* Court, Bennett, C.J., Platt t J. and Ahmed Abbas t D.J.     

course of such business to sell and dispose of the capital assets.                                  

. Therefore, the second agreement wa.s not valid.

(ii) Plain~iff, however, was entitled to. and did ratify the
first agreement. First defendant was, to the knowledge of the
second defendant, acting as plaintiff's agent as to this agreement,
and seoond defendant must now make the account he expressly under-
took to make therein.

Pl?eal.

~.Ull:e.).S, 11.~·~O?:, !leunett. 'C.J~ .s . This is an appeal from a decree of the
Judee 0:\ tho HiGh Cour·t, Ka.ssa.la, in a. 'suit in \'lhich the plaintiff. claimed
from the first and second defendants, jointly, the return of a shop and

of certain property therein of the estimated value of LE.20 and of LE.75
being his share in the stock in trade of a partnership between himself

and the first defendant which he left in the hands of the first defendant
in July, 1943 and which was sold by the latter to the second defendant

in December, 1943.

The plaintiff and the first defendant entered into partnership in

the carrying on of a shop about the· .beginning of March 1941, and in

July 1943, when the plaintiff, a Yemeni, was about to depart for Yemen,

he left the first defendant. in charge of the shop to carry on the

business thereof for their joint b~nefit. On July 26,1943, the.first
defendant signed a document in which he admitted the partnership; that
the value of the stock as at that dat~ lias LE.150.4lm/ms; that the

ca'id ctock-in-trade was held in half shares, and that the. plaintiff had
advanced him the money to pay for his1ia.lf share therein. After the
departure of the plaintiff the first defendant appears to have fallen

into bad vlays, and by November 1943, he had exhausted the greater part

of the stock-in-trade. He thereupon entered into an agreement to sell

the shop outright to one Ali Yahia Nazir for the sum of LE.50. When the
news of this proposed transact ion got around the friends of the plaint iff,
including the second defendant, stepped in •• to save the shop for the

plaintiff, and as a result an agreement was made on November 23, 1943 in
the following t~rmss

I, Muthana. Nazir El Yamani admit, 'I'lhile I am in sound mind and
health, free from all legal obstacles, that the sum of LE.S1 in cash
debt is due from me to Ahmed Yousif El Higazi, and I am read;y" to pay

it to him ~ter two months from the date, and Ahmed ~ousif must pay out
of his pocket a new capital to the shop for running it and I will be
entitled to t of the profits. I handed him all the equipment of the
shop, scales, etc., free from goods. - Ahmed Yousif to pay the rents of
the shop belonging to El Saqa and Bersi in the name of Muthana Nazir.
After settling the amount due from me to Ahmed Yousif, I will pay a
oapital equal to his ca.pital to be held in partnership in half shares

in profits and capital. If Muthan~ Nazir fails to repay the amount due
from him, he will be entitled to one fourth of the profits as shown above
and the shop to be in the hands of Ahmed Yousif. until appearance of
Mohamed Osman, and then parties to make account. I, Ahmed Yousif, would

be respqnsible to settle debts.

(Sgd) Ahmed Yousif (Sgd) Mut,hana Naz ir

Witnesses:(~gd) Abdalla Mohamed (Sgd.) Ali Yahya

If Mohamed Osman appeared and wanted his plaoe (meaning shop),
there is no objection to pay to Ahmed Yousif his rights and take'
over the shop.1I

Following this agreement the first defendant appears to have continued
his running into debt, and on December 16, 1943 he executed a document
which waa headed "Discharge Certificate," in which he declared that he

sold the premises in question, including the shelves, scales and electric
l&aps, to the second defendant for LE.I05, which sum was,declared to
include LE.25 debts due to the partnership which he undertook to collect
to'the credit of the purchaser, the second defendant. The latter

agreement was clearly intended by the first defendant to be a sale of

the partnership business to the second defendant.

The plaintiff returned from Yemen in May 1944 to find the second
defendant in poSsession saying that he had purchased the, "Ihole shop
and equipment from the fir.at defendant. On May 27, 1944 the plaintiff
started this action.

, For some reason which I have been unable to follow, the plaintiff's

claim for the delivery and possession of the premises was put aside by

the learned High Court Judge. The plaintiff's claim against the second
defendant, being essentially a claim under the agreement of November 23,
1943, necessarily included a claim to recover possession of the property,
and this claim was set out in his original plaint. I cannot find in the
record any express waiver of this claim by the plaintiff, end J: do not
think that the issues which were framed involve any implied reinmoiation
by him of that claim.

The learned High Court Judge found as a fact that the second defendant
entered into a partnership with the first defendant, and that he had no
~ufficient reason for thinking that the shop premises or the property
therein subject ,to the plaintiff's claim beionged to the first defendant)
and he gave judgment against the'first defendant for the amount of the
plaintiff's half share in the stock in trade as at July 25, 1943 and
against the second defendant for the return of the shelves and other

, movable property in the premises which the second defendant had purchased
from the first defendant. From this judgme~t the second defendant
appealed and the plaintiff entered a cross appeal-~

On this appeal, the second defendan. sought to show that he had
every right to think and that he did in fact bona fide think that the
first defendant was the sole owner of the shop premises and the property
therein, or alternatively that the first defendant had authority to sell
the same to him. In my opinion, the second defendant fails upon both
these points. He knew that there had been a partnership bet'l',een the
first defendant and the plaintiff in carrying on the shop, and kneu that
the pla~tiff had left the first defendant to carryon the shop in h~
absence. It was he, among others who intervened to prevent the sale'
outright of the business premises, the property therein and the remaining
stock-in-trade to Ali Yahya Uazir, with the express purpose of preserving
the plaintiff's rights. His action in so doing is quite inconsistent
with his thinking that the first defendant had the authority to dispose
thereof, or that he Has the sole owner thereof. Muoh more than that,

in the ensuing agreement between him and the first defendant, he expressly
recognised the plaintiff's right and undertook, on the latter's return

and on a settlement of accounts be tween them, to hand over the shop
premises to the plaintiff. Is this undertaking to be construed as a
promise which related solely tq the shop premises? Was the second
defendant at liberty thereunder to remove the shelves and the scales,
which were essential to the carrying on of the business, and to hand

over to the plaintiff a mere husk? Of course not. First, because such

a course is contrary to the whole purpose of the agreement of November

23, 1943, which related not merely to the shop premises but necessarily
also to the business carried on therein, and second, be~ause, if that

had been the purpose, there would have been no point in mentioning
expressly the taking of aocounts in connection liith the 'handing over

of the premises by the second defendant to the plaintiff. If the second
defendant in the agreement of November 23, 1943, expressly recognised

his liability to hand over the shop premises with the necessary shelving

and the scales, how can he subsequently bona fide have thought that he

could purchase all this property from the first defendant outright?

Against this major consideration, the minor considerations urged upon

us that the shop premises were let to the first defendant alone, and

that the business was licensed in his name.alone, in my opinion, carry

very little weight. It is also urged that, when the seoond defendant

went to take over the premises, the landlord dem~!ded two months arrears

of the rent, and only let the second defendant into possession on his

pa;yment of the arrears, and on his undertaking to be personally respons 11:1e
for the rent in the future. The act of the second defendant in the agreement

to 'these terms without making a:ny new arraneement with the first def'~t

. seems to me to show that the seoond defendant still regarded himself' as:'·
act'ing under the agreement of November 23, 1943. Under that agreement,

it was not unreasonable for him to make himself responsible for the

rent. As for the arfears of rent, he was obviously iri a position. to

"reat this as a debt due from the first defendant or, when he came to

take over, from the plaint iff.

The l'~sition in law, as I understand it,. is that in enhring into
the agree~t of November 23, 1943, the first defendant, so far as the

shop premises, the shelves and the scales were concerned was, to the

knowledge of the second defendant, acting as the agent of the partnership
between himself and the plaint iff, and .therefore as the agent of the .
plaintiff. The plaintiff, if ratification were neoessar,y, ratified that
agreement when he returned from Yemen and requested the seoond defendant
to hand over the shop.

In entEj!ring into the subsequent agreement of December 16, 1943,
the first defendant exceeded his authority as the plaintiff's partner •

A pa.rtner has authority to bind his firm in the ordinar,y. course of the

business of the partnership. It is no part of the ordinary course of
such business to sell and dispose of the capital assets, and the seoond
defendant having entered into an agreement, one of the purposes of
which was to safeguard these capital assets for the plaintiff, cannot
now turn round and sey either that .the first defendant in fact had
authority, or that he thought that the first defendant had authority t.o
dispose of those assets.

In the result, so far as the plaintiff was oonoerned, the .agreement

of Deoember 12, 1943, .was a oomplete nullity. That being so, their
relations are governed by the agreement of .. November 23, 1943'- Ullder

that agreement, the second defendant is bound, on demand by the plaintiff
within a reasonab1a time, to hand over the premises to the plaintiff
together with the shelving and the scales, subject only to settlements

of aooounts between'them with a view to, giving the second defendant what
are termed "his rights." Those rights appear to me to be a reasonable
opportunity to rrui.ke other arrangements for or to olose down the business:
oarried on by him at the shop premises, and to be indemnified 'against

any expenses properly incurred by him in preserving the shop premises

and the property therein. I do not think that it would be reasonable to

read into the agreeoent either an obligation on the plaintiff to take
over the current trade debts or an obligation on the second defendant
to sell his stock-in-trade, and be left •. lith the difficult task of
colleoting his trade debts otheI'liise than in conjunction with continued,

business.

Bearing in mind that the plaintiff has already been leept out of
the premises during one year of litigation, I do not think that the
second defendant can reasonably ask for more than three months in which
either to liquidate his business or make other agreements. It is Urged
that any order for possession should be conditional upon the payment by
the plaintiff, first, of the LE.80 paid by the secQnd defendant for the
good'l'lill of the business, shelving and other property in the shop under
the agreement of December 16, 1943, and second, of the arrears of rent

, paid by him Hhen he was into possession amounting to LE.4. The agreement

of December 16, 1943, being null and void so far as concerns the plaintiff,
there can be no possible obligc.tion upon him to repa,y to the second defendant
the LE.80·paid by the latter to the first defendant thereunder. So far as
the LE.4 are concerned, I think that this Has obviously an expense incurred
for the preservc.tion of the business for the benefit of,the plaintiff, and
that the latter should as a condition of regaining possession repay this

sum to the second defendant.

The plaintiff's cross-appeal is {or recovery of possession of the
shop premises, in addition to the shelving and scales awarded him by
the learned High Court Judge, and for the reasons stated above I think
that the cross-appeal succeeds.

There was no appeal or cross-appeal so far as conc~rns that part

of the judgment under vrh i.ch the Learned Judge of the High Court gave '
judgment for the plaintiff against the first defendant for the sum of

LE.75~205 m/ms. _______________________________ •

Subject to the payment by the respondent of the ap~ropriate fee

in regard to 1;he claim for possession both here and in the court belo\1,

I think, therefore, that the appeal should be dismissed and the cross-

appeal allo\'1cd, and t.hat t.he de cr o e appeull!u
from should be varied by adding thereto ru1 order for the second defendant
to give up possession of the shop premises in question to the plaintiff
on September 30, 1945. I think that the LE.4 arrears of rent due to be

repaid by the plaintiff can be adequately dealt with by giving the second
defendant a set-off for that amount against the cost ordered to be paid
by him as hereafter mentioned.

AJ3 to costs t I think that subject to the set-off aforesaid the'"
second defendant should p~ to the plaintiff such of the court fees in
the court below as related to the claims for possession of the premises
and the delivery of the movable property therein and should also p~
the plaintiff's costs in the appeal and cross-appeal. AJ3 to costs of
the cross-appeal "lhich vlere occasioned by a mistake of the court t I
think that the court fees payab'l e therein should be remitted.

Platt t J.:I concur.

Ahmed Abbas, D.J.: I concur.

Appeal dismissed.

Cross-appeal alloHed.