser within twelve months. No sale was effected, the twelve months elapsed, and plaintiff sought to recover 2 per cent. It was contended by defendant that plaintiff was bound to advertise the property in the newspapers. The magistrate was not prepared to say that ho was obliged to do so by the terms of the contract. Anything amounting to efficient advertising in that way would probably have absorbed the whole of the commission, or perhaps have exceeded it, and therefore be held this contention of defendant to bo somewhat unreasonable. But what did plaintiff do to entitle him to his commission 1 He
informed defendant that he had an agent at Picton, who would be employed to effect the sale ; he stuck up a notice in the window of his office in Wellington ; and lie stated that he had spoken to various people, although he did not descend to particulars, and mention their names. The agent in Picton was a Mr, Stevens, and there was his evidence to prove, in contumacious terms, that he would have nothing to do with Mr. Smith or his agency. The Picton agency was thus disposed of, and apart from that plaintiff merely- stuck up a notice in his window, and spoke to a few people in Wellington on the matter. When Smith found Stevens would not act as his Picton agent, he ought either to have got another agent or thrown up the business. The Picton agency was the very point of the contract. Plaintiff, upon due consideration, must perceive that, apart - from newspaper advertising, he had not advertised within the meaning or intention of the contract; and, further,^that he had incurred no expense, nor had he been subjected to any responsibility, and that the defendant was, therefore, not liable. There was some evidence -as to handbills having been forwarded to Picton, but if these were not efficiently used his Worship could not see how defendant was to be held liable for their cost. Plaintiff had failed to perform his part of the contract of duly advertising, and taking other required steps, and judgment must, therefore, go for defendant, with costs. There were a few other cases, none of which were of general interest.
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https://paperspast.natlib.govt.nz/newspapers/NZTIM18750414.2.15
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New Zealand Times, Volume XXX, Issue 4389, 14 April 1875, Page 3
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554RESIDENT MAGISTRATE’S COURT. New Zealand Times, Volume XXX, Issue 4389, 14 April 1875, Page 3
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