clr/1967/1967_1_276.pdf

(1)we have reached the conclusion—not without some hesitation—that the date of the termination of the agreement, viz. the 17th November, 1965. stated in that letter is obviously a clerical mistake. We are strengthened inthat view from the concluding paragraph of the letter which refers to the original mandate to sell and states clearly that if the owner wishes to be released earlier from the mandate he should pay the commission in accordance with the contract.

(2)Moreover,wethink that ifthe respondent wasreallyacceding to the request of the appellant to release him earlier, he would have phrased his letter much differently. Although the wording may be somewhat elaborate we are of the view that this letter does not amount to a release prior to the expiry of the original contract which was the 25th July. 1966.

(3)For these reasons the appeal must bedismissed wiih costs. Appeal dismissed with costs. Appeal. Appeal against the judgment of the District Court of Nicosia (Dcmetriou Ag. D.J.) dated the 18.1.67 (Action No. 1682/66) whereby the defendant was adjudged to pay the amount of £70 to the plaintiff as commission by virtue of a contract entered into between the parties. G. Platritis, for the appellant. C Myrianthis, for the respondent." The Judgment of the Court was delivered by : JOSCPHIDIS, J.: The plaintiff's clajm in this case was for £70.— commission by virtue of a contract entered into between the parties. The main ground of defence was thai the said contract was terminated and that the defendant was released of the obligation to pay commission prior to the sale of the properly. Judgment was given in favour of plaintiff and the defendant now appeals against that Judgment. 277 KOKKINOMILOS COSTAS KALISPKRAS 1967 _ * IOANMS KokKi\ovuLu> ι COSTAS KAMSPFRAS ct The facts are mostly common ground especially as regards the documents produced in this case A contract was signed between the parties on the 25th June, 1965, whereby the defendant-appellant authorized plaintiff-respondent, who is a land agent, to sell a building plot situate at Ayios Dhometios j n clause 3 of the contract it was provided that the duration d a t e would be from the 25th June, 1965 until the o f t h e m a n 25th July, 1966 and that thereafter the mandate could be terminated by a fifteen-day notice in writing The original is in Greek and reads as follows «Ή παρούσα εντολή θα άρχίζη άττό της 25ης Ιουνίου, 1965 και θα οννεχίζη μέχρι της τερματίσεώς της διά δεκαπενθη­ μέρου γραπτής εϊδοποιήσεως άλλα εν ουδεμία περιπτώσει ένωρίτερον της 25ης Ιουλίου, 1966» It was furthei provided by clause 5 that 5 % commission would be paid on the first £500 and 2 / 2 % on the balance Clause 7, which is really a draconian provision, provides that, even if the owner of the property (appellant) sold it during the currency of the agreement, independently and without the help of the land agent (respondent), he would still be bound to pay the agreed commission, and clause 8 further provides that, even tf the property was sold after the expiration of the mandate, the owner (appellant) would still be bound to pay the commission if the person who eventually bought the pi opcrty had been brought into contact with him by the land agent (respondent) It seems that some two months after the signing of the agreement the appellant changed his mind and wanted to cancel the agreement In fact, after sending his son-in-law to the respondent to sound him about this, he sent on the 24th August, 1965, the following letter to the respondent «Παρακαλώ όπως το Συμβόλαιον πωλήσεως οικοπέδου είς "Αγιου Δομέτιον, ύ π ' άρ τεμ 851 μπλοκ " Β " του σχε­ δίου ΧΧΙ/45 2, Οπό ήμερομηνίαν 25ης 'Ιουνίου, 1965 σκυρωθτί». The respondent replied by a letter dated 26th August, 1965, (Exhibit 4) which reads as follows «Οΐκόπεδον ΰπ' άρ ΧΧΙ/45 ω 2 τεμ 851 μπλοκ " Β " τοΰ σχεδίου 278 'Ελήφθη επιστολή σας ήμερ. 24.8.65 το περιεχόμενο" της οποίας και έσημειώθη δεόντως. Έπιθυμοϋμευ να σας Οπενθυμίσωμεν οτι ή εντολή σας Ισχύει μέχρι της 17ης Νοεμβρίου, 1965 και δύναται νά τερματισθη μόνον μετά τήν έν λόγω ήμερομηνίαν. 'Επομένως δια νά άποδεσμευθητε ένωρίτερον άπό τήν έντολήν πωλήσεως του ώς άνω οίκοπέδου πρέπει νά πλη­ ρώσετε τήν προμήθειανσυμφώνωςτοΰ ένλόγω συμβολαίου». Nothing presumably happened for a period of about seven months when in March, 1966, the appellant agreed to sell his plot to one Povis for the sum of £2,

1. The trial Judge found as a fact that this purchaser (Povis) first heard about the site being on sale, and the nameof the appellant, from the respondent or his servants in July,
2. The respondent wrote a letter to the appellant on the 17th March, 1966, informing him that there was a prospective purchaser for the sum of £2,500— and stating for the first time that the date mentioned in exhibit 4 (the letter of the 26th August, 1965) concerning the operation of the agreement, i.e. the 17th November, 1965, was a mistake and that thecontract was valid until the 25th July,
3. The appellant did not reply to that letter and eventually the respondent instituted the present proceedings. At the end the trial Judge made the following finding : "Thus in this case, 1 find that, since it was the plaintiff who first informed the purchaser about the site to be on sale bydefcndant (eferc is epafin me to ktima) at a time when the contract was undisputedly binding i.e. in July, 1965, the defendant under the above term of the contract is bound to pay the commission to the plaintiff regardless of the allegation that the sale was finalised after the alleged termination of the contract". The main argument put forward on behalf of the appellant today is that, by stating the express date of the 17th November, 1965, in his letter of the 26th August, 1965, the respondent, in fact, terminated the agreement as from that date and that the appellant was consequently released. There is no doubt in our mind that, apart from the letter of the 26th August, 1965, the respondent would be entitled to receive his commission under the express provisions of the 279 1967 Oct. 13 lOANNIS K.OKKINOMILOS V. COSTAS KALISPERAS 1967 c ^ IOANMS KOKKINOUILUS i'. COSTAL KALISPFHAS contract because the sale was effected in March 1966, prior to the 25th July, 1966, to a person who was brought into contact .with the appellant by the respondent. The only question which w e have to consider, therefore, is whether the terms of the letter of the 26th August, 1965, alter this position. In brief, t r n s appeal turns on the construction of this letter. Having given our best consideration to this matter, after reading the letter itself as a whole and hearing counsel, we have reached the conclusion—not without some hesitation—that the date of the termination of the agreement, viz. the 17th November, 1965, stated in that letter is obviously a clerical mistake. We arc strengthened in that view from the concluding paragraph of the letter which refers to the original mandate to sell and states clearly that if the owner wishes to be released earlier from the mandate he should pay the commission in accordance with the contract. Moreover, we think that if the respondent was really acceding to the request of the appellant to arelease him earlier, he would have phrased his letter much differently. Although the wording may be somewhat elaborate, we are of the view that this letter does not amount to arelease prior to the expiry of the original contract which was the 25th July,
4. For these reasons the appeal must be dismissed with costs. Appeal dismissed with costs. 280