Lindsay and Daniels, JJ.
1. This appeal arises out of a claim brought by the plaintiff Bidhi Chand for certain sums paid by him for brokerage and commission in connection with certain forward contracts for the sale of cotton seeds etc., which he entered into as commission agent on behalf of the defendants. His case was that the defendants were to deliver the goods to him for sale to third parties on forward dates; that the defendants failed to supply the goods and that he had to compensate the buyers for the loss. The suit has been dismissed by both the courts below on the ground that the contracts were wagering contracts which are illegal under Section 30 of the Indian Contract Act. It is not disputed that the contracts were wagering eon tracts. The plaintiff appeals on the ground that Section 30 does not prevent a person who is employed as agent in connection with wagering contracts from recovering sums due to him by his principal. In support of this plea the rulings in Shibho Mal v. Lachman Das (1901) I.L.R., 23 All. 165 and Jagai Narain v. Sri Kishan Das (1910) I.L.R. 33 All. 219 have been cited. It is not disputed on behalf of the respondents that these rulings support the plea of the appellant and that the law is as laid down in those rulings. The respondents contend, however, that there is a finding of fact of the lower appellate court in their favour that the plaintiff has failed to prove that he sold the goods on the defendants' account, and that in the opinion of the court below he sold them on his own account. We are of opinion that this cannot be treated as a finding of fact fatal to the appeal, for the short and simple reason that no issue on this point was ever framed and no such case was set up by the defendants when the case went to trial. No doubt the defendants in their original written statement denied that the plaintiff ever acted as commission agent for them and denied that any of the transactions relied on were entered into by the plaintiff on their behalf. This position was, however, materially modified by statements made by the pleaders of the parties under Order X, Rule 1, of the Code of Civil Procedure at the time of settlement of issues. In those statements it was admitted by both parties that there were two transactions, which are the transactions in suit, which were entered into by the plaintiff on account of the defendants. One of them was for 1,300 bags, and there was a dispute as to the amount of the other, the plaintiff alleging that it was for 1,300 bags and the defendant that it was for 000 bags only. This is clearly set out in the judgment of the learned Subordinate Judge, who says that it is admitted by both parties that there were two contracts, one in Katik Sambat 1974 and the other in Aghan Sambat 1974, as to the amount of which there was a dispute. The issues framed by the learned Subordinate Judge were three in number. First, whether the contracts were of a wagering nature; secondly, whether the first of the two contracts was barred by time, and, thirdly, whether the second contract was for 1,300 bags or for 600 bags.
2. No issue was raised at all as to the position of the plaintiff as agent for the defendants. The learned District Judge states in his judgment that he had received very little assistance from the Bar in deciding the appeal and he evidently found some difficulty in appreciating the position of the parties. The sentence on which the respondents rely would seem to be based on a misunderstanding of a sentence in the judgment of the trial court. The learned Subordinate Judge had said that because it was a. wagering transaction and no goods were to be delivered, so the plaintiff did not enter into contracts in the defendants' name, but on his own account, i.e., in his own name. It is clear on the admission of the parties that the plaintiff was not the principal in the disputed transactions but was acting as the agent of the defendants. The result is that, under the rulings already referred to, the decree of the court below must be and it hereby is set aside and the case remanded under Order XLT, Rule 23, to the lower appellate court for decision of the remaining issues. Costs here and heretofore will abide the result.