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SUPRAMANIAM CHETTIAR v. SAUNDARANAYAGAM
NLR48V155
1947 Present: Howard
C.J. and Wijeyewardene J.
SUPPRAMANIAM CHETTIAR, Appellant, and
SAUNDARANAYAGAM, Respondent.
10-D. C. Kandy, 1,301.
Principle and Agent-secret
profit acquired by agent-Agent's right to sue principle for commission.
Appeal-Burden of proof -Appellant must show that judgment appealed from is
wrong.
An agent who, without the knowledge or consent of his principal receives a
commission from the third person with whom he deals on his principal's behalf is
not entitled to any commission from his principal.
In appeal the burden lies on the appellant to show that the judgment appealed
from is wrong. If all he can show is nicely balanced calculations which lead to
the equal possibility of judgment on either the one side or the other being
right, he cannot be said to have succeeded.
APPEAL
from a judgment of the District court,
Kandy.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and M. P.
Spencer ), for the defendant , appellant.
N. Nadarajah, K.C., (with him H. W. Thambiah), for the plaintiff,
respondent.
Cur. adv. vult.
March 27,1947. Howard C.J.-
The defendant appeals from a judgment of the District Court awarding the
plaintiff a sum of Rs.10,375, which the latter alleged to be due to him as
commission for negotiating the purchase of the Mahakande estate. In his plaint
the plaintiff alleged that the defendant at Matale engaged the services of the
plaintiff to arranges for the purchase of this estate and promised to pay the
plaintiff remuneration at the rate of 2 ½ per centum on the purchase price on
the completion of the purchase by the defendant of the said estate. The
plaintiff further alleges together and on April 2, 1943, the defendant purchased
the estate for the sum of Rs. 415,000. The defendant in his answer denied that
he agreed to pay the plaintiff any
remuneration on the purchase by
the defendant of the Mahakande estate. The defendant further alleged that the
owner of the estate had requested Messrs. Keell & Waldock, Brokers of Colombo,
to find a purchaser for the said estate and had undertaken to pay the Messrs.
Keell & Waldock 2 and 1/2 per cent. commission on the purchase price, and that
Messrs. Keell & Waldock had agreed to pay the plaintiff half the said commission
if the plaintiff introduced a prospective purchaser to Messrs. Keell & Waldock.
In order to earn this commission the plaintiff had requested the defendant to
purchase the estate and that any commission on the sale was payable by the
vendor and that the plaintiff having received commission from Messrs. Keell &
Waldock was not entitled to recover any commission from the defendant. In
finding for the plaintiff the learned District Judge after a careful examination
of the evidence has held that the defendant agreed to pay the plaintiff 2 ½ per
cent. On the purchase value. Mr. H. V. Perera on behalf of the defendant, whilst
conceding that the question at issue was one of fact, contends that the burden
of proving the agreement to pay commission rested on the plaintiff and that
there was no evidence to justify the finding in the plaintiff's favour.
The plaintiff, who styled himself broker and commission agent, stated in
evidence that the did business at Matale and one Marimuttu assisted him.
Previous to the negotiations in regard to the Mahakande estate he did not know
the defendant who was introduced by Marimuttu as a possible purchaser. According
to Marimuttu the defendant who lives at Nawalapitiya came and saw him in the
early part of December, 1942, and asked him if there was any estate to be sold.
Marimuttu told him that there was an estate at Peradeniya and he should come
after a week's time. Marimuttu then communicated with Colonel T. Y. Wright, the
owner of the estate, on behalf of the plaintiff. Colonel Wright replied on
December 5, 1942 (P 6), Stating that the estate was for sale and referring the
plaintiff of the Messrs.
