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Decisions of the Superior Courts of New South Wales, 1788-1899

Brenand v Catteral [1835] NSWSupC 82

assumpsit - agency - Monaro - estate agency, commission

Supreme Court of New South Wales

Dowling J., 15 October 1835

Source: Sydney Herald, 19 October 1835[ 1]

Brenand v. Catteral. - This was an action of assumpsit, brought by the plaintiff as Commission agent or broker, to recover the sum of £100 for services performed as an agent for the defendant, a gentleman who had instructed him to dispose of his agricultural establishment in the interior, under which instructions he found a purchaser; but defendant having previously disposed of it himself to another party, refused to ratify the sale effected by the plaintiff, who had ever since been unable to obtain the remuneration for his professional services, to which he was entitled by virtue of his instructions.  The Solicitor-General on the part of the plaintiff, opened the case and stated, that the defendant was a gentleman settler at Menardo Plains, who had become so much disgusted with a bush life, that he determined to sell his property in the interior, and to that end invested the plaintiff in his capacity, as a broker, with the necessary instructions, desiring him not to communicate his name to the purchasers until the conclusion of the sale; at the same time handing plaintiff a list of the sheep, cattle, agricultural implements, fences, &c., the whole amounting to £3000; plaintiff thereupon put up bills, and adopted the necessary means for effecting a sale of the property; he was first in treaty with Mr. W. H. Moore, when a Mr. Hirst, a merchant of opulence in Sydney, was introduced to him as being on the look out for an establishment of that kind, and a bargain was finally concluded.  Mr. Hirst accordingly proceeded to the interior, for the purpose of inspecting and taking possession of the establishment on the ratification of the treaty, when he met with the defendant, to whom he communicated the object of his visit, but Mr. Catteral had previously disposed of it to a Mr. Elton, formerly an officer attached to the 4th Regiment, and had not communicated that to the plaintiff; Mr. Hirst, therefore, returned to Sydney as he went; the plaintiff had applied for his commission, but defendant refused to pay him as he had not effected the sale, and plaintiff, therefore, seeks his remedy at the hands of the Court.  The Solicitor-General said he was really at a loss to know what sort of a defence was intended to be set up against the plaintiff's equitable claim; defendant had given no notice to plaintiff to discontinue his agency, and it was clear, therefore, that he was entitled to the usual commission.  At this stage of the case, some conversation was entered into, when a proposition was made by the defendant's counsel, to give the plaintiff one per cent, and abandon further proceedings in the case.  The Solicitor-General hesitated to accede to this proposition, and contended that it was not equal to the usual rate of commission allowed in such transactions, proof of which he was prepared to put in by six of the profession.  Mr. Wentworth, would offer no other terms, and advised him to proceed with the case, when he would treat him with a non-suit.  Plaintiff however finally consented to a verdict of £30, and the case terminated.

 

Notes

[ 1] See also Australian, 20 October 1835; Sydney Gazette, 17 October 1835.

Published by the Division of Law, Macquarie University