Sheikh Mahammad Maracayar and Son vs Oakley Bowden and Co.

John Wallis, C.J.—It has been held in Jafferbhoy Ludhabhoy Chattoo v. Thomas D. Charlesworth 17 B.P 520 on the express authority of a decision of the Privy Council in De Comas v. Prost (1865) 3 Moore P.C. (N.S.) 158 : 11 Jur. (N.S.) 417 : 12 L.T. (N.S.) 682 : 13 W.R. 595 : 146 R.R. 45 : 10 E.R. 59 that a factor to whom goods have been consigned for sale and who has made advances against them has no authority to sell without the consent of the owners, whether the advances were made at the time or subsequently, in the absence of an agreement to the contrary, which is not shown in the present case. In these circumstances the plaintiffs could not reasonably be expected to sell contrary to the instructions of the defendants and so expose themselves to a suit for damages. The only question before us is whether in the circumstances of the case the advances made by the plaintiffs to the defendants are recoverable without a sale. It was no doubt a term of the agreement that the advances were to be re-payable out of the sale-proceeds, but this, I think, must be taken to have been subject to the implied condition that the defendants should allow the sale to take place in the ordinary course of business. It cannot have been the contract that the plaintiffs were to wait indefinitely until the defendants gave leave to sell, otherwise in every case of an unprofitable venture it would be open to the consignor who had obtained advances on the goods from his factor to throw the losses arising from the transaction on the factor simply by refusing to consent to the goods being sold. This would be neither sense nor business. In my opinion the learned Judge was right in holding that the suit was not premature. There is uncontradicted evidence to support his finding that the loan was to carry interest, but the only evidence is that the rate was to be 7 per cent. and the respondents do not press for more. The decree will be varied by allowing only 7 per cent. Otherwise the appeal is dismissed wit costs.

Sadasiva Aiyar, J.

I agree.