016-NLR-NLR-V-21-FERNANDO-v.-PERERA-HAMINE.pdf
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Present: Ennis A.C.J. and Loos A.J.
FERNANDO v. PERERA HAMINE.
29-—D. G. Negombo, 12,798.
Action by broker forcommission—Negotiation falling through—Broker
must prove default of vendor on a binding agreement by vendee.
A broker to entitle himself to a commission in a negotiation thathsis' fallen through must either prove a direct default on the partof the vendor or a binding agreement by the _ vendee So buy theproperty.
*^pHE facts appear from the judgment.
A. Si. 7. Jayawardene (with him H. V. Perera), for appellant.—Default on the part of the vendor or the vendee does not affect thebroker, and he is entitled to his commission (Perera v. Soysa l).
[Ennis A.C.J.—If the negotiation falls through by the fault of thevendee, the broker is not entitled to his commission, unless there isa binding agreement by him to buy the property.]
A binding agreement by the vendee is not necessary. In Pererav. Soysa 1 there was no binding agreement by vendee. Vendor isliable to pay the brokerage even when he is not in a position to suethe intending purchaser (Green v. Lucas 2). PI discloses a contractsufficient to entitle us to our commission.
There is no authority for the statement that when negotia-tions fall through owing to the caprice of vendor, no action ismaintainable without a binding contract. The broker introduceda willing purchaser, and the vendor was in default in this-case. Herepresented the estate to be 180 acres when it was only 172 acres.
[Ennis A.C.J.—The default must be on the part of the personwith whom the broker stipulated.]
The plaintiff merely introduced both the parties. As he intro-duced a willing purchaser, he is entitled to his commission.
Samarawickreme (with him F. de Zoysa), for respondent, notcalled upon.
June 16, 1919. Ennis A.C.J.^
This was an action by a broker for the recovery of commission.The agreement between the parties is P 1, the material parts ofwhich are that the plaintiff is authorized to negotiate the sale ofMangala Eliya estate, in extent 180 acres more dr less, for the sumof Rs. 120,000. The agreement was to hold good for ten days fromdate, and it was dated April 3, 1918. All these cases where there is* (1910) 13 N. L. B. 85.* (1875) 33 L. T. 584.
1919.
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1919.
Bran
A.O.J.
Fernando0. PereraBamine
a claim for commission owing to a sale having fallen through mustbe based in some way on the default of one of the parties to theagreement. Where the vendor has announced his intention notto complete the sale, or where the vendor has put it out of his powerto complete the sale, or has a defective title, or has instructedthe broker to sell a larger extent than he has, would all be caseswhere there has been a direct default in the vendor, and in suchcases it would be unnecessary for the broker to prove more than thisdefault. But there are other cases where the purchaser may declineto complete the agreement, and in such cases the principle wouldstill apply, that some kind of default must be brought home to thevendor on the agreement with the broker before he could be madeliable, and those cases turn, certainly in some instances, onthe presence or absence of a binding agreement between thevendor and the proposed purchaser. Should there be a bindingagreement, it would be open to the vendor to sue on it, andthe broker should not have his commission dependent on theelection of the vendor. Should the vendor elect not to compelthe completion of the contract, then the default would be in him onthe agreement with the broker. This seems to be the principle ofour own cases and the English cases. In Dissanayake v. Rajapakse 1and in Perera v. Soyea 2 these principles may be inferred, and it isthe same with the English cases cited in the case of Perera v. Soysa2It is, therefore, a question of fact in every case, and in the presentcase under appeal the learned Judge has found as a fact that therewas no complete and binding agreement, and that the default wasnot in the vendor. That appears to be so. The vendor waited forsome days beyond the allotted space of ten days, and his proctorhad a draft agreement for the purchaser to sign, but the purchaserdelayed and put off signing this agreement. Quite apart from that,it would seem that there is no direct evidence that the proposedpurchaser had ever unconditionally accepted the offer. The personwith whom the proposed purchaser negotiated was one Mendis,and Mendis in his letter D 1 on April 13, that is, the last day withinwhich the broker had to complete his agreement, wrote that theiroriginal talk had been in respect of about 180 acres, and that he haddiscovered that the land was • one of 172 acres, and he asked for areasonable settlement of the matter. In other words, the evidence,so far as it goes, shows that when the ten days had already expired,the vendor and the purchaser were not in agreement on the price tobe paid for the land Mangala Eliya as a whole. In the circum-stances, I agree with the learned Judge that the plaintiff has notmade out a case from which he could substantiate a claim forcommission, and I would dismiss the appeal, with costs.
Loos A.J.—I agree.
> (1918) 20 N. L. B. 368.
Appeal dismissed.' (1910) 13 N. L. B. 86.