Lord Russell of Killowen.:-

This is an appeal from a judgment and decree of the High Court at Calcutta in its civil appellate jurisdiction (dated 28th February 1941), which reversed a decree of the Court in its ordinary original civil jurisdiction (dated 8th August 1939) pronounced in an action in which the plaintiff (now the appellant) sued the four respondent coal companies to recover brokerage. The trial Judge (Lort-Williams J.) gave the plaintiff the relief which he sought, but on appeal the Chief Justice and McNair J. dismissed the action. The case is one of difficulty in that the rights of the parties depend upon happenings which took place many years ago, viz., at the end of the year 1919 and early in the year 1920, while the action was tried in the year 1939, and the truth has to be ascertained from the documents and the recollections of three witnesses, viz., the plaintiff, whose evidence was given in the witness-box before the trial Judge, and two witnesses for the defence whose evidence was taken on commission in England in the month of October 1938. A feature peculiar to the case is this: That while the trial Judge who saw the plaintiff, heard him give his evidence and was in a position to observe his demeanour as a witness, accepted him "as an honest and straightforward witness with a good memory for main facts, but as might be expected after such a lapse of time, not for dates or minor details," the High Court, on appeal, rejected the trial Judge's opinion, thought the plaintiff lacking in candour, and disbelieved his evidence.

Some facts, however, are not in dispute. The plaintiff was in the year 1919 a well-known coal broker who carried on business in Calcutta. The four respondents were well-known coal companies, whose managing agents were Heilgers and Co. The coal department of that firm was in charge of a Mr. Wills. In 1918 there had come into existence a limited company called the Indian Iron and Steel Company, Limited (hereinafter referred to as the steel company) whose managing agents were Burn and Company, in which firm a Mr. Fairhurst was a partner. The steel company in December 1919, had not yet started operations, but it was making or contemplating making forward contracts for coal, hoping at that time to be able to start operations in or about the year 1921. The plaintiff called on Fairhurst on 1st December 1919, and having verified from Fairhurst the fact that the steel company was contemplating the purchase of coal, told Fairhurst that he knew a seller. It was arranged that he would bring the sellers in. On the following day, the plaintiff called on Wills, and told him he could introduce him to a buyer of coal, and at Wills's request he took Wills round to Burn and Company's office and introduced him to Fairhurst. Terms were then discussed, the price being 8 annas above railway rates with a minimum of Rs. 4-8-0 per ton. On the following day (3rd December) Wills told the plaintiff to tell Fairhurst that he was willing to make a contract for 20 years for the sale of from 12,500 to 15,000 tons monthly. The plaintiff reported this offer to Fairhurst. The plaintiff took no part in negotiating the terms ; as Wills said, the plaintiff took him to the buyer, that was all he did. Fairhurst and Wills agreed terms which were eventually incorporated in a formal contract executed by the steel company and the four coal companies. The date on which the contract was to come into operation was postponed from time to time, but eventually in the formal contract the date was fixed at 1st April 1923. By this contract, the coal companies agreed to sell and the steel company agreed to buy 15,000 tons of coal monthly for a period of 20 years at 8 annas above State railways rates, with a minimum price of Rs. 4-8-0 per ton.

In fact, unknown to the plaintiff, on the same 29th April 1920, there was executed a second contract between the four coal companies and the steel company coming into operation on 1st April 1923, for the sal