Appeal Court. 16th Dee., 1938. Appeal from Divisional Court.

Consolidated suits, complicated case tried without pleadings­ Claim against Bank~ for difference in price of Cocoa hypothecated by 1st Plaintiffs-2nd Defendants joined, also 2nd Plaintiff-Counter-claim by 2nd Defendants against 2nd Plaintiff for damages for breach of contracts-Claim by 2nd Plaintiff against 2nd Respondents-1st Plaintiffs' claim against 1st Defendants dismissed, small part only of 1st Plaintiffs' claim against 2nd Defendants allowed, on counter­clai1n 2nd Defendants recover judgment against 2nd Plaintiff, whose claim in the second suit is disrnissed-Appeals by both Plaintiffs.

Held: (1) Claim of 1st plaintiffs against 1st defendants being founded on contract and there being no contract between those parties, claim mis­conceived and appeal dismissed.

(2) On 1st plaintiffs' claim against 2nd defendants, finding of fact of trial Judge upheld and appeal dismissed.

(3) Trial of the issues upon the counterclaim unsatisfactory for the following reasons:-

(i) The case was so complicated that pleadings were desirable.

(ii) Neither in the counterclaim nor in the opening of counsel was it disclosed whether the claim was for special or general damages.

(iii) The explanation of how the amount claimed, viz: £3,800, was

arrived at, was unsatisfactory.

(iv) The notice of counterclaim referred to the wrong agreement.

(v) A vital document was not produced.

(vi) Evidence of special damage was inadequate.

Further--doubt thrown on correctness of trial Judge's' finding of fact on important issues-Issues upon counterclaim remitted to be reheard upon pleadings.

(4) Trial of claim in second suit of 2nd plaintiff against 2nd defendants also unsatisfactory for the following reasons:-

(i) A vital document was not produced.

(ii) No clear separate judgment was given upon it, but it was treated as a set-off against the larger sum due on the counter­claim in the first suit.

(iii) In the Appeal Court plaintiffs' counsel said he had sued the wrong defendant.

Claim remitted to be reheard upon pleadings.

The facts are fully set out in the following judgment of the learned trial Judge :-

At the outset of this judgment 1 must disclaim responsibility for the form in which suit No. 4/19:17 comes before the Court for trial. Originally this suit was filed by the Central Province Farmers Group Limited (hereafter called the first plaintiffs) against the Bank of British West Africa Limited (hereafter called the first defendants or the Bank) as agents for Messrs. J. S. Bonitto and Company Limited (hereafter called the second defendants). As a consequence of arguments addressed to the Court on behalf of the Bank, P. 13. Anti was joined by the Court as a plaintiff and the second defendants were joined as defendants, the Bank remaining on the record as a principal defendant. In this action P. B. Anti has filed no statement of claim and I am unable to see that he makes any claim against either of the defendants. By his evidence he alleges that the fifty tons of cocoa, the subject matter of this suit, were the property of the first plaintiffs and he agrees that he has no claim in respect of the subject matter of the suit. Having been placed upon the record as the second plaintiff, he found a counterclaim had been filed against him by the second defendants and he thereupon filed suit in respect of other dealings which he had had with the second defendants. that suit is suit No. :\4/1937.

The filing of this second suit, which has been consolidated with suit No. 4/1937, gives a little more substantial ground for second defendants' counterclaim against a person who was making no claim, and it has been agreed between counsel for all parties that the two actions together with the counterclaim should be consolidated and tried together and also that the point would not be taken against second defendants that they had filed a counterclaim principally directed against a plaintiff who was claiming nothing from them in the action. The counterclaim of the second defend­ants would have had its proper place in suit No. 34/1937 taken by P. B. Anti against them. In any event second defendants' counterclaim against both plaintiffs has been admitted for trial by agreement. I may add further as a preliminary that was made known to me at the trial that the second defendants' Managing Director had made a special journey from England in consequence of these actions and there was a desire on all sides that all the matters outstanding between the parties should be decided and decided speedily. In these circumstances I have acceded to the laudable desires of counsel in this respect and have allowed these actions to be consolidated and tried at once although in my opinion discovery and admission of documents prior to the hearing and further particulars in regard to many matters would have vastly facilitated the hearing of the cases, have considerably clarified the issues involved and have rendered the record much more intelligible than it now appears

From the title of the suit, it would appear that both plaintiffs in suit No. 4/1937, were claiming relief against both defendants jointly and severally, but I have already said that I can find nothing to show that second plaintiff is making any claim at all. I therefore regard the claim in that suit as emanating entirely from the first plaintiffs. Next, the counterclaim of second defendants appears to be against both plaintiffs, but there is not a title of evidence to connect the first plaintiffs in any way with any transaction which is the subject of the counterclaim. I therefore propose to treat the counterclaim as against second plaintiff alone though it may well be that the failure of second defendants to substantiate their counterclaim may have an adverse effect on the defence of both defendants to the claim against them made by the first plaintiffs in suit No. 4/1937.

There are therefore three matters for discussion:­

      (1) Plaintiffs' claim against both defendants.

(2) Second defendants' counterclaim against second plaintiff and

(3) Second plaintiff's claim against second defendants.

These matters cannot conveniently be dealt with in the order given above. In order to get a proper view of the cases it is necessary first to consider the dealings of the second plaintiff with the second defendants, then to study the manner in which first defendants came into the transaction and finally to trace the entry and subsequent acts and deeds (or omissions) on the part of the first plaintiffs.

The second plaintiff has been a dealer in cocoa in the Colony for some considerable time and the second defendants are purchasers of cocoa in the Colony for sale on the London and other markets outside the Colony. The second plaintiff had had dealings in cocoa with Mr. Bonitto, the Managing Director of the second defendants' company before that company was incorporated and after the company was incorporated they entered into agreements together, two of which are exhibited in these cases as Exhibits C (1) and C (2). '1'he former of these agreements was for the 1935-36 season i.e. from 1.9.35 to 31.8.36 and the latter from 1.9.36 to 31.8.37. By these agreements the second plaintiff agreed to sell and ship and the second defendants agreed to buy cocoa on the terms and under the conditions set out therein. The agreements are similar in form, but are not entirely identical as to figures.

Clause 2 of the agreements sets out that the second plaintiff was to make offers which the second defendants might accept and after acceptance, it was provided (by clause 3) that the second defendants should open credits with the Bank against hypothecation of cocoa by the second plaintiff up to 9H % of the contract price. Credits were to be of two kinds-store credits and shipment. credits.

By clause 9 the second defendants agreed, if in their opinion there was likely to be a rise in cocoa prices, to open credits in favour of the second plaintiff against hypothecation for 200 tons (1935-36) /400 tons (1936-37) up to 75% (1935-36) /95% (1936-37) of the local prices before such cocoa was offered for sale to second defendants provided that the second defendants were to have the first refusal to purchase and in case of a refusal, the second plaintiff was to be free to sell elsewhere on repayment of the full amount advanced thereon together with all charges. These were the store credits, the shipping credits being for cocoa actually sold to the second defendants.

By the 29th May, ] 936, the second plaintiff had entered into the following forward contracts with the second defendants: -(Exhibit •• C4 ")

 

Contract No.	Date.	Quantity	Price per ton.	Shipping	Shipping Instructions.
		tons.		period.
150	28.4.36	50	£22 f.o.b.	Sept./Oct.	50 tons to London.
152	30.4.36	75	£22 5 f.o.b.	Oct./Nov.	25 tons to Cape Coast.
162	18.5.36	75	£2210 f.o.b. .	Nov.	25 tons to London.
					50 tons to London.
166	29.5.36	50	£23 5 f.o.b.	Nov./Dec.	To be advised later.

It is to be noticed at once that the contract prices were steadily but slowly rising prices.

Shipping credits were opened for each of these four contracts with the Bank as is evidenced by Exhibits C (5), (6), (7) and (8) all dated 29th July, 1936. (Credits 2268/36, 2268/37, 2268/38, 2268/39) ..

Earlier, on 22nd June, 1936, a store credit No. 3121/5 (Exhibit C 9) had been opened by second defendants for £2,300 relating to 100 tons of Middle Crop Cocoa shipment July / August.

Although a date for shipment is mentioned, this credit was, it seems, 0. store credit under clause 9 of the 1935/36 agreement (Exhibit C 1).

I can find no evidence that any cocoa was hypothecated by the second plaintiff under any of the shipping credits C 5, 6, 7 or 8.

Under credit 3121/5 (Exhibit C 9) fifty tons were hypothecated and in August the second plaintiff states that he offered that cocoa to the second defendants for sale by cable (Exhibit C 11) •• New I offer you fifty tons 27s. September shipment." (27s. refers to the price per cwt. equal to £27 per ,ton). This was accepted by the second defendants by cable (Exhibit C 13) but they required that shipment should be in October. That cable was dated 21/8/36. From subsequent correspondence it appears that at the time they accepted, the second defendants did not realise that they were accepting Cocoa hypothecated under credit 3121/5 (Exhibit C 9), that credit. being for Mid Crop Cocoa while the offer was for •• New" by which I understand Main Crop Cocoa is. intended. The second defendants by 0. letter dated 21st September, 1936 (Exhibit C 14) withdrew their acceptance and another fifty tons were· procured by second plaintiff and shipped to the second defendants at 27s. a cwt. No dispute now arises over those fifty tons of cocoa. A very serious dispute did however arise over the fifty tons hypothecated under credit 3121/5. The second plaintiff claims that by Exhibit C 15 he applied to the second defendants to release these fifty tons of cocoa for sale locally and that defendant having refused to accept his offer for this cocoa was bound to release it for sale under clause 9 of the agreement. C 15 is a cable and reads as follows: -27/8/36 "Referring to my telegram of 21/8/36 referring to your telegram of 21/8/36 (Exhibits C 11 and C 13) urgently require shipment per steamer during September must instruct B.B.W.A. release from middle crop credit. Telegraph beat bid twenty-five tons shipment per steamer in September." It is to be observed that here there is no intimation that second plaintiff desired to sell locally, he merely stated that he urgently desired to ship that cocoa during September and I am unable to hold that it was a clear request to the second defendants to release for sale locally.

On the 17th September second. plaintiff received a cable from second defendants (Exhibit C 17) "Reference your telegram of 27th suggest that you ~hip under credit £21 IDs. quantity hypothecated my company. Please reply immediately as the matter is urgent. Bid twenty-five tons 30s. November! to December shipment have opened credit B.B.W.A. tomorrow." (sic) To this second plaintiff replied with Exhibit C 18, a cable dated 19th September "Have not bought £21 IDs. reference to my telegram of 27th intended for 27s. grant release. Offer fifty tons October shipment 30s. If you cannot accept my offer please make nearest possible firm bid." To this C 19 (a cable of 21st September from the second defendants) stated Reference to your telegram of 19th quite impossible release must be shipped low price contract writing fully  Bid fifty tons October to November shipment 28s. 6d. subject to reply here by Monday 4 p.m." The second defendants also wrote a letter of the same date to second plaintiff (Exhibit C 14). The relevant portion is as follows: _It Credit 3121/5 .July to August. We understand that you now have fifty tons hypothecated under this credit, which credit was opened by us for Mid Crop Cocoa. You have confirmed that it is main crop cocoa. We have cabled to you twice about this and to-day have your reply. We, however, regret that we cannot agree to let you have 27s. f.o.b. per cwt. on this and have requested the Bank to instruct their branch that you should ship this fifty tons under Man's credit opened by mail on the l0th July for fifty tons at 22s. 9d. f.o.b. November shipment." (It is not quite clear to which contract or credit this refers, but presumably it is a portion of contract 162, credit 2268/38 (Exhibit C 7) although the price does not quite tally). This Letter presumably was received by second plaintiff about the 7th October and it is to be noticed that under contract 150 he was due to ship fifty tons by 31st October to London at £22 Os. 0d. f.o.b. That second defendants were Not entitled to force second plaintiff to ship cocoa under any particular credit seems clear, but I do not see any evidence of such duress or undue influence exhibited which would render the contract voidable at the option of second plaintiff. It appears that in fact second plaintiff did ship these fifty tons under one of these low priced contracts. It seemed strange at first sight that second defendants should suggest that in October second plaintiff should ship on a contract for shipment at the, end of November, hut Mr. Honitto has explained this. He points out that the second plaintiff was liable, under four contracts (Nos. 150, 152, 162 and 166) and that it was immaterial, if ho intended to carry out his agreements, under which contract he shipped. It is to be noticed also that the contract under which it was suggested he should ship was at a slightly higher price than that which first fp.1l to b(' fulfilled. This does not look like the use of pressure or undue influence on the part of the second defendants. I do not find that the shipping of these fifty tons by the second plaintiff was made under duress or undue influence, nor can I find any evidence of second defendants having broken their agreement.

It now becomes necessary to make some general comments on the situation as a whole as shown by the evidence. It is clear to m~ from the evidence that the four low-priced contracts which the second plaintiff entered into became, through the rise in cocoa prices between the time of making the contracts and the dates fixed for shipment, very unfortunate transactions from his point of view, but it has not been suggested in these actions that they were in any way tainted by fraud, misrepresentation or undue influence on the part of the second defendants. Second plaintiff made no attempt to obtain cocoa to fulfil these contracts. He spent his time making offers at higher price's and what cocoa he did hypothecate was hypothecated under the credit under clause 9 of the agreement. I am entirely satisfied that the second plaintiff never had any intention of fulfilling these contracts after local price's rose so as to make them burden­some. I cannot see that he deserves any sympathy in the course he has adopted. It seems clear to me that second plaintiff was all along hoping that these onerous contracts would ~e cancelled by second defendants. In their letter of 3.11.36 (Exhibit 2 M) they (second defendants) say that they realise what a loss these contrasts have been to him, but they point out that there is no question in London of a contract being looked upon as anything but a contract which must be kept. His hopes therefore failed and he has defaulted in respect of 200 tons of cocoa.

I have now reached the stage when I can deal with the second plaintiff's claim against the second defendants and the second defendants' counter­claim against the second plaintiff except in respect of the 52H tons sold at £49 l0s. 0d. which is the subject of the first plaintiffs' suit.

To take the second plaintiff's claim first:-

(a) The first item is for £1,136 being the difference in price between the fifty tons shipped by the second plaintiff on a low-priced contract and the ruling price when that cocoa was shipped. I have already held that that cocoa was shipped by the second plaintiff without such conduct on the part of second defendants as would entitle him to set aside the contract. In fact it is the only portion of the four low-priced contracts which he has fulfilled. I dismiss his claim on that head.

(b) The item of £1,047 17s. 3d. is taken from second defendants account-£47 17s. 3d. a balance due on previous accounts and £1,000 profit made in London by second defendants for second plaintiff. Seeing that the second plaintiff himself claims this £1,000, I was more than surprised that his counsel should have cross-examined Mr. Bonitto on this matter at length. For this amount of £1,047 17s. 3d., the second plaintiff has been credited in second defendants' accounts. As I am going to find that second plaintiff owes more than this amount to the second defendants, it is unnecessary to deal further with that amount at prpsent. I reject the claims for interest and I find that there has been no breach of contract on the part of second defendants.

As to second defendants' counterclaim, it is, according to the notice of Counterclaim, "for £3,800 damages for breach by the said plaintiff P. B. Anti of contracts made by him with the second defendants to supply 200 tons of cocoa, the said plaintiff having failed to fulfil the said contracts and thus to carry out the terms of an agreement dated the 26th August, 1936. "

The point has been taken for second plaintiff that the contracts alleged to have been broken were made under the 1935/36 agreement and not under the agreement specified in the counterclaim.

This is true, but in view of the facts that the second agreement followed immediately upon the first and was in substitution for it, that the terms (save in respect of some figures) were identical and that the breaches of contract are alleged to have' taken place during the period covered by the second agreement, I do not think there is such substance in the objection as to entitled  the second plaintiff to have the counterclaim struck out on that ground. How this sum of £3,000 is arrived at is not particularised in the notice of counterclaim, but there have been no pleadings in this action. Mr. Bonitto has given evidence and his account which h(' had delivered to the second plaintiff has been put in evidence by second plaintiff. Mr. Bonitto has given evidence that in consequence of the failure of second plaintiff to supply 200 tons of cocoa under three of the four low-priced contracts, he had to buy cocoa at £46 per ton f.o.b. and the difference between that price and the contract price amounts to £4,743 15s. 0d.

These matters might have been proved in more detail, but I see no reason to doubt Mr. Bonitto's evidence on oath supported by the ' account sent to second plaintiff that these 200 tons were bought for the amount stated to fulfil contracts which second defendants had to carry out in this manner through the default of second plaintiff. The breaches are not denied by second plaintiff, but he has sought to justify them by alleging an earlier breach by second defendants. On this matter r have found against him. r therefore find that second plaintiff broke his agreement by failing to supply 200 tons of cocoa and that by reason of those breaches the second defendants have suffered the damage now claimed by them from second plaintiff and set out in Exhibit "D 11" under "contracts out­standing and closed out as under." I therefore find for second defendants on the counterclaim (excepting for the present the item of cocoa owned by first plaintiffs) for £4,743 15s. 0d. less £1,047 17s. 3d., i.e. £3,695 17s. 9d. No general damage has been satisfactorily proved and r give none.

I now turn to the first plaintiffs' action against both defendants.

The second plaintiff gave evidence to the effect that second defendants' Managing Director, when he was in the Gold Coast in June and July, 1936, asked him to get people to ship cocoa through him to the second defendants (p. 189). This is denied by Mr._ Bonitto (p. 195) and second plaintiff admits that Mr. Bonitto refused to open credits in the names of persons other than second plaintiff. The second plaintiff says that the refusal was due to the cost of opening a credit while Mr. Bonitto points out that the cost of opening a credit is the price of a postage stamp. On this evidence that no difficulty in finding that the reason for Mr. Bonitto's refusal was that he intended to have dealings with second plaintiff whom he knew and whom he believe to be a man of substance, but did not intend to deal with persons of whom he had no knowledge.

The first notice which second defendants appear to have had (apart from one ton out of twenty-six tons (Exhibit D 12) which is now seen to have belonged to another person and not to second plaintiff and to have ~o belonged to the knowledge of second defendants' agent in Accra) that second plaintiff was inducing other people to ship cocoa through him on credits opened for him was Exhibit C 20, a letter of 19th September, 1936 in which second plaintiff writes: -" As I promised r have been able to persuade some friends to ship their cocoa to you instead of selling locally which of course I do not expect any remuneration from them neither yourself, but simply to assist in building your organisation." The words "As I promised" seem to suggest that Mr. Bonitto had agreed to this previously, but by his reply on 2nd October, 1936 (Exhibit 2 B) Mr. Bonitto wrote that he was glad second plaintiff was getting friends to ship cocoa through him, denying knowledge that such arrangements had been made and promising assistance, but pointing out that any shipments which came through second plaintiff were direct from second plaintiff to second defend­ants and that second defendants looked upon second plaintiff as principal and were not to be drawn into any arrangements second plaintiff might have 'with his friends. This was a polite but clear refusal on the part of second defendants to deal with any persons other than second plaintiff or to deal with second plaintiff on any other footing than that of a principal. Prior to this, second plaintiff had entered into an arrangement with first plaintiffs or with Mr. Raizel their Managing Director, to hypothecate cocoa belonging to first plaintiffs with the Bank on credits opened by second defendants in favour of second plaintiff. Mr. Raizel tried in evidence to maintain that the first plaintiffs themselves had hypothecated their cocoa through him, but when faced with the letters of hypothecation (Exhibits" 1B to " 1 ,H ") signed by P. B. Anti" simplicator, he was unable to deny that second plaintiff had acted as their agent for this purpose. The dates of these letters of hypothecation are instructive. The first is of 5th October, 1936 for thirty-two bags, then follow sixty-one bags on 26th October, ninety-one bags on 9th November, 123 bags on 23ru November, ninety-three and sixty-three bags on 7th December and eighty­ two bags on 19th January, 1937. The second defendants' letter (Exhibit t, 2 B ") being dated 2nd October, 1936, it is to be presumed (as it is not denied) that sec,1nd plaintiff received it after he had made only his first hypothecation of first plaintiffs' cocoa. All the other hypothecations were made by second plaintiff with the knowledge that second defendants had refused to der.1 with any persons other than the second plaintiff: This seems to me to afford very clear proof of mala fides on the part of second plaintiff. It is contended' for the plaintiffs that the Bank knew 'or should have known that this cocoa belonged to first plaintiffs, because it was registered in the inspection registers of the Department of Agriculture (Exhibits A 1 to A 5) at Winneba as being owned or consigned by first plaintiffs, because it bore their marks and because the money advanced on this cocoa was paid by the Bank's branch at Winneba to Mr. Raizel, first plaintiffs' Managing Director. There is no evidence, however,' that the Bank inspected or should have inspected the records of the Department of Agriculture, that the Bank knew or should have known first plaintiffs' marks or that the Bank knew Mr. Haizel as the Managing Director of first plaintiff-company. The first plaintiff-company is not mentioned in any document communicated to the Bank until later. The Rank has given no oral evidence on these matters, but at an early date when the case was before the Court (p. 254 of Record Book No. 71) Mr. Maxwell, the Manager of the Cape Coast Branch of the Bank, who represented the Bank in Court, stated that Mr. Raizel was regarded by them ·as second plaintiff's agent. This is, not evidence, but. it shows what the Bank's case was and it is corroborated by a letter written by Mr. Maxwell as Manager on 22/1/37 (Exhibit B 5) in reply to one from Mr. Sekyi on behalf of first plaintiffs in which he· states " we have had no instruction/! with this (the first plaintiff) company,"                        ,                                     .

A later letter from Mr. Lokko on behalf of first plaintiffs (Exhibit B 6) informs the Bank that the cocoa was hypothecated by Haizel, first plaintiffs Managing Director, and that first plaintiffs had received the advances amounting to £1,643 Is. 0d. under second defendants' credit. We may take it, though it is not very clearly expressed for the purpose, that Mr. Sekyi's letter (Exhibit B 4) dated 21st January, 1937, was a claim by first plaintiffs to be the owners of this cocoa and that, I find, was the first notice which the Bank had of that claim.

It should be noted, here, that in regard to the hypothecation of this cocoa the Bank was not the agent of the second defendants. Their relations were those of banker and client and their interests were entirely separate.

Earlier, second plaintiff by Exhibit C 25, a cable of 8/1/37, had offered to second defendant!! fifty tons of cocoa at £49 10s. Od. per ton f.o.b. and by Exhibit B 2 (a cable of 9th January) the second defendants accepted for January shipment. That they regarded this as a new offer is shown by the fact that they opened a shipping credit No. 3121/7 (Exhibit B 3) for this contract. In fact, however, all this cocoa and 2M tons in excess of the contracted quantity had been deposited by second plaintiff on his store credit No. 3121/6 (Exhibits D 1 to D 7), but second defendants were entirely ignorant of the fact that what they had bought by their cable of 9th January as a new contract was cocoa previously hypothecated under a store credit. This is proved by the subsequent correspondence between the parities. On the 11th January second plaintiff sent a cable (Exhibit C 26) to second defendants asking them to advise the Bank to release "the Winneba cocoa." Second defendants replied by cable Exhibit C 27 (12/1/37) "Refuse to release store credit. What have you hypothecated. What quantity do you require. What is the price of increase." At this time it is to be remembered that second plaintiff had made default on all the contracts referred to in Exhibit C 4 except in respect of fifty tons. On the 20th January, 1937, second plaintiff sent a cable (Exhibit C 28) stating that second defendants were violating their agreement and demanding release of fifty tons Winneba cocoa" as per your telegram of 12th January            .

Must instruct B.B.W.A. pay difference to farmers if you do no;!; agree release for selling locally." Now in view of the fact that second defendants had refused to allow first plaintiffs to make contracts with them as agent for other people, I am unable to find that even this telegram was notice to second defendants that cocoa hyothecated contrary to their instructions by second plaintiff was not the property of second plaintiff, second defendants replied (Exhibit C 29 20/1/37) denying the violation of their agreement and continued "understand release for forty-seven tons required by you for shipment of your contract at £49 10s. 0d. your account will be credited with difference." At this time, as Mr. Bonitto explains in his evidence, he had received news in England of only forty-seven tons hypothecated under credit 3121/6 and it was only at this stage that he understood that the offer made in Exhibit C 25 on 8/1/37 and accepted by him on 9/1/37 related to cocoa hypothecated under that credit. His reference to forty-seven tons was therefore a reference to all the cocoa (so far as he knew) which had been hypothecated under 3121/6. I hold Exhibit C 29 taken with Exhibit B 2 the cable of the 9th January, to be the acceptance by second defendants of second plaintiff's offer of fifty tons of cocoa at £49 10s. 0d. per ton f.o.b. I therefore hold that on the 20th January, there was a complete contract between second plaintiff and second defendants in regard to fifty tons of this cocoa. On the 22nd .January, second plaintiff cabled (Exhibit C 31) " I am not liable, cocoa belongs to farmers as per my letter of 9th December last paragraph. Advise B.B.W.A. pay difference to them                                                                                          

The letter of 9th December (Exhibit C 22) states "there is one farmer in Winneba district who has agreed to give you a trial shipment under a great persuasion (sic). He has now hypothecated twenty-nine tons under &tore credit as per my cables of 5th and 8th instant." I have not found second plaintiff's cable of 5th December, but his cable of 8th December is as follows: -" Have accepted advise B.B.W.A. release Winneba cocoa for this shipment increase price store credit competitive price £49." I cannot find anything here which can be construed as notice to second defendants that the fifty tons offered for sale by second plaintiff by his cable of 8/1/37 (Exhibit C 25) were the property of first plaintiffs and I hold that second defendants only got notice by the cable of 22/1/37 (Exhibit C 31) that the cocoa he had contracted to buy by his cable of 9/1/37 (Exhibit B 2) was not the property of the second plaintiff. Throughout the second plaintiff appears to have acted with a similar- lack of frankness towards second defendants. I find therefore that the first defendants first had notice on the 21st .January, 1937 (and not as agents for second defendants) and second defendants first had notice on the 22nd .January that the cocoa, the subject of first plaintiffs' action, was the property of first plaintiffs and that up to those dates first plaintiffs had been undisclosed principals.

From the latter of those dates onwards first plaintiffs took every step open to them by way of notice and protest to prevent the shipping of this cocoa. I say by way of notice's, for they took no action in Court--but without avail and the cocoa was shipped by first defendants acting as agents for shipping of second defendants and it is not denied that both defendants, at the time of the shipping, knew that the cocoa was claimed by first plaintiffs as their property.

Now although the contract between second plaintiff and second defendants was for fifty tons (800 bags), it is admitted that 845 bags were shipped. Whatever the position may be in regard to 800 bags, it is clear that there was no authority to ship these forty-five bags. As these forty-five bags have been accepted by second defendants, there can be no question as to their liability in respect of their price at £49 IDs. 0d. a ton less storage charges and less any money advanced upon them which has come into the possession of the first plaintiffs. I do not see why first plaintiffs should be saddled with shipping charges seeing that their goods were shipped against their will and without authority, I consider also that first plaintiffs are entitled to interest on the amount found due by way of damages, at the rate of five per cent per annum from the date of shipment to the date of judgment. In regard to this shipment, J hold that the Bank were acting as agents for second defendants so that no action lies against them as a principal in regard to these extra forty-five bags or at all.

The final matter for decision in regard to the 800 bags of cocoa is whether second defendants are liable to first plaintiffs for the purchase price less any amounts already drawn by first plaintiffs in respect of this cocoa. or whether second defendants were entitled to give credit to second plaintiff in their accounts for this amount.

Counsel for the defendants argue that second defendants' action in so giving credit to second plaintiff is justified for the reason that, as first plaintiffs allowed second plaintiff to hold himself out as a principal without disclosing themselves, they are" bound by any equities raised by the agent while dealing apparently as a principal and can have only such rights of action as the agent had at the time that the principal disclosed himself," to quote from Addison on Contracts XI Edition page 322. This is settled law by George v. Clagett (Smith's Leading Cases, 13th Edition Volume 2 page 133) and Sims v. Bond (5. B and Ad. p. 389) in which Lord Denman said " It is a well established rule of law that where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it, the defendant in the latter case being entitled to be placed in the same situation, at the time of the disclosure of the real principal, as if the agent had been the contracting party." No distinction appears to be drawn between a paid agent and an unpaid agent, though distinctions have been made between " brokers" and "factors" on the score of the likelihood of the other contracting party having notice of the agency. No such question arises. here. In this case, the second plaintiff was in the habit of dealing QS principal with second defendants and they had expressly required him to deal with them only as a principal; in the absence of very clear evidence that he was acting as an agent, which evidence I have not been able to find, 1 hold that second defendants were entitled to regard second plaintiff as a principal.

I have already found that when these fifty tons of cocoa were offered by second plaintiff and accepted by the second defendants, the second plaintiff had already committed breaches of his contracts to ship 200 tOilS of cocoa to the second defendants whereby the latter had claims against him amounting to £3,500 odd; if therefore the second defendants were entitled to set off the price of this cocoa less the amounts previously advanced upon them against second· plaintiff's account with them, a crediting of the second plaintiff of this amount by the second defendants was equivalent to payment in full to the second plaintiff. It is true that when these goods were shipped, the first plaintiffs had violently protested and the defendants knew that the cocoa belonged to them, but the question arises whether the date of shipping was the crucial date and I hold on this question that, if the property in this fifty tons had passed to the second defendants before they were effected by notice of the existence of the first plaintiffs as principals, it is the date on which the 'property in the goods passed which. is vital and not the date of shipping.

An undisclosed principal has a right to sue ort a contract only when it is executory and not when it has been executed .. (Addison on Contracts XI Edition page 322 and cases there cited).

Now at common law, " by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer and a right to the price in the seller unless it can be shown that such was not the intention of the parties. Various circumstances have been held by our Courts as sufficiently indicating a contrary intention. If it appears that the seller is to do somethin!1; to the goods sold on his own behalf, the property will not be changed until he has done it." (Per Sir Cresswell Cresswtn in Gelmore v Supple (E.R. Vol. 14 p. 809).

Now, I have held the contract between second plaintiff and second defendants to have been complete on the 20th January, 1937. Two questions remain for decision before the question whether the property in the goods passed to second defendants on that date can be answered, viz:-

1.    Were the goods specific and ascertained?

2. Was it the intention that the property in them should pass?

Both questions are difficult to answer.

As to (1). The goods under hypothecation amounted to 845 bags while only 800 had been sold to the second defendants.

That this was so was unknown to the second defendants. There is no doubt that the contract was for the sale of 800 of these bags. All the bags had been passed for export and by clause 6 of the agreement between second plaintiff and second defendants (Exhibit C 2) provision had been made for deductions in respect of quality if the quality did not come to the standard fixed by clause 4 of the agreement. 173 bags of the 845 bags did not come up to that standard. (See Exhibits A 2 and A 4). From these consider­ations it follows that no selection of bags was necessary, any 800 bags out of the 845 would have complied with the contract j there was nothing for the seller to do; all that was needed was that the Bank, at whose disposal the bags were held, as agents of the second defendants for shipping should select 800 bags at haphazard and cause them to be shipped. It therefore appears to me that the goods were specific and ascertained, but 845 bags were shipped in error.

As to (2). The intention of the parties. The facts that the goods had passed under the control of the Bank, who were agents of the second defend­ants for shipping, that second defendants had agreed to credit second plaintiff's account with the balance of the purchase price, and that nothing further required to be done by the vendor seem to support the contention that the property in the goods had passed to second defendants.

On the other hand there is the direct evidence of both plaintiffs that it was not their intention that the property in the goods should pass until the full purchase price had been paid to first plaintiffs.

The first plaintiffs however, by allowing the second plaintiff to hold himself out as a principal until the sale was completed, lost, in my estimation, any right to have their intentions considered and it is the intention of the second plaintiff which must be considered.

I must judge his intention not only by his evidence after the event, but by a consideration of his conduct before and at the time the contract was made.

Looking at the whole evidence, in the case, I consider that second plaintiffs' real intentions may be summarised thus: -" I propose to offer first plaintiffs' cocoa for sale to second defendants without disclosing the fact that it is not my cocoa, otherwise there is great doubt whether second defendants would approve of my having used a credit for the benefit of the first plaintiffs which was opened for me. After a contract is made and before the goods are shipped, I will disclose my principals so that the full price of the goods may be paid locally and be not set off against my liability to the second defendants." To my mind his breach of the earlier contracts and hill desire to escape the resulting liability was the mainspring of all second plaintiff's subsequent actions.

Now I do not find myself justified in giving effect to such an intention on the part of second plaintiff as I have set out in the plain language; if I do so, I should be allowing second plaintiff to take advantage of his own wrong. I can find nothing in second plaintiff's dealings with . second defendants which he can ask a Court to accept which negatives an intention that the property in the goods was to pass on the completion of the contract .. I therefore find that before the first plaintiffs disclosed themselves as principals to the defendants, the contract made by second plaintiff with second defendants was an executed contract. First plaintiffs accordingly have no right of action upon it and second defendants were entitled to set off what was owing on the contract against second plaintiff's much greater liability to them.

I give judgment for first defendants with costs against the first plaintiffs. I give judgment for first plaintiffs against second defendants for £51 5s. 3d. (being £139 4s. 4id. price of 2H tons at £49 10s. 0d. less 6s. 9d. storage charges and £87 12s. 4id. advanced), plus £1 11s. 3d. interest by way of damages at five per cent per annum from date of shipping to date of judgment. The first plaintiffs have not succeeded on their main case, but it has been necessary for them to bring an action and I allow them half their costs against second defendants.

I dismiss second plaintiff's claim against second defendants.

On the second defendants' counterclaim against second plaintiff, earlier in this judgment I left over the question whether second defendants were entitled to set off the price of fifty tons of cocoa at £49 l0s. 0d. against second plaintiff's liability to them. I have now found that second defend­ants are so entitled. It is therefore necessary to ascertain what this figure is, after deducting shipping and other charges and also the amount already advanced upon this cocoa. The figure given in second defendants' account (Exhibit D 11) of £2,475 as the price of 52H tons at £49 l0s. 0d. is arithmetically incorrect, the proper figure should be £2,614 4s. 4id. The amount for expenses and advances is £1,740 15s. 0d. (Exhibit 3 D), the balance is therefore £873 9s. 4id., but this is the balance on 52H tons. Second plaintiff and second defendants are only concerned with fifty tons and the proportionate figure which second defendants should have credited second plaintiff is £826 19s. 0d. This sum is to be deducted from the amount I earlier found due from second plaintiff to second defendants, viz. £3,695 17s. 9d. and I give judgment for second defendants against second plaintiff for the balance, viz. £2,868 18s. 9d. with costs on both claim and counterclaim.

C. C. Lokko for 1st Appellants.

K. A. Korsah for 2nd Appellant.

Col. Guy Kingsford for 1st Respondents.

W. E. G. Sekyi for 2nd Respondents.

The following judgment was delivered:­ KINGDON, C.J., NIGERIA.

The proceedings in these consolidated suits have run a most unfortunate course, mainly I think because the trial took place without pleadings. Order 25 rule 1 of schedule 3 to the Courts Ordinance provides that suits shall ordinarily be heard and determined in a summary manner without pleadings, but the same rule enables the Court to order pleadings in proper cases, and I am firmly of opinion that in such a complicated case as this pleadings should always be ordered. Experience in this Court has shown that the attempt to try such cases without pleadings frequently results in utter confusion. In the present case, for instance, even at this late stage, counsel are not agreed as to who the real parties are or ought to be.

The first suit (No. -1 of 1937) began by the Central Province Farmers Group, Limited (hereinafter called the first appellants) issuing a writ against The "Bank of British West Africa, Limited, of Cape Coast as agents of ,T. S. Bonitto and Company, Limited." The writ was subsequently amended (inter alia) by deleting the words" as agents of " and substituting therefore the word "and." The Bank of British 'Vest Africa, Limited, therefore became the first defendants in the suit (4/1937) and are hereinafter referred to as the first respondents, whilst J. S. Bonitto and Company, Limited, became the second defendants in that suit and are hereinafter referred to as the second respondents.

In addition to this alteration in parties Peter Beyeden Anti was joined as second plaintiff in the suit. He is hereinafter referred to as the second appellant. The order of joinder was made by a judge other than the ultimate trial Judge and, as the trial Judge points out, it is difficult to find any good reason for making it. However, inasmuch as it was made, the second respondents (J. S. Bonitto and Company, Limited) filed a counterclaim against the second appellant (Anti); whereupon the second appellant issued a second writ (suit No. 34/1937) against the second respondents. The two suits, including- the counterclaim, were subsequently consolidated by consent and tried together in the Divisional Court at Cape Coast.

The writ in the first suit (4/37) originally read as follows:-

" The plaintiffs in or about the month of September 1936 "by their Managing Director E. A. Haizel entered into " arrangements with one P. B. Anti of Saltpond whereby ., all cocoa produced by the plaintiffs were from time to time .. hypothecated with the Bank of British West Africa, "Limited, Winneba Branch under credit established by ,. J. S. Bonitto and Company, Limited, of 40 King William " Street, 1Jondon, E.C.

"2. On or about the 8th day of January, 1937, when " the quantity hypothecated had reached the aggregate of ., 845 bags of cocoa the plaintiffs by their said Managing " Director E. A. Haizel requested the said P. B. Anti to sell " fifty tons namely 800 bags of the said cocoa so hypotherated " to the said J. S. Bonitto and Company, Limited, hy cable at " the price of £49 10s. 0d. per ton.

"3. On or about the same 8th day of January, 1937, " the said J. S. Bonitto and Company, J~imited, cabled to " the said P. B. Anti at Saltpond accepting the offer of fifty ., tons of cocoa at the price of £49 10s. 0d. per ton with " instructions to ship to London.

"4. On or about the 19t"h day of January, 1937, upon " application made by the plaintiffs to the said P. B. Anti " the latter wrote to say the difference in price will be paid " by the Bank immediately shipment is effected.

"6. On or about the 21st day of January, 1937, upon " application to the Bank of British West Africa, Limited, "Cape Coast (from whence the credit was established at " Winneba) on behalf of the plaintiffs the Bank stated that " they have had no transaction with the plaintiffs.

"6. On the 27th day of January, 1937, formal notice ,. was on behalf of the plaintiffs' given to the Bank of British " \Vest Africa, Limited, wherein the claim of the plaintiffs " was fully set out.

"7, On or about the 6th day of February, 1937, or " thereafter the Bank of British \Vest Africa, Limited, Cape "Coast by their Winneba Branch acting as agents of " J. S. Bonitto and Company, Limited, have shipped or " caused to be shipped the 845 bags cocoa hypothecated by " the plaintiffs as aforesaid without payment of the difference " in price and including the forty-five bags of cocoa not sold " to the said J. S. Bonitto and Company, Limited.

"8. The plaintiffs claim from the defendants the sum " of £971 3s. 4d. the difference in price of the said 845 bags " cocoa at the rate of £49 10s. 0d. per ton less Duty Bank " and Lighterage charges.

" 9. The plaintiffs also claim interest at the rate of five  per cent until payment."                   . Paragraph 7 was subsequently amended to read:-

" 7. On or about the 6th day of February, 1937, or " thereafter the Bank of British \Vest Africa, Limited, Cape " Coast by their Winneba Branch acting as agents of J. S. "Bonitto and Company, Limited, or otherwise shipped or " caused to be shipped the 845 bags of cocoa hypothecated by " the plaintiffs as aforesaid without payment of the difference " in price and including the forty-five bags of cocoa not sold " to the said J. S. Bonitto and Company, Limited,"

and paragraph 9 was also amended to read:-

"9. The plaintiffs also claim interest by wav of "damages at the rate of five per cent per annum 'until " payment.'

An informal verbal application was also made to amend para­graph 8 by adding at the end "by way of damages." This informal application was not granted and was not pursued in the Court below. It was renewed, also informally, in this Court, and was refused, the Court being of opinion that it would be wrong to allow the first appellants to alter the foundation of the claim at this late stage. The incident further illustrates the evil of no pleadings.

The counterclaim of the second respondents in suit No. 4/37 reads as follows:-

"Take notice that the defendants J. S. Bonitto and " Company, Limited counterclaim against the plaintiff P. B. "Anti £3,800 damages for breach by the said plaintiff " P. B. Anti of contracts made by the said plaintiff P. B. Anti "with the said defendants J S. Bonitto and Company, " Limited to supply the said defendants J. S. Bonitto and " Company, Limited with two hundred tons of cocoa the said "plaintiff P. B. Anti having failed to fulfil the said " contracts and thus having failed to carry out the terms of "an agreement dated the 26th day of August 1936 and " expressed to be made between the said plaintiff P. B. Anti " of the one part and the said defendants J. S. Bonitto and " Company, Limited, of the other part."

After the hearing of the case had been completed in the Court below and the judgment~ drafted, but not delivered, counsel for second respondents applied for leave to re-open the defence and amend the counterclaim by deleting therefrom all words after the word "contracts" where it secondly appears therein, but this, application was withdrawn upon the learned trial Judge intimating that he had dealt with the matter in a manner favour­able to second respondents.

The claim of the second appellant against the second respondents in suit No. 34/37 is as follows:-

" The plaintiff's claim is for the sum of four thousand "three hundred and forty-three pounds ten shillings and " threepence (£4,343 10s. 3d.) made up as follows:-

" (a) £1,163 0 0 -As Special Damage being difference in value on fifty tons cocoa.

" (b) £1,047 17 3-Amount of London Credit due and owing by defendants to plaintiff.

        " (c)       £62 17 5-Interest on the sum of £1,047 17s. 3d. at the rate of six per cent

        " (d)       £69 15 7-Interest on the sum of £1,163 0s. 0d.

at the rate of six per cent.

" (e) £2.000 0 O-General Damages for Breach of Contract."

The various claims and counterclaims were dealt with in the Court below as follows:-

The second appellant was regarded as making no claim in suit No. 4/37 and the counterclaim of the second respondents was treated as being against second appellant alone.

The first appellants' claim against the first respondents III suit 4/37 was dismissed with costs.

On first appellants' claim against second respondents in suit 4/37 they were given judgment for £52 16s. 6d. with half costs.

On the counterclaim in suit 4/37 the second respondents were given judgment against second appellant for £2,868 18s. 9d. with costs, and the second appellant's claim against second respondents in suit 34/37 was dismissed with costs.

The first appellants now appeal to this Court

(a) against the dismissal of their claim against the first respondents

and (ll) against the judgment on their claim against the second respondents being for the sum of £52 16s. 6d. only instead of the larger sum claimed;

and the second appellant appeals

(a) against the judgment upon the counterclaim III suit No. 4/37;

and (ll) against the dismissal of the claim against second respondents in suit No. 34/1937.

The history of the various transactions between the parties is set out in detail in the judgment of the Court below and it is not necessary to recapitulate it here, though it will be necessary to refer to some of the transactions and correspondence in dealing with the respective appeals.

First as to the claim of the first appellants against the first respondents. The claim is clearly founded on contract and is a claim for the balance of the purchase price of goods sold and delivered. There was no contract between first appellants and first respondents and the claim is entirely misconceived both as regards the price of the 800 bags of cocoa and the additional forty five bags to which the claim relates. In regard to the latter the trial Judge held, and I see no reason to differ from his finding, that "the Bank were acting as agents for second defendants so " that no claim lies against them as a principal in regard to these " extra forty-five bags or at all."

I am of opinion that the appeal of the first appellants against the first respondents should be dismissed with costs.

 
     Secondly as to the claim of the first appellants against the second respondents. It is naturally divisible into two parts, the first in respect of 800 bags of cocoa and the second in respect of forty-five bags.' As to the first the learned trial Judge after an exhaustive reasoning based on a careful consideration of the facts found that " before the first plaintiffs disclosed themselves as "principals to the defendants, the contract made by second " plaintiff with second defendants was an executed contract. First " plaintiffs accordingly have no right of action upon it." It is sufficient to say that I agree with this finding and with the reasoning which led up to it. As to the second part of the claim the first appellants obtained judgment on this and there is no dispute or appeal in regard to it. I see no reason to quarrel with the manner in which the learned trial Judge exercised his discretion as to costs upon this part of the case.

In my opinion the appeal of the first. appellants against the second respondents should be dismissed with costs.

'fuming now to the appeal of the second appellant, I have come to the conclusion that the judgment in favour of the second respondents upon the counterclaim in suit 4/37 should not be allowed to stand for the reasons that the trial itself was unsatisfactory in several ways for which the second respondents or their counselor solicitor were responsible and that the evidence they adduced was not sufficiently satisfactory to entitle them to judgment.

The matters to which I refer are as follows:-

(1) As has already been mentioned the trial was had without pleadings, when, in my view, pleadings were eminently desirable. No one party is more responsible for this than any other; but counsel must understand that where they allow a case of this nature to go to trial without asking for pleadings they are running a risk.

(2) Neither in the notice of counterclaim itself, nor in the opening of counsel is it disclosed whether the claim is for 'general or special damages. It is not until Mr. Bonitto is examined that he alleges (incorrectly, I think, as appears under heading (3) below) that his claim is partly for special and partly for general damages.

Now it may be, as counsel for second respondents urged, that the second respondents did all that by the Rules of Court they were strictly called upon to do and that the second appellant could have got further particulars if he had asked for them. The rules governing the matter are in Schedule 3 to the Courts Ordinance. By Order 18 rule 4 (c) it is provided that the provisions of Order 5 as to particulars of claim shall apply, as far as they are applicable, to counterclaim; and Order 5 expressly lays down in rule 1 that it shall be sufficient for the plaintiff to state his claim briefly in Central a general form. But at the same time it provides that the plaintiff Province  may deliver' to the Registrar, at the time of making application Farmers ., for the writ of Summons, particulars of his demand in any form Group which shall give the defendant reasonably sufficient information Ltd. as to the details of his claim. Rule 2 enables further particulars to be ordered.               

It may be, as I have said, that in view of these rules, the ordinary rules of pleading that " the distinction between special West "and general damage must be carefully observed," and that Africa, special damage must "be always explicitly claimed on the Ltd. & " pleadings," (see Odgers on 'Pleading and Practice, 11th Edition pages 196 and 197) do not apply, but even if that is so the .-­principles. upon which those rules are based hold good and should  be the guide both to the counsel in framing his claim and opening his case and to the Judge in ascertaining the issues before hearing evidence. It is generally recognised here that counsel's opening takes the place of pleadings and I am firmly of opinion that where special damages art:: claimed that fact, which should preferably be clear from the writ (or, in this ease, the counterclaim) should at any rate be made clear by counsel's opening.

(3) The explanation of the sum claimed, viz: £3,800 is most unsatisfactory~'. Mr. Bonitto says "My counterclaim for "£3,800 is made up of the balance shown on Exhibit " D 11=£2,971. 12s. 9d., and the balance for general damages " for breach of contract and for my expenses in coming to West " Africa (second plaintiff took action against me, not I against " him) and for loss of business while I am absent from my London " office."

It may be noted, in passing, first that this Exhibit D 11 was put in not by second respondents but by second appellant, and secondly that a marginal note in the record states that the figure should be £2,822. 8s. 4d. instead of £2,971. 12s. 9d. Whichever figure is taken, the second respondents are left with an extraordinary sum claimed for general damages, £828 7 s. 3d. in one case and £977 lIs. 8d. in the other. It is difficult to believe

. that second respondents fixed their general damages at either of these sums and I have no doubt that the real explanation of how the figure £3,800 was reached is to be found in Exhibit 2A which is a letter dated the 29th December, 1936, from the second respondents to the second appellant, the last paragraph of which reads as follows:-

"In the meanwhile, for your own guidance, you can consider that you owe us for 200 tons at a difference of, say, " £25 per ton, £5,000: less amount made for you on this " side, £800, that leaves £4,200: less difference on twenty­" nine tons between the figure at which you have hypothecated and the price at which we will purchase these twenty-nine " tons from you. We do not know what this difference is, " we will suppose you have hypothecated it at £36 and we " have bought from you at £49 a difference of £400. Deduct " this from £4,200, balance due £3,800 (three thousand eight " hundred pounds)."

It will be seen that the figure £3,800 is reached as a conjecture of what the total special damage might be based on purely hypothetical figures. However this· may be, the learned trial Judge awarded (very properly in my opinion) no general damages. The whole total of his award is by way of special damages and it is for £3,695 17s. 9d. That total is reduced by £826 19s. 0d. to £2,868 18s. 9d. by allowing what is, in effect, a set-off arising out of the claim in suit 34{37. But the special damages awarded on the counterclaim are, as I have said, £3,695 17s. 9d. and since the amount claimed as special damages (vide Exhibit D 11 and the passage from Bonitto's evidence already quoted) amounted only to £2,971 12s. 9d. (which has in turn been shown to be an arithmetical error for £2,822 8s. 4d.), the excessive award of £3,895 17s. 9d. could not in any case be allowed to stand.

(4) The notice of counterclaim admittedly refers to the wrong agreement when it refers to " an agreement dated the 26th day of " August, 1936," i.e. Exhibit C 2, whereas the second respondents now say that the contracts made were in pursuance of an earlier agreement, a supposed part copy of which was admitted in evidence as Exhibit C 1. As already mentioned the second respondents sought at the eleventh hour to amend the notice of counterclaim but did not pursue their intention when the Judge intimated that he had dealt with the matter favourably to them. This is what he said in regard thereto:-

" The point has been taken for second plaintiff that the " contracts alleged to have been broken were made under the " 1935{36 agreement specified in the counterclaim. This is "true, but in view of the facts that the second agreement " followed immediately upon the first and was in substitution " for it, that the terms (save in respect of some figures) were " identical and that the breaches of contract are alleged to " have taken place during the period covered by the second " agreement, I do not think there is such substance in the "objection as to entitle the second plaintiff to have the " counterclaim struck out on that ground."

In this Court counsel for the second respondents has submitted that it doesn't really matter which agreement was referred to and it would in fact have been quite in order to omit all reference to an agreement since the counterclaim is really founded upon the contracts set out in Exhibit C 4. The second appellant's counsel on the other hand contends that the quotation of the agreement Exhibit 2 made all the difference and affected Central the whole basis upon which the case was fought. Upon this point Province I do not share the complacency of the trial Judge and am not Farmers impressed by the submissions of second respondents' counsel. The Group second appellant put up what he conceived to be a good defence to Ltd. & the counterclaim based on contracts alleged to be made in pursuance of the second agreement Exhibit 2, viz. that agreement had been broken by the second respondents. Such a defence would not have been open to him if the allegation had ;1 ~b made reference to the first agreement Exhibit C 1, but there may well have been other defences open to him and the whole issues might have been different. It would, for instance, most certainly  have been proper for him to insist on the production of the fully _._ executed document of which Exhibit C 1 is only a part copy and if the counterclaim had been based upon that he might well have taken in the Court below the point, which he has now taken for the first time, that the. actual party to the agreement was Mr.Bonitto personally and not J. S. Bonitto and Company, Limited, that the contracts were with Mr. Bonitto personally and the company could have no right of action arising from them.

Whether the wrong agreement was quoted intentionally or by an oversight I don't know and it is immaterial for I am satisfied that it was sufficiently misleading to cause the trial of the action to be unfair, and to make it impossible for the judgment to stand.

    (5) The vital document in the case was not produced, instead a so-called copy of it, Exhibit C 1, was produced by the second appellant and admitted by consent. It is a very unsatisfactory document. The date is left blank so also is the name of the "shipper." It is signed only by P. B. Anti, without a witness. The second party is set out as " J. S. Bonitto of 40 King William Street in the City of London (hereinafter referred to as the buyer)" but the subsequent references are sometimes to " the buyer" and sometimes to " the buyers" and at the end the intention appears that it should be "signed and delivered by J. S. Bonitto and Company, Limited," but whether or not it was ever so signed or ever signed by anyone besides P. B. Anti does not appear. There is thus a patent ambiguity in the document itself, and though Mr. Bonitto says "Our agreements with second plaintiff were " reduced to writing and are in evidence (Exhibits C 1. and C 2)" one is left in the dark as to when, how, and by whom the agreement was signed if, indeed, it was ever signed at all, and the question of who are the real parties to it is left open to argument. The document of which Exhibit" C " is only a part copy is in second respondents' possession and should have been produced by them.

(6) (Perhaps most important of all). The evidence of the special damage alleged to have been suffered by second respondents was, in my opinion, quite inadequate. The requirement of English rules that special damage must be strictly proved is not a mere technicality but is based on sound principles of common sense-principles which apply equally in this country so as to require that the evidence to support a claim for special damages must at least be adequate. The documentary details to support the claim in this case are of the very scantiest; they are contained in Exhibit D 11 and consist of the words and figures" Closed out "at £46 F.O.B." This is supplemented by Mr. Bonitto's evidence" I had to buy 200 tons at £46 per ton F .O.B. to replace " the cocoa which second plaintiff had failed to supply. That " explains the item of £4,743 15s. 0d. in Exhibit D 11." But in cross-examination it transpired that £46 per ton was only the average price at which the 200 tons ,were bought. Obviously particulars should have been pressed for and given. The docu­ments supporting the purchases ought to have been produced. In these days of frequent air mails it is idle to plead as an excuse f01: non-production that the documents had been left behind in England because Mr. Bonitto did not anticipate that they would be required. The counterclaim was filed in July, 1937, and then it should have been apparent to the second appellant's solicitor that the documents would be required to support it; there was ample time to obtain them before Mr. Bonitto gave his evidence in September. Apart from the production of the documents the questions present themselves of-How was the average arrived at?, How many contracts were there and at what price? If the docu­ments were not produced at least the figures should have been given if only to enable the second respondents and the Court to check the. accuracy of the calculation of the average. I am aware that the trial Judge accepted the word of Mr. Bonitto on this point as true, but I am of opinion that it was most dangerous to do so, so that in any case I should be reluctant to allow a finding based on such inadequate evidence to stand.

The cumulative effect of the six matters which I have mentioned renders it necessary, in my view, to set aside the judgment in second respondents' favour.

But apart from these considerations there is the further question of whether the finding of the learned trial Judge " I do " not find that the shipping of these fifty tons by second plaintiff " was made under duress or undue influence, nor can I find any " evidence of second defendants having broken their agreement," can be supported by the evidence, and I very much doubt if it can be. The duty of an Appeal Court in considering findings of fact recorded by the trial .judge has recently been expressed by Lord Russell of Killowen in the Privy Council in the following terms:-

"Before an Appellate Court can properly reverse a " finding of fact by a trial Judge, who has seen              and     heard "the witnesses, and can best judge not merely of their "intention and desire to speak the truth, but of their Central " accuracy in fact, it must come to an affirmative conclusion Province "that the finding is wrong." (Kisiedu and Others v Dompreh and Others) .•                                                    

In view of the conclusion I have come to that it is necessary, in any case, to set aside the judgment in second respondent's favour, it become" unnecessary to decide whether, if the decision of the appeal turned upon it, this Court 'Would be justified in going so far as to come to an affirmative conclusion that the finding of the trial .Judge is wrong. So that I will content myself with stating my reason for doubting its correctness, which is based not on the credibility of the witnesses but upon the significance to be attached to documents. I think it may be that the trial . Judge overlooked the importance of the passage in the letter from the second respondents to the second appellant dated the 21st. September, 1936, Exhibit C 14:-

" Credit 3121/5 July /August. We understand that you " now have fifty tons hypothecated under this credit, which " credit was opened by us for Mid Crop Cocoa. You have " confirmed that it is Main Crop Cocoa. We have cabled you "twice about this, and to-day have your reply. We, " however, regret that we cannot agree to let you have 27s. " f .o.b. per cwt. on this, and have requested the Bank to " instruct their branch that you should ship this fifty tons " under Man's Credit, opened by mail on the 10th July, for " fifty tons at 22s. 9d. f.o.b. November shipment."

This is the letter which, coupled with the cable of the same date C 19:-

       "Ref. to your teleg. of 19th quite impossible release " must be shipped low price contract .......... ", constitutes the alleged breach. The all-important part of the quotation from the letter is the word and figures" Credit 3121{5." This credit was opened under clause 9 of the agreement, not clauses 2 and 3, and the reference to it in the letter shows conclusively that Mr. Bonitto knew that it was under clause 9 of the agreement that the request to him to release was made although he stoutly maintained in evidence that he did not.

Counsel for the second respondents was unable to find a convincing reply to this point and fell back upon a point which was propounded by counsel for first respondents and was to the effect that since credit 3121{5 was opened for middle crop cocoa and the second appellant hypothecated main crop cocoa under it, he acquired no enforceable rights under clause 9 of the agreement. This argument may be sound but I don't feel able to decide on the data available whether or not it is. I should like, for instance, some evidence as to the custom in the trade, as to the supply of main crop cocoa in place of middle crop. In any case this was not the ratio decidendi in the lower Court, and when an argument is relied upon in this Court which is quite different from the reasons given in the lower Court, there cannot fail to be a doubt whether either is correct. ( Reported at 2 W.A.C.A., p. 281).

For these reasons I am of opinion that the issues upon the counterclaim should be remitted to the lower Court to be reheard after pleadings have been filed.

'l'here remains for consideration the claim of the second appellant against the second respondents in suit 34/37. The trial upon this issue was also unsatisfactory in several respects. A not unimportant point is that already mentioned, namely that the original, of which Exhibit C 1 is a part copy, was never put in evidence. But the principal point is that the learned trial Judge instead of dealing with the claim separately and giving a clear separate judgment upon it, treated it merely as a set-off against the larger sum which he found to be due from second appellant to second respondents on the counterclaim. Clearly, if there had not been the counterclaim, the second appellant would have been entitled to judgment for some amount upon the claim in suit 34/37. But I find it difficult to ascertain from the judgment what that amount should be. And then, on top of this, the second appellant's counsel has come into this Court and says" I find we "had no right to have taken the action No. 34/37 against "J. S. Bonitto and Company, Limited, who is the wrong defendant." His view is based on the fact that in the body of the first agreement, Exhibit C 1, J. S. Bonitto and not J. S. Bonitto and Company, Limited, is named as the party. Personally I think that this is simply a typist's error and that the words " & Co., Ltd." were omitted by inadvertence. Everything else in the case points to the real party being J. S. Bonitto and Company, Limited. However in view of this statement by counsel and of the other difficulties I have mentioned I do not see how this Court can very well give his client a judgment against second respondents, even if the amount for which such judgment ought to be given could be definitely ascertained. I think therefore that in this case also the judgment of the lower Court must be set aside and the case remitted to the Court below to be reheard upon pleadings.

To sum up I am of opinion that the appeals of the first appellants should be dismissed with costs, and that the appeals of the second appellant should be allowed with costs, the judgments upon the counterclaim in suit No. 4/37 and upon the claim in suit No. 34/37 being set aside and the said counterclaim and claim being remitted to the Court below to be re-heard after pleadings have been filed .