SUPREME COURT.

New Zealand Times, Volume XXXIII, Issue 5244, 14 January 1878, Page 3

SUPREME COURT.

Saturday, January 12. (Before his Honor the Chief Justice.) Before commencing the regular proceedings iu the Supreme Court on Saturday, the following colloquy took place between the Chief Justice and Mr. Barton;— Mr. Barton: Before the ordinary business is proceeded with, your Honor, I have to ask that I may be allowed to make an application for a rule nisi in respect of a cause —that of Peters v. Joseph and Co.—which was struck out of the list of civil cases yesterday by his Honor Mr. Justice Richmond in Chambers. , His Honor: You must be aware, Mr. Barton, that you cannot apply for a rule nisi in this Court. I am not sitting in banco. Mr. Barton: But, your Honor, if I can’t get a rule nisi, the result will be very serious to my .client, the plaintiff. I wish, if I can, to restore the case to the list. His Honor; You cannot apply for a rule nisi here. Mr. Barton: But I submit that I am entitled to do so. His Honor; You should apply in Chambers. Mr. Barton: 1 will not apply in Chambers. I will make the application in open Court only. His Honor ; I cannot receive the application. Mr. Barton: I-submit that Mr. Justice Richmond had no jurisdiction to hear, this matter. It was a matter which should come before.a judge sitting in nisi prius. His Honor : I am satisfied that X cannot hear your application in this Court, Mr. Barton: Then, I would ask whether the Court will sit to hear it after the close of the case which is now before your Honor ? Otherwise a cruel and gross injustice will hive been done. I feel bound to say that I want to have this great wrong set right, if possible. . . His Honor; When the Judge tells you, Mr. Barton, that he cannot hear your application, surely yon ought not to press it, Mr. Barton : I submit that your Honor should hear it. If your Honor refuses t., do so I shall only have to apply to some other tribunal. At any rate, I hope your Honor will take a note of my application, and of the fact that your Honor refused to entertain it. His Honor ; I will, at all events, remember it, Mr. Barton. Mr. Barton : I am asking your Honor to sit in banco before the other cases are proceeded with. His Honor : Such a tiring is never done. Mr. Barton : I have known it to be done a dozen times in Dunedin. Nothing further was said. CIVIL SITTINGS. Saturday, January 12. (Before his Honor the Chief Justice.) JOHN K. WALLACE V. JAMES COUTTS CRAWFORD. This was an action brought by plaintiff, an auctioneer, to recover from defendant the sum of £305 3s. Bd., being compensation for services rendered ai agent. Mr. G. E. Barton and Mr. Buffer wore counsel for the plaintiff, and Mr. Brandon appeared for defendant. Resuming the evidence for plaintiff— Richard John Duncan, auctioneer, was examined as a witness, and deposed that he was an auctioneer residing in Wellington, and according to instructions received from defendant on the 23rd August last, he sold Kilbernie township. The total amount realised by the land at auction was £9.65 175., of which £2505 11s. 9cl. was paid in cash, and in bills on which interest extended for three years was added, £6760 6s. 3d. The total amount of witness’s charges, including commission, was £456 13s. 9d., of which the commission amounted to £231 13s. 6d. The detailed account of charges so added -were Printing, £69 4s. 6d.; survey, £59 35.; plans, £23 125.; carriages, £l7 55,; biff stamps, £lO 125.; luncheon, £33 12s. 6d.; refreshments, £4 125.; bellman, postage, distributing plans, &c., £6 7k. 9d. By Mr. Brandon : The commission charged was 2i per cent, on tlie total amount, because Mr. Crawford said it was to be an absolute sale. The usual charge was 5 per cent.; bu| this was a special agreement, and the transaction was a large one. He went at least twenty times to the ground before the sale, and so did his clerks, before the sale. Re-examined : A portion ™ the southern block—was not sold, and witness would now affect sales to any desirable purchasers who wanted to negotiate. In Petone, the Wairarapa, and other.districts, witness had sold land after it had been put up to auction. One great inducement which led witness , to take 2| per) cent, was because the sale was to, be unreserved. This was the case for plaintiff. , - ; Mr. Brandon, in opening the case for the defence, contended that the agreement with Mr. Wallace was to pay plaintiff in no other way than by commission, and plaintiff haying assessed all his expenses up to a certain time) ho was entitled to no more than £2O; during that time he was entitled to no more than what he actually sold. ■ 1 William Finnimore. an auctioneer, land, and commission agent of fifteen years’ experience, said his charge for selling property was 5 per cent. He generally made his own terms, and though he would not speak as to whether he was entitled to a commission, he did not charge when property put into his hand was not sold. Cross-examined : He would mate no demand for remuneration of land put into his

hands and withdrawn. * Witness’had a larne township named Normauby in Wanganui, and he was allowed 5 per cent. He usually charged 5 per cent., which he considered a reasonable charge for commission over and above all expenses. He had sold large blocks, of laud iu the Datea country, in which he would realise £IO,OOO and £50,000 in an afternoon, ami consequently he only charged 1 per cent. lie-examined : It was very seldom that he made any reduction iu the percentage, James Contts Crawford deposed that he was a 'Resident Magistrate, and the owner of Kilbinds iu 1871. He employed Mr, Wallace as an agent because lie was an old settler. He considered it necessary to know what his liabilities were, and therefore wrote a letter to plaintiff iu 1871, to which he got a reply. It was an indefinite rigmarole letter, containing a great deal of wisdom, but not descending to particulars. Witness sent to him the following letter:— March 2.1571. My Dear Sih,—With reference to laying out a township in Evans Buy, I wish, ns a preliminary only, to get you to consider the matter and give your opinion as to its suitability, and the probable results which may be anticipated. The land with which I propose to commence is not my freehold, I have only a lease with a right of purchase, and I wish you to Understand that as I may have to make arrangements with oth rs I cannot, even at present, promise that you shall have the job. My idea is that the site of the township should bo in the low part of the ground, laid out in small lots, and that a road should he planned up the ridge on the towards the slip where. I think, tine sites with extensive view's and easy access to the bay would be found’ for the more wealthy persons who might wish for more space than they can get in town. On tills ridge the sun rises early and sots late, and it strikes me it might be made for Wellington what Woolloomooloo is fpr Sidney. If the slip matter is settled a d work* go on, a township at the bay would bo facilitated. I should require to keep the command f the stream for probable flax works, ttc, I have also an idea that Chinese gardeners might be settled to a considerable extent on the flat. I believe those in the Adelaide-read pay some £2O or £25 a year rent for their acre. I think they would generally get water for their gardens at the depth of a few feet and they would benefit tlie town by clearing out the contents ol the privies. Should we succeed with a township on this side of the pay we might eventually extend operations to the neighborlmod of the dock should we get it started, and to Worser Bay, where Micro is a lino site for a watering place.— Yours. Ac., , _ James C. Crawford. The following answer was received : March 6th, 1871. My Dear Sir,— ln answer to your note of the 2nd inst., respecting the formation of a township at Evans Bay, there is no doubt but that such a scheme could bo satisfactorily carried out should the Patent Slip be erected. The enormous loss to Wellington from tlie unfortunate dispute that has arisen between the contractors for the Patent Slip and the Government cannot he estimated. There is no doubt that the circumstances of (he colony, and the scarcity ot money are very much against the carrying out your proposition. Should matters improve, immigration set in, and public works commence, I think you might’ succeed iu what you propose. I would suggest tlie following: plan in tlie event of your proceeding further ■in the ma ter:—l. That a townships ot quarter-acre allotments should be laid out on each side of the present road (a continuation of Constable-street), embracing the gently sloping land from the boundary ot tlie Town Belt, and including the beach front 'ges in Evans Bay, with street frontages laid off to suit tlie ground ; Hint tlie township should comprise about 100 allotments, and a few acres for public reserves, say, in all, about 30 to 35 acres. 2. That the allotments should he sold from £lO to £2O per allotment upon the following terms, viz. a deposit of one-fourth, the remainder tp extend over a period of live years, bearing interest at the rate of S per cent, payable half-yearly, with a covenant that vendor is held harmless from any expenses attending fencing, or the payment of any rates, or taxes. (Of course the land is free , from the present corporation assessment.) 3. That suburb in. lots of from one to five or ten acres,be also sold to parties applying for the same at an up-et price of from £lO to £3O per acre, according to position. -4. The best mode of bringing tlie matter fully before the public is to publish and put tlie allotments up at the upset price by public auction in the same way that the Government sell their land. 5. There is a considerable quantity of town laud : out in tlie direction of Constable-street, Bowen-street C'oromandol-street, Ac., &c., unoccupied, the price of which at the present time varies, according to position, from £lO to £l5O per acre. In order to give facilities for persons conveying goods, procuring coals, ;&0.. it would be advisable to have a public jetty at some convenient site close to or opposite, tb» township. There is another mode.of disposing of the town allotments which perhaps would take, viz , after survey is made and map prepared, open a list for tlie 100 allotments, and to w.dch parties would subscribe their names a d pay their deposits. This Fst being filled up, let each subscriber draw for order of choice, as in tlie case of the New Zealand Company’s township. By this means you would insure the sale of the whole of the township allotment. I shall he • hapoy to undertake tlie sale of the property in whichever way you may think best.—Yours, &c., J. H. Wallace.

In consequence of receiving that letter, witness put the matter into plaintiff’s hands, hut he merely employed him as he did a number of o' hors on commission. On one transaction Mr. Wallace was the cause of a loss of £4O, and the only sale he had really effected vyas that of Sam Howard’s purchase. Witness subsequently determined to sell Kilbirnie, and had the property surveyed by Mr. Briscoe. It was a most audacious piece of impudence on Mr. Wallace’s part to claim commission for the valuation be had made. He looked upon Mr. Wallace as a sort of old man at sea, a Siubad, because ho was very bard to get rid of. Messrs. Smith and Schwartz wore very excel-, lout agents. 'The scheme to get up a company for purchasing the laud did not succeed. Although witness was under the impression that he had paid plaintiff £3O, lie considered £2O was a .sufficient sum, aud that was the amount paid to him in 1875. The reason he took the agency out of plaintiff’s bauds was because he did not consider him a competent man—be did not have the knack of selling. Witness would not have paid Mr. Wallace a single guinea for the valuation he made had lie had known that he was going to charge. It was through laches on plaintiff’s part that witness lost £4O with the transaction between Messrs. Johnston and Levin. Benjamin Smith, land aud estate agent, knew of nn usage between a principal and agent if the former trusted the latter with the sale of property and took it away again. Witness charged 5 per cent, commissi on on the sale of town lands, and ho considered that a reasonable sum where the property was very considerable. If property had been put into hia hands and taken away again, he would not charge a commission. Mr. Brandon then proceeded to address the Court for the defence, contending that plaintiff could not recover commission on what he had never effected. Mr. Barton having been heard in reply, the Court adjourned from half-past 6 until halfpast 7. On resuming. His Honor proceeded to sum up, and having reviewed the evidence, directed the att ration of the jury as to what was meant by usage of trade. If they were. convinced that it was trade usage for an agent to charge half-rate commission on property put into his hands for sale and afterwards taken out, it was not necessary that defendant should know that. They had to consider whether there was an understanding between the parties that reasonable remuneration was to he paid if the property was not sold. He understood that to be a question for the jury, aud would depend upon circumstances. He cited Mr. Justice Williams and other authorities on the point. If they came to the conclusion on the evidence that there was a usage, it was compe r tent for them to say whether there was implied between plaintiff aud defendant that lie was to be paid for whatever he did. If there was an express contract he was hound by it and it would exclude usage: There was no doubt Mr. Crawford might employ as many agents, or whomsoever he liked so long as ho carried out his contract. Hia Honor explained to the jury the difference between a claim on commission and one for remuneration. With regard to the valuation by plaintiff to defendant, they were to consider whether, under the circumstances, looking at the connection between .the parties, a fair inference was that, the ordinary rates paid to valuators was to be ' given, or a .lump sura, for all the services rendered. The Chief Justice then went through the evidence, and commented on the voluminous correspondence which had passed between the parties to the suit. ‘ , i 1 Mr. Brandon asked that the jury should be directed in coming to a verdict to state as to whether they agreed upon the usage. His Honor (to the Jury); If you find upon the usage you should say so. Mr. Barton : They can say so if they choose; it is not necessary for them to state what they agree upon. His Honor ; The jury will bo guided by the Judge, Mr. Barton, and not by counsel. Mr. Barton ; If your Honor considers it a matter of law that they should tell you the

then I submit; hut if not, the jury will be guided by me if I like. I . His Honor ; As a matter of law, or not, sir. Mr. Barton (warmly) : Your Honor will please not to address me as sir. His Honor : Mr. Barton, be good enough to submit to the Court when the Court rules. Mr. Barton ; I shall, when the Court rules law; but in any matter except law 1 will not, I’ll take my chance and go to gaol first. His Honor ; It is with very great patience on my part, Mr, Barton, that I have allowed such frequent interruptions. Mr. Barton: Xdo not wish for a moment to rret into any unpleasantness with your Honor, but I ask your Honor just to tell the jury that it is not a-matter of law to tell the Court whether they consider it the usage to allow the commission charged. His Honor: 1 decline to toll them that. The jury then (10.15 p.m.) retired to consider their verdict, and at a quarter to eleven returned into Court. The f. dlowiug issue was put: —Is the plaintiff entitled to recover from the defendant any, aud if so what, sum beyond the amount paid into Court in respect of tlie plaintiff s claim in the declaration set forth? Answer; Yes; we find unanimously that the plaintiff is entitled to £53 3s. 6d., iu addition to the amount naid into Court. In reply to his Honor, the foreman said; We are of opinion that the usage as to half commission us not proved. Mr. Barton asked that costs should he allowed, as the case being a complicated one plaintiff had no alternative but to have it tried in tiie Supreme Court. His Honor was of opinion that costa should not be allowed, as Mr. Wardell, who had extended jurisdiction, could have tried the case. The Court then adjourned until 10 o'clock on Monday morning.