CLAIMS FOR COMMISSION

Taranaki Daily News, Volume LIV, Issue 61, 2 September 1911, Page 6

CLAIMS FOR COMMISSION

.U'DGMEXT An A INST THE PETROLEUM COMPANY. In the Magistrate's Court yesterdaymorning, Mr. 11. S. Fitzherbert, S.M., ' delivered his reserved judgment in the I cases brought by two sharebrokcrs in j New Plymouth against the Taranaki Petroleum Company. The first case dealt with was that in which Walter Bewley sued the company for £57 las for commission on shares applied for, or, in the alternative, for damages for breach of agreement. His Worship said there was no dispute about the facts in this'case, and the only questions to be decided were questions of law. raised by Mr. Quilliam for the defence. Mr. Quilliam's contentions were —(1) that there was no proof of any contract; (2) that there was no proof of any acceptance of a contract; (3) that the offer, if any, was made only to the Stock Exchange as a whole, and not to any individual members of it; and (-)) tliat the company was not liable for commission until tlie shares were actually allotted. A number of authorities had been quoted on both sides. He (his Worship) had gone carefully through them, and had come to tlie conclusion that the case of Carlill v. the Carbolic SmokeBall Company, as' heard in the Queen's Bench division of the English Appeal Court, was on all fours with this case, and answered all Mr. Quilliam's objections except the fourth. This case had been cited by Mr. Quilliam himself, as he wished to make reference to certain remarks by Lord Justice Bowen, but looking at the case as a whole, it seemed to be on all fours with this. His Worship then read the following letter from the Taranaki Petroleum Company, on which the transactions had been based: "New Plymouth August 26, 1910.-—The secretary, Taranaki Stock Exchange, New Plymouth. Dear sir, —I am instructed to inform you that my directors have decided to offer tha balance of the recently created preference shares to the public. Applications will be received from members of your Exchange on the following terms: (1) All application monies to be remitted to the company in full, free of charge; (2) the company will pay to the broker forwarding applications a commission of 5 per cent, on the nominal value of the shares as allotted by the directors; (3) applications with cash to be remitted daily to the company; (4) the company will not bo responsible for any advertising expenses incurred by the brokers. (Signed) P. A. Dobell, secretary." This, continued his Worship, was an open offer to any members of the Exchange, either jointly or severally, to pay 5 per cent, commission on applications for shares. In the case of Carlill v. (lie Carbolic Smoke-Ball Company, Ltd., the offer had not been made by letter, but by an advertisement in the |ires<. In many respects that case was even a, weaker one than that before him. There the defendants had advertised that they would pay a reward of CIOO to any person who was suffering from influenza, and who purchased a' smoke-ball, used it under the conditions set forth by defendants', and failed to obtain relief, The court

held that the purchase of a smoke-ball and the compliance with the conditions constituted a contract. In the present case au offer hiul been made to the ; members of the Stock Exchange, and directly any of them performed the i conditions a contract was completed. In a case he had dealt with recently 'he had pointed out that there were two kinds of offers, those which required formal acceptance and those which did not. In these cases there was no necessity for each gentleman to write to the Taranaki Petroleum Company, saying, "Yea. we'll undertake to get shares." Acceptance need not precede performance of. a contract. In | these cases, directly the conditions were complied with and applications sent in there was an acceptance of the offer. The offer had never been revoked. An offer by the one party, and acceptance by the other in this way, was a sufficiently binding contract. With regard to the first three objections raised bj Mr. .Quilliarn, he thought the company must fail. In the lost point raised, that the company was not liable until the sharer were actually allotted, defendant relied on a passage in their letter of August 26, viz.: "On the nominal value of the shares as allotted by the directors'," In .answer to this, Mr. Hutchen had argued that a person could not take advantage of his own wrong. That was so. If an offer were made and the conditions complied with, and then a person, without revoking the offer, said, "I cannot carry out my contract now," he would be liable for damages or commission. The defendant company should oither have published an advertisement or sent a notice to the secretary of the Stock Exchange that no further applications would be received. They failed to do so, and the offer was still open when Mr. Bewley sent in his applications. Directly he sent in those applications the contract was completed, and the defendants became liable, for the offer was still open. Therefore Mr. Bewley was entitled to judgment for £53, being the amount of his claim, less £4 15s, for which a receipt had been produced. The costs amounted to £7 Is. In the case of L. M. M Monteath, versus the same defendants, a claim of a similar nature for £25, his Worship said the previous remarks applied. Mr. Quilliarn had urged that the case wag not exactly on all fours with the other, because when plaintiff sent in his application for shares there was some question whether more shares would be allotted. However, there was no proof that plaintiff knew of this or that he had received any revocation of the offer. He was therefore entitled to judgment for £25 and costs £4 16s.