A CASE OF COMMISSION.

Stratford Evening Post, Volume XXV, Issue 55, 8 March 1915, Page 7

A CASE OF COMMISSION.

NEWTON KING V. J. J. HILLS. The following evidence was taken in the case of Newton King v. Jesso James Hills, a claim for commission and interest on same amounting to £6B, heard in the Magistrate's Court, Stratford, on Friday last. Mr 11. Spancc, in opening for the plaintiff, said tuat Mr Hills (the defendant) us mortgagee of the property at Tarata owned by Mr Henry Wells, effected the sale of the property about September 1912. Mr Newton King brought about the sale to Mr R. H. Phillips. At that time the draft of an agreement was drawn up, but was not signed by any of the parties to me transaction. The agreement was in effect an exchange between Hills and Phillips, and the parties actually changed possession of their respective farms at Tarata and Toko in September 1912. About a year later they had sold their properties again and' they found that no agreement had been made in 1912. In 1913 an agreement was signed, being practically the same as the previous draft. The three principals met at Mr Newton King' ; office, and it was then that the defendant made a verbal agreement wuh the plaintiff as to the amount ol commission to bo charged for the sale. The question was whether the pluuiti.i had done certain work for the defendant, and whether defendant (Hills) had promised to pay the sum of £SO for services rendered. Newton King was the first witness, and deposed: I first saw Hills in 1912 in connection with the Tarata property, which he instructed me to either sell or exchange. He saw me several times, and was very anxious to got out of the property.

I saw Mr Phillip* on several occasions, and I think defendant mentioned him as a probable buyer. Phillips. defendant.and myself met in Stratford, and the terms of exchange were arranged between Phillips and Wells. A solicitor was instructed to make out an agreement, and some time after, 1 discovered the unsigned agreement. July 1013 was the date on which the final agreement was made out. At the same time the commission was decided on, in my office, there being pre-

sent Phillips, defendant, and myself. I s-id to defendant that there was commission to be paid, and defendant

said "you're not.going to charge me commission." \ said "Quite right." I told him that he had given me in-

structions to sell, and that I would most certainly claim commission, and defendant finally decided to pay me

£SO. This was below my ordinary rate, but I accepted it. Accounts had been sent out each month for the amount. We always charge interest on the current account. It is the custom throughout New Zealand. Ihave been paid interest by Mr Hills for over twenty years.

By Mr Sellars: Prior to August 1912, 1 received instructions to, v seJM, defendant's property. No price was fixed ort, and nothing was said about commission. I took no notice of the instructions. 1 was fourth mortgagee on the property after defendant. L paid Wells' interest to defendant when instructed by Wells. Before 1912 < was not concerned in getting Weli out of the property. I had a convei sation with Wells who told me he J?fi it entirely to me, whatever I advised" him to do he would do. Wells did not o.\e me any money except about £'-'<] J spoke to defendant on the date the second agreement was signed. I do not remember mentioning commission at air interview on May 27, 1918. li> July 19lS, defendant again objeccad to paying the commission. It was not tine that Wells sold the property and Hills' name inserted on the understanding chat his mortgage on the property be reduced by £3OO. In 1913 an ».giw. ment was made with me by ler'om.ui to pay £oo commission. It is lay cu... torn to debit interest on commission. |By Mr Spence: I would have in strutted my clerk to debit the £SO lo Hills. The work was done in .September 1912. Robert Hoi ace Phillips, >f N'gioro,

deposed: I had a leasehold property

at Toko in 1912. I i-eard of the Tarata property, which was owned l>\ Wells and mortgaged *-o Hills, fn»in

plaintiff's agent, Tfix 1 w,w defendant on several occasions, ai.d discussed the proposed exchange Mi King entered into the operations Dm' 1 remember the tnee leg at his office prior to an agreement i"ing dnuvr in

1912. It took hou'<! Cline to draw up the agreement ..-iul then It was dimcult to get hold >t defendant, ai.d some disagreem •■.*.♦; arose heiwefcii the defendant air. Weds * l»n December

!6, 1912, I took possession of the Parata property. The agreement \va. not signed till July 1913. Plaintifi was responsible for bringing about the exchange. There was a eo'.ver-ii. tio»: about commission, p'.ii.inl -uv ■ tioning the matter. Defendant said "Oh! you're not going to charge me commission on this!" Plaintiff said •'Most certainly 1 shall. Why, you

asked me at the train and many other times to dispose of the property." The defendant said he would pay £SO commission. There was no mention p-'ade to me of commission at toe t.mt. I was charged £SO I have n cv .'lit, account with plait'di r.nl piy interest on same.

By Mr Sellars: The conversation ■hoot commission was held in plaintiff's office. I was present at three

I rial rri' , * I ti' , 'j;s, and commission was only menti'K'ed at the last. Defendant /ive no reason for cot being charged

'•on:Tnission. Phintiff said "Why, .Jesse \ou don't think I'm going to soil the place fir nothing. You came

to mv many time;, *o got tho place sold." Dele, uliiut doJiniioly miide the agieemeui about commission. I uudovbtoi I from the start that plaintiti was ft< ung for Wells. liv Mr Spcnee: I was dealing with dpf'-.'jiaaiit. Tionn. Riera, accountant, next gave tuk'inec, and produce 1 ledger for the l.:-c niji ■ years showing defendant'.-, transactions. hx Mr Sellars: The account was settled in 1911, and the only items since then were those in the claim. We ehaige on monies which are owing, and interest is charged from the day on which commission was earned. Bv Mr Sponce: Interest was charged from July 14th, 1913, and the account was rendered every month. ! By Mr Sellars: The last time tha account was rendered was October, 1913. , , Henry Wells deposed: I owned the property at Tarata, and considered the arrears'of interest was more than tho property was worth. Defendant was the greatest mortgagee. I asked defendant to get the property sold. The first vinkling T got that an exchange was being negotiated was when Mr Phillips and an agent went over the property. They never consulted me. 1 rang up plaintiff and he informed :ne fhoi-e was a place at Toko which would suit me. I learned that the Tarata property had been sold by defendant. I never signed any agreement till July 1913. I had nothing to do with the agreement for Tarata property. I was present at interview at the saleyards. Plaintiff had then told .defendant that he was liable for commission. Defendant replied that he did not know about that.

By Mr Spenee: I never spoke a word to Mr King or any of his representatives over the Tarata property.

Joseph Maynard Hignett, land sales, man, sworn, said: I remember Mr We!!s talking to me about the Tarata property. I told him the price was too uigh, and did not do anything iu the matter. 1 took Mr Phillips over the Tarata property on Mr King's instructions.

By Mr Sellars: I was asked by Mr Hills to gee the property sold. I got particulars from Mr Hills. This closed the case for plaintiff. x\ir Sellars, for the defence, asked to'? l £ non-suit on several grounds, amongst which was that there was iio proof that Mr King was a licensed land egent under the Land Agents' Act, wnich it was necessary he should lie to claim commission (section 13). He contended that the verbal agreement was alleged to have been made in 1913. The defence also denied that plaintiff was instructed to act for de. .o..dant in the matter. Defendant xhs not the vendor, he was a mortga-

Mr H. Halliwell, solicitor, gave evidence as to an interview inMay 1913, at the saleyards office. The particular mat. fcer discussed was not commission, but the reduction of Mr Hills' mortgage. The question of commission was raised. Upon the plaintiff suggesting the payment of commission, defendant 3aid "Why should I pay you commission?" I'hiiutiff said "1 certainly think I ought to get commission." J did not hear defendant agree to the commission.

By Mr Spence: The date of the

jonversation was 27th May, 1913. Jesse James Hills, sworn,said : I '>eld a mortgage over Wells' property. i took no steps with regard to selling the property. J met Phillips and plaintiff some time prior to September 1912, and we had a discussion as to getting rid of one Cowan's mortgage. I agreed to reduce my mortgage by £3OO, and take the mortgage over Wells' property at Toko. Plaintiff was not acting for me. I had no occasion whatever to give him instructions. I could not exchange the property. On 27th May, 1913, there was ui interview, but Wells would not gree to sign the agreement till Jul} .913. About May 27, 1913, plaintiii •aid to me "I'll expect commission out >i this!" I said "I am the mortgagee—Wells and Phillips are the principals." Plaintiff then said "I ought to get something out of this," and liter some talk I said £SO would be a "air charge to get out of Wells. Comnission was only mentioned on this >ne occasion. I gave no instructions o plaintiff in this matter, rior did 1 igree to pay interest on this account. L did not pay interest on commission. By Mr Spence: I claim that I was instrumental in getting the Tarata sale urongh. It is untrue I ever approach.

I plaintiff as an agent. I asked him "Can't you do anything with the property?" I deny that I ever asked lim to sell this property. Plaintiff's statement that he had met witness M, my times on the railway station nd other places was true, but I deny 'laving asked him to sell the place. If Mr King had sworn to the statement "hat I had asked him, he was misaken. I believe it was on May 27th, 1913, that the conversation regarding commission took place. I never saw )laintiff since T received the account. T knew tiiere was some mistake anout die £SO. T did not see the account. The case was adjourned till next "onrt day.