1. The facts found in this case are that the plaintiff-respondent sold 100 bales of Broach cotton on the 30th of July 1918 through Messrs Bruel and Company of Bombay. The bales were deliverable in September of that year. In this transaction the present appellant Mahomed Gulam Mustafakhan was a partner having 7 annas share in the contract, and he deposited Rs. 600 with the plaintiff as a margin. The price of cotton continued to rise and on the 8th of August 1918 the two partners purchased 100 bales of Broach Cotton from the same Company at Rs. 951 a khandi. The 100 bales sold had been sold at Rs. 863 per khandi. This purchase made a loss on the twp transactions of Rs. 89 a khandi. The plaintiff settled with Bruel and Company by paying that loss, namely Rs. 4600. He claimed Rs. 2,012 from the defendant for his share of the loss, giving him credit for Rs. 600. He asked for a decree for Rs. 1,691-5-0.
2. In the trial Court the Case was decreed. On appeal the findings of the first Court have been confirmed and the appeal dismissed.
3. It is here contended that the contracts were wagering contracts and that cotton was not intended, to be delivered or to be sold and bought, and differences only were to be paid, and therefore no amount was recoverable from the defendant.
4. It is further contended that the lower Courts were wrong in holding on mere probabilities that the word not to be found in Exhibit P-1 was scored out by the defendant himself at the time of writing the letter; further that the Courts below have erred in holding that the purchase of 100 bales was with the consent of the defendant. Whether the defendant consented to the purchase of the 100 bales or whether he did not so consent is a question of fact and very good reasons have been given by the Courts below in arriving at the finding that he did in fact consent. There is no question of what happened. The facts are apparent that frightened by the rise in the price the two partners attempted to cut a future less by buying. It was a natural conclusion to come to, to save further loss, and though it is urged that in fact in September the sale of the 100 bales would have shown a gain that does not alter the fact that at the time when the 100 bales were bought the partners were at a loss and stood to lose more. The findings of the Courts below as to the alteration in Exhibit P-1 are again findings of facts and there is nothing to vitiate them. Whether the contracts entered into were wagering contracts or not is a question of fact and it is clear that the evidence on record does not establish that the two contracts were wagering contracts. That finding must stand. But it seems to me that even assuming that the contracts were wagering contracts, as the plaintiff has paid the defendant's share of the loss he is entitled to recover it from the defendant. Section 30 of the Indian Contract Act does not affect agreements or transactions collateral to wagers and it has been held that if the principal employs an agent to enter into wagers, and the agent, in the exercise of that authority, pays any money, the agent's act is lawful and the principal is bound to indemnify the agent for such lawful acts. Here where two partners enter into a contract, even assuming it to be one of a wagering nature, it seems to me that where one partner has satisfied his own and his co-partners liability under the contract he can legally claim that partner's share of the loss. He has a right to reimbursement against the partner. I am not disposed to question the correctness of the lower Court's findings that the contracts in this case were not of a wagering nature because the appellant has made no real attempt to prove that the other parties to the contract (Messrs Bruel and Company being merely agents) had the intention viz. that the difference only was to be paid and no actual delivery of cotton was ever contemplated. It has been admitted here by the Counsel for the appellant that Bruel and Compay could have sued the parties to the suit and enforced delivery of the cotton itself. It seems to me that the appellant has made every endeavour to avoid the loss consequent on speculative contracts entered into by him and by the plaintiff. The plaintiff has paid his own and the appellant's share of the loss involved by these contracts and that plaintiff has been rightly given a decree for what he claims from the appellant.
5. This appeal fails and is dismissed with costs.