Lord Atkin:-

Their Lordships do not think it necessary to hear Counsel for the respondent. This is an appeal from a judgment of the Court of Appeal for Eastern Africa varying a judgment given in the Supreme Court of Kenya by - the then Sir Jacob Barth, C. J. They varied the judgment by increasing the amount due. The claim of the plaintiff arises in these circumstances. It appears that before and up to 1911 a Mr. Siqueira carried on the business of a general store in Nairobi. In that year he died, leaving as his widow the present appellant, Mrs. Siqueira. Mrs. Siqueira does not seem to have taken an active part in the conduct of the business, and from 1931 it seems to have been conducted up to the year 1922 by her brother, defendant 2 Mr. Rodrigues under a power of attorney, granted by the lady. The plaintiff, Noronha, had been carrying on business before 1913 elsewhere, and in 1913 he joined this business and worked under Rodrigues, who happened to be his brother-in-law, Rodrigues being, as stated, the brother of Mrs. Siqueira, and the plaintiff being a cousin of the lady and of Rodrigues as well as his brother-in-law. He was employed continuously in the business from 1913 to the beginning of 1928, except for a short absence in India at one time. During the whole of the time, the plaintiff's salary had never been definitely settled. There seems to have been a sort of understanding that he should get something, not less than what he had been getting before, which was 150 rupees per month, and commission; but the exact extent of the salary never was settled during the whole time that he was there. The business went on in the ordinary way, except that in 1922 Rodrigues became a partner, until, in 1930, the business was wound up.

In January 1928, the plaintiff left his employment by agreement and went off to India to better himself, and it is plain, from the evidence that, before he went, he asked Rodrigues for a statement of his account and Rodrigues promised to send it, and in due course he sent it. During the whole of this period the plaintiff had been making drawings of different amounts from the cash of the business, which he had entered in the books which he kept, or which he had caused to be entered in the books, in some cases by a subordinate. The accounts showed drawings for his own purposes, and in some cases he had provided cash for the purposes of Mrs. Siqueira in respect of some passage money which had been paid on her account. At any rate, at the time he left there were in the books of the business statements of certain drawings, and there were no credits in the books for salary at all, because the salary had never been fixed by the employer.

Eventually, in March 1928, Rodrigues, who was then, and had been for a long time, the managing partner, sent the document which is to be found at p. 6 of the record. It is headed: "In account with B.C. Siqueira, Nairobi and Mombasa," and is dated 27th March 1923. It begins: "By Balance due on 31st December 1921," 26,000 odd shillings. It then states accounts for the ensuing six years, entering debits during the years in one instance of 5,162 shillings, and salary and other credits 9,968 shillings. Then 1923: "To total debits for the year, 5,813 shillings," and "By salary for the year and refund of passage, 4914 shillings." It proceeds in that way to deal with the debits, which vary each year : 1,315 shillings; 1,350 shillings; 773 shillings; and the last year, 3,014 shillings. The last year also contains as a credit item "By Salary and Bonus for the year, 4,700 shillings, which is the amount to credit in each year. It ends "By Balance in your favour on 31.12.27, 42,458.84." On that document Mr. Rodrigues put two stamps of 10 cents, each, which appear to have no real legal significance, or revenue significance as far as one can see, and over the stamps he signed : "For and on behalf of B.C. Siqueira" which is the firm's name-'B.A. Rodrigues, Managing Partner." Upon that document the