Westropp, C.J:— This is an appeal from a decretal order made by Sir Charles Sargent, J.

In August, 1877, the plaintiffs' agent at Bellary, a station on the Madras Railway, delivered there to the Madras Railway Company a bale of cloth belonging to the plaintiffs to be conveyed thence to Sholapur, a station on the G.I.P Railway, and there to be delivered to the plaintiffs. The bale was conveyed safely from Bellary past Raichore, where the Madras Railway terminated, and was lost between Raichore and Sholapur on the defendants' (the G.I.P Railway Compay's) line, and was never deliverd to the plaintiffs, who, by their present suit, claimed damages to the extent of Rs. 1,250 as the value of the bale. The fifth para of the plaint alleged “that the defendants (the G.I.P Railway Company) through their agents in that behalf, the Madras Railway Company, agreed with and promised the plaintiffs to safely carry the aforesaid bale from Raichore and deliver the same to the plaintiffs at Sholapur.” The following receipt for the bale was given by the goods clerk at Bellary to the plaintiffs' agent:—

“Madrs Railway.

T. (79).

Goods Receipt Note No. 135.

Traffic Department.

Co. 101.

Bellary Station, 11-8-77

Received from Balmookund.

Consigned to Radhakisan Ganeshdas,

Sholapur Station.

Number and description of goods—

1 B. cloth.

(Signed) Ruganlal, Clerk.

N.B—This receipt is granted subject to the rules and regulation in force on this Railway or any other Railway over which the goods may pass, and must be produced before the goods can be delivered.

The defendants by their written statement (after a general denial of their liability to pay the sum of Rs. 1,250 in the plaint claimed, or any part thereof) submitted that the plaintiffs' cause of action (if any) was against the Madras Railway Company and not against the defendants; and that, if the action did he against the defendants, the plaintiffs are entitled to recover Rs. 825 only, such sum being the full value of such part of the goods as is not comprised in section 10 of act xviii of 1854.

The issues were:—

1. Whether the defendants promised and agreed with the plaintiffs as in the 5th paragraph of the plaint alleged? and

2. Whether the plaintiffs are entitled to maintain this suit.

Both of those issues Sir Charles Sargent, J., found in the affirmative, and so stated in this decretal order of that date, and he adjourned the further hearing of the suit.

The present appeal is against that order. For the purpose, however, of avoiding any question as to the jurisdiction of this Court to hear this appeal, the parties, by their respective counsel, agreed that Sir Charles Sargent's order should be amended by making it a decree for the plaintiffs for Rs. 1,100, as damages for the bale of goods, the subject of this suit, with costs, reversing to the defendants the right to appeal against the ruling of Sir Charles Sargent on the issues 1 and 2 as to the liability of the defendants to pay any damages or costs; and that so much of his order as directed the adjournment of the cause should be struck out.

At the time of the occurrences the subject of this suit, there was in force an agreement in writing between the Madras Railway Company and the Great Indian Peninsula Railway Company instituted “A Memorandum of Agreement between the Madras and the Great Indian Peninsula Railway Companies for interchange of Traffic and Rolling Stock.”

By the second of its provisions the joint station at Raichore was erected and maintained at the joint expence of both companies. The 16th, 17th, 18th and 19th clauses of the agreement were as follows:—

“16. That goods and parcels be invoiced and hooked through to and from all stations on both lines where such traffic is dealt with. The traffic managers of both Companies to supply to each other, from time to time, the names of such small stations of their respective Railways as do not book goods and parcels.

“17. That the through rates and fares be in all cases the sum of the local rates and fares of the two Companies to Raichore, including terminals and cartage of both Compaies, but that no terminal be charged by either Company for Raichore station on through traffic.

“18. That each Company be responsible for collecting the proportion due to the other Company on all through traffic, and that on goods traffic invoiced through ‘to pay’, the receiving Company check the invoices, and be responsible for collecting any amounts that may be undercharged by the forwarding Company, but the receiving Company not to reduce below the charge mentioned in the invoice or through way-bill without the consent of the forwarding Company.

“19. That the mileage to Raichore from stations on each line be taken for the purposes of this agreement, as per appendix annexed, the G.I.P mileage to include in all cases (except as mentioned in clauses 32, 33 and 34) 20 miles for the Thull Ghat and 32 miles for the Bhore Ghat, extra, as sanctioned by Government.”

The 22nd clause was as follows:—

“22. The exchange of stock, both passengers and goods, between the two Companies, to extend to the whole of the lines of either Company, and to branches that may be worked by them respectively.”

The 24th clause was as follows:—

“24. The division of the receipts on the through traffic to be carried out monthly by the audit officers of the two Companies, and each Company to have, in division, its own local rates and fares, except in the case of minimum charges, as provided in clause 23.”

The 40th clause was as follows:—

“40. That goods claims be settled by the Company in whose custody the loss or damage occurred; that, when this cannot be ascertained with certainty, the claim be paid in mileage proportion, but in such cases the consent of both Companies is to be obtained before settlement is made.”

The 44th clause was as follows:—

“44. No alteration of rate or fare, or classification affecting the through traffic is to be made by either Company without one month's previous notice to the other.” The contention of the appellants (the G.I.P Railway Company) is that the contract to carry the bale was made by the plaintiffs (respondents) with the Madras Railway Company and not with the G.I.P Railway Company. It may be that, according to the law as laid down in Great Western Railway Company v. Blake, Buxton v. North-Eastern Railway Company, and Thomas v. Rhymney Railway Company, the Madras Railway Company, if sued, would have been liable for the loss of the bale of cloth; but it is unnecessary for us to say, and we do not say whether or not that company is so liable.

In our opinion the written agreement between the two companies, of which we have above quoted the material clauses, brings this case within the authority of Gill v. Manchester Railway Company, upon which we understand Sir Charles Sargent to have acted in arriving at his decision upon the issues; and albeit that agreement may not have actually constituted a partnership between the two companies, yet it rendered the Madras Railway Company the agents of the G.I.P Railway Company for the purpose of making a contract for carrying the bale of cloth over, at least, so much of the line of the latter company as forms part of the distance from Bellary (the place of booking) to Sholapur (the place of delivery), i.e, from Raichore to Sholapur. The G.I.P Railway Company have by that agreement made the Madras Railway Company their agents for the purpose of, at least, so much of the traffic as benefits the G.I.P Railway Company, We think that we may in this case adopt, mutatis mutandis, the following passage from the judgment of Mellor, J. in Gill v. Manchester Railway Company:— “The action was rightly brought against the defendants, inasmuch as if the provisions of the agreement of the 17th June, 1857, did not constitute an actual partnership between the respective companies as to all the matters embraced by it, still they came within the rule expressed by Lord Cranworth in Cox v. Hickman —‘The real ground of liability is that the trade has been carried on by persons acting on his (the defendant's) behalf;’ and per Lord Wensleydale to the same effect in the same case. In our opinion the Great Northern Railway became, by virtue of their agreement with the defendants, the agents of the latter for the carriage of the cow with the plaintiff.” And, during the argument of the same case, Blackburn, J., said: “We need not consider whether the two companies are partners; the traffic is carried on for the joint benefit of the two, so that they are joint principals, and either may be sued”.

A passage from the judgment of Grove, J., in Foulkes v. Metropolitan District Railway, when that case was in the common Pleas Division, was cited to us as supporting the principle on which Gill v. Manchester Railway Company was decided, although that case did not appear to have been cited to the Common Pleas Division. It was this: “Wore it necessary to decide this case upon the question of agency, the inclination of my opinion is that file South-Western Company were, as regards the plaintiff’, the agents of the Metropolitan District Company, and that there was a kind of mutual agency for their mutual convenience, each company undertaking to act when it was most convenient for them to issue tickets for their own benefit and the benefit of the South-Western Company.” Since the present case was argued, an appeal lodged in Foulkes v. Metropolitan Railway Company has been decided. On the appeal the case assumed, to some extent a different aspect from that which it had borne in the Common Pleas Division. The decision of that Division was affirmed. There Thesiger, L.J, refers with approbation to Gill v. Manchester Railway Company. He said: “If the right of the plaintiff to maintain his judgment depended solely on his establishing a contractual relation between him and the defendants, I should not dissent from the view that such relation has been proved. The affidavit of Mr. Forbes is not in itself inconsistent with the notion that the London and South-Western Railway Company, in issuing tickets at their Richmond station for stations on the defendants' line, so issue them as agents for, or as partners with, the defendants. The notion, too, receives sanction from the decision in Gill v. Manchester Railway Company. There the contract of carriage purported to bo made with the Great Northern Railway Company; but the animal, which was the subject of the contract, was to be conveyed upon the defendants' line, and there were traffic arrangements between the two companies, under which their rolling stock was treated as one stock, their traffic was interchanged, and the receipts from through traffic were divided by mileage. It was held that by virtue of those arrangements the Great Northern Railway Company, whether as partners with the defendants or otherwise, became the agents of the latter to make the contract of carriage with the plaintiff. In the present case, under the traffic arrangements between the two railway companies, the defendants supply the rolling stock and carry, in the exercise of their running powers, the whole of the through traffic, taking a mileage proportion of the receipts from such traffic with an allowance for working expenses. It is admitted that traffic between Richmond and the defendants' station at Hammersmith constitutes through traffic, and it may therefore be urged with force that, in booking such through traffic at Richmond, the London and South-Western Railway contract, either as agents for the defendants, or for the defendants jointly with themselves. This view is further strengthened by the form of the ticket issued at Richmond to passengers travelling from Richmond on to the Metropolitan District line when contrasted with that issued to passengers travelling elsewhere, and by what is written over the booking office; and although I am by no means prepared to hold that, under traffic arrangements similar to those which exist between the two companies, it is not open to a company in the position of the London and South-Western Railway Company to make the contracts of carriage in such a way as to make itself exclusively liable upon them, or to deny that, in most cases, it must be a question for the jury whose the particular contract may be, I think that, under the peculiar circumstances of the present case and upon the materials before us, the Court would not be justified in disturbing the judgment for the plaintiff, and sending that question down for trial.”

Mytton v. Midland Railway Company was cited to us on be half of the appellants. But that case seems irreconcilable with the subsequent decision in Gill v. Manchester Railway Company already mentioned, and also with the passages which we have quoted from Foulkes v. Metropolitan Railwany Company and in a case of Hooper v. London and North-Western Railway, decided in the Common Pleas Division on the 2nd December, 1880, and reported in the Times of the 3rd December, 1880, Denman, J., is reported as saying: “The case of Mytton v. Midland Railway does not appear to have been cited in the subsequent case of Foulkes v. Metropolitan Railway, but it was really overruled by it.” Lindley, J., seems to have concurred in that view.

Amongst other cases relied upon for the appellants was Bristol and Exeter Railway v. Collins which, in its various stages, afforded a strong example as to the possible variety of judicial opinion. Neither its facts, however, nor those of any other case cited for the appellants, tally so closely with those in the present case as the facts in Gill v. Manchester Railway, which appears to us to have been a just and reasonable decision, and recognized as such in Foulkes v. Metropolitan Railway by the Court of Appeal.

For these reasons we concur with Sir Charles Sargent in his finding on the issues.

The defendants have not excused their non-delivery of the bale. The plaintiffs were not bound to prove negligence: Ishvardas Golabchand v. G.I.P Railway Company. There must, therefore, having regard to the amendment (made by consent of the parties) of Sir Charles Sargent's decretal order, be a decree for the plaintiffs for Rs. 1,100 damages, and for the costs of the suit, and of this appeal.

Solicitors for the plaintiffs.—Messrs. Lynch and Tobin.

Solicitors for the defendants.—Messrs. Hearn, Cleveland and Little.