JUDGMENT

George Seah FJ:

This is an appeal against a decision of N.H. Chan J and it raises questions of some commercial importance. At the outset, we like to observe that although notice of appeal was lodged on 15 August 1981 by the appellant no grounds of decision were supplied by the learned Judge. After waiting for more than one year learned Counsel for the appellant was compelled to file the memorandum of appeal without the benefit of a written judgment on 15 March 1983. As a result we have been handicapped in hearing this appeal inasmuch as we do not know on what basis the learned Judge decided the case in favour of the respondent. This is a very unsatisfactory state of affairs and we hope that such practice will not happen again. Before we consider the issues involved we will state briefly the relevant facts.

The respondent (plaintiff in the Court below) is a wholeseller dealing mainly in steel saws, tools and other hardware products and the appellant (defendant in the Court below) was one of the many customers of the respondent for a number of years. It was common ground that at the material times, the respondent employed a salesman by the name of Tan Boon Soon in the finished products department and he was the only salesman there. When the respondent first sued the appellant in the High Court the case against him was a simple and straightforward one based on a claim for goods sold and delivered at his request totalling RM164,467.62. The appellant admitted the sum of RM24,431.51 and disputed the balance amounting to RM140,036.11 which was made up of seven transactions as evidenced by invoices Nos. C2048, C1750, C1526, C1057, C1271, C2198 and C2947. After the carrier, Chong Chai Eng had testified that the appellant did not receive the goods referred to in the seven transactions but recalled that when his lorry brought the goods to the premises of the appellant, salesman Tan would be standing outside the shop to intercept them and directed him to transport them to another address at Ipoh Road, the respondent amended the statement of claim to read as follows:

(a) The plaintiff's claim against the defendant is for the recovery of RM140,036.11 for goods sold and delivered as evidenced by invoices Nos. C2048, C1950, C1526, C1057, C1271, C2198 and C2947 by the plaintiff to Tan Boon Soon as agent for the defendant.

(b) Further or alternatively, the plaintiff delivered the said goods to the said Tan Boon Soon as agent for the defendant not intending to do so gratuitously and the defendant enjoyed the benefit thereof. Accordingly, by virtue of s. 71 of the Contracts Act 1950 the defendant is liable to pay for the same.

In his amended defence the appellant denied that the said Tan Boon Soon was ever his agent and further contended that the claim under s. 71 of the Contracts Act 1950 was misconceived in law. However, after hearing the parties the learned Judge entered judgment in favour of the respondent as claimed. The claim of the respondent based on s. 71 of the Contracts Act 1950 can be disposed of shortly. Section 71 reads:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitiously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore the thing so done or delivered.

This section of the Contracts Act 1950 had been judicially considered by the Privy Council in the case of Siow Wong Fatt v. Susur Rotan Mining Ltd. & Anor. [1967]. At page 120 Lord Upjohn in delivering the judgment said:

That section is in terms identical with s. 70 of the Indian Contract Act upon which there is some authority to which their Lordships will later briefly refer.

It has been common ground before their Lordships that four conditions must be satisfied to establish a claim under s. 71. The doing of the act or the delivery of the thing referred to in the section:

(1) must be lawful,

(2) must be done for another