J V A S S I L I IADI-S, Μ Γ Ν Ι Κ , J O S I . P H I I » s. I'AMBOS l'J66 Feb 3 J.I.] ANTONIADLS, I'AMKOS Appelluni-ihicmiunl. AMONIMUS η ι PANICOS KoUSSOl LOS PANIC OS K O U S S O U L O S . Itcspondeiil- l'itontif< {Or// Appeal \.i. 4548). Coniraci •Estate case turns instant agent- Commission on the partuular <ase contrail Whether terms of the fonihl in he that puvahlv contract the agent should find a purchaser /or the lathi of the \endor and business should result- com hided'- But transfer to the defendants Plaintiff transaction oj fault, And as the transaction sale of the purchaser then Appeal ·I hidings land owing withdrawing- in into his part of the agreement went off though of fact hv the trial the appellant to persuade the ipptffatc findings were not open to before it. the Itial - the \endor ·> idefen- dant'
- s)fault, the taitei is hound fo pay the agreed Practice (plaintiff) {defendant) of land tint effected as agreed agent performed -'flu· In the vominiwinn. Court { hms on Court that the uud Court on the c idena Ί he p l a i n t i f f ' s claim in ilus case was for £50 commission which "he alleged lie was entitled purchaser o f land lor the t o receive for f i n d i n g defendant-appellant, on a ιhe strength o f an agreement between them. The trial Jud-'e l o u n d . f o r this p l a i n t i f f a m i gave j u d g m e n t t n his favour I he defendant n o w appeals against that judgment. O n the strength o f an oral agreement between the panic·.. the plaintiff-respondent found a purchaser in the person o f one T . N . , w h o m he t o o k t o the defendant-appellant w h o agreed to sell to the purchaser the whole o f a property o f 2i> d o n u m s for the sum ot 12.500. The declaration forms necessary for the transfer o f the property were then filled i n . the purchaser handed ovei t o the vendor (defendant- appellant) his cheque f o i the agreed s u m o f £2.500 and the parties, together w i t h the puichascr, then proceeded t o the Land Registry O f f i c e l o r the declaration o f sale and t'ansOi o f the p r o p e r l y . Jheie the Land Registry Clerk <7 i n ch.tige I y 6 6 accepted the _ donums owned PAMHOS ANTOsiADts " by tin. declaration o f sale i n m England respect ot the delendanl-appellanl. resjwet o f l o r V/a d o n u m s , the but and defendant's he d i d not 12'/ the brother accept the d e c l a i a l i o n o f sale in respect o f the brother in C o n g o f o r the Ι'ΛΜ« <Λ Konsvtuius declaration ol sale in ,,, Ι ι . r e m a i n i n g ι /, d o n u m s . on the . . g r o u n d that the signature o f the owner on the relevant power o f attorney held by defendant-appellant wis not C y p r u s Consul in that cou d r y duly legalised the bcfoie the The result was that although the purchasci handed over a cheque f o r f. 2,500 to (he defen dant at the t i m e as a l o i c s a i d , when the latter proceeded to the Bank on the f o l l o w i n g day to have it cashed he discovered that the purchaser had countermanded i t , presumably on the g r o u n d that he had agieed t o buy the whole p i o p e r l y o f 20 d o n u m s , and that he was not prepared to w a i l f o r another power ol attorney to t o m e lemammg V , donums f r o m C o n g o in respect o f the w i n c h the defendant-appellant was unable to transfer to him on that day In dismissing the appeal the Supreme C o u r t ffilif - ( I ) (
- a)the case l u i n s on the question what was the c o n i r a c i between the parlies . and what was the l i n d i n g e%\ the trial C o u i t (
- b)I he tii.il fudge, hav ng sides, l o u n d t h a t . " W h a t heard the evidence on both was agreed between the parties was that ι hi p l a m t i f l should f i n d a ptnchaser f o r the sale ol this land and business should result. In other w o i d s 1 believe that i h c i e was no agiccnienl thai the p l a i n t i f f should be paid o n l y when the defendant should have received his money in cash ' A n d fuilher down "In this case I f i n d no such agreement but f i n d thai tin p l a i n t i f f has actually done what he was employed to transaction d o and has fallen business resulted N o w . it this lluough, t h r o u g h no lault ol the p l a i n l i f l , I am o f the o p i n i o n t h a i the w o r k o l the p l a i n l i l f was finished when the a g i c j i n e n t f o r the sale was ιcached ' (
- c)1he onus is on the appellant to peistiade this ( on it that these findings made b> the t r i a l j u d g e were not open to h i m o n the evidence bclorc h i m . H a v i n g heard counsels address, we are not pcrsuailed that the trial Judge was w r o n g in m a k i n g the findings he end make, that rs l o say, t h a i the plaintiff-respondent which u n d e r t o o k to f i n d a purchaser he d i d . and that he d i d what he had undertaken l o d o . S
(2)Having regard lo the facts of this case, we are o\' the view that the plaintiff-respondent performed his part of ihe agreement because he found a person who was willing to buy, who concluded the agreement with the vendor (defendant-appellant), handed over lo him a cheque for the agreed price of £2.500 fur the whole properly of 20 donums and when he discovered thai ihe whole property of 20 donums could noi he transfcirod lo him he withdrew from the transaction.
(3)Under the circumstances we are of opinion that the transaction went off owing to the appellant's fault who was not ready to have the transfer of the whole pioperty concluded at the Land Registry in accordance with his agreement with the puichav:r. r
(4)f or these reasons the appeal is dismissed with costs. Appeal dismissed with tosts. Cases lefened to : Boots v. E. Christopher and Co.. [1951] 2 All E.R. 1045 ; and al pp. 1047 and 1049, per Somervell L.J. and Stable J.. respectively ; Dennis Reed Ltd. v. Goody, [1950] I All K.R, 919, al p. 923, per Denning L.J. Appeal. Appeal against the judgment of the District Court of Umassot (Papadopoullos D. J.) dated the 22nd September, 1965, (Action No. 2015/64) whereby the defendant was adju dged to pay to the plaintiff the amount of £50.- by way of commission. S. G. McBrideΛ for the appellant. R. Michaelides, for the respondent. The facts sufficiently appear in the judgment of the Court. VASSIUADUS, J. Having heard Counsel for the appellant in his detailed address and the extensive argument, we are all of the opinion that we need not call on the respondent. Mr. Justice Josephides will deliver the judgment of the Court. JosEPinons, J. : The plaintiff's claim in this case was for £50 commission which he alleged he was entitled to recei- 39 1966 Peb. i ΡΛΜΒΟΊ ANTONIAUIS n. PANIPOS Kotiisoii-c. I'""1 *c Ιυι finding a purchasci lor Ihe defendant-appellant, on C l n c sl _ * "Onglh of an agrcenicm between them. The trial Judge Ι'ΛΜΙΙΙΛ found for the plaintiff and g.ive judgment in his favour The NIONAIMS defendant now appeals againsl that judgment i'\M'<"'" W l | l | , , s The appellant's main argument is that Ihe plamtifl (respondent) failed to do what he was employed to do, 01 what hehad undertaken to do, that ι . lo say (
- a)lo find .1 purchasci able and wilting ,\ικ\ icady lo buv, and (
- b)lo see lo il that propci and valid poweis of atlm ncy weic available aI the Land Registiy in icspcct ·>Ι I'ICco owneis ol thepiopeity,one of whom was in Ingland nut ihe olhci 111the Congo the plainlilf h\, his sialcnKiil o\' claim contended thai ihe detend.int \^>\c\ asked luin lo "ind a puichascr in icspcct ofa propctiy ol about 20 do-uints m extent That piopeily was owned as to 12/ 2doming In ihedefendant, I f donums by defendants broihci in England and as to the lemainnig V\ donums by another brotlici in the Congo 'Ihe plaintiff fuiihci alleged that he found a puichascr foi the defendant, a en lain I heofilos Νkolaides, who was w ilhng lo hu\ and thai an agreement was m u t i n i e d between Ihe defendant and ihe pniih.isei ftη the sale ol l!ie whole piopeity ol 20donums toi theagreed puce of f2,'K)() , and that thedefuid.int agiccd lo pa\ lo Ihe plainlilf (In* Miin iA' f/>0as commission Aflei Ihe bums foi ihe declaialion ol tiaiislei were signed In the defendant and the piuchasei, Ihe latter handed a ihcauc foi £2,ΓΌΟ to the delendant ,n\s\ they pioeecded lo the Land Regisii\ Ιοί (he dcclaialion >f the liansfci of Ihe piopcit) (p.u.igiaph 6 of ihestaiemen ofclaim) As one otthepowers of atloiney in Ihe possession ot the defendanl was not in aecoidancc with the law, ihe I and Registiy ΟΠΊΟ.Ί accepted Ihe dcelaiatiou o| sale m lesoecl of the 12% donums ofthe defend.ml, and the declaiation in icspcct of the hiother in 1 ngland, a lolal ι>1 Id'/,dominis, but ihe Land Registiy Olficei reIused lo accept ihe declaration of sale 111respect of Ihe Ivolher in the Congo On the strength of the above the plaintiff ηleaded thai he ilamied payment of his commission of £50 hi.' Ihe defendanl failed to pay it li> his d"fence the defendant pleaded 111 paragraph 2 as follows " 2 . Detetdanl says thai it wasan express and/οι implied letm of the agreement between plainlilf and defendant thai plaintiff would have been entitled lo the payment of commission and/or reniuneralion only in ease Ihe tran10 saction would have been completed and the defendanl would have transferred the pioperly m the name o f the purchaser and would have collected the whole purchase value from h i m " . l9of ' C _J PAMBUS A N 1 0 N H , , h υ The defendant further contended that the transaction was never completed, that the defendant d i d not collect from ihe purchaser the purchase money because although the purcha ser issued a cheque in favoui of the defendant it was counter manded by the purchaser before it was cashed by the defen dant Defendant finally pleaded that " he was always rcadv to perform the agiecmcnl and complete the transaction but same failed through the fault o f the purchaser Consequently defendant says that plaintiff is not entitled to any remunetation from the defendanl ". It will thus be seen thai the case turns on a vciv, nanow point, that is to say, whelhei the agreement was that the plaintiff-esiale agent would be entitled to receive ins com mission aftei the defendant-vendor had collected the putchase price o f ihe propert>, or, whethei he would be entitled to receive his commission after the conclusion o f the agree ment of sale As is usual in this kind o f case, the ease linns on the particular terms of the contract between the parties Learned Counsel for the appellant today argued thai the trial Judge was in eitor in trndmg as he d i d for ihe plaintiff The undisputed facts were the following The plaintiff alter the agreement to f i n d a puichasci foi the defendanl-lo which we shall leveit l a t e r - f o u n d a purcha ser in the petson o f one I lieofilos Nicolaides, whom he took to the defendant who agreed to sell lo the nuKhasei the whole propcity of 20 donums foi the sum o f £2 500 '(he declaration forms necessary foi ihe transfer o f the piopeity were then filled in, and the parties, together with the puicha scr, then proceeded to the Land Registry Office foi lhe de claration o f sale. There Hie Land Registry Clerk m charge of declarations accepted the declaration o f sale η icspcct o f the 1 2 ] ^ donums of the defendant, and the decimation of sale in respect o f the defendant's brother i n England foi 3 / donums , but he did not accept the declaration of sale in respect o f the brother in ihe Congo for the remaining 3'/, do nums, on the ground that the signature o f the owner was not duly legalised before the Cyprus Consul in that country. The result was that although ihe purchaser handed a cheque for £2,500 to the defendanl al the time o f the declaration ot trans41 ΡΛΝΜ*w Knessoi.u;· 1966 l-eb 3 f'AMBUS ANTOMADIS t> P A N » US KOUSSOHLOS fer, when the latter proceeded to the Bank on the following day to have it cashed he discovered that the purchaser had countermanded it, presumabl/ on the ground that he had agreed to buy the whole property of 20 donums, and that he was not prepared to wart for another power of attorney to come from the Congo η respect of the remaining 3yf donums which the defendant was unable to transfer to him on that day The trial Judge, having luard evidence on both sides, found that "what was agreed between the pailies was that the plaintiff should find a purchaser for the sale of this land and business should result In other words I believe that there was no agreement that plaintiff should be paid only when the defendant should Ivo'e received hrs money in cash " And, further down, " In this particular case I find no such agiccment but find that the plaintiff has actually done what he was employed to do and business resulted- Now if this transaction has fallen thiough, through no fault of the plain tiff, 1 am of the opinion that the work of the plaintiff was finished when Ihe agreement lor the sate was reached " When the learned pidgc s.i>s- " I find no such agicuncnl *', he icfers to ihe case of Hoots v. E. Christopher & ( <> , [1951] I Alt ΚR 1045 In that case, it was expressly agreed that commission should be paid only when Ihe purchase price was icceived bv Ihe seller It would, I think, be lomcnicnt to quote what Denning I.J., as he then was, said in Penms Reed Ltd v. Gootfv[1950| 1 All F.R. 919, at page 9,'i " Sonic confusion has arisen because of the undoubted fact thai, once there is a binding contract for sale, the vendoi cannot withdraw fiorn it except at the nsk ol having to pay the agent his (omnneion. This has led some people to suppe .e tlvi CMnmiss'on i\ payable as soon is a con tract !•. signed, Mil I .-.aid so myself m McCalhui. \ Hicks P950J 1 All I.R 864, al page 866. This, howevu, is not correct flic icason why the vendoi" is liable in snth a case is bo-.u'sc, once he repudiates the contract, the puichascr is no logger bound to do any more lowaids c mpletion, and the \endor cannot iel> on the non—completion in oidci lf> .void payment ol commission, because it is due to his (iw ι fault " Someivill, I J., in Boots *' /' Christopher & Co {suptii), had this it. viy regarding a vendor's wrongful act or fault (at page 10*17) t. " Pul in Us strongest form it is that if one party, by a wrongful act, prevents the fulfilment of a condition which would entitle the other party to reward, the party who has prevented thefulfilment of that condition cannot rely on its non-fulfilment as an answer to a claim for the reward ". Finally, I think that the following extract from the judgment of Stable J. in the Boots case (at page 1049) is also helpful in considering this case : " All I have to decide is, having regard to the matters set out in the three letters thai I have read and having regard to the course ihe negotiations took and to the written agreement which was made, aye or no, have the agents rendered those.services which entitled them to receive the remuneration al Ihe amount agreed ? In my opinion they have " As I have already said, Ihe case turns on the question what was ihe contract; and what was the finding of the trial Court. The appellant's counsel today has contended that the respon dent failed to do what he was employed to do on two grounds: (
- a)that he undertook to find a purchaser and that he has failed to do so, and (
- b)thai he undertook to see lo the pre paration of valid powers of attorney which he has failed to do. So, counsel said, respondent was at fault and he was not entitled to his Commission. Pausing there, I think that we have to look again at the defence lo sec what was really pleaded in this case. This was (
- a)thai the commission was payable after the collection of the purchase money by the vendor and (
- b)that such money was not collected and the transaction went off through the fault of the purchaser. This was the stand taken by the defen dant in his pleading and 'the case was argued on that basis. The trial judge made the findings which 1 have stated earlier, and the onus was on the appellant to persuade this Court thai Ihe findings which the trial judge made were not open to him on the evidence before him. Having heard counsel's address, we are not persuaded that the trial judge was wrong in making the findings which he did make, that is to say, that the plaintiff undcrlook lo find a purchaser which he did, and that he did what he had undertaken to do. The final argument of learned counsel for appellant was that it was the duty of plaintiff to find a purchaser who in fact purchased. Having regard to the facts of this case, we 43 1966 Feb. 3 PAMBOS ANTONIADES Ό. PANICOS KOUSSOULOS 1966 Feb. 3 PAMBOS ANTONIADtS P. PANJCOS KOUSSOULOS are of the view thaUthe respondent performed his part of the agreement because he found a person who was willing to buy, who concluded the agreement with the defendant, handed his cheque for £2,500 for the whole property of 20 donums and when he discovered that the whole property of 20 donums could not be transferred to him he withdrew from the tran saction. Under the circumstances we are of opinion that the transaction went off owing to the appellant's fault who was not ready to have the transfer of the whole property conclu ded at the Land Registry in accordance with his agreement with the purchaser. For these reasons the appeal is dismissed with costs. Appealdismissed withcosts. ** ΑΛ