Wallis, C.J:— In the first of these cases—Appeal No. 192 of 1915, the Subordinate Judge has dismissed a suit brought by the principals against an agent and his son to recover a specified sum of money particulars of which are set out at length in the plaint, and those particulars show that what they are really seeking to do is to make defendant 1 account for the moneys which they entrusted to defendant 1. The main ground of complaint taken by the plaintiffs in their plaint is that defendant 1 lent moneys of the principals to persons to whom he was not authorized to lend them, and Mr. Krishnasami Ayyar for the appellants has taken the point that this case is governed by Article 90, Lim. Act which provides for,
“Other suits by principals against agent for neglect or misconduct,”
2. And not by Article 89 which deals with suits,
“by a principal against his agent for moveable property received by the latter and not accounted for”
3. Now the use of the word “other” in Article 90 shows that Article does not include suits which properly come within Article 89, and we think that this is really a suit for a mere money account which comes within Article 89. Mr. Krishnasami Ayyar has relied upon Great Western Insurance Co. of New York v. Cunliffe(1). In that case it was sought, in taking an account by a principal against his agent, to hold the agent responsible for the loss which had occurred to the principal by the agent's failure to insure certain goods, that is to say, for failing to carry out the instructions of the principal by spending moneys of the principal in a particular manner, and James, L.J held that did not come within, an ordinary money account.
4. In an ordinary money account the accounting party is asked to account for the moneys which have come to his hands and to pay over the balance, and where the account is on the footing of wilful result, he may be held liable, not only for the moneys which come to his hands, but also for moneys which ought to have come to his hands and if he is shown, in taking such an account, to have applied moneys in a way in which he was not authorized to apply them, the result is that he is not allowed credit for that sum in taking account. That is the ordinary practice in taking accounts and it seems to us that there is no reason for holding that the matters pleaded in this case should not come into an ordinary money account. As I have said. Great Western Insurance Co. of New York v. Cunliffe itself and also the illustration put there of an attempt to make a solicitor liable for his negligence in the conduct of an action when taking an account in respect of his client's moneys those are cases of a different nature from the present.
5. Therefore in our opinion, in this case, Article 89 was rightly applied. Then the question arises as to whether this case was properly disposed of with regard to that Article. Now the Judge has simply held the suit to be barred on the authority of a decision of my learned brother and myself in Venkatachalam Chetty v. Narayanan Chetty(2). All we decided in that case was that termination of agency is a question of fact for purposes of Article 89, Lim. Act and the agency must be considered as having terminated when the authority to the agent is revoked, or the agent renounces the agency or the business of the agency is completed, which is practically another case of revocation or determination of authority. Now that must be a question of fact in each case to be decided upon the evidence. We do not think the case is sufficiently clear upon the pleadings to enable us to dispose of the case without taking evidence, and we have therefore decided to call for a finding upon fresh evidence as to whether the suit is barred under Article 89. We think it necessary however to say that we consider this question depends upon the question when the authority of the agent to represent the principal ceased, and that it does not depend upon the question as to the agent's obligation to take back a salary chit and pass his accounts with the principal. Fresh evidence may be taken. The finding will be submitted in two months from this date and seven days will be allowed for filing objections. [The connected appeal was then taken up but the decision in that appeal does note contain any law point.—Ed.]
Seshagiri Aiyar, J.:— I agree.
S.N/R.K
6. Appeal allowed.