Robson V. Aitken, Spence & Co.,

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Middleton.
 
ROBSON v. AITKEN, SPENCE & CO.

D. C. Colombo, 84,144.

    Bought and sold notes-Evidence of a contract-Parol evidence to prove a different agreement-Evidence Ordinance, ss. 91 and 92.

Parol evidence may be given to show that a broker's bought and sold notes do not constitute the record of a concluded agreement, and do not contain the real agreement come to.

APPEAL from a judgment of the District Judge of Colombo (H. A. Loos, Esq.). The facts and arguments are fully set out in the judgments of the Supreme Court.

Bawa (with him Wadsworth), for plaintiff, appellant.

Van Langenberg (with him Hayley), for the defendants, respondents.

Sampayo, K. C. (with him S. Obeyesekere), for the added defendants, respondents.

The following authorities were cited at the argument: Renter v. Sala,1 Tancred v. Steel Co. of Scotland,2 Juggernanth Sen Bux v. Ram Dyal,3 Ralli v. Caramalh Fazel,4 Boustead v. Vanderspar,5 Thomson v. Gardiner,6 Sive Wright v. Archibald,7 Durga Prosad v. Bhajam Lal,8 Halbart v. Lewis.3

Cur. adv. vult.

November 25, 1909. HUTCHINSON C.J.-

This is an appeal by the plaintiff against the dismissal of the action. The four original defendants, carrying on business in partnership as " Aitken, Spence & Co., " were agents for a shipping company, and used a considerable quantity of mattress fibre for " dunnage," i.e., for packing with coconut-oil casks in a ship's hold. They used to get a certain quantity of it from local makers and traders free, that is, they had the use of it as dunnage, carrying it freight free or otherwise; the rest they had to buy, and

1 (1879) L. R. 4. C. P. D. 239.	5 (1906) 8 N. L. R. 318.
2 (1890) 15 A. C. 125.	6 (1876) 1 C. P. D. 777.
3 (1883) 9 Cal. 791	7 (1815) 20 L. J. Q. B. 529.
4 (1890) 14 Bom. 102.	8 (1904) S. C. W. N. 489.
	9 (1901) 1 Ch. 344.

for this last they had for some years before 1905 been in the habit of making contracts for a year's supply in advance, to be taken when they wanted it. The contract which they made for 1904 was made in December, 1903, with J. A. Martinus; this is the contract referred to in D 2 and D 3, from which it appears that the buyers could take as much of the fibre as they required up to 10,000 cwt.; and their contracts with other sellers in previous years had been to the like effect. In October, 1904, they wanted to arrange for the supply for 1905, and Burns and Armitage, who were employed in their Shipping Department, consulted F. W. Waldock about it. He was a member of the firm of Keel and Waldock, brokers, added as defendants in this case after the original defendants had filed their answer, through whom the previous year's contract with Martinus had been made. Burns had had the working of the previous contracts and knew their terms, and he explained the terms to Waldock; they were, as he says, " that whoever took the contract should supply all the fibre we should require; that we should bind ourselves to buy all that we require to buy from him; but that we received other fibre free of freight, and that we reserve to ourselves the right to take other dunnage. " Armitage was present at all or most of Burns's interviews with Waldock; he said that he also told the broker to make certain that the terms on the next contract were the same as the existing one, viz., " that we were to take from the contractor all the fibre that we had to purchase, and that we had the option of shipping all fibre free of freight or on which freight had been paid, and also the option of taking yarn shipped from Alleppy. " At one of his interviews with Burns the broker wanted to know what quantity should be named in the contract; Burns said that he did not see the necessity for it, but that 10,000 cwt. was the quantity stated in the previous contract.

F. W. Waldock then made a contract with the plaint

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