S,M. COURT.

Taranaki Daily News, Volume XXXXV, Issue 161, 11 July 1903, Page 4

S,M. COURT.

FaIDAY, July 10tb-Before Mr. R, L. J ; Stanford, B.M. j COMMISSION AGENCY CASE. I E. J. Cart hew v. Constance Ada J Mu lera and another. Claim £62 10s, commission and services rendered in en tection with sale of properly in D. van-street. Mr F. Wilson (Koy and Wison) for pbintifl and Mr I. S. Wtrton (Weston and Weston) for defer dants. Iu this casr, which was heard at lti'gth on Monday, and judgment reserved, the S.M. gave judgment as fo'loxs:— Ibis case differs in some respects frrm what are usually known r.s "com-mii-ion .case*," since the question at issue is not whether cominitsion should be paid, til 1 ; to whom it shorld be piid, ' and incidentally whett er it thould be piid twice. The amount is not dis p ited, and there are none of the usual p lints of law involved. The question I hive to detiinr'ne is one of fact only, »id leaving out non-essentials, th tkc:s may be shortly stited as follows: —About April 22nd in this year, Mr Mullens beirg authorised to sell certait prrperty is Deven-street for tbe owner, Mrs Mullens, pieced the property ii (he hands of Mr E. Carthew, a com-' mifhioa agent, for sale for £2500. Mr Mullens cilled each day to inquire whether plaintiff had succeeded, and f JULd that he had no» sold. On Monday, April 27th, an interview took pi ce between plaintiff and Mr Mullens, and evidence of the moat contradictory civ racter id given ks to the convereatii.n that tsok place. The plaintiff sajs:—l saw Mr Mulleue, I said "I hive an offer for shopi. We then w.nt to my office. I to!d him £2300, and asked him if he would accept. He aaid another party was after it whom in was to Eee at Laing'*, another commission rgent, at 12 nooc. I said, " Am I to do nothing more until you pee your party; does that tie my hands if I get full pric." He said, " Sell it it you can get full price." This was between 10 and 11. He said he would call on me at 11.45. Mr Mullins' account of what took place is as follows: I went back to his (plaintiffs) office, Be said be had a buyer at £2300. I pointed cut that my price was £2500, and that X bad given an option to Watt and Laing until 12 noon. Carthew seemed to think that I had no right to put it under ofier, It ia clear that if Mr Mullens' account is correct, the property was withdrawn from sale by plaintiff until af ser 12 on that day.and placed in the hands of Watt and Laing instead; while if p'sintdfFs account is correct the property was not taken out of his hands, but that he was still commissioned to sell if he got £2500. It was an occasion when a misunderstanding was possible without imputing diree-. falsehood to either party, and I can only coma to tbe conclusion as to which was right in h'srecollection, by having regard to t heir subsequent actions and the incidental circumstances surrounding -the cas9. It appears that alter the above interview plaintiff went to Ward, who offered £2500, and paid a deposit c f £SO. The plaintiff then proceeded to Watt and Lung's office at 11 50, where he found Mr Mullens and several others, and aftar some little delay announced to Mr Mullens 'hat he bad sold the property for £2500. On hearing this announcement Mr Sole, a buyer through Lung, who wis in the offi:e agreed that he would give £2500, Mr Sole replying to plaintiffs announcement, " You can't; I have it till 12 o'clock," it being -then some 10 minutes to 12 o'clock. The parties appear at this time to have been angry and excited. Af cer th* scene in Lung's office Lung and Mullen* went to the office of Messrs Westonjaod Weston with Sole to get an agreement drawn, while plaintiff want to his office atd drew up a form of agreement htween Mrs Mullens, and hi 3 buy*r War 4, and then hurried Off to Mrs Mullens' private residence and got her to sign the agi eemen*, she baing the owner of the prop3rty. . There is again a divergence of testimony between plaintiffs ani defendant's account of what took pi nee at Mrs Mullens' residence. Plaintiff says: "I went to Mrs Mullen3 to get her to aign the ogreemant (with Ward), and she signed, I told her I had told Mr Mullens the property was 601 d." Dafendant says: Ha (phinHff) told me he had bsen cflWed £2500. I asked him if Mr Mullens had sent him to me and he said, "Yes; he told me to s=ll if I could got his pric?, £2500." I have com) to the conclusion on the above facts that Mr Mullens' account of what took place at the interview on the morning of April 27th is the correct one, and that he did then inform plaintiff that bo had put his property in Lair.g's hands for sale until 12 noon that d3y. Mr Sole, a buyer, had the property till 12 noon ; of that there is no doubt, and he informed Ward (plaintiffs buyer) of that fact, and a Mr Callagh<m had also informed Ward before his (Ward's) interview with plaintiff I think phintiff knew perfectly well that the property was not in his hands for sale until after 12 o'clock, ar.d it v?-<; this knowledge that brought Lim to Lting's office at 11.50, eo as, if possible, to prevent Mr Mullens closing with a buyer during the last few minutes of the allot'.el time. Plaintiffs conduct in going past Mr Mullens to Mvs Mullens corroborates this view of this case. He had not dealt with Mrs Mullens at all before, why did he go to hor then unless he thought Mr Mulluns had taken the proparty out of his hands duriag the morniDg of April 27th, and thought too tint by going past cue agent to >. he principal he might frus'-rate the agent's action That he alhwod Mrn Mudeos to understand that Mr Mullens had sent him I havo no doubt, though Lere again J think pijiutiff may have unintentionally con vyed a wrong' impression tj her mi'.d. While deciding that judgment must ba for dtfe'dant, I think it i isjhs to s»y tb,-.t I do not think plaintiff by his conduct deserved the moval obi.q'iy wlri"h was sought to be thiviwn ou utn. Judgment for defendant. Mr F. Wi ! son (Ruy and Wilson) for the plaintiff ve notice of appeal, and His Worauiri died :ho amount of security. trtAU- fo'-iift. 1 h ju'l:':-' erjt,

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