SALE OF A PROPERTY.

Gisborne Times, Volume XXVII, Issue 2561, 23 July 1909, Page 3

SALE OF A PROPERTY.

AGENT’S COMMISSION DISPUTE

At the. Magistrate’s Court, yesterday morning, a case of interest to land and estate agents and property holders was heard, when J. Peckover and Co. and John Peckover (Mr. L. T. Burnard) proceeded against Allen Taylor (Mr. F. W. Nolan) to recove.r the sum of £8 15s,' commission aneged to be due to the plaintiffs On the sale of a property belonging to the. defendant. Joseph Peckover said that defendant gave him a property in Berry Street to sell, on May sth, asking the sum of £l6O. He (witness) added the £lO for commission, and defendant signed an agreement (produced) placing the property in his hands solely. In March •he took Mr. Anderson to / see the proproperty. and Anderson> said that before purchasing he wanted to consult his father-in-law, Mr. Joseph Gough, who Avas in Sydney. Later he again saw Anderson (about March 17) and learned from him that Mr. Gough had bought the house. He (witness) then demanded payment of commission from the defendant, -but lifid not been paid. To Air. Nolan: He thought defendant read the agreement before he signed it, and he (witness) explained the terms of it before defendant signed it. He did not specially point out to defendant the clause in! the agreement stating that commission would be due to him (Avitness),. no matter Avho eeld the property. There Avas no mention made of the house having been sold through a Air. Jack Thompson. No conversation whatever took place regarding the sale of the property, and lie had made no personal demand on the defendant for the sum he Avas claiming for commission.

.Ruth Louisa Lee, clerk employed by the stated that on May 6th Anderson, a. tenant of plaintiff, telephoned to. the office, and asked for particulars of the properties advertised for sale at £175. She. supplied particulars and direction as to the situation. Later on in the day defendant called at the office and asked if a purchaser had" been found- for the property. Shfe replied in the negative, but told defendant about Anderson’s inquiry. Defendant then said he liad a cash buyer, and wished to Avithdraw the property from plaintiff’s hands for sale. She drew defendant’s attention to the agreement placing the pi-operty in plaintiff’s hands for three months. A letter Avas afterwards received giving notice of Avithdrawal in 14 days. * To Air., Nolan: She was not certain that she mentioned Anderson’s name to the defendant as a possible purchaser.

This closed the evidence for the plaintiff. Allen Taylor, the defendant, -gave evidence as- to putting the property in plaintiff’s hands for sale. He gaA-e particulars to plaintiff Avho filled out an agreement. Plaintiff read over the agreement, but never mentioned, the clause stating that Avhoever sold the property he (plaintiff) was to receive commission. He thought that the plaintiff had onK read oA'er part of the agreement to him, and he himself could not read it, as he had not got his glasses. Subsequently Air. J. Thompson offered to purchase the property, and he, witness, on account of this, Avent to plaintiff’s office to withdraw the property from his hands. Plaintiff’s clerk said he would have to pay commission at any rate, and he next received a demand from plaintiff’s solicitors for the money to be paid within 48 hours. He sold the property to Air. Thompson Avho said he kneAV nothing of plaintiff in the matter. To Air. Barnard: He had sold and purchased property prior to the transaction. Thompson never told him he had sold the property to Gough, and he (Avitness) had signed the transfer of the property to Gough. Frederick George Staff, solicitor’s clerk, stated that on A 1 av 7th. a letter was brought to him from Taylor. Air. Thompson gave him instructions regarding tho transfer, Avliicli Avas prepared in the name of a man named Gough, under Thompson’s instructions. He received a deposit of £lO from Thompson. John Thompson, blacksmith, gave evidence as to the purchase of the property in question from defendant, Avho told him that lie Avanted £175 for it. He then offered defendant £165 cash, Avhich offer was accepted the next day. He'AA'ent later on to Nolan and S'keet’s office and paid a deposit. He had the preparation of the transfer delayed as he Avas thinking of disposing of the property again. He eventually sold the place to Air. Gough, Air. Anderson’s father-in-kiAv, and ho had the'transfer made out in favor of Gough. He (Avitness) paid the Avhol'e of the purchase money, and knew no agents in the matter of the purchase, Avhatever. To Air. Burnard: He did not know that Anderson Avas looking for a place for Gough. He re-sold the property to G oll gh at the same price he gave for it, because Gough had done, some ,gun-” smithing work, for-him amounting to about £1 ,or less.

The evidence having been completed, both counsel addressed the Court at length. Mr. Nolan. dealt with the question of the clause in the agreement referring to the fact ’ that plaintiff was entitled to commission whoever might sell the property, characterising such a clause as most unreasonable, and throwing a great-responsibility on the plaintiff to specially draw the attention of tlie defendant to such a clause. He quoted authorities in support of his contentions.. Mr. Burnard dwelt on the difficulty experienced by agents in obtaining their legitimate commission, and claimed that in many cases both -purchaser and vendor would conspire together to defraud agents of what was rightly theirs.' Counsel relied chiefly on the terms of the signed contract, and claimed that the clause referred to by Mr. Nolan was a perfectly reasonable one. Plaintiff had been appointed sole agent, and was undoubtedly entitled to the commission. ,His Worship intimated his desire to consult the authorities quoted by counsel, and reserved judgment accordingly.