1. This is plaintiffs appeal from the decree dismissing his suit for money.
2. The plaintiff was admittedly acting as distributor of the cigarettes manufactured by the defendant-company. He worked as such during the period 1-2-1946 to 31-12-1946. At the end of this period, goods worth Rs. 1723/12/- were with him. He asked the defendant company to take back the goods and pay him the price. He also claimed Rs. 96/-/6 as an outstanding due. The claim for Rs. 96/-/6 was negatived by the trial Court and was not pressed before me. The claim for Rs. 1723-12-0 was dismissed by the Courts below on the ground that the property in the goods had passed to the plaintiff by sale and accordingly he was not entitled to refund of the price.
3. On 1-2-1946, the plaintiff deposited Rs. 500/-with the defendant-company as security and began placing orders for the supply of cigarettes. It is not disputed that the goods used to be supplied to the plaintiff on payment of the price after deducting a certain percentage on account of commission. The defendant-company had also agreed to pay octroi duty either wholly or in part according to the quality of the cigarettes. Salesmen were appointed by the plaintiff, whose salaries were paid by the defendant-company. On one occasion, the defendant company had also taken back soiled goods from the plaintiff. and the persons who had made purchases from him.
Plaintiff was also required to submit a statement of the stock of certain qualities of cigarettes periodically to the defendant-company. The charges of handbills and cinema slides paid by the plaintiff for advertisement used to be recouped by the defendant-company. It was urged that on these facts, the Courts below should have held that the goods belonged to the defendant-company and the plaintiff was entitled to recover the price.
4. The rule as to agency is expressed in the maxim qui facit per alium, facit per se. It is founded on a contract either express or implied by which one of the parties confides to the other the management of some business to be transacted in his name or on his account and by which the other assumes to do the business and render an account of it. The essence of the matter, as put in Mohesh Chandra Basu v. Radha Kishore Bhattacharjee, 12 Cal WN 28 (A) is that the principal authorises the agent to represent or act for him in bringing or aid in bringing the principal into contractual relation with the third person.
5. The pertinent facts, in the instant case, are that the plaintiff used to place orders for the goods which used to be delivered to him by the defendant-company on payment of the price. He was also not liable to render account of the sale proceeds. All that was required ia this connection was that they were sold only at scheduled rates. In the absence of any liability to account, however, the condition could not mean that the plaintiff was acting for and on behalf of the defendant-company. The account of the stock of certain qualities of cigarettes remaining with the plaintiff was evidently being asked for from him by the defendant-company to inform itself of the state of trade in the area for which he was acting as the distributor. This also does not mean that the plaintiff was not the owner of the goods. Nor does the fact that the defendant-company used to pay the octroi duty lead to this conclusion, as that was a matter connected only with the settlement of the price.
6. From the manner in which the parties were dealing with each other, it appears that the plaintiff was appointed as the distributor of cigarettes but not on agency basis. His offer to act as an agent was act accepted by the defendant-company and he was asked to work on what was called 'dealer basis'; See Exs. D-1 and A-1. Plaintiff's letter, Ext. D-2, for elucidation of this offer was doubtless not replied to by the defendant-company but this does not mean that his request for appointment as an agent was agreed to. Thereafter the plaintiff placed an order, Ext. D-3, for the supply of goods, and thus the dealings began on payment of price.
This was the plaintiff's position so far as the supply of the goods was concerned, and in the absence of any liability to account for the sale proceeds, the transactions would be deemed to be made on the basis of contracts of sale within the meaning of Section 5, Sale of Goods Act, 1930. This conclusion is not affected by the fact that on one occasion, as a special case as Ext. P-21 shows, the defendant-company had taken back the soiled goods. Other matters concern the plaintiff's position as the distributor, which are extraneous to the determination of the question whether the property in the goods had passed to the plaintiff.
7. On the facts of the case, the view of theCourts below that the goods passed to the plaintiffand the price thereof was not liable to be refundedis, therefore, correct. The appeal accordingly failsand is dismissed with costs.