JUDGMENT

Wazir Hasan, A J C - This is the appeal of the representatives of the original Defendant No. 2, Raj Kumar Mitra, who died during the pendency of the suit in the Court of first instance. The plaintiff-respondent asked for a decree for the return of Rs. 500, which he had paid as earnest-money to Raj Kumar Mitra and also for damages for breach of contract for the sale of coal to the plaintiff. The Court of first instance gave a decree to the plaintiff as against the Defendant No. 1 and dismissed the suit as against the Defendant No. 2, as well as Defendant No. 4. The plaintiff appealed from the decree of the Court of first instance to the Court of the Additional Subordinate Judge of Lucknow. The appeal was preferred against the representatives of the Defendant No. 2 alone. The lower Appellate Court allowed the appeal and gave a decree as against the present appellants also. The question in issue was whether Raj Kumar Mitra acted as an agent of the Defendant No. 1 in the matter of the contract; and, if so, was his estate liable for the plaintiff's claim.

2. The lower Appellate Court has clearly found that Raj Kumar Mitra entered into the contract in the capacity of an agent for the first defendant; but it has proceeded to hold that fact did not exclude the personal liability of Raj Kumar Mitra. I have to determine whether the last-mentioned view is a sound one.

3. That the contract was entered into between the plaintiff and Raj Kumar Mitra is not disputed. It is also not disputed that the only evidence with regard to the details of the contract is contained in Exhibit 1 which is a receipt admittedly signed and granted by Raj Kumar Mitra in favour of the plaintiff for the sum of Rs. 500, which the former received from the latter as earnest money in pursuance of the contract. In this receipt Raj Kumar Mitra signs himself "agent and manager." It must, therefore, be held in agreement with the lower Appellate Court that Raj Kumar Mitra entered into the contract in the capacity of an agent and not as a principal. That being so, on general principles, Raj Kumar Mitra was not personally liable under the contract. The respondent's learned pleader, however, argues that as Raj Kumar Mitra did not disclose the name of his principal, the presumption is that he contracted to be held personally liable as well. This argument is sought to be supported by the terms of Section 230 of the Indian Contract Act.

4. The argument as an abstract proposition may be sound but is inapplicable to the present case for the simple reason that, in my opinion, the presumption relied upon is rebutted by the circumstances of the case. It is agreed that the presumption is not conclusive and is liable to be rebutted, and I hold that it has been rebutted. The use of the words 'agent and manager' as part of signature of Raj Kumar Mitra was clearly not descriptive of his individuality, but of his legal status; and by the express use of those words, it must be held that Raj Kumar Mitra intended to absolve himself from all personal liability in the matter of the contract. In the recent case of Universal Steam Navigation Company, Limited v. James Mckelvie and Company [1923] A.C. 493, the law on the subject was thus stated by Lord Shaw:

5. "But I desire to say that in my opinion the appending of the word 'agents' to the signature of a party to a mercantile contract is, in all cases, the dominating factor in the solution of the problem of principal or agent. A highly improbable and conjectural case (in which this dominating factor might be overcome by other parts of the contract) may by an effort of the imagination be figured; but, apart from that, the appending of the word 'agent' to Signature is a conclusive assertion of agency, land a conclusive rejection of the responsibility of a principal, and is, and must be accepted in that two fold sense by the other contracting party." In my opinion, therefore, the appending of the words 'agent and manager' in Exhibit I was