Wakilii

Dar v Thomsen and Others (C.C. 97-1932 (Msa.).)

East African Court of Appeal · [1934] EACA 25 · 1934 Action Dismissed Against Agent AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages for non-delivery of goods
Decision
Action dismissed against Thomsen. Judgment for plaintiff against Eber and Sohn with damages to be assessed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that section 230 of the Indian Contract Act 1872 creates only a rebuttable presumption that an agent contracting for a foreign principal is personally liable. The presumption is rebutted when a contrary intention plainly appears from the contract itself or surrounding circumstances. Where the foreign principal is named as the contracting party and the contract is made in the principal's name, the agent is not personally liable. The action against the defendant Thomsen was dismissed; judgment was entered against the foreign principals Eber and Sohn.

Outcome

Action dismissed against Thomsen. Judgment for plaintiff against Eber and Sohn with damages to be assessed.

Facts

The plaintiff ordered goods from the defendant Thomsen by indent dated 15 April 1932 addressed to Messrs. A. Eber & Sohn, Hamburg, with Thomsen named as representative. Thomsen sent a letter dated 22 April 1932 stating that the offer had been accepted. The printed conditions referred throughout to 'the vendors'. The manufacturers subsequently required a certificate that goods would not be reshipped to any East Coast African port. The plaintiff wrote to Thomsen stating 'Your contract is a simple contract to deliver the traps at Aden in accordance with my indent and to this I must hold you and your principals.' The goods were not delivered. The plaintiff sued both Thomsen and Eber & Sohn jointly and severally or in the alternative for damages for non-delivery. Eber and Sohn entered a defence but did not appear at trial.

Issues

  1. Whether the defendant Thomsen acted as an agent or merely transmitted an offer and acceptance between the plaintiff and the foreign principals.
  2. Whether section 230 of the Indian Contract Act 1872 creates a rebuttable or irrebuttable presumption of personal liability for an agent contracting for a foreign principal.
  3. Whether the presumption of personal liability under section 230 was rebutted by the terms of the contract.

Orders

  • Action against defendant Thomsen dismissed with costs.
  • Judgment entered against Messrs. A. Eber and Sohn with costs.
  • Inquiry before the Registrar as to damages directed.
  • Notice of inquiry to be served on Eber and Sohn by registered letter sent by Air Mail with two months' notice.

Rules and key headnotes

Principal and Agent — Definition of Agent — Transmission of Offer and Acceptance
A person who merely transmits an offer to a foreign principal and communicates the principal's acceptance back to the offeror is not an agent within the meaning of section 182 of the Indian Contract Act 1872, as he has no power to make the principal answerable to third persons and exercises no discretion for the principal's benefit.
Principal and Agent — Foreign Principal — Personal Liability of Agent — Section 230 Indian Contract Act 1872
Section 230 of the Indian Contract Act 1872 creates a rebuttable presumption that where a contract is made by an agent for the sale or purchase of goods for a merchant resident abroad, the agent is personally bound by the contract. The presumption is not conclusive and can be rebutted by evidence of contrary intention.
Principal and Agent — Rebuttal of Presumption — Contrary Intention from Contract Terms
The presumption under section 230 of the Indian Contract Act 1872 is rebutted when a contrary intention plainly appears from evidence contained in the document itself or in the surrounding circumstances, such as where the foreign principal is made the contracting party and the contract is in the principal's name.
Presumptions — Rebuttable versus Conclusive Presumptions
The word 'presumed' in a statute gives rise to a rebuttable inference, not a conclusive presumption. To create a conclusive presumption, the legislature would use language such as 'shall be deemed to exist' rather than 'shall be presumed to exist'.

Legislation cited (2)

  • Indian Contract Act 1872 s.182
  • Indian Contract Act 1872 s.230

Cases cited (12)

  • Mackinnon, Mackenzie and Co. v. Lang, Moir and Co. (1881) 5 Bom. 584
  • Tutika Basavaraju v. Parry (1903) 27 Mad. 315
  • Mahony v. Kekule (1884) 139 E.R. 161
  • Green v. Kopke (1856) 139 E.R. 1484
  • Harper and Sons v. Keller Bryant and Co. (1915) 84 L.J.K.B. 1696
  • Universal Steam Navigation Company v. McKelvie and Co. (1923) A.C. 492
  • Flatau Dick and Co. v. Keeping (36 Comm. Ca. 242)
  • Wolff v. Horncastle (126 E.R. 625)
  • Miller Gibb and Company v. Smith and Tyrer (1917) 2 K.B. 141
  • Armstrong v. Stokes (1872) L.R. 7 Q.B. 598
  • Elbinger Actien-Gesellschaft v. Claye (1873) L.R. 8 Q.B. 313
  • Thomson v. Davenport (1829) 9 B. & C. 78

Full judgment

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Dar v Thomsen and Others (C.C. 97-1932 (Msa.).) [1934] EACA 25 (1 January 1934)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.