JUDGMENT
Wallis, J.
1. This is a suit by the plaintiff, one Annaswami Iyer, against the zamindar of Ayakudi to recover a gum of Rs. 37,500 either as commission on a contract of sale brought about by him of the defendant’s mittah, or as damages caused to the plaintiff by the defendant’s’ wrongful conduct in not completing the sale to the Court of Wards, thereby depriving the plaintiff of the commission to which he would be entitled. Now it is common ground that a contract was entered into between the plaintiff and the defendant first in August 1906, which was afterwards varied as to some of its terms; but by which, as finally settled, the plaintiff, if he effected a sale of the mittah for the zemindar before the end of. December 1906, was entitled to the commission which he claims. According to the final letter, the sale was to be for not less than three and a half lakhs and that the commission, was to be 10 per cent, calculated “on the amount you settle.” That is Exhibit E. But then Exhibit E must be read with the previous agreement for commission Exhibit B. And under that agreement the Commission was payable out of the amount that may be realised; and in that the zemindar says; ‘Nor shall we decline to take the amount that may be arranged in accordance with the aforesaid and over.’
2. Now it is not suggested that this contract was brought about by undue influence or anything of the sort. It is not suggested that it is not perfectly valid. All we have to see is whether the plaintiff under the terms of that contract and in the event which has happened is entitled to the remuneration which he claims. The plaintiff entered into negotiations with the Court of Wards fir the sale of the mittah in the latter part of 1906, the first petition presented on behalf of the defendant being on the 24th August, 1906, and the second petition Exhibit J at a later date. Bat by the end of December 1906, the negotiations were not complete and no sale had been effected. Towards the SIKL-of December on the 29th and 30th, plaintiff Submitted to the defendant two draft letters Exhibits IV and V further extending the time for the completion of the agreement. The defendant did not sign either of these letters for extension of time; neither, according to his evidence, did he at this time or for some time afterwards tell the plaintiff that he was not to do any more work for him. In January, the plaintiff did considerable work towards bringing about the contract and it must have been with the knowledge of the defendant, although the defendant now pretends it was not so. For instance, this affidavit which the defendant swore in the Police Court and which was afterwards filed in the High Court early in January was attested by the plaintiff although the defendant would have me believe he only saw the plaintiff in person once or twice. Then in Exhibit G, on the 6th January, the Court of Wards asked the Zemindar to obtain an order from the High Court postponing the execution of the decree against this estate for three months more in order to allow them to consider the proposals for the purchase of the estate. On the 15th February, we find the plaintiff, as agent to the Zemindar, writing Exhibit P, to the, Court of Wards and informing them that he and the Zemindar were temporarily put up in No. 18, Sydoji Lane, Triplicane and that “any information which the Honorable Board may wish to give or ascertain from us maybe caused to be addressed eitbjer to me or to the zemindar here direct to the above address ” and asking1 the Court to expedite its consideration of the question. There was an answer Exhibit 1 to that on the 18th February, which was addressed from the Court of the Wards to the zemindar at this address, No. 18, Sydoji Lane, Triplicane, which according to the evidence appears to have been the address of Annaswami Iyer. The defendant says he lives at 117, High Road. There is in this Board’s Proceeding 18 Sydoji Lane scored out and ‘117, High Road,’ put in different ink. But doubt if that was done in the Board of Revenue because the subsequent letters from the Board of Revenue are all addressed to 18, Sydoji Lane. Exhibit 1 is a letter saying that the Secretary to the Court of Wards would be glad to see the zemindar about the purchase. Before I go, further I should say that on the 17th January the plaintiff wrote a letter (Ex. VI) to the zemindar. This is what it says: “You delay to write and give though 4 or 5 days have passed since I met you in person and gave copy of letter to Manigaror Avergal. Therefore, I wish you will write original for two letters I gave you, sign and send them to me. I do not in the least understand that you delay in view of what reason. When I ask every day maniagarar Kuppuswamy, they say it will be given and that I may take. Except their saying so there is no chance or hope of its coming. Therefore, I request you will please write and send; if not, it want give me pleasure to work. It is only, therefore, that our work too is delayed.” Now it is admitted that this letter was a request by the plaintiff asking for further letter, extending the time for effecting the sale in writing. No answer was sent to this application on the 17th January either in the nature of an extension or a refusal. He went on negotiating the sale and, in my opinion, it is abundantly proved, with the consent of the zemindar. I have mentioned that the Court of Wards had suggested that they would be glad to see the zemindar on the 20th February. They have Exhibit M written by the plaintiff himself to the Court of Wards saying that that date will not suit the zemindar. It was written from 18, Sydoji Lane, Triplicane, where the plaintiff was residing and that is answered in Exhibit N which is addressed to him at 18, Sydoji Lane, Triplicane. Thf3n it is in evidence that the zemindar paid a visit to Mr. Evans at his house at Adayar and the plaintiff swears that he accompanied the zemindar and seeing from the. documents that it was obviously-the plaintiff with was negotiating and was in charge of the whole affair, I have not the least doubtAhat the plaintiff did accompany the zemindar. Mr. Evans could not speak with any certainty; but he said that he remembered the plaintiff’s face. Against that we have the word of the zemindar who is shown to be utterly unreliable. One of his servants was called and lie does not know whether the plaintiff went there or not. Then we have the man who was called last, the man from Bangalore one Vaidyanatha Aiyar. He say that he was the man who went with the zemindar and acted as interpreter. But this whole story appears tome to be of a most improbable character and I do not attach any importance to it whatever. According to the evidence, the interview was on the 22nd. As the result of that interview on the 25th the proceeding of the Court of Wards was passed. This proceeding, it is worthy of note, is addressed to the zemindar at 18, Sydoji Lane, Triplicane, where the plaintiff was residing, that being the address to which all the communications intended for the zemindar were sent. In it the Court declared its willingness to purchase the estate on condition that the zemindar furnished at his own cost a certificate from the Registration Department to the effect that there were no incumbrances on the property prior to the decree now under execution and that he obtains a certificate from the High Court under Section 305 of the Civil Procedure Code authorising him to sell the mittah to the Court of Wards, and requested him to state at once whether he acceded to the above terms. On the 26th February, the acceptance was sent. That is from the zemindar of Ayakudi and Rettayambadi. It is headed Triplicaneand is in the handwriting of the plaintiff and it is signed by the zemindar, the defendant It says: “Adverting to the Court’s proceedings No. 677 of 1907 dated 25th February 1907, I beg to inform the Honorable Board that I am quite willing to part with my estates of Rettayambadi for the sum of Rs. 3,75,000. I shall duly apply to the High Court and the Registration Departments, obtain from them and produce before your honor the certificate of encumbrance and also a certificate from the High Court.” There is, therefore, an unconditional acceptance of the terms Suggested by the Court of Wards and there was a completed contract for the sale of the zemindari by the defendants to the Court of Wards. That was on the 26th February, 1907. I need not recapitulate the rest of the evidence at very great length. The plaintiff proceeded to take steps to obtain the encumbrance certificate from the Sub-Registrar of Palani; and in this connection it is proved that he sent the zemindar from Madras the sum of Rs. 25 for the purpose of meeting the charges for obtaining encumbrance certificates. And the story put forward by the defence that this money was sent to the zemindar in re-payment of a loan to one of the zemindar’s servants is, I will only say, preposterous. Then they also applied for extension of time. There in the further course of bringing about the sale the plaintiff on the 6th March wrote Exhibit W, from 18, Sydoji Lane to the zemindar styling himself agent and informing him of the progress of the business; and it is only then, when the complete contract of sale had been made, when all the work the plaintiff had contracted to do had been done, that this zemindar, who is obviously a dull uneducated man and probably largely under the influence of whoever happens to be in his immediate surroundings, wrote a letter of repudiation, Exhibit Y, on the 29th March, 1907, in which he says “you are already well aware of the fact that (yourself) being unable to complete the loan in accordance with the power letter written and given to you only in respect of settling loan to us before, the aforesaid power letter has become cancelled. While there has been no sort of connection and affinity between you and me, subsequent to that, either in regard to settling loan or in any other kind of business, that you should style yourself as (my) agent in the letter you wrote to me from Madras is entirely incorrect.” That statement is an impudent falsehood, that there was no connection between the plaintiff and the defendant subsequently to the beginning of January. Even if you might have perhaps styled yourself as my agent in my affairs, defrauded me, obtained my signature and conducted affairs, they will all be treated as invalid, without any effect.” Obviously the defendant and his advisers hoped by means of this letter to get out of paying for the services which had then been rendered by the plaintiff. The plaintiff in answer to that wrote a letter pointing out that the notice sent by the zemindar was received by him and stating not only “I am surprised at seeing that notice, I am also led to think that it has been written with a fraudulent object. While you had been appreciating till the 28th March last, any having performed the business relating to your zemin, being your agent, your having sent a notice now only leads me to think that it has been written with some evil intention and not otherwise. However, you need not think that by this notice the understanding which we had come to becomes void or that the physical trouble taken, worry, expense etc., which I have till now suffered on account of the said zemin, will fail to bind you, in the light of this notice. If, in future, documents, &c. fail to be completed on account of your failure of memory and if business be not consequently completed, I request you will take notice hereby that I shall not be in the least responsible therefor.” The evidence for the plaintiff is that he subsequently met the zemindar in Triplicane when the zemindar said that his letter had been written under influence and that the zemindar and his sister asked him to go on and that he did go on. The plaintiff’s account of himself is perhaps not such as to lead me to attach any great weight to his uncorroborated statements. But looking at the probabilities of the case, I see nothing improbable in his statement as to this being a true case. We find that he did go on for some months after this, taking steps to procure the certificate of encumbrances and the information which was required by the Court of Wards. Whatever else may be said of the plaintiff, he is obviously a man of intelligence while probably the other advisers of the zemindar are not. I think, they could not get on without him, because, this time they were apparently anxious to effect the sale to the Court of Wards. In Exhibit A, we find a communication from the zemindar being sent and there is a postscript in the handwriting of the plaintiff. That is, I think, on the 15th May. There is again a long communication from the zemindar from the address of the plaintiff in Triplicane to the Court of Wards signed ‘Annasmi for Zemindar’ and giving the necessary information called for by the Court of Wards:
According to the Courts’ proceedings and in continuation of my letter of the 13fch instant I despatched to the Honorable Board, (1) a certified copy of the Proceedings of the High Court, dated 25th April 1907, granting1 extension of time for payment of decree amount and (2) a public copy of the encumbrance certificate granted by the Sub-Registrar, Palani. The letter gave various details as to those prior encumbrances which the Court of Wards required to be assured before purchasing the estate on behalf of its ward, the Sivagiri minor. And then also on the 18th June we find that he writes urging them to expedite the sale. And then on the 23rd June also he further urged them to expedite the enquiry. Then the plaintiff tells us that he became ill. Up to that time it is quite clear that the Zemindar had left all negotiations for the sale in the hands of the plaintiff. After that time it is not clear what happened. The plaintiff was ill for 6 months and the defendant kept him in the dark. We hear no more until the next document Exhibit F F of the 23rd August when the Zemindar sent the certificate obtained from the High Court authorising him to sell under Section 305, Civil Procedure Code. This part of the business undoubtedly was being carried on by somebody else on behalf of the Zemindar. And then on the 30th August by Exhibit G G the Court of Wards asked for information as to the discharge of certain encumbrances and if not discharged, as to how they are to be satisfied. Then we have Exhibit H H on the 12th September in which various information is given to the Court on behalf of the zemindar on those points. Then Exhibit J J is a request from the Court of Wards that a representative of the Zeminar should see the Government Solicitor. It is admitted that the representative of the Zemindar did see the Government Solicitor. He was not put into the box here for some reason or other. The meeting apparently was after 8th October and before the 25th October, because on the 25th October, the; Government Solicitor writes Exhibit L L saying your agent hay doubtless already communicated to you the result of his interview with me and asking for certain other copies as well as the copies he had already asked for. Then on the 30th October it appears from another letter of the Government Solicitor that the Agent of the Zemindar/had gone back and asked to have in writing the Requirements of the Government Solicitor and accordingly the Government Solicitor states that these requirements are: Registration copies of documents, items Nos. 6, 7, 9, 10, 24, 29, 30, 34, 35, 36, 37, 40, 41, 42, 43, 44, 45, 48, in the incumbrance certificate and also of the Hypothecation deed, dated 1st April, 1907, to A; Ramanathan Chetty a proper releases giving up all claims against the mittah from the parties in whose favour the documents, items Nos. 24, 86, and 37 have been executed or their legal representatives and also from Muniratnammal referred to in No. 35.” Then on the 3rd November Exhibit N N was written and we shall see later for what reason the Zemindir writes that he has been called upon to do things highly inconvenient and also impossible for one to do in the circumstances.” Then by the Exhibit O O of the 8th November he was informed that the proposed purchase must fall through unless he furnishes the documents, and supplies the information for which the Government Solicitor has asked and which his agent had agreed to supply. He answers it by Exhibit P P; on the 24th November which says “I cannot possibly comply with your requisitions contained in the above letter and that I consider the negotiations as having come to an end altogether from this date. Please be good enough to return to my Vakil Mr. V.C. Ananthakrishna Iyer, High Court Vakil, Mylapore, all the documents that I have sent to you from time to time in connection with the Rettiyambadi negotiation.” Mr. C.V. Ananthakrishna Iyer was the Vakil of one Veerappa Chetty, to whom two days later the defendant sold the Zemindary for the price at which he had agreed to sell it to the Court of Wards by Exhibit Q Q on the 26th November. Now the case of the defendant in the written statement with regard to this matter is that after the negotiation with the Court of Wards fell through and after they refused to buy the Rettiyambadi mittah, the defendant entered into negotiation with and sold the same to one Veerappa Chetty. He also says that the sale to the Court of Wards insisted on certain conditions which this defendant found it impossible to comply with in spite of his best endeavours. Now the defendant has absolutely failed to prove either of those allegations. He has suppressed the encumbrance certificate which would show us as to who are the persons from whom the Court of Wards required releases to be obtained, although it is proved that the encumbrance certificate was returned to him. The defendant has put into the box one named Chockalingam Pillai, but there is no evidence that the Court of Wards ever wanted any release from him. He has also put into the box a servant of his who says they asked for release from other men and one of them is Ramandha Chetti and that they refused and asked for money. They have not been called and I do not attach the slightest weight to this evidence. As regards this Krishnaswami Reddi who was apparently the person who managed the business for the defendant after Annasami ceased to act for the defendant and who really must have known about these, has not even been, put into the box. On the other hand it is shown that early in October the defendant obtained a loan on pro-note from Veerappa Chetty, and it also appears that he went to a certain place in Tanjore near Mayavaram where the Chetty resided and negotiated the sale there. And it is clear, to my mind, that the reason, why the sale to Court of Wards went off was not because there was anything unreasonable or impossible in the requirements of the Court which after all were only a concession on their part because what they had stipulated for in their original contract and what the defendant had undertaken by Exhibit P to give, was a clear certificate showing no prior encumbrance from the Registration Department. It is clear to my mind that the reason why the sale went off was simply because the defendant preferred to sell the property to Veerappa Chetty rather than to the Court of Wards.
3. Under these circumstances the only question have to consider is whether the plaintiff is entitled to the stipulated commission. There is no doubt that by the agreement of 1906, time was of the essence of the contract. But I think the only reasonable inference to be drawn from the proved and admitted facts is that the defendant did not insist upon that condition as to time and further than that, that he covenanted that the plaintiff should afterwards go on working and bring about the sale; and that the only inference is that the plaintiff was to go on working on the same conditions as before. And I think that when the plaintiff had succeeded in obtaining the contract to sell in February, it was too late then for the defendant to turn round and reprobate his bargain with the plaintiff. I think also this case comes within the provisions of Section 55 of the Contract Act which says that if the intention of the parties was that time should be of the essence of the contract, it becomes voidable at the option of the promise. If in case a contract, voidable on account of the promisor’s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non performance of the promise at the time agreed unless at the time of such acceptance he gave notice to the promisor of his intention to do so thereby clearly showing that it was open to the Zemindar, if he liked, to accept performance subsequently to the end of the December and I have no hesitation in drawing the inference of fact that he did accept the performance. No doubt, there is evidence that he refused to give any written extension of time to the plaintiff but it may be that he was hoping to escape from liability when he refused. But lam of opinion, nevertheless, that if he accepted performance, he became liable under the contract to pay the commission stipulated for. Now various cases have been cited to me as to the circumstances under which an agent’s right to commission arises. It is perfectly clear that if an agent brings about a sale and the sale goes off through, the caprice of the vendor that in such a case the agent is entitled to his commission. Whether having regard to the terms of the contract, it is to be treated as already earned won once completed contract for sale is made, or whether it is to be considered as damages for breach of contract by the principal that he would carry through the sale so as to enable the agent to earn his commission if he brought about the contract–whichever view is taken of it, it appears to me that in this case; the agent is entitled to his commission. In Green v. Lucas 33 L.T. 584 and in the case of Elias v. Govind Chunder Khatica 30 C. 202, it was held on the construction of those contracts that once there was completed contract, the agent was entitled to commission. In Prickett v. Badger 1 C.B. (N.S.) 96 : 26 L.J.C.P. 33 : 3 Jur. (N.S.) 66 : 5 W.R. 117, it was held by Mr. Justice Willes that if any agent was prevented by default of the principal from earning his commission, he was entitled to the full amount of commission as damages. So as regards this case, it does not matter which way it is stated. In either case, in my opinion, the plaintiff is entitled to the commission which ho claims and I give judgment for him with costs.
4. As to the question of jurisdiction it is proved that the contract between the zemindar and the Court of Wards by which the commission was earned was made in Madras (Exhibits O & P). I accept the evidence of the plaintiff that it is only a few days after the visit of the defendant to the Secretary to the Court of Wards that Exhibit P., the final acceptance, was given by the defendant. Under these circumstances, I do not understand how it could be said that no part of the cause of action arose in Madras. I find the issue as to jurisdiction for the plaintiff.
