The right to claim commission on renewal premia after ceasing to be the agent is governed by the terms of the contract and previous legal precedents.

Napier, J.

1. This Second Appeal arises out of a suit by one S. Nanu Ayyar against the Empire of India Life Assurance Company of Bombay. The plaintiff alleges that he was once an agent of the Company and claims a declaration and an account in respect of all premia paid by policy-holders in respect of all policies procured by the plaintiff after the termination of the plaintiffs services as agent. The plaintiff does not allege that he was wrongfully dismissed or claim damages for wrongful dismissal. The lower Appellate Court has found that he was an agent employed by the Company and was properly dismissed for misconduct, but on the terms of his engagement, as found by itself, has held that the plaintiff is entitled to premia on the original policies obtained through his efforts for three years prior to the suit. I accept the finding as to the agency, but the important question remains whether the lower Appellate Court has based its finding as to the terms of engagement on proper materials. The" plaintiff alleged that he was engaged on certain terms but in his plaint did not state whether his engagement was in writing or oral. In his evidence he endeavoured to establish that he was engaged on the terms of a letter which is Exhibit F in the case, his evidence being "the terms written to me by Venkatachala Iyer (that is the chief agent) are mentioned in Exhibit F." The lower Appellate Court has found that Exhibit F was not addressed to him nor any letter in those terms; and as Exhibit F is not a letter but a circular and as he has proved no other letter there can be no doubt that this finding is correct. But the lower Appellate Court has held that he was engaged on the terms set out in a letter, Exhibit S. Now, Exhibit S is not a letter addressed to the plaintiff, but a letter addressed by the Chief Agent for Madras to the Company at Bombay in 1913 and is his report about the plaintiff after the date of his dismissal. In that letter the Agent states that the plaintiff had been working under him until 30th March 1912 under the terms of 10 per cent commission on the first years premia, 5 per cent on renewals, plus a bonus of one per cent on new collections up to Rs. 1,000,. 2 per cent up to Rs. 3,000 and 3 per cent above Rs. 3,000, and he states that he gave one copy of the book of "Instructions to Agents" to the plaintiff. The admissions by this servant of the Company must of course be taken all together, and the statement that the Sub-agent was supplied with a copy of the "Instructions to Agents" is part of the admission as to the terms of percentage. This "Instructions to Agents" is Exhibit T in the case. This has been ignored by the Subordinate Judge, whereas it should have been treated as part of the contract.

2. The "Instructions to Agents" sets out the terms of commission and bonus commission and to the extent that the evidence shows those rates have been altered the contract is varied to that extent, but the other terms undoubtedly apply. Article 29, which is in that part of the book dealing with commission, is as follows:

The commission is allowed so long as the premiums are paid and the agent continues to represent the Company.

3. This clause was, in my opinion, part of the contract and this being so the claim must fail in. toto.

4. Even if Article 29 was not incorporated in the contract I should be of the same opinion.. this claim by an agent or subagent to be entitled to renewal premia after his connexion with the Company was severed was the subject of a suit, Civil Suit No. 100 of 1899 on the original side of the High Court. In that suit the plaintiff alleged that he was wrongfully dismissed and that he was entitled to receive the future premia. Boddam, J., held that he was properly dismissed for improper and fraudulent conduct and dismissed the suit. The case went on appeal (Original Side Appeal No. 42 of 1899) before Shephard and Davies, JJ., and their Lordships hold that in the absence of any special agreement for