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Lalljee Mahomed Vs. Dadabhai Jivanji Guzdar and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in34Ind.Cas.807
AppellantLalljee Mahomed
RespondentDadabhai Jivanji Guzdar and anr.
Cases ReferredBishun Chand Bachhaot v. Bijoy Singh Dudhuria
contract - agency for sale on commission--power limited to a term--right of agent to brokerage--appeal--court of appeal, functions of--decision ore facts--reversal. - lancelot sanderson, c.j.1. in this case the plaintiff, as assignee, claims rs. 2,000, which is alleged to have been due by way of commission to moses judah who has died since the suit was instituted.2. the defendant being the owner of certain oil mills was anxious to sell them. they were mortgaged to a bank for rs. 35,000, and at the end of may or the beginning of june 1911, the mills were advertised for sale in the exchange gazette. on the 13th june 1911, the defendant gave moses judah a letter in the following terms and signed by the defendant, i agree to allow you to sell my above oil mill at rs. 40,000 only. you will get brokerage 5 per cent, on the same when the mill will be sold through you. this condition to be in force till a fortnight (15 days) from date.' then there were certain.....

Lancelot Sanderson, C.J.

1. In this case the plaintiff, as assignee, claims Rs. 2,000, which is alleged to have been due by way of commission to Moses Judah who has died since the suit was instituted.

2. The defendant being the owner of certain oil mills was anxious to sell them. They were mortgaged to a Bank for Rs. 35,000, and at the end of May or the beginning of June 1911, the mills were advertised for sale in the Exchange Gazette. On the 13th June 1911, the defendant gave Moses Judah a letter in the following terms and signed by the defendant, I agree to allow you to sell my above oil mill at Rs. 40,000 only. You will get brokerage 5 per cent, on the same when the mill will be sold through you. This condition to be in force till a fortnight (15 days) from date.' Then there were certain words which, it was agreed between the parties, were added at the time that letter was written, in Guzrati, and the correct translation was in these terms, On the sale-proceeds being received in hand, brokerage will be paid.'

3. The first question is as to the meaning of the letter. To my mind, the meaning is pretty plain. In order to earn his brokerage Moses Judah was to introduce a purchaser who Would be willing to give Rs. 40,000, He had the opportunity of introducing such a purchaser and thus qualifying for his brokerage, for 15 days only. I do not think that the. letter means that the sale had to be completed within 15 days, but it was essential for Moses Judah, if he was to earn his commission, that he was to introduce within 15 days a person who would be ready and willing to purchase for Rs. 40,000. In other words, if he did so introduce a purchaser, the mere fact that the purchase was not completed until September would not deprive the broker of his commission.

4. Now, there is no question as to the law which governs such a matter as this. In my judgment, it is correctly stated by Mr. Justice Greaves at the bottom of page 75 of the paper-book. There he says, quoting from Lord Halsbury's Laws of England, 'In order to entitle the agent to receive hisremuneration, he must have carried out that which he bargained to do, or at any rate must have substantially done so, and all conditions imposed by the contract must have been fulfilled.'

5. The main question, therefore, in this case is whether Moses Judah substantially carried out what he had bargained to do. This is a question of fact mainly dependent upon the evidence of the witnesses. The case was evidently tried with great care, and the learned Judge reserved his judgment. After due consideration he has accepted the evidence of Bhatuknath, the purchaser, and rejected that of the defendant : and, in a case such as this, where the matter depends to a large extent upon the verbal evidence of the witnesses, in my judgment, this Court ought not to interfere with the decision of the learned Judge save on very clear grounds; in other words, unless it is clear that a miscarriage of justice has taken place. The Judge who tried the case has had the advantage, which we have not had, of seeing and hearing the witnesses, an advantage which, in my experience, it is almost impossible to overestimate. In this case I am not prepared to say that the learned Judge has decided wrongly; on the contrary, I think there is sufficient evidence to justify the decision at which he arrived. On the material points he has accepted the evidence of Bhatuknath and rejected that of the defendant; and, in passing, I may say that the comments made upon the evidence of the defendant by the learned Counsel for the plaintiff were not without justification. Bhatuknath's evidence was to the effect that it was Moses Judah who introduced him to the defendant, and his evidence on one point is very significant; he says he did not want to pay more than Rs. 35,000, but he was persuaded by Moses Judah to offer Rs. 40,000, which was the price eventually agreed upon. Some of the passages in his evidence are at pages 36 and 37 of the paper-book, as for instance, where he says in cross-examination.

Q. 'Do you say it was Judah who introduced you to Lallji Mahomed?'

A. 'Yes, that is true.'

Q. 'You wanted to pay Rs. 35,000 not 40,000.'

A. 'Yes, that is true, I first offered Rs. 35,000 and Judah used to come and see me often and he got me into this scrape.' Then he is asked what is the scrape.

'A. What could I do, I did not. I am telling you the truth, it was Judah who introduced me to the defendant; it was Judah through whom everything was settled in respect of this matter, and it was Judah who got me into this trouble.' 'The trouble is this: I was made to agree to pay Rs. 40,000 for the mill, it was not worth Rs. 13,000' * * * I did not want to buy it, but Judah persuaded me to take it. He introduced me to the defendant, pressed me to take it, and at last got me into this trouble.

6. That being so, the plaintiff's case is proved on one of the material points, namely, that it was through the instrumentality of Moses Judah that the purchase price, Rs. 40,000, was obtained. But it is said that there is nothing to show that Moses Judah introduced the purchaser and performed his part of the contract within the specified time, 15 days. In my judgment if Bhatuknath's evidence is accepted, as it was by the learned Judge, that it was through Moses Judah that he was persuaded to offer Rs. 40,000, there is evidence that this must have been done within the time limit, because we find that on the 26th June, 13 days from the date of the broker's letter, Bhatuknath wrote to the defendant in the following terms: 'As per our conversation with your Mr. Lallji Mahomed we intend to purchase the above mills together with the land connected with it at a cost price of Rs. 35,000 on the following condition.' Then he set out the condition. The letter closed as 'The alternative arrangement for payment is as follows : Rs. 10,000 in cash at the time of sale. Rs. 30,000 to be paid after one year,' containing an offer, though it was an alternative offer, of Rs. 40,000 which, he said, he would never have made but for the instrumentality of Moses Judah. He must have seen the defendant that day, and such letter contains an offer of Rs. 40,000. It is true that the payment of part was to be deferred for one' year, but that offer was the one which with a slight variation of the terms was eventually accepted in August. Consequently, Bhatuknath's evidence having been accepted by the learned Judge, the performance of contract by Moses Judah was within the time.

7. I am aware that the letters in the case provide matter of comment on Bhatuknath's evidence, as, for instance, the letter of the 25th of June refers to his having seen the advertisement in the Exchange Gazette. This is a legitimate comment, but it is not conclusive that Moses Judah did not introduce the purchaser. The matter had been advertised and it was quite possible that it was Moses Judah who brought the advertisement to the attention of the purchaser in the first instance. Again, the receipt for Rs. 200 where the payment is stated to be 'brokerage' is a legitimate subject of comment, but I think the learned Judge's remarks on that transaction are not unreasonable, and, in any event, as between vendor and purchaser, the use of the word brokerage' is quite unsuitable, whatever the nature of the transaction was. The main reason, however, which weighs with me is that the learned Judge has had to deal with conflicting verbal evidence on a question of fact; and after seeing and hearing the witnesses he has come to the conclusion that the truth lies on the side of Bhatuknath and not on the side of the defendant: and, in such a case, in my judgment, this Court should not interfere, unless it is clear that he has come to a wrong conclusion. This I am not prepared to say.

8. A further point has been raised, namely, that the plaintiff in any event cannot recover more than the commission on the amount actually received by the defendant in cash. In my judgment, this is not correct. The brokerage was to be paid when the sale-proceeds' were received. The purchase was completed on the 27th of September 1911, when the purchaser paid Rs. 10,000 in cash and gave hundis for Rs. 30,000. I agree with the learned Judge that the words in Guzrati added to the letter of the 13th June 1911 do not mean that the commission was only to be payable if and when the whole Rs. 40,000 were received in cash; and, if the defendant chose to agree with the purchaser that the 'sale-proceeds' should be partly cash and partly hundis, I do not think that can affect the plaintiff's right to commission.

9. In my judgment this appeal should fee, dismissed.

John Woodroffe, J.

10. The plaintiffs as the assignees of one Judah sue to recover commission alleged to be due to him under a written agreement dated 13th June 1911 for having effected through his agency the sale of certain oil mills. It must be shown that the conditions of the contract have been complied with. The onus of proving this is on the plaintiffs. This is of importance in the present case, for in regard to the particular question on which I mainly rest my judgment, viz.., whether it has been shown that Judah obtained the purchaser within 15 days of and in terms of the agreement, it has been argued by Mr. Langford James for the respondent that this was not at issue in the lower Court. There is no finding on this particular point. It was, however, not necessary to put this specifically in issue, since the onus of proving all facts necessary to establish the claim was on the plaintiffs and the defendant put in issue the allegation that the purchase was effected by Judah in terms of the agreement, according to the conditions of which alone he was entitled to a commission.

11. Several questions arise upon the construction of the agreement. It has been argued for the respondent that it is sufficient if a purchaser was secured within 15 days even if the actual purchase was completed later. This the appellant denies, contending that commission was payable only in the event of the transaction being completed (which it was not) within 15 days : and nextly that brokerage was only payable on the sale-proceeds being received in cash (which was not the case) within this period.

12. The appellant's contention is not without force on both these grounds, but it is not necessary to go into this matter for whatever be the true construction of the document on these points, it is clear and is indeed conceded that whenever or in what way the sale was concluded the purchaser at such sale must have been secured by the broker within 15 days of the agreement. Now the agreement was dated the 13th June 1911 and admittedly the first proved date at which vendor and purchaser were in communication was the 25th June, when 12 days under the agreement had already run by. It must be shown then that within the remaining 3 days Judah found the purchaser. Has this been shown? In cross-examination the purchaser was asked whether his letter of the 25th June was written before or after his introduction to the defendant and whether Judah asked him to write to the defendant or not. He was again asked about this matter in re-examination and he replied that he did not remember the date nor even the month when Judah spoke to him about this letter and that he could not say whether it was before or after this letter that Judah spoke to him. Had it been the fact that it was due to Judah's intervention that the first letter was written, it does not seem to me possible that the witness could have forgotten it. His answer must have been in that case that he must have seen Judah first, for before seeing him he had known nothing of the defendant or of his property. He will not commit himself to this and, I think, for the reason that he had not then seen Judah but had learnt about the property through an advertisement in the Gazette. This is indicated by the words in the letter of the 25th, 'I see in the Exchange Gazette that you are going to sell.' The purchaser also in his evidence says, 'I saw the Exchange Gazette and then I wrote that letter,' not that he had seen Judah meanwhile or at all. Though the omission of Judah's name from the letter may not be conclusive, it is certainly evidence against the plaintiffs for a reference to the broker, through whom it is suggested that the purchaser came to know of the property, might have been expected. There is no specific evidence that Judah secured the purchaser between the 26th and 28th or the conclusion of the period allowed to him. There is some general evidence that he introduced the purchaser, which in any case is scarcely accurate if the first communication of the 25th to which I have referred was without his intervention. The evidence, however, is not such as I can accept. Doubtless, in a case of this kind great weight must be attached to the judgement of the learned Judge who heard the case; but, in the present instance, we have no finding on the specific point and the uncorroborated evidence of the purchaser on which the learned Judge has relied is, upon the most favourable view, consistent with the fact of work done after the limited period and is, in my opinion, in conflict with and unsupported by the documentary evidence in the case and the inferences to be derived there from. As stated the first letter of the 25th indicates that it was the advertisement which first put the parties in communication. There is no mention of Judah as broker in any of the letters until we get to the letter of 15th November 1911, which is of doubtful admissibility against the appellant. But on the merits the letter comes too late to be of value and is open to the suspicion that evidence was then being made for the claim by Judah, which followed it in January.

13. It is remarkable also that there is no letter or other document by the broker which establishes his claim. Had he earned his commission in terms of the agreement, I think he would have been careful to put it on record. The Solicitor Mr. E.O. Moses, who acted in the sale as attorney for the vendor, states that he never heard that Judah was the broker in the transaction. The purchaser also in his evidence says he never mentioned the matter to any one. Finally, there is evidence that the purchaser Bhatuknath took a commission of 1/2 per cent, on the entire sale-proceeds of Its. 40,000 on the ground that there had been no broker in the sale. He further granted a receipt for the same, on which express reference is made to 'amount of brokerage.' The purchaser knows some English and though asked to give an explanation of this circumstance was unable to do so. Mr. Justice Greaves has held that this was a rebate, an explanation which the witness himself has not ventured to give. But, assuming that it was, the point is that it was allowed because no broker had been employed. If so, then this directly contradicts the purchaser witness when he says that Judah was to his knowledge the broker. Nor is it likely that the defendant would have agreed to make a further payment for ''brokerage' if he was already indebted for considerable brokerage to Judah. For these reasons, I would allow this appeal. It is possible that what may have happened is that the defendant advertised his property and then Judah coming in this way to know of it got the agreement of agency from the defendant. After that, and independently of Judah, the purchaser learnt from the Gazette that the property was for sale and entered into communication with the vendor. Judah, who may have heard of this, may, sometime between June and August (for it is to be observed that the sale was not concluded till the latter date), have pressed the purchaser to buy in the hopes of putting forward a claim for commission. But this would not be sufficient. It is, however, not necessary for me to hold anything more than that the plaintiffs have not established that Judah earned his commission within the terms of the agreement and I would, therefore, decree this appeal with costs and dismiss this suit with costs, As regards the question whether we should interfere in appeal with questions of fact, I will only say this, that if after argument the Court has a conviction that the judgment under appeal is erroneous it should not be affirmed, and this is not the less so because the judgment raised a question of fact. The mode in which the conviction is brought about in matters of law and fact is a question into which I do not enter, it being sufficient in the present case to say that, in my opinion, the appellant has shown us circumstances under which the judgment under appeal should be reversed.

Mookerjee, J.

14. This is an appeal, by the defendant in an action by an agent against his principal for recovery of commission. The defendant employed the plaintiff to sell his oil mill; the agreement was made on the 13th June 1911 and was embodied in a letter in the following terms: I agree to allow you to sell my above oil mill at Rs. 40,000 only; you will get brokerage 5 per cent, on the same, when the mill will be sold through you; this condition in force till fortnight (15 days) from this date.' There was a postscript to the effect that on the sale-proceeds being received in hand brokerage will be paid.' On the 25th June 1911 one Bhatuknath Boodhnath wrote to the defendant: ' I see in the Exchange Gazette that you (are) going to sell your oil mill at Narikeldanga. I went thrice to your office, but unfortunately could not find you there. I shall, however, call at your oil mill tomorrow, with an expert engineer's opinion, and will give you offer for the same. I may buy for myself or sell to my friends.' On the next day, the intending purchaser again wrote to the defendant. The letter referred to a conversation which the writer had with the defendant and contained two alternative offers. The first alternative was the purchase of the mill for Its. 35,000 cash, Rs. 1,000 to be deposited there out as earnest money, and the balance to be paid after one month, if on trial working meanwhile, the mill turned out to be satisfactory. The second alternative was the purchase of the mill on payment of Rs. 10,000 in cash at the time of sale, and Rs. 30,000 to be paid after one year. It may be observed parenthetically that neither of these offers accorded with what the seller expected, namely, Rs. 40,000 in cash. What followed, does not transpire from the correspondence, but we find that on the 8th August 1911 the purchaser wrote to the defendant and confirmed an arrangement made on the day previous for the sale of the mill for Rs. 40,000; Rs. 10,000 to be paid in cash on registration of the conveyance, Rs. 20,000 by a hundi payable one year after that date, and the balance of Rs. 10,000 by another hundi payable 18 months after the date of the registration of the conveyance. On the 15th November 1911, nearly two months after the sale had been completed on the 27th September, the purchaser is said to have written a letter to the plaintiff and authorised him to negotiate for the appointment of managing agents of the mill, which is described as purchased through you.' On the 26th January 1912, the Solicitors of the plaintiff wrote to the defendant and demanded immediate payment of Rs. 2,000 as brokerage due or the sale of the mill, which was alleged to have been effected through their client. The Solicitor of the defendant promptly replied on the next day. He pointed out that the letter of authority of the 13th June 1911 was limited to 15 days from the date thereof. He asserted that the plaintiff had failed to secure a purchaser within the prescribed time and that the mill had been sold without any concern with him; and he added that the seller had already paid brokerage on the transaction. This referred to a payment of Rs. 200 by the defendant to the purchaser, who had granted a receipt therefor as paid on account of brokerage. The plaintiff thereupon instituted this suit on the 13th June 1912. The defendant asserted that the sale had taken place without the intervention of the plaintiff as broker and repudiated the claim as entirely unfounded. Mr. Justice Greaves has held on the evidence that the sale was effected through the instrumentality of the plaintiff and has decreed the suit. On the present appeal, the defendant has contended that this finding is not supported by the evidence on the record, and that even if the finding is maintained it is not sufficient to justify the decree.

15. It is an elementary principle that where an agent has been appointed for a fixed term, the expiration of the term puts an end to the agency, whether the purpose of the agency has been accomplished or not; consequently, where an agency for sale has expired by express limitation, a subsequent execution thereof is invalid, unless the term has been extended. It is thus plain that the plaintiff could be entitled to the commission, only if he found a purchaser on or before the 28th June 1911. I do not hold that the plaintiff was bound to complete the transaction within this period; in my view of the contract, the plaintiff would be entitled to the commission, if, within the time prescribed he produced a person able, ready and willing to enter into the transaction with the defendant on the terms prescribed by the latter, and the plaintiff must within that period notify his principal that he had secured such a person. It is also indisputable, I think, that the burden lies upon the plaintiff to establish that he has earned the commission he claims. If these principles are borne in mind, there is no escape from the conclusion that the plaintiff cannot be awarded a decree, merely on the finding that the sale was effected through his instrumentality. If the case were before a Jury, the Court would have to instruct them that to find a verdict for plaintiff, they must find that plaintiff procured a purchaser able and willing to buy on the terms stated in the writing, that he notified defendant of the fact and that this was done within the 15 days prescribed. The vital question, consequently, is, did the plaintiff bring the purchaser to the defendant on or before the 28th June 1911. There is no trace in the correspondence already summarised that he had done so. The first letter of the purchaser to the defendant mentions that he had learnt from the Exchange Gazette about the proposed sale of the mill. This, no doubt, is not conclusive proof that he had not met the broker on or before the 25th June; but there is no specific evidence upon which I can act that the two had met before that date. The letter of the 26th June also, taken by itself, does not assist the plaintiff. No doubt, it recites a conversation between the defendant and the purchaser, but it does not show that the plaintiff was present at that interview. I do not overlook that the purchaser asserts that he was introduced to the defendant by the broker, and his version has been accepted as true by Mr. Justice Greaves; but this does not carry matters far enough. The purchaser could not pledge his oath that his first letter was written after the broker had informed him of the proposed sale of the mill. I am not unmindful that the purchaser asserts that he first offered Rs. 35,000 and that the broker Judah used to come and see him often and got him into the scrape, that is, induced him to pay Rs. 40,000. This statement, even if accepted and taken along with the letter of the 26th June, does not conclusively prove that Judah introduced the purchaser to the defendant on or before the 26th. There can be no dispute that if such introduction did not take place on or before the 26th June, the evidence does not show that it was brought about either on the 27th or 28th June; indeed, the evidence is entirely silent with regard to these two dates.

16. Mr. Langford James, in the course of his able argument for the respondent, properly emphasised the fact that Mr. Justice Greaves, who had the opportunity to see the witnesses, which we have not, has believed the purchaser in preference to the defendant; and he has argued that in a case of this description, where there is a conflict of oral testimony, the Court of Appeal should not reverse the finding of the Primary Court. This contention raises a question of considerable importance as to the duty and functions of a Court of Appeal in this country. As was stated by White, J. in Protap Chunder Mukerji v. Empress 11 C.L.R. 25 and by Trevelyan, J., in Milan Khan v. Sagai Bepari 23 C. 347, the sound rule to apply in trying an appeal in a civil case is that the Court must be convinced, before reversing a finding of fact by a lower Court, that the finding is wrong; in other words, the burden lies upon the appellant to satisfy the Court that the finding he assails is not supported by the evidence on the record: Wise v. Sunduloonissa Chowdhranee 20 E.B. 68 : 11 M.T.A. 177 at p. 181 : 7 W.R. 13 (P.C.) : 1 Suth. P.C.J. 667 : 2 Sar. P.C.J. 249 : Tahboonissa Bibee v. Koomar Sham Kishore Kay 15 W.R. 228 : Shetabdee Biswas v. Molamdee Mundul 25 W.R. 30 : Gopee Nath Mookerjee v. Boddhumunt Mal 25 W.R. 26 : Anund Chunder Chuckerbutty v. Rutnessur Doss Sen 25 W.R. 50; Nobin Chunder Pooshalee v. Bungo Chunder Chatterjee 25 W.R. 363. : Musammat Hoymobutty Dossee v. Sree kishen Nundee 14 W.R. 58 : Munsoob Bibee v. Ali Miah 17 W.R. 358. When such evidence consists entirely or even principally of the oral testimony of witnesses, the appellant is at a special disadvantage. Reference may in this connection be made to the observation of Lord Collins in Shunmugaraya Mudaliar v. Manika Mudaliar 3 Ind. Cas. 799 : 36 I.A. 185 : 32 M. 400 : 11 Bom. L.R. 1206 (P.C) : 10 C.L.J. 276 : 6 M.L.T. 304: 'No doubt it is always difficult for Judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have; but that difficulty is greatly aggravated where the Judge who heard them has formed the opinion, not only that their inferences are unsound on the balance of probability against their story, but that they are not witnesses of truth.' The reasons for this rule of practice are too obvious to require elucidation. But it is worthy of note that Lord Collins refers with approval to the judgment delivered by Lindley, M.R., in the Court of Appeal in the case of Coghlan v. Cumberland (1898)1 Ch. 704 : 67 L.J.Ch. 402 : 78 L.T. 540, which sets out the limitations of the rule: Even where, * * * the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the' relative credibility of witnesses from written depositions; and, when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not: and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen. ' In the case in which these observations were made, the Court of Appeal (Lindley, M.R., Rigby, L.J., and Collins, L.J.), allowed the appeal, although the appeal turned on a question of fact. It is obviously impossible to frame a formula, to define the impression which must be produced on the minds of the Judges of the Court of Appeal, so that they may not shrink, in the words of Lindley, M.R., from overruling the judgment of the Trial Court : and the cases in the books employ various expressions which are really of little assistance, such as that the judgment is 'clearly wrong' [Khoorshedjee Manikjee v. Mehrwanjee Khoorshedjee 1 M.I.A. 431 at p. 442 : 5 W.R. 57 (P.C) : 1 Suth. P.C.J. 73 : 1 Sar. P. C.J. 138 : 18 E.R. 173], that the decision is irresistibly erroneous' [Gray v. Turnbull (1876) 2 H.L.Sc. 53 followed in Pandurang Vasudeo v. Anant Lakshman 5 Bom. L.R. 956 and Rai Gulabbai v. Shri Datgarji Mahancarii 9 Bom. L.R. 393,], that 'a Court of Appeal ought never to reverse the judgment of an inferior Court unless quite confident that the judgment giver, in the Court below is wrong' [Bandon (Earl) v. Becher (1853) 3 Cl. & F. 479 at p. 512 : 9 Bligh. (N.S.) 532 : 6 E.R. 1517 followed in Yemunabai v. Balshet 5 Bom. L.R. 584], that the Court will not reverse the decision except in cases of extreme and overwhelming pressure [The Julia, Bland v. Boss (1860) 14 Bom. P.C. 210 : Lush. 224 : 15 E.R. 284 : 134 R.R. 43, The Alice and the Princess Alice (1868) 2 P.C. 245 : 19 L.T. 678 : 17 W.R. 209 : 38 L.J. Adm. 5], that 'a Court of Appeal will hesitate long before it disturbs the findings of a Trial Judge based on verbal testimony' [Khoo Sit Hoh v. Lim Thean Tong (1912) App. Cas. 323 : 81 L.J.P.C. 176 : 106 L.T. 470], or that the finding 'is so clearly against the weight of the testimony as to amount to a manifest defeat of justice' : [Aberdeen Glen Jane Steamship Co. v. Macken as Gairloeh (1899) 2 I.R. 1 at p. 18 : 32 I.L.T.R. 33 : 4 Ir.L. Rep. 630]. We may also bear in mind the observation of Lord Chelmsford in Tayammaul v. Sashachalla Naikar 10 M.I.A. 429 at p. 436 : 2 Sar. P.C.J. 139 : 19 E.R. 1034, 'the advantage the Judge of the Primary Court possesses in forming a correct opinion of the credit due to the witnesses, does not relieve the Court of Appeal from the duty of examining the whole evidence and forming for itself an opinion upon the whole case.' To the same effect are the observations of Baggallay, J. A., in Glannibanta, The (1876) 1 P.D. 283 at p. 287 : 34 L.T. 934 : 24 W.R. 1033 : 3 Asp. M.C. 339. Indeed, if the conclusion of the Trial Court in a case of conflict of oral testimony were held practically unassailable, that Court would in essence be constituted the final Court on questions of fact. But the parties to the cause are entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, though, as James L.J., said in Bigsby v. Dickinson (1876) 4 Ch. D. 24 at p. 29 : 35 L.T. 679 : 25 W.R. 89 : 46 L.J.Ch. 280, if we are to accept as final the decision of the Court of first instance in every case where there is a conflict of evidence, our labours would be very much lightered.' The matter is obviously simpler where the conclusion is merely an inference of fact [Lord Blackburn in Smith v. Chadwich (1884) 9 App. Cas. 187 at p. 194 : 53 L.J.Ch. 873 : 50 L.T. 697 : 32 W.R. 687 : 58 J.P. 644.] or where the evidence whereon the decision of the Trial Judge is based, has been taken on commission [Lord Collins in Imdad Ahmad v. Pateshri Partab Narain Singh 6 Ind. Cas. 981 : 14 C.W.N. 842 : 12 Bom. L.R. 419 : 7 M.L.T. 414 (P.C.) : 32 A. 241]. But, even in other cases, it is undoubtedly the duty of the Court of Appeal to weigh conflicting evidence and to draw its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. Cases are by no means rare where an Indian Appellate Court has reversed the decision of the Primary Court based on conflicting oral testimony and the conclusion of the Appellate Court has been ultimately affirmed by the Judicial Committee : Bash Mohini Dasi v. Umesh Chunder Biswas 25 I.A. 109 : 25 C. 824 : 2 C.W.N. 321 : Gangamoyi Debi v. Troiluchya Nath Chowdhry 33 C. 537 : 3 C.L.J. 349 : 10 C.W.N. 522 : 8 Bom. L.R. 375 : 1 M.L.T. 131 : 16 M.L.J. 161 : Musammat Bulli Kunwar v. Mnsammat Bhagirathi 9 C.W.N. 649 : 15 M.L.J. 265 : Chotey Narain Singh v. Ratan Koer 22 C. 519 : 22 I.A. 12 : Secretary of State for India v. India General Steam Navigation and Railway Company, Limited 4 Ind. Cas. 448 : 36 C. 967 : 10 C.L.J. 281 (P.C) : 11 Bom. L.R. 1197 : 14 C.W.N. 134. : Jeolal Mahton v. Loke Narayan Mahton 15 Ind. Cas. 184 : 16 C.W.N. 466 (decided by the Judicial Committee on the 23rd January 1912). I am not unmindful that there are other instances where the Judicial Committee has reversed the decision of the local Appellate Court and restored the decree of the Trial Judge, but that has been done because their Lordships were satisfied, upon a scrutiny of the entire evidence, that the view of the latter was more consistent therewith than that of the former, Romesh Chunder Mukerji v. Rajani Kant Mukerji 21 C. 1 : Sajid Ali v. Ibad Ali 23 C. 1 : 22 I.A. 171 : Shama Cham Kundu v. Khettromoni Dasi 27 C. 521 : 27 I.A. 10 : 4 C.W.N. 501 : Khoo Sit Hoh v. Lim Thean Tone (1912) App. Cas. 323 : 81 L.J.P.C. 176 : 106 L.T. 470 : Nawab Shah Ara Begam v. Nanhi Begam II C.W.N. 130 : 29 A. 29 : 17 M.L.J. 32 : 5 C.L.J. 4 : 9 Bom. L.R. 80 : 1 M.L.T. 429 (P.C). We may also bear in mind the fact that, although as an ordinary rule the Judicial Committee does not interfere with concurrent judgments of the Courts below on questions of fact, instances are by no means rare where their Lordships have examined the whole evidence, formed for themselves an opinion on the entire case and reversed the unanimous decision of the two Courts in India on a question of fact: Rungama v. Atchama 4 M.I.A. 1 : 7 W.R. 57 (P.C.) : 1 Suth. P.C.J. 197 : 1 Sar. P.C.J. 313 : 18 E.R. 600 : Huradhun Mookurjia v. Muthoranath Mookurjia 4 M.I.A. 414 : 7 W.R. 71 (P.C.) : 1 Suth. P.C.J. 213 : 1 Sar. P.C.J. 375 : 18 E.R. 758; Mndhoo Soodun Sundial v. Swoop Chunder Sirkar chowdry 4 M.I.A. 431 : 7 W.R. 73 (P.C) : 1 Suth. P.C.J. 216 : 1 Sar.P.C.J. 378 : 18 E.R. 764 : Tayammaul v. Sashachalla Naikar 10 M.I.A. 429 at p. 436 : 2 Sar. P.C.J. 139 : 19 E.R. 1034 : Charles Seton Guthrie v. Abool Mozuffer 14 M.I.A. 53 : 15 W.R. (P.C.) 50 : 7 B.L.R. 630 : 2 Suth. P.C.J. 429 : 2 Sar. P.C.J. 660 : 20 E.R. 706 : Baboo Lekraj Roy v. Baboo Mahtab Chand 14 M.I.A. 393 : 17 W.R. 117 : 10 B.L.R. 35 : 2 Suth. P.C.J. 536 : 3 Sar. P.C.J. 43 : 20 E.R. 833 : Hay v. Gorden (1872) I.A. Sup. 106 : 10 B.L.R. 301 : 18 W.R. 480 : Venkatesivara lyan v. Shekhari Vanna 8 I.A. 143 : 3 M. 384 : Muhammad Mumtaz Ahmad v. Zubaida Jan 16 I.A. 205 : 11 A. 460 : 5 Sar. P.C.J. 433. : Bishun Chand Bachhaot v. Bijoy Singh Dudhuria 11 Ind. Cas. 399 : 15 C.W.N. 648 (P.C) : 13 C.L.J. 588 : 8 A.L.J. 587 : 13 Bom. L.R. 440 : 21 M.L.J. 652 : 10 M.L.T. 335 : (1911) I.M.W.N. 418 It is not necessary for the present purpose to consider whether any general principle is deducible from the expressions used by their Lordships as to the circumstances under which they will depart from the rule ordinarily observed by them, such as 'that the very clearest proof is shown that the decision is erroneous, that 'the Board is clearly satisfied that there has been miscarriage in the appreciation of evidence,' that it is manifestly clear from the probabilities that the Court below was wrong,' that 'the case is very extraordinary,' that a strong case must be made out before the Board would recommend reversal,' that 'it must very clearly appear that the conclusion is very plainly erroneous,' that 'there has been some miscarriage in respect of a presumption to which too much weight was given,' that very definite and explicit grounds must be assigned for interference,' that there is so strong a preponderance of testimony that the Board can confidently pronounce the decision to be wrong,' and other expressions of like import. But it is obvious that if reversal of concurrent findings of fact is permissible, the Court of first Appeal should not be deemed fettered to a larger extent.

17. In the present case, as I have already stated, the finding that the sale was effected through the instrumentality of the plaintiff does not justify a decree in his favour. The purchaser does not make an explicit statement that the plaintiff introduced him to the defendant on or before the 28th June 1911, but even if this much be deemed to be implied in his statements, I cannot accept his testimony. The correspondence does not show any trace of the presence of Judah in the negotiations; one would have expected some mention of his name in the first or the second letter. It is also remarkable that no written communication appears to have passed between the plaintiff and the defendant, although the plaintiff had taken the precaution to accept the agency by a written instrument. There is further the unexplained fact that the purchaser received Rs. 200 as brokerage; he cannot explain why the sum was described by this obviously inappropriate term; it is extremely improbable that the defendant would have made a present of this sum to the purchaser, if he had really to pay Rs. 2,000 to plaintiff as broker. There is the further significant fact that the claim for brokerage was not put forward till the 26th January 1912, though, if the plaintiff is to be believed, he had earned it before the 26th June 1911 and the sale had been actually completed on the 27th September 1911. Finally, the case for the plaintiff is certainly not improved by the letter alleged to have been written on the 15th November 1911, which plainly bears the appearance of an attempt to create evidence for future use. After the most careful and anxious consideration of the entire evidence on the record and the circumstances of the case, I have arrived at the conclusion that the plaintiff has failed to establish that he has earned the commission claimed in terms of the contract and that the decree in his favour cannot be supported. In my opinion, the appeal should be allowed and the suit dismissed with costs throughout.

Lancelot Sanderson, C.J.

18. The result is that, in view of the opinion expressed by the majority of the Court, this appeal will be allowed, the judgment of the Court of first instance set aside, and the plaintiff's suit dismissed with costs both of the Court of first instance and of this appeal.

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