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SUPREME COURT.—CRIMINAL SITTINGS.

Friday, January 11. (Before his Honor Chief Justice Prendergaat.) SENTENCE. Henry Cape Williamson (30), who was found guilty on the previous day of obtaining by means of a valueless cheque from Messrs. Kirkcaldie and Stains, drapers, Larnbton-qnay, goods to the value of £32, vvas placed iu the dock for sentence. Prisoner had nothing to say in reply to the usual formal intimation. His Honor remarked that prisoner could not plead ignorance, as he had been a schoolmaster, and was an educated man. Being a man of sense he must have known that he was doing wrong. In inflicting punishment ho would take into consideration the fact that no previous convictions were recorded against ’ accused, and sentence him to twelve calender mouth’s imprisonment, with hard labor. CIVIL SITTINGS. JOHN H. WALLACE V. JAMES COUTT3 CRAWFORD. This was an action by plaintiff, an auctioneer, to recover from defendant the snm of £305 3s. Bd. as compensation for services as agent. The following jury was sworn Alfred Barlow (foreman), William Isaac, Thomas Phillips, David Duck, James Mabey, William Mason, Joseph Lomaz, Joseph Stephenson, John McLean, Thomas Hunt, Thomas Mabey, and James Godber. Mr. G. E. Barton and Dr. Buller were counsel for plaintiff, and Mr. Brandon for defendant. Defendant’s plea was that except as to the sum of £25, part of the amount claimed, he never was indebted as: alleged, and as to that amount he was always willing to pay. To which ; plaintiff put in the. replication that the sum paid into Court was not' sufficient to satisfy his claim.

Mr. Barton,'in stating his case, said it was interesting to all land speculators, and the cir- ■ cumstances connected with it might be dated so far-back as 1871. Mr. Crawford, being an extensive land-owner at Kilbirnie and Evans Bay, communicated with Mr. Wallace on the subject of cutting it up and selling it as a township. He asked him to give his ideas on . the/matter in writing. Mr. Wallace acted accordingly, and expressed his opinion that the scheme proposed was feasible if a patent slip were erected, immigration should set in, and public works commence. He (Mr. Barton) supposed he had some -vision of Julius Vogel. Mr. Crawford subsequently wrote that if he got an offer of £IOO,OOO for all his interests in landed estate at Evans Bay be would take it, and expressed his opinion that in the course of . twenty years it would have as large a popula,tion as Wellington. All workshops and factories would congregate there, and it would also be famous for villa sites. In conclusion he added that, at his time of life, with his boys, he thought it advisable to sell if he could get his price. Some time after this Mr. Wallace received a hurried letter from his principal to the' effect that some strange gentleman, with a stand-up collar, had been speaking to him about the purchasing of laud in Adelaide-road for building purposes. Mr. Crawford urged his agent to negotiate with this geutieman;..whereupon Mr. Wallace, ascertaining that the gentleman in question was Mr. White, secretary to the Wellington Land and Building: Society, wrote to him offering land for sale at Kilbirnie. The , negotiations were unsuccessful, and subsequently Mr. Wallace sent an estimate of the value of Kilbirnie to some gentlemen at Home who had employed him as valuator. He valued the land at £24,300, and said if it was a forced sale it would realise £IB,OOO, and in a few years he believed it would be worth £30,000. At this period it was alleged by Mr. Crawford that he severed his connection with Mr. Wallace ; but the latter denied having received the letter said to have been' written. By documents plaintiff undertook to show that he was negotiating as agent for defendant up to the 7th of February, 1877.

. Evidence was then adduced. - . John Howard Wallace deposed that he was an auctioneer, land agent, and valuator, and had been such in Wellington since 1848. In 1871 Mr. Crawford, who had previously had verbal communications with witness on the subject, wrote asking Ids opinion on the question of cutting up Kilbirnie into sections, in which he said :— ; ’ r ' ■ - " Dear Sin. —I should wish, before deciding to commence operations, to have a statement of the probable -expense which may be expected to accrue, on all heads. Including surveys, plans, commission,'advertising. Ac. "What is your charge for commission? Does commission cover the advertising, and how do you charge commission on deferred payments, ex tending for example for five years ?—Yours, &c., . i, J. C, CRAWFORD. , In: reply, Mr. Wallace wrote : Dear Sib,—With regard to probable expense on a matter of the kind, it will be by special agreement. With reference to commission. I should say £2O a Jfair sum for estimating, £3O for survey, and £ls for advertising. Should the Patent Slip Company be floated I -would suggest immediate action on your part. —Yours, &c,, ' ■ J. H. WAI.I.ACE. No correspondence passed between them be- . tween 1871;and 1873,but they were continually talking about the matter. However, at that time the colony was very milch depressed, and it was not thought advisable to bringi the .matter forward.. There were endless properties in .the market, town acres being sold at £2O which now brought £6OO. Witness had, interviews with Captain Rhodes with reference to purchasing the property for £IOO,OOO, hut they did not come to anything. He also had communications with the Hon, Matthew" Holmes and other monied men from the South, showing them over the property, ■but "no purchases were agreed upon with them. Mr. Crawford was at this timemuch pushed by a mortgage, and being anxious to relieve himself of - his liability Mr. ! Wallace was directed to make a valuation of Kilbirnie, and send it Home to some speculators who, it was thought, might purchase. Under ordinary circumstances he would have charged £25 for that valuation. In 1874 witness was in constant communication with the Wellington Building Society, with a view to getting them to purchase, but the final result was that they did not ' undertake anything. Mr. Crawford always pleaded his poverty as a reason for not going to any expense, and witness was always disposed to be very liberal with him. Witness sold a number of sections to Mr, Sam Howard on the 6th February, 1871, for £ll7, and subsequently other sections, making the total sum received from that gentleman £316 4s. The usual commission allowed for such sales by private contract was five per cent. Witness denied having received the following letter said to have been addressed to him:— -Wellington, July 10,1874, Dear Sir, —T have authorised another person to get up a company for the purchase of Kilbirnie township. X must instruct yon to make no further sales pending i this event, as of course I don't expect to pay double commission. I must also request you further to consider the sale of the township out of your hands, —Yours, Ac. <

' , J, (J, Crawford. In the pourae of conversation Mr. Crawford had mentioned that he was negotiating with a company to purchase Kilbirnie, and in the meantime he (Wallace) had better not proceed with the sales. Witness understood it was to be a Melbourne company, and remarked that he hoped it would be successful. Some of his (Crawford’s) property was sold subsequently to this to the Hon. Mr. Johnston and Mr. Levin, the amount in each case being £IOO. Witness was consulted about those sales, and was entitled to half commission, which would be 2J per cent., but he did not make any claim. The usage of the trade was that if an agent put up a property for sale, and if that property was not sold by him, but by the principal and another party, the agent charged 2lj per cent. Witness put up the Kilbirnie land for sale owing to the inferential instructions in Mr. Crawford's letters. There were no bids at the upset prices, and consequently no sales. The auction sales were advertised in the usual way, and billed over the town, Mr. Crawford paying the expenses incurred. The total upset prices amounted to something like £7OOO, and witness received nothing from Mr, Crawford until 1875, when he was paid £2O, that being the only, payment he had received. After this he was instructed by his principal that Messrs. Schwartz and Smith would assist in the sale. The usage of the trade under those • circumstances would be to divide the commission. Witness never heard that this matter had been

placed in Mr. Duncan's hands until he saw the advertisement in the New Zealand Times, when he immediately wrote to Mr, Crawford on the subject, and on the 3rd of September, 1877, he again wrote to Mr. Crawford enclosing bis account, to which he received no reply, but had a verbal interview, in which defendant admitted being indebted to witness, but did not attempt to settle, and witness thereupon placed the matter in the hands of Messrs. Buller and Lewis. Kilbirnie was afterwards sold by Mr. Duncan for about £ 10,000, but ■ that included a number of re-sales of parts of Kilbirnie that had been sold privately. The results of that sale were published in the Wellington newspapers. A detailed account of the basis of plaintiff's claim was put in iu evidence, and sworn to as being far too liberal. Owing to Mr. Sam Howard going through the Bankruptcy Court before he had settled for the laud sold to him, defendant repudiated any claim of Witness’s for commission on that pur; chase.

Cross-examined : When a man placed property in the hands of an agent, and afterwards disposed of it through some other channel, witness considered the agent first instructed was entitled to 2J per cent. It was the trade usage to make such charge for “ entering it on the books.” The charges were defined by the various Chambers of Commerce throughout the colonies. The property was put into witness's hands in 1871, and iu 1874 witness put the laud up for sale by auction. He never received instructions from Mr. Crawford as set forth in the letter produced of 10th July, 1574. Witness gave him a memorandum of account in 1874, and knowing that defendant was not flush of money, if he had settled that account there would have been an end of the matter. In presenting it, he remarked, “ This is simply a memorandum of account, and it we go on with the property we shall proceed as we have hitherto done.” He could not say whether Mr. Smith was engaged as early as 1874. Witness never claimed a commission on those sales (Levin’s and Johnston’s), though he was entitled to 2J per cent. Witness was under the impression that he had an exclusive right to sell, and he consulted Mr. Crawford’s interests in every, particular; but Mr. Crawford did not consider his. He did not remember introducing a Mr. Turner, to defendant as a purchaser. In the case of stations, where the .purchase money ex-, ceeded five or six thousand pounds, auctioneers would charge at the rate of I per cent., but iu the case of a township 5 per cent, was the recognised charge. Arthur Beauchamp, auctioneer and commission agent, said he had had twenty-two years’ experience as such in the colonies. In a case where a township was put into the hands of an auctioneer for sale, and it was not sold through the property being taken out of his hands, he was entitled to half commission. In the absence of any agreement they took the Chamber of Commerce scale, which allowed 5 per cent, on the sales effected. He had invariably ' charged on large properties from 1 to 14 per cent., and on small properties 5 per cent. In the case of land put into one auctioneer’s hands, and taken from him without notice, to be given to another auctioneer, who disposed of the land, the first one would bo entitled to charge the full rate of commission according to usage. He would consider £SO commission for the sale of the Kilbirnie estate very small.

By Mr. Brandon ; If property were taken out of his hands under the circumstances mentioned, he would consider himself entitled to charge, even although he did nothing hut sit on a box and smoke cigars. It frequently happened that land was put into an auctioneer’s hands for a certain time, and if at the end of that time no sale had been effected no commission would be paid. Alfred Abraham Barnett, auctioneer and land agent, said he had been professionally acting in that capacity for twenty years. If a property were put into his hands for sale, and without his' knowledge put into the hands of another auctioneer; by whom it was disposed of, he would consider that the first auctioneer was entitled to two and half per cent, on the purchase price. In the absence of any special agreement witness would consider £SO a small amount for plaintiff to receive on the Kilbirnie sale, although he was not the auctioneer. By Mr. Barton : Since 1874 every town property had doubled itself in value. Captain Thomas, commission agent and auctioneer in the Australasian colonies for twentythree years, said in the absence of any special agreement two and half per cent, on large properties was a fair commission. He considered it very unfair for a principal to take property out of the hands of one auctioneer and give it to another, if he had not first expressed dissatisfaction, given notice, or paid the costs. He never heard of such a case. He would consider himself entitled to be paid, apart from the expense of the advertisements and luncheon, Which was becoming a very common circumstance in Wellington, and cost from £6O to £9O. The Court shortly after six o’clock adjourned to 10 a.m. next day.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/NZTIM18780112.2.19.2

Bibliographic details
Ngā taipitopito pukapuka

New Zealand Times, Volume XXXIII, Issue 5243, 12 January 1878, Page 1 (Supplement)

Word count
Tapeke kupu
2,314

SUPREME COURT.—CRIMINAL SITTINGS. New Zealand Times, Volume XXXIII, Issue 5243, 12 January 1878, Page 1 (Supplement)

SUPREME COURT.—CRIMINAL SITTINGS. New Zealand Times, Volume XXXIII, Issue 5243, 12 January 1878, Page 1 (Supplement)

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