VIJIATHAMMAL Vs. MKADIR SULTAN

JUDGEMENT

(1.) This is undoubtedly a hard case but I regret I am unable to see my way to help the plaintiff. She seems to have left the matter of the investment wholly in the hands of P.W. 4 who says that he acted on the advice of P.Ws. 1, 2, and 6.

(2.) The short question in the appeal is whether defendants 1 and 2, the principals are bound to repay a sum of Rs. 1,000 received as deposit by their agent, the third defendant from the plaintiff. Both the courts find that money was not in fact carried into the account of the firm. There is therefore no question of the defendants retaining any money of the plaintiffs in their hands or paying back any advantage received by them. The point is simply whether the third defendant acted within the limits of his authority so as to bind his principals by the transaction independently of whether he brought the money into the principals account or not.

(3.) Ex. I is the power of attorney defining the authority of the third defendant. One argument before me was that the power given to the agent under Ex. I to purchase goods necessarily implies the power to borrow; and reliance was placed in this connection on Withington v. Herring (1829) 5 Bing. 443 : 130 E.R. 1132. Though the language used there is somewhat wide, that decision has been understood by text writers as relating to incidental powers where the payment of money is necessary and incidental to the completion of the particular transaction for which the agent was appointed. It seems to me too much to rely on that case as supporting the general proposition that an authority to purchase implies an authority to borrow for the purpose. The reasoning of the Judicial Committee in Bryant, Powis, and Bryant, Ltd. V/s. La Banque Du Peuple (1893) A.C. 170 is directly against any such general proposition. I may also refer to the way in which the question is discussed in the judgment of Farwell, J. in Jacobs V/s. Morris (1901) 1 Ch. 261. The learned Judge states: To begin with, there is a strong inherent improbability that a principal1 intends to give his attorney power to borrow money if he does not expressly state it.