A CLAIM FOR COMMISSION.

Wairarapa Daily Times, Volume XVI, Issue 5188, 22 November 1895, Page 3

A CLAIM FOR COMMISSION.

DALRYMPLE v. GILL.

In tho Mnstorton S.M. Court yesterday, before Mr T. Hutchison S.M,, G. S. W. Dalrymple, commission ngeut, of Mnsterton, sued Patrick Gill, lato of Mnstorton, and now resident at Napier, for the sum of £6 '■. being amount of a promissory note given by defendant to phiintilf as commission on tho sale of a property.

Mr C, A, Pownnll appeared for plaintiff and Mr A. R, Bunny for defendant.

G. S. W. Dalrymple, on oath said ho was suing defendant for £6 being amount of a- dishonoured promissory note. Had applied for payment through a friend in Napier and had received the letter read in Court.

By Mr Bunny: Tho commission (i£6) was to be paid on sale of a property belonging to Mr Gill, to Mrs C. S. Walker. Could not say that he lind told Mr Gill that he had a casli purchaser for tho property, The sale was concluded in Mr Gill's presence in February. Did not think Mrs Walker paid any cash, but promissory notes were accepted. The agreement was concluded in Mr Gawith's office. Did not know that Mr Gill had not received ut penny of the purchase money. Knew that Mrs Walker might not be ablo to meet her first payment, and on that account had agreed to renew the p.ii. from Mr Gill for the same period ns he renewed to Mrs Walker. Ho certainly pressed JlrS. Walkerto buy the property. Ho always pres ed people to buy. Mrs Walker told Mr Gill that she had no means, but he took her bills.

.Mr Gill: " And you took mine." Mr Dalrymple: " 1 did." Witness continuing, said he had earned his money as soon as Mrs Walker signed the document. Took a bill from Mr Gill to convenience him and to give him the same credit he was giving Mrs Walker. Was not a party to any arrangement that he should receive no commission unless Mrs C. S, Walker paid. For all he knew Mr Gill might suo Mrs Walker to-morrow and get his money, lie knew nothing about whether Mr Gill had received payment or not.

Patrick Gill, defendant, gave evidence that he agreed to give commission on the sale of the property, if Mr Ualrymple sold it. He wrote to Mr Ualrymple in answer to a letter from him stating that be would be in Masterton shortly. When he arrived in Mnsterton Mr Dalrymplc took him to Mrs C, S. Walker and she told him that she had no money. Mr Dalrymple suggested that the difficulty could be overcome by taking bills to which witness consented. Mr Dalrymple agreed to take commission only if the bills were met, and on the meeting of the first bill Mr Dalrymple's commission was to be paid. The first bill was never met. This was in June of last year, and he was in Napier at the time Mrs Walker never applied for a renewal, but applied for the bills back. He returned the bills through his solicitor. Mrs Walker was a tenant of bis, He returned the bills because if he held them he could not claim rent. The bills wero returned at Mrs Walker's wish, and she then continued to pay rent, Mr Dalrymple first applied for the payment of his bill in October last. He was surprised because Mr Dalrymple was aware that the commission was not to be paid if a sale was not effected. The sale depended on the first bill being met. By the S.M.: My bill was not to leave Mr Gawith's office. I did not demand it back because I thought Mr Dalrymple had no claim. As soon as 1 saw it was in circulation, four months after the bill was due, f applied for its return. Mr Dalrymple undertook not to negotiate the bill. Witness was not aware that Mr Gawith, as his solicitor, had no power to withhold the bill. liy Mr Pownall; It was understood that if Mrs Walker could not [ meet the bills she was to become a tenant at eleven shillings per week. In the terms of the agreement he agreed to renew the first bill. Never bad notice from Mrs Walker that sho required a renewal. C. F. Gawith gave evidence that lie drew up tlio agreement put in and also witnessed its signing, Mrs Walker said, at tho lime of signing, that she could not complete tho contract. Mrs Walker's bills were dishonored.

To Mr Pownall; The first bill was dishonored and returned without waiting for the maturing of the second, Mr Dalrymple took no part in drawing the agreement, but it was (Irann on inslrpotions contained in a paper drawn by Mr Dalrymple. The Court then adjourned till 3 p.m.

On resuming, after lengthy argument, His Worship in giving judgment said that if the promissory note in question was given on the condition, as tho defence wished to show, that it was not to be met unless the first bill given by Mrs Walker was met it could only be put aside on documentary evidence to that effect. As the law stood it was not possible to invalidate a promissory note, tin? less by such documentary evidence, In this case there was no such evidence. His Worship quoted sovoral rases in support of his ruling, finally giving judgment for plaintiff with costs £1 16s. Notice of application for leavo to appeal was given,