Chalmers and Another v Bhanjee (C.C. 31/1931 (Mombasa).) [1932] EACA 47 (1 January 1932)

## ORIGINAL CIVIL.

## Before DICKINSON, J.

## CHALMERS and GUTHRIE, LTD. (Plaintiffs)

## WALJI BHANJEE & CO. (Defendants). C. C. $31/1931$ (Mombasa).

Principal and agent—Agent's authority—Sale of ivory on consignment—Discretion of agent—Specific instructions to agent.

$Held$ (3-10-31):—That the instructions given to the brokers were not<br>such definite instructions as would remove from them the right<br>of using reascable discretion in accepting or rejecting "low"<br>bids, and in the absence of their implied authority.

Ross for Plaintiffs.

Patel for Defendants.

Patel referred to 1 Halsbury, paras. 350, et seq.

The facts appear from the judgment.

JUDGMENT.—Plaintiffs are London ivory brokers and defendants Mombasa ivory dealers.

In 1929 and 1930 the defendants through Mr. Reid, of Mombasa, sent two parcels of ivory by the Guildford Castle to the plaintiffs, in London, and later a third parcel by the Madura for sale.

The defendants drew bills amounting in all to £5,000 on the plaintiffs, but without contest and before sale of the ivory this amount was reduced by £1,000, the defendants paying this amount to Mr. Reid on behalf of plaintiffs.

The ivory market, vide reports from London, fluctuates considerably and it would appear that these parcels reached England at a time of depression.

The ivory was sold at the quarterly public auctions held in London. Part of the Guildford Castle consignments were sold in the January sales of 1930, and part at the April and July sales of the same year. The Madura parcel was sold in the July sale. The total nett proceeds of these sales failed to meet the reduced amount of the bills drawn against the ivory by a sum of £513-0-2, which amount the plaintiffs are now claiming from the defendants, together with interest amounting to The basis of the defence is that the defendants $£57-9-7.$ instructed plaintiffs to sell the Guildford Castle parcels at the January sales, 1930.

It would appear that the whole of the ivory ex Guildford Castle was offered for sale at the January sales, but certain lots were withdrawn by the plaintiffs owing, as they state, to the prices offered being, in their opinion, quite unsatisfactory. The plaintiffs also state, in their reports of the sales in January and April, that some lots received no bid at all owing, as they state. to the lethargy and indifference of buyers.

The defendants rely, in support of their contention that the plaintiffs were instructed by them to sell the Guildford Castle parcels at the January sales, on certain phrases contained in three letters written by the defendants to plaintiffs on 13-10-29, 2-12-29 and 22-12-29.

In the first letter they "hope you will try your utmost to obtain best prices in January sale." In the second letter they say "Please try your utmost to obtain best prices for the above (ivory ex Guildford Castle) shipment in January sale " and "we hope that in January, 1930, auction there must be little stock of ivory and therefore we have every hope that the prices will go high; we now await your good news regarding January sale."

In the third letter "Please try your utmost to obtain best prices for above two lots in January sale."

They submit that these words are definite instructions to sell at the January sale for whatever the lots were bid and are so strong as to take away any discretion from the brokers as to accepting low bids or not.

In a long correspondence, running for over a year, it is not until the plaintiffs tender their claim for the balance due to them that the defendants raise the submission that these instructions prohibited the brokers from withdrawing any lot from the January sale. In my opinion the words used are not such definite instructions as would remove from the brokers the right of using reasonable discretion in accepting or rejecting "low" bids and in the complete absence of any suggestion that the brokers acted unreasonably I must hold that they (the plaintiffs) acted within the scope of their implied authority in withdrawing certain lots the bids for which did not appear to them adequate.

I find that the plaintiffs are entitled to their claim in respect of the £513-0-2, being the balance due for short-fall on the amount advanced against the sale price of the ivory.

As to the sum of £57-9-7 claimed as interest, it seems to me that the defendants borrowed money from the plaintiffs on the ivory and borrowers usually have to pay interest. There is no allegation that the amount claimed is at an unusual rate and I think the plaintiffs are entitled to it.

I give judgment for plaintiffs as claimed and the costs of the action.