DUFF J.-Interpreting the memorandum in question by the light of the subsequent conduct of the parties (which one is entitled to do, because it is impossible to say that the memorandum is capable of only one necessarily exclusive construction) I think the respondent's agency was a general agency within the meaning of Lord Watson's language in Toulmin v. Millar(1), and that lie is, consequently, entitled to recover. See Burchell v. Gowrie and Blockhoiuse Collieries (2), at page 626.
J.-The trial judge expressly accepted the evidence of the plaintiff.
On his evidence he found that the plaintiff had introduced the purchaser and brought about the sale.
Those findings of fact are sufficiently supported.
On the interpretation of the contract I agree with the courts of Alberta.
The plaintiff earned his commission and he had a sufficient memorandum of his contract to meet the requiremtents of the Alberta statute.
The appeal, in my opinion, fails.
J.-This is an appeal from a judgment of the Supreme Court of Alberta confirming unanimously the judgment of the trial judge.
The version of the facts, as given by the plaintiff, respondent, having been accepted by the two courts below, it would be contrary to the jurisprudence of this court to find differently.
The appellant had given the respondent a letter that he would sell his property for $40,000, and had undertaken in that letter to pay him "5o commission on purchase price."
The respondent found a purchaser, put him in communication with the appellant, and the result was that the property was sold for $34,000.
He is now suing for his commission on that sale.
The appellant contends that he was bound to the payment of a commission on a sale of $40,000 and that, as no sale at that price was made he owes nothing.
It is to be noted that the agreement provided for a commission not on the $40,000, but on the purchase price.
The introduction of a purchaser who was willing to enter into negotiations and who closed later with the appellant entitled the plaintiff to recover. The obligation of the plaintiff was not to find a purchaser at a certain figure; but he was entitled to a commission on the purchase price and this case is within the words of Lord Watson, in the House of Lords, in the case of Toulmin v. Millar(1), where he says:- When a proprietor with a view of selling his estate goes to an agent and requests him to find a purchaser, naming, at the same time, the sum which he is willing to accept, that will constitute a general employment; and should the estate eventually sold to a purchaser introduced the agent, the latter will entitled to his commission, although the price paid should be less than the sum Brodeur named at the time the employment was given.
The mention of specific sum prevents the agent from selling for a lower price with, out the consent of his employer; but it is given merely as the basis of future negotiations, leaving the actual price to settled in the course those negotiations.
Appeal dismissed with costs.