Wan Hamzah J:

[1] The main issue in this case can be summarily stated as follows. There were ten statements of accounts (particulars of which are given in para 3 of the Statement of Claim) in respect of transactions by which the plaintiffs, who were stock-brokers, sold shares through the defendant. The plaintiffs allege that the defendant was a remisier and had dealt with these share transactions in the capacity of a remisier and as such was responsible for the payment of the costs of the shares transacted, amounting to $38,015.66 in all. The defendant admits that these transactions had been effected through her but denies that she was a remisier, and she alleges that she sold the shares as agent for the plaintiffs and was not therefore responsible for payments except in respect of statement of account No SA A0147 dated 22 April 1970 relating to certain transactions by which, she admits, she bought the shares for herself for $8,175. There is another issue raised in the pleadings. The defendant claims that she being an agent was entitled to commissions in respect of share dealings made by the plaintiffs through her and she alleges that the total amount of her commissions was $21,541.35 of which the plaintiffs had paid her $10,319.72 only, leaving a balance of $11,221.63, for which she counterclaims In answer to this counterclaim the plaintiffs admit that there was a total amount of $21,541.35 of commissions due to the defendant as remisier, of which $10,319.72 has been paid, but the plaintiffs say that they have utilised this balance of $11,221.63 to set-off the debts due from the defendant as a remisier arising out of sales of shares to her clients, and also to set-off amounts due from her on account of bank interest on overdue bills and for cost of stock exchange diaries.

[2] The plaintiffs did not produce any document of appointment of the defendant as a remisier, nor did the defendant produce any document for her appointment as agent. It seems that there were no such documents made. It is surprising that the parties had not executed any written agreement between them to spell out clearly their relationship, although the dealings in which they were together concerned involved a lot of money. From the evidence produced showing the conduct of the parties I find that the defendant was acting as remisier in the transactions in which shares were sold by the plaintiffs through her. I find that as a remisier she was liable to pay to the plaintiffs the cost of the shares bought by the people through her. I find that when placing orders for these shares she was not acting as agent for the plaintiffs but that she did so as a remisier. A strong pointer to this conclusion is the fact that she had allowed the plaintiffs to accumulate retention money out of commissions due to her. The letter at p 5 of Exh. A from the plaintiffs to the defendant shows that as early as October 1969 the plaintiffs had deducted from her commissions retention money to meet costs of shares to be sold through her. Again the letter at p 10 of Exh. A shows similar deduction. Evidence shows that she did not protest to the plaintiffs against such deduction and retention. If the cost of the shares bought by her clients were payable by them direct to the plaintiffs and were not payable by her, there would be no necessity for deduction of retention money from her commissions and she would have objected to such deduction. Parts of her commissions were in fact used by the plaintiffs to pay for the cost of shares bought by her clients, and this was done with her knowledge and without any protest by her. This fact is borne out by the letter at p 10 of Exh. A from the plaintiffs to her. On cross-examination the defendant said that she did raise objection to the deduction of retention money and that she did so not by letter but through the telephone to Mr Lim Eng Keat (PW1). I find it difficult to believe this. One would expect that such objection would not have been m