1. The action was brought in this case by Mr. Fink as Receiver of the estate of Sewbux Sureka, deceased, against the two defendants carrying on business in co-partnership as merchants at Mandalay, Rangoon and Calcutta, and at the time the writ was issued, in Rangoon and Calcutta, under the name and style of Buldeo Dass Jowala Persaud, for the recovery of a sum of Rs. 1,780-4-2 in respect of the rent of a house in Mandalay, and for recovery of a sum of Rs. 587-8, being the price of goods sold by the defendants for Sewbux Sureka and also for interest on these respective sums.
2. Neither of the defendants has appeared to give evidence, but in their statement of defence they rely upon the Statute of Limitation, and they also say that this Court has no jurisdiction to entertain the suit on the ground which I shall presently refer to. The defendant Jowala Persaud, who is a son of the defendant Buldeo Dass, also alleges in his statement of defence that he is not and never was a partner with Buldeo Dass in any business in Calcutta.
3. The first question for determination is the question of jurisdiction. In the statement of claim there is no averment that the agreements, in respect of which the action is brought, or either of them, was executed in Calcutta, and there is nothing otherwise to show jurisdiction save it be in the title of the action in which the defendants are represented as carrying on business in Calcutta.
4. The learned Judge before whom the application for admission of the plaint was made was satisfied that there was jurisdiction, and he allowed the writ to be issued under Clause 12 of the Charter. Now, it has been proved that the contracts sued upon were as a matter of fact executed in Calcutta. I am asked to hold that, allowing proof of the signing of the agreements in Calcutta is a variance of the original cause of action, and that consequently it would be necessary to have the leave of the Court before I could make such an amendment or allow the action to proceed, and therefore I am asked to hold that the Court has no jurisdiction to entertain this suit. If I did so hold, the result would be that I should have to dismiss the action, and the following day an application might be made to me for liberty to issue a writ in respect of the very same cause of action, the only difference being that in the statement of claim it would appear that the agreements were entered into in Calcutta. I am of opinion that it does not in any way cause a variance in the cause of action to admit evidence of the fact, and if necessary amend the plaint by adding a statement, that the contracts were entered into in Calcutta; and moreover I am of opinion that it is quite sufficient if, upon the hearing of the action, it is established to the satisfaction of the Court that the cause of action or part of the cause of action did arise in Calcutta. The authorities to which I have been referred do not seem to me to carry the defendant's contention far enough. They only establish that where there is an additional cause of action for the first time brought to light at the trial, the Court has no jurisdiction to entertain the suit, inasmuch as it is a materially different cause of action from that originally sued on. This applies to the case of both defendants.
5. The next defence is a defence under the Statute of Limitation, and is common to both statements of defence. I deal with it treating both defendants as being partners. The rent claimed is rent which accrued from the 21st, January 1894 to the 30th June 1898 under an agreement of the 7th December 1893. In that agreement, which is signed by the defendant Buldeo Dass, he states that Sewbux Sureka has a house in Mandalay in which he has been living, and he says as follows:
I shall vacate the same to you on or before the 15th daylight side in Pous. If I make delay (in doing so) I shall pay you rent (at) Rs. 35, in letters thirty-five, per month for the upper and lower (storey). I shall pay, if I occupy (the same), otherwise not.
6. Now it appears that he did occupy the house and is occupying it up to the present time, and the rent sought to be recovered is the rent due up to the 30th June 1898. There was an agreement that the rates and taxes and repairs were to be defrayed by the landlord, and as a matter of fact an allowance has been made by the plaintiff in respect of all rates, taxes and repairs which have been proved to have been paid by the defendants, and the sum of Rs. 1,780-4-2 sued for represents the balance.
7. The plaintiff relies upon an acknowledgment as taking the case out of the Statute of Limitation, namely, a letter of the 8th September 1897 written by Buldeo Dass Jowala Persaud, as follows: (reads letter of 8th September, ante p. 718).
8. The account referred to in this letter included the rent of the house at Mandalay.
9. In addition to this there is a letter of the 5th April 1896 from Buldeo Dass Jowala Persaud, as follows: (reads letter of 5th April 1896, ante p. 717).
10. This is a clear admission by Buldeo Dass Jowala Persaud, whoever were the members of that firm, that they would pay this rent as per account; and the account rendered by both defendants sets forth accurately the rent claimed. There is also a letter from the defendant Buldeo Dass' solicitors, dated the 17th April 1897, in which they state to the effect that the defendant Buldeo Dass does not dispute the amount of the rent due, but they say that he claims to set-off certain items as against it which would reduce the amount due: (reads letter of 17th April 1897, ante p. 717).
11. These letters constitute in my opinion a sufficient acknowledgment of the debt to take the case out of the statute.
12. Mr. Dunne referred to the old case of Prance v. Sympson (1854) 1 Kay, 678, in which it was held that where there was an admission that there was an open account between parties an undertaking to pay was to be implied. I find that the case is commented upon in a more recent ease by Mr. Justice Kay, viz., in the case of Banner v. Berridge (1881) L.R. 18 Ch. D., 254. Mr. Justice Kay refers to Prance v. Sympson (1854) 1 Kay, 678, and at page 273 he says: "But be that as it may, Mitchell's Claim (1871) L.R., 6 Ch., 822, certainly shows in the plainest possible manner that it was Lord Justice Mellish's opinion that if there was an admission that an account must be taken, and that there was a right to have it taken, it would be consistent with principle, and with the previously decided cases, that you must infer from that a promise to pay. If I may venture to express my own opinion upon the subject, that seems to me to be quite reasonable. I suppose there is no doubt at all about the law that, if there be an unqualified admission of a debt, that acknowledgment implies a promise to pay; and surely it seems quite as reasonable that if there is an unqualified admission that there is a pending account between two parties which has to be examined, that is, pending in the sense that it is not a settled account binding upon them, but is an account which either party is at liberty to examine, surely it is reasonable to say that the admission that there was such a pending account is an admission from which you may infer a promise that when the account is settled the balance shall be paid." It seems to me that here the principle is carried a little further than in the case of Prance v. Sympson (1854) 1 Kay, 678.
13. These letters satisfy me that there was a sufficient acknowledgment of this debt in respect of rent to take the case out of the statute.
14. Now I come to the question of the Statute of Limitation in regard to the sale of the goods. In this case the statement of claim inaccurately describes the cause of action as for the price of goods sold by the plaintiff to the defendants, but the parties understood perfectly well that it was in respect of the goods entrusted to the defendants for sale that the action was brought. The error in the claim is trivial, and may properly I think be rectified. The goods being entrusted to the defendants for sale on behalf of Sewbux Sureka they became the agents of Sewbux Sureka for the sale of the goods and liable to account as such. That being so, the contention of Mr. Chowdhry that the Statute of Limitation would run the moment any particular item of the goods was sold is unsustainable. The law is very clearly laid down in the case of Babu Ram v. Ram Dayal (1890) I.L.R., 12 All., 541, and it seems to me that case governs the present. In that case the plaintiffs were merchants trading at Agra and they consigned at different dates in 1881, 152 bags of jeera or cummin seeds to the defendants on commission sale. On the 8th December 1881, the defendants sent the plaintiffs an account of 119 out of the 152 bags. No account was ever rendered of the 33 bags which were sold in January 1882, and the plaintiffs made no inquiry and took no action regarding these bags until the 27th December 1886, when they demanded from the defendants the price realised on sale of the 33 bags, the demand being refused. The suit was instituted, and in the Munsif's Court, as also in the Court of the District Judge, who agreed with the Munsif, the action was dismissed on the ground that it was barred by the Statute of Limitation, the Court holding that on the sale of each bag of the cummin seed the statute began to run, and also on the ground that the plaintiffs were guilty of laches and delay in not prosecuting their claim until after the lapse of six years.
15. On appeal, the decision of the Lower Appellate Court was reversed by Mr. Justice Brodhurst and Mr. Justice Tyrrell, and at page 545 they say as follows: "it was argued with much ingenuity that under Section 201 of the Contract Act the agency had terminated immediately on the sale of the goods by the business of the agency being completed. But Section 218 of the same statute provides that an agent is bound to pay to his principal all sums received on his account. Clearly then the business does not terminate on receipt of the money by the agent, inasmuch as there is a subsequent obligation to account for the sums and to pay them. Moreover, there was no allegation that their business relation had terminated when the action was brought in the Court below, and there was no justification in law or in fact for holding that the agency terminated as soon as the defendants sold the property. Applying, therefore, Article 89 of the Limitation Act, the suit is not barred and the case must go back to the Court of First Instance." The headnote of the case is as follows: "Where an agent for the sale of goods receives the price thereof, the agency does not terminate, with reference to Sections 201 and 218 of the Contract Act (IX of 1872), until he has paid the price to the principal and a demand made by the principal for an account of the price is made 'during the continuance of the agency' within the meaning of Schedule II, Article 89 of the Limitation Act (XV of 1877); and a suit by the principal to recover the price is, therefore, within time if brought within three years from the date of such demand. The agency does not terminate immediately on the sale of the goods. It does not terminate at the time when the plaintiff obtained knowledge of the defendants' breach of duty."
16. That decision seems to me to govern the present case; according to it the Statute of Limitation will not begin to run until the agency is determined. As a matter of fact the agency does not appear to be determined in this case as yet, because until the defendants have fully accounted the agency is still subsisting.
17. This being so it is unnecessary for me to refer to the letters which have been relied upon by the plaintiff as in any case taking the case out of the statute as amounting to acknowledgment in writing, signed by the defendants, or their agent, of the existence of this agency debt.
18. The only other point in the case is that raised by Mr. Sinha on behalf of his client, namely, that he never was a partner in the firm of Buldeo Dass Jowala Persaud. The evidence is altogether one way. Jowala Persaud has not come forward to give evidence and to deny that he was a partner in this firm. The clearest evidence is given by Heera Lall that Jowala Persaud carried on business here in Calcutta, that he paid money for the firm, that he attended to the business and wrote letters in reference to the business, and I see no reason to doubt that evidence is truthful. I do not think he took as prominent a part in the Calcutta business as Buldeo Dass, but the evidence satisfies me that he did take a part as a partner, and held himself out to the public as being a partner with Buldeo Dass his father. But if there were any doubt as to the truth of the oral evidence which has been given, it seems to me that the letters which were written by Jowala Persaud himself would clear away such doubt. Amongst others there is a letter, exhibit IV, written by Jowala Persaud, in which towards the end he refers to certain rubies which were in the custody of the present plaintiff and he says as regards these particular rubies: "The rubies belonging to you and ourselves in partnership must be sold either at a high or a low price." Jowala Persaud treats himself in this letter as being a partner with his father Buldeo Dass, and refers to these rubies as being property belonging to himself and his father as partners. Again in the letter, exhibit K, which letter is signed by Buldeo Dass Jowala Persaud, and in the letter, exhibit M, which is written by Buldeo Dass Jowala Persaud, there is an acknowledgment that there is an account outstanding between the plaintiff and defendants; in the letter, exhibit O, written by Buldeo Dass Jowala Persaud the defendants refer to this account as an account for which they were both liable.
19. Upon this evidence I can only come to one conclusion, and that is that Jowala Persaud was a partner in this firm, and on all grounds, therefore, I decide in favour of the plaintiff for the amount of principal proved to be due namely, in respect of rent Us. 1,780-4-2 and in respect of the goods Rs. 587-8-0 The interest I disallow because the custom to pay interest which is alleged by the plaintiff has not been established. I may state as regards the rates and taxes which I was asked at all events to set off against this debt, that there is no evidence whatever that any rates and taxes have been paid by the defendants, except a sum of Rs. 86 and some annas which had been allowed, and is credited in the accounts of the plaintiff. If additional rates and taxes have been paid the defendants will have an opportunity of setting off the sum paid against the rent which has accrued since this action was instituted. I decree, therefore, the amounts I have mentioned with costs on scale No. 2.