ON APPEAL FROM THE COURT OF THE RECORDER OF RANGOON.

Measure of Damages-Liability of Master for the Wrongful Act of his Servant.

In estimating the damages for the conversion of Plaintiff's goods, the value of the goods at the place where the principal market for them exists, is the right basis of calculation; but there must be deducted from the price at which they could there have been sold, the cost of conveying them thereto. Morgan v. Powell (1) approved.

In an action to recover damages from the Defendants for obstructing the Plaintiff's right of ingress and egress to a forest, and his right of obtaining and removing timber therefrom, held, on the evidence, that the obstruction was not caused by the persons who were agents of the Defendants for the purpose of working in the forest, or of doing any class of acts analogous to those complained of, and that the Defendants were not shewn to have knowingly adopted or ratified those acts, and that the acts were not shewn to have been committed for their benefit.

A principal is answerable for the act of his agent in the course of his master's business and for his master's benefit, and for every such wrong of the servant or agent as is committed in the course of the service, and for the master's benefit. Though the master may not have authorized the act, if he has put the agent in his place to do a particular class of acts, he must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to place him in.

APPEALS from decrees of the Recorder of Rangoon, dated the 4th of November, 1876.

The facts of the cases appear in their Lordships' judgment.

Butt, Q.C., W. G. Harrison, Q.C., and Doyne, for the Appellants.

Present:-SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERT P. COLLIER.

(1) 3 Q. B. 278.

Benjamin, Q.C., Cowie, Q.C., and John Elms, for the Respondents.

April 13. The judgment of their Lordships was delivered by SIR ROBERT P. COLLIER :

J. C.

1878

BURMAH

TRADING CORPORATION, LIMITED

v.

MIRZA

MAHOMED

ALLY

AND THE

BURMAH COMPANY, LIMITED.

These are appeals and cross appeals from judgments of the Recorder of Rangoon in two suits, in which Mirza Mahomed Ally, SHERAZEE together with a company called the Burmah Company, Limited, were Plaintiffs. The Burmah Company, being merely put upon the record as assignees of the Plaintiff's right of action, need not be further referred to. The Defendants in both cases were the Bombay and Burmah Trading Corporation. The first action was brought to recover damages for the conversion by the Defendants of a large quantity of logs of timber belonging to the Plaintiff, the second to recover damages for the obstruction by the Defendants. of the Plaintiff in the exercise of his alleged right to remove timber from certain forests in Burmah. The Recorder gave judgment for the Plaintiff in both suits.

The case of the Plaintiff may be stated in outline thus. He was what may be called a middle man between the foresters in the woods of Burmah and the merchants of Rangoon who bought the timber felled. In the year 1867, he had a right, obtained from the Burmese Government, to fell or otherwise possess himself of timber in a certain forest known as the Ningyan forest belonging to the King of Burmah, and to take the timber by water to Rangoon. In that year two other persons, who may be also called middlemen, named Darwood and Goldenberg, had a concurrent right to obtain and export timber. In the summer of that year Darwood and Goldenberg succeeded in obtaining from the Burmese Government a monopoly of the right to export timber from the Ningyan forest, lasting for four years. The grant was dated on the 15th of July, 1867, but was not to come into operation until November of that year. In obtaining that grant Darwood and Goldenberg acted as agents of the Defendants. The Plaintiff's case is that between the date of the grant and the time when it came into operation, he was possessed of a large quantity of logs of timber, in all about five thousand, part of which he had felled,

J. C.

1878

BURMAH
TRADING

CORPORATION,

v.

ALLY

AND THE

part of which he had bought, and that he would have been able to take these logs by water to Rangoon during that interval, in which it was permitted to him and other foresters to take away their timber, but that he was forcibly prevented from doing this LIMITED by Darwood, who acted as an agent of the Defendants. He MIRZA further goes on to shew that in the next year 1868, he actually MAHOMED found in the possession of the Defendants, at a place called SHERAZEE Tounghoo, an intermediate station between the Ningyan forest and Rangoon, a large quantity of logs, 1241 in number, which belonged to him. They are alleged to have been discovered in the year 1868 in the possession, at Tounghoo, of a Mr. Petley, an agent of the Defendants. The Plaintiff brings his first action to recover damages for the conversion by the company of the logs found at Tounghoo in Petley's possession. He brings his second action to recover damages in respect of the injury he has sustained by being prevented by Darwood in August or September, 1865, from removing the remainder of the logs to which he was entitled. These logs, after deducting such as had by some means come into his possession, he alleges to be in number 1873.

BURMAH COMPANY, LIMITED.

Such is a short outline of the Plaintiff's case. Their Lordships do not propose to review the evidence in detail, a task which was very carefully and laboriously performed by the learned Recorder. They cannot help observing, however, with respect to the evidence in general, that it appears to them of a loose, confused, and enbrangled character, and that the Plaintiff cannot be regarded as a satisfactory witness, inasmuch as he has been convicted of perjury. It now becomes necessary to deal with the two actions separately.

In the first action the Plaintiff, as before observed, claimed damages for the conversion of 1241 logs. The learned Judge has found that 1041 of his logs were converted by the Defendants, and has given as damages the full value of each of those logs at Rangoon, which he estimates at Rs.50. Undoubtedly, in this case there is evidence, which if believed would justify the learned Judge in his finding for the Plaintiff, that a large quantity of his logs was in the possession of the Defendants. The Plaintiff produces a list which is sworn by a person whom he employed to have been made out from memoranda taken from personal observation

J. C.

1878

BURMAH

TRADING CORPORATION, LIMITED

v.

MIRZA MAHOMED ALLY

AND THE
BURMAH

COMPANY,

LIMITED.

of logs which he found in Petley's possession in 1868, bearing the Plaintiff's property marks, though not his delivery marks. The number of the logs in that list is 1187. There is some further evidence of the same kind respecting a lot of 11 logs. It is contended for the Respondents that this list is to a certain degree confirmed by another list which was put in and sworn to by another witness, of 981 logs, which are alleged to have been found in the same summer and autumn in the possession of Darwood in SHERAZEE the creeks at Ningyan. There is also some evidence of Darwood having taken possession of about 1000 logs of timber in the forest. Their Lordships are not insensible to the weight of several observations which have been addressed to them by the counsel for the Appellants impugning the genuineness of these documents, and the general truthfulness of the Plaintiff's case, not the least weighty of which was that the Plaintiff brought actions in 1869 for some far smaller lots of timber which, according to his own shewing, came down the river to Tounghoo after the large lot for which he brought his present action in 1872, and that he appears to have demanded this lot for the first time shortly before he brought his action. But after giving due weight to this and other objections which have been made to the whole of the Plaintiff's case, their Lordships have come to the conclusion that whatever view they might have taken of the case had it come before them as a Court of first instance, it has not been sufficiently established that the learned Recorder, who considered the evidence with great care, was wrong in coming to the conclusion of fact that the Defendants had in their possession a large quantity of logs belonging to the Plaintiff.

Their Lordships, therefore, are not prepared to reverse his finding, that the Defendants had in 1868 a large quantity of logs of the Plaintiff's in their possession, nor are they satisfied that his computation of the number of those logs was wrong. But they are of opinion that he has somewhat erred in his estimation of the damages. He appears to have treated the case as what, in language familiar in Westminster Hall a few years ago, was called an action of detenue, in which the Plaintiff sought to recover a specific chattel which the Defendant detained from him, and in which the judgment was that the Defendant do deliver the chattel or pay the

J. C. 1878

BURMAH TRADING

CORPORATION,

v.

MIRZA

ALLY

SHERAZEE

AND THE BURMAH COMPANY,

value of it. But this is neither in form nor in substance such an action, but more resembles what used to be called an action of trover. The subject-matter of the action is timber, an ordinary article of commerce, which, according to the evidence of the usage LIMITED of trade is disposed of in the same year in which it arrives at Rangoon, either by sale or by being cut up, or in various ways. MAHOMED This the Plaintiff must have perfectly well known, and he could not, and indeed he does not profess, to claim four years afterwards the restitution of the particular logs which were found in 1868 at LIMITED. Tounghoo. His claim is to the damages which he has sustained by the conversion of the logs by the Defendants at Tounghoo at that date. It may be right indeed to take the value of the logs at Rangoon, where the principal if not the only market for them existed, as the basis of the calculation; but from the price at which the Plaintiff could have there sold them must be deducted what it would have cost him to bring them to the market. This principle of estimating the damages is in accordance with the case of Morgan v. Powell (1), and with other cases with which English lawyers are familiar. It has been found by the learned Judge upon the evidence that Rs.4 a log would be the cost of conveying logs from Tounghoo to Rangoon. There is no direct evidence of what the cost of conveying logs from Ningyan to Tounghoo would be; but the distance is said to be about three days' journey, and the price of logs at Tounghoo is more than double the price of logs in the forest, a difference which must in some degree be composed of the cost of conveyance.

On the whole their Lordships are of opinion that they will be doing no injustice to the Plaintiff if they assume the cost of conveying timber from Ningyan to Tounghoo to be as much as that of conveying it from Tounghoo to Rangoon. They think, therefore, that the sum of Rs.8 per log should be deducted from the selling price at Rangoon. As some evidence was given of the price which the Recorder adopts, viz., Rs.50 per log, they adopt his finding on this point. They are therefore of opinion that from the Rs.52,050 which have been given to the Plaintiff, Rs.8,328 should be deducted, leaving a balance of Rs.43,722.

The next action gives rise to different considerations. It was (1) 3 Q. B. 278.