( 403 )
document P 7 the defendant was obliged to return the Rs. 7,500,1914.
“ in the event of the sale not going through for any reason whatso- r…mr.r.Mever other than the default of the said Messrs.. Davoodbhoy Jafferjee.” C.J.
For a definition of what must be understood by the term ” default ” Garimbhoyin a contract of sale we were referred to In re Young and Hurston's v‘Contract,1 and no better authority could be cited. In that case LordJustice Bowen said: “ ‘ Default ’ is a purely relative term, just like‘ negligence. ’ It means nothing more, nothing less, than notdoing what is reasonable under the circumstances—not doingsomething which you ought to do, having regard to the relationswhich you occupy towards the other persons "interested in thetransaction.”
Applying this definition, can it be said that the plaintiffs' actionin refusing to buy the property was unreasonable in the circum-stances ; that it was improper, having regard to their relations withthe defendant ?
Putting aside for a moment the plaintiffs’ relation with thedefendant, there was plainly nothing unreasonable in their refusalto accept the property. The existence of these ground tenants wasa serious blot on the title, and one which might well have deterredany prudent investor from buying the property except at a reducedprice. The relations between the plaintiffs and the defendant did notin any way alter the situation. There is nothing in these relationsfrom which it can be implied that the plaintiffs were obliged to accepta title which would not have been acceptable to a prudent man of:business. It is not as if the defendant had entered into any contractwith the vendors and had assigned that contract to the plaintiffs.
Tn that case we should have had to consider the effect of an agree,ment to sell under the Roman-Dutch law (vide Jamis v. Sup-paUmma et al.2).
It is only by a figure of speech that the defendant can be saidto have assigned “ an option ” to the plaintiffs. He had no rightwhich was capable of being assigned, and his position, as is shownby the terms of P 7, as well as by the transaction itself, was simplythat of a commission agent, who claims remuneration for negotiatinga sale. It is, I think, quite clear that the sale did not fall throughby reason of any default on the part of the plaintiffs, and 1 woulddismiss the appeal with costs.
Pebeika J.—I agree.
Appeal dismissed.
131 Chan. Division 169.
[1913) 17 N. L. B. 33.