1. The question raised in this appeal is one of limitation and to appreciate it, it is necessary to know what the suit is about. The plaintiff was the commission agent of a partnership firm consisting of the three defendants, and brought this suit to recover Rs. 2,800 as being the balance due to him at the foot of an account existing between him and the defendants. The suit was defended only by defendant 1, who challenged certain items in the account some of which were disallowed by the trial Court, and a decree was passed against him for a sum of Rs. 1,568 odd. The decree was confirmed by the lower appellate Court. In the appellate Court the defendants raised two contentions: (1) that no instructions were given to the plaintiff by the defendants for the purchase of 300 bags of tamarind, and (2) the claim in respect of it was barred by the law of limitation. The appellate Court rejected both the contentions and confirmed the decree of the trial Court. Neither Court unfortunately has mentioned the article of the limitation act, applicable to the case.
2. Mr. Nilkanth for the appellant has raised only one question. He says that the claim of these 300 bags is barred by limitation under Article 61, Limitation Act. He argues that the claim being one for recovery of the price of goods limitation would begin to run from the date the price was paid by the agent to the merchant from whom he bought the goods, that fact had not been considered by the lower Courts and therefore the case should be remanded for reconsidering the question. But the Courts found that the goods were purchased by the plaintiff in February 1921 under instructions of the defendants. The trial Court held that the cause of action with regard to this part of the plaintiff's claim arose on 17th March 1921, when the defendants refused to take delivery of the goods, and that the suit was in time. On the question of limitation the lower appellate Court observed as follows:
“The contention on behalf of the appellant that the cause of action to recover the price of 300 bags accrued to the plaintiff on the date of the purchase cannot be accepted. Although the tamarind was purchased on 3rd and 13th February, its price was not immediately paid. Moreover until the patti was prepared and sent to the defendants, the plaintiff could not claim the price of the tamarind. That patti was prepared on 9th August, when the amount was debited in the accounts and it was actually despatched on 10th August 1921. Hence the suit filed on 15th March 1924, is obviously in time.”
3. There is considerable force in Mr. Nilkanth's argument that this reasoning is not clear and it is difficult to follow it. In the first place there is no finding as to when the plaintiff paid the price to the person from whom he purchased the goods for and on behalf of the defendants. Secondly it is difficult to understand what the preparation of the patti has to do with the question of limitation. The learned Judge had probably in his mind the evidence to the effect that there is a practice among commission agents in this district according to which the commission agent debits the amount due to the principal after pattis are sent. But such a practice can hardly be of any use to the plaintiff on the question of limitation unless he relies on a definite custom in the trade well known to the parties to the effect that it is only after a patti is sent that the commission agent becomes entitled to the payment shown in the patti. No such custom was set up or proved.
4. Now this was not a vendor's suit to recover the price of goods sold to the defendants. The suit was by a commission agent to recover the balance due by the defendants as principals at the foot of an account between the parties. One of the items in the account related to the, purchase of goods effected by the agent under the instructions of the principals. The evidence shows that the defendants refused to pay for and take delivery of the goods. The plaintiff waited for some time and after giving notice to the defendants resold the goods on their account and credited the amount realized to them. It appears that he had not debited the price to the defendants till 9th August 1921.
5. The correspondence referred to by the lower appellate Court shows that there was no refusal to take up the goods till at any rate 23rd March 1921. After that it appears that the defendants quarrelled among themselves and their partnership was dissolved. Nothing seems to have happened thereafter till 16th August 1921, when the plaintiff gave a notice to the defendants and resold the goods thereafter, and credited the amount realized to the defendants' account.
6. Under Section 222 of the Contract Act, the principal is bound to indemnify the agent against the consequences of the lawful acts done by such agent in exercise of the authority conferred upon him. This section is founded upon a well recognized principle of the English law that every agent has a right against his principal founded upon an implied contract to be indemnified against all losses and liabilities and to reimburse all expenses incurred by him in the exercise of his authority. Now where an agent by contracting renders himself personally liable for the price of goods brought on behalf of his principal, the property in the goods as between the principal and agent vests in the agent and does not pass to the principal until he pays for the goods, and the agent has the same rights with regard to the disposal of the goods and with regard to stopping them in transit as he would have had if the relation between him and his principal had been that of seller and buyer. The decision in Jenkyns v. Brown (1) is an authority in support of this proposition, and I may also refer to the well-known case of Imperial Bank v. London & St. Katherine Docks Co. (2) and Feise v. Wray (3). This principle is now expressly recognized by the Sale of Goods Act, 1930. In Ch. 5, which deals with the rights of unpaid seller against the goods, S. 45, sub-S. (5), lays down that the term “seller” includes an agent who has himself paid or is directly responsible for the price.
7. When therefore the principal refuses to pay for and take delivery of the goods purchased by the agent under his instructions, the agent after giving proper notice to the principal would be entitled to resell the goods on account of the latter and hold him liable for any deficiency resulting from the sale. The deficiency, it is obvious, would be the measure of the loss sustained by the agent in the transaction, in respect of which he is entitled to be indemnified and reimbursed.
8. In this view I do not think Article 61 would apply to this case. In my opinion the article applicable is Article 85, Lim. Act.
9. When therefore the defendants refused to accept the goods in question, the plaintiff had a right to resell them on their account. There is no clear evidence as to when the defendants finally repudiated the transaction, but taking the most favourable view of the defendants' case, it is clear that the transaction was recognized, and that there was no refusal till 23rd March 1921. It was then open to the plaintiff to resell the goods at any time after proper notice to the defendants, and the right to resell accrued to the plaintiff as from that date. The suit was filed on 15th March 1924, and even if the plaintiff's right of indemnity came into existence on 23rd March, the suit is clearly in time. In this view, I think the Courts below were right in holding that the suit was not barred by the law of limitation. The appeal fails and must be dismissed with costs.
M.N/R.K
10. Appeal dismissed.