Ong (Malaya) CJ:

The judgment herein appealed against was reported recently in the Malayan Law Journal ([1972] 1 MLJ 35 ); otherwise there should have been no need for this written judgment. The simple issue before the High Court was purely a question of fact: Was there any consideration for the deed to support the respondent's promise? In our opinion the facts disclosed in evidence readily provided a clear answer.

The key to the Judge's decision may be summed up in his own words:-

At the time Exh. A. 10 was executed the plaintiffs' debtors were the estates and not the defendant. There could then be no forbearance to sue as against the defendant.... The plaintiffs knew, and I do so hold, that the defendant was an agent for the estates and was not acting as a principal in respect of the supplies made to the estates."

The material facts were wholly overlooked. First, the nature of the respondent's business may be seen from his letterheads: "Visiting Agents, secretaries, Dealers in all kinds of Planting Materials, Estate Suppliers and Contractors." Secondly, the course of business followed at all relevant times in the transactions between the parties was set out clearly in an admission contained in the letter dated 24 November 1969 from the respondent to the appellants. The material portion reads as follows:-

As you wanted a guarantee for the amount owed by all the estates, my Agency will undertake to collect from the estates concern and pay to you as I have been doing since February 1968."

Thirdly, the respondent elected to give no evidence in answer to that of Mr. KBK Currie, the general manager of the appellants' chemicals division, who stated:-

The order for the goods required by those estates came from the defendant. At the time of placing those orders the defendant lodged with us one of his own post-dated cheques. It was a cheque signed by the defendant. This was done at the defendant's request. We were dealing with the defendant. If he had not given us his post-dated cheque the goods would not have been supplied. The deliveries were made to the defendant. I am not able to say what he did with the goods supplied. Although he wrote to us that the goods were for supply to particular estates we were not concerned with supply to those estates. We were concerned only with him. ... It was the defendant who took delivery of the goods .... there is no truth in the statement that payment was to be made by the estates and not by the defendant. There never was an occasion where payment was received directly through the estates. It is, however, possible that the defendant might have forwarded to us cheques drawn by one or more of the estates.... Several of those estates had no business registration or registered address.... The lodgment of postdated cheques was done at the defendant's own request. I do not know when this system started, but when I came to West Malaysia the system was already there. ... The estates represented by the defendant never placed a direct order with us. All their orders came from the defendant ... We looked to the defendant for payment. There was no direct contact between our company and the estates in question. At no time did we make any demand from the estates.... The defendant was to pay us the money. We were not concerned with where from he got the money, ... There are a few cheques issued by third parties but made negotiable and handed to us by the defendant. Those cheques were not from the estates or persons connected with the estates, but from strangers.... In reality goods were supplied to the defendant when he physically took delivery by his own transport or by transport nominated by him, or there was a direct delivery to a destination nominated by him."

All the above statements of fact made by Mr. Currie stood uncontradicted. On this evidence, fortified by the respondent's own admission in his letter of 24 November 1969, it is clear beyond peradventure that orders were placed by the r