[ORIGINAL CIVIL.] Before Mr. Justice Norman, Officiating Chief Justice, and Mr. Justice Markby. Agent of Company, Authority of-Corporation-Seal-Contract-Companies' 66 The Scinde Railway Company was incorporated by 18 & 19 Vict., c. 115, for the purpose of making and maintaining railways in India, and for other purposes. This was repealed by 20 & 21 Vict., c. 160 (1), which authorized the Company to extend their operations, and extend their capital, &c. This Act, by section 3, declared the Companies Clauses Consolidation Act, 1845 (2), to be incorporated with it. By section 18, the Company have "a seal for use in India in lieu of the common "seal of the Company, and from time to time may vary and renew it, and make "regulations for its use; and except, as by this Act otherwise expressly provided, every document sealed with such seal, in conformity with such regulations, or in "pursuance of any order of the directors, or of any authority given by the Com'pany under their common seal, shall be as valid and effectual as if the common seal "were affixed thereto " By section 54," the Company, from time to time, may appoint " and remove such committees, persons, or person, as the Company think fit to act 'on behalf of the Company in India or elsewhere, with respect to the making, “maintaining, managing, working, and using of the railways and other works of "the Company, and the control and conduct of any of the affairs in India or "elsewhere of the Company; and may delegate to any such committee, persons, and person respectively all or any of the powers of the Company and of the directors "and officers thereof which the Company thinks it expedient that such committee, persons, and person respectively should possess for the purposes of his or their "respective appointment." In January 1867, E. was the Agent of the Company in India, and he entered, it was alleged, on their behalf into a contract with the plaintiffs, for 60 sets of iron-work for low-sided waggons. The plaintiffs' firm 66 (1) 20 & 21 Vict., c. 160.-" An Act for authorizing the Scinde Railway Company to extend their operations, and for regulating the capital of the Company, and for other purposes. [25th August 1857."] (2) 8 & 9 Vict., c. 16, section 97.-"The power which may be granted to any such committee to make contracts, as well as the power of the Directors to make contracts on behalf of the Company may lawfully be exercised as follows : Paragraph 2.-"With respect to any contract which if made between private persons would be by law required to be in writing and signed by the parties to be charged therewith, then such committee or the directors may make such contract on behalf of the Company in writing signed by the committee or any two of them, or any two of the directors, and in the same manner may vary or discharge the same." 1870 March 11. 1870 STEWART V. THE SCINDE, DELHI did not deal in iron-work, and they had to get the goods manufactured for them in England. The Board of Directors were at the time supplying iron-work for the Company. There was nothing to show that E. had been appointed under the Provisions of section 54 of the Act, 20 & 21 Vict., c. 160, nor was there any evidence of the extent of his power or authority. A specification of the contract differed from it, in that it stated the waggons to be covered waggons, and not low-sided waggons. The contract was not made under seal of the Company, nor was the iron-work, the subject of the contract, ever accepted by the Company. The defendants admitted that at the date of the alleged contract, E. was the Agent of the Company in India, but denied that his power extended to the making of such contract; they further stated that the contract if entered into had been afterwards cancelled. Held, by PHEAR, J., that there was no evidence to shew that E. had authority to make the contract. The contract was one which E. would have had power to make in writing only, under section 97 of the Companies' Clauses Consolidation Act, had he been appointed under section 54, 20 and 21 Vict, c. 160, but there was no proof of such appointment. Held, on appeal, that, assuming that E. had been appointed under section 54 with powers as large as in the ordinary course could be conferred upon him under that section, the contract was not one by which, acting as such agent, he had power to bind the Company. THIS was an appeal from a decision of Mr. Justice Phear. The suit was brought to recover rupees 84,000, being the contract price of 60 sets of iron-work for low-sided waggons, which they had supplied in accordance with the terms of a contract entered into between the plaintiffs and Colonel N. Elphinstone, the Agent of the defendant Company, but which the said Company refused to accept. The plaintiffs described themselves as the members of the firm of J. Walter Brothers, carrying on business in Calcutta; the defendant Company was described as carrying on business in London, and also at Lahore, Punjab. The plaint stated that the contract was embodied in an order signed by Colonel Elphinstone, and was made in Calcutta, on the 10th January 1867, for 60 sets of iron-work for low-sided waggons, as the price of rupees 1,400 per set, exclusive of carriage from Calcutta; such iron-work to be delivered at the store godowns of the Company at Lahore within a reasonable time; and the plaintiffs alleged that they were ready and willing to deliver the iron-work as by contract. In their written statement, the plaintiffs alleged that they executed the order for the iron-work in England. 1870 STEWART (v. PUNJAB, AND The defendants stated in their written statement, that the order, if made, had been cancelled. They further stated that the plaintiffs had not complied with the terms of the contract by THE SCINDE, delivering the iron-work at Lahore. The defendants did not admit that Colonel Elphinstone, though he was their agent, had power to bind them. The Sciude Railway Company was incorporated in 1855 by Act of Parliament, but that Act was repealed, and the Company was modified, and its scope of operations enlarged by an Act of 1857 (1), called the "Scinde Railway Act," the material parts of which are as follows: : After reciting the Act of 1855, it was enacted by "Section III. The Companies' Clauses Consolidation Act, 1845,' is incorporated with this Act, and applies to the Company in India and elsewhere, as well as in England, and shall be construed and have effect accordingly. "Section XVIII. The Company may have a seal for use in India in lieu of the common seal of the Company, and from time to time may vary and renew it, and make regulations for its user; and, except as is by this Act otherwise expressly provided, every document sealed with such seal, in conformity with such regulations, or in pursuance of any order of the Directors, or of any authority given by the Company under their common seal, shall be as valid and effectual as if the common seal were affixed thereto. "Section XIX. The Company, from time to time, may negotiate for, conclude, enter into with the East India Company, and carry into effect contracts and agreements with respect to all or any of the following matters; (to wit,) "1. The making, maintaining, regulating, working, and using by the Company of the Scinde Railway and of the Punjaub Railway as now proposed respectively, or any other Railway or Railways in India, either wholly or partly in lieu thereof respectively or otherwise, and any extensions of and branches from the same respectively, and any works and conveniences connected therewith respectively comprehending all the works mentioned in section sixth of this Act: "2. The building, providing, hiring, and employing by the Company of steam boats and other vessels, and the construction of all necessary works, quays, and wharves, for the purposes of the undertaking: "3. The acquiring by the Company of lands in India for the purposes of their undertakings: "4. The obtaining by the Company from the East India Company of any guarantee of interest on the capital of the Company and any other support, countenance, and facilities for the purposes of their undertakings: (1) Ante, p. 195. DELHI 1870 STEWART υ. THE SCINDE, DELHI RAILWAY "5. The securing to the East India Company of any facilities, rights, and advantages with respect to the railways and steam boats or other vessels: "6. The making of provision with respect to the classification of shares PUNJAB, AND in the capital of the Company, and the rate of dividend thereon respectively, and the conversion of debt into capital, and the amounts and times of calls on shares and the transfer of shares, including restrictions on the transfer of shares not fully paid up, and the tolls, charges, revenue, and profits of the Company, and the deposit, custody, and application thereof respectively: COMPANY. “7. The giving to the East India Company, and to any of their officers agents, or servants, of any absolute, or other rights of supervising, controlling, and regulating the Company, and the works, contracts, accounts, bye-laws, proceedings, acts, and affairs of the Company in England, in India, and elsewhere respectively: "8. The enabling of the East India Company to appoint au ex-officio Director of the Company (whether qualified by holding shares or not) in the place of any ordinary Director of the Company or otherwise : 9. The regulating of the powers (including even a right of veto) at the Board of Directors, and the duties, proceedings, and liabilities of any such ex-officio Director: "10. The binding of the Company to conform to and fulfil any directions given by the East India Company or by their officers or agents in that behalf authorized, touching all or any of those matters respectively : "11. The appointing of agents of the Company in India or elsewhere, and the determining and regulating of their powers, duties, and remuneration: "12. The depositing with or paying to the East India Company of all or any part of the subscribed capital or other money of the Company upon any terms as to interest or otherwise agreed on : "13. The making of provision with respect to any lands granted or leased to the Company by the East India Company or otherwise: "14. The charging of all or any part of the property of the Company with any sum of money on any terms agreed on : "15. The surrendering or selling at any future period to the East India Company, or to any other persons, of the Railways or any part thereof, or of all or any part of the property of the Company, and the winding-up of the affairs of the Company and the distribution of the net assets of the Company among the shareholers: "16. The referring of differences to arbitration: "17. The making of provision for enforcing or securing the due performance of any contract or arrangement made by the Company : "18. The uniting of all or any part of any Railways or Railway, or of any undertaking of the Company, or both, with any other Railway or undertaking: "19. Generally, all such provisions and stipulations with respect to the matters provided for by this Act, or any of them, and the purposes of the Company, and the encouragment and promotion thereof, and the eventual or contingent transfer of the same or any part thereof to the East India Company or to any other persons, as the East India Company and the Company think fit, and mutually agree on. "Section XLII. The Ordinary Meetings of the Company shall be held half-yearly in or within thirty days of the months of February and August, or at such fixed time as the Company by the Resolution of an Extraordinary Meeting from time to time appoint, and all the General Meetings of the Company shall be held in England. "Section LIV. The Company, from time to time may appoint and remove such committees, persons, or person as the Company think fit to act on behalf of the Company, in India, or elsewhere, with respect to the making, maintaining, managing, working, and using of the Railways and other works of the Company, and the building, providing, or hiring, and maintaining and using of the steam boats or other vessels of the Company, and the disposal of, issue, registration, and transfer of shares and of bonds, and the registration of shareholders, and the control and conduct of any of the affairs, in India or elsewhere, of the Company, and may delegate to any such committee, persons, and person respectively all or any of the powers of the Company and of the Directors and officers thereof, which the Company think it expedient that such committee, persons, and person respectively should possess for the purposes of their or his respective appointment. "Section LV. The Company may, from time to time, determine the quorum of any such committee or persons, and may determine and regulate the authority, duties, procedure, liabilities, and remuneration of any such committee, persons, and person respectively, and generally may make such provisions and regulations for their and his respective Government and conduct as the Company think expedient. "Section LVI. All the proceedings and acts of such committees, persons, and person respectively within their and his respective authority shall (but subject to any regulations of the Company requiring such proceedings and acts or any of them to be confirmed by the Directors) be as valid and effectual as if they were proceedings and acts of the Directors. "Section LVII. The committees, persons, and person respectively so, from time to time, appointed shall, with respect to all their and his respective lawful proceedings and acts within the limits of the authority conferred on them and him respectively, have the like discretions and indemnities as if they and he respectively were or was Directors or a Director of the Company." PHEAR, J.—The defendant Company is sued for breach of a written contract, which is alleged to have been made with the plaintiffs, by one Colonel Elphinstone, as agent, on behalf of the Company, and the plaintiffs seek compensation in damages for the loss which they have sustained by such breach. |