Judgement was given on Tuesday, for Tls. 46,213 against the Wilkins Bros. & Ca., in a claim by Wang Zin-on, under an agreement to sell for defendant a number of spindle: at TIs. 1 commission per spindle. Mr. Schuhl appeared for plaintiff. Defendant was not represented. In giving judgment his Honour Judge Lobingier said The plaintiff sues on the following instrument: "Mr. Wang Zin-on, Shanghai.
Dear Sir, We agree to pay yon a commission of one fuel per spindle which you can sell for us at Tls. 26 each, including cif. & c. and duty. We wii} pay you Tls. 80,000 at once when the bargain comes. 2
Yours very truly, The Wilkins Bros. & Ca., Inc., Manager" (Exhibit A)
P. M. Wilkins, It is alleged in the complaint and admitted in the answer that defendant paid of the amount above mentioned the sum of $33,787, and defendant further "alleges that the' said sum together with a further sum of Sh. Tls. 13,799.95 was paid to the plaintiff in full—settlement of the plaintiffs claim for commission due on account of the sale of the said 8C,000 spindle mill."'
No evidence is offered in support of this claim of settlement any defendant denies that. he- received any other sum than that first men tioned.
The principal point in the case arises from defendant's further denial "that the said purchaser was able or ready or willing to make the said purchase in accordance vith the terms of the said agreement or at all."
It will be seen that the agreement which furnishes the cause of action gays nothing about the purchaser's ability or willingness to perform but promises "Tls. 80,000 at once when the bargain comes." We take this to mean that the commission was earned when a bond fide purchaser was obtained and that plaintiff was not to be prejudiced by any subsequent difference between defendant and the purchaser. Plaintiff in other words was performing his part of the contract by making a sale; he did bot guarantee the payment of the purchase price. The law on this point has been stated as follows:
"Where an agent undertakes merely ce produce a person who is able, ready, and willing tv enter into a specified transaction with the principal on the terms prescribed by the latter, the production of such a' person generally entitles the agent to the contract. compensation, although the principal fails or refuses to enter into the transaction in question, or although the third per. son fails or refuses to complete the transaction on account of some default by the principal: and the agent is all the more entitled to the stipulated com-Fensation if he procures a contract from a third person binding him to accept the That plaintiff did procure such a purchaser as the contract requires bt appears clear from the records of this court of which we may take judicial notice in a case involving Gefendant and the said purchaser. In that case, which was an action by the purchaser to recover back earnest money, defendant admitted the averment of the purchaser that he "and the defendant entered into a contract for the sale by the defendant to the plaintiff of a certain lot of secondhand cotton spinning machinery cou-sisting of an eighty thousand (90,000) spindle cotton spinning mill" and "that said sale was evidenced. by all ogreement in writing,'' ete.
In other words it appears from defendant's _own admission that it not only entered into a contract with the purchaser whom the ° present plaintiff procured but made an actual sale. That would seem to be all that plaintiff's contract in the present ease required; and being admitted that plaintiff has not been paid in full and thera being no evidence of ins waiver of the balance he is clearly entitled to judgment therefor.
It is accordingly considered.and adjudged that plaintiff have and recover from defendant, upon the cause of action above recited, the sum of Tls. 46,213 together with his costs.
Text read from the printed page and cleaned; old type leaves the occasional error.