Arusha Tailoring v. Mrs. T. Pucci, Civ. App. 6-A-67, 28/10/67, Platt J.

Arusha Tailoring v. Mrs. T. Pucci, Civ. App. 6-A-67, 28/10/67, Platt J.

Plaintiff sued defendant on a contract made by defendant for the making of cushions and curtains for the Kifaru Lodge. Defendant was an employee of the lodge. Plaintiff’s pleading stated that the money had been first demanded from the lodge; plaintiff’s evidence, however, was to the contrary. The invoice made out at the time of the contract was made in the name of the lodge. There was some indication that the contract might have been partly induced by the fact that the defendant was personally known to the plaintiff. There was also evidence that, at the time of the suit, the Kifaru Lodge had ceased to exist as a business entity.

            Held: (1) Generally, an agent is not  personally bound by a contract made by him on behalf of a disclosed principal.[ Citing Law of Contract Ordinance, Cap. 433, ss. 182, 178.] Here, the “balance of probabilities” did not suggest that the agent was to be deemed a party to the contract. (2) Under Cap. 433, s. 182 (2)(c), an agent may be sued in a case where the principal, although disclosed, cannot be sued. According to the commentary of pollock and Mulla, 8^th Edition, on the corresponding section 230 of the Indian Contract Act, this provision is intended to avoid “a total failure of remedy in cases where contracts had been made with promoters of companies not yet incorporated or where principals were uncertain bodies of persons or otherwise incapable (of) being sued by the description given in the contract.” If Kifaru Lodge came within any of these situations, this should have been pleaded an evidence adduced. Otherwise, “the plaintiffs merely became creditors of a defunct organization and could claim like any other creditors for their share of the assets,” (3) Here, the applicable rule is that the parties are bound by their pleadings. Nothing on the record suggests that any useful purpose could be served by remitting the case to the District Court for further trial on the issue whether the plaintiffs had been entitled to sue the defendant because the principal, though disclosed, could not be sued.