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P.A. Martyrose Vs. C.A.E. Curjon and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in14Ind.Cas.981
AppellantP.A. Martyrose
RespondentC.A.E. Curjon and anr.
Cases ReferredPrickett v. Badger
principal and agent - agent employed to sell at given price--purchaser found by agent--refusal by principal to sell--commission--agent entitled to remuneration. - sale, j.1. this is a suit by the plaintiff to recover remuneration which, he alleges, the defendant agreed to give him for services in cnnection with the sale of certain property which the defendants wars desirous of effecting. the property in question was a portion of the patni rent of certain zamindary estates in which the defendant miss courjon was entitled to a life-interest, and the first defendant was entitled to the reversion expectant on the death of the life-tenant. the plaintiff shapes his case in two ways. he alleges, first, that the employment was to find a purchaser for 4/9ths of this patni rent at the price of four lakhs of rupees, it being stipulated that he was to receive brokerage or commission to the extent of 2 1/2 per cent, of the purchase-money. he alleges further.....

Sale, J.

1. This is a suit by the plaintiff to recover remuneration which, he alleges, the defendant agreed to give him for services in cnnection with the sale of certain property which the defendants wars desirous of effecting. The property in question was a portion of the patni rent of certain zamindary estates in which the defendant Miss Courjon was entitled to a life-interest, and the first defendant was entitled to the reversion expectant on the death of the life-tenant. The plaintiff shapes his case in two ways. He alleges, first, that the employment was to find a purchaser for 4/9ths of this patni rent at the price of four lakhs of rupees, it being stipulated that he was to receive brokerage or commission to the extent of 2 1/2 per cent, of the purchase-money. He alleges further that he obtained a purchaser who was ready and willing to purchase this property upon those terms, and that in fact, a concluded agreement was arrived at between, the vendors and the purchaser with respect to the purchase of the property upon those terms, and that the defendants, the vendors, wrongfully withdrew from that arrangement and negotiated with another purchaser for the sale of the property. In the alternative, he claims the remuneration for his trouble and labour in procuring a purchaser who was willing to purchase upon the terms fixed by the defendants.

2. The first ground of defence is in connection with the alleged employment of the plaintiff by the defendants. The second defendant, Miss Courjon, admits that she did employ the plaintiff to find a purchaser upon the terms mentioned by him, but that, inasmuch as he was unable to find a purchaser willing to give the price she required, that she cancelled his authority and that sub3equsntly she was induced the employ him by reason of certain false representations which he made and which she believed to be true, and upon that ground she contends that he is disentitled to the remuneration which he claim?. The first defendant, Mr. C.A.E. Courjon, denies that he ever employed the plaintiff at all, and Miss Courjon in her evidence has stated that she acted in this matter, that is to say, in the employment of the plaintiff for negotiating the sale, without the consent or the authority of her causin, the first defendant, and indeed in opposition to his express wishes.

* * * * *

3. There can be no doubt that from the beginning of the negotiations to the end, both the defendants ware willing and desirous that a purchaser should be found for this property for four lakhs of rupees, and there can be no doubt also that both the defendants knowingly entrusted to the plaintiff the task of finding a purchaser for the property on these terms.

4. Now, the next question is as to whether the plaintiff did what he was commissioned to do. Did he succeed in finding a ready and willing purchaser to purchase 4/9ths of the malikana rights to which the defendants were entitled upon the defendants' terms and was there a completed contract come to between the vendors and the purchaser relative to the sale of that property?

[His Lordship then dealt with a minor point of no importance in the case.]

5. Now, I proceed to the second issue. The question is whether the plaintiff performed the duties which were entrusted to him by the defendants. Being authorised, as I have said, on the 29th of May to find a purchaser at four lakhs of rupees, an interview follows between the plaintiff and Babu Mohini Mohan Roy, who was a wealthy zemindar and a Pleader of this Court. There is no doubt that the plaintiff, besides being employed by the defendants, was acting also on the part of Babu Mohini Mohan Roy and the evidence shows that as a matter of fast there were only two purchasers in the field with reference to this property. One was Maharaja Durga Charan Law who was the mortgagee of the property, and who held a mortgage over it to the extent of some as lakhs of rupees, and the other intending purchaser was Bubu Mohini Mohan Roy. Mr. Owen, a broker and house agent, was acting for Maharaja Durga Oharan Law very much in the same way as the plaintiff was acting for Babu Mohini Mohan Roy, and the negotiations consisted really in these purchasers being played off one against the other. Neither of them was anxious to come forward and commit himself to an offer for this property until he pretty well knew what the other one was going to do. The reason is obvious: that while the mortgagee was anxious not to allow the property to pass from him, the other purchaser was not desirous of making an offer which might be out-bid by the mortgagee. Babu Mohini Mohan Roy died sometime in the year 1898, so that his evidence is not available in this case, but it appears that in respect of these negotiations, he was represented by hisson, Dakshina Mohan Roy. The interview between the plaintiff and the two Roys took place at the house of the latter on the 31st of May, and the plaintiff says he was armed with the authority to make what he calls a closing offer to his purchaser. This is denied by the defendants, but whether that be true or not, I think it is, quite clear that both the defendants gave the plaintiff to understand that they were willing to accept his purchaser at the price of four lakhs of rupees, and that the plaintiff was to deal with him on that footing. The question as to the precise authority given to the plaintiff on the 29th of May becomes immaterial having regard to the attitude adopted by Babu Mohini Mohan Roy. It is quite clear that Babu Mohini Mohan Roy was not prepared to accept his authority for concluding this bargain. He was, as 1 have said before, particularly anxious not to make an offer which could be questioned or which could be made the basis of a higher offer by the mortgagee. Accordingly, he caused two documents to be drawn up which he intended should be signed by the defendants, which would have the effect of providing him with an acceptance of his offer by the defendants in writing. In other words, he was prepared to make his offer of four lakhs of rupees to the defendants if they would give him their acceptance of that offer then and therein writing. Accordingly, in the course of that day, the following document was drawn up under Babu Mohini Mohan Roy's instructions. There were two copies or counterparts of this document, one to be retained by the defendants and one by Babu Mohini Mohan Roy. It is to the following effect:

1. Memorandum of agreement for the sale of malikana rights in zemindari. The late Mr. Eugene Joseph Courjon was the owner of zemindari in the District of Commila and Noakhali, which he let out. in putni, reserving to himself net malikana profit of Rs. 45,C00 per annum.

2. We, Isoline Courjon, niece, and Charles Achille Edmond Courjon, nephew of the said Eugene Joseph Courjon, and universal legatees under his last Will and testament, consider it expedient to sell Rs. 20,000 out of the said Rs. 45,000 or 4/9ths share of the said malikana for the purpose of paying off mortgage on the said property of Maharaja Durga Charan Law, the mortgage debt amounting to about 3 1/2 lakhs, and for other purposes.

3. We, the said Isoline Courjon, and Charles Achille Edmond Courjon, do agree and undertake to sell and cause to be sold to Babu Mohini Mohan Roy of Bhowanipur 4/9th share of the malikana rights of the zemindari aforesaid at twenty years' purchase or for four lakhs of rupees, and to convey and secure to him a good and valid title to his satisfaction.

(4). The said Babu Mohini Mohan Roy has paid Rs. 5 as consideration for this agreement.

(5). This agreement is executed in duplicate, both original and duplicate being countersigned by Babu Dakshina Mohan Roy, general attorney on behalf of the said Babu Mohini Mohan Roy, in token of his assent to the terms thereof.

6. Now Babu Dakshina Mohan Roy took the two documents with him on the 31st of May and an interview follows with the defendants at the house, of Miss Courjon. While the documents were being drawn up, a message was sent to Miss Courjon that the plaintiff would attend at her house with certain documents which were to be signed by her with the object of completing the agreement for sale of the property. On receiving that intimation, Miss Courjon wrote a letter to Mr. McNair, the senior member of Messrs. Morgan and Co., asking him to be present. Mr. McNair being otherwise engaged was unable to attend; consequently, Mr. Foley, representing the firm, attended. The parties, therefore, present at that interview were Mr. and Miss Courjon, the defendants, the plaintiff, Babu Dakshina Mohan Roy and Mr. Foley. There was a clerk of Babu Dakshina Mohan Roy also present. There is a great deal of contest as to what took place on this occasion as also on the earlier occasions both at the house of Miss Courjowand at the house of Mohini Mohan Roy. Much of this contest is on points which it seemed to me were really immaterial, but as regards the really important thing which took place at the interview last mentioned at Miss Courjon's house on the 31st of May, there can be no doubt at all. There is no doubt at all that these documents were presented to Mr. and Miss Courjon for their signature; there is no doubt at all that Mr. Foley, feeling that he was not himself familiar with the affairs of the defendants, was averse to the defendants giving their final assent to the purchase, and requested them in the first place to refer to Mr. McNair. There is no doubt that Miss Courjon for herself was prefectly willing to complete the bargain on that occasion. Mr. Foley says that Mr. Courjon after some hesitation said he would prefer to refer to Mr. McNair. The documents were taken away, or one of them was, by Mr. Foley and Mr. Foley made an entry in his Day-Book with reference to what took place at this interview.

7. So that the important fact as to what took place at that interview is made as clear as it can be by this entry. There can be no doubt at all that the defendants and the purchaser were in agreement as to the terms on which the property should be sold. There was no dispute as to the terms between the parties, except perhaps as to the earnest money to be paid and the time within which the contract was to be carried out, matters of detail as regards which no difficulty could have arisen. All that was required and what Mr. Foley advised was that there should be a reference first to Mr. McNair, and there can be no doubt that at that interview every body thought the matter was practically concluded subject only to Mr. McNair's approval being obtained. No doubt it was open to Babu Dakshina Mohan Roy, finding that the defendants were not prepared at that time under the advice of Mr. Foley to sign these documents, to have withdrawn his offer, but it is quite clear that he did not at that time withdraw it, and I think the reason is obvious: that every body thought there would be no difficulty at all about the matter. It was arranged that Mr. McNair should call in the afternoon, and Babu Dakshina Mohan Roy was invited to be present, and there cannot be a doubt that what the parties thought was that the matter would then be finally concluded. I think the facts show that until the defendants had signified their acceptance of his offer, Babu Dakshina Mohan Roy did not suppose that he had bound himself by any definite agreement for the pur-chase'of this property. He was willing to let the matter remain open until the evening of that day, and then happened just what he had been endeavouring throughout to avoid. There is no doubt that as soon as the offer was made by Babu Dakshina Mohan Roy, news of this was carried to the mortgagee, so that we find Mr. Owen writing on behalf of the mortgagee a letter to Miss Courjon, which Miss Courjon says she received sometime daring the interview with Babu Dakshina Mohan Roy, offering Rs. 4,10,000, that is to say, the offer of the mortgagee took the remarkable leap from Rs. 3,60,000, which was the amount offered in the morning of the 31st of May through Mr. Owen, to Rs. 4,10,000 offered in the course of the afternoon, and this offer was further increased to Rs. 4,20,000 on the following morning after Mr. McNair's intervention. What took place after the interview just referred to is thus stated in an entry which appeals in Mr. McNair's Day-Bonk. This is the entry:

Attending you at your residence and conferring as to the negotiations which had taken place with Mr. Roy, and as we consider you should obtain more than 20 years' purchase of the malikana rights proposed to be sold, we were to see Maharaja Durga Charan Law with reference to an offer he had made.

8. Maharaja Durga Charan Law was seen by Mr. McNair with reference to this matter and what happened was that the last offer of Rs. 4,10,000 was further raistd to Rs. 4,20,000, and there cannot be much doubt that the increase in the amount offered was the direct result of the proceeding between the defendants and Babu Dakshina Mohan Roy, of which the mortgagee was doubtless informed by Mr. McNair so that the final effect and outcome of the transactions between the parties may be thus stated: That in response to the request of the defendants, the plaintiff produced to them a purchaser who was there and then willing to enter into a binding arrangement to purchase the property upon the defendants' own terms: that the defendants having come to a substantial understanding with the purchaser, and being in agreement with him as to the terms, are advised to reserve their final assent pending a reference to their attorney, and they subsequently withdraw altogether from the proposal made by the plaintiff's purchaser, and eventually sell the property to another purchaser at a considerably enhanced price. The question is, whether, under those circumstances, the plaintiff is entitled to any and what remuneration. It is contended that the arrangement between the plaintiff and defendants amounted to this: that he was to obtain his remuneration only in the event of the transaction being carried through to a completed purchase, and it is alleged that his claim is made upon that basis and upon that basis alone. Now the plaint makes this alternative claim. 'In the alternative, and in case this Hon'ble Court should hold he is not entitled to recover the said sum of Rs. 10,000 as hereinbefore claimed, he claims to recover the said sum from the defendants a? damages and as remuneration for his work and labour, time, trouble and expense in and about endeavouring to procure and procuring such purchaser as aforesaid, and he says that the said sum is a reasonable compensation for the same.'

9. When the issues were settled, the learned Counsel on behalf of the plaintiff desired to raise an issue as to what was a reasonable amount to which the plaintiff was entitled by reason of his procuring a purchaser on the terms proposed by the defendants. It seemed to me, from the opening of the learned Counsel of the plaintiff's case and upon the pleadings, that the plaintiff came to a special agreement with the defendants as regards his employment, and was entitled to the full amount of the remuneration agreed upon or nothing at all, and I, therefore, thought that no issue of the nature could or ought to be raised. Subsequently, however, the authorities bearing upon this matter were gone into in considerable detail, and I think there is no doubt that the plaintiff is entitled to claim, as he has done in the alternative, reasonable remuneration if the facts showed that he had done all he was employed to perform, and that it was only the act of withdrawal on the part of the defendants which prevented the proposed sale from being carried out, or at least a binding agreement for the sale of the property being arrived at between the parties. I think that is clear from the case of Prickett v. Badger 1 C.B. (N.S.) 96 : 226 L.J.C.P. 33 : 3 Jur. (N.S.) 66 : 5 W.R. 117 : 107 R.R. 668 : 28 L.T. (O.S.) 65. The facts of that case were similar to those of this. An agent was employed for an agreed commission to sell land at a given price. He succeeded in finding a purchaser at the stipulated price. Having done so, the principal declined to sell, and it was held that the agent was entitled to sue for reasonable remuneration for his work and labour. There was an objection taken to the form of the action. It was said that the action was wrong in form and it ought to have been a special action for wrongful withdrawal of the agent's authority. That objection was, however, overruled, the Judge remarking that it was 'competent to the plaintiff to sue upon a quantum meruit' and he likened the case to that of 'a man, who, having a house which he is desirous of letting or selling, places it in the hands of several house-agents; in which case, he said, that though the successful agent alone would be entitled to claim commission, the others would clearly be entitled to something for their trouble.' The Lord Chief Baron in leaving the case to the Jury thought that inasmuch as the sale had not been completed, the plaintiff was not entitled to the full amount of his commission of 1 1/2 percent, but that he was still entitled to recover reasonable remuneration for his services. The Jury awarded 50, the whole amount of the claim in that action being 153-5. A Rule nisi for a new trial was obtained, and the matter was elaborately argued and the learned Judges were of opinion that the plaintiff was entitled to sue for reasonable remuneration, holding that the law would under the circumstances imply a promise on -the part of the employer to remunerate the agent for what he had done. One of the learned Judges, Mr. Justice Willes, remarked that he thought it was open to the Jury to have awarded to the plaintiff, if they had seen fit, the full amount. That case was followed by this Court on a reference from the Small Cause Court, in the case of E.S.A. Cohen v. Modhusudan Dutt unreported. The facts as found by the learned judge of the Small Cause Court also bear a strong resemblance to the facts in this case. The plaintiff, a broker, was employed by the defendants to find out a purchaser of certain property situated in Calcutta. He did so, and eventually the purchase price was agreed upon between the vendors and the purchaser. Subsequently, a new term in the contract was introduced by the vendors that the purchaser should be subject to the approval of Messrs. Watkins & Co. Mr. Farr, respresenting Messrs. Watkins & Co., declined to accept the purchaser and the result was that the sale did not go through. The broker then brought his action for the full amount of his brokerage which had been fixed at the rate of one per cent, on the purchase-money, and the learned Judges of this Court held that, apart altogether from the question as to whether a completed contract had been made between the vendor and the purchaser for the sale of this property, it was clear that the broker had done what he was commissioned to do, namely, he had provided a purchaser who was ready and willing to purchase at the vendor's price, and that being so, that the broker was entitled to recover the amount claimed. The same principle is, I think, sufficiently clearly laid down in the case of Grogan v. Smith (1890) 7 T.L.R. 132. That was a case of a claim by an agent to recover commission for the sale of an estate, the sale of which was not completed. The vendor desired a purchaser who would be willing to give 5,000 guineas for the property, the agent found a purchaser who only offered 5,000, and lie qualified that offer by a certain stipulation that there should be a direct release from a person mentioned. Negotiations ensued, and what the learned Judges found was that the negotiations never came to an agreement at all, and that the parties were never in agreement about the terms, and Lord Esher made the following observations: The agent, in order to earn a commission, was to get a purchaser, an actual purchaser, not merely a person who might become a purchaser, but one who would enter into a binding contract, binding him to purchase the house. It was true that the plaintiff had an alternative right of action if he could show that he did obtain a person who was ready and willing to enter into a binding contract; if he could show that the two parties, vendor and purchaser, were really agreed as to all the terms of the contract, that it was prevented from becoming a binding contract only by reason of the fault or default of the defendant in refusing to make the agreement valid and binding.' Now, the alternative case presented by Lord Esher seems to me precisely the case of Prickett v. Badger 1 C.B. (N.S.) 96 : 226 L.J.C.P. 33 : 3 Jur. (N.S.) 66 : 5 W.R. 117 : 107 R.R. 668 : 28 L.T. (O.S.) 65. That being the state of the law, the question is whether the plaintiff has done anything to disentitle him to reasonable remuneration for his services. It is contended, on behalf of the defendants, that he is disentitled to any remuneration and the ground is thus stated in the written statement of Miss Courjon. She says that, after having cancelled the plaintiff's authority, the defendant (Miss Courjon) Was informed by the other defendant that he had met the plaintiff who had informed him that the said Mr. Owen (that is to say, the broker who was acting for the mortgagee), who had been employed by this defendant, was deceiving her and was in league with the said mortgagee, and would prevent others from offering to purchase the said property so that the property might be sold to him at a low rate, and if not so sold, that the said Maharaja would foreclose the said mortgage, and the other defendant farther informed this defendant that the plaintiff had asserted that the said Mr. Owen had requested him, the plaintiff, to keep out of the field, and that he, the plaintiff, would receive his commission from the Maharaja by sitting at home.' She proceeds to allege that, relying upon these representations, she again employed the plaintiff on the 29th of May. It appears that there was a mistake in the fifth paragraph of the written statement, and that the fact was that these representations had not been made by the plaintiff in the first instance to the first defendant, but that they had been made to Rajab Ali, who was Munshee in the employment of the first defendant, Mr. Courjon, and it was alleged on behalf of the defendants that their object in sending for the plaintiff on the 29th of May was to hear as to whether or not he had made the representations mentioned in the written statement. These representations are not entirely of a character new to the defendants because the defendant Miss Courjon says in her written statement that, so far as regards the possibility of the mortgagee foreclosing, she had understood this from the plaintiff in the course of their preceding correspondence, and it is quite clear that Miss Courjon and Mr. Courjon were on their guard as regards statements of that sort because the negotiations go on notwithstanding, and they persist in demanding the price which from the first they had asked for. It is not suggested that the representations complained of had the effect of inducing the defendants to accept a lower price or to give a higher remuneration to the plaintiff, or that indeed they in any way operated prejudicially upon the defendants. The allegation, so far as I understand the defendants' case, is that in consequence of those representations, Miss Courjon was induced on the 29th May to employ the plaintiff rather than Mr. Owen, the rival broker. In other words, the effect of these representations, so far as I can gather, was that they induced the defendants to entrust the finding of a purchaser at four lakhs of rupees to the plaintiff rather than to Mr. Owen, and they did so because they believed the very disparaging statements which they allege the plaintiff made as regards Mr. Owen. Of course, if it is true that the plaintiff did make those very disparaging statements regarding Mr. Owen, Mr. Owen has a remedy, civil and probably criminal also, but I have never been able to perceive what the importance or relevancy of those representations is as regards the issue between the plaintiff and the defendants in this case. A great deal has been made of them, and it seems to me very undue prominence has been given to what is really a quarrel between the brokers. Assuming that the plaintiff made these representations, if it appears that he nevertheless himself did do what he was commissioned to do, that what he did was of substantial advantage to the defendants, how can it be suggested that the plaintiff is disentitled to remuneration merely because he obtained that employment by means which were unfair to the other broker? As I have said, if the fact was that the representations had induced the defendants to do something which was to their prejudice, the case would have been very different. The defendants had determined to sell their property for four lakhs of rupees long before the representations are alleged to have been made, and this determination was in no sense induced by, the alleged representations. I can see no difference between the case of the plaintiff, if he did make these representations and so obtained his employment, and the case of an unscrupluous shop-keeper who makes similar representations in disparagement of a rival and so induces a customer to come into his shop to purchase an article, when but for these representations, the rival might have obtained the custom. In either case, the purchaser would be bound to pay the price of the article purchased. But then, apart from this question as to the relevansy of these alleged misrepresentations, the question is whether the evidence is such as to justify me in saying that they were in fact made, and if made, whether they were false. As I have sail, as regards certain of these alleged misrepresentations, they had been either hinted at or expressly made in the course of the correspondence which had previously taken place between the plaintiff and Miss Courjon. As regards the allegations impugning the honesty of Mr. Owen, they rest upon the evidence of Miss Courjon and her cousin, but there is no corroboration of that evidence except such as is to be found from the repetition of these alleged representations by Miss Courjon on the 3rd of June to Mr. McNair. Now, when these statements were repeated by Miss Courjon as having been made to her by the plaintiff, the negotiations between the defendants and Babu Mohiny Mohun Ray had fallen through, and possible claims bath by the plaintiff and Mohiny Mohan Boy, arising out of the rejection of the latter's proposal at the last moment, must have been present to the minds of the parties. Moreover, when I remember the serious discrepancies between the evidence of both Mr. and Miss Courjon and the statement? made in the correspondence and also in their written statements, I do not think I should be justified in saying that the proof of the making of the representations by the plaintiff in the manner the defendants allege, is satisfactory or sufficient. I think also that there is this further observation which I ought to make, namely, that it is possible, I do not say it is probable, that though the plaintiff denies having spoken about Mr. Owen at all to the defendants, still it is consistent with that denial that Mr. Owen did make statements of the character described by the defendants to the plaintiff; I do not for one moment desire to say that my opinion is that Mr. Owen did make them, I merely say that the evidence is not sufficient to show that these representations alleged to have been made by the plaintiff to the defendants were false in fact.

10. Now, the only question which remains is what is the reasonable remuneration which ought to be awarded to the plaintiff? There are one or two facts which I am bound to bear in mind. In the first place, the remuneration fixed was at a very high rate, and as it has been pointed out by the authorities which have been cited, the agent, as regards the fixed remuneration, takes the risk of the transaction being actually completed and then the plaintiff, according to his own admission, was acting in the interest really of the purchaser and there is no question, as appears from the correspondence which he had with Miss Courjon, that he was, at all events in the earlier stage of these negotiations, endeavouring to induce the Courjons to take a less sum than that which they proposed. It was only by reason of the firmness of Miss Courjon that eventually a purchaser was found by the plaintiff who was willing to pay the price demanded by the defendants. On the other hand, there is no question that the services of the plaintiff were of very substantial advantage to the defendants. The mortgagee, it is quite clear, was making an offer of a sum very much below that which the defendants insisted upon receiving. A suggestion has been made that at one time, shortly before the 29th May, the mortgagee had made an offer of four lakhs of rupees. It is quite obvious that that was not in any respect a serious or genuine offer, because the offer which Mr. Owen undoubtedly did make on the morning of the 31st was Rs. 3,60,000, and further it appears from Miss Courjon's own letter to Mr. Owen written on the 31st that there was not in reality any offer of four lakhs of rupees, because apparently all that Mr. Owen had said was that his purchaser might be willing to give four lakhs of rupees, but that he wanted certain information, and I am satisfied from what took place that it was only because the plaintiff succeeded in inducing Babu Mohiny Mohun Roy to offer four lakhs of rupees, that the mortgagee was induced to increase his offer first to R,3. 4,10,000 and subsequently to Rs. 4,20,000; on the whole, I think I ought to take one per cent, as a fair and reasonable rate of remuneration for the plaintiff's services. That being so, there will be a decree in favour of the plaintiff for Rd. 4,000. The defendants must pay the costs of this action on scale No. 2.

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