1. This is an appeal against a judgment of Mr. Justice Pearson by the defendant in a suit instituted by a broker for commission alleged to have been earned in respect of the lease of premises belonging to the defendant. On the 23rd August 1918, the defendant Satchidananda Dutt gave a letter of authority to Gosthabehari Sana to negotiate the lease of the properties in question. On the strength of this letter, apparently, one Kirtichandra Dawn, on the 26th August 1918, intimated to Dutt through his solicitor that he was prepared to take the lease, provided the title was approved and the area of the land was not less than two bignas as had been assured by the agent. What followed on this has not transpired, but we find that on the 5th November 1918, Satchidananda Dutt granted another authority to Nrityanath Mitter to negotiate the lease of the properties on terms specified. The terms were as follows:
1. Lease for ninety-one years.
2. Selami Rs. 25,000 (twenty-five thousand) only.
3. Rent Rs. 312 (three hundred and twelve) monthly, for the first five years plus taxes: Rs. 455 (four hundred and fifty-five) plus taxes for the next five years and thereafter Rs. 600 (six hundred) monthly plus taxes for the remaining period.
4. Three-storied building to be erected over the plot with first class materials.
5. Remuneration Rs. 1,800 (one thousand and eight hundred) only to be paid after the registration of this lease.
6. This letter will be void after five days from this date.
7. The party should be a respectable one.
2. On the day following, Dutt addressed another letter to Mitter in which he promised to pay an additional remuneration of Rs. 1,700 only provided the transaction was completed on the terms mentioned in the previous letter. The result of the letter to Mitter was that one Krishnachandra Dey intimated to Dutt his willingness to accept the terms of the lease. The letter, however, contained the following qualifications:
It is of course distinctly understood from your verbal representation to the broker (a) that the existing rent realised from the tenants is not less than Rs. 380 per month and (b) that no tenant holds any lease for a period of more than three years yet to run and (e) that the area of the leasehold premises is not less than 44 cottahs.
3. Thereafter a notification was published on the 26th November by the solicitor of Krishnachandra Dey to give caution that as Dey had accepted a lease from Dutt any one dealing with the owner in respect of the premises would do so at his own risk and peril. Later on Kirti Chandra Dawn appeared on the scene and contended that he had got a concluded contract in his favour, On the 9th December 1918, Dutt took up the position that there was no concluded contract in fact either with Dawn or with Dey inasmuch as neither of them had accepted unconditionally and unqualifiedly the offer of the lease. On the 11th December 1919, the present suit was instituted by the broker against Dutt for recovery of rupees three thousand and five hundred (3,500). The plaint was subsequently amended on the 8th August 1922 by the insertion of an alternative prayer in the following terms:
In the alternative the plaintiff claims the said sum of Rs. 3,500 or such other amount as this Honourable Court may award as damages sustained by reason of the defendant's wrongful refusal to complete the said transaction with the said Krishna Chandra Dey and thus preventing the plaintiff from earning his remuneration.
4. We may state incidentally that Dey instituted a suit against Dutt, Which was dismissed on the 13th February 1923 ; and no foundation has been laid for a possible theory that the contract failed by reason of the wrongful conduct of the vendor-defendant. Dutt defended the present action substantially on the ground that on the terms of the agreement between him and Mitter the latter was not entitled to the remuneration as claimed in the plaint. Mr. Justice Pearson has overruled this contention and has decreed the suit.
5. The principle applicable to cases of this description is well-established. Where the remuneration of an agent is payable upon the performance by him of a definite undertaking he is entitled to be paid that remuneration as soon as he has substantially done all that he undertook to do even if the principal acquires no benefit from his services, and except where there is an express agreement or special custom to the contrary, even if the transaction in respect of which the remuneration if, claimed, falls through provided that it does not fall through in consequence of any act or default of the agent.
6. On behalf of the appellant, reliance has been placed upon the decision in Alder v. Boyle  4 C.B. 635, Beningfield v. Kynaston  3 T.L.R. 3 279, Battamas v. Tompkins  8 T.L.R. 707, Didcott v. Friesher  11 T.L.R. 187, and Howard Houlder v. Manx Isles Steamship Co.  1 L.B. 110. On behalf of the respondent reliance has been placed upon the decision in Greer v. Bartlett  14 C.B.N. 681, Prickett v. Badger  1 C.B. (n.s.) 296, Fisher v. Drewett  48 L.J. Ex. 32, Green v. Lucas  33 L.T. 584, Roberts v. Bernard  1 Cab. & El. 336, Martyrose v. Gourjon  15 C.L.J. 312, Elias v. Govind Chunder Khattick  30 Cal. 202, and Annaswami Iyer v. Zemindar Ayakudi  M.W.N. 199. These cases were analysed and reviewed in the judgment of this Court in Kishan Prasad Sinha v. Purnendu Narain Sinha  15 C.L.J. 40. Our attention has been invited on behalf of the respondent also to the decision in Turner v. Goldsmith  1 Q.B. 544 and Municipal Corporation of Bombay v. Cuverji Hiriji  20 Bom. 124 which was explained in Stokes v. Soondernath  22 Bom. 540. We have been finally pressed with the decision of Mr. Justice Chaudhuri in Raghu Nandan Lal Sarma v. Madan Mohan Das  38 C.L.J. 139.
7. No useful purpose will be served by an analysis of the facts of each of the decisions cited before us. It cannot be disputed that where the parties have made an express contract for remuneration, the amount of the remuneration and the condition under which it becomes payable must be ascertained by a reference to the terms of that contract and no implied contract can be set up to add to, or deviate from the original contract, though it can be interpreted by a reference to custom, not inconsistent with it. [See observations of Lord Justice Bowen in Beningfield v. Kynaston  3 T.L.R. 279, Broad v. Thomas  7 Bing. 99, French & Co. v. Leeston Shipping Co. . 1 A.C. 451.
8. The general principle is thus explained in Haward Houlder and Partners Ltd. v. Manx Isles Steamship Co.  1 K.B. 110.
It is a settled rule for the construction of commission notes and the like documents which refer to the remuneration of an agent that a plaintiff cannot recover unless he shows that the conditions of the written bargain have been fulfilled. If he proves fulfilment he recovers. If not, he fails. There appears to be no halfway house, and it matters not that the plaintiff proves expenditure of time, money and skill. This rule is well illustrated by Alder v. Boyle  4 C.B. 635 (where commission was not payable until an abstract of conveyance was drawn out); Bull v. Price  7 Bing. 237 (where the commission was only payable on money actually obtained'); Battamas v. Tompkins  8 T.L.R. 707 (commission payable on 'completion' of purchase); Clack v. Wood  9 Q.B.D. 276 (commission payable subject to the title being approved by my solicitor'); and by such illustrative decisions as Mason v. Clifton  3 F. & F. 899 (commission to be paid if money is raised on specified terms) and Martin v. Tucker  1 T.L.R. 655 (commission to be paid on the amount of the capital brought into the business).
9. We have consequently to consider the actual terms of the contract between the parties in the present case.
10. As we have already pointed out, the letter of authority, dated the 5th November 1918, states in specific terms that the remuneration of Rs. 1,800 is to be paid after the registration of the lease. The letter of the 6th November 1918, emphasises this and states that an additional remuneration of Rs. 1,700 will be paid provided that the broker completes the transaction on the terms mentioned in the previous letter. We are of opinion that the contract could not have been expressed in clearer terms and that on the true construction thereof, the plaintiff cannot possibly succeed in this litigation.
11. We have been finally pressed by the respondent to hold that the plaintiff ought to have a decree in his favour on the basis of quantum meruit. We are of opinion that this contention cannot possibly be sustained, and in support of this view, reference may be made to the decision in Haward Houlder and Partners Ld. v. Manx Isles Steamship Co. Ld.  1 K.B. 110, where McCardie, J., deals with the question in these terms-
I must point oat that the commission note before mo represented the result of discussion between the plaintiffs and the defendants. It embodied their bargain. They reduced their agreement to writing. There was no collateral arrangement whatsoever. The rights of the plaintiffs are to be found in the commission note alone, and so the parties intended. If this be so, then it follows as Mr. Neilson so forcibly indicated for the defendants that the rule Expressum facit cessare taciturn here applies. There is no scope on the present facts for the operation of the quantum meruit principle. If I were to rule in the plaintiffs' favour, I should ignore the well-established rule and a substantial body of authoritative decisions, in Mason v. Clifton  3 F. & F. 899, Cockburn, C.J., when summing up to the Jury said, 'If...B is employed to procure money upon certain terms, and does not procure it upon those terms, but upon other and different terms, then A will not be liable to him for commission. Nor can B in such case claim to recover a, reasonable remuneration for trouble and labour, for lie has not done what he was employed to do. So too in Green v. Mules  30 L.J. (C.P.) 343, Willes, J. in speaking of the commission agreement there in question said; 'The substance of the matter was, 'If the letter is effectual, I (the defendant) will pay you 100 though not liable; if it is not effectual, I will pay you nothing.' The matter was clearly put in Martin v. Tucker  1 T.L.R. 655 in the judgment of Lord Coleridge, C.J., when he said that the plaintiffs 'could not claim on a quantum meruit because they had chosen to tie themselves down by the express terms of the agreement.' Much the same view was expressed by the Court of appeal in Barnett v. Isaackson  4 T.L.R. 645, where Lord Esher, M.R., said that the plaintiff was only to be paid in case of success, no matter what labour and trouble he had devoted to the matter. Finally, I may mention Lott v. Outhwaite  10 T.L.R. 76 where Lord Lindley, L. J. stated : 'It was said that there was an implied contract to pay the agent a quantum meruit for his services. The answer was that there could be no implied contract where there was an express contract.
12. This was precisely the position adopted by this Court in the case of Kishan Prosad Sinha v. Purnendu Narayan Sinha  15 C.L.J. 40. We are consequently of opinion that in either aspect of the case the plaintiff cannot possibly succeed.
13. We may add finally that the appellant urged before us that the plaint was allowed to be amended at too late a stage and in support of this argument relied upon the decision of Weldon v. Neal  19 Q.B.D. 394. We must not be taken to accept this contention of the appellant as well founded because as pointed out in Kisandas Bupchand v. Bachappa Vithoba  33 Bom. 644, Sivugan Chetty v. Krishna Aiyangar  36 Mad. 378, and Muhammad Seedi v. Abdul Majid  33 All. 616, it is competent to the Court to allow the plaint to be amended even after the expiry of the period prescribed for the institution of a new suit.
14. The result is that this appeal is allowed, the judgment of Mr. Justice Pearson set aside, and the suit dismissed with costs throughout.
15. I agree.