DISTRICT COURT, GISBORNE.

Poverty Bay Standard, Volume X, Issue 1177, 17 October 1882, Page 2

DISTRICT COURT, GISBORNE.

Monday, Oct. 16. Before his Honor Judge Macdonald.) civil cases. On the Court resuming, Mr Brassey proceeded to cross-examine the witness in the case of Porter and Croft v. Clarke and : Dobbie. Cross-examined by Mr Brassey : I recommended Mr Ormond to take up the Wharc- I kopai Block. I had no instructions from j Mr Ormond. He made enquiries from Kin- I ross as to Morris’s run and Burnett’s run. He was undecided until he returned to Napiei’ as to which he would take up. Had he taken up tho AVharekopai I should have got my commission. I thought Clarke and Dobbie’s run would have suited him admirably. 1 wanted a commission of 1 per cent if I sold ; 1.1 per cent is the usual commission, I accepted 1 per cent on this occasion, as the | commission was on a large sum, viz., £13,500. I There was no arrangement with Mr Ormond ; about purchasing freehold in the AVharekopai. : I remember seeing Messrs Clarke and Dobbie ! in my office on the 2nd inst. in accordance i with an appointment. I do not think I j ought to produce the telegram received by i me from Mr Ormond relative to the altera- I tion in the position of affairs, as it might be 1 prejudicial to Mr Ormond’s action against Clarke and Dobbie. Ido not seek to shield Mr Ormond in any way. (Telegram produced.) I showed that telegram to Mr : Clarke at the time. I said to you that I was afraid the thing would fall through. I did | not tell you that I did not regret so much los- . ing my commission asMr Ormond’s business. I | Unrl oAmn/innvai’Sn+inn with VAII I \f 1’ B»’n !

about the matter, but my reply was not to ; the effect quoted by you. lam positive that i I did not speak in those terms to Clarke and Dobbie. I do not remember any one but ! Clarke being at my office on the 28th. I | remember Clarke using the words “I don’t j know what Dobbie is going to do, but if he ‘ likes to lose £5OO he may.” This was on the ' 28th. This is a letter (produced) from my I firm to defendant dated the 30th ult. ; it was j written in consequence of Messrs Clarke and | Clarke’s action in selling the run to MrThos. . Russell. The letter was written with the ! object of furthering my claim for commis- i sion. I was acting as a medium between the parties. He did not at the time mention the ’ 108 acres but he did afterwards. I don’t | know very much about sheep, but I believe I it is a usual thing to allow a marginal per , centage in dealing. I forget what is the j meaning of the note N. 250 (35) in my book. By Mr Kenny : I am a Native Interpreter < as well as commission agent, and acted in i such capacity for Mr Ormond in the Whare- ' kopai business. I sent no reply to Mr Or- ; mond’s telegram of the 28th ult. I don’t ( remember either Clarke or Dobbie telling me j the run was sold. It is disadvantageous to have a reserve so close to one’s homestead. Alfred AA'm. Croft, sworn, deposed : I am a partner in the firm of Porter and Croft. I remember the meeting between that firm and Clarke and Dobbie on the 14th inst. I heard all that transpired between Captain Porter and the defendants on that occasion. Capt. Porter asked me what the amount of commission would come to at 1 per cent. I said £l3O I heard a good deal of conversation. Captain Porter went away next day. About ■ the 19th or 20th September I had a con versa- j tion with Clarke in Captain Porter’s absence. I asked Clarke for particulars and the paper produced contains them. The questions are written by n;e and the answers by Clarke. This is an exact copy of my consequent tele-

gram to Mr Ormond. Clarke saw my telegram. On the 26th defendant refused to deliver until after shearing. Mr Clarke said he oould not guarantee above 6000 sheep. I showed him where I had telegraphed “ about” 7000, and said that it was absurd to call 6000 sheep “about 7000;” a line must be drawn somewhere. Then the terms were charged, I should say, to the value of £BOO or £lOOO ; 25 head of cattle and 108 acres of land less. When Mr Clarke was leaving the office he said “I don’t know’ what Dobbie I may do ; I won’t do anything.” 1 don’t reremember Captain Porter saying that it was j not so much tho loss of the commission he i cared for as losing tho purchase of the free- | hold shares. |

John Clarke, sworn, deposed : I am a run- i holder and a partner with Mr Dobbie in the station in question. I remember giving Mr j Porter particulars verbally as to the sheep | and station. This was in Porter and Croft’s j office. AVe arranged to give Porter and ■ Croft a commission for effecting a sale to Mr Ormond. I did not mention the reserve. He said he would nut then go into the question of title. Clarke did not ask me anything about reserves : I mentioned the 108 acre reserve to him, and Porter said, “ By the bye 1 forgot to mention that to Ormond. ’’ There are three blocks altogether. The memoranda produced were made after I had seen Capt. Porter the second time. I cannot give the exact date but I think it was the 19th or 20th ult. Porter afterwards told me that he was authorised to offer £13,000 for the run and stock by Mr Ormond ; I declined. He afterwards asked me what I’d take for the sheep with the wool. I never authorised Porter to offer the run and stock for £13,700. I rcfttfted to sign any agreement because I only

knew the number of sheep at the last muster. ' A\ kun on th- 25th he oM’ered me the £13,000 before the shearing, 1 said it was no use talk- J iie' any ni"re about it, and I went away. 1 ' ven’s afterwards sent for on the 27th ; it was • , then that Porter wanted me to sign the j agreement, and it was then 1 mentioned the number of sheep to him. On the 28th I went ■ to Porter and Croft’s ofiice in company with ’ Mr Dobbie, and was shown a telegram by ' Captain Porter making a very different otier. Dobbie was present. Captain Porter said lie had conic to a standstill ; and I then considered the whole thing at an end. On the i morning of the 27th if there had been no ■ question as to the acreage or number of stock, the agreement would have been signed. ; I said we occupied this 108 acres but had not ! got title to it. I mentioned this 108 acres ’ to prevent any misunderstanding. 1 believe i I told Captain Porter on the 27th that the 1 rent was £330 instead of £3OO. Captain i Porter did not see the lease. I told him he would see a certified copy but not the orig- | inal, which was badly charred by fire. I was j rather disgusted with (.’.-.ptain I’ortcr because ■ lie seemed to me to be acting more as Or- ! mund’.s agent than ours. The question of . time of delivery was the only one between us, There is one telegram I did not see : it is dated the 25th September, and authorises ’ Captain Porter to close with us. Dobbie i came out for me on the 27th. I did not see ' the telegram, but heard the gist of it. AA’e have sold the station to Mr Thomas Russell through the Bank of New Zealand for i ' £13.500 without the wool. 1 don’t think 1 i sent a letter to Dobbie by Hare containing • the terms of the sale- to Mr Russell about the 1 23rd ult. i i.a-.y Be mistaken, but to the . best of my knowledge. I did not do so. On the 25th when I left Captain Porter's office 1 ' considered tic tiring at an end. Mr Matthews then /-.ld in.- he could find me a pur- ' j chaser, hiit he. did not mention any name, i About the 2nd ->f October Mr Brassey and I ; went to Porter and Croit’s office, and they asked me i’t;r their commission. I think Mr Brassey shipped me from answering, and ' they then -aid they would sue for it. They , asked me to sign to Ormond. They said if the agreement was not completed, Ormond would sue us, and they would sue for commission,

AA r illiam Dobbie, sworn, deposed : I am a partner with Mr Clarke in the run in question. I don’t remember the letter referred to by Mr Kenny. I remember a conversation with Captain Porter about a missing signature. I saw Captain Porter at his office on the 26th. I said I thought Clarke would . be in at 2 o’clock, and we could fix up the ■ sale. I went up and brought Mr Clarke in i on the following day (Thursday). I was in j Porter and Croft’s office when the question I of number of stock, rent, acreage, etc., cropped up. I was at their office when the telegram altering the terms of Ormond’s offer was read by Captain Porter, v. ho said he thought the matter would have to drop. This was on tho 28th. I went by myself in the morning, and with Clarke in the afternoon, to Porter and Croft’s office. Mr Brassey then addressed the Court, submitting that tho plaintiff was not entitled to any commission. From the exhibits put in it was apparant that Captain Porter had been acting, not as a commission agent for Clarke ami Dobbie, but as a Native agent for Mr j Ormond. The stock had been assessed at a reasonable number, and Mr Ormond had no I real occasion to throw up the sale. The en- ' quirics made were categorical and appeared i to have been satisfactory, and could not have ' affected tho sale. Nothing had boon shewn ! that by negligence or fraud anything had j been concealed. Porter must have had his : instructions from Ormond, and his actions ' led to the alteration iu Ormond’s instructions. ■ He had certainly been created a sort of quasi ; agent for tho defendants’ by their agreement to pay him £l3O if he carried out the sale thoroughly, but this he had failed to do. If ; the plaintiffs' were acting as agents for any l body it was for Ormond. He He quoted Bullock v. Price, and Simpson v. Lamb in ; support of his argument as to liability for | commissions. He contended that there was i no completion of agreement in this case. He I would submit that upon the evidence there | were no laches on the part of defendants’ j which would render them liable for commission, and the plaintiff’s’ were acting more in ! Ormond’s interest than in the interests of ; defendants. I Mr Kenny then addressed the Court sayi ing that the agreement between the con- ' trading parties had been complete on the i 28th Sept., the date on which negotiations i were opened by the Bank of New Zealand ion behalf of Mr Thomas Russell. All that i Porter and Croft had to do was done and ! ended the moment Mr Ormond’s telegram to ! conclude the bargain came into their hands. | It was idle for defendants to attempt to dis- [ own the agency. He quoted Ireland and I others, v. Gibbons, Livingstone. There were j endless cases from Pritchett and Batgee up I to the present time which could be adduced ias precedents. The non-completion of the | bargain was owing to the misleading statei ments of the defendants. The plaintiffs had | well and faithfully done their share of the I work and the non-cxecution of the contract | was entirely owing to the defendants’ enter- ! ing into the fresh contract with the Bank of New Zealand for Mr Russell while the other one was actually complete. His Honor, in reviewing the circumstances surrounding the case, said he was not satisfied as to the conclusion of an agreement between the parties ; nor had the two sides, acting through Captain Porter, ever arrived at precisely the same t*rms. Defendants hail offered to sell at £13,000 after shearing. Then, Ormond says he will give £13,000 with , immediate delivery. Defendants refuse ■ this offer, but wiil payoff the mortgage, and deliver at the end of November. Ormond then telegraphs to conclude the offer, taking delivery on the 27th of November at £13,000. If it could be shown that at any time Capt. Porter, as an agent, had brought vendor and vendee to like terms : his mind would be at ease, but at present he had grave doubts. After some lengthy explanations from Mr Kenny, His Honor went on to sny that his doubts were now set at rest. Capt. Porter had done all that was required of him. Mr Clarke was evidently satisfied that at a certain time things were going on satisfactorily. The position was that, through the instrumentality of Capt. Porter, tho defendants had found a customer in Mr Ormond, but they had declined to complete negotiations, not with a sinister motive, but nevertheless they had declined. The discrepancy on the acreage was a serious one ; it was 108 acres to which they had no title. The increase in the rental from £3OO to £3,300 would entitle Mr Ormond to ask for compensation or to depart from the letter vf the agreement It was admitted by the defendants that if i Porter had sold at the price mentioned |he should have his I per cent commission. He hail certainly found the purchaser, and the defendants had not completed their share of the contract. He should find a judgment for the plaintiffs, with costs, £lO 13s. Trimmer v. Rain er a Ranct. Mr Kenny for plaintiff. 'This was a case of a promissory note i signed by the defendant, which the plaintiff had mislaid, and was unable to produce ; he, j however, deposed that he had been paid £9 10s on account, leaving a balance of of £7B 2s 2d.

Mr Kenny asked that judgment might be given for that amount. 'J'hc P.N. was given in 1875. Mr Kenny would accept 5 years interest at 8 per cent., which would make the amount £73 13s 2d, with the addition of costs of service, translation, and counsel’s fee, £7 12si

AV. _\dhr v. W. F,. Rees. (Turn. £226. Mr Bra.sscy for plaintiff and Mr DcLautoiir for defendant. All claim in excess of £2OO w:;s abandoned, in order to bring the case within the jurisdiction of the (’oiirt. It was submitted that the jurisdiction was doubtful. Mr DcLautour, at some length, dwelt upon the items shown in the bill of particulars, with a view to showing the jurisdiction of the Court was ousted. His Honor said that the payments on account must be established payments. Mr DcLautour then then called : AVilliam Lee Rees, barrister ut law, who identified the bill of particulars, and explained the account, disclaiming any right of Mr Adair as the owner of Cooper's buildings, which defendant entered and used on thoroughly adverse title. He claimed that property as his ov. xi, although he was nov. being sued tor rent ho never bad in any one way, nor had he now, acknowledged Mr Adair as Iris landlord. He believed Mr Adair c’-cd him the balance of the £125 bill at the. present time. Mr Coleman had placed him iu posses ion of those premises as acting for Read s I’rustecs. He never was admitted by Mr Adair, or asked him for use and occupation.

John Coleman, sworn, deposed : I am 1 agent for Coleman and Clark, trustees ol the : estate of the late G. E. Read. Mr Rees was ; nut into possession of Cooper's buildings by 1 Read s trustees, about the 22nd of April, : 1880. The plac ? was vacant previously. . Mr Adair u;>d been using it as a shop. Read's . trustees took possession of it. I don't know this of my own knowledge, but my brother told me.

AA m. Adair, sworn, deposed ; I am the plaintiff in this action. I received £5O from Mr Rees on account of goods, and he agreed to give me £5O on account of certain alterations and fixtures which I had there. I rereceived of Cooper's buildings from McVay, of Napier, who leased from Robert Cooper. I became Cooper's tenant, and occupied the premises for some twelve months at a weekly rental of £2. Mr Rees came to me after I had left the premises, but still retained possession of them, and offered me fifty pounds as a bonus to allow him to enter on occupation. He told me there was some agreement between Read’s Trusteeee and himself. They claimed the property. I said I knew nothing about Read’s Trustees. ( was Coopers’s tenant, but that if he indemnified me against possible loss, I would be satisfied, but that until the matter was settled, I should expect from him £2 a week as rental, the same as I was paying Cooper. On that understanding I gave him the keys. Rees has been regularly charged up to the present date, from that time, with tbe £2 per week rental. The item “cash £5O” was on account of this account At the time I got the P.N. for £125, my account against Rees was getting long, and finding that he could not pay me in cash, I accepted a P.N. for the amount, which was subsequently dishonored. I spoke to Mr Rees about it, anil he sjyid that finding that his account against mo was larger than ho had thought, he would place one account against tho other. The P.N. was not given as an accommodation bill, but as genuine payment. The question of rent never cropped up until the P.N. was dishonored. (Letters to and from Mr Rees were then read.) No one was present when the arrangement was made between Mr Rees and myself. All payments I have received from Mr Hoes have been on account, and been acknowledged as such in the receipts given for them. His Honor said the position of the matter stood thus : AA’as there a contract distinct or implied between Rees and Adair. The evidence was conflicting. The facts of the payment of the £5O for clearing out. was perfectly compatible with Mr Rees’ statement. As regards the tenantcy, Mr Rees alleges that he entered into possession of the premises by authority of Read’s trustees, and not by Adair’s permission. This was corroborated by Mr Coleman. In the face of the conflicting evidence tho charge for use and occupation was not proved. The title under tho Land Transfer Act might be sufficient for ejectment, but could not afford ground for claim for occupation. He would advise that to save embarrassment the plaintiff should accept a non-suit. Mr Brassey accepted a non-suit accordingly, with costs £2 10, and counsel’s fee £l9, making £l2 Ils, to lie reduced to £7 Ils if it appeared that his Honor had discretion in the matter.