1. This is a suit brought by Messrs. Jessop & Co. Ltd., against the District Board of Monghyr and Ramadin Chaudhuri, a contractor, carrying on business at Monghyr, to recover the sum of Rs. 2,233 4-0 as the price of goods sold and delivered.
2. The defendant, Ramadin Chaudhuri, is dead. His heirs have not been made parties to the proceedings, and relief is only claimed against the District Board of Monghyr.
3. The goods in respect of which the claim is made are 100 barrels of cement, referred to in para. 1 of the plaint, and the iron beams, referred to in para. 2 of. the plaint. The iron referred to in para. 1 of the plaint was not supplied. Curiously enough, the bill submitted for payment for the goods supplied did not include this iron, and the amount claimed in the suit, which I am informed has been taken from the bill, does not require alteration by reason of the abandonment of that part of the claim.
4. The District Board of Monghyr deny liability. They deny that the goods were ever supplied to them or at their instance. In reply to this defence, the contention put forward, by an amendment of the plaint, effected when Ramadin Chaudhuri was added as a defendant and after the District Board had filed their written statement, is to the effect that the District Board, by its conduct, caused the plaintiff to believe and act upon the belief that Ramadin Chaudhuri had the express authority of the District Board.
5. The circumstances of the case, which may be gathered from the correspondence, are that, in or about the year 1921, it was under contemplation to construct, in the District of Monghyr, a new building for the Diamond Jubilee College. The District Engineer employed by the Monghyr District Board appears to have given a certain amount of time and attention to the preparation of plans of buildings, and at one time there was a question whether or not the Monghyr District Board should not be responsible for the erection of the building. The land and money for the construction of this building were found by the Government of Bihar and Orissa, and, according to a witness who has been called for the District Board, the Monghyr District Board made no contribution. On the other hand, it would appear that, at one time they received some Rs. 315 for stationery and for materials supplied, for, I conceive, the purposes of plans prepared by the District Engineer.
6. When exactly the construction of the Diamond Jubilee College began does not appear; but the Monghyr District Board appears at first to have lent the services of its District Engineer, and there was some correspondence as to whether or not the services of its officers should be lent free of charge. Mr. Atherton, who, i am informed, is dead, was the District Engineer, and it is in evidence that he received 10 per cent. for his services. Towards the beginning of 192i, he was still in the employment of the District Board, but I infer from the letters that ha then left the District Board and devoted his whole time to the work of the construction of the Diamond Jubilee College, which was being constructed under the orders of the governing body of the College by one Ramadin Chaudhuri, an independent contractor, according to the evidence of the Chief Clerk of the District Board.
7. It does not appear that, except for what I have stated, the Monghyr District Board had anything whatever to do with the construction of the Diamond Jubilee College. An attempt has been made to show that they were responsible for its construction, but there is nothing which will bear that out, and quite apart From the very definite evidence of Akhileshwar Prasad, there is ample material from which one might infer that the persons responsible for it were the governing body of the College. It is, however not denied that the material in question wore used in constructing the building.
8. The whole difficulty is due to the way in which the orders for the goods, in respect of which the suit has been brought were given. No doubt, the contractor required materials, and on 21st August 923, a letter was written by Mr. Atherton to Messrs. Jessop & Co., asking their prices for articles specified on sheets attached to his letter. That letter was sent from Mr. Atherton as 'M.I.M.C.E, Engineer and Architect, Monghyr,' and was signed by him as ' Engineer and Architect, Monghyr,' and bears no reference whatever to the District Board, on whose official paper the letter was not, as I understand, written. Whether or not a reply was sent to that latter and the information given does not appear. 'But on 20th November 1923, Mr. Atherton wrote another letter in which he asked Messrs. Jessop & Co. to expedite the supply of some cement, which
contractor Ramadin Chaudhuri required for use in constructing the main building of the hostel of the new D. J. College at Monghyr.
9. I pause here to say that so far from there being anything in this letter which would show that it was the District Board to whom Messrs. Jessop & Co. should look for the price of the goods referred to in this letter the tenor of the letter is that Mr. Atherton is testifying to the repute of Ramadin Chaudhuri, while, at the same time, drawing their attention to the fact that Ramadin Chaudhuri is a contractor and that he is constructing the main building of the Diamond Jubilee College. Then Jessop & Co., recognizing that the contractor is one person and Mr. Atherton is another, on 21st November, reply and say that they have received no such order from contractor Ramadin Chaudhuri and enquire if they may book the order as from Mr. Atherton. This, having regard to the case now made, is indicative of what must have been present in the minds of Jessop & Co. when they supplied the goods in suit.
10. I find no reply by Mr. Atherton, but in regard to the order for the goods in suit, the evidence is that Ramadin Chaudhuri came to Calcutta and orally placed the order for the cement on 21st December 1923, and for the joists on 8th January 1924. He signed the two orders, which have been tendered in evidence (Exs. E and F) and appears to have instructed Jessop & Co. to send the goods to Mr. Atherton, whose name was inserted in the orders with the words 'District Engineer, Monghyr.' Jessop & Co., thereupon, with reference to each order, wrote to Mr. Atherton as District Engineer for confirmation, but they received none. They nevertheless forwarded the goods, of which delivery was taken, and they were used in the construction of the building.
11. I have row arrived at the point at which the goods had been ordered and delivered and will therefore consider whether or not the plaintiffs can hold the defendants liable.
12. Much has been said about Atherton being himself the District Board, in that he was the servant of the District Board. I cannot find that he made any contract with Jessop & Co. It is impossible to say that he was contacting on behalf of the District Board and that the latter, 'in consequence are directly liable. The contract was actually made by Ramadin Chaudhuri. The goods, it is true, were consigned to Atherton, but nowhere is it suggested that Ramadin Chaudhuri ever had any connexion with the Monghyr District Board, or that ha over had authority to instruct Jessop & Co. to consign the goods to the District Engineer. The order was given by Ramadin Chaudhri, no confirmation was received from the District Engineer, and without such confirmation Jessop & Co. had no reason whatever for supposing that the goods were being supplied to the District Board itself, or that Ramadin Chaudhuri was authorized by the District Board to give the order.
13. As regards holding out, the case made in the pleadings is a holding out of Ramadin, Chaudhuri, though a case of Atherton being held out has been argued.
14. In this connexion I have been referred to three earlier orders dated 25th September and 9th and 11th October 1923, respectively, given by Mr. Atberton on behalf of the District Board under which the goods were supplied for the District Board. Now those are on entirely different forms. Mr. Atherton signed his name not as 'Engineer and Architect,' but as 'Engineer.' He wrote on official letter paper, and in each instance there is a reference to the District Board, if it is only in the form of a request that the goods should be booked to the District Board's overseer. The reference to payment is also significant. There is no mention whatsoever of the contractor Ramadin Chaudhuri, and, except in connexion with the Diamond Jubilee College, the name of Ramadin Chaudhuri does not appear in the evidence.
15. It is impossible to hold that the goods were ever ordered by or on behalf of the Monghyr District Board, or that the Monghyr District Board, at any time, by its conduct, caused the plaintiff company to believe and act upon the belief that Ramadin Chaudhuri had express authority to order the goods.
16. Then it has been contended that the defendants are estopped from denying liability. It appears to me that the answer to that is contained in the letter of 4th February 1924. When as I understand, Atherton had ceased to be the District Engineer and had assumed the post of Engineer in charge of the work on the Diamond Jubilee College, a letter was written by the officiating District Engineer to Messrs. Jessop & Co. informing them that Mr Atherton had ceased to be the District Engineer and that no bill for supplying materials on his order, either verbal or written, would be paid by the Board. It would appear, from the correspondence that the letter did not reach Messrs. Jessop & Co. at once, but, on the other hand, it is not denied that it reached them eventually, though when it does not appear. This letter, to my mind, supplies a complete answer to any suggestion that the District Board is bound by its subsequent conduct. Messrs. Jessop & Co. thereupon proceeded to address the governing body or the Principal of the College, but unfortunately they have been unable to obtain any payment for the goods which undoubtedly were supplied and used in the construction of the building, and somebody ought to pay for them. The District Board disclaim liability, the governing body of the Diamond Jubilee College disclaim liability. It may be that proper enquiries of the Government of Bihar and Orissa would have elicited useful information, but it is not my province to advise or to indulge in speculation as to the possible result of such enquiries.
17. For the reasons stated, the suit must be dismissed with costs.