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Present: Wood Renton J.SUPPIAH v. PALIAHPILLAI.
241—C. R, Colombo, 22,430.
Partnership—Action by manager of partnership—All partners must join
in the action.
Plaintiff, who was manager of the Colombo Aerated WaterCompany, which was not an incorporated company, sued thedefendant, who was employed by him for hawking aerated waters,for the recovery of Rs. 164'04, being the value of empty bottlesnot returned and the balance cash proceeds of sale of waters.
Held, that all the partners of the firm should have joined in thefiction.
“ The defendant did not contract with the plaintiff on the footingthat the latter was an agent pledging his credit as principal. Theplaintiff could not therefore maintain this action as agent, andthat being so, he is unable to maintain it as partner.”
*J*HE facts arc set out in the judgment of Wood Renton J,
Bawa (with him Morgan de Saram), for appellant.—Plaintiff is themanager of the Colombo Aerated Water Company, which is not anincorporated company. He could not therefore sue on any contractwith the company. All the partners should have joined in the action.
Counsel cited Boustead on Agency, art. 128 ; Dicey*s Parties toan Action, p. 115 (1870 ed.)
Tambyah, for the plaintiff, respondent.—There was a contractbetween plaintiff and defendant. [Wood Renton J.—Was the'contract between plaintiff as principal and the defendant ? If thecontract was with plaintiff as manager, can he sue as manager ?]Where the contract is made with the agent himself, /.e., when theagent is treated as principal, the agent may sue. Diceyy p. 136,exception 4 ; Fisher v. MarshK
[Wood Renton J.—That refers to the case of an undisclosedprincipal. It clearly refers to cases where the agent himself pledgeshis own credit.] Counsel referred to Dicey, p. 153.
[Wood Renton J.—May not the Commissioner give leave inCourts of Requests to any person to represent another ? ] Bawa :That must be on leave obtained before trial.
[Wood Renton J.—I think so.]
>34 L. J. Q. B. 178
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No action should be defeated by reason of non-joinder or July 21,1911misjoinder of parties. (Civil Procedure Code, section 17.)suppiah v.
The defendant should have moved to bring the others in.Paiiohpiilm
Bawa, in reply.—The case of Fisher v. Marsh is the case of anauctioneer, and clearly he can sue. Section 17 does not contemplatea case like this, where the necessary partners have been left out.
Where a wrong party comes into Court, the Judge could not add theproper party as well.
Cur. adv. vult.
July 27, 1911. Wood Renton J.—
The plaintiff-respondent as manager of the Colombo AeratedWater Company, Slave Island, sues the defendant-appellant in thisaction for the recovery of a certain sum of money as the value ofbottles not returned and cash due by him. The learned Commis-sioner of Requests has given judgment in favour of the respondentfor a portion of his claim. There is no appeal by the respondenton the ground that his whole claim has not been upheld, and theappellant’s counsel stated that, if the decision of the Commissionerof Requests was sound in law, he would not dispute the accuracy ofhis finding as to the sum due to the respondent. Two points of lawhave been argued in support of the appeal : (1) That the action isnot maintainable, inasmuch as the contract, if contract there was,between the appellant and the respondent was made with the latteronly as agent for the Colombo Aerated Water Company ; and (2)that there was in fact no contract between the appellant and therespondent at all.
will deal with the latter point first The facts of the case areclearly and fully set out in the judgment of the Commissioner ofRequests, and I adopt his statement of them. The evidence showsthat the appellant, who, according to the respondent, was employedas a carter under the Colombo Aerated Water Company, acted assuch only temporarily, while the real employee of the Company, oneKuttisamy, was absent in India. Although Kuttisamy was awaythe accounts were still kept in his name. The appellant contendson the evidence that his contract was with Kuttisamy and notwith the company. The learned Commissioner of Requests hasover-ruled this contention, and I think that he was right in doingso. It is true that Kuttisamy introduced the appellant to therespondent, but the respondent expressly says, and the Commissionerhas believed him, that he engaged the appellant and explained hisduties to him, and that, according to the custom of the trade, theappellant was responsible for the liabilities incurred'by him duringhis temporary employment, although the accounts were enteredin the company’s books under Kuttisamy’s name. There is amplecorroboration of the respondent’s evidence on that point.
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1 come now to the more difficult question raised by the issue as towhether or not the action is maintainable. It would appear thatthe Colombo Aerated Water Company is not an incorporatedcompany, but is merely a firm consisting of several partners, ofwhom the respondent, its manager, is one. The respondent sues asmanager, and the issue framed at the trial on the point with which1 am now dealing raised the question of his title to sue as manageralone. 1 find, however, in the record, immediately under that issue,an entry in the following terms : “ It is admitted there are severalpartners of this company.” The learned Commissioner of Requestsseems to have treated this issue as raising the question whether theplaintiff could not maintain the action as a partner of the firm, andhe answered this question in the affirmative, on the ground thatwhile, as a general rule, all persons who are partners in a firm mayjoin in an action for the breach of a contract, one partner may suealone on contracts made with him on behalf of the firm in the samecases in which an agent may sue alone on contracts made with himon behalf of his principal. The agent, says the learned Commissionerof Requests, may sue where the contract is made with the agenthimself on his personal credit. Applying these principles to thepresent case, the Commissioner says that the deed of partnership,which was produced at the trial, appoints the respondent managerof the partnership, and that the appellant treated him as “ the partyto the contract.” The formal deed of partnership was in point offact posterior in the date of its execution to the contract sued upon.But, apart from that, I am unable to agree with the Commissionerthat the evidence in this case shows that the appellant contractedwith the respondent on the footing that the latter was an agentpledging his credit as principal. The respondent could not, there- •fore, maintain this action as agent, and that being so, he is clearlyunable to maintain it as partner. The evidence does not prove thatthe appellant contracted with him as with a single partner pledginghis personal credit. There remains, however, the question as tothe order which ought to be made in appeal. The case is one in theCourt of Requests. The facts have been fully gone into on bothsides. The appellant's counsel, as I have said, did not dispute, forthe purposes of the. appeal, the finding of the Commissioner ofRequests as to the amount due to the respondent, and both theterms of the judgment of the Commissioner and the admission abovereferred to as to the number of partners in the firm incline me tobelieve that the question of the position of the respondent as partnerwas before the minds of both parties at the trial. Under thesecircumstances, I am not prepared to dismiss the respondent’saction altogether, and I make the following order. I set aside thedecree under appeal, and send the case back to the Court of Requests,with liberty to the plaintiff-respondent, within such time as theCourt of Requests may fix, to amend his plaint by adding his
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co-partners as co-plaintiffs, and by making such modification in theplaint itself as the addition of the co-partners may render necessary.If the respondent does not so amend his plaint within the timefixed by the Commissioner of Requests, his action will stand dis-missed with all costs of the action and of the appeal. If, however,such an amendment of the plaint is duly made, there will be furtherinquiry into and adjudication upon the case in the Court of Requests.The evidence already taken may stand, and either side may recallany witness or witnesses already examined for further examinationor cross-examination, and adduce any further evidence that may bethought desirable.
The appellant will have in any event the costs of the appeal andof the action up to and including the filing of the original answer,and also the costs of the filing of an amended answer, or of anyamendment of the answer, that may be rendered necessary by theamendment of the plaint.
All other costs will be costs in the cause.
Sent back. *
SUPPIAH v. PALIAHPILLAI