1918 Present : Bertram C.J. and Ennis J.

DISSANAYAKE v. RAJAPAKSE.

198-D. C. Negombo, 12,105.

Broker - Agreement to pay commission on receipt of money - Defective title-Sale not carried out-Claim for commission.

The defendant engaged the plaintiff, a broker, to negotiate the sale of an estate. He wrote: " I will pay commission 1 1/2 per cent. if you get me the Rawita money (money realized by the sale of the Rawita land)." The plaintiff found a purchaser, who instructed his lawyer to draw up the deed, but when the title was examined, it transpired that defendant had settled this land in trust for his children. The sale fell through. The defendant imagined that the trust was not binding, as it was not registered, and as it was subject to an arrangement with his father, which, in fact, had gone off.

Held, that the broker was entitled to his commission, though the defendant had not received the " Rawita money."

Where an agent is engaged to sell property on a commission, and a sale is arranged, but proves abortive through the act or default of the principal, the commission agent is entitled to remuneration for his exertions, and a reasonable measure of that remuneration is the commission which he might have earned but for the act or default of his principal.

This principle applies even where that act or default occurred before the agent had commenced to exert himself.

BERTRAM C.J.- The right of a commission agent to sue on a quantum meruit may be made dependent upon a special condition The principal may guard himself even against his own defaults, ii he takes the proper measures to do so. As Blackburn J. said: "It might be prudent in cases of this kind to introduce into the contract a clause such as ' if this goes off without fraud on my part, you are not entitled to your commission,' " but this was not done in this case. The special words relied upon are not wide enough for this purpose.

THE facts are set out in the judgment.

A. St. V. Jayawardene (with him J. S. Jayawardene), for appellant.

Brito-Muttunayagam, for respondent.

Cut. adv. vult.

September 9, 1918. BERTRAM C.J.-

This case raises a very difficult question in connection with the law governing the rights of commission agents. Ordinarily a commission agent is only entitled to a commission for introducing

a purchaser if in fact the sale takes place, but it has been recognized by a series of decisions of long standing that in certain circumstances he may obtain his commission even if there is no sale. The question is whether this case belongs to that class of cases.

The material facts are that the defendant engaged the plaintiff to negotiate the sale of a particular property-Rawita estate. The terms of the engagement may be taken as comprised in the following extract from a letter or memorandum signed by the defendant: " I will pay commission 1 1/2 per cent. if you get me the Rawita money (money realized by the sale of Rawita land)." As a matter of fact, the defendant had no title to sell. He had settled this very land in trust for his children. He imagined that the trust was not binding, because it was not registered, and because it was subject to an arrangement with his father, which, in fact, had gone off. But in this he was mistaken. The trust was binding upon the land (at any rate, to such an extent as to justify the purchaser in refusing to complete the sale). The vendor's title, therefore, was defective, and the purchaser introduced to him declined to complete the sale because of this defect. It should be noted, however, that this was not simply a case of a sale going off because of a defective title. The plaintiff's effort to effect a sale proved abortive, because of the voluntary act of his employer; in fact, the employer, before he had employed the agent, had by his own act disabled the agent from effecting the sale.

The question is, What are the rights of the plaintiff under the