Miller Insurance Agency Ltd v McAndrew

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Louisy, J.
• Judgment Date: 18 June 1970
• Neutral Citation: AG 1970 HC 7
• Docket Number: No. 21 of 1969
• Date: 18 June 1970

High Court of Justice

Louisy, J.

No. 21 of 1969

Miller Insurance Agency Ltd.

and

McAndrew

Contract - Commission Agent — Payment of Commission — Whether the plaintiff was entitled to commission for the sale of property. Facts: Evidence revealed that the defendant agreed to pay the plaintiff a commission if he arranged for the sale of his property at a certain price. The plaintiff introduced potential buyers to the property but their price was unacceptable to the vendor. These potential purchasers on their own made a separate arrangement to lease and then purchase the property. Held: The plaintiff was not entitled to the commission since he was not instrumental in the sale of the property. Plaintiff's claim dismissed.

Louisy, J.

1 In this action the plaintiffs claim the sum of $4,000 for commission earned as real estate agents.

2 The particulars of the indorsement of claim read as follows:–

• 1. The plaintiffs are real estate agents in Antigua.

• 2. On or about the 12 March, 1968 the defendant engaged the plaintiff's to find a purchaser for his property situate at McKinnons and agreed to pay the usual 5% commission on the price arranged.

• 3. Sometime in October, 1968 the plaintiffs introduced to the defendant one Mary Jane Dunlop who subsequently agreed to purchase the defendant's said property for the sum of $80,000.00

• 4. The defendant has not paid the plaintiffs any commission in accordance with the said agreement or at all.

3 The defendant delivered a deference to the statement of claim as follows:–

• 1. The defendant denies being indebted to the plaintiff in the sum of $4,000 as alleged, or any other sum, or at all.

• 2. The defendant denies that the plaintiff arranged to sell his house for $80,0000.00 or any other sum or at all or that the plaintiff introduced the purchasers to the defendant as purchasers or negotiated or concluded any contract of sale on behalf of the defendant.

• 3. in or about the month of March, 1986, the defendant orally instructed the plaintiff to offer his house at McKinnons, Antigua, for sale at the price of $45,000.00 U.S Currency. The plaintiff found no buyer and a few months later, told the defendant that he could secure no higher purchase price than $65,000.00 E.C Currency, whereupon the defendant cancelled his said instructions.

• 4. The defendant entered his own negotiations with two purchasers and concluded a contract of sale drawn in the chambers of a solicitor practising in St. John's with no reference, contact or participation of the plaintiffs or any one on its behalf.

4 The plaintiffs' case is that the defendant had a property which he wanted sold. He came to the plaintiffs' office and spoke to the managing director of the company, Richard Porter. He told Porter that he would like to get $85,000 for the property. He was told by Porter that he would have to pay 5% commission if the sale was arranged by the plaintiffs. Porter said that the defendant stated that he placed a value of between $80,000 -$85,000 on the property. Thereafter Porter tried to get purchasers, he showed the house to 3 persons and eventually to Mary Jane Dunlop and Nicholas Wallace, who go married subsequently and to whom I will refer in this judgment hereafter as the Wallaces. The Wallaces saw the property at least 3 times and made an offer of $32,000 U.S. Porter told the defendant about the offer, defendant did not accept the offer. Another offer of $34,000 U.S was made by the Wallaces but that offer too was not accepted by the defendant. Porter states that he told defendant about that that offer was conditional upon the Wallaces getting a first mortgage from a financial institution. The defendant said that he would speak to the Manager, Barclays Bank to arrange the first mortgage and the credit worthiness of the Wallaces. The property was eventually sod to Mary Jane Wallace for $80,000 E.C.C. Porter states that at one of his discussions with the defendant stated that he was prepared to pay 5%, commission himself if he got the $80,000 - $85,000 E.C.C. for the property, but the first agreement for a commission was 5%,2 ¹/₂ % to be paid by the defendant and 2 ¹/₂% by the purchaser. Some time later, as a result of something that Porter heard, wrote the following letter to the defendant:–

“Dear Mr McAndrew:

As real estate agents of record since 12th March, 1968 for the sale of your house at McKinnons, we are naturally pleased to hear that you have signed a contract of purchase with Mary Jane Dunlop, to whom we originally showed your property. We understand that the purchase price was $80,000.00 E.C.

Furthermore, as you may recall, following your instructions to Mr. Snook of Barclays Bank, we were instrumental in assisting her in obtaining a mortgage. Consistent with your instructions, we hereby submit our agent's fee and/or commission in the amount of $4,000.00 E.C., payable at the closing. There will be no charge for the rental commission under this circumstance.

We would like to thank you for the opportunity of being of service, and also for providing us with such attractive neighbours.”

5 No answer was sent to this letter and Porter did not speak to the defendant about it.

6 Graham Snook, manager Barclays Bank, gave evidence and stated that the defendant was involved with Barclays Bank concerning the property in question. He spoke to both Porter and the defendant about the property. He understood that the plaintiffs were agents for the sale of the property. He knows the Wallaces, that they had discussions with him, they were probably introduced by Porter who had discussions with him about a first mortgage in connection with Mary Jane Wallace. That the Wallaces subsequently purchased the property through Barclays Bank.

7 The defendant's case is that some time in March, 1968 he decided to sell his property on the Old Parham Road. Among the real estate agents he contacted in connection with the sale of the property was the plaintiff company. He states that he spoke to Porter, he told Porter that he want $45,000 U.S. for the property. That he was interested to know what his commission would be; he states Porter told him he would charge him 2 ¹/₂ % of the selling price and the buyer would pay him 2 ¹/₂ %. The defendant states he was anxious to sell the property as he was advised to move to a different climate for health reasons. The defendant states that he saw Porter frequently between March 1968 and July, 1968, about 6-8 times, Porter told him that he had not found a purchaser. Then in July, 1968 he went to Porter's house and Porter told him that there was an English couple who had come here to set up business and that they wanted the house to buy but would not offer more than $65,000 E.C.C. The defendant states that he told Porter that he could not possible consider that price. Porter did not identify the couple. Porter told him that things were bad in Antigua, money was short and that he should seriously consider the offer. The defendant states that he told Porter that he would consider the whole matter of the sale, as he owed Barclays Bank a lot of money on the house. The following Saturday the defendant states, after he had seen the Bank, he went to the plaintiff's office, Porter took him to the back of the office and discussed with him the sale of the property, that some time in July or August, 1968, the defendant states he finally told Porter that $80,000 E.C.C. was sticking to that figure as far as the people he mentioned are concerned the deal is off. The defendant states that he took that to mean whoever the people were the deal was off as far as they were concerned. The defendant did not speak to Porter after this, he sold the property subsequently to Mary Jane Wallace.

8 Nicholas Wallace the husband of Mary Jane Wallace, states that he did the...