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Macgillivray Vs. the Jokai Assam Tea Company - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1877)ILR2Cal33
AppellantMacgillivray
RespondentThe Jokai Assam Tea Company
Cases ReferredHarmer v. Cornelius
Excerpt:
master and servant - suit for damages for wrongful dismissal--incompetence--rendering true and just accounts--warranty. - .....accountant in the wider sense of the expression, but we think that he undertook to keep and render such accounts as an inexperienced assistant in a tea garden might reasonably be asked to keep and render.3. we further think that the learned judge of the small cause court is wrong in holding that the last clause of the agreement means that the plaintiff shall in no case be dismissed, except for such wilful misconduct as is there described, or by reason of continued illness, or the dissolution of the defendant company, &c.; the agreement does not say that the defendant company shall not have the right to dismiss the plaintiff for any other cause than those specified. it merely reminds the plaintiff that he may be dismissed for the misconduct which is there specified; but it in no.....
Judgment:

Richard Garth, C.J.

1. We are of opinion that, with reference to the express terms of the written agreement entered into on the 12th of January 1876, the plaintiff distinctly undertook that he would, 'whenever required to do so, render just and true accounts, and give every other particular and information of all moneys, goods, and chattels, merchandise, and other products and things entrusted to him, or that might come into his possession, power, or custody, or under his control;' and we think that the defendant company ought to have been allowed to go into evidence to show that the plaintiff was not reasonably competent to the task which he undertook. In deciding thus, we act in accordance with the principle laid down in the case of Harmer v. Cornelius 5 C.B.N.S. 236 : S.C 28 L.J.C.P. 85. The passage as to the crossing--sweeper, quoted by the Judge of the Small Cause Court from the judgment of Willes J. has no application to the present case. The crossing-sweeper is stated to have been known to his employers as a person who had never done anything but sweep a crossing, and, under such circumstances, must necessarily have been known to be incompetent for the task which he undertook, and, moreover, he is not supposed to have made any express contract with his employers; whereas, in the present instance, there would appear to have been no knowledge by the defendants of the plaintiff's lack of competency, and there was an express undertaking on his part that he would render just and true accounts, &c.;

2. It has been contended by Mr. Shiell that this undertaking does not refer to any rendering of accounts in the sense of keeping what are technically called 'books;' or, in other words, that it was merely an undertaking that the plaintiff would act honestly by his employers; but we do not think that this is the true meaning of the agreement. We consider that the plaintiff undertook that, in the event of moneys, &c;, coming under his control, he would duly account for them, and furnish all such reasonable information and particulars as might be expected from a person in his position. We by no means construe it as an undertaking that the plaintiff was a skilled accountant in the wider sense of the expression, but we think that he undertook to keep and render such accounts as an inexperienced assistant in a tea garden might reasonably be asked to keep and render.

3. We further think that the learned Judge of the Small Cause Court is wrong in holding that the last clause of the agreement means that the plaintiff shall in no case be dismissed, except for such wilful misconduct as is there described, or by reason of continued illness, or the dissolution of the defendant company, &c.; The agreement does not say that the defendant company shall not have the right to dismiss the plaintiff for any other cause than those specified. It merely reminds the plaintiff that he may be dismissed for the misconduct which is there specified; but it in no way affects or alters the right which the defendant company had to dismiss the plaintiff for absolute inability to preform what he had undertaken.

4. The Judge of the Small Cause Court must, therefore, proceed to deal with the case on the merits. Each party will pay his own costs of this reference.


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