[1931] EACA 9

#### ORIGINAL CIVIL.

### Before THOMAS. J.

#### KENYA FARMERS' ASSOCIATION, LTD. $(Plantiffs)$

#### v.

## ABUBAKAR (Defendant).

# C. C. 12/1931 (Eldoret).

Liability of employer of motor driver for goods ordered without authority of his master.

$Held(30-9-31)$ : - That there is no custom in the transport business for (30-9-31):—Inst there is no custom in the transport business for<br>a forry driver to order goods on behalf of his employer. Held<br>also that, in order to make a principal liable for an order given<br>by a person purporting to motor car.

## Martin for Plaintiffs

## Schermbrucker for Defendant.

The plaintiffs sued defendant (a butcher in Kitale) on account for goods sold and delivered. Inter alia, the account referred to six invoices in respect of petrol and "Mobiloil" referred to as V. O. C. products. The signature on four of the invoices were of one Mohamed Abubakar. The other two bore a sig-<br>nature different in appearance and as to which there was no evidence as to who wrote it. The signatures bearing the name of Mohamed Abubakar were disputed by the defendant but the Court was unable to accept his explanation and held him liable on these four invoices, which totalled Sh. 460/40. Apart from the items just referred to the bulk of the plaintiffs' claim related to V. O. C. products supplied to one Yassin Farah and for which Yassin Farah had signed invoices. The question for the consideration of the Court was whether the defendant could be held responsible in respect of these items. The only authority that plaintiffs could allege that they had for debiting the defendant was the statement of one Yassin Farah. Evidence led showed that defendant had two lorries which he did not drive himself and Yassin Farah drove one of them. Evidence given by an employee of another firm of motor accessories salesmen showed that Yassin Farah was defendant's driver and frequently came to this shop to purchase goods; this employee deposed that he had no authority to charge goods supplied to Yassin Farah to the defendant's account but invoices charged to him which had been signed by Yassin Farah were never disputed. The accounts referring to the V. O. C. products did not mention by whom they were ordered. It was not suggested that any documents signed by Yassin Farah were attached to the account. Defendant denied that he ever received any account prior to the action but the Court hesitated to believe this statement.

After narrating the facts as above, His Honour gave judgment for the sum of Sh. $460/40$ , already mentioned, with costs on the subordinate Court scale, in the course of judgment, the material portions of which are incorporated below.

JUDGMENT.—It has been suggested that it is a custom in the transport business for a lorry driver to order goods on behalf of his employer. I know of no such custom. In the case of Wright v. Glyn 1902, 1 K. B., 745, which was a claim for the supply of forage for the defendant's horses, Collins M. R. in the course of his judgment said: "There can be no question as to the law in the matter. In order to fix the principal for an order given by a person purporting to be his agents, it is quite clear that either actual or ostensible authority to contract for the principal, or ratification, must be proved. Here express authority is distinctly negatived, and the case for the plaintiff must rest on ostensible authority alone. It certainly cannot be said as a matter of law, that a coachman or groom has ostensible authority to pledge his master's credit for forage for his The mere relation of master and coachman does not horses. of itself involve as a matter of law such authority. If that beso, it becomes a pure question of fact-was there evidence of holding out by the defendant of Dimont (the coachman) as having his authority to pledge his credit. Bates (the plaintiffs' manager) acted on the representation made to him by Dimont and on nothing else. He took the risk of those statements being. true or false and though he learnt that Dimont was the defendant's coachman, and was aware that arrangements such as those here proved sometimes existed between coachmen and masters, he took no trouble to ascertain from the their defendant whether any such arrangement existed between him Unless, therefore, the fact that Dimont stated and Dimont. with truth that he was the defendant's coachman, amounts to a holding out by the defendant of Dimont as having authority to pledge the defendant's credit for forage, there is literally noevidence to fix the defendants in this case."

The cases of Rimell v. Sampays 171 E. R. p. 1184, and Precious v. Abel, 170 E. R. p. 381, were referred to in the case of $Wright$ v. Glyn. The first related to the supply of horses which of course the master would know of. The second related to the supply of shoeing and medicine and was decided in favour of the plaintiff on the ground that if a servant buys. things which come to the use of his master then the master should take care to see that they were paid for.

There is no evidence that the V. O. C. products came to the master's use. It is not even suggested that the petrol was put into the petrol tank of the lorry. Yassin Farah has not been called by either party as a witness and it is not impossible that these goods were obtained by him for his own use.

There is no evidence of actual authority in this case. 1 cannot find any evidence of holding out by the defendant of Yassin Farah as having authority to pledge his credit. Nor can I find merely by the neglect of the defendant to dispute the accounts sent in by the plaintiffs (assuming that they were received) that there has been conduct from which a ratification can be deduced. Therefore in my opinion the case of the plaintiffs fails in respect of the goods ordered by Yassin Farah.

There will therefore be judgment for the plaintiffs for the item mentioned in paragraph 4 hereof amounting together to Sh. 460/40 and interest at 8 per cent from filing until judgment, and costs on the subordinate Court scale (see section 11 of the Civil Procedure Code), and interest on the decretal amount at the rate of 6 per cent from judgment until payment.