1917 Present: De Sampayo J.

RAHIM v. DAVOODBHOY.

364-G. B. Colombo, 58,003.

    Indent for slate pencils by defendant through a commission agent from a foreign company-Action instituted by commission agent for damages for breach of contract.

The defendant, through the plaintiff, a commission agent, indented for one hundred cases of slate pencils from a Japanese company, but refused acceptance of a portion of the consignment. The plaintiff sold the consignment by public auction, and instituted this action against the defendant for the balance due, after crediting him with the proceeds of the sale.

Held, that the plaintiff was not the proper party to sue.

THE facts are set out in the judgment of the Commissioner of Requests (W. Wadsworth, Esq.): -

In this case the plaintiff, a commission agent, sues the defendant, claiming the sum of Rs. 300, which he states he had to pay to the Bansei Trading Company, alias Howkoku Trading Company, being the difference between the value of a shipment of slate pencils and the nett amount realized by sale of the shipment on failure of defendant to take delivery of the shipment.

Defendant raises the preliminary question that plaintiff is not the proper party to sue, and that plaintiff cannot maintain the present action.

It is admitted plaintiff is only a commission agent, that he had no property in the shipment, that he was not liable for any loss) that money was not to be paid by him, that the goods were consigned to the defendant and not to the plaintiff, that the invoice was in the defendant's name, and that the bill of exchange in respect of it was drawn on the defendant.

It is also agreed that the bill of lading has no reference to the plaintiff, and that if the shipper declined to accept the indent sent by defendant, no contract at all would arise.

What, then, is the position of the plaintiff's He had no responsibility; no liability would attach to him. There was in fact no contract between plaintiff and defendant. Plaintiff's position may have been that of a mail box, but nothing more.

The contract was between the defendant and the shipper direct. The shipper-the principal-was disclosed. If any dispute arose as to non-acceptance of shipment, or as to any difference in price between the value of the shipment and that realized by sale of the goods, or, conversely, as to non-delivery by the shipper, the action would arise only as between the disclosed principal and the defendant.

But, Bays the plaintiff, he had to pay the difference, and therefore be has the right to claim. Why plaintiff paid, or why "he had to pay," does not transpire, nor is it necessary for me to go into that question.

So long as there was no contract, express or implied, between plaintiff and defendant, plaintiff cannot maintain this action. The defendant may have his own defence if the shipper sued him, or there may be an an adjustment between the shipper and the defendant.

The present action is misconceived. I hold that plaintiff cannot maintain this action, and I dismiss it, with costs.

I might add that the issue of estoppel is indeed an ingenious one, bat is not worth serious consideration.

The indent was as follows: -

Indent No. 514/16.    Colombo, February 10, 1916.

From HASSENALLY DAVOODBHOY, Colombo.

To BANSEI TRADING COMPANY.

Through the British Traders' Agency, Colombo.

Marks      Hate of Buying Commission         Shipment,
                to be charged on Invoice.

H D ...       Nil ...        In 2 lots: 1st, soonest possible; 2nd, 60/90 days after.

514

Colombo

500 cases each, 100 cartoons each. Cartoons 50 slate pencils.

Ref. No. 1,548, @ Rs. 15 per case C. I. E. and C. Colombo.

Make up as usual, and label " Made in Japan. "

Packing should be done very carefully.

Shipment.-In 2 lots: 1st, soonest possible; 2nd, 60/90 days after.

Draft at 30 days' sight D/P on Mr. Hassenally Davoodbhoy, 44, Fourth Cross street, Col