MISS MOSELLE SOLOMON Vs. MARTIN AND CO

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by Messrs. Martin & Co. for the price of sleel work Supplied by them, to the order of Mr. Moses Elias Solomon at 43, Free School Street.

(2.) The plaintiff Company in the first place sued Mr. Solomon personally for the price of the goods and obtained a decree against him which they say they have been unable to execute. Subsequently they discovered that Mr. Solomon was trustee for the owners of a half share in the premises and that his daughter Miss Moselle Solomon was the owner of the other half share. The Company, therefore, brought this suit against, Mr. Solomon as trustee for the half share and against Miss Moselle Solomon as owner of the other half share on the ground that the order was really placed by Mr. Solomon as trustee for the half share and as agent for Miss Moselle Solomon as regards the other half share of the premises.

(3.) Admittedly the goods were supplied to the order of Mr. Solomon and the price is due to the Company, but the learned Judge held that in so far as Mr. Solomon was acting for an undisclosed principal, the unsatisfied decree against him was a bar to this suit. He held, however, that the Company was entitled to recover half the cost of the work from Miss Moselle Solomon under Section 70 of the Contract Act inasmuch as the circumstances show that she, as owner of the half share in the premises, took delivery of the steel work and enjoyed the benefit thereof. Against this decree Miss Solomon has appealed on the ground amongst others that Section 70 of the Act, did not apply as the goods were supplied under an express contract. There is a cross-objection by the Company on the grounds: (1) that the learned Judge was in error in holding that the goods were not supplied to the owners as such, (2) that he was wrong in holding that the unsatisfied decree against the 1 defendant, Mr. Moses, was a bar to the suit against the defendants, (3) that he was wrong in holding that a decree could not, in the circumstances, be passed against the 1 defendant as executor and trustee, (4) that he was in error in passing a decree for half the amount of the claim against the 2nd defendant Miss Moses and should have passed a decree for the whole amount against her. Ground No. 3 of the cross-objection cannot be considered inasmuch as, defendant No. 1 has not been made a party to the appeal and has got no notice of it.