1913 Present: Pereira J.

291-C. R. Colombo, 32, 556.

Principal and agent-Contract on behalf of a foreign principal-Is agent personally liable ?

Although an agent who makes a contract on behalf of a foreign principal is, as a rule, personally liable on the contract, there may be terms in any particular contract that negative such liability. Where such an agent did no more than introduce his principal and the other contracting party to each other, and it appeared from the facts proved that the principal and the other contracting party bargained together, -

Held, that the agent could not be deemed to be personally liable.

THE facts are set out in the following judgment of the Commissioner of Requests (P. E. Pieris, Esq. ): -

Plaintiff is suing in this case for a balance sum alleged to be due on a promissory note. The facts in that connection with that note are triple. Certain goods had arrived consigned to the defendant. He had to pay certain sums to clear the goods. He had not the necessary money. He borrowed this sum from plaintiff and gave the promissory note. Rs. 100 has been paid, and the balance is due. That is the whole case so far as the note is concerned. The defence is really in the nature of a counter-claim. The goods which I have referred to were ordered through the plaintiff; defendant says they were not up to sample, and he claims this Rs. 200 as damages, and denies his liability to pay the claim on the promissory note in consequence. On the question of whether the goods were not in accordance with the sample, I hold for the defendant. He had selected certain samples at the plaintiff's office, and he had given his order in accordance with the trade numbers of those samples. It appears from P 2 " (that if not otherwise prescribed assorted colours are delivered) " that fact was not brought to the notice of defendant. He had selected specific samples. He was entitled, in the absence of any agreement to the contrary, to have the goods supplied to him in exact agreement with the samples in every detail. It is proved that 445 pieces were according to sample and 754 were not. Then arises the chief question in the case, and that is, as to the liability of the plaintiff in respect of this failure. The plaintiff, I understand, is a German, and is established in Colombo, where he carries on various branches of trade. The document which connects him with the defendant is the indent P 1, where he is described as commission agent.

What exactly was the nature of his relation to the defendant ? He has clearly explained the course of business. Parties ordering goods sign the indent, which is in a printed form. On the top of it is printed, on

the left band side, plaintiff's name and description, on the right hand side is written the name of the foreign shipper, to whom, I understand, the order is addressed. Plaintiff receives this order and forwards it to the shipper. The shipper thereupon communicates to him his acceptance or otherwise of the order. That reply is communicated by the plaintiff to the customer, and by a special term in the indent the contract is not concluded till formal advice has been received by the customer of the acceptance. Plaintiff apparently has nothing further to do with the matter. The goods are consigned to the customer. The invoice is in the customer's name. The bill of lading bears no name. The shippers at the same time to draw on the customer for the value of the goods, and the draft, I understand, is collected through the bank, and the customer can take the goods on payment. If, for instance, the shipper decline to accept the indent, no contract at all comes into existence, and there is no liability at all on the plaintiff. In case of acceptance, the goods are never in the possession of the plaintiff, and he never receives into his hands their value from the customer. Under these circumstances, I am of opinion that the plaint