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Miss Moselle Solomon Vs. MartIn and Co. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.331
AppellantMiss Moselle Solomon
RespondentMartIn and Co.
Cases ReferredSecretary of State v. G.T. Sarin
Excerpt:
contract act (ix of 1872), sections 70, 233, 43 - scope of act--rules of justice, equity and good conscience, when to be applied-section 70, applicability--company entering into contract with a, and supplying goods--goods received and utilized by b--suit and decree against a for price--decree unsatisfied--another suit against a and b, making b liable for price--section 70, if applies--liability of a to b, whether joint and several-suit against b, if barred--object of section 43-principal and agent--undisclosed principal--effect of section 233--doctrine of transit in rem judicatum, what is--interpretation of statutes--language clear--previous state of law or english law, should not be considered. - jack, j.1. this appeal has arisen out of a suit brought by messrs. martin & co. for the price of sleel work supplied by them, to the order of mr. moses elias solomon at 43, free school street.2. the plaintiff company in the first place sued mr. solomon personally for the price of the goods and obtained a decree against him which they say they have been unable to execute. subsequently they discovered that mr. solomon was trustee for the owners of a half share in the premises and that his daughter miss moselle solomon was the owner of the other half share. the company, therefore, brought this suit against, mr. solomon as trustee for the half share and against miss moselle solomon as owner of the other half share on the ground that the order was really placed by mr. solomon as trustee for.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit brought by Messrs. Martin & Co. for the price of sleel work Supplied by them, to the order of Mr. Moses Elias Solomon at 43, Free School Street.

2. The plaintiff Company in the first place sued Mr. Solomon personally for the price of the goods and obtained a decree against him which they say they have been unable to execute. Subsequently they discovered that Mr. Solomon was trustee for the owners of a half share in the premises and that his daughter Miss Moselle Solomon was the owner of the other half share. The Company, therefore, brought this suit against, Mr. Solomon as trustee for the half share and against Miss Moselle Solomon as owner of the other half share on the ground that the order was really placed by Mr. Solomon as trustee for the half share and as agent for Miss Moselle Solomon as regards the other half share of the premises.

3. Admittedly the goods were supplied to the order of Mr. Solomon and the price is due to the Company, but the learned Judge held that in so far as Mr. Solomon was acting for an undisclosed principal, the unsatisfied decree against him was a bar to this suit. He held, however, that the Company was entitled to recover half the cost of the work from Miss Moselle Solomon under Section 70 of the Contract Act inasmuch as the circumstances show that she, as owner of the half share in the premises, took delivery of the steel work and enjoyed the benefit thereof. Against this decree Miss Solomon has appealed on the ground amongst others that Section 70 of the Act, did not apply as the goods were supplied under an express contract. There is a cross-objection by the Company on the grounds: (1) that the learned Judge was in error in holding that the goods were not supplied to the owners as such, (2) that he was wrong in holding that the unsatisfied decree against the 1st defendant, Mr. Moses, was a bar to the suit against the defendants, (3) that he was wrong in holding that a decree could not, in the circumstances, be passed against the 1st defendant as executor and trustee, (4) that he was in error in passing a decree for half the amount of the claim against the 2nd defendant Miss Moses and should have passed a decree for the whole amount against her. Ground No. 3 of the cross-objection cannot be considered inasmuch as, defendant No. 1 has not been made a party to the appeal and has got no notice of it.

4. As regards the appeal it is clear that the 2nd defendant cannot be held liable under Section 70 of the Contract Act inasmuch as this is a case of contract and where there is an express contract Section 70 has no application as shown by the heading of Chap. V of the Act in which the section finds a place. It is headed 'of certain relations resembling those created by contract' evidently excluding relations actually created by contract as in this case. The Contract Act is, however, not exhaustive.

5. On the evidence it is clear that Miss Moselle Solomon through her agent took delivery of the goods and enjoyed the benefit of them and apart from her liability under the contract made by her agent, she is clearly liable on grounds of equity and good conscience for the price of these goods to the plaintiff who supplied them. It remains to consider the cross-objection of the Company.

6. The evidence makes it clear that when the goods were ordered and supplied the Company was unaware of the position of Mr. Solomon with regard to the premises: they presumed him to be the owner but this appears to have been merely surmise. He must be taken in the circumstances to have ordered them in the position which he actually occupied in relation to the premises. We find that he had charge of the premises and had arranged to lease them to tenants and the work was carried out in preparation for their entry in the premises. The tenants have since been paying the rent to him and his conduct of the business has apparently been assented to by his daughter the defendant No. 2 the owner of the other half share. She admits that certain steel work was used in the construction of the premises. She does not deny that it was supplied by the company but does not admit that it was supplied under the alleged agreement with defendant No. 1 and though she admits that the repairs, for which the steel work was used, were executed by defendant No. 1 she denies that in doing so he was acting on her behalf. In the circumstances of the case, however, the learned Judge appears to have rightly held that the defendant No. 1 was acting on her behalf as well as in the capacity of trustee for the owner of the other halfshare. The learned Judge has, however, held that as she was an undisclosed principal, the unsatisfied decree against him as her agent is a bar to this suit. He comes to this conclusion because he considers himself bound by a previous decision of this Court in the case of Hemendro Coomar Mullick v. Rajendralall Moonshee 3 C. 353. That was a suit on a joint promissory note in which the learned Judge held that, inspite of the wording of Section 43 of the Contract A ct, the liability of joint promises was not joint and several and that, therefore, a decree obtained against one of several joint makers of a promissory note is a bar to a subsequent suit against others. The learned Judge notes that the same rule was applied by the Judicial Committee hi the case of an undisclosed principal in an appeal from Singapore, R.M.K.R.M. Somasundaram Chetty v. M.R.M. Subramanian Chetty (1926) A.C. 761 : 99 Ind. Cas. 742 : (1926) M.W.N. 832 : A.I.R. 1923 P.C. 136 : 4 C.W.N. 1 : 25 L.W. 163 (P.C.), but as that case was not based on the Indian Contract Act, it is not clear that it is an authority on which we can base a decision in India. The present case comes under Section 233 of the Contract Act which states that incases where an agent is personally liable, a person dealing with him may hold either him or his principal or both of them liable. Section 43 of the Act states that where two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel only one or more of such joint promisors to perform the whole of the promise. Thus as regards several liability the effect would appear to be the same in each case, and the learned Judge, therefore, thought he was bound by the decision in Hemendra's case 3 C. 353. In that case the learned Judges relied on the decision in King v. Hoare (1844) 13 M. & W. 494 : 2 D. & L. 382 : 14 L.J. Ex. 29 : 8 Jur. 1127 : 153 E.R. 206 : 67 B.R. 694, which laid down that a decree obtained against one of several joint makers of a promissory note is a bar to a subsequent suit against others. It was however, pointed out by Strachey, C.J. in the case of Muhammad Askari v. Radha Ram Singh 22 A. 307 : A.W.N. 1900, 73, that Garth, C.J. in that case had correctly stated the effect of Section 43 to be that it:

allows the promisee to sue one or more of several joint promisors in one suit and so practically prohibits a defendant in such a suit from objecting that his co-contractors ought to have been sued with him.

and adds:

if the learned Chief Justice had had before him the later judgments in Kendall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97 and In re Hodgson (1885) 31 Ch. D. 177, he would, I think, have recognised that the effect of such a prohibition is to make the doctrine of King v. Hoare (1844) 13 M. & W. 494 : 2 D. & L. 382 : 14 L.J. Ex. 29 : 8 Jur. 1127 : 153 E.R. 206 : 67 B.R. 694, inapplicable.

7. As explained in these judgments the theory that there is in the case of a joint contract a single cause of action which can only be sued on once, depends on the right of joint debtors in England to have all their co-contractors joined as defendants in a suit on the contract. In India such a right has been excluded by the provisions of Section 43 of the Contract Act as regards joint debtors and by Section 233 of the Act as regards principal and agent, and, therefore, there is no question of a single cause of action. The liability in the terms of both Section 43 and Section 233, as has been held in the case of Ammakannu Ayi v. Palaniayya's Miliar Son 47 M. 850 : 83 Ind. Cas. 324 : 47 M.L.J. 85 : 20 L.W. 207 : (1924) M.W.N. 623 : A.I.R. 1924 Mad. 716, is clearly joint and several, and the fact that a decree has been passed against the agent is no bar to a subsequent suit against the principal.

8. In support of the view that the previous decree is no bar, there is, moreover, authority in the case of Bhagwali Prasad v. Radha Kishen Sewak Panda 15 A. 304 : 20 I.A. 108 : 6 Bar. P.C.J. 7 : 17 Ind. Jur. 320 (P.C.), in which their Lordships of the Judicial Committee reversed the decision arrived at in the case of Bir Bahadur-Sewak Pande v. Sarju Prasad 9 A. 681 : A.W.N. 1887, 229, in which it was held that the plaintiff having elected to hold the agent responsible upon a contract and having obtained judgment and decree against him could not afterwards maintain a suit against the same principal in respect of the same subject-matter. Their Lordships held that the plaintiff was, inspite of the previous decree, in equity entitled to a charge against the real purchaser upon the property purchased with the money lent. The cases of Nobin Chandra v. Magantare 10 C. 921 and Raman v. Sridharam 16 M. 449 may also be referred to in this connection.

9. In these circumstances I think I am entitled respectfully to dissent from the decision of Mr. Justice Macleod in Shivlal Motilal v. Birdichand Jivraj 19 Bom. L.R. 370 : 40 Ind. Cas. 194. Following the decision in King v. Hoare (1844) 13 M. & W. 494 : 2 D. & L. 382 : 14 L.J. Ex. 29 : 8 Jur. 1127 : 153 E.R. 206 : 67 B.R. 694 and Kendall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97, and the decisions of the High Courts in India founded thereon the learned Judge holds that Section 233 of the Contract Act must be interpreted to involve a principle of election. I prefer to adhere to the plain terms of the section which states that a person contracting with an agent may hold both him and his principal liable and (2) according to the illustration be may sue either of them or both. Where the language of the statute is clear, as in this case, we have simply to take it as it stands, uninfluenced by considerations derived from the state of the law previous to the enactment of the statute. Moreover, as laid down by their Lordships of the Privy Council in the case of Ramanandji Koer v. Kalwati Koer 7 Pat. 221 : 55 I.A. 18 : 107 Ind. Cas. 14 : A.I.R. 1928 P.C. 2 : 5 C.W.N. 96 : I.L.T. T 40 Pat. 19 : 30 Bom. L.R. 227 : 47 C.L.J. 171 : 54 M.L.J. 281 : 9 P.L.T. 97 : 32 C.W.N. 402 : 26 A.L.J. 385 : (1928) M.W.N. 282 : 27 P.W. 782 (P.C.), in interpreting the statute the Court should examine the language of the Indian Statute uninfluenced by considerations derived from the English Law upon which it may be founded.

10. Under the terms of Section 233 of the Contract Act read with Section 230 of the Act both the agent and the undisclosed principal are liable. The causes of action against them are clearly different and the fact that the plaintiff Company has already got a decree against the agent Mr. Solomon is no bar to its getting a subsequent decree against the principal Miss Moselle Solomon. The Company can of course no more execute the full decree against each of them than it could if it has got a decree against both of them jointly in the same suit.

11. It remains to consider whether Miss Moselle Solomon should be made liable as maintained in the cross-objection, for the whole amount of the claim. It cannot be said that defendant No. 1 was her agent only in respect of half the materials supplied, clearly the steel work could, not be split up into halves, and I am of opinion that she is liable for the whole amount of the claim being jointly and severally liable with defendant No. 1 in his capacity of trustee and executor for the owners of the other half share of the premises.

12. The plaintiff Company is, therefore, entitled to a decree for the whole amount of the claim, the value of the steel work not being disputed, nor the fact that it was ordered by defendant No. 1.

13. It will be open to the appellant to recover a half share of the claim by contribution.

Lort-Williams, J.

14. This appeal arises out of a suit brought by the plaintiffs for the price of steel work supplied to the order of the first, defendant and delivered at certain premises in Free School Street, Calcutta.

15. The plaintiffs first sued the 1st defendant personally, and obtained a decree, which they have been unable to execute owing to his absence out of the jurisdiction.

16. Subsequently, they ascertained that at all material times he was not the owner of the premises as they had thought, but was trustee for the owners of one half share of the premises, and that his daughter, the second defendant, was the owner of the other half share. Therefore, they brought this suit, alleging that the first defendant ordered the goods, not in his personal capacity, but as trustee for the owners of one half share and agent for the owner of the other half share. The learned Judge found that the goods were supplied as alleged, and were used in the re-construction of the premises, and that the owners had bad the benefit of them. He held that as the first defendant, so far as he was acting as trustee, was acting as a principal, and, so far as he was acting otherwise, was acting as agent for an undisclosed principal, the unsatisfied decree against him was a bar to the suit so far as it was founded upon contract or upon the liabilities of principal and agent. But he held that the second defendant was liable under Section 70 of the Indian Contract Act for half the price of the goods supplied. Against this decision, the second defendant has appealed, mainly upon the ground that Section 70 does not apply, because the goods were supplied under an express contract. The plaintiffs have filed cross-objections, and seek to make the second defendant liable for the whole of the claim, but they have not served the cross-objections upon the first defendant.

17. There was ample evidence to support the findings of fact, and I see no reason to disturb them. Upon the point whether the unsatisfied decree is a bar to the suit, it has been argued that the effect of Sections 42 to 45 of the Indian Contract Act is to alter the principle of English Law, by making the liability in respect of a joint contract, a joint and several instead of a joint liability. I am unable to accept this contention. The effect of Section 43 was considered by Sir Richard Garth in the case of Hemendro Coomar Mullick v. Rajendralall Moonshee 3 C. 353, wherein he decided that the object of the section was to allow a promisee to sue one or more of several joint promisors in one suit, without the necessity of joining all the promisors as defendants, The effect of the section was not to change a joint into a several liability, nor to enable a promisee to sue one or more of his joint promisors severally in two or more suits.

18. With this decisional respectfully agree. Under the Indian Contract Act, as in English Law, the liability under a joint contract is joint, and not joint and several, and gives rise to only one cause of action. As soon as judgment is given in respect of this cause of action, it becomes merged in the decree, and no other suit can be brought upon it.

19. A contrary view was taken by Sir Arthur Strachey in the case of Muhammad Askari v. Radha Ram Singh 22 A.307 : A.W.N. 1900, 73. In a very able and ingenious, but, in my opinion and with all respect, a fallacious judgment, he decided that the effect of Section 43, being to exclude the right of a joint contractor to be sued along with his co-contractors, the rule laid down in the cases of King v. Hoare (1844) 13 M. & W. 494 : 2 D. & L. 382 : 14 L.J. Ex. 29 : 8 Jur. 1127 : 153 E.R. 206 : 67 B.R. 694 and Kendall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97, is no longer applicable to cases arising in India, at all events in the mufassil, and a judgment obtained against some only of the joint contractors and remaining unsatisfied is no bar to a second suit on the contract against the other joint contractors.

20. The fallacy of the reasoning in this judgment was exposed by Mr. Justice Macleod in the case of Shivlal Motilal v. Birdichand Jivraj 19 Bom. L.R. 370 : 40 Ind. Cas. 194. And, in my opinion, there is no difference on this point between the law in force in the Presidency Towns and that in the mufassil. The rule is not one of procedure only, and the Indian Contract Act does not profess to be a complete Code dealing with the law relating to contracts, and in the absence of specific law and usage, rules of justice, equity and good conscience must be applied, which has been interpreted to mean rules of English Law.

21. Further, it has been argued that whether the effect of Section 43 is or is not as, I have endeavoured to state it, the effect of Section 233 is to alter the English rule, and to make the liability of principal and agent joint and several, in cases such, as the present where the agent is personally liable under Section 230, because he did not disclose the name of his principal. This contention also I cannot accept. In my opinion the only effect of the section is to give a person dealing with such an agent three alternatives. He may hold either the agent liable or the principal, both of them. He may sue either the agent, or the principal, or both of them together. But whichever alternative he chooses, once the suit has been decreed, his remedies are exhausted. There is only one cause of action, not several, and the liability of principal and agent is not several, nor joint and several. The contrary view expressed in the case of Ammakannu Ayi v. Palaniayya's Minor Son 47 M. 850 : 83 Ind. Cas. 324 : 47 M.L.J. 85 : 20 L.W. 207 : (1924) M.W.N. 623 : A.I.R. 1924 Mad. 716, is, in my opinion, incorrect.

22. The law on this point is correctly stated in the judgment of Mr. Justice Mcleod to which I have already referred. The learned Judge held that though the plaintiff could have sued both the defendants (the principal and the agent) together in one suit, yet if he sued one of them to judgment, it was not competent to him to sue the other in a second suit. The reasons for this rule were stated by Lord Atkinson in the case of R.M.K.R.M. Somasundaram Chetty v. M.R.M. Subramanian Chetty (1926) A.C. 761 : 99 Ind. Cas. 742 : (1926) M.W.N. 832 : A.I.R. 1923 P.C. 136 : 4 C.W.N. 1 : 25 L.W. 163 (P.C.), as follows:

It would be clearly contrary to every principle if a creditor who has seen and known and dealt with and given credit to the agent should be driven to sue the principal if he does not wish to sue him; on the other hand, it would be equally contrary to justice that the creditor, on discovering the principal who really has had the benefit of the loan, should be prevented from suing him if he wishes to do so. But it would be no less contrary to justice that the creditor should be able to sue, first, the agent and then the principal, when there was no contract and no intention of any of the parties that he should do so. Again, if an action were brought and judgment recovered against the agent, then the agent would have a right of action for indemnity against his principal, while if the principal was liable also to be sued he would be vexed with a double action. Further, if actions could be brought and judgments recovered against the agent and afterwards the principal, there would be two judgments in existence for the same debt or cause of action. They might not necessarily be for the same amounts, and there might be recoveries had or liens and charges created by means of both, and there would be no record on the face of the judgments, or any means short of a fresh proceeding, of snowing that the two judgments were really for the same debt or cause of action, and that satisfaction of one was or would be satisfaction of both.

23. The reasons for the rule, according to Lord Atkinson, therefore, are not merely technical, but a somewhat different view of the rule was taken by the learned Judges in Wegg Prosser v. Evans (1895) 1 Q.B. 108, wherein it was stated that the rule was very technical and rested upon the ground that the cause of action was exhausted by or merged in the decree. This decision apparently was not cited to their Lordships of the Judicial Committee, and this View appears to be still good law in England. A similar view of the rule was taken by this Court in Dhunput Singh v. Sham Sundar Mitter 5 C. 291

24. It is not necessary in this case to decide whether in India the liability of principal and agent is joint as stated by Mr. Justice Macleod, or alternative as stated by Sir Murray Coutts Trotter in case of Kuttikrishna Nair v. Appa Nair 49 M. 900 : 97 Ind. Cas. 475 : 51 M.L.J. 311 : (1926) M.W.N. 729 : 24 L.W. 451 : A.I.R. 1926 Mad. 1213, that is to say, whether in a suit against both principal and agent the plaintiff may have judgment against both of them jointly. In England the liability is alternative: Morel Bros. & Co., Ltd. v. Earl of Westmoreland (1904) A.C. 11 : 73 L.J.K.B. 93 : 89 L.T. 702 : 52 W.R. 353 : 20 T.L.R. 38, Lord Halsbury at p. 14. Page of (1904) A.C.--[Ed.]

25. There remains to be decided the question whether the second defendant is liable under Section 70 of the Indian Contract Act and to what extent.

26. The remedy provided by this section is not dependant upon the law relating to the liabilities of principal and agent. It is an independent remedy, which is based upon a different cause of action, namely, upon whether a person has lawfully done anything for another, or has delivered anything to him, not intending to do so gratuitously, and such other person has enjoyed the benefit thereof. If so, he must either make compensation in respect of, or restore the thing so done or delivered.

27. The rule to which I have referred already is inapplicable where there is more than one cause of action arising out of the same transaction: Wegg Prosser v. Evans (1895) 1 Q.B. 108. Nor is it applicable where the cause of action is joint and several: Isaacs & Sons Ltd. v. Salbstein (1916) 2 K.B. 139 : 85 L.J.K.B. 1433 : 114 L.T. 924 : 60 S.J. 444 : 32 T.L.R. 370, In that case, it was decided that where there is no joint contract or relation of principal and agent, an unsatisfied judgment against one person for the price of goods sold is not a bar to a subsequent action, against another person for the price of the same goods. Mr. Justice Lush, at p. 142 Pages of (1916) 2 K.B.--[Ed.] of the report said as follows:

The plaintiffs brought this action against the two defendants for the price of the goods sold....

The plaintiffs had previously brought an action against an alleged firm called Salbstein Brothers and recovered judgment, no doubt in respect of these very goods. That judgment remained wholly unsatisfied. The contention for the defendants before the Deputy Judge and before us was, that the mere fact that these plaintiffs had recovered a judgment against some person other than these defendants, of itself barred and extinguished this cause of action; that the doctrine transit in rem judicatum applies not only as between the plaintiff and the defendant or any persons who were joint contractors with the defendant in the contract sued on but applies also although the person ultimately sued had no relation to the person against whom the prior judgment was recovered and was not a party with him to any joint contract and was not his agent or principal. That is a very wide and important proposition, but in my opinion it is not well founded. The doctrine of transit in rem judicatum is, that if judgment has been recovered upon a cause of action, then any right in respect of the same cause of action merges in the judgment already recovered: but it must be the same cause of action. It does not mean that if a judgment is recovered in respect of the same goods against somebody the cause of action against some other persons really liable is gone. The principle of the decisions in King v. Hoare (1844) 13 M. & W. 494 : 2 D. & L. 382 : 14 L.J. Ex. 29 : 8 Jur. 1127 : 153 E.R. 206 : 67 B.R. 694 and Kendall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97, that if a party to a contract sues one. individual upon a contract and recovers judgment against him, then if it turns out that that contract was a joint contract to which other persons than the defendant, in the first action were parties, the judgment recovered against one party bars the right of action on that same contract against the other parties to it. The contract being one contract made with several persons, judgment against one of them operates to extinguish the cause of action on that contract against all the parties to it because it was one contract and one contract only.

28. Lord Justice Swinfen Eady at p. 150 (1916) 2 K.B.--[Ed.] of the report said as follows:

Again if it were shown that the plaintiffs having a right to elect which of two parties to sue (i.e., principal or agent) has sued one to judgment, an action against the other party would be there by barred.

29. The learned Judge then quotes from the judgment of Baron Parke in King v. Hoare (1844) 13 M. & W. 494 : 2 D. & L. 382 : 14 L.J. Ex. 29 : 8 Jur. 1127 : 153 E.R. 206 : 67 B.R. 694, and goes on to say

that case was approved and, adopted by the House of Lords in Kendall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97. It was there pointed out that the result did not depend upon any document of election, which would imply that the party electing was aware when he made his election of two, courses being open to him. The principle on which the rule is founded is the right of persons jointly liable to pay a debt to insist on being sued together.... Where, however, the obligation binds two or more persons severally, a judgment against one is no bar to an action against another.

30. He then refers to the judgment of Baron Baylay in Lechmere v. Fletcher (1833) 1 Cr. & M. 623 at p. 635 : 149 E.R. 549 at p. 554 : 3 Tyr. 450 : 2 L.J. (N.S.) EX. 219 : 38 R.R. 688 and concludes as follows: 'If, therefore, where the obligations are several, a judgment in an action against one person is no bar to an action against another, I see no ground upon which it can be maintained that an action brought in error against a fictitious person or against a person not under any liability is a bar to an action against the person alleged to be really liable. The cause of action is not the same.

31. In the present case, undoubtedly the cause of action on the contract was joint. But the cause of action under Section 70 was not joint, for under that section no cause of action arose against the agent. The terms of the sections are very wide and there is nothing to indicate that this is not intended as an additional remedy, or that it is in applicable where the plaintiff has another right of action, arising out of some other cause, such as one founded upon contract, expressor implied, still less where for some reason such contractual right cannot be enforced. On this point I regret to find that seem to be in disagreement with the observations of Sri Ashutosh Mookerjee in the case of Sibkisor Ghose v. Manik Chandra Nath 21 C.L.J. 618 at p. 620 : 23 Ind Cas. 453. But in that case there was nothing to show that the plaintiff was unable to enforce the contractual right which he had by reason of an implied promise. The view which I have expressed seems to be confirmed by the decision in the case of Secretary of State v. G.T. Sarin & Co. 11 Lah. 375 : 120 Ind. Cas. 615 : Ind. Rul. (1930) Lah. 119 : A.I.R. 1930 Lah. 364 though that was a case where there was an invalid contract.

32. The learned Judge was justified on the evidence in finding that the goods were delivered to the second defendant, through her agent the first defendant, and that she has enjoyed the benefit of them. Therefore, he was right in holding that she was liable under Section 70, but, in my opinion, he ought to have decided that she was liable for the whole and not for half the price of the goods. It is not possible to say that only half the goods were delivered to her, or that she has enjoyed the benefit of only half. As the owner of an undivided half share in the properly. She must be held to have taken delivery of all the goods and enjoyed them. She cannot now restore them, because she has used them in there-construction and alteration of the building, and she must make compensation for them-Her remedy lies in her right to contribution from the owner of the other half share.

33. The result is that the appeal is dismissed, and the fourth cross-objection is allowed with costs.

34. There will be a decree against the second defendant for the full price of the goods supplied, namely, Rs. 4,837-12-9 with costs. If and when this decree is satisfied, the first defendant will be entitled to enter up satisfaction pro tanto of the decree in the former suit.


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