Agency-Authority of agent-Whether a son carrying on business witli his father.
has authority or had been held out as having authority. to bind the fathef
in releasing a debt

Partnership-Authority of partner-s-Acts which bind the firm-s-Notice of limitation on ostensible authority            

Partnership-Existence of-Father and son carrying on business together-
Whether partners-Sudanese custom .

Plaintiff brought an action claiming a certain sum as commission and
expenses in connection with the purchase of garad for the defendant, which
sum was admittedly owed. . The defence to' 1Iieiiction was that plaintiff's
son signed an account with the defendant whereby he gave up this sum,
and _ that the son had authority as a partner or as agent to bind the plaintiff.                                       

Held: That on the facts, the act of a son in \ signing an acco~t
whereby certain undisputed claims of his father were surrendered was not
binding on the father because if the son was not a partner he had no'
authority and had not been held out as having authority, and if he was a
partner his authority was limited to the knowledge of the. appellant and,
further, the act was not one within the scopeof his ostensible authority as. a partner.                                                                .

Per Dun C.l.: Where a father is conducting business and uses note .
paper ·headed 'as in this case "Sayed Hussein Ghariba & Sons," it does not
necessarily follow that the son is invested with all the powers of a partner,
and people who trade in Sudan recognize this and do not regard the son as
having any power to bind the firm outside the most ordinary daily transac- tions.                                                                     

English Partnership Act 1890, s. 5.

Appeal

March 3, 1925. Dun C.J.: In this case Sayed Hussein Ghariba
is plaintiff in an action against Suliman Ani claiming a sum of about
£E.70 for his commission and expenses in connection with the pur-
chase Jf garad for the defendant which sum was admittedly owed by
the _9!fendant up to August 29, 1922: The defence to the action is
that Hassan, the plaintiff's son, on that date signed an account with the

~efendant whereby he gave up this sum and that Hassan had authority

        as partner or as agent to bind the plaintiff.                                                                                                                                                

• Court: Dun C.l., H. Peacock and Davidson JJ.

The plaiDtift resides and carries on business at Kereima and
elsewhere in Dongola Province and the defendant resides and carries
on business in Khartoum North.

The action was instituted and heard in Dongola Province and judg-
ment was given in favour of the plaintiff. On appeal, to the High Court

. this judgment was set aside and the case ordered to be reheard. On
the rehearing judgment was again given in favour of the plaintiff. The
defendant appealed to the High Court and the appeal was dismissed and
he has now by leave appealed to the Court of Appeal. On the hearing .
of this appeal the plaintiff was absent and unrepresented. The first
suggestion that this plaintiff should give up this sum was made in a
letter dated August 13, 1922, in which the defendant asks him to do so.

On August 14th, before the letter of the 13th could possibly reach
the plaintiff, a letter was written by the plaintiff to the defendant, to
which Hassan added a footscript, which he signed with his father's
name, announcing his own approaching visit to Khartoum and asking
the defendant to meet him and, to discuss another matter of' business
with him,· "and he will inform you of our instructions and he will
represent me in all your requests, if you need any demand he will
inform you and please pay him the amount of the' garad ~ii also we
have 110 sacks of garad if you will buy them delivery at HaIfa and
please assist him."

On August 21 the plaintiff wrote a letter to the defendant which is
obviously a. reply to his letter of the 13th and which I read as being
a polite refusal to entertain the proposal that he should give .up his
commission and expenses, at the very least it is a protest against the
proposal.

On August 29th Hassan signed an account for Sayed Hussein
Ghariba and Sons whereby he gave up the sum in dispute. Hassan
returned to Kereima next day. It is alleged by Hassan that the de-
fendant made him drunk and induced him to sign when he was drunk~'

        I do not think that is sufficiently proved.                                    

On November 3, and again on November 10, the pI8intiff wrote
to the defendant definitely refusing to give up the sum in dispute. I
am unable to see from the correspondence produced before us any. au-
thority conferred on Hassan or any holding out by the plaintiff that
Hassan had any authority to bind the plaintiff by giving up this sum
unless Hassan was the plaintiff's partner and had authority as such .
partner to do so.

There remain therefore the questions whether Hassan was a part-
ner of the plaintitl, whether if so he had authority as such partner to
settle the account so as to bind the plaintiff and if he had ostensible
authority whether that authority was limited to the knowledge of the
defendant.

I think the last question must be answered in the affirmative hav-
ing regard to the letter of August 21 referred to above.

I think the first and second questions must be answered as fol-.
lows: Hassan was associated with his father in the business, but it
is not clear that he really was a partner in the sense in which the
word is used in Englisb and Egyptian law. I think that where a father
is conducting a business and takes his son into the business . and uses
notepaper headed as in this case EI Sayed Hussein Ghariba & Sons
it does not necessarily . follow that the son is invested with all the
powers of a partner, and I think that people who trade in this country
recognize this and do not regard the son as having any power to. bind
the firm outside the most ordinary daily transactions.'

But it is not necessary to base the decision on this point as the
answer to the third question is conclusive.

Supposing however that Hassan had all the powers of a partner
under English law, I' doubt very much whether the act which the de-
fendant alleges that Hassan did come within the description, given.in
section 5 of the Partnership Act 1890,1 of acts which bind tfre firm,
viz., "any act for carrying on in the usual way business of the kind
carried on by the firm of which he is a member."

The act alleged is an agreement to give up a sum of money due
to the firm in consideration of a promise to put very large business
in the hands of the firm -in the future, and I do not think: this can
properly be described as an act for carrying on the business of the
firm in the usual way.

1 Section 5 of the Partnership Act reads as follows: "Every partner is an
agent of the firm and his other partners for the purpose of the business of
partnership; and the acts of every partner who does any act for carrying on in
the usual way business of the kind carried on by the firm of whicli he is a
member bind the firm and his partners, unless the partner so acting has in .fact
no authority to act for the firm in the particular matter, and the person with
whom he is dealing either knows that he has no authority, or does not know
or believe him to be a partner.

I agree with the learned judge of the High Court that there was
no consideration arising out of the alleged giving up of a claim by
the defendant for inferior quality and short weight of the garad de-
livered. I do .not consider there was any estoppel arising in the cir-
cumstances of this case by the delay in repudiation from the beginning
of September to the beginning of November.

I think the appeal 'must be dismissed with costs.

Peacock J.: The English law to be applied to this case is clear,
but the difficulty appears to me to lie in the application of the principles
of law to the facts of the case. The difficulty is increased by reason
of the evidence on important points not having been taken by the court of first instance.                  

There is only one rule for determining the existence of a partner-
ship: that an examination is necessary of the facts of every particular
case for the discovery of the true contract between the parties.

If a partnership existed, it is further necessary to ascertain from
the facts of each particular case whether or not a partner has power
to bind the finn; has he acted either in the ordinary course of the
partnership business or by virtue of special authority or has there been
what is called a "holding out:" It may be necessary further to ex-
amine the facts to discover whether the acts of a partner have or have
not been ratified.

EI Sayed Hussein Ghariba carried on business in Dongola Pro-
vince: and the following heading appears on the paper of the business:

Sayed Hussein Ghariba & Sons

Merchants, Farmers, Agents at
Kereima, Marawi, Tangasi, Sudan

There were business dealings between Sayed Hussein Ghariba
and Suliman Ani. These dealings commenced on April 2, 1922: All
correspondence was between Sayed Hussein and the defendant and
an extensive business in the purchase by the plaintiff for the defendant
of gar ad on commission was carried on. It appears also that the
plaintiff was buying skins for the defendant (see letter April 2, 1922).
On August 13, 1922, there was a balance due from the defendant of
£E.S7.340 m/ms as appears in a letter dated that day.

On August 14, 1922, Hassan the son of Sayed Hussein came to
Khartoum. On August 29 Hassan made account with defendant
forgoing this sum of £E.S7.340 m/ms.

On August 30 Hassan returned to Dongola. Nothing more
occurs about the garad until November 3, 1922, when Sayed Hussein
Ghariba writes demanding settlement of this garad account and other payments.                                                                   

Apparently 'Sayed Hussein wrote a letter early in September to
which a letter of September 7, is a reply, and also a letter of September
to which the defendant answers on September 14. This settlement of
account is not referred to. No reference is made until November 1922,
and from this time onward the parties are in disagreement.

Was Hassan a partner with his father in the business at Kereima
or elsewhere? The chief clue is a letter of September 2?, 1923, by
Sayed Hussein to the District Commissioner. He states that he has two
.sons one named Hassan and the other named Hussein. Hassan has
work for Gellatly Hankey and Co. and Hussein has a shop at Tangasi,
but his (the father's) business at Kereima was carried on by himself
(the father) alone.

In a note to Hussein at the foot of defendant's letter of April 2,
Sayed Hussein directs his son to buy garad and skins which does indi-
cate that Hussein was assisting the father in the garad dealings with
the defendant. This is not evidence, but it is an indication that if
evidence had been taken, Sayed Hussein would have denied Hassan's
partnership in the. Kereima business.

Having regard to the fact that all the correspondence between the
parties was between the father and defendant and to the business rela-
tions so far as they appear of Sayed Hussein and the defendant, I am
not satisfied that a court would be justified on the evidence in holding
that a partnership was established between father and son of any sort.
The paper heading means little in the Sudan and is unlikely to deceive
any merchant of Suliman Ani's experience. Further evidence for the
establishment of a partnership was necessary and this evidence it was
for the defendant to produce. The paper heading does not necessarily
mean that the father and sons had a partnership business at the three
places mentioned.

It would have been proper for the court of first instance to take
evidence of the business relationship of father and son and also to fill
up a gap by taking evidence of what occurred between the date of
Hassan's return at the end of August and November 3. The explana-
tion why this was not done is clear. The defendant failed to put in an
appearance, or to produce the document of alleged settlement.