A DISPUTED COMMISSION.

Wairarapa Daily Times, Volume XV, Issue 4748, 15 June 1894, Page 2

A DISPUTED COMMISSION.

Court yes- ,/-"*| jto Mi T ,ftM 3 Waddingin fol comdefendant's !i printing plautbOnd business, was Z , sontinued afterSifwat to press *", 1 The plaintiff continuing (cross- £ J , ixaminod-by Mr Beard) said do- s*\ 'ondnnt did not tell, "witness that ' ** lie was in comtnunicaiioh i\ itliMessi-s 1% ' Gillespie and Co. for-the salo of his $ business. HedidnotleadHoinblow " < to believe. that;,Ho (witness) was interested in the company Miluries, ' [ jf Wellington, who mado tho valua- -. < tionof tho defendant's stock, did so at the request of Gillespio Hegayo < advice to .Gillespie aftei tho-deposit •* i had, been made and tho ugrcoment \ signed. Between tlie conclusion of »* tlio negociations and the signing of TO tho agreement, there wero somo complaints of delay. Tho amount of v > the purchase money- was pud in ' cheques and bills. It had beon suggested by Gillespie that ho (*J]t™fr i should join ' not fool "\ ingtrade. Hebadstill Hoinblow's houso in his hands to sell, and tlieio was no arrangement between them as to the commission) Ho had attempted to gptHoniMow's services for Gillespie and Co., but had no\ei given Hornblow, to understand tliat lie was connected with the company Re-examined by Mr Pownall Ho told-Mr Gawith in Houiblow's piasence that he had sold the piopeity ( to Gillespio and Co.. Hoinblow did not make any'denial to that statement. Ho 'did. not say "Iluuo bought the business foi Gillespio and Co." Beyond going seuuity for the bills of Gillespie, ho had lent money to the lattei mil) as debtor and creditor.; : By tho Bench: Helmd no sccmity by document for tho "amount lent over and abovo tho billß. Ho was getting 8 per cent interest on this amount. By Mr Beard: Ho was not l ecctYing any interest, on the amount of the bills. There was a veibal agree ment, between witness and Mr Gillespio for paying ranrmssion "on endorsing the Ms.'Hf tlio bills were met by Gillespio himself, witness would still expect somo re- [ numeration. Gillespie and Co had \ no interest in the amount of claim in tho present case. Charles Frederick Gaw ltli deposed j that tho plaintiff and tho defendant

:nmo to him inMay., Mr Wadding-. ... J ton said ho had sold Mr Horntows ■ / :j! business to Gillespie and Co. After 3 taking instructions from Mr Wad- '•-% ilington, lio wrote the agreement out, . • Iho agreement stated that the plaintiff should endorse the bills, Mr '7 Waddiugton did not seek witness's advice as to liis position with'-refer-; enco to the bills. The reason of' delay in the purchase was. ,liO believed, duo. to some difficulty'in tho valuation. Mr Waddington while in liis (witness's) office, asked for a bill for his commission from do-' fendant. The lattersccmed surprised ■ ■!' and said that ho did hot'think' that Mr Waddington was to get commission. After some disputing, tho two went away, The agreement'was •.' made out in tho name of Thomas Gillespie, trading as Gillespio and .' Co, Did notnojAinnv am-m-jAr tho part said, that WT)j e and Co had., bought the ■- -iX.; Thomas Gillespie deposed that bo was a printer residing in Mnstevton. He had purchased tho business of tho defendant for which he gave in all £258 8b 6d. Ho had had a pre-. i Yious offer which tho plaintiff had communicated to him. He did not employ Mr Waddington to buy 'Mr Hornblow's business,.;. agreement was concluded ho'dealt directly with the defendant? (Oil ono'occasion Hornbldw said i it was a pity that he had who was the proposed/purchaser, Ha.it would have saved liim (defend-.. ant) the expense of an agent, and witness the delay/ He would swear ' to those words, At the time of tho ' purchase, plaintiff had no interest in tho business;. •.''■■'.'.'.;v.iv' ; :'^ By Mr Beai-d: To:the b'esfc;6'£ hia knowledge defendant did not: know.; who was purchasing the business be-;':' fore the agreomeht wtis produced. ' ' Plaintiff paid £lO on account of him (witness). The bills in connection witli tho business were endoi'sbi by , ..>■■■ Mi- Waddington, whom the company ; woro supposed to m on, tlio usual, couunission charge!'in such matters. Mr Waddington was not in any way identified as a. partner,, with, tho company. As security for tlio bills lie had shown plaintiff documents"" from friends. There were otliei-s ■ interested in the receipts and profits of iho'busiiicss, - ; ' ' : ; ■'■' • lie-examiued by Mr Pownall: Tho plaintiff is not one of thoso interested. Mr Beaul, for the defendant, stated that the plaintiff had on all occasionsgiven thedefendant to believe that ]ie was purchasing for his own benefit, or for the benefit of sonio people, of whom bo (plaintiff) was ono. Mr Board then proceeded to cite authorities showing that'anyone who was connected with, or share-' lioldor in, a company, which ho should, as agent, sell, was not in auy ■. way entitled to recoivo commission for such sale, A man, ho contended who gave himself out by misrepresentation to be connected with a company was equally incompctont.to' obtain commission, . He; then called tho. defondant. J|fe Bobert Edward llornDlow, tlio defendant,'deposed that Mi-Wad-dington, tho plaintiff, shortly after his return from .Auckhul informed witness that he haiPmet a friond in Auckland who was willing to. buy witness' business. Ho had refused i off( f s I'iwiously. The conversation . took place in the street, not in tlio plaintiff's office. Witness refused plaintiff's offer. Next day plaintiff , repeated his offer. Witness said that . he would consider the matter and ;g ivo plaintiff a decided answer, Two \ days afterwards ho wenttoplaintiff's office, and said ho would sell. Ho I would ask for goodwill and paper £l2o. Ho found that ho had overlooked £25, after plaintiff and ho separated, which was rant he received by sub-letting part of tho building in excess of his.own outlay. ' Ho sublet part of ' bis'' building.' Plaintiff informed him (witness) that tho business was to be taken on ,by. him (plaintiff) and his friend in . Auckland. Plaintiff, then asked if i witness could go to Mr. Gawith's" ; office to sign an agvgjjient. Witness demurred, ho would ' rather go to his own solicitor. PlainI tiff, howovei'i -explained ''that the ; : purchaser lias always the right of •going; to; wliat "solicitor' helikes. : He didnotknow wliO' tho puitjliosei'' I was to be'until after lio l/ad : been in, ;: t'v tho office off and''s£W tlio v§ ! iritt^#^laintiili|

uadiVrittonuii'der the ftilvico' of Mr" Holmes,' to' Mr' lnnek asking Mm to comb up from Wellington to value; tlio plant. Nothing further took place ; between witness and plaintiff on that day. On tho following Monday ho'saw plaintiff, arid complnincd about the dolay. He also complained about the 'valuation of the plant. ■ ' ■ * ■ByMi\PwniM He would swear that plaintiff him Mr Holmes wis one of tho company. On another occasion witness told plaintiff that as the company seemed to imagine that they would bo "had," he therefore offered £25 for tho company to cry off from the sale. There was no mention of commission either | oil this'occasion or on any other, mitil plaintiff mentioned it in Mr| Qawith's office. All-along plaintiff j had givon witness to understand tlinfc ho (plaintiff) was, one of the company. There had been mention' made of an offer tohim (witness) to remain on with Gillespie, Ho liml never, in conversation with Gillespie i admitted that he would have to pay agent's expenses, Until tho agree£ment Avas signed, plaintiff had given ■jjmjojiiiderstand that ho (plninfriend were Ho did srot say ho was a partner. Plaintiff onco remarked that it would mean 10s a week to plaintiff towards paying his clerk's wages. He did not mention tlint he had a share in the ' profits. Plnintiff bad followed him about trying to make a bargain with him. Ho would swear postivoly that ho had not spoken to Gillespie about the expense of an agent, He did not make any statements in the •course of tho proceeding which ho nftonvards had to admit were falsehoods. Ho did not make a statement toMrWnddington that he had a registered contract with the Bible Depot ■with reference to n special inset, While in Mr Gnwith's . ollice;nt the signing of: the agreement, he had been asked to go out ami get from Mr Dalrymple ut guarantee for a year's payment of rent for part of the buildings, which was sub-let by him, (plaintiff). He was .asked to get a copy of the document guaranteeing this payment. The document did not exist. After the •signing of the agreement he did not deal direcjk \y& Gillespie. He did not discuss terns with Gillespic,and Rpokeonly onco to the latter when Mr Waddiugton was absent.

By the Bench: He understood that Mr Waddiugton was going in with a friend in Auckland, lie always believed before the final settlement that plaintiff was a principal in the whole concern, He fancied that Mr Gawith took some notes down before he wrote out the agreement in his office. Could not swear that Mr Gawith did not begin to write ont tho agreement immediately without notes. Tho plaintiff' hadonco referred to the proposed purchasers us "we."

Mr Pownall stated he wished to recall Mr Gawith who could swear that part of the defendant's evidence was false.

■ The Bench decided that Mr Pow•nail was not entitled to recall his witnesses. Mr Pownall contended that although authorities had been cited in support of Mr Beard's argument thatno one, who was connected with, .or interested in, a company was entitled to commission for the purchase Mk -Salojiy l'in jto agent, of that com,p«BWßSifftss; nevertheless no authority had been quoted to show that the same law applied to anyone who merely represented himself/ 1 to be connected with such company, without being so. This was assuming tho plaintiff had given out that he was bo connected, and this he denied in evidence, • His Worship resorved his decision, The Court then adjourned,