N JOACHIMSON AND CO Vs. MEGHJI VALJI

JUDGEMENT

(1.) The first question argued on this appeal is whether the relationship constituted between the appellants (plaintiffs) and the respondent (defendant) by the two contracts on which the suit was brought was one of agent and principle or of purchaser and vendor. Both the contracts are in writing and judging from their terms alone the conlcusion is, I think, inevitable that the appellants accepted tinder them the business of agency to sell the goods for and on behalf of the respondent.

(2.) Each contract begins whith these words ;- "We," (ie., respondents), "here with confirm the sale through you" (i.e. appellants), words which are apt to convey the meaning that the latter were appointed to sell for the former. There is an admission, however, by the respondent in his deposition that "sale through you" and "sale to you" mean the same thing; and in his solicitors letter to the appellants, Exh. A 14, the goods forming the subject-matter of another contract are referred to as having been sold to the appellants. We must, therefore, look at the other terms and language of the contract to find the clear intention of the parties. Each of the contracts was on c. i. f. terms, that is, the respondent as vendor agreed to be liable for costs, insurance and freight. The rate of exchange was fixed in each by the agreement of the parties. Each of these conditions may be as consistent with the relation of principal and agent as with that of vendor and purchaser. There is, however, extraneous evidence in the case, adduced for the respondent to show that these two terms are incompatible according to the usage of trade with the latter relation and mark an agency business. That evidence has carried weight with the learned Judge in the Court below, Each of the two contracts) in dispute shows that there was a deduction of 2 per cent in favour of the appellants from the purchase-money advanced by them to the respondent and the latter has led evidence to prove that this 2 per cent. according to commercial usage, is treated as commission, though it is sometimes spoken of or described in a written contract as discount. This evidence also has been believed by the learned Judge. To all this evidence of usage the objection urged before us on appeal is that no questions as to usage of trade were put to Mr. Schumacher, the appellants constitutedattorney in Bombay, during his cross-examination. But the circumstances under which that cross- examination had to be made are sufficient justification for the omission complained of. Mr. Schumacher had to be examined de bene csse before the trial commenced and issues were raised, because he was leaving for Europe. At that time the respondent had no distinct intimation that the appellants were going to set up a case of purchase, under the contracts on their own account. In the course of his cross-examination, Mr. Schumacher set up that case for the first time; and the respondent has sworn that at that time he was at Calcutta and could not, therefore, give instructions to his counsel as to the new case unexpectedly set up. Under these circumstances we cannot eliminate from the case the evidence as to usage. It was open to the appellants to ask the learned Judge to postpone the hearing for the purpose of examining Mr. Schumacher by commission on the points as to trade usage.

(3.) But even if we exclude all this evidence from our consideration, and confine ourselves to the language of the written contracts, what is the result? The facts that the contracts were on c. i. f. terms, that a rate of exchange was fixed by the agreement of the parties and that two per cent. was deducted from the price paid for the goods may be, as I have already observed, as consistent with the case of the appellants as with that of the respondent. And if that had been all the language of the contracts, we might have construed them in favour of the appellants. But it is, in my opinion, difficult to do that in face of the language of the paragraph in each of the contracts, which begins with the respondents granting to the buyers the weights &c." and ends with the respondent agreeing to accept the appellants or their agents reports, decisions &c, as correct and conclusive and binding upon" him. There is (in my opinion) here a studious distinction made between the appellants as parties to the contract and the buyers." Had both the parties intended "the buyers" to be the same as the appellants, there was no need of distinguishing between the two. And this distinction becomes still more marked when we have the fact that one term of the contract imported into it by the incorporation of the contract form of the Oil Seeds Association (Ex. C) was that it should be deemed to have been made in England or to be performed there, implying that the buyers were not here but were foreigners living abroad. It could not be said that the appellants were not here. They, formed a trading firm carrying on business in Bombay by their constituted attorney, Mr. Schumacher. This conclusion is further strengthened by another fact. After the goods shipped by the respondents had arrived at their destination, the appellants wrote to the respondent that buyers" complained bitterly of the quality of the shipments (Ex. T), implying that the buyers were people distinct from them (appellants). I agree, therefore, with Macleod, J. in the conclusion of fact at which he arrived in the case, holding that under the contracts in dispute, the appellants became the agents of the respondent to sell his goods.