JUDGMENT 1. This is a rule calling upon the opposite party who was the plaintiff in the Court below, to show cause why the decree of the Court below in his favour should not be set aside and the grounds upon which we are asked to set aside the decree of the Court below are as follows, namely, first, that the Court below was wrong in decreeing the Plaintiffs claim for commission when the Plaintiff failed to complete the loan transaction for the negotiation of which commission had been agreed to be paid, and, secondly, that the Court below was wrong in decreeing the Plaintiff's claim without coming to any finding as to whether there was any real defect in the Defendant's title for which the transaction is said to have fallen through. Now the contract upon which the claim is based runs as follows :--"I hereby authorize you to negotiate as broker for a loan of Rs. 18,000 only on the first mortgage of three properties, namely, Nos. 31 and 40, Tangra Road in the Suburbs, and No. 27-3, Ram Kanto Mistry's Lane in the town of Calcutta." And then the document goes on to add : "I hereby agree to pay you brokerage at the rate of 4 per cent. for negotiating such loan." 2. It is agreed by the learned vakil for the Petitioner that the Plaintiff was entitled to the commission agreed to be paid only if he successfully negotiated the loan, that is actually secured the advance of it to the Petitioner and that as he failed to do so he is not entitled to succeed upon the contract. 3. Now this is how the facts found stand :--The learned Judge in the Court below says :-- The Plaintiff was entrusted to negotiate a loan. He did bring a creditor who was willing and actually placed money in the hands of the attorney. The Defendant was bound to satisfy the lender as to his titles ; but the attorney found out certain defects and the transaction fell through. The fault was not the Plaintiff's. He performed his part when he brought in a creditor willing to lend on the terms stated in Ex. I. and earned his brokerage." And a little further on he adds :--"Whether the attorney was right in his opinion I am not called upon to say. The fault was not the Plaintiff's. He performed his part when he brought in a creditor willing to lend on the terms stated in Ex. I. and earned his brokerage." And a little further on he adds :--"Whether the attorney was right in his opinion I am not called upon to say. But one title deed was missing and he was at least right in calling upon the Defendant to make it good. 4. Upon these findings we think it is clear that the Plaintiff has performed his part of the contract and if the transaction fell through it was by reason of the Defendant's inability to satisfy the intending lender as to his title to the property. 5. Reliance was placed in the argument for the Petitioner upon the cases of Prickett v. Badger 1 C. B. S. N. 296 (1856) and Martgrose v. Gourjon 3 C. W. N. clxxviii (1899) and paragraph 329 of Story's work on Agency was also relied upon as showing that an agent must complete the thing required of him before he is entitled to charge for it and that an agent may be entitled to a remuneration for his services in proportion to what he has done where the entire performance is prevented by the act or neglect of the principal himself. We are of opinion that the authority of Prickett v. Badger 1 C. B. S. N. 296 (1856) is at least considerably shaken by the subsequent case of Green v. Lucas 33 L. T. 584 (1875) in which in the Court of Appeal the Lord Chancellor said :-- It appears to me that the Plaintiffs had done everything which agents of this kind of work are bound to do and it would be forcing their liability if they were to be held answerable for what happened afterwards. If the contract afterwards were to go off from the caprice of the lender or from the infirmity in the title it would be immaterial to the Plaintiffs and that appears to be the understanding of the persons themselves. 6. If the contract afterwards were to go off from the caprice of the lender or from the infirmity in the title it would be immaterial to the Plaintiffs and that appears to be the understanding of the persons themselves. 6. The case of Martgrose v. Courjon 3 C. W. N. clxxviii (1899) in which Prickett v. Badger 1 C. B. S. N. 296 (1856) was followed is based upon the circumstances of that case as the report in the short notes shows ; but what those circumstances were the report does not set forth and we do not think therefore that it would be a safe guide for us to follow in the case. As for the passage cited from Story on Agency no exception can be taken to the rule therein laid down so far as it requires that an agent must complete the thing required of him before he is entitled to charge for it ; but in the present case we are of opinion that the agent did complete what was required of him, that is to say that he did fully perform his part of the contract that being to negotiate for a loan for the required amount on the first mortgage of certain properties named. The Plaintiff had found a lender who was ready and willing to lend the required amount and was found to have placed the money in the hands of the common attorney of both parties and if the transaction was not completed it was by reason of the inability of the Defendant to satisfy the attorney on the question of title a certain document of title being found missing by reason of which as the evidence shows, the attorney was led to doubt whether the property had not been equitably mortgaged before. Now the contract upon which the suit is based expressly stated that the loan was to be secured on the first mortgage of the properties named which clearly implies a guarantee that the properties were not encumbered and if the principal failed to satisfy the intending lender on this point it was no fault of the agent. 7. Now the contract upon which the suit is based expressly stated that the loan was to be secured on the first mortgage of the properties named which clearly implies a guarantee that the properties were not encumbered and if the principal failed to satisfy the intending lender on this point it was no fault of the agent. 7. We are therefore of opinion that the Plaintiff in this case has fully made out his title to the remuneration claimed, it was then argued and this was the second ground upon which we were asked to interfere that the mere circumstance of the attorney not being satisfied on the question of title was not enough to show that the transaction fell through by reason of any real defect in the title of the principal and that the Court below should not have decreed the claim without coming to an affirmative finding on that point. But it was very fairly conceded that the circumstances were enough to justify the attorney in advising the lender not to advance the loan as it was not made out as between the borrower and the lender that the mortgage was to be the first mortgage on the property. Well, if that was so as between the lender and the borrower, there is no reason why the broker should be held bound to prove more, regard being had to the terms of the agreement between him and his principal. 8. The grounds urged before us therefore fail and this rule must be discharged with costs. We assess the hearing fee at three gold mohurs. The record should be sent down without delay.