Tudawe V. Keppitigala Rubber Estate Co.,

Present: Lyall Grant and Akbar JJ.

TUDAWE v. KEPPITIGALA  RUBBER ESTATE CO.

416-D. C. Colombo, 24,740.

    Broker-Offer to obtain a purchaser for land-Failure of negotiations- No contract of sale-Right to commission.

Where the plaintiff, a broker, obtained from a prospective buyer an offer for the purchase of an estate belonging to the defendant, company at a certain price, subject to the payment of brokerage,-

Held, that the plaintiff was not entitled to his commission till the purchase was concluded by a binding contract.

THIS was an action brought by the plaintiff, a licensed broker, for the recovery of his commission for having arranged a sale of a rubber estate belonging to the defendant company. The parties went to trial on the following issues :-

(1) Did the plaintiff introduce to the defendant one Ebrahim Lebbe as the purchaser of Beddawella estate ?

(2) Did the defendant accept such purchaser and agree to pay the plaintiff brokerage at the rate of 2 1/2 per cent, on the purchase price ?

(3) Was the refusal of the purchaser to complete the purchase due to the act and conduct of the defendant ?

The learned District Judge dismissed the plaintiff's action on the ground that he was not entitled to recover in the absence of a binding agreement.

De Zoysa, K. C. (with Croos Da Brera), for plaintiff, appellant.- The local authorities make it clear that no binding contract is necessary in order to enable the broker to recover his commission. A broker has merely to introduce a willing buyer and if the seller accepts him the broker has nothing more to do (Perera v. Soysa1[1 13 N. L. R. 85.]). It is the duty of the seller to get the buyer to enter into a binding agreement. If the seller has been negligent the broker should not suffer. There has been delay on the part of the seller in getting the deeds ready. This gave the buyer an opportunity of backing out of the agreement.

H. V. Perera (with Ameresekere), for defendant, respondent .It is the duty of the broker to get a buyer who is not merely willing to buy, but who will complete the contract (Fernando v. Perera Hamine 2[2 21 N. L. R. 79.]). The sale should be completed and the purchase price paid before the broker can ask for his commission. The documents produced show conclusively that the broker expected to be paid a percentage of the proceeds of sale. The sale has fallen 

through owing to no fault of the seller. The English authorities show that there should be a contract binding in law. A contrary rule  will enable a broker to act in collusion with a buyer in order Rubber to help the former to earn a commission.

Counsel cited Holder and Partners v. Manx Isle Steamship Co., Ltd.1[1 (1923) L. R. I, K. B.]

April 30, 1929. LYALL GRANT J.-

The facts in this case are fully set forth and the authorities examined at length in the judgment of my brother Akbar which I have had the advantage of reading.

I agree with him that the' contract between the plaintiff and the defendant was that the defendants were to pay the plaintiff's brokerage when they received payment from Ibrahim Lebbe and that this payment was due on the completion of the title. (See documents (P 21 and P 2.) That condition was not fulfilled and plaintiff is therefore not entitled to recover on the contract.

It was argued on the authority of a dictum of Bonser C.J. in Simpson and Go. v. Soyza2[2 4 N. L. R. 90.] and of Perera v. Soysa3[110. 3 13 N. L. R. 85.] that where a broker has introduced the parties and they have come to an agreement in consequence of that introduction, and where the broker has done all in his power to bring about a completed contract he is entitled to commission or at any rate to a quantum meruit.

These cases were fully considered by Bertram C.J. in Dissanayake v. Rajapakse4[ 4 20 N. L. R. 353.], and he arrives at the conclusion that it is only when the principal by his own act or defau

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