LAND AGENTS' CLAIM.

Stratford Evening Post, Volume XXVII, Issue 31, 7 June 1915, Page 6

LAND AGENTS' CLAIM.

AN APPEAL DISMISSED. Judgment has been given by Mr Justice Edwards in the case Bellingham and Sou v. William Bly, heard at the February sessions of the New Plymouth Supreme Court. This was an appeal on the facts and the law from the decision of Mr G. W. Kenrick, S.M., at Eltham, in an action in which the appellants, a firm of land agents at Elt-ham, were plaintiffs and the respondent, a farmer in the district, was defendant. The claim was for Ll2/ J-Us, as commission on the jium of, £SIOO, in connection with the exchange of a farm property of tiie respondent for certain properties beTohging to Charles Edwin Major. The contract upon which the appellants relied Was contained in a letter from lily to appellants authorising them to sell.the property and promising a commission at the rate of 2i- per cent, if a sale or exchange was effected by the appellants or through their instrumentality.

After reviewing the evidence at length the judgment says the question turns upon tne construction ol the, contract. This is a special contract to pay commission “in .the event of a , sale or exchange being effected” by the appellants or “thronglx their intermecuary,” or upon their "introducing a bona hue purchaser.” No sale or exchange ha.d been effected either by the appellants or through their instrumentality. Aor had they introduced a person bona fide able and willing to complete “'an exchange of properties with the respondent. All that they had done was to procure a form of contract with the respondent to be signed ,by a jiersou who at that time was alike disqualified to become the transferee of the respondent's property and unable to carry into effect his contract to transfer his own property to the respondent. The judgment proceeds: The appellants’ claim is based upon their having procured a person to enter into a contract with the respondent, who was alike disqualified to. perform that contract by accepting a transfer for the respondent’s property, and incapable lo perform it by reason of the encumbrances uppu his own property. It is clear, therefore, that the case does not come within the rule in Latter v. Parsons, and if it does hot come within that rule the appellants .cannot succeed. I have so far dealt with the case apart from the special conditions of the appellants’ employment, but it may bb as well to . add that it seems to me that those also are fatal to the appellants’ claim. Under the terms of the authority given to the appellants by the respondent they were entitled to the stipulated remuneration in any one of the several events —(1) In the event of a sale being effected by them or through their instrumentaliay; (2) in the event of an exchange being effected by them or through their instrumentality ; (3) in the event of their introducing a bona fide purchaser. In ray Opinion a sale or exchange to be an effected sale or an effected exchange within the meaning of this authority must be a sale 'or exchange parried into effect, not merely a contract for a sale or exchange. That certainly is the grammatical meaning of the words. I am aware that in .several cases a contract for sale has been loosely referred to as a sale effected, but that loose meaning appears to be excluded in the present case by the provision which entitled the appellants to commission. If they introduced a bona fide purchaser. This is unnecessary if the words “a sale Tected” were held to cover a contract for sale. I doubt also whether, even in the loosest language, a contract for exchange of lands would be described by any person as an effected exchange. The judgment concludes: I think it l ight to add that even if the appellants’ claim for commission could be sustained it is quite clear that it must be limited to commission upon the sum of £IBOO, the value placed upon the interest of the respondent in the property to be exchanged by them, The respective properties were to be exchanged subject to the encumbrances thereon. The appellants could have no shadow of right to commission upon those en- ( cuinbrances. This would reduce the | appellants’ claim from £127 10s to ( £45. The appeal is dismissed/’ with costs £l2 12s. MV A. H. Johnstone appeared for , the appellants 'Bellingham and Son) | and Mr Robert Spence, with Mr G. J). ( .Wow instructed by Messrs Anderson, j Rutherford and Macalister) for the 1 respondent (WiJliam Ely). j