097-NLR-NLR-V-16-DE-VOS-v.-BETT.pdf
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Present: Wood Benton A.C.J. and De Sampayo A.J.
DE YOS u. BETT.
99—D. G. Negombo, 8,428.
Agent—Right to get commission from his principal—Secret arrangementto get a profit out of the transaction—Defamation—Intention toinjure—Person utilizing information given by another regardingsale of an estate—Liability to pay the informant.
An agent who has arranged to make a secret profit out of thetransaction can recover nothing in the nature of commission fromhis employer.
facts appear from the judgment.
AUen Drieberg (with him F. J. de Saram, Jr.), for the defendant,appellant.
A. St. V. Jayezuardene, for the plaintiff, respondent.
Cur. adv. vult.
July 14, 1913. Wood Renton A.C.J.—
The plaintiff, Mr. R. V. de Vos, sued the defendant, Mr. JamesBett, in this action for the recovery of a sum of Rs. 10,000 allegedto be due on the following causes of action, namely, Bs. 7,500 asprofit, of which he had been wrongfully deprived by the conduct ofthe defendant in connection with the purchase by him of Waljapolaestate from Mr. Graeme Sinclair, and Rs. 2,500 as damages fordefamation. The plaintiff puts his case in this way. Acting asMr. Graeme Sinclair’s agent or broker, he negotiated the sale ofWaljapola estate to the defendant for a sum of Rs. 120,000. Thedefendant “ fraudulently and dishonestly utilized” information andknowledge which he had acquired through the plaintiff to purchaseWaljapola estate for Rs. 112,500, and thereby deprived the plaintiffof a sum of Rs. 7,500, which under his agreement with Mr. Sinclairwould have been due to him as commission if the Sale had been carriedthrough at the stipulated pric9. In the alternative the plaintiffsays that owing to the defendant's conduct Mr. Sinclair refused toallow him to negotiate any further for the sale of the property, andclaims his commission as damages. That is his first cause of action.As a second cause of action, he alleges that the defendant ” falselyand maliciously ” denied that he had ever agreed to purchase theproperty for Rs. 120,000, and thereby injured his reputation. Heestimates his damages under this head at Bs. 2,500. The learnedDistrict Judge holds in effect that the plaintiff was acting in thematter of the purchase of Waljapola estate as the agent of thedefendant; that the defendant instructed him to get an offer of the
1913«
MS.
Wood
Renton
A.C.J.
De Vose. Bftt
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estate at the proprietor’s lowest price; that the plaintiff was informedby Mr. Graeme Sinclair that he was prepared to sell the property forRs. 112,600,.-but that if a higher price was obtained he might retainthe difference as commission; that the plaintiff fraudulentlyrepresented to the defendant that the proprietor’s lowest price was-Rs. 125,000, an amount ultimately reduced through his efforts toRs. 120,000; aud that he concealed from the defendant the fact ofthe commission which was to be paid to him by Mr. Sinclair if ahigher price than Rs. 112,600 should be obtained. These findingsare conclusively supported by the evidence, and it is obvious (seeSalomons v. Pender 1 and Andrews v. Ramsay & Co*) that they arefatal, as the learned District Judge has held, to any claim on thepart of the plaintiff to commission or to damages in the nature ofcommission. The statement of objections by the plaintiff to thoseparts of the judgment under appeal which are adverse to him fails.
The learned District Judge has held, however, that the defendantstated untruly, although not fraudulently, to Mr. Tonks, Mr.Graeme Sinclair’s proctor, that he had never agreed to buy theproperty for Rs. 120,000, and that as the defendant had ultimatelysucceeded in buying the property at what really was the proprietor’slowest price through Mr. Tonks, to whom the plaintiff introducedhim, it was fair that he should pay to the plaintiff the ordinarybroker’s commission of 2^ per cent, on the purchase money. Hetherefore gave judgment in favour of the plaintiff for Rs. 2,812.50,but in view of his other findings in the case, he directed that heshould pay to the defendant three-fourths of the costs of the action.
In my opinion the decision of the learned District Judge on thispart of the case cannot be supported. The cases of Salomons v.Pender 1 and Andrews v. Ramsay & Co.2 show that an agent who, aswas the case with the plaintiff, has arranged to make a secret profitout of the transaction can recover nothing in the nature of commissionfrom his employer. Moreover, I do not think that the plaintiff canbe allowed to retain the sum awarded by the District Judge, or anysum, as damages for defamation. Even if the defendant’s statementto Mr. Tonks were untrue in fact, there is nothing to show that itwas made with any intention to injure the plaintiff, or otherwisethan with a desire to protect himself against legal liability. ButI am very far from being satisfied on the evidence that what thedefendant said to Mr. Tonks was untrue.
His Lordship discussed the evidence, and continued: —
It only remains to say a word as to the cause of action alleged inthe plaint- to arise out of the utilization by the defendant of infor-mation obtained by him through the plaintiff, with the result thathe was enabled to buy Waljapola estate at a price most advantageousto himself and destructive of the plaintiff’s anticipated profit.
» (1865) 9H.dC. 639.2 (1963) 2 K. B. 635.
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To this ground of claim there are several answers.^ If the plaintiff,as he alleges, was not the defendant’s agent in the transaction withwhich we are here concerned, there was no reason why the defendantshould not turn to his own advantage any information that reachedhim directly or indirectly through the plaintiff, even if he oausedsome loss to the plaintiff in doing so. On the assumption that theplaintiff was the defendant’s agent, his claim under this head wouldbe equally untenable. His gross misconduct would preclude him,as I have already shown, from recovering anything from the defend-ant on the ground of loss of anticipated commission, and no suchfacts exist in the present case as can bring it within the ratio decidendiof such authorities as Edley v. Koelman.1 The plaintiff brought thedefendant and Mr. Tonks together in order that he might earn hissecret and dishonest commission as speedily and as securely aspossible. Nothing waB further from his thoughts or desires thanthat the meeting should enable the defendant to ascertain the truestate of the facts. I know of no authority which obliges us to hold—and in the absence of authority I decline to hold—that- an introduc-tion of this description comes within the category of those efforts tobring about the relation of buyer and Beller which lay a foundationfor a claim in the nature of commission.
The decree under appeal must be set aside, and judgment mustbe entered dismissing the plaintiff’s action, with the cost of theaction and of the appeal.
1918.
WoodRenton .A.O.J.
De Vosv. Beit
De Sampayo A.J.—I entirely agree.
Set aside.
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1 (1896) 2 N. L. R. 207.