LAND AGENTS' CLAIM.

Taranaki Daily News, Volume LVII, Issue 308, 7 June 1915, Page 6

LAND AGENTS' CLAIM.

A T-ARANAKI CASE. AN APPEAL DISMISSED.

Judgment has been given by Mr. Justice Edwards in tlie ease Bellingham and 'Son v. William Illy, 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, iu an action in which the appellants, a lirm of land agents at Eltham, were plaintiffs and the respondent, a fanner in the district, was defendant. The claim was for &VA7 10s, as commission on the 6um of £SIOO, in connection with the exchange of a farm property of the respondent for certain properties belonging to Charles Edwin Major. The contract upon which the appellants relied was contained in a letter from Blv to appellants authorising them to sell tie property and promising a commission at the rate of 2% 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 the construction of the contract. This is & special contract to pay commision "in the event of a sale or exchange being effected" by tile appellants or "through their intermediary," or upon their "introducing a bona fide purchaser." No sale or exchange had been effected either by the appellants or through their instrumentality. Nor 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 person 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 pronerty 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 to perfornj it by Teason of the encumbrances upon his own property. It is clear, therefore, that the case does not come within the rule in Latter v. Parsons, and if it does not 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 be 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 several events—(l) In the event of a sale being effected &y them or through their instrumentality; (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 my 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 carried into effect, not merely a contract for a sale or exchange. That certainly is the grammatical meaning of the words. lam 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 unecessary if the words "a sale effected" 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 right 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 £ISOO, 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 ri)»ht to commission upon those encumbrances. This would reduce the appellants' claim from £127 lfls to The appeal is dismissed, with costs £l2 12s.

■Mr. A. H. Johnstone appeared for bellingham and Son and Mr. R. Spence for Bly.