1938 (6) TMI 14

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..... be supplied direct from Calcutta. But the actual form of dealings between the parties was that the defendant received supplies only on payment of the invoice value of the goods, the payment being made either to a Bank or to the plaintiff himself. Purchases of matches were also made direct from the plaintiff, but this is said to have been an arrangement independent of the agreement. The plaintiff has now sued the defendant for rendition of accounts as an agent. Having regard to the actual course of dealings between the parties, however, both the Courts below have come to the conclusion that the true relation between the plaintiff and the defendant was not that of principal and agent but of seller and purchaser. In coming to this conclusion, .....

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..... relations of a supposed agent to a third party, whereas in the present instance we have to deal with relations between the supposed agent and a person appointed. It is quite possible that the person may stand in the position of a principal towards a third party and yet stand in the fiduciary position of an agent towards the person under whose instructions the goods are being sold. 3. The main test, it seems to me, is whether the so-called agent is supposed to be selling his own goods when the time for sale comes or whether he is supposed to be selling the goods of his principal, for the liability of an agent to render accounts is based on the assumption that he is dealing with money or goods entrusted to him. In the Chancery case, the age .....

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..... k that this is what is meant by an agent's liability to account. 5. In this connexion it is to be observed that the written agreement reads on the face of it as though the defendant was being appointed a sub agent on behalf of the Company in Calcutta, in which case the plaintiff would not be able to sue in his own name. In order to meet this objection the plaintiff has been forced to take up the position that the agreement was one between himself and the defendant as principal and agent. His difficulties appear to have arisen from this cause, since the carrying out of many of the terms in the agreement is dependent on his relations with the Company in Calcutta. His own relations with the Company may have been those of an agent; but it .....

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