Charles Sargent, C.J.
1. This suit arises out of the following undisputed facts. The firm of Sowerby & Co., the partners of which were William Sowerby and Framji Edulji took a contract from Government, on 12th November 1877, to construct a barrel-house at the Gunpowder Manufactory at Kirkee, and, on the 28th November 1877, agreed with the plaintiff to advance monies up to Rs. 15,000 for the purpose of carrying out the contract, the plaintiff to receive all sums to become due from the Government on the contractors' bills, and to pay the balance to the firm after satisfying the advances, with interest. On the same day the firm executed a power of attorney to the plaintiff, authorizing him to receive from the Government Engineer all such sums to become due to the firm under the contract, which power of attorney was deposited by plaintiff in the office of the Executive Engineer at Poona.
2. In March or April 1878 Sowerby left for England, up to which time Rs. 34 900 had been advanced by plaintiff and a balance of Rs. 14,942-5-10 still remained due to him after giving credit for the sums received on the bills passed by the Executive Engineer. On 24th July 1878, Framji Edulji, with the view to complete the contract, entered into a fresh agreement with the plaintiff similar to the former one, to make further advances up to Rs. 16,000 in addition to the Rs. 15,000 on the same terms as those contained in the previous agreement, and by means of these advances, the contract was completed at the end of 1879.
3. In 1878, the defendant obtained a decree against Sowerby, and attached the right, title, and interest of Sowerby in a sum of Rs. 5,034-11-9 due to the firm on the contract. The plaintiff, who alleges that Rs. 13,700-1-11 are still due to him from the firm, applied to have the attachment removed, which application was refused on 30th September 1879, and the sum attached was paid to defendant. Hence the present suit to determine the rights of the parties. The Court below found that the plaintiff could not sue alone, but that in any case he was not entitled to recover the money attached and received by defendant. Against that decree the plaintiff now appeals.
4. As to the first point, we think that as the contract was entered into with the plaintiff in his individual capacity, and not on behalf of the family, there was nothing on the face of the contract to show that he was acting on behalf of the family firm, and the plaintiff was entitled to sue alone-(see Lindley on Partnership, p. 477). In Dularchand I.L.R. 1 All. 453 v. Balramdas, relied on by the Subordinate Judge, the contract was with the family firm. So also in Kalidas Kevaldas v. Nathu Bhagvan I.L.R. 7 Bom. 219 referred to by Mr. Maneksha.
5. The next question for determination is, whether the agreements entered into between the firm of Sowerby and Co. and the plaintiff, that the latter should make advances to them for the purposes of the contract with Government, operated as an assignment to the latter of the sums to become due to Sowerby and Co. on the bills passed by the Executive Engineer. As to the first agreement of 28th November 1877, it was entered into with the firm, and, coupled with the power of attorney of even date, had, we cannot doubt, the effect of an assignment. Taken together the two instruments amount, in the language of Sir John Leach in Watson. Duke of Wellington 1 bass. and Myl. 602, 'to an engagement to pay out of a particular fund,' which the Master of the Rolls says amounts to an assignment of the fund. Again, in Burn v. Carvaloh 4 Myl. & Cr. 690 Lord Cottenham held that a letter to the plaintiff telling him that he would write to his agent to meet his bills out of funds in his hand, followed by a letter to the agent directing him to do so, amounted to an equitable assignment of the funds. Here the power of attorney must be deemed to have been intended to be deposited by plaintiff with the Government Engineer, and we have therefore in this case virtually, although in a different form, all 'the elements which existed in the latter case for constituting an assignment of the monies in the hands of the Executive Engineer.
6. It was contended, however, for the defendant, that the above agreement was satisfied when Rs. 15,000 had been advanced, but we agree with the Subordinate Judge that upon the right construction of that document (a construction which is assisted by the conduct of the parties themselves), the expression 'up to Rs. 15,000' must be read as meaning that the plaintiff should make advances subject to there not being at any time a larger balance than Rs. 15,000 'against the firm. However, it is clear that before the date of defendant's attachment, all monies advanced under the agreement of 28th November 1877 had been paid out of the monies due on the contractors' bills, and that the advances, in respect of which plaintiff claims to have had a lien upon the monies attached by the defendant, were made under the second agreement entered into by Framji with plaintiff on the 24th July, 1878. The question, therefore, arises, whether that agreement, which is in the same form as the first one, was binding on the firm. It appears from' the correspondence between Sowerby and Framji that the former contemplated the carrying out of the Poona contract by Framji during his absence with the aid of advances from the plaintiff. This is shown clearly by Sowerby's letters of 24th July 1878 and 10th October 1879. In the former, he says: 'Mind you take care about Poona works, and finish properly in good time.' In the latter, he talks of coming out 'to settle the accounts;' and it was not suggested that the firm had any capital of its own. It further appears from Framji's evidence that there being a sum of Its. 14,000 due on first agreement, the plaintiff refused to make further advances unless a fresh agreement was entered into with him, and that he, accordingly, passed the agreement of 24th July 1878 to him and that without further advances the work must have stopped, in which case the deposit money would have been forfeited; and lastly we think we may take judicial notice of the fact that it is the ordinary practice for contracts of this nature to be carried out, at any rate to a great extent with borrowed capital.
7. Under all these circumstances, we think that the second agreement was both necessary to the carrying out of the partnership business and in accordance with the ordinary practice of such partnerships as that of Sowerby and Co., and that it was therefore binding on the firm (see 7 M. and W., 595, and Lindley on Partnership). That being so, the two agreements, accompanied by the power of attorney, remained in force throughout, operated as an assignment of all the monies to become due on the contractors' bills as a security for plaintiff's advances with interest. The Subordinate Judge is of opinion that the plaintiff's books and samadaskats are genuine, and have not been successfully impeached by the defendant, and we see no reason to differ from that opinion; and as they show that the plaintiff's advances, with interest, exceeded the sums received by him from the Executive Engineer under the contract by more than the sum of Rs. 5,035-11-9, which was paid to the defendant under the attachment, the plaintiff is entitled to recover the latter sum as money belonging to him under the assignment from the firm, with interest from 30th September 1879, when it was so paid to the defendant,
8. The decree must, therefore, be reversed, and judgment passed for plaintiff for Rs. 5,034-11-9 and interest at 9 per cent, from 30th September 1879 until payment, and costs throughout.