1. These two appeals arise out of a suit for account brought by the Dumraon Raj against Mr. George Fox, Assistant Manager in charge of the Balia Division, and one Sheo Sagar Roy, the collecting agent appointed by him, for an account. A sum of twenty-eight thousand and odd was claimed and the Subordinate Judge in the Court below has, after taking the accounts himself in the course of the hearing, found that the defendant, Sheo Sagar Roy, is liable for all monies collected and not accounted for to the amount of thirteen thousand eight hundred and seventy-six rupees fourteen annas and ten pies (Rs. 13,876-14-10) and post proportionately, and has found Mr. G. Fox only liable for acts of management in respect of one item of Rs. 4,000 which he considers was improperly advanced by Mr. G. Fox to a Counsel at Allahabad as retaining fee for conducting a certain litigation in the Balia District which the Counsel in question neglected to do.
2. In Appeal No. 98 we are concerned with this sum of Rs. 4,000 only. Mr. G. Fox has based his appeal on two grounds, first, that the suit is barred by limitation as against him, and, secondly, that on the findings of the lower Court he is not liable for the Rs. 4,000 in question. Mr. G. Fox tendered his resignation on the 24th April, 1902, and contends that it was accepted on that date. The plaintiff relying on a previous deposition of Mr. Fox which was apparently mistaken fixes the date of tender of resignation on the 27th April, 1902. The suit was brought on the 26th April, 1905. The question to be determined is whether the suit is barred by three years limitation under Article 89. On the facts disclosed on the. evidence it appears to us that if the three years' limitation applies and if there was no subsequent acknowledgment of liability the claim against Mr. Fox is clearly barred. It is proved beyond doubt that he tendered his resignation on the 24th April, 1902, to his brother, Mr. Charles Fox, who was the manager of the Raj at a place only two miles distant from Dumraon. The resignation was at once communicated to the Moharani,and in the list of documents filed by her in another suit the letter of resignation dated the 24th April, 1902, and her letter accepting it of the same date are specifically mentioned. Mr. Fox by a petition to the lower Court dated 15th June, 1905, called for these letters which were not produced. It must, therefore, be taken as an incontrovertiblef act that the resignation was tendered and accepted on the 24th April 1902. The contention that the Moharani being a purdanashin lady it must be established that she knew and understood the question of resignation cannot be considered as the Moharani is shown to have largely managed her own affairs and in the letter which she wrote to Mr. Fox on that date she evidently expressed some wish that he should resign. Further Mr. Fox wrote another letter beginning,--'at the Moharani's request, I resign.' But the respondent contends that six years' limitation applies, and, secondly, that the subsequent correspondence contains an acknowledgment of liability which brings the case within the ruling of W.R. Fink v. Buldeo Dass 3 C.W.K. 524; 26 C. 715.
3. As regards the first point we have been referred to the rulings in Harender Kishore Singh v. The Administrator-General of Bengal 12 C. 357 and Ranga Reddi v. Chinna Reddi 14 M. 465. Neither of these rulings seem to have any application to the present suit. In the case of Harender Kishore Singh v. The Administrator-General of Bengal 12 C. 357 the suit was to recover certain sums of money received by the agent in the course of his duties and misappropriated by him; and it was held that the agency being under a registered instrument, Article 116 would apply. The Madras case was on a registered partnership agreement and obviously would have no application. There was a case, e.g. Hurrinath Rai v. Krishna Kumar Bakshi 14 C. 147; 13 I.A. 123 where the Judicial Committee held in a case of similar nature to the present that Article 118 of Act IX of 1871, now Article 120 applied, because Article 89 of that Act did not contain the words it now does with regard to a suit for account, 'or where no such admission is made when the agency terminated.' This also has no bearing on the present case We find the ruling in Harender Kishore Singh v. The Administrator-General of Bengal 12 C. 357 which appears to stand alone, is clearly distinguishable from this case, inasmuch as here there is no allegation of misappropriation, no allegation of money actually passing through Mr. Fox's hands, and no breach of a registered contract, inasmuch as the contract gave Mr. Fox power to make advances to the Counsel and he is only sued in respect of want of due care and diligence in his agency which clearly comes under Articles 89 and 90.
4. As regards the question of acknowledgment giving a fresh period of limitation the case of W.R. Fink v. Baldeo Dass 3 C.W.K. 524; 26 C. 715 clearly does not apply to this case. In that case there was a letter written by the defendant to the plaintiff within three years of suit agreeing to pay as per account enclosed, and it was held that such a letter was sufficient acknowledgment to save the claim for rent being barred. As regards the sale of piece-goods in that case it was alleged that there was an open account between the parties and an implied promise to pay. Here the alleged admission consists merely of a note containing a list of servants in Mr. Fox's hand-writing. 'The above noted servants are urgently required by me to close the Raj accounts of the Balia Division.' There is no admission of an open account between Mr. Fox and the Raj. Indeed this rather shows that no such liability was admitted and the deposition of Chandi Proshad who took charge from Mr. Fox shows that the list was made by Mr. Fox long after Chandi Proshad had taken charge on the 30th April. The fact that Mr. Fox stayed at Ghazipur with a staff of officers to clear up accounts does not constitute him a continuing agent with an acknowledgment of an open account due from him.
5. As regards the second point in appeal, that on the findings of the lower Court Mr. Fox is not liable as regards the Rs. 4,000, we find that Mr. Fox was empowered by his letter of appointment to appoint, retain and engage Counsel, and that the arrangement of advancing Rs. 4,000 to Counsel to carry through a litigation worth Rs. 1,69,995 at a low daily fee of Rs. 50 a day for work in the mofussil was in itself a reasonable arrangement. Moreover, he had the sanction of the Manager, Mr. Charles Fox, who after the money had been paid by telegraphic money-order ordered that it should be transferred to the name of the Counsel concerned and thereafter dealt with 'as we may be advised.' If any one was liable for this sum the Manager, Mr. Charles Fox, was liable. Sections 211 and 212 of the Contract Act certainly do not apply to this transaction. There was no disregard of directions, neglect or want of skill, or misconduct, nor any want of reasonable diligence. It is argued that the money being advanced in June 1898 steps should have been taken before April 1902 to recover it. But there was no time limit placed on the agreement with Counsel and no suit would lie for its recovery. Besides the responsibility for dealing with the transfer to Counsel was taken over by Mr. Charles Fox. He said in writing that it would be thereafter dealt with as he may be advised. This was on the 27th October, 1900, apparently. Mr. C. Fox had previously on the 15th February, 1899, sanctioned this advance by recording 'this sum can remain against the Division and be accounted for in 1306 F.'
6. We, therefore, think that on the findings and on the evidence in the case Mr. G. Fox is in no way liable for the Rs. 4,000. On both these points, therefore, the appeal must succeed.
7. The judgment and decree of the Subordinate Judge against Mr. George Fox must be discharged and the suit against him dismissed with full costs in the lower Court and costs on Rs. 4,000 in this Court.
8. As regards Appeal No. 132 the piecemeal way in which the papers have been printed has put us to great difficulty and the learned Vakil for the appellant even now is unable to support his contention by reference to original documents which do not appear in the printed books. The defendant, Sheo Sagar Roy, has been held liable for Rs. 13,876 for monies that passed through his hands and were not accounted for. The same plea of limitation is taken as in the other case, inasmuch as Sheo Sagar is said to have resigned on the 23rd April 1902. An item of Rs. 5,828 and four other items the lower Court has rejected, as also the item of Rs. 4,604 for bill's presented twice and some petty items amounting to three or four hundred rupees. It is further urged that Sheo Sagar was Mr. George Fox's sub-agent and his liability is covered by Mr. G. Fox to the extent of the whole claim except the sum of Rs. 729 and odd.
9. The limitation question depends on the question of sub-agency, for the appellant says, not that his services were dispensed with by the Raj, but that Mr. Fox had taken away the general power-of-attorney to act for him prior to 24th April 1902. In arguing the appeal of Mr. Fox which we have disposed of the contention that Mr. G. Fox was himself the agent of Mr. Charles Fox was not even submitted to us. We agree with the Subordinate Judge that this is a case which exactly falls under Section 194 of the Contract Act. It is clearly shown on the evidence that no money passed through Mr. Fox's hands. All money on the loan cheque system passed through the defendant No. l's hands and that this defendant allowed separate account to be opened in his own name in the books of the Raj. Therefore, apart from the powers conferred on him by Mr. Fox he was entrusted with the special control of the money part of the business of the Raj in the Balia Division. Moreover, Mr. Fox denies that he ever dismissed the appellant, Sheo Sagar. We, therefore, find that the appellant was not the sub-agent of Mr. G. Fox and that the suit against him is not barred by limitation.
10. As regards the items of expenditure found against the defendant we are first asked to consider the petty item of Rs. 23-6 the bill for measurement expenses paid to Birjraj Ozha, a servant of the Raj which the auditor found had been actually spent on some distraint expenses. We think the Sub ordinate Judge was fully justified in disallowing the money drawn for one purpose and spent for another.
11. Next comes the sum of Rs. 5,828-10 as alleged to have been given out to subordinate Raj servants for so-called Sukarana mukhtear fees. The Subordinate Judge found that these are really illegal expenses which were submitted long after the expenditure and not sup ported by any voucher or any evidence of the nature of the secret service in which they were spent. It is admitted that the so-called Sukarana Balia mukhtear's fees are nothing more or less than illegal gratifications as the word 'Sakarana' implies. No doubt the Moharani allowed such presents to be given, but this would not take away from the defendant the liability of showing that they reached their destination. For all that appears on the record they might have gone into the defendant's own pocket. The only receipts which he produced were those of his own underlings who are said to have disbursed the money, and not the receipts of the actual payee.
12. The item 880 for Rs. 140 and odd billed for travelling expenses of Hurbans sahai and actually spent on alleged fees and expenses of cases are probably of the same nature as the above and have, we think been rightly disallowed. The item 899 for Rs. 8 the fee of Syedpur mukhtear is disallowed because no receipt is produced. This may be a hard measure, but it is strict law when an account is being taken such item cannot be passed without voucher or a clear account of the facts.
13. As regards item 825 for Rs. 2,861-14 2 due to Hira Lal mukhtear Rs. 1,231 is set off as obtained by Sheo Sagar on another account. It is urged that there is no evidence of this set off. It is true there no oral evidence, but the Subordinate Judge had the accounts before him and must have found the set off in them, but the appellant not having printed the account on which the Judge relies we cannot help him The appellant, Sheo Sagar, himself who is in Court is not prepared to swear that the set off would not be found in the accounts.
14. A strong objection is taken to the so called double bills of Rs. 4,604 and we had to adjourn the case for four days in order that the evidence on the record as regards this matter might be looked into. After some difficulty the duplicate bills were produced and shown to us, and we are satisfied that the Subordinate Judge is right, and what is more satisfactory is that the learned vakil for the appellant is also satisfied that the Subordinate Judge is right. There appears to be still some arithmetical error in the totals but this must be adjusted in the office so as to make the totals tally, the difference is only Rs. 15 and odd The last item for Rs. 779 is admitted.
15. The result is that the appeal of Sheo Sagar No. 132 must be dismissed with costs.
16. To mark our sense of the very unsatisfactory way in which the paper-books have been prepared in this case we allow no paper-book charges to either party.