SUPREME COURT.

Temuka Leader, Issue 1847, 31 January 1889, Page 4

SUPREME COURT.

Timarxt— January 29,1889. [Before His Honcr Judge Ward, and a special jury of four—Messrs W. Grant (foreman), H. T. Fendall, M. B. Brown, and E. Clissold.] Edward Pilbrow v. John Hnyhurst— Claim £453 Os 2d. Mr T. W. Stringer for plaintiff, and Sir R. Stout, «ith him Mr C. Perry, for defendant. This cane was commenced on December 13th, and adjourned on that day owing to the illness of His Honor, after the plaintiff had been partly examined. The claim was for a balance due to plaintiff for commission at 5 per cent, on work done as ■toward of defendant's estate, near Temnka, from March, 1884, to October, 1887. The was for a tofnl commission of £1175 17s dd, lees £722 17s 6d received, leaving the balance claimed. His Honor read to the jury the evidence given by phin'iffon the previous occasion, and tharlaintiff then continued hisevidence. Plaintiff stated that the total amount on which he charged commission was £23,537, including £1444, amount oh accounts sent out by him but not paid at the time of his dismissal. Mr Stringer put in letters received by plaintiff from Mr Hayhurst, jonr., while the latter was absent from Temuka to ahow the extent of plaintiff's authority. Cross-examined by Sir Robert Stout: There was bo agreement that he should hare 6 per cent. Mr Hayhurst avoided making any agreement. Had never made a charge of 5 per cent, before his servicos

were dispensed with, nor until be rendered his account in October, 1887. (Lettfrs of plaintiff written m September, subsequent to the notice of dismissal, were put in to show that no mention of " 5 per, cent. " was made in them.) He had not drawn anything for many months at Mr Hayhnrst's request, and the letters put in were of th 9 nature of requests in general terms for a settlement. Mr Hayhurst had kept him in abject poverty for months. The demand for 5 per cent, was first made in a letter of 3rd October. Did not make a claim nor ask for money during the month through which the notice ran. Had gone so long (three years) without (settlement, he thought he conld go another month. One reason why he did not send in an account at once on the termination the notice was that he was waiting to get the benefit of the accounts sent out, as he had a right to. Mr Hayhurst had always put off making any definite arrangement about his remuneration, whetherit was to be a yearly salary or commiftsion. (Books ef estate put in to show the amount of work they required.) Did a little other work than Mr Hayhurst's ; had always bad a seed agency. When at work under Mr Hayhurst, sen., under his first engagement was paid 5 per cent, on the rents collected, say, £2OOO a year. The rent-roll would now be about £SOOO. He now claimsd 5 per cent, on all moneys banked in the course of his employment, not moneys collected by himself only. He claimed on all moneys passed through his books. If they gave him an accommodation bill to enable him to pay his debts he would not charge commission on that. (Sir Robert Stout: Bat you have done it.) If a sum of money wore transferred from one branch of a bank to another branch would not charge conlmission on that operation. His Honor : That is a supposition case, of course f Sir Robert Stout: Not at all, as we shall see when we get to the account itself. Cross-examination continued: fjlf Mr Hayhurst, junr., received money for pro-

duce from his own farm would charge commission on thtt, as lie kepi ihe books 5 of the farm. It gave him a good deal more labor, as a rule, if Mr Hayhurst collected money himself. His Honor said this put a now face on the oase. If there was no agreement, plaintiff could only charge for work actually done. Sir Robert Stout said they did not dispute plaintiff's claim for commission on rents col'ected, but he claimed oa over £12,000 he did not collect at all; and even if he was entitled to 5 per cent, on what he did collect he had been overpaid. Mr Stringer said supposing he had sent sent out accounts for rant, and done ill the work, and Mr Hayhurst had simply received the money, would Mr Pilbrcw not be entitled to commission 1 H's Honor said that did not appear to be the cast at all. Mr Stringer said it was in mauy cases.

Plaiotiff continued : If be had once or twice charged twice foi the s:uno sum it was in error. He had pres?od for an audit of the books to rectify any errors, whicb was not granted. He claimed a right to charge commission on a!) moneys passing through the books. Whether he got it or not, he ought, to get it. Mr Hayhurst discounted a promissory note for him for £3O; CouH not say whether ho charged 5 per cent, for the receipt ot the money when the bill came due. Did not believe ho had ever doDe such a thins:. (It wan elicited that plaintiff did charge that commission.) He owed Mr HaylniMt the mouey, and he charged commission on moneys collected from himself as a debtor —tenant or otherwise—as well as from other people. That was why ho charged it as tha collection of a debt. Had charged on an exchange of cheques for £3OO, also on £ISOO, proceeds of salt* of land. Could not say that he collected the moDey, or even saw it. Had conducted gome of the correspondence about the land. Claimed on £SOO odd obtained by Mr Hayhurst, junr., from his father and banked.

Hia Honor said he never heard of such a thiDg.

Sir R, Steufc snid if they allowed plaintiff 5 per cent, on every penny of rent that had been paid, whether he collected it or not, he had been overpaid. Mr Stringer admitted that ninny of the claims were absurd, and if be Irid known the details he would not have included them. Still he did not think it would be right to confine the commission to rents only. His client had a great deal of work in connection with the farm.

*Sir R. Stout said that had nothing to do with the pressnt defendant. His Honor said plaintiff was entitled to charge for work done, but he seemed to have calculated it in a most extraordinary way.

The lest item on the claim whs for commisdon on £941. ISj 6d, amount of various accounts owing and cot paid at the clone of his employment. His Honor said there was soroethißg to be said abou f tbe right to commission or. accounts actually sent out, but he> could not claim on debts owing in that way.

In reply to Sir Robert Stout, plaintiff said if lie had been instructed nat to collect rente from certaio tenants lie woti!d have charged 5 per cent., for collection all the same. Ho claimed the right to charge 5 per cent, on £124 183, account Bales of stock sold by K. F. Gray, and other similar items.

Counsel was proceeding to examine him minutely on each entry, when the Court thought it unnecessary. Re-examined, the plaintiff said that his duties occupied all his time, necessitated the keeping of a horse, and when Mr Hayhurst was away he had the whole of the active management of the estate. This closed the plaintiff's case. Sir Robert Stout stated the case for the defendant. He characterised the charges made as ridiculous. Plaintiff had done nothing but what would take an ordinary man half-an-hour a day ; ha had, in fact, merely done the letter-writing and bookkeeping. His client whs quite wiUing to pay what was a fair thing, and it was for the jury to say what this amount (if any) was. He called

J. T. M. Hayhurst, son of the defendant, who fluid he was nine weeks away from the colony, and except for this period Mr Pilbrow had nothing to do with the tenants. Witness managed the whole estate. Ley's farm was his, and he sold the produce of it; Mr Pilbrow had nothing to do with it, and he had no right to charge 5 per cent, on the sale of that produce. The man he had now kept all the farm, mill, and other books for £2 10a per week. There Ind been no arrangement made with Mr Pilbrow, nor had he made any proposal to witness, Did not require all Mr Pilbrow's time. Produced copy of statement of accounts amounting to £20,000, Bhowing how they wero made up, and detailing items for rent, dividend warrants, account sales, sales of wool and produce, etc., all of which wero sent direct to witness, and which he only was engaged with. Mr Pilbrow had had nothing whatever to do with them, and yet on them be had charged 5 per cent, commission for collection. There were only two items, one of rent and the other for sale of some mangolds, on which Mr Pilbrow would charge. Witness had not asked him to send out the accounts for rents in September. To Mr Stringer : Mr Pilbrow only kept the books at other times, but had sole charge while he wsb away for nine weeks. Witness did all the active mauagement himself, and Mr Pilbrow had nothing to do with the Leys farm. Was not prepared to give Pilbrow £3OO a year, nor had he thought of making a proposal to him. Nothing had been said about a fixed Balary—such a statement was a pure invention.

James Granger, called as an expert in book-keeping, said £25 per annum would be a fair charge to keep fi sot of books such as those produced. Two and a-half per cent, would be a fair commission for rents that totalled between two and three thousand a year. He would not keep n ' man to work such a set of hooka; he would not know how to fill in his time. He considered £IOO fur too much to give a man for the work.

To Mr Stringer: Knew Mr Pilbrow as qualfied farmer, and did not think £3OO a year too much if a man had to keep books and have the general maßagemoot of an estate.

W. M. Sims said that commission for rents was 2| per cent., and for koeping a full set of books £4O per year. J. McKeown, sarldler, said he paid 2\ per cent, for collection of rent. Counsel then adfdresaftd the Court, and His Honor having briefly directed the jury, they retired, returning in about 15 minutes with a verdict for defendant.

Costs as per scale were allowed. The Court then adjourned until the following morning. [The above account is abridged from the Herald.]