1. This is an appeal by the plaintiff in a suit for recovery of the price and hire of an elephant as also the cost of an iron chain. The case for the plaintiff is that the first defendant on behalf of the third defendant who is an officer of the second defendant (the Surma Valley Saw Mills Company, Limited), hired his elephant for a period of ten months from the 15th July, 1919, to the 14tb May, 1920. There was a written agreement between the plaintiff and the first defendant executed on the 8th July, 1919. The plaintiff alleges that although the period of the hire expired on the 14th May, 1920, the first defendant did not re-deliver the elephant to him, and, as he was subsequently apprised, the elephant died on the 22nd May, 1920. The plaintiff accordingly seeks to recover from the three defendants, jointly and severally, Rs. 5,000 as price of the elephant, Rs. 45 as price of the iron chain supplied be him when the elephant was delivered to the first defendant, and Rs 16-5-4 as hire for seven days from the 15th to the 22nd May, 1920. The Subordinate Judge has dismissed the suit. On the present appeal, the plaintiff has contended that he is entitled to a decree for the entire sum against all the three defendants. The first and third defendants have argued that neither of them is responsible to the plaintiff and that the liability, if any, rests upon the second defendant. The second defendant has formally entered appearance, but we have been informed by Mr. Amiya Chandra Sen, that he has received no instructions.
2. The facts material for the determination of the question in controversy lie in a narrow compass. On the 8th July, 1919, the first defendant executed an agreement in favour of the plaintiff in the following terms:
I, Chandra Kanta Kakati, son of late Sonaram Kakati, contractor by profession and Kayastha by caste, inhabitant of Baliaghata, Mauza Konarpur, Thana Sub-Division, District Sub-Registry Office, Sibsagar, do execute this ekrarnamah (deed of agreement) and declare that this day, I engage your elephant named Mohan, valued at Rs. 5,000 under registered contract for ten months, promising to pay hire at Rs. 70 per month for timber business at Naojan Camp of the Surma Valley Timber Company, that for feeding the said elephant, I will supply grain at the rate of ten seers per diem and I will also bear myself the costs of the same as also o ropes and other necessaries required for it, that I will also myself engage a mahut (driver) and a grass-cutter, etc., that will be required for the elephant, that from this day in case the elephant disappears, broken (in health and dies) or in any way injured (crippled or rendered defective), that is, made unfit for work (Haronbhagan lit, means loss or breakage - Hemkosh Dic, p. 966), I will pay Rs. 5,000 for its price, that on the expiry of the term I will bring back the elephant to your house and make the same over to your charge, that on account of hire of the said elephant, I am paying you to-day Rs. 200 in advance for which Rs. 20 will be deducted every month and the balance Rs, 50 shall be paid to you month by month. I shall take charge of the elephant on 10th July next and pay you hire from the 15th July. If I fail to pay hire and thereby commit breach of this contract and do not make over the elephant to your charge within the term, then you shall be competent to recover from me both the hire and the price of the elephant through Courts. You will return me this document when I bring another from the Company. To the above effect, I get this ekrarnamah executed of my own accord and in sound state of body and mind.
3. The elephant was delivered by the plaintiff to the first defendant on the 30th July, 1919. Subsequently a memorandum of agreement was prepared, dated the 15th July, 1919, to be executed between the Company and the plaintiff. This document, however, was never executed as the Company declined to accept some of the terms of the proposed contract. The elephant, which had been made over by the first defendant to the third defendant continued, however, to be employed to carry timber for the benefit of the Company. The animal was not re-delivered to the plaintiff on the expiration of the term of hire on the 14th May, 1920, and there is evidence to show that at was employed as usual on the 15th, 16th and 17th May, 1920; it was taken ill on the 18fch May, 1920 and died on the 22nd May, 1920. In these circumstances, the question arises, whether the plaintiff is entitled to the sum claimed from the defendants or from any of them. The plaintiff imputed negligence to the defendants in the use of the animal. But that allegation is not borne out by the evidence, and we are not prepared to decree the suit on the ground that the animal had been Under-fed and over-worked during the term of hire. The real question is, what are the rights of the plaintiff on proof of the fact that the animal taken on hire was not re-delivered to him on the expiration of the term on the 14th May, 1920. Section 160 of the Indian Contract Act 'provides that it is the duty of the bailee; to return or deliver according to the : bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished. Section 161 provides that if, to the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. The rule thus enunciated is in agreement with the principle formulated by Sir James Mansfield, C.J., Mills v. Graham (1804) 1 Bos. & P. (N.R.) 140. The substance of the matter is, in the phraseology familiar to students of archaic English law, that trespass lies where the bailee has destroyed the bailed property or lost it, while where the bailee has been guilty of a conversion of the bailed property either by a user of it in a different manner or for a different purpose from that agreed upon or by failure to re-deliver it or to deliver it over in accordance with the terms of the contract, the bailor may sue him in trover, Loeschman v. Machin (1818) 2 Srtark 311, Bryant v. Wardell (1848) 2 Exch. 479, Fenn v. Bittleston (1851) 7 Ex. 152 and Cooper v. Willomat (1845) 1 C.B. 672. We are not now concerned with the question, whether the bailee would be liable if his failure to re-deliver the goods were due to an act of State or an act of God or an act of the King's enemies; Williams v. Llyod W. Jones 179, Menetone v. Athawes (1764) 3 Burr. 1522, Taylor v. Caldwell (1863) 3 B.& S. 826, Cunningham v. Dunn (1878) 3 C.P.D. 443 and U.S. v. Thomas 15 Wallace 337. It is plain that in the case before us, the bailee was in default. In the Court below, the reason assigned for non-delivery was that the driver was taken ill on the 15th May, 1920. The Subordinate Judge also mentions that as there was a festival at the time, it was not easy to secure the services of a driver. There is no evidence on the record to show that there was in fact a festival or that by reason of the festival performance of the contract became impossible. We need not consequently examine how far impossibility which arises subsequently to the formation of a contract excuses performance; Grant Smith v. Seattle (1920) A.C. 162. In any event, this is not a case where the Court will imply a term whereby the contract was intended to be discharged through impossibility of performance; Taimplin Steamship Co. v. Anglo Mexican Petroleum Co. (1916) 2 A.C. 397, Redmond v. Dainton (1920) 2 K.B. 256, Matthey v. Curling (1922) 2 A.C. 180, Bank Line, Ld. v. Capel & Co. (1919) A.C. 435, Metropolitan Water Board v. Dick (1918) A.C. 119 and Horlock v. Beal (1916) 1 A.C. 486. It cannot be maintained that here performance became impossible through supervening circumstances within the time or in the manner contemplated by the parties. The defendant should have, in advance, completed arrangements to fulfil the agreement to re-deliver the elephant to the plaintiff on the expiry of the term of hire on the 14th May, 1920, but there is no evidence to show that he even made an attempt in that behalf. In our opinion, the case is covered by Section 161 of the Indian Contract Act and the plaintiff is entitled to recover the price of the elephant as also the hire from the 16th May to the 22ndl May, 1920, as he appears to have been paid the hire up to the 15th May, 1920.
4. We may add that the rule adopted in modern decisions is that proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon his defence; where chattels are delivered to a bailee in good condition and are lost or are not returned or are returned in a damaged state, the law presumes negligence to be the cause, and casts upon the bailee the burden to show that the loss is due to causes consistent with due care on his part; Mackenzie v. Cox (1840) 9 C. and P. 632, Reeve v. Palmer (1859) 5 C.B.N.S. 91, Philips v. New Claridge Hotel (1905) 22 T.L.R. 49, Bullen v. Swan E.E. Co. (1906) 23 T.L.R. 258 and Coldman v. Hill (1919) 1 K.B. 443. There remains the question of the liability of the defendants individually. It is beyond controversy that the first and third defendants are both liable. The contract was made between the first defendant and the plaintiff. The third defendant has admitted that he employed the first defendant to enter into the transaction on his behalf. The principle applicable in these circumstances is concisely formulated in bacon's Abridgement, tit. Bailment:
If a bailee deliver the goods to another, then he shall have an action of detinue against him, because he hath his possession and undertakes-for the custody, and the original bailor may have his action against either of them, because in him is the property which both are bound to answer to him.
5. The question of the liability of the second defendant stands on a different, footing. We have been pressed to hold : that as the animal was employed for the benefit of the Company defendant, that defendant is equally liable to the plaintiff. This contention is based on the fallacious, assumption that there was in fact and in law a contract between the plaintiff and the Company. We cannot overlook the circumstance that the company refused to execute the document to the knowledge of the plaintiff. The view cannot be maintained that the plaintiff looked forward to the Company for the price or the hire. We are not now concerned with the question of the liability, if any, of the second defendant to the third defendant; that is a question which can be decided only in a, suit, properly framed for the purpose if occasion should arise, between the two defendants. In the present litigation we feel bound to hold that the plaintiff is entitled to no relief as against the second defendant We may add that the allegation that an iron chain was delivered by the plaintiff to the first defendant has not been satisfactorily established and that, portion of the claim must be disallowed.
6. The result is that this appeal is allowed and the decree of the Subordinate Judge set aside, except as against the second defendant. There will be a decree for Rs. 5,016-5-4 in favour of the plaintiff against the first and third defendants, jointly. This sum will carry interest at 6 per cent, per annum from the date of suit to the date of realization. The plaintiff will have his costs in both the Courts, as against; the first and third defendants. The decree of dismissal of the claim as against the second defendant will stand confirmed, hut there will be no order for costs in his favour in this Court.