GUILDFORD.
PUBLICANS' VALUATIONS.—An action of some interest to publicans was tried in the Guildford County Court, on Monday last, J. F. Fraser, Esq., and a jury specially summoned for that purpose. The cause in question was Toghill v. Lambe, the amount claimed being £14, as balance of an account. Mr. Senior, solicitor, of Richmond appeared for the plaintiff; Mr. Doyle, barrister of the Home Circuit, was retained for the defence. The sum of £3 12s. had been paid into court, and a set off claimed of £7 8s. 6d. The plaintiff's demand had originally been £19 7s. 9d. Mr. Senior laid the particulars before the conrt and jury:—the plaintiff, Mr. Frederic Toghill, was an auctioneer and appraiser, carrying on business at Richmond, and the defendant, Mr. George Lambe, was a publican, formerly of the Cricketers, at Petersfield, now the landlord of the Red Lion public house, at Guildford. The £14 claimed was the balance of an account for commission, &c., for putting Mr. Lambe into the Red Lion in this town. Mr. Senior having alluded to the circumstances he intended to shew the evidence, called
Mr. Frederic Toghill, the plaintiff, who deposed that he had been in business as auctioneer and appraiser for 28 years at Richmond, and had long been acquainted with Mr. Lambe and his late father. In November last, Mr. Lambe requested him to find him a public-house that would pay, somewhere in the neighbourhood, and consequently he went with him to many places and made numerous enquiries, and at last heard of a house he thought likely to suit at Walton. Just afterwards Mr. Lambe told him he heard the Red Lion at Guildford was to let, and they determined see the place; it was arranged as the owner of the Walton house lived at Halliford that on their way to Guildford they should call there there and see that gentleman. This was accordingly done; on a second occasion he accompanied Mr. Lambe and his sister to Guildford in a phaeton, and on both occasions was occupied the whole of the day, and on the first occasion part of the night, as he did not arrive home till about four o’clock on the following morning. He (plaintiff) believed persons of his profession were allowed in any court in London £1 per day for their expenses in such cases, but he had only charged the defendant £1 10s for the two days. He had gone with the defendant twice to his solicitor, Mr. Dinn, for which he charged 10s., as he had to make two journeys to London. The other charges were for making a visit to Guildford about arranging the business, on Saturday, Dec. 11th when he found it was necessary for him to be in Guildford on the Monday following, he therefore charged the defendant 14s. for his exposes on those two days, also 7s. 6d. for writing the inventory, which was a usual charge, and as the valuation amounted to £298 1s. 10d., his commission amounted to £15, being at the rate of 5 percent, which was the customary charge of all brokers in London when the valuation was under £500. He had previously assisted in the removal of Mr. Lambe’s goods from Petersfield, but made no charge for that. He had also arranged that the Red Lion should be ‟a free house” for spirits, which it was not in the previous tenant’s time. He had received £5 1s. from Mr. Lambe, and he was very much surprised to find a set-off had been pleaded, having never heard of such a demand until he had commenced the present action, about the 1st February in this year. In the bill sent by Mr. Lambe were charges for refreshment and gin and water, of which he (plaintiff), and Mr Piggott (formerly a publican at Guildford), had partaken on the occasion of his visiting Guildford for negotiating about the business, and although he admitted he had ordered the same, he stated that he had done so at the request of Mr. Lambe. With respect to an item of £2 10s in the defendant’s demand, he might mention that the last occasion of their being at Guildford about the house Mr. Drury, the valuer for the out-going tenant (Mrs. Ford), and himselves could not settle the purchase money by £5, and as neither the principals would give way, he (plaintiff) suggested to Mr. Drury that he would forego £2 10s. of his commission if Mr. Drury would do the same, rather than the bargain should be broken off, and that proposition was agreed to, but he never intended of course that he should be the loser of the money.
By the Judge—It was a ruse.
The Judge—Against whom?
Plaintiff—Against nobody, your Honor, but I believe it was understood that neither of us were to be the losers.
His Honor—But if so, who was to pay the £5?
Plaintiff replied that he supposed Mrs Ford, the out-going tenant would ultimately have done so, but Mr. Drury could best that question.
Mr. Senior—Is that the usual way of splitting the difference?
Plaintiff replied in the affirmative.
Mr. Doyle—And the parties have to pay all the same (laughter).
Plaintiff said it was by Mr. Lambe’s instruction that he made that agreement and he had repeatedly told him that he should not be loser of £2 10s.
Cross-examined—I carry on business at Richmond. The name of the firm is ‟Toghill and Jackson”; Mr. Jackson is my brother-in-law, but I do not look upon him as partner now, as we have carried on business separately for nearly a year by mutual consent. Mr. Jackson lived at the office in George Street, Richmond, and the name of the firm ‟Toghill and Jackson” was still over the door, yet for the reason stated did not look upon him as a partner at the present time.
Mr Doyle submitted that Mr. Jackson was a partner, and consequently as he had not been made party to the suit the plaintiff must be nonsuited.
His Honor thought that a partner might retire from the partnership when he liked, as it would appear this was done in the present case; he overruled the objection.
The cross-examination was then continued; the plaintiff stated that his private residence was at Richmond Hill, and his office was there; there was no name up, still he transacted his business there. If persons went to the office in George Street for him, they were sent to his private residence. He denied that he had ever gone to Mr. Lambe about a house, and stated that the latter had always came to him.
Mr. Edward Abrahams, auctioneer and valuer, living at Twickenham stated that he had a deal of experience In such matters as putting publicans into houses. His charge, if he had any great amount of trouble, was 5 per cent, on the purchase money, and if he had not much trouble it would be 5 per cent, on the first £200, and 2½ per cent, on the remainder.
By the Judge—I should have charged 5 per cent on the amount of the valuation in this case.
Cross-examined—These are the terms of the trade, and all respectable brokers charge the same amount.
By the Judge—l should make no charge for journeys, but the commission of 5 per cent, would include the whole. It is not customary to charge publicans for the journeys, although our expenses are generally paid by our employers. It is generally considered when a publican takes a house that the expenses should be equally divided between the vendor and the purchaser.
Mr. Doyle then addressed the jury in a very lengthy and able speech contending that it was well-known that in such cases the charges of the valuer were all included in the commission, and therefore arguing that the plaintiff in the present case was only entitled to the customary allowance.
The defendant was then examined. He stated that he had known plaintiff about 20 years, and he had always promised him (defendant) that when he heard of anything good he would let him knew of it, and on these occasions said nothing about terms. He (defendant) had heard of the Red Lion being to let, and informed Mr. Toghill of it, at the same time requesting him to make enquiries. He had paid the plaintiff's expenses to Halliford at his request, and the plaintiff had promised to repay him. The difference about the £5 was this, he (defendaut) had offered £285 for the Red Lion, and Mrs. Ford wanted £290; he said he would not give another shilling, and Mrs. Ford expressed her determination not to take less than the £290, he had the horse put into the chaise and was going away, when Mr. Toghill said to Mr. Drury, ‟sooner than they shall lose the house I will give 25s. off my commission, if you will do the same.” Mr. Drury consented. He (defendant) remarked that they had better see Mrs. Ford and hear if she would forego the other £2 10s., but she refused, and Mr. Toghill again said to Mr. Drury, ‟we must make up the other £2 10s. and they shall not lose the house." Mr. Toghill agreed that the £2 10s. should be deducted from his commission, but he (defendant) had afterwards pay the £5.
By the Judge—I paid £290 altogether.
Cross-examined—I paid the sum total; I did not get the £2 10s. from Mr. Drury, I never asked him for it as I had nothing to do with him; I have frequently spoken to Mr. Toghill about it. I paid Mr. Toghill the £290, in cash and notes the same evening, through him for Messrs. Crooke, the owners of the house. Mr. Togill never went to Mr. Dinn’s on the occasions stated; he did go there on other occasions.
Mr. George Drury, auctioneer, valuer, &c., of Guildford, stated that he had been engaged in that line of business upwards of 30 years, and on the occasion referred to acted as valuer for Mrs. Ford, the out-going tenant. There was not so much work in these cases for the agent of the in-coming tenant, as for the agent of the out-going tenant, and he considered that most of the work fell upon himself.
By the Judge—The scale of payment in this neighbourhood during the last 30 years has been 5 per cent, on the first £100, and 2½ per cent, on the residue, and with the exception of Mrs. Ford, whom I had known previously, if I had made my full charge, it would have amounted to £10, but I only charged her £5. The commission covers all my expenses.
Cross-examined —If other people choose to charge less, I would not.
Mr. Senior then replied, reviewing the chief points of the evidence, and expressed his belief that the jury would upon mature consideration find a verdict for his client.
His Honor summed up in his usually concise and able manner, laying before the jury all the leading features of the case, and pointing out those particular parts upon which they must form their own conclusions. Having carefully gone through the evidence, His Honor observed it appeared to him that the matter Involved the following questions, to which the jury would give their consideration first, what was a fair centage for the plaintiff’s services; secondly, who was to pay the travelling expenses, the plaintiff or the defendant; and thirdly, as to the £2 10s., was it a mere sham, or was it a bona fide understanding that the plaintiff really should give up the £2 10s. out of his commission?
The jury retired, and were in consultation about half-an hour, when they returned to court, with a verdict for the plaintiff for £15 commission, deducting £2 8s. 6d. for travelling expenses.
The Judge—How about the £2 10s?
The Foreman—We have not considered that.
The Judge—But you must decide that, gentlemen, whether the £2 10s. was to be deducted by Toghill from his commission. You had better retire again and decide the point.
The jury were absent about ten minutes, when they again returned, and
The Foreman said—We have not got sufficient evidence to take the £2 10s. off.
The Judge—Then your verdict will be £15 in all, what the plaintiff was originally entitled to as commission; of which £5 6s. have been paid, £2 8s 6d. you have deducted for travelling expenses. (including 6s. lent), and those deductions will make the balance £7 5s. 6d, for which judgment is given for plaintiff.
Payment in a fortnight; costs for attorney and one witness allowed.