Sinnatamby V. Johnpulle Et Al.,

Present   : Wood Renton C.J. and Ennis J.   1915.

SINNATAMBY v. JOHNPULLE et al.

72 and 73-D. C. Colombo, 37,092.

Principal and agent-Agent granting a lease' in excess of authority-Ratification-Estoppel.

Where an agent, purporting to act on behalf of his principal, exceeded his powers in granting a lease of land-

Held, that the principal was in law capable of ratifying the lease. and that a notarial instrument was not necessary to prove the ratification.

A principal can ratify the unauthorized act of an agent only when he is fully aware of its nature.

THE facts are set out in the judgment of the Supreme Court dated June 19, 1914 (see 18 N. L. R. 245), on the first appeal.

The case was sent back by the Supreme Court for further inquiry and adjudication upon the issue, namely, whether the defendants were estopped by their conduct from denying the validity of that agreement. The learned District Judge answered this question against the first defendant and in favour of the second defendant. The plaintiff appealed (No. 72) against the dismissal of his case against the second defendant, and the first defendant appealed (No. 73) against the finding that he is estopped from denying the validity of the agreement.

De Sampayo, K.C. (with him Retnam), for appellants, in appeal No. 73.-The evidence shows that the estoppel relied on by the plaintiff is really ratification; but ratification was neither pleaded nor put in issue, nor even referred to by counsel in the Court below. It is not proved that first defendant was aware of the contents of the agreement, especially of the unauthorized act of his agent in subjecting him to a penalty of Rs. 3,000. For a valid ratification there should be a knowledge of the fact to be ratified, and an intention to ratify it (Edwards v. The North-Western Railway Co.1[(1890) L. R. 5 C. P. 445.]).

Power of an agent to execute a deed can only be given by an instrument under seal (Hunter v. Parker2[7 M. & W. 332.]).

A deed may be defined as a writing attested by a notary (Tissera v. Tissera3[2 N. L. R. 238.]). A claim subjecting the principal to a penalty of Rs. 3,000 is not incidental to an agreement to lease. When a person contracting with an agent knows that the agent's authority is bad, and nevertheless contracts with him beyond the limits of his authority, he does so at his peril (11 A. & E. 589).

There can be no ratification of a part of a contract.

Bawa, K.C. (with him Arulanandam), for appellant, in appeal No. 72.-There is ample evidence to show that the first defendant was aware of the contents of the agreement. With such knowledge he received payments and other benefits.

Subsequent ratification is sufficient, and dispenses with proof of prior authority, though the prior authority is required to be given in writing and under seal (Tupper v. Foulke1, 9 C. B. N. S. 797).

The authority to the agent to execute the agreement need not be in writing (Meera Saibo v. Paulu Silva2). A party can be precluded by estoppel from denying the execution of a deed (Doe v. Bold3).

In this case the agent professed to act for the principal, and even if he exceeded his authority the principal can by ratifying such acts render himself liable.

The second defendant obtained the lease with full knowledge of the agreement in favour of the plaintiff, and he acted dishonestly. He is therefore rightly made a party (4 C. A. C. 18).
The penalty provided for is not an adequate remedy, nor is it alternative. The intention to be alternative should be clearly expressed ( Jafferjee v. Theodoris4).

The second defendant is privy in estate to the first defendant, and as such privy the remedy of specific performance lies against him.

De Sampayo, K.C, in reply.

Tisseverasinghe, for the second defendant, respondent.-Specific performance cannot be granted, for several reasons. Damages in the case are alternative, and not accessory to the principal o

Click Here to Read the rest of this document