NEWTON KING v. J. J. HILLS

Stratford Evening Post, Volume XXV, Issue 66, 20 March 1915, Page 7

NEWTON KING v. J. J. HILLS

JUDGMENT FOR PLAINTIFF.

At the Magistrate's Court. Strat'forcl, yesterday, Mr W. G. Konriek, is.-VI., delivered his reserved decision jin the claim Newton King v. Jesse James Hills. 'Hie following; is His Worship’s summing up :—The plaintiff claims from the defendant the sum o! £75 15s for work done, services rendered, and moneys advanced as shown more particularly in the particulars attached to the claim. Plaintiff further claims £lB Os 8d for interest at the rate of U) per cent, to date of judgment, a total of £9.3 15s Bd. Plaintiff waives his claim for £1 os claimed, Ithus reducing the claim to £92 lOs Bd. Defendant admits the correctness of the other items of the particulars except items 2 and 9, which are now in dispute, the former a claim for £SO commission on sale o? a farm on behalf of defendant, and the latter is for interest, £lB Os Bd, on the account between the parties to date of hearing, and the parties have agreed that if the interest is payable it shall ho to the date of the adjourned hearing. The following facts are proved in my opinion :—fl) That defendant on or iboat August, 1912, instructed plaintiff to sell or exchange a farm owned by Wells and over which defendant had i mortgage. There were several additional mortgages held by others over the same property. 2, '1 lie evidence urther proves Wells had not paid any interest on any of the mortgages for ibont 18 months, and the property was not likely to realise sufficient to meet the defendant’s mortgages alone. It is proved plaintiff effected an exchange if Wells’ property with one Phillips •.he equities of their respective properip, s being considered equal, and there teing no equality of exchange payable. Wells and Phillips actually took possession of each other’s properties on he Kith September, 1912. When the terms of the exchange had been agreed on a written agreement ivas drawn, " but for some reason never signed. Defendant was joined in this agreement, is he undertook to arrange the mortgage. -1. In or about January, 1913, defendant wanted Wells to give him i further mortgage over the land he bad taken in,exchange, and Wells objected, hut finally agreed to give a further mortgage for £557. This was hi July, 1913. An agreement was Irsiwn up, made between Wells, Phillips and defendant, which contained the terms of the September, 1912, igreemeut slightly varied as to the unounts of mortgages defendant unlertook to arrange, and with an addiional clause in which Wells agrees to rive the said further motgage to the lefenclaut. For the defence it is conended plaintiff must he non-suited upon the ground that the exchange was not finally arranged until the agreement of July, 1913, was signed. Secondly, it is claimed plaintiff was •ot the agent of defendant. Ido not ffiink it is a case for non-suit. The terms of the exchange were arranged mil the possession of the properties riven in September, 1912< and if any commission was earned it was at that 'inie 'earned/ 'and .at that date the Land Agents’ Act was not in force, ■onsequently it is not necessary for •ilaintiff to prove the authority to exchange was in writing or to prove he holds a land agent’s license. The snb■rqnent agreement in writing in July, '913, certainly contained the terms of ■.he original agreement, which was never signed, but the exchange was then effected and possession given, the object of the July agreement, the eviJence shows, was to get Wells to agree 'o give defendant a further mortgage. There was no dispute between Wells md Phillips of the original terms of agreement nor by defendant except that subsequent to the exchange being effected he wanted Wells to give him , a further mortgage. Now, with regard to the question! of commission, it is proved for many years defendant had bad numerous transactions with plainiff and paid commission and interest on a running account between them. Defendant instructed plaintiff to sell or exchange Wells property. He acted as if he were owner and not mortgagee only. As Wells says, he did not oven know the terms defendant had arranged for the exchange. Ho considered he was out of it, and it was in the hands of defendant. Defendant was in a position to sell through the Begisfcrar, and it is clear therefore that the exchange was more to his advantage, otherwise he would not have sold that way. Defendant therefore received some benefit from the efforts of the [ilaintiff to bring about the exchange, but nothing was said about commission at the time of giving instructions to sell. Plaintiff says the amount was agreed on with defendant at £SO just before the July, 1913, agreement was signed. Phillips’ evidence supports tins statement. Wells remembers the question of commission being mentionjed by plaintiff at the same interview, jbut all he remembers is that plaintiff said : “You will have to pay commission,” to which defendant replied, “I don’t know about that.” But plaintiff and Phillips say defendant, after objecting, offered £SO. 1 think the weight of evidence is in favor of plaintiff that defendant' finally agreed to | pay £SO, and I find ho is liable to pay this sum. In regard to the interest claimed on the account between the parties. It is proved that interest has | been paid for years on this account, and it was not seriously contended that defendant is not liable. Plaintiff lis therefore entitled to recover the £lB Os 8d to the first day of hearing, and £1 5s interest to date of judgment as agreed by the parties. The judgment was for £93 15s Bd, with costs £lO 110 s lOd. Mr P, Thomson, who appeared on behalf of Mr Sellars, made application to fix the amount of security for costs on an appeal against the judgment on law and fact. His Worship fixed the amount at £2O. Mr B. Spence ('Spence and Stanford) received judgment on behalf of Mr Newton King,