Account-Partnership-Agreement respecting grain to be obtained bv one
partner-Failure to producc=-Mauers to be included in the accounting

Contract-s-Parol evidence rule-s-Offer of oral testimony by a third party :0 ex-
plain or 'clarijy the terms oj a contract between the third party and ~e of
the litigants

Partnership-Agricultural products-Agreement to share in gain or loss on a
grain crop-lnterprctatioTl-A ccounting between the partners=-Eiject of a
partner's contract with the Government

1. Where one party had a contract with the Government which pur-
ported to be a sale of a whole crop on land irrigated by a pump scheme,
and the other party agreed to share equally in the profits or losses on the
transaction, the former party was obligated to make the whole crop avail-
able for partnership purposes and. failing to do so, the latter may maintain
an action for account in which the amount due. him will be determined by
considering the day on which the former part)' might reasonably have pro-
cured the grain and the price of such grain on the day thereafter when he
might reasonably have sold it in the market. The latter partner canna: re-
cover for his loss or unauthorized advance sales of the grain.

2. Where a person has a contract with the Govemrneru. relating to the
purchase of a grain crop, and he then enters into a partnership with another
person respecting the subsequent disposal of the same crop, parol evidence
which would be admissible (0 explain or clarify the first contract in an ac-
tion between the parties to it is not admissible when tho: action is between
the parties to the second contract.

Appeal

April 21, 1936. Gorman J.: 1 will read the judgement ol Owen
C.J. with which I concur.

* Court: Owen c.J., Gorman ami Creed J.1.

This action was commenced as a claim for payment of certain
specific sums, but it was in fact, and has properly been treated as a
claim for an account between the plaintiff and the dcfendent, who
were partners in two transactions. The partnership agreements were
in writing, and related to two contracts which the defendant had
entered into with Mr. Colvin, inspector of Agriculture, on behalf of
the Sudan Government. One of the latter contracts, the Gandatto
and Kitiab contract, was in writing, the other, the Bawga contract,
was not.

Before the judge below the main issue was as to the right of
the plaintiff to bring into account the loss suffered by him by reason
of his forward sales, made without the consent of the defendant.
In view of the weight of evidence which defendant brought to show
that such sales required the consent of the defendant, no appeal has
been brought against the judge's finding that the sales were unau-
thorized, and that no action for damages based on implied authority
could be maintained by the plaintiff.

In the Court of Appeal two points are taken by the appellant,
who was the plaintiff below, (1) that the respondent must account
to the appellant for the whole crop produced, and (2) that the
respondent, having failed so to account, is. apart from any question
of appellant's authority, liable to the appellant for the damage he has
suffered.

The second point can be disposed of shortly. The appellant is
attempting to succeed by indirect means when the direct means em-
ployed in the court below have failed and, while using language
proper to the relation of partnership, to obtain the relief proper to
a purchaser suing for damages for non-delivery, instead of the relief
proper to a partner claiming that the profits, which would have been
earned but for the default of the other partner, should be brought
into account. On this point the appeal is dismissed. But dismissal
of the appellant's claim to such damages as a purchaser would be
entitled to, where vendor failed to deliver, does not dispose of his
claim that the respondent ought to account for the whole crop. If
the respondent was under an obligation to produce the whole crop
for partnership purposes. and did not do so-and whether he W::JS
under such an obligation will depend on the terms of the partnership
agreement-then the appellant is at least entitled to claim that, in
taking an account between the partners, the profits that would have

been earned but for the respondent's default shall be debited against
him.

In settling the issues Harrison P. J. put in the forefront the
question of the true interpretation of the contracts between Mr. Col Yin
and the respondent and the true intention of these two parties. Only
later did he come to consider the position. between appellant and
respondent, and -then he approached the matter on the footing that
the creation of the two partnerships between appellant and respondent,
and that, in the absence of fraud, no claim could arise in favour of
the appellant against the respondent based on the ostensible meaning
of the earlier contracts. In this J think he did not approach the
matter from the proper angIe. He ought to have asked himself
whether it was not a term of one or both of the partnerships that the
respondent should make available for the purpose of the partnership
certain quantities of grain, namely the grain that apparently the
respondent was entitled to obtain from Mr. Colvin. It is the terms
of the partnership between appellant and respondent that must deter-
mine their rights and liabilities inter se, and they may be quite
different from the rights and liabilities of the respondent vis-a-vis
Mr. Colvin.

It is ill evidence that, before the partnership agreement was
drawn up, the appellant was shown and had before him the Gandatto
and Kitiab contract between the respondent and Mr. Colvin. What-
ever may have been the true intention. the ostensible meaning of
that contract is not in doubt. It purported to be a sale of the whole
crop. Turning now to the partnership agreement. we see that the
parties are to be partners in half shares in all the crop agreed upon
with the Inspector of Agriculture, the whole crop of the two pumps
subject to the conditions, of the Inspector, and they are to share
equally in the profits after payment out the contract sale prices, and -,
after PT.4 an ardab is paid to the respondent. I· thi n k tha t, unless

it can be shown that the appellant knew that the respondent was not

in a position, and did not intend so to contract, the true meaning of
this contract is that the respondent is obliged to make available for
the partnership the whole of the crop of the two pumps, subject to
the conditions of the Inspector, by which is to be understood, subject

to the terms laid down by the Inspector in the written agreement made

by him. lJhis the respondent has failed to do, and I think that in
taking the partnership account the appellant is entitled, not to the
damage he had suffered through the forward sales, but to have the