LAND AGENTS' “COM.”

Stratford Evening Post, Volume XXXX, Issue 18, 8 September 1914, Page 2

LAND AGENTS' “COM.”

Owing to pressure on our space we have been unable befqhe tins to print the text of the j Kenrick, S.M., delivered bn Friday last at Stratford in the case H. P. H. Graves v. Joseph Speight. The following is his Worship’s judgment:—

The plaintiff claims £93 for work and journeys done at the request of defendant as land agent in the sale to John Diggins, of defendant’s farm: or in the alternative the plaintiff claims £93 as upon a quantum meruit for work and journeys done. It is contended for the defence that defendant only agreed to pay commission in the event of plaintiff arranging a mortgage for £4.00 or £SOO for the defendant in addition to effecting an exchange of his land, which he has failed to do. On the 7th October, 1913, defendant gave plaintiff a written authority in the following words:—“ln the event of you effecting an exchange between myself and Mr Diggins or any other party, and arranging for me a mortgage for £4OO or £SOO for the term of three years at rate not to exceed 6 per cent, on security of the property I receive in exchange I undertake to pay you a commission of £llO on exchange of the land and a bonus of £4O for arranging the above loan, and I authorise you to deduct the said sums from the money coming to me. (Signed): J. Speight.” The evidence proves plaintiff had made several attempts to Iniug about a sale or exchange of the defendant’s land prior to his effecting the exchange with Diggins, and it is proved plaintiff did his best to find some person to lend the £SOO, but failed. On the 16th October, 1913, defendant executed an agreement of exchange with Diggins. It is proved defendant placed his property for exchange at £45 per acre, but consented to reduce it to £4O to enable the above exchange to be effected.

Tlio question, in my opinion, at is* sue, is whether the above undertaking is a conditional one that no commission shall be paid on the exchange being effected unless the loan is also arranged. If it .is a conditional undertaking then plaintiff must arrange the loan before he is entitled to any remuneration and on the defendant being obliged to complet e the exchange plaintiff would not be, entitled on a quantum meruit.. If it is not conditional then what remuneration should be allowed plaintiff, for the exchange was not effected at the rate per acre originally fixed by defendant. The defendant in his evidence, says:—“l told plaintiff the exchange would bo no use to me unless I got a loan of (£SOO, and the plaintiff replied he thought the loan could bo raised allright,” and Mr Cowern, the agent for the other land to be exchanged, said he had not the slightest doubt about it. There is, in my opinion, nothing more in these words than a firm belief that a loan could be obtained, and that belief was no doubt strengthened by the very large remuneration offered by defendant and referred to as a bonus in the undertaking. Plaintiff says he told defendant he could not finance him but would try and get the loan through others. Biggins visited defendant’s farm, and the defendant at this time was told Biggins had a £I2OO mortgage on his place and defendant says be replied: “That will mean a second mortgage,” and shortly after signed the agreement fot exchange, there being no condition therein that the loan must be found. It is clear from defendant’s evidence that neither the exchange of the land or the commission to be paid was made conditional on the loan being found. And the words used in the undertaking of the 7th October do not make the icommission conditional on the loan being arranged, the amounts mentioned in the undertaking are given separately. for the exchange and the loan. 1 therefore find that neither the written undertaking to pay commission nor the evidence of the defendant supports the contention that the commision is payaide conditionally on the arranging of the loan. Before dealing with the question of what remuneration plaintiff is entitled to, I will dispose of the point raised, namely, that plaintiff has not the written authority required under the Land Agents’ Act, 1912 necessary before he can sue for remuneration. It lias been conclusively proved I think that such an authority was given and lost and the subsequent correspondence and documents confirm the giving by defendant of such an authority. I have now to decide what remuneration should he allowed plaintiff. There are two things to consider: Firstly, it was not a sale hut an exchange, and the valuation of the land was reduced fi otn £ls to £4O per acre with the con. sent of defendant to enable an exchange to lie effected. The benefits

to tho defendant are not as great in an exchange as on a cash basis. There probably is l as plaintiff says a great deal more work in effecting an exchange, but it is a last resort to earn a commission when a sale cannot bo arranged. After considering all f!,e circumstances, I think a fair remuneration would be £75, and I give judgment for plaintiff for that amount with costs as: follows :—.Solicitors £1 15s, Court ,costs £2 11s. ; Witnesses . F. Cowern 15s, and A. Grant 15s. Mr J. It. L. .Stanford , appea-od for the plaintiff and Mr A. H. Johnstone appeared for the defendant.