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Present: Do Sampayo J.RAHIM t>. DAVOODBHOY.364—G. B. Colombo, 58,003.Indent for slate pencils by defendant through a commission agent froma foreign company—Action instituted by commission agent for• damages for breach of contract.
The defendant, through the plaintiff, a commission agent,indented for one hundred cases of slate pencils from a Japanesecompany, but refused acceptance of a portion of the consignment.The plaintiff sold the consignment by public auction, and institutedthis action againstthe defendantfor thebalance due, after
crediting him with the proceeds of the sale.
Held, that the plaintiff was not the proper party to sue.
HPHE facts are set out in the judgment of the Commissioner ofRequests (W. Wadsworth, Esq.): —
In this case the plaintiff, a commission agent, sues the defendant,claiming the sum of Rs. 300, which he states he had to pay to the BanseiTrading Company, alias Howkoku Trading Company, being the differ*ence between the value of a shipment of slate pencils and the nett amountrealized by sale of the shipment on failure of defendant to take deliveryof the shipment.
Defendant raises the preliminaryquestion thatplaintiffis not the
proper partytosue, and that plaintiff cannotmaintainthe present
It isadmitted plaintiff isonly a commissionagent, thathe had no
property in the shipment, that he was not liable for any loss| that moneywas notto be paid by him,thatthe goodswereconsigned tothe defend-ant and nottothe plaintiff, thatthe invoice was in the defendant’s
name, and that the bill of exchange in respect of it was drawn onthe defendant.
It is also 'agreed that the bill of lading has no reference to the plaintiff,and that if the shipper declined -to accept the* indent sent by defendant,no contract at all would arise.
What, then,isthe position of theplaintiff? Hehad noresponsibility;
no liability would attach to him. There was in fact no contract betweenplaintiffand defendant. Plaintiff’s positionmayhave beenthat of a
mail box, but nothing more.
The contract was betweenthedefendantandthe shipperdirect. The
shipper—the principal—was disclosed. If any dispute arose as to non-acceptance of shipment, or as to any difference in price between thevalue of the shipment and that realized by sale of the goods, or, conversely,as to non-delivery by the shipper, the action would arise only ‘ as betweenthe disclosed principal and the defendant.
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But, says the plaintiff, he had to pay the difference, and thereforehe has the right to claim. Why plaintiff paid, or why “he had to pay,”does not transpire, nor is it necessary for me to go'into that question.
So long as there was no contract, express or implied, between plaintiffand defendant, plaintiff cannot maintain this action. The defendantmay have his own defence if the shipper sned him, or there may be anan adjustment between the shipper and the defendant.
The present action is misconceived. I hold that plaintiff oannotmaintain this action, and I dismiss it, with costs.
I might add that the issue of estoppel is indeed an ingenious one,but is not worth serious consideration.
The indent was as follows: —
Indent No. 614/16.Colombo, February 10, 1016.
From Hassbnally Davoodbhoy, Colombo.
To Bansbi Tbading Company.
Through the British Traders’ Agency, Colombo.
MarksBate of Buying Commission
to be charged on Invoice.
H D …Nil
In 2 lots: 1st, soonestpossible; 2nd, 60/90days after.
500 cases each, 100 cartoons each. Cartoons 50 slate pencils.
Bef. No. 1,548, @ Bs. 15 per case, C. I. F. and C. Colombo.
Make up as usual, and label “ Made in Japan. ’’
Packing should be done very carefully.
Shipment.—In 2 lots: 1st, soonest possible; 2nd, 60/90 days after.
Draft at 30 days' sight D/P on Mr. Hassenally Davoodbhoy, 44, Fourth Crossstreet, Colombo.
Beceived March 9, 1916.Answered:.
I/We agree to abide by the condition at the back of this order.
(Signature) E. Davoodbhoy
Sealed: The British Traders’ Agency, Colombo.
J. 8. Jayawardene, for plaintiff, appellant.
Balasingham, for defendant, respondent.
December 19, 1917. De Sampayo J.—
The appeal in this case involves a point of law. The plaintiff isa commission agent carrying on business in Colombo under the styleof “ The British Traders’ Agency.” On February 10, 1916, thedefendant, through the plaintiff, indented for one hundred cases ofslate pencil from a Japanese company, known as Bansei TradingCompany, alias Howkoku Trading Company, to be forwarded in twoshipments of fifty cases each. The goods ordered appear to have
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been shipped and duly arrived in Colombo. The defendant accepteddelivery of one consignment, but refused to take delivery of theother. Consequently the fifty cases of pencils constituting thesecond consignment were sold by public auction at the instance oftiie plaintiff, and realized a sum of Bs. 600, leaving a balance sumof Bs. 300.26 still due in respect of that consignment to the Japanesecompany. The plaintiff’s cause of action is that he has had to payto the Japanese company this sum of Bs. 300.26, which he claimsfrom the defendant in this action. I have here summarized the alle-gations in the plaint, and it is at once clear that the plaint disclosesno cause of action. The statements made at the commencementof the trial and the issues formulated do not advance the matter.One of the issues stated was whether the plaintiff could maintainthe action, as he was not the proper party to sue. The Commissionerdecided this issue in favour of the defendant, and dismissed theaction. I agree with the Commissioner that unless there was somecontract, express or implied, whereby the defendant, in such circum-stances as the present, made himself liable to the plaintiff for anysum the plaintiff might pay to the Japanese company, the plaintiffcannot sustain this claim. As I have pointed out, the plaintiff didnot in any shape or form allege such a contract, nor did the plaintiffat the trial state there was any such contract and ask that an issuebe stated on that point. The mere payment under some arrange-ment with the Japanese company of the sum involved in thisaction does not necessarily entitle the plaintiff to claim a refund fromthe defendant. If the defendant wrongly refused to take deliveryof the goods, and to pay for them to the Japanese company, thecompany might have a good action against the defendant, but theplaintiff’s position as commission agent, or, as the Commissionerputs it, “ the mail box,” is not sufficient to give a legal right to theplaintiff to make the present claim.
I think the judgment dismissing the action is right, and I dismissthe appeal, with costs.
RAHIM v. DAVOODBHOY