Agency-Broker's commjssion-~um claimed from both vendor and purchaser-
Implied agreement for remuneration

Fathers Stoppani and Colombaroli were engaged in the purchase of
land for the African Catholic Mission at Khartoum North .. It was not ~ear

                 -·Court: Wasey Sterry, C.J.                                                      _

The correct name of the Court is Khartoum CiVil Court, but- for the
sake of uniformity High Court- is used which is its present equivalent.

THE SUDAN LAW REPORT!l

whether Stoppani and Colombaroli were agents of the 'Mission. Fabris,
a government servant who assisted in the purchase of the land, instituted .
the present action against· Stoppani and Colombaroli alleging that they
had employed him as a broker and claiming a commission therefor. It
was admitted that Fabris had received a commission from the seller for
introducing him to a purchaser.

Held:' (i) that Stoppani was not an agent of the Mission.

(ii) that Colombaroli never agreed to make any payment to Fabris,
and there was no implied agreement for remuneration.

(iii). that Fabris was the seller's agent and rendered no services to
the Mission for which he deserves remuneration.

Egyptian Native Civil Code, s. 513.

Action

March 21, 1906. Wasey Sterry, C.J.: In this case the plaintiff,
Mr. Fabris, is claiming from Father Stoppani and Father Colombaroli
of the African Catholic Mission the sum of £E.410 for his services in

        regard to a purchase of land at Khartoum North.                                              '

In my opinion as regards Father Stoppani the plaintiff makes no
case whatever. He does not allege that Father Stoppani-contracted
for himself and the letters he himself produces show, as in fact he
admits, that Father Stoppani was not the agent for the Mission and
had no power whatever to bind it. As regards Father Stoppani,
therefore, the action fails entirely.

Now as regards Father Colomb aroli , there is no suggestion that
if he is liable to the plaintiff he is liable in any other way than as
agent of the Mission. The case as put against him is that he, as
such agent, employed Mr. Fabris as a broker 'to purchase .land on
behalf of the Mission and that Mr. Fabris, having been the means of
purchasing the land, is entitled to a commission on the purchase
money which, it is stated, is by custom in Khartoum at a rate of
20% on the purchase money. It is further alleged by Mr. Fabris
that Father Stoppani verbally contracted to pay him a commission
of 2 % which, after some demur, he agreed to accept. He now
wants, for some reason which I fail to understand, to claim 2 Yz %.
The full amount at 20/0 would be £E.328.

Now it is important to observe, in trying to ascertain from the
evidence what the understanding between the parties was, that Mr.
Fabris is a government servant whom it is presumed should not
engage in trade, even if he is not, as he says he is not, absolutely

THE SUDAN LAW REPORTS

forbidden to do so. He is not therefore a professional broker whom
it would be assumed the defendant' employed as such, and it is not
at all surprising if it was assumed by the Father that Mr. Fabris
was acting in a friendly way without remuneration from them for
introducing to them a seller of land. Moreover, I have this significant
fact admitted, namely that Mr. Fabris obtained from the seller of the
land a sum of £E.400 for the introduction to the purchaser, which
seems to me a not inadequate remuneration for just over two days'
work. In fact, apart from any special contract, it would take a
good deal to persuade me that a person in Mr. Fabris' position is
entitled to obtain a commission from both the buyer and seller,
especially when his whole interest was to enhance the price. I can-
not help feeling under such circumstances as that of the first con-
versation between Mr. Fabris and the Fathers on the subject of the
purchase that I myself should have supposed that any profit to Mr.
Fabris would be paid out of the purchase price by the seller.

I may add that under the Egyptian Code 1 and the Code
Napoleon it is expressly provided that an agent acts gratuitously
apart from special agreement or an implication resulting from his
position. In view of the situation Mr. Fabris will not be entitled
either to a quantum meruit for his introduction of the sellers or to
recover by any implied agreement or custom. The question remains:
wa.s there ever any express agreement to pay him a commission? I
cannot find sufficient evidence to warrant my assuming that there
was. What I do find is that Mr. Fabris asked for remuneration and
that Father Stoppani tried to persuade Father Colombaroli, who was
the only agent and treasurer of the Mission, to give him something,
and felt confident that he would be able to get him £E.200. Father
Colombaroli, who in my opinion was the only person' having au-
thority to pledge the credit of the Mission, seems to have taken a
different view and to have repudiated any liability to pay commission.
But on the other hand it seems that he was willing on the conclusion
of the whole matter to pay Mr. Fabris a present of £E.100 without
any admission of liability. This' Mr. Fabris indignantly refused,

, 1 Probably the learned judge was referring to section 513 of the Civil

        Code which reads as follows:                                                              .

"Mandate is deemed to, be gratuitous in the absence, of agreement
either express or resulting by implication from the position of the man-
datory."