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TMI Blog1957 (8) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... to purchase it for ₹ 55,000/- Sri Gandhi wrote a cheque for ₹ 1,000/- on account of earnest money in favour of Sri Raja Ram Jaiswal and gave it to the plaintiff so that the deal may be settled. The plaintiff handed over the cheque to Sri Radhey Shyam Jaiswal and to Sri Nand Kishore Chaudhari as Sri Uaja Ram Jaiswal was not available at the time for some reason. Those two gentlemen accepted the cheque and executed a receipt for the amount in which they mentioned that the property would be sold to Sri Gandhi as agreed and that ₹ 1,000/- was being taken as earnest money. Subsequently the sale did not materialise as the directors refused to carry out the sale on the ground, that they had no authority on behalf of the Allahabad Theatres Ltd. to sell the property, Sri K. S. Gandhi subsequently brought a suit lor the specific performance of the contract. The suit was dismissed by the trial court but it is alleged that it was compromised in appeal. The plaintiff served notice on the Company as well as the three directors calling upon them to pay him his agreed commission of ₹ 2,000/- because he had carried out his part of the contract. As the amount was not paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant alone when the suit was dismissed against the other defendants. (3) It was not clear from the plaint whether the plaintiff was claiming ₹ 2,000/- on the basis of. the express terms of the contract contained in the letter dated 22-12-1941, or whether he was claiming compensation for breach of contract or remuneration for his services on a quantum meruit basis. None of the three courts which had dealt with the case had considered the question or recorded any definite finding in respect of it. No evidence was. produced by the plaintiff to prove the actual loss he has suffered. If he was claiming the amount on the basis of the agreement itself he could not get it because he had not succeeded in actually selling the property. If he was claiming the amount as compensation or on a quantum meruit basis he could not get it because he had not proved the actual amount of loss he had suffered. (4) That the position of the appellant according to the proved facts of the case was that of an agent of a disclosed principal who had exceeded his authority. That being the case the suit of the plaintiff was clearly barred by Sections 230 and 235 of the Indian Contract Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appears to be clear that the plaintiff claimed the amount in dispute by enforcement of the contract entered into between the parties. There was, therefore, no question of any compensation being claimed for the breach of any implied term or of any remuneration being required on the principle of quantum meruit. As is laid down in Halsbury's Laws ot England, 3rd Edn. Vol. I at page 196. "Where the parties have made an express contract for remuneration, the amount of remuneration and the conditions under which it will become payable must be ascertained by reference to the terms of that contract; no implied contract can be set up to add to or vary such terms". The same principle was laid down by Hilbery, J. in (1945) 1 All EH 194 (A) when he said: "The plaintiff has reduced into writing the terms of the offer and those terms were accepted by the conduct of the defendant; those terms having been reduced into writing. I think the authorities are overwhelming that there is no room left for the implication of any term other than those expressed, or of any such implied term to pay a reasonable remuneration as could be implied in law to give the plaintiff a claim upon q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no doubt that the plaintiff was an agent of the appellant who had been commissioned to attempt to dispose of the property which the appellant wanted to sell for a specified remuneration. Such contracts with commission agents are not all of one kind and it is necessary in each instance before the terms can be enforced to find out with certainty what the actual terms settled between the parties are. Exceptional cases containing unusual terms may for the moment be left out of account. Generally speaking, as pointed out by Viscount Simon L. C., in Luxor (East Bourne) Ltd. v. Cooper, 1941 AC 108 at p. 120 (B), such contracts can fall in three classes : (1) The first is the class in which the agent is promised a commission by his principal if he succeeds in introducing to his principal a person who makes an adequate oficr usually an offer of not less than the stipulated amount. (2) The second class is of cases in which the property is put into the hands of the agent to dispose of for the owner and the agent accepts the employment, and, it may be, expends money and time in endeavouring to carry it out. (3) The third class is of cases where the agent. is promised his commission only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 856 (I) and McCallum v. Hicks, (1950) 1 All ER 864 (J) the contracts were of this kind, but the otter brought by the agent being a conditional one he was not found entitled to his commission. 11. In the second class of cases the agent is given full authority to transfer the property after he has found a possible purchaser. He has accepted to expend time and money in carrying Out his part of the work and there is a sort of implied term that, the principal will not withdraw the authority he has given after the agent has succeeded m finding a possible purchaser. In such cases if the principal withdraws his instructions after the agent has found a purchaser, the commission will still be payable. An instance of this class of eases will be found in the Inchbald v. Western Neilgherry Coffee Co., (1864) 17 CB (NS) 733 (K). According to Mr. Justice Mahajan's interpretation of the contract which was the subject matter of dispute in Abdulla Ahmed v. Animendra Kissen, AIR 1950 SC 15 (L) the contract in that case too belonged to this class. of the interpretation put on it by Mr. Justice Patan-jali Shastri is accepted it will fall in the first. 12. In the third class must be put contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do he could not be deprived of the commission simply because for some reason the actual sale could not be effected. 14. The question depends on the construction which has to be put on the letter dated 22-12-1941. For the correct interpretation of the document we have to look primarily to the document itself, but must also take into consideration the circumstances in which it was written, the drafting ability of the parlies, the intention which the writing was to convey and how the parties acted under it. 15. The learned Single Judge did not accept the interpretation which the appellant sought to put on the letter and after giving our best consideration to every thing which the learned counsel for the appellant has urged we have come to the conclusion "that the interpretation which the learned Single Judge has put on die document is the correct one. 16. It is true that the word 'bechenge' has been used in the letter and in respect of the sum of ₹ 2,000/- which was to be paid as commission the word 'dilayenge' has been employed. It is however not possible to interpret these two words literally and in the circumstances of the case it can hardly be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got paid to the plaintiff or in other words he would be entitled to nave it. The writer of the letter was not an experienced or expert draftsman and the letter was not intended to be a formal document. It was only meant to roughly convey what had been settled between the parties. Had the intention been that the plaintiff would be entitled to get the commission only it the offer brought by him was formally accepted in a regular meeting of the Board of directors of the company and a sale deed was subsequently executed and registered on its basis, the plaintiff would in all probability have never undertaken the task because in that case the earning of the remuneration would have depended on a number of conditions which were entirely beyond his control. An inkling of what the intention of the parties was can also be had from the conduct of the parties which immediately followed the writing of the letter. The plaintiff tried and succeeded in persuading Sri Gandhi to have the property for ₹ 55,000/-. A cheque for ₹ 1,000 as earnest money was given to him by. Sri Gandhi. The cheque was accepted by two of the directors who executed a formal receipt and mentioned an the receip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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