Ebanks v Symmes
| Jurisdiction | Cayman Islands |
| Judge | Summerfield |
| Judgment Date | 28 April 1981 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No. 443 of 1980 |
| Date | 28 April 1981 |
Sir John Summerfield, C.J.
Cause No. 443 of 1980
Grand Court
Agency - Commission — Sale of land — Whether commission can be claimed when claimant carried on business as real estate agent without being licensed
Held: Commission payable if sale went through —No binding contract of purchase and sale —Claim for commission failed.
Facts: Plaintiff and his wife had known defendant and her husband for several years —Plaintiff performed variety of tasks for the defendants —In 1980 defendant asked plaintiff to sell property for her —Plaintiff was not a licensed real estate agent —Verbal agreement reached by which price of US$65,000.00 was stipulated and the defendant was to get 5% commission —No clear understanding as to when commission would be payable —Plaintiff found purchaser and accepted deposit as permitted in letter from defendant —Defendant refused to complete the sale —
Mr. O. L. Panton for plaintiff.
Mr. S. McField for defendant.
Summerfield, Q.C.: This is a claim for commission, as an agent, for the sale of land under instructions from the defendant. The land concerned is known as lot 64 situated at Cayman Kai.
In reaching my findings on fact I have preferred the evidence of the plaintiff to that of the defendant wherever there is a conflict. Although the plaintiff was confused about the chronological order of some events he gave his evidence in a straightforward, uncomplicated manner and was convincing although, as will appear, I have some reservations about his interpretation of the consequences of those events. The defendant was less satisfactory as a witness, although obviously a very intelligent and well educated woman. On occasions she would “talk round” a vital question and fudge her answer e. g. when questioned about the commission and aspects relating to it. This somewhat undermined my confidence in her as a witness wherever her evidence was in conflict with the plaintiffs.
The plaintiff and his wife have known the defendant and her husband for several years. The plaintiff performed a variety of tasks for the defendant and the two families became friends. The defendant and her husband normally live in Washington, or Plaines, Virginia, U.S.A. and only visit these Islands from time to time. While away, the plaintiff who is a local resident, among other things, kept an eye on her property.
The plaintiff is not a licensed real estate agent. However, early in 1980 the defendant asked the plaintiff if he could sell lot 64 for her. There was more than one exchange about this proposition but the upshot was that the plaintiff verbally agreed to sell the property for the defendant. The price stipulated was U.S.$65,000 and the defendant was to get a 5% commission. The normal commission charged by a real estate agent is 10%, but the plaintiff agreed to 5% partly out of friendship and partly because he was not licensed as a real estate agent.
This loose oral agreement was, as one would expect, not precise in all its terms. For instance, it would appear that there was no clear understanding as to when the commission would become payable.
Pursuant to those instructions the plaintiff sought out prospective buyers and found a Mr. Grafiuido who showed interest in the property. The plaintiff arranged for Mr. Grafiuido to contact the defendant in the United States but nothing came of this prospect. This was at the beginning of March 1980.
As a result of a telephone conversation between the plaintiff and the defendant, and in order to place the arrangement on a more business-like footing, the defendant sent an undated letter, Ex. 1a, to the plaintiff (the envelope post-marked 3 March 1980) in the following terms:
“Mr. Grafiuido has not called or contacted me. I would be interested in selling at that price, but not at anything less. If someone else comes along, do not worry about whether you need to contact me first. Just have them contact me if they are coming back to the states and I will be happy to honor your commission. If they are staying for a while and you can get a deposit out of them that looks good, take it at $65,000. I am working on plans for a new and smaller house which I will put up if I can't sell it, so I'll be happy either way.
I enclose a card that you can show to establish that you are my agent in G. C. I would be able to come down for a closing rather quickly if there were an authentic purchaser, but need a couple of days notice.”
The enclosed card, Ex. 1b, was in the following terms:
“Mr. Douglas Ebanks is acting as my agent for the sale of my property, Lot 64, and may accept a deposit in my name. Asking price is $65,000.00 firm.”
The plaintiff received this letter and the enclosed card sometimes towards the end of March 1980.
The instructions in that letter would, of course, supersede the earlier verbal arrangement.
A second letter, Ex. 1c, was sent by the plaintiff to the defendant dated 9th March 1980. To the extent that this letter departed from the instructions in the earlier letter, the later instructions would prevail.
The second letter was in the following terms:
“On each of your calls to me recently I have been unable to hear more than a few words. There is no point in calling me from the far side of the island. All I hear is static. On the day of your first call I spoke to Don Cosby later in the day with perfect clarity from Georgetown, so it must just be the phone at Rum Point that is difficult. At any rate, I see no point in any more $25.00 phone calls (the first one has just appeared on my telephone bill). If anything important comes up, send me a cable. Or, as I stated in my letter, just have them call me directly from the states or a better phone connection, if anyone is serious. Don't call me just to give me someone's name. Write. If we make a sale, I will honor your commission.”
There can be no doubt, despite anything the defendant said, that these two letters constituted the plaintiff her agent for the sale of lot 64. The exact effect of these two letters, especially as to when commission would become payable, will be discussed later. Although the amount of the commission was not specified in either letter, the earlier understanding that it would be or would have continued.
The instructions received by the plaintiff in these two letters were never revoked or amended before the transaction about to be related took place.
Armed with this authority, and believing the card, Ex. 1b, to be a power of attorney, the plaintiff continued his efforts to sell lot 64. In his own words, he introduced quite a few people to the defendant by telephone or letter.
Eventually, the plaintiff found a prospective buyer in a Mr. Handel Whittaker. On 26 September 1980, Mr. Whittaker, having seen the plaintiffs authority, Ex. 1b, to act as agent for the defendant for the sale of lot 64, made to the defendant a firm verbal offer of U.S.$65,000 for that property, U.S.$5,000 to be paid by way of deposit forthwith and the balance on completion within 30 days thereafter, the purchaser defraying the stamp duty and legal fees consequent upon the transfer. Mr. Whittaker there and then gave the plaintiff a cheque made out in the defendant's name for U.S.$5, 000, Ex.1e, by way of deposit.
The plaintiff thereupon telephoned the defendant at her home in the United States and told her that he had sold the property, outlining the terms described above. In passing, it may be observed that, although the defendant in evidence said that the terms were unsatisfactory, it is difficult to see how, having regard to her instructions and the necessity for her to travel from the United States for the closing, they could have been better. At all events, she made no comment about the terms when she received this telephone call.
The defendant appears to have been taken aback by the plaintiff's assertion that he had sold her property. She said that she would have to think about it. She then said she would have to consult her husband. The plaintiff reiterated that the property was sold. The call ended and a few minutes later the defendant telephoned the plaintiff to say that she was not selling the land. The plaintiff again told the defendant that he had sold the land to Mr. Whittaker. The defendant said that she. wanted to contact Mr. Whittaker and was given his telephone number.
It appears that Mr. Whittaker also tried to get in touch with the defendant but without success. The plaintiff told Mr. Whittaker what had happened. He was offered the return of the cheque for the deposit but refused it. He insisted that he wanted the property.
On the 15th October 1980 Mr. Whittaker sent a letter to the plaintiff, Ex. 1d, referring to the discussion on 26 October 1980 and confirming the terms of his offer. He asked for a copy of this letter to be signed and returned as confirmation of acceptance but this was not done. Mr. Whittaker said he thought it had been done, but could not produce the duplicate. It is clear from the letter to the defendant by the plaintiff's own attorney, Ex. 5, sent on 23rd October, 1980 that this duplicate was never signed or returned by way of acceptance. In any event, the offer in writing in the letter of 15 October 1980, Ex. 1d, was a meaningless gesture as Mr. Whittaker well knew that his earlier verbal offer had been rejected by the defendant. Mr. Whittaker's apparent purpose was in some way to hold the plaintiff responsible.
Meanwhile the defendant sent the plaintiff a conciliatory letter dated 11th October 1980, Ex. 4. In a rather more barbed letter to the plaintiff dated 12 November 1980, Ex. 2, following a claim for the commission from the plaintiff's attorney, the defendant rebuked the plaintiff and revoked his instructions to act as her agent for the sale of lot 64.
The plaintiff in...
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