111-NLR-NLR-V-17-BOYSEN-v.-ZAMELDEEN.pdf
( 346 )
1913.
Present; Pereira J.BOYSEN v. ZAMELDEEN.291—c. B. Colombo, 32,556.
Principal and -agent—Contract on behalf of a foreign principal—h agentpersonally liable t
Although an agent who makes a contract on behalf of a foreign{principal is, as a rule, personally liable on the contract, there maybe terms in any particular contract that negative such liability.Where such an agent did no more than introduce his principal!and the other contracting party to each other, and it appearedfrom the facts proved that the principal and the other contractingparty bargained together,—
Held, that the agent could not be deemed to be personally liable.
T
HE facts are set out in the. following judgment of the Com-missioner of Requests (P. E. Pieris, Esq.): —
Plaintiff i6suing in thiscasefor abalance sum alleged to be due
.ona ' promissory note. Thefacts inthat connection with-that note
are triple. Certain goodsbad arrived consigned tothe defendant.
Hehad to pay certainsometo clear the goods. He hadnotthe neces-sary money.He borrowedthissumfrom plaintiff and gave the
promissory note. Es. 100 has been paid, and the balance is dne. Thatis the wholecase so far asthenote isconcerned. The defence is really
in the nature of a counter-claim. The goods which I have referredtowerq ordered through theplaintiff;defendant saystheywere not
up 'to sample, and heclaimsthis Bs.200 as damages,anddenies his
liability to paytheclaimonthe promissorynote in consequence..
On the -question ofwhether the goodswere notin -accordancewiththe
sample, I hold for the defendant. He had selected certain samples atthe plaintiff's office,and he had givenhis orderinaccordancewiththe
trade numbers ofthose samples. Itappearsfrom P2 “ (that ifnot
•otherwise {prescribedassortedcolours aredelivered) "that ‘ factwas
not brought tothenoticeofdefendant. Heha'd selected specific
samples. He wasentitled, in theabsenceof anyagreement tothe
•contrary, to have the goodBsupplied tohimin exactagreementwith
the samples in every detail. It is proved that 445 pieces were accord-ing to sample and754 werenot. Then arisesthe chiefquestion inthe
-case, and that is, as to the liability of the plaintiff in respect of thisfailure. The plaintiff, I understand, is a German, and is established in'Colombo, where hecarries on' variousbranchesof trade. Thedocument
which connects himwith thedefendant istheindent P1, wherehe is
described as commission agent.
What exactly wasthe nature of his relation tothedefendant9 Hehas
•elearly explainedthecourseofbusiness. Partiesordering goods sign
the indent, which is in a printed form. On the top of it is printed, on
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the left hand side, plaintiff's name and description, on th» right hand
side is written the name of the foreign shipper, to whom, I understand,
the order is addressed. Plaintiff receives this order and forwards it to Boyaen t>.the shipper. The shipper thereupon communicates to him his accept- ^mefcfeen-ance orotherwise of the order. Thatreplyis communicatedby( the
plaintiff to the customer, and by a special term in the indent the contractis not conclnded till formal advice has been received by the customerof theacceptance. Plaintiff apparently hasnothing farthertodo
with the matter. The goods are consigned to the customer; Theinvoice is in thecustomer’s,name. Thebillof lading bearsno' name.
The shippers at thesame time to drawon thecustomer for thevalueof
the goods, and the draft, I understand, is collected through the bank,sind the customercan takethe goodsonpayment. If, ■ forinstance,
the shipper declineto acceptthe indent,nocontract at allcomes into
existence,and thereis no liability atall onthe plaintiff. Incaseof
acceptance, the goods are never in the possession of the plaintiff, andbe never receives into bis hands their value from the customer. Under-these circumstances, I am of opinion that the plaintiff is what he hasdescribed himself, to be, that is, merely a commission agent, and I amof opinion that inthe circumstances of the present ease he isnot liable
to defendant id. damages, on the ground that the shipper had failedto supply goods according to sample. The defendant’s counter-claim;is dismissed. Judgment for plaintiff as prayed for with costs.
E. W. Jayewardene, for defendant, appellant.
Bartholomews, for plaintiff, respondent.
Cur. adv. vult.
September 15, 1913. Pereiba J.—
The simple question in this case is whether the plaintiff is liableto the defendant for breach of the contract involved in indent P 1.It was argued that the plaintiff was not so liable, because he was acommission agent acting on behalf of a foreign principal. The lawas to the liability of such a commission agent is clearly, thoughtersely, laid down in Lord Halsbury’s Laws of England (secvol. I., p. 209):“ A contract by an agent on behalf of a foreign
principal cannot be enforced by or against such principal eventhough his existence was known to the other Contracting party,unless it is affirmatively shown that at the time when the contractwas made the agent had authority to establish privity of contractbetween such principal and the other party, and that privity ofcontract was in fact established between them.” And, again, it isstated (see page 220): ‘‘ An agent who; makes a contract on behalfof ‘.a foreign principal is personally liable on the contract, althoughhe discloses’ the name of the principal, unless the terms of thecontract are inconsistent with his liability.”
In the present case it can hardly be said that the contract inquestion was made by the plaintiff on behalf of A. Averbach ofHamburg, and it is clear that the terms of the contract that hasbeen read in evidence are inconsistent, with liability on the part of
( 348 )
1918.
pBBBIBA J.
Boyaen v ,JZameldeen
the plaintiff. What the plaintiff did was to bring Mr. Averbach andthe defendant together, and the contract was a contract betweenthem. In the case cited at the argument in appeal—Elbinger ActienGessellschaft v. Claye 1—.it will be seen from the judgment of Black*bum J. that the. offer that wa6 accepted by Seebech & Co., thecommission agents who were said to be acting for the plaintiff in thatcase, was made by the defendant in. writing in the book of Seebech& Co. without any mention of the foreign company, and BlackburnJ. observed: “ There might, no doubt, be a contract made in a-different way between the two parties bargaining together.” In thepresent case the contract was clearly one made in a way differentfrom that made in the case cited. Here the two parties, Mr. Aver*bach and the defendant, bargained together. The list of factscited by the Commissioner in his ^ judgment shows this. Thesefacts are established by the evidence of the plaintiff, and I mustaccept the Commissioner's verdict on that evidence as correct, asthe defendant had no right of appeal on the facts in this case.
In the view expressed above, the plaintiff is entitled to succeedin this case, and I affirm the judgment appealed from with costs.
Affirmed.