Advocates:
H. W. Jayewardene (with him V. Wijetunge), for the defendant,, appellant.-The plaintiff cannot succeed in this action in view of the recent decision of the House of Lords in Luxor (Eastbourne) Ltd. v. Cooper1[(1941) 1 A. E. R. 33.] which is exactly in point. The right of the agent to recover his commission depends on the terms of his contract with the vendor. Where the payment of the commission is conditional upon the completion of the sale to the purchaser found by the agent then the agent cannot recover his commission until the sale is completed or a binding executory contract is entered into between the vendor and the purchaser. The contract in this case clearly contemplates the payment of the commission on the completion of the sale. The words negotiate the sale and on the amount realized can have no other meaning. The decision in Bull v. Price[ 7 Bingham 237] deals with a case in almost identical terms and it was there held that the parties contemplated a completed sale. Here there was neither a completed sale nor an executory contract. There can be no binding executory contract unless there is a notarially executed agreement-see Tudawe v. Keppitigala Rubber Estate Co.[ (1929) 30 N. L. R. at pp. 391 and 393.] In Ceylon the agent has been allowed to recover his commission even where there was no sale, on the basis of the existence in the contract of an implied term, namely, that the vendor would not without reasonable cause prevent the broker from earning his commission. An implied term is read into an express contract only when it is necessary to do so for the purpose of rendering business efficacy to the transaction between the parties-see French & Co. v. Leeston Shipping Co.[(1922) I. A. G. 451.] To read such a term, into this contract would be to make the contract unworkable because we would be unduly fettering the liberty of the vendor to deal with his property in any manner he pleases-vide Simpson & Co. Soyza1[(1900) 4 N. L. R. 90.]; Perera v. Soyza[(1910) 13 N. L. R. 85]; Dissanayake v. Rajapakse[(1918) 20 N. L. R. 353] and Fernando v. Perera Hamine[ (1919) 21 N. L. R. 79.]. The principle enunciated in these cases has no application now in view of the fact that the House of Lords has held that in contracts of this nature one should not read into them the implied term suggested by the plaintiff. This view has also been taken by Akbar J. in Tudawe v. Keppitigala Rubber Estate Co.5[(1929) 30 N. L. R. 389]
Plaintiff has not in this action sought to recover anything on the basis of a quantum meruit. Even if he had he cannot now recover anything because the House of Lords has clearly laid down the rule that such a remedy is not available to a broker. No doubt our courts have recognized the right of an agent to sue on this basis-see Dissanayake v. Rajapakse [(1918) 20 N. L. R. 353] but they have in doing so followed the English case of Prickett v. Badger[26 L. R. C. P. 33.]. That case has been distinguished by the House of Lords as one turning upon its own peculiar facts.
S. Subramaniam (with him Tillainathan), for the plaintiff, respondent.- Luxor (Eastbourne) Ltd. v. Cooper (supra) has no application to the facts of this case. All that the broker had been employed to do in the present case was to negotiate for a sale, i.e., to bring the intending purchaser and the vendor into touch with each other. The meaning of the word negotiate is considered in Macgowan v. Murray [L. R. 1891 ch. D. 105.] In the case decided by the House of Lords the commission was to come from the purchase price. There is no such condition in the contract under consideration now. A case which is in point is that of Mackay v. Dick[(1881) 6 A. C. 251.]. See also Dissanayake v. Rajapakse[(1918) 20 N. L. R. 353.] and Fagan v. Pretorius.11[S. A. L. R. 1921, C. P. D. 502.] There is no question of reading an implied term into this contract. The contract itself is clear, and the agent has established his right to recover his commission by introducing a purchaser to the vendor.