(1.) This matter is before me on a further hearing under the following circumstances: This was a suit against a share broker for damages for conversion of certain shares left with that broker as security for the amounts standing to the debit of the plaintiff's account with him. I held that there was such conversion and that the plaintiff would be entitled to damages for conversion on a certain basis. The shares however being pledged shares, it was common ground that as between the plaintiff and the defendant, the defendant would have to be credited with the amount due to him on the account, that is to say, the plaintiff would only be entitled to the value of the shares less what he owed to the defendant. Now, at the hearing, Mr. Isaacs for the plaintiff sought to prove that the amount due to the defendant was a certain sum of, I think, Rs. 1,4.00 odd, which sum, if credited to the defendant, would entitle the plaintiff to the balance of the value of the shares, which would be a considerable amount. This amount, alleged to be due to the defendant, is mentioned in the plaint (para. 5); in point of fact, no estoppel or account stated is pleaded in the plaint. In the written statement the defendant has denied that this is the correct figure, and has alleged in (para. 8): that on an account being taken of the transactions between the plaintiff and the defendant there would be due to the defendant a sum of Rs. 2,306.
(2.) In argument, Mr. Isaacs, for the purpose of establishing the amount set up by the plaintiff, relied upon a certain letter and an amended account, which, although submitted by a man called Tranden, I have held to be in effect the documents and accounts of the defendant firm. This being so, he relied upon the principle of estoppel or account stated in some form or other. Mr. Pugh on behalf of the defendant, in point of fact did not challenge, in detail, the account which I have referred to. To the evidence on this point I will refer again. Mr. Pugh contended that the matter would have to go to a reference and the defendant would, prove this account there. On the materials before me I was unable there and then to accept the argument of Mr. Isaacs on estoppel or account stated. What I did was to say that the matter must proceed before me as if the account was being taken by me on a further hearing, and upon such hearing I would hear Mr. Isaacs further on the points (1) of estoppel and (2) of an account stated, whatever that might include. That was the position, and on those points I have heard further arguments. I also put certain questions to the defendant with a view to discovering whether, if Mr. Isaacs should not succeed, I could here and now proceed with taking the account. The result was that I came to the conclusion I could not. I will now deal with Mr. Isaacs points. Before I do so, I should point out that the difficulty of the position has been enhanced by the fact that there are no proper pleadings on points which do require pleadings. Normally, there should be claim to an account, a defence of account stated" together with a statement of the nature of the "stated account." This I will explain further. Then there should be a reply stating how the plaintiff seeks to deal with the "account stated." whether to reopen or to vary it. That we have not got here.
(3.) Taking first the point of estoppel. If the documents referred to coupled with the conduct of the parties constitute an estoppel, there is no question of accounting, at any rate as regards the period, prior to November 1930. Mr. Isaacs points out that there has been a representation. I agree. The plaintiff has relied upon that representation. I agree again. He has acted in a particular way by making certain payments in 1931. Again that is so. But the point is, are those acts (I will not say caused or induced, although that, I think, is the word used in Section 115, Evidence Act) necessarily referable to the representation? Mr. Isaacs quite rightly relies upon two cases in England?Skyring V/s. Greenwood (1825) 4 B & C 281 and Holt V/s. Markham (1923) 1 K B 504. In the last case I think a military officer was actually paid by his army agent at a certain rate. It was held, that when the mistake was discovered the agent could not recover, and Scrutton, L. J., described it as a case of estoppel. In Skyring v. Greenwood (1825) 4 B & C 281, I think it was a case of crediting the account in a certain way. The customer had drawn against that account. It was held on the principle of estoppel that the army agent could not reverse the credits, could not debit the account with the amounts wrongly credited. The customer was induced to spend upon a certain basis; he did so.