The Anglo-Indian Trading Co. Ltd. vs Gerald Frank Brierly

The suit is brought by the plaintiff, the Anglo-Indian Trading Company, to recover a sum of money duo on a promissory note. The defendant

pleaded that there was no consideration. The admitted facts are these; one Mr. Subba Row and the defendant had obtained a manganese

concession in Mysore and they agreed to admit Mr. W.J. Eales to a share of the profits arising from this concern. In consideration thereof, Mr.

Eales caused the Anglo-Indian Trading Company to undertake the management and development of the rights comprised in the said license and to

finance the concern. The Company agreed to advance the monies required from time to time for working, prospecting, mining and developing the

lands comprised in that license and also all monies for kist and other purposes. They promised also to maintain proper books of account, and it

was further stipulated in the agreement entered into between the Anglo-Indian Trading Company on the one hand and Subba Row, Brierly and

Eales on the other, ""that all sums so paid or advanced by the said Anglo-Indian Trading Company, Limited, as aforesaid, shall bear interest at 2

per cent, above the current Bank of Madras rate for the time being and shall be taken to account monthly and be paid or deducted from the sale-

proceeds of the ores as disposed of or shipped. The said Anglo-Indian Trading Company, Limited, shall be entitled by way of remuneration for

their services to a commission of one rupee per ton of ore despatched from the Thasarapalle Railway Station, and shall be paid immediately after

shipment."" The Company found, after working the mines for some time, that they were not profitable and, therefore, closed the concern and

refused to make any further advance. Mr. Eales, who was really the Anglo-Indian Trading Company, represented to the defendant that he was

bound to pay to the Anglo-Indian Trading Company a share of the monies alleged to be due to the Company by him and he accordingly executed

the promissory-note on which the suit was now filed, Wallis, J., decided that the promissory-note had no consideration because, under the

agreement, dated 17th February 1908, above referred to, there was no personal liability on the part of Subba Row, Brierly and Eales to pay to the

plaintiff Company the monies advanced by them. He also held that the promissory-note cannot be treated in law as the consideration for the

monies advanced by the plaintiffs because such monies were advanced really in consideration of the agreement of the 17th February 1903. On

these grounds, he dismissed the suit.

On appeal, it is contended that the learned Judge is wrong on both these points. We are of opinion that the learned Judge is right. It was urged

before us that the learned Judge has failed to consider the stipulation in Exhibit I, which is styled an indenture between Subba Row, Brierly and

Eales that the management of the mining, etc., of the lands comprised in the license was to be in the hands of the Anglo-Indian Trading Company in

accordance with the agreement, Exhibit A above referred to, and ""That in the event of monies being advanced by the parties hereto or by any

person or persons, company or companies on their behalf, the same shall be accounted for to or by the parties in the same proportion to which

they are entitled to profits."" Now, the Anglo-Indian Trading Company, the plaintiff, was not a party to this agreement, Exhibit I. The plaintiff is not

bound by it and he cannot claim any lights under it. We may look at it, no doubt, to ascertain what the intention of the parties thereto was, but that

intention had only reference to any mutual rights and obligations. Leaving this document, therefore, out of consideration, the intention of the parties

as expressed in Exhibit A seems to be perfectly clear. The Anglo-Indian Trading Company had to find all the monies that were required and they

were to take them back ""from the sale-proceeds of the ores as disposed of or shipped and they were entitled to get a commission of one rupee

per ton of ore despatched from the Railway Station. It seems to us quite clear that there was no intention to impose any personal liability on any of

the parties and the probabilities also are in favour of that conclusion. Mr. Eales, besides being really the Anglo-Indian Trading Company, was also

a partner with others, i.e., Subba Row and Brierly, and if there is no personal obligation imposed upon him, there is no reason to suppose that it

was intended that the others were to be personally liable.

We agree with the learned Judge also in his decision that the Anglo-Indian Trading Company did not make any advance on account of any

request made by the defendant and Subba Row. They made such advances in consideration of the agreement of the 17th February 1908. We

agree with him, therefore, that it cannot be treated as consideration for this promissory-note.

For these reasons, we dismiss the appeal with costs.