LAND LAW— Sale of land— Rescission  of contract Purchaser cannot revive unilaterally.

AGENCY — Ratification — Acts of authorized agent are binding without notification

Pursuant to an agreement for the sale of land, purchaser paid vendor the full purchase price. Before change of registration could be effected, vendor’s agent refunded the purchase price to purchaser, who signed a receipt releasing vendor from any liability. Shortly thereafter  purchaser attempted to return the money to the agent, and upon the latters refusal, brought this action against vendor for specific performance of the contract of sale, contending that the agent’s acceptance of rescission was not ratified by his principal before withdrawal of the offer to rescind.

Held: (1) Purchaser could not revive the contract after accepting refund of the purchase money.

(ii) An authorized agent’s acceptance of rescission does not require ratification by the principal.

Osman El Tayeb, P. J., March 25, 1958: - This is a revision from the decree of District Judge, Merowe, dated September 23, 1957, in his CS-97-1956 granting to plaintiff-respondent an order of specific performance of an agreement of sale of land in respect of 3 K. 14 S. in Sagia No. 8, and 16 S. in Sagia No. 9, Dueim Small Island, and 3 K. 14 S. in Sagia No. 7, El Dueim, Merowe District.

There were two sale agreements concluded by correspondence between the vendor, applicant, from Shendi, and purchaser, respondent, from El Dueim village, Merowe. A long chain of correspondence had passed between them in the subject matter of this case. The first agreement was concluded in respect of the 3 K. 14 S. in Sagia No. 8 and 16 S. in Sagia No. 9, Dueim Small Island, for the price of £S.70. This price respondent sent to applicant by Postal Money Order dated October 17, 1955, and was received by applicant. The second agreement, in which the negotiations started not long after the first agreement, was in respect of 3 K. 14 S. in Sigia No. 7, El Dueim. The price was at last fixed at £S. 70. The price was sent by respondent to applicant by two Postal Money Orders, dated January 24, 1956, and February 5, 1956, which were received by applicant.

Respondent was demanding from applicant a tawkil to complete the registration of the sales, and at the other end applicant was writing, making promises that he would send the tawkil But at a time when he concluded the first agreement and was concluding the second, and while he was making promises to send the tawkil to complete the sale to respondent, applicant sent a letter dated December 22, 1955, to his present agent requesting him to find a purchaser for the same land. At that time it seems that the agent did not show himself either as being then not interested in the matter or that he was preparing to do something. The agent entered into some of the plots in dispute and tried to plant date trees. Respondent prevented him and wrote to applicant on March 9,, 1956, informing him of what had happened. On April 5, 1956, the agent collected £S.140 out of his Own money and took it to respondent, telling him that it was money sent by applicant. Respondent received the money, wrote and signed receipt as follows:

I El Rashid Sid Ahmed, have received the sum of’ £S.140 from Osman Omer Abu Saeeda through Dindirawi El Rashid. This is the sum that he asked for and was sent to him by post. This is written to free him from any liability.”

On the second day or so respondent called upon the agent to receive back the money he had paid. The agent refused to receive it; and so on April 8, 1956 respondent sent the same sum to applicant by post, but applicant did not receive it from the Post Office. At the time the agent paid the money to respondent, he had no official tawkil, but he was acting on instructions of applicant or in connivance with him. An official tawkil was made and sent to him afterwards.

it is clear that Dindirawi acted as agent of applicant in the incident of offering the money to respondent; the latter accepted the money, and thereby accepted Dindirawi as an agent and accepted the act of offering the money as the act of applicant. What is the effect of that act Respondent tried to say that the money that he accepted from Dindirawi on behalf of applicant was money paid by him for a transaction other than the one in dispute. He cannot be heard. There is no doubt that the money respondent received from Dindirawi was the purchase price of the sales in dispute. It is admitted that the purchase price was £S. 140 and that this sum was sent by post. The receipt referred to no other transaction. In addition to this, a letter dated April 7, 1956 was produced in this revision by applicant, sent to him by respondent after the latter had received back the money, and in which he admitted that the money he received was the purchase price of the sales in dispute.

In my opinion respondent, by acceptance of the purchase price that he had paid, has rescinded the contract by consent or waived his right to enforce that contract. The. agreement of sale reached the stage of being binding on the vendor by the payment and receipt of the price in full. But while respondent was waiting for receipt of a tawkil to effect rectification of the register, he was offered his money back. He preferred his money to acquiring the lands sold to him. He received the money and wrote and signed a receipt freeing applicant from any other liability in connection with this matter. It is very essential  here, in order to show that the respondent had intended to waive his right to enforce the contract, to refer to what he was writing to respondent. He had repeated in several letters in a convincing tone and with assurance to respondent that he did not Want the property and that it was only for his sake and on grounds of affection that he would buy the lands, but that he would be ready and willing to transfer them back to him, if his condition improved and he was able to pay back the purchase price. In his letter dated October 16, 1955  respondent said

“At any time God makes easy your condition and you want the land I will leave it to you without hesitation .... I hope from the bottom of my heart that God may ease your condition and that you will ask for re-transfer

I quoted this by way of example; all the letters dated November 3, 1955, December 20, 1955 and January 13, 1956 expressed the same sentiment.

From the judgment of the learned District Judge I understand that he holds the same opinion that I expressed above: that there was a binding agreement of sale and that respondent by accepting back the purchase price had rescinded that agreement or waived his right under it. But as respondent had changed his mind the next day or so by calling on the agent to take away the money he brought; and when the agent refused, respondent sent the same sum by post to applicant at Shendi. The learned District Judge took the opinion that by so doing respondent rejected the agreement of rescission or of waiver before it was ratified by the vendor himself. This was the ground on which the learnded District Judge granted order of specific performance to respondent. He stated the law of ratification but did not avail himself of the principles of rescission or waiver. He ended as follows:

“As I have already pointed out the law was severely criticised in the Privy Council, and I prefer to follow the approach adopted by the American Restatement (Second), Agency, s. 88 (1958)

‘To constitute ratification, the affirmance of a transaction must occur before the other party has manifested his withdrawal from it either to the purpoted principal or to the agent, and before the offer or agreement has otherwise terminated or been discharged.’ Thus the subsequent ratification which was after the withdrawal by plaintiff should have no legal effect.”

The learned District Judge preferred this to the principle of English Law which is stated thus: an authorized acceptance of an offer may be ratified even after the offer has been withdrawn.

I am of opinion that the decision of this case does not depend on whether there was ratification or not. Ratification is essential to link the principal with the third party when the agent acts with no authority, when he is not appearing to act in the matter in which he professed to be the agent of the principal. In these cases there is an unauthorized agent whose acts require ratification. In our present case it is not true that Dindirawi was an unauthorized agent. We know of one letter dated December 22 1955 in which applicant requested Dindirawi to find a purchaser for the came land. This was by itself sufficient authorization on which the agent could act on behalf of respondent. As such and as the agent of applicant he appeared to respondent, offered the money and respondent accepted it from him. From the start respondent has’bound himself up with appli cant.

Finally, respondent accepted the money with the intention of abandoning the sale. His original contract of sale having come to an end, how could he revive it ? It is true applicant and his agent were not open with respondent, and they were rather wicked. They thought of selling the land to somebody else, and instead of telling him so, the agent took the money to him. This has no effect on the act that occurred. It may also be noticed that in the circumstances of the case, a Court may hesitate to order specific performance.

Decree of District Judge, Merowe, is set aside, and it is ordered that the case be dismissed with costs.