1. The plaintiff has filed this suit against the B.B & C.I. Railway Co. to recover certain moneys and Government Paper which he says are recoverable by him under a contract made with the Company by the firm of Abdul Kadur Alimiyan of which he is the surviving partner. The defendant Company admits that Rs. 3451-14-0 are due under contract referred to in the plaint and that Government Paper of the nominal value of Rs. 2,000 were deposited as security for performance of the contract, but have refused to admit the plaintiff's right to recover them under the following circumstances. One Abdul Kadur Banumiyan tendered for the supply of cotton waste to the Company for the year 1902 in the name of Abdul Kadur Allimiyan. His tender was accepted as also subsequent tenders for the years 1903-4 and 5. In October 1905 he tendered in the first person for the supply of waste cotton and miscellaneous articles on four forms supplied to him by the Company at their office (Exhibit F). The practice of defendants is to write the name of the person applying for the forms at the top of the forms and accordingly the applicant's name was written on these forms as follows :- 'Mr. Abdul Kadur Allimiyan.' On the 30th November a contract, Exhibit M, was executed for the supply of those articles for which his tender was accepted. Mr. Wevlcombe, Chief Storekeeper of the defendant Company, gave evidence to the effect that he knew Abdul Kadur Banumiyan Prsonally as Abdul Kadur, the tenders were made in the firs, person, the contracts were executed by Abdul Kadur in the nrst person, and he had no suspicion whatever that Abdul Kadur tendered on behalf of himself and some, other person. If he had known that, he would have insisted on the 'I' being changed into ' we'. I am satisfied that during the whole period the previous contracts and the one in question were running-defendants dealt with Abdul Kadur as the only person they knew to be interested in them. In October 1906 Abdul Kadur tendered again for the supplying of certain articles for 1907. in the name of Abdul Kadur Banumiyan, and a contract was executed (Exhibit N) for the supply of the goods for which his tender was accepted. At the end of 1906 there was due on the contract for that year Rs. 3451-14-0 and Government Paper of the nominal value of Rs. 2,000 deposited as security remained with the Company. In January 1907 Abdul Kadur died and, on the 25th January, plaintiff wrote three letters in identical terms to the Chief Auditor, Chief Storekeeper and Agent of the Company respectively, claiming payment of the amount due under the contract for 1906 as surviving partner of the firm of Abdul Kadur Allimiyan. The representatives of Abdul Kadur also claimed for what was due under the contract for 1907 and apparently the Company thought they were also claiming for what was due under the contract for 1906. Correspondence ensued: the Company by their letter of the 20th March 1907 declined to pay except on a joint receipt of the plaintiff and the administrator of the estate of Abdul Kadur Banumiyan; and on the 21st March plaintiff's Solicitors gave the Company notice that this suit had been filed. On the 16th January 1908, Messrs. Mirza and Mirza, Solicitors for the administrators of Abdul Kadur, wrote to the Chief Auditor saying that their clients had obtained Letters of Administration, and consented to payment being made to the plaintiff, but negotiations for the settlement of this suit were not successful. There is no dispute about the amount due by the defendants under the contracts for 1906, which they have always been ready and willing to pay to the proper person. The only question is whether they were right in refusing to pay to the plaintiff. I think the plaintiff has established the fact that as between himself and Abdul Kadur there was a partnership in respect of the contracts from 1902 to 1906, but as far as the defendants were concerned the evidence seems conclusive. The question is upon the evidence whether the defendants might reasonably have considered that Abdul Kadur was the only person concerned in the contract. If the defendants had reasonable ground so to think, then they must be taken to have contracted with him alone (De Mautort v. Saunders (1886) 1 Bar. & Ad. 398.. It would not follow that Abdul Kadur was the only person who would sue or be sued on the contract. If one partner enters into a contract in his own name still if he is acting as the agent of the firm his co-partners will be in the position of undisclosed principals. They can be sued on the contract and may join as plaintiffs in suing. Now Abdul Kadur was the only person known to Mr. Woolcombe, the Chief Storekeeper of the defendant Company, who was chiefly responsible for receiving tenders and recommending their acceptance or rejection to Col. Olivier, the Agent of the defendant Company. The tenders were always made in the first person, and although Abdul Kadur had previously tendered for tailoring work in the name of Abdul Kadur Banumiyan the fact that he tendered as 'I, Abdul Kadur Allimiyan,' was no notice that he was tendering for himself and other persons. Even if it were, those persons would still be dormant partners as long as they were not known to the defendants. Mr. Woolcombe always referred to Abdul Kadur as the contractor, he informed the storekeeper at Ajmere that the tenders of Mr. Abdul Kadur Allimiyan had been accepted for certain goods, and the fact that the storekeeper at Ajniere addressed his correspondence to Messrs. A.K. Allimiyan cannot be taken as evidence that Mr. Woolcombe or the Agent had any knowledge that there was a firm of contractors. Therefore, I hold it proved that the defendants contracted with Abdul Kadur alone. The contract having been made between Abdul Kadur and the defendant Company, the right to claim performance rested witn Abdul Kadur during his lifetime, and he could have sued on the contract alone. The plaintiff as dormant partner might have joined Abdul Kadur in suing but he could not have sued alone : Lloyd v. Archbowle (1810) 2 Taunt 324. If he had joined Abdul Kadur as co-plaintiff, the Company would have been entitled to put him to proof of his right to join. The plaintiff now contends that after the death of Abdul Kadur he could sue alone on the contract as surviving partner. If he had been known to the defendants as a partner in the contract before Abdul Kadur died, I should be bound to follow the decision in Motilal v. Ghelldbhai ILR (1892) .Bom. 6 and hold he was entitled to sue, without joining the representatives of the deceased partner, but the fact that the plaintiff at the time of Abdul Kadur's death still was a dormant partner creates a situation which as far as I have been able to ascertain has not been dealt within the text books nor have any authorities in point been cited. Under Section 45 of the Contract Act where a person has made a promise to two or more persons jointly then unless a contrary intention appears from the contract the right to claim performance rests after the death of one of those persons with the representatives of such deceased person jointly with the survivor or survivors. Therefore if the Company had promised jointly with Abdul Kadur and the plaintiff, on Abdul Kadur's death the right to claim performance would have rested with the plaintiff jointly with the representatives of Abdul Kadur. Whether the present plaintiff could have sued alone would have been a question of procedure as pointed out by Farran J. in Motilal v. Ghellabhai. But Section 45 could not apply to the contract made by defendants with Abdul Kadur alone, unless before the death of Abdul Kadur the plaintiff' had been disclosed as a principal. Therefore the right to claim performance of the contract being in Abdul Kadur alone at the time of his death, that right survived to his representatives only, and the plaintiff had no more right to sue alone on the contract after Abdul Kadur's death than he had before. Whether if the representatives had sued he would have been entitled to join is a question which dues not arise in this case. In my opinion, the Company were perfectly justified in February 1907 in refusing to pay except on a joint receipt, and were further justified in contesting a suit filed by the plaintiff alone. The allegation in para 2 of the plaint that in the course of the business the firm of Abdui Kadur Allimiyan entered into contracts with the defend ant Company in the name of the firm was misleading considering the contract was made by Abdul Kadur in the first person. The allegation in para 3 that the bills for supplies used to be recovered by Abdul Kadur on behalf of the firm under an authority given by the plaintiff was incorrect, as although a power of Attorney signed by plaintiff has been put in, it was never registered with the defendants, payments were made to Abdul Kadur and deposits of Government Paper standing in one name only were taken from him as sole contractor. Further allegations as to the defendants having done business with the firm were also misleading. It was not until the 17th January 1908 that the defendants were informed by Messrs. Mirza and Mirza's letter of the 16th January that Letters of Administration to the estate of Abdul Kadur had been granted. Defendants by their letter of the 31st January expressed their willingness to consent to a decree to the effect that they should pay the amount due into Court to be paid to Messrs. Mirza and Mirza, Solicitors to the administrators, subject to payment of defendants' costs, the amount to be retained inCourt until their costs were taxed. They might perhaps have consented to the money being paid to plaintiff and the administrators jointly as they had offered to do in February 1907, but this was not the point on which the negotiations fell through. Plaintiff's solicitors on the 1st February wrote demanding that their costs should be paid by defendants, and defendants very naturally declined to consent to this. The result has been unfortunate for the plaintiff, but the defendants are in no way responsible for that. On Issue 7 I think it is clear that under Clause 10 of the contract defendants are entitled to retain, the moneys duo by them under the contract to meet the costs incurred by them, according to the terms of that clause, but I do not think that clause could prejudice the rights of any party who might obtain an order for costs against the defendants.
2. The result is that this suit must be dismissed, with costs, and I can make no order for payment of the amount admitted, as the representatives of Abdul Kadur are not parties to the suit.