A CASE OF COMMISSION

Taranaki Daily News, Volume LIII, Issue 239, 15 February 1911, Page 3

A CASE OF COMMISSION

SALE OK WELL-KNOWN WINE AND SI'IKIT HU ( SINESS.

A CI.AO! AND <>I'NTEK-CLAIM,

A case arising out of the sale of the wine anil spirit business of Mr. William Humphries (now Hawkins and Smith) engaged the attention of Mr. I'itzlieibert, S.M., at the Magistrate's Court yesterday morning. The parties to the aetion were Mr. Humphries and Mr. F. M. Mills, commission agent. Mr. Grey (Wilson and Grey) appeared for Mr. Mills and Mr. K. E. Wilson for Mr. Humphries. Mr. Humphries claimed £SO, being amount of deposit oh the sale of the business; the counter-claim was for the same amount, being commission on the sale.

The facts were disclosed in evidence as follows: Francis Montague Mills, defendant, | farmer and commission agent, Tatara- | maika, said lie first spoko to Mr. Humphries about the sale of the wine and spirit business on February 2, when he also mentioned . the sale of the farm (which had been, spoken of before), getting particulars us to price, etc. .Mr. Humphries stated the price of the goodwill of the business would be £-»50. Witness said the commission on £230 would not be much, and Mr. Humphries replied that the commission on the stock would mount up, and if he got £3OO he would give him £SO commission. Witness then found Mr. Hawkins as a purchaser, and had an agreement drawn up. Mr. Humphries signed the agreement (produced), . the whole business being done in a day. Mr. Humphries then withdrew the sale of the farm, as he was satisfied with the deal over the wine and spirit business. The agreement was carried out and Mr. Hawkins went into the business.

To Mr. Wilson: I replied to your letter demanding a statement through Mr. Grey. Mr. Humphries asked if I could help him out of the farm, and I drove out to the tarm and got particulars. I was going to Wellington the day after I was spoken to by Mr. Humphries, and T thought l could sell the farm while there. Ten days before the sale Mr. J. •Smith a-ked me to find out what Mr. Humphries wanted for the business. Mr. Smith said anything up to ,£4OO would be all right for the business. At that time Mr. Smith was in business in the Imperial Hotel. 1 put the matter before Mr. Smith and then went to Mr. Hawkins.

To Mr. Grey: The cheque paid by way of deposit was Mr. Hawkins' own cheque. To His Worship: I showed Mr. Humphries the cheque when he signed the agreement. Mr. Wilson said -on Mr. Mills' own evidence he could not succeed. An agont was bound to do the best for his principal. He contended that as agent for Mr. Smith he must be treated as for Mr. Hawkins. Mr. Mills was bound to make a full disclosure to Mr. Humphries when he approached him for the sale of the property, and this he had not done. A case. Barr, Lenry and Co. v. Hall, decided by the Chief Justice, was on all fours with the facts of the present case, and it was held that in the absence of complete disclosure by the agent to the vendor, the commission could not be recovered. Knowing that £4OO could be got for the business, Mr. Mills had not done his duty in obtaining only £390. Mr. Grey replied to the nonsuit point. He pointed out tuat Mr. Smith was licensee of the Imperial Hotel at the time and was not in partner-hip with Mr. Hawkins. The fact that Mr. Smitii told Mr. Mills £4OO would be al! right and that Mr. Hawkins bought at £3OO had nothing to do with the partnership subsequently entered into. William 'Humphries, who described himself as "nothing, only a cripple/' said there was no conversation about the farm on the day .Mr. Mills and lie met, but it was all about the business. Witness wanted £250 net for the goodwill, and stock, office furniture, etc., at valuation. He said lie could not afford to pay any commission. Mr. Mills .said that he had a probable purchaser and thought he could get £BOO, and witness replied that he could do the best he could. On the railway station Mr Mills said he had sold'the business* to Air. Hawkins, had a cheque for £SO deposit, and had an' agreement drawn up by Wilson and Grey. Unfortunately witness said, he signed the agreement without reading it, as he knew the parties and considered it would be all right. He went straight to the Imperial Hotel and met Mr. Hawkins, who signed the agreement, Mr. Smith heing present, at the time The papers were left with Mi Mills, who promised to give them to W ikon and Oov.

To. Mr Grey: Mr. A. E. Watkins was appointed valuer, and the amount of the stock was appraised at £]o!l.'i. Witness "•as. .€7O short of what he should have lcceived, but he admitted that they hail treated )„m very fairly. Witness initialled the alterations ,in the agreement. 1 ■ c

ro Hi* Worship: lie W a.s prepared lo pay the "sua! coniini>sion {;> per cent '» first an, and 2</ 2 per cent, on t'jm i'T? ''°" ld "'' l 0,11 «>• 1-100.. but he never „greed to pny ~nv commission whatever ' '

Tn giving judgment, Mis Worship said in had no doubt from the evidence of if. plamfn iiik[ defendant that decndant was | f -..mmission on £■>:,{) bv wnv nV 0t lhe Pxtra "'as 1,;. °f wwiimwKinn. Judgment would i„r plainer fur £SO and for It r!??'" 0 "" 1 <1!1 U '° ( '°»ntcr-claiin P ] a "t'ir „ pay £4 as, ( . osts of tak evidence m Wellington. °