WALTER SMITH Vs. AHMED ABDEENBHOY PEERBHOY

JUDGEMENT

(1.) This is an appeal from a judgment of the High Court at Bombay who reversed a decision of Kemp, J. in favour of the plaintiffs, the appellants, at a trial on the original side. The claim was for a balance of account. The plaintiffs, under the firm name of Clarke and Smith, carried on business in the city of London as produce merchants, doing amongst other activities a consignment business. The defendant carries on business in Bombay as a dealer in hides and skins and other produce, doing also a commission business. The parties came into business relations during the war in 1916 on an introduction of the defendant to the plaintiffs by Bombay correspondents of theirs. No formal agreement was drawn up between the parties: and the terms of business are to be derived from the letters and accounts passing in course of business. The defendant consigned goods to the plaintiffs, and the general terms are expressed in the plaintiffs' first letter to the defendant of 29 June 1916.

(2.) Our commission is 2 per cent, and we are prepared to accept your three months sight draft for 75 per cent of the value of the produce you may contemplate consigning to our care. The first consignment appears to have been 10 bales of sheep and goat skins, tanned, per s.s. "Kashmir." The defendant duly advised the consignment on 21 August, 1916, drawing for 75 per cent, of the value "as per your instructions in your first letter to me."

(3.) At the time of wiring sale prices you will kindly use the number written against the code word in the invoices. It is hardly necessary for me to add that henceforth you will direct all letters and cables to my above address where I have put up an office .... Within a couple of months the defendant began to consign goods on behalf of named persons whom he styled his constituents. The question that arises in this case is whether the defendant is personally liable for losses made on these constituent consignments. No express bargain was made and the contractual position has again to be determined from the course of business. The first introduction of a constituent is to be found in a letter dated 27 November 1916, which is as follows: