Suppiah V. Paliahpillai

July.27,1911    Present: Wood Renton J.

SUPPIAH v. PALIAHPILLAI.

241-C. R. Colombo, 22,430.

Partnership-Action by manager of partnership-All partners must join in the action.

Plaintiff, who was manager of the Colombo Aerated Water Company, which was not an incorporated company, sued the defendant, who was employed by him for hawking aerated waters, for the recovery of Its. 164. 04, being the value of empty bottles not returned and the balance cash proceeds of sale of waters.

Held, that all the partners of the firm should have joined in the action.

" The defendant did not contract with the plaintiff on the footing that the latter was an agent pledging his credit as principal. The plaintiff could not therefore maintain this action as agent, and that being so, he is unable to maintain it as partner."

THE facts are set out in the judgment of Wood Renton J.

Bawa (with him Morgan de Saram), for appellant.-Plaintiff is the manager of the Colombo Aerated Water Company, which is not an incorporated company. He could not therefore sue on any contract with the company. All the partners should have joined in the action.

Counsel cited Boustead on Agency, art. 128; Dicey's Parties to an Action, p. 115 (1870 ed.)

Tambyah, for the plaintiff, respondent.-There was a contract between plaintiff and defendant. [Wood Renton J.-Was the contract between plaintiff as principal and the defendant ? If the contract was with plaintiff as manager, can he sue as manager ?] Where the contract is made with the agent himself, i.e., when the agent is treated as principal, the agent may sue. Dicey, p. 136, exception 4; Fisher v. Marsh1.

[Wood Renton J.-That refers to the case of an undisclosed principal. It clearly refers to cases where the agent himself pledges his own credit.] Counsel referred to Dicey, p. 153.

[Wood Renton J.-May not the Commissioner give leave in Courts of Requests to any person to represent another ? ] Bawa: That must be on leave obtained before trial.

[Wood Renton J.-I think so.]

1 34 L. J. Q. B. 178.

No action should be defeated by reason of non-joinder or. misjoinder of parties. (Civil Procedure Code, section 17.) The defendant should have moved to bring the others in.

Bawa, in reply.-The case of Fisher v. Marsh is the case of an auctioneer, and clearly he can sue. Section 17 does not contemplate a case like this, where the necessary partners have been left out. Where a wrong party comes into Court, the Judge could not add the proper party as well.

Cur. adv. vult.

July 27, 1911. Wood Renton J.-

The plaintiff-respondent as manager of the Colombo Aerated Water Company, Slave Island, sues the defendant-appellant in this action for the recovery of a certain sum of money as the value of bottles not returned and cash due by him. The learned Commissioner of Requests has given judgment in favour of the respondent for a portion of his claim. There is no appeal by the respondent on the ground that his whole claim has not been upheld, and the appellant's counsel stated that, if the decision of the Commissioner of Requests was sound in law, he would not dispute the accuracy of his finding as to the sum due to the respondent. Two points of law have been argued in support of the appeal: (1) That the action is not maintainable, inasmuch as the contract, if contract there was, between the appellant and the respondent was made with the latter only as agent for the Colombo Aerated Water Company; and (2) that there was in fact no contract between the appellant and the respondent at all.

I will deal with the latter point first. The facts of the case are clearly and fully set out in the judgment of the Commissioner of Requests, and I adopt his statement of them. The evidence shows that the appellant, who, according to the respondent, was employed as a carter under the Colombo Aerated Water Company, acted as such only temporarily, while the real employee of the Company, one Kuttisamy, was a

Click Here to Read the rest of this document