1. This is an appeal by the plaintiff in a suit for specificperformance of c contract for sale of land. The Subordinate Judge has dismissedthe suit on the ground that there was no valid and complete contract betweenthe plaintiff and the defendant for the sale of the property.

2. On the 9th June 1919 the defendant Singh gave thefollowing letter of authorisation to a man named Bose:

I hereby authorise you to negotiate the sale of the binds atTolligunge I have recently purchased from Messrs. Martin and Co. If you cansecure a purchaser to purchase the same at the gross value of Rs. 16,000. Ishall pay 3011 Rs. 200 as your remuneration. If you be able to raise the priceto any amount above Rs. 16,000, you will bi entitled to the excess amount fullyand I shall be bound to mention the whole amount in the conveyance.

Please note that this letter of authority will remain inforce for a fortnight only to complete the transaction; alter that this letterwill stand cancelled.

3. On the 2oth June 1919 the Solicitors of the plaintiffMitra wrote the following letter to Singh : "Re. brickfield (belonginglately to Messrs. Martin and Co., and recently, purchased by you) in Mutiapara,Road, Tolligunge.

Our client Babu Durga Charan Mitra, of No. 3 Peary CharanLane, Calcutta, has been approached by the broker appointed by you whom youauthorised to sell the above land. Our client is a purchaser for the propertyand He accepts the terms contained in the letter addressed by you to thebroker.

4. On the same date, Bose wrote as follows to Singh:

I have this day sold by your order and for your account thelands in Tolligunge recently purchased by you from Messrs. Martin and Co., onthe authority and in terms of your letter of authority dated the 9th June 1919.Brokerage of Rs. 200 as arranged has become payable to me.

5. On receipt of these letters, Singh appears to hiveinformed Bose that he would not sell the land. Bose communicated this to Mitra.Thereupon , on the 21st June 1919, the Solicitors of the plaintiff wrote to thedefendant and informed him that their client was not prepared to wit hi raw hisacceptance of the contract. Bose also informed defendant at the same time thatMitra had accepted the offer to sell the land and insisted upon completion.Singh took no notice of these letters. Two days later, the Solicitors of theplaintiff wrote to the defendant that as the latter refused to complete theagreement, the plaintiff would take legal steps to enforce his rights. Thissuit was thereafter instituted on the 2nd July 1919.

6. It is wall-settled that an estate or house-agent,authorised to procure a purchaser, has no implied authority to enter into anopen contract of sale. In Hamer v. Sharp (1875) 19 Eq. 108 : 44 L.J. Ch. 53 :31 L.T. 643 : 23 W.R. 158. Hall, V.C., decided that if you go to an estateagent and tell him that you have a property to sell and that you want apurchaser, and you tell him what you have made up your mind shall be the price,and to a certain extent what shall be the conditions, and you instruct him totry and find a purchaser, that is not sufficient to authorise the agent to makea contract without any conditions whatever with regard to the title. Thisdecision was applied by Kekewich, J., in Prior v. Moore (1887) 3 T.L.R. 624 andChadburn v. Moore (1892) 61 L.J. Ch. 674 : 67 L.T. 257 : 41 W.R. 39. In thecase last mentioned, Moore authorised Newman to find a purchase for some housesand to negotiate a sale, but Moore did not in. express terms author se Newmanto enter into a contract. Kekewich, J., held that instructions to a house andestate a cent to procure a purchaser and to negotiate a sale do not amount toauthority to the agent to bind his principal by a contract for sale of real orleasehold property, and observed as follows: "Newman was to find apurchaser, and to negotiate a sale. Is that sufficient No evidence was givenas to custom; no evidence was brought to show that the position of a house orestate-agent resembles that of a broker on the Stock Exchange or any otherexchange. A house or estate-agent is in a different position owing to thepeculiarity of the property with which he has to deal, which does not pass by ashort instrument as stocks and shares do, but has to be transferred afterinvestigation of title and in accordance with strict laws. An agent for sale ofreal estate must be more formally constituted than a seller of stocks andshares and securities of a similar nature. There is no definite authority. InHamer v. Sharp (1875) 19 Eq. 108 : 44 L.J. Ch. 53 : 31 L.T. 643 : 23 W.R. 158.Vice Chancellor Hall does not... decide the question of authority, but onlystates his opinion. I must perforce refer to Prior v. Moore (1892) 61 L.J. Ch.674 : 67 L.T. 257 : 41 W.R. 39 pc, where I indicated my own opinion distinctly,that instructions to a house agent to procure a purchaser and to negotiate asale do not amount to authority to the agent to bind his principal by contract.Here the circumstances must not be forgotten, that Moore, on the secondoccasion, told Newman what be was prepared to take for the twenty-nine houses.Newman then jumped at the conclusion that he had power at that price to enterinto a contract. That is, in my opinion, not sufficient, and unless expressauthority is given to the agent to sell, and for that purpose to enter into abinding contract, the principal reserves his final right to accept orrefuse."

7. The rule was applied by Parker, J. in Thuman v. Best(1907) W.N. 170 : 97 L.T. 239. To the same effect is the decision ofChatterton, V.C., in Wilde v. Walton I.L.R (1878) . Ir. 402 that when an ownerof property employs an estate-against to procure a purchaser or tenant at aspecified price, the agent has no implied authority to conclude a contract forsale. His duty is simply to find a purchaser or tenant and to communicate hisoffer to the owner. The Vice-Chancellor added that it was a common practice toplace houses or estates on the books of a number of house or estate agents atthe same time, and if each hid authority to conclude" a contract for theowner, the result would be that he might become bound to let or sell the samepremises to several different parties at the same infant. The decision offield, J., in Saunders v. Dence (1895) 52 L.T. 644 is clearly distinguishablethere the vendor hid himself bought only a right to the specific performance ora contract, and that was the matter which he agree to sell through theauctioneer. The decision of Romilly, M.R. in Wright v. Bigg (1852) 15 Beav. 592: 92 R.R. 568 PC : 51 E.R. 668 PC, also does not affect the present question.In that case, Tootel was authorised by the defendant to mike a proposal of saleof some land to the plaintiff hut to be accented within a week. The plaintiffwrote to Tootel within that time, accepting the after but Tootel did notcommunicate the acceptance until long after. It was ruled that there was aValid contract which was not destroyed by the neglect of Tootel to communicatethe acceptance to the defendant. There was no contention raided that Tootel hadnot the requisite authority to make the proposal of sale. The view we take isin harmony with that adopted by Ghose, J., in Purna Chandra Dutt v. IndraChandra Roy 69 Ind. Cas. 978 [LQ/CalHC/1921/226] PC: 49 c. 389 PC: AIR (1922). (C.) 397, and thedecisions in Koylash Chunder Doss v. Tariney Churn 10 C. 588 PC: 5 Ind. Dec.(N.S.) 394 , and Hyam v. Gubbay 32 Ind. Cas. 53 [LQ/CalHC/1915/215] PC : 20 C.W.N. 66, undoubtedlydo not militate against our conclusion. The essential question is, whether theagent employed is authorised to make a binding contract for sale. Such anauthority may be expressly conferred, as in Rosenbaum v. Belson (1900) 2 Ch.267 PC : 69 L.J. Ch. 569 PC: 82 L.T. 658 PC: 48 W.R. 522. PCAs Buckey, J.,points out, there is a substantial difference between an authority to sell andan authority to find a purchaser. Authorising a man to sell means an authorityto concludes sale; authorising him to find a purchaser mans less than that itmeans, to find a man willing to become a purchaser, not to find him and alsomake him a purchaser. On the other hand, in Godwin v. Brind (1889) 17 W.R. 29 :5 C.P. 299 PC : 39 L.J. C.P. 122 . Bovill, C.J., held that where applicationsto treat and view were to be made to certain persons described, they hadauthority to enter into negotiations but not to enter into a contract for saleof the land. In the case before us, some stress has been laid on the sentencein the letter of authorisation from Singh to Base, dated the 9th June 1919,which states that the letter would remain in force for a fortnight only tocomplete the transaction. But this does not advance the contention of theplaintiff the transaction mentioned is that specified earlier in the letter,namely, to negotiate the sale and to secure a purchaser. We hold accordinglythat the Subordinate Judge, has correctly interpreted the terms of theagreement between the parties as disclosed in the correspondence.

8. The plaintiff, who is himself a Solicitor, appears tohave realise the difficulty of the situation, and in his cross-examination heendeavored to alter the foundation of his claim. He conceded that the brokerhad no authority, to sell the property and that he could not have taken aconveyance or an agreement for sale from the broker. On this basis, it wascontended before the Subordinate Judge that the letter from the defendant wasan offer by the latter and that the communication of his own willingness topurchase the property constituted an acceptance of that owner. The SubordinateJudge has rightly held that the plaintiff could not be permitted to depart fromhis pleadings in this manner. He has also pointed out that, in substance, therewas at best an offer by the plaintiff to purchase, which was never accepted,and consequently did not ripen into a contract. In this view, it is notnecessary to consider the decision of the Judicial Committee in Harvey v. Facey(1893) A.C. 552 : 62 L.J.P.C. 127 : I.R. 428 : 69 L.T. 504 : 42 W.R. 129 PC,which was mentioned in the course of argument and may require, explanation.

9. Our conclusion is that the claim for specific performancecannot be sustained and that the suit has been rightly dismissed, the appeal isconsequently dismissed with costs.

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Durga Charan Mitravs. Rajendra Narain Sinha(02.08.1922 - CALHC)