Headley v Clarke

• Jurisdiction: Barbados
• Court: Divisional Court (Barbados)
• Judge: Stoby, K.
• Judgment Date: 15 January 1965
• Date: 15 January 1965

Divisional Court

Stoby, C.J.; Hanschell, J.

Headley

and

Clarke

Contract - Agent — Commission — Whether contract uberrimae fidei — Intention to enter into legal obligation.

Stoby, K.

1 We have the record in this case. It took a very curious turn in the court below. The appellant claimed the sum of $185 as commission due to him from the respondent for selling a dwellinghouse for the sum of $3,700, the agreed commission being 5%. After the appellant had given evidence, and was cross-examined and had called his witness, counsel representing the respondent made a submission that there was no case to answer. The magistrate called upon him to elect and he elected to stand on his submission which, of course meant that if his submission was overruled, there would have to be judgment for the appellant. The magistrate did not accept the submission, but on questions of law which he himself imported into the case, he dismissed the appellant's claim with costs.

2 We think that he was entirely wrong in the view that he took of the law. This was a very simple case. It was a case in which the appellant alleged that the respondent had agreed to pay him 5% commission if he sold his house. The magistrate found the contract was entered into but for reasons which I will deal with in a moment he dismissed the case. The magistrate has said –

“From the facts I found it seemed clear to me that there was an offer on the part of the plaintiff to introduce a buyer of the house in question to the defendant and that this offer was accepted by the defendant. It also seemed clear that there was an executory consideration since the defendant had made a promise to pay a 5% commission on the selling price of the house in return for the plaintiff's promise to introduce a buyer who would actually buy the house. There remained, however, the difficult question as to whether the parties intended to create legal relations. Addressing my mind to this question I first took notice of the fact that the plaintiff never set himself up as a professional house agent nor one whose usual business it was to sell houses on commission. I next considered the plaintiff's conduct throughout the whole transaction. On the evidence of the plaintiff's own testimony from the time the offer to introduce a buyer was made and accepted between the plaintiff and the defendant almost all the subsequent negotiations seem to have been conducted between the plaintiff and the defendant's wife in the absence of the defendant himself ……. Considering the plaintiff's conduct as a whole I was not satisfied that the parties to the offer and acceptance ever had any intention to create legal relations. It followed therefore in my view that since and essential element in the formation of a legally enforceable contract was missing there was in fact no...