Wakilii

Trench and Another v Edyvean (C.A. 1-1934.)

East African Court of Appeal · [1937] EACA 94 · 1937 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from judgment of the Supreme Court of Kenya in a civil action for recovery of money lent under a partnership agreement
Decision
Both judgments of the Supreme Court of Kenya set aside. Respondent's claim dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that a partner in a farming partnership has no implied authority to borrow money on behalf of the partnership unless borrowing is necessary for or usually done in carrying on such a business. There was no evidence that borrowing was necessary or usual for farming partnerships in Kenya. The other partners were accessible and had means, so no necessity existed. The court also held there was failure of consideration where only Sh. 2,750/05 was advanced under an agreement reciting a loan of Sh. 5,000. Appeal allowed.

Outcome

Both judgments of the Supreme Court of Kenya set aside. Respondent's claim dismissed.

Facts

Mrs. Trench and Mrs. Manley (the Fidler sisters) purchased a farm in Trans Nzoia, Kenya in 1924 and arranged for Potts to manage it, giving him a one-third share. After their marriages in 1925 and 1927, they retained one-third interest and gave Potts two-thirds. The respondent Edyvean came to the farm as a pupil. Potts suggested Edyvean invest money in the farm to earn interest. Edyvean advanced money in small amounts totalling Sh. 2,750/05 by February 1930. On 29 June 1929, an agreement (Exhibit 1) was executed between Edyvean and Potts alone, reciting that Edyvean had lent Sh. 5,000 to the owners (Potts, Trench, and Manley). The agreement provided for repayment through one-quarter of the 1929 crop, with a shortfall guarantee of Sh. 4,000. Mrs. Trench and Mrs. Manley had no knowledge of the agreement and gave Potts no authority to sign on their behalf. The partnership was dissolved in April 1930. Edyvean sued to recover under the agreement.

Issues

  1. Whether a partner in a farming partnership in Kenya has implied authority to borrow money on behalf of the partnership without the knowledge or consent of the other partners.
  2. Whether borrowing money is necessary for or usually done in carrying on the business of a farming partnership in Kenya.
  3. Whether the lender is entitled in equity to recover monies advanced if those monies were used in discharge of partnership debts.
  4. Whether there was failure of consideration where the partner borrowed only Sh. 2,750/05 under an agreement reciting a loan of Sh. 5,000.

Orders

  • Appeal allowed.
  • Both judgments of the Supreme Court of Kenya set aside.
  • Costs awarded to the appellants in the Court of Appeal and in the court below in respect of both judgments.
  • No order as to costs of the application for leave to appeal out of time.

Rules and key headnotes

Partnership — Implied Authority to Borrow — Necessity and Usual Course of Business
A partner has implied authority to bind co-partners by borrowing money only if such borrowing is necessary for or usually done in carrying on the business of the particular type of partnership, as provided by section 251 of the Indian Contract Act.
Partnership — Farming Business — Implied Borrowing Powers
There is no warrant for holding that a farming partnership cannot be carried on without a power to borrow, and in the absence of evidence that borrowing is necessary or usual for farming partnerships in a particular jurisdiction, no implied authority to borrow exists.
Partnership — Necessity to Borrow — Availability of Co-Partners
Where co-partners are easily accessible and have means to provide funds, there is no necessity for a partner to borrow from a third party, and such borrowing does not bind the co-partners.
Consideration — Failure of Consideration — Partial Performance
Where an agreement recites that a sum of Sh. 5,000 has been lent and provides for repayment based on that sum, but only Sh. 2,750/05 was actually advanced, there is failure of consideration disentitling the lender from suing under the agreement.
Pleadings — Limitation to Case as Pleaded and Fought
A party cannot raise a new cause of action on appeal that was not pleaded or argued in the court below, even if such a claim might have merit on equitable grounds.

Legislation cited (4)

  • Indian Contract Act s.65
  • Indian Contract Act s.251
  • Indian Evidence Act s.91
  • Indian Evidence Act s.92

Cases cited (10)

  • Brettel v Williams (4 Exch 630)
  • Wheatley v Smithers [1907] 2 KB 684
  • Bond v Gibson (1808) 1 Camp 187
  • Okell v Eaton & Okell (1874) 31 LT 330
  • Leiden v Lawrence (1863) 2 New Rep 283
  • Ex parte Chippendale (22 LJ Ch 926)
  • Blackburn Building Society v Cunliffe Brooks & Co (1882) 22 Ch D 61
  • Baroness Wenlock v River Dee Co (1887) 19 QBD 155
  • Bannatyne v D & C Maclver [1906] 1 KB 103
  • Reid v Rigby & Co (1874) 2 QBD 40

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Trench and Another v Edyvean (C.A. 1-1934.) [1937] EACA 94 (1 January 1937)
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.