clr/1982/1982_1_735.pdf

(1982). Held,further

(1)that the appellant signed the agreement in question in his own name without qualification, in which case the law is that though known to be an agent, is understood to contract personally, unless a contiaiy intention plainly appears from the body of the instrument,.and the mere description of 5 him as an agent,whether as part of the signature or in the body of thecontract, isnot sufficient indication ofacontrary intention to discharge him from the liability incurred by reason of the unqualified signature (see Houghv. Manzanos [1879] 4 Ex. D. 104). 10

(2)That although it is possible in law for a person to be the agent of morethan one principal,with theconsent of both principals, the defendant was not in this case the agent of either but a contracting party himself vis-a-vis both (see Northand South Trust Co.v. Berkerly[1971] 1AH E.R. 980). 15 Appeal dismissed. Cases referred to: Higginsv. Senior [1841] 8 M. & W.834; SobeliIndustries v. Cory Bros.[1955] 2 Lloyd's Rep. 82; Hough v. Manzanos [1879] 4 Ex. D. 104; Hutchcson v. Eaton [1884] 13 Q.B.D. 861. 20 Appeal. Appeal by defendant against the judgment of the District Court of Larnaca (Pikis, P.D.C.) dated the 31st March, 1980 (Action No. 707/78) whereby hewas adjudged to pay to plaintiff 25 the sum of £1,000.- for the recovery of the proceeds of a dishonoured bill of exchange. A. Neocleous, for the appellant. A. Andreou, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment of the Court. This is an appeal from thejudgment of the then President of the District Court of Larnaca by which the appellant was adjudged to pay £1,000.- with interest at 6% per annum from the 5th January 1978 till final payment, and costs, given in this action 35 for the recovery of the proceeds of a dishonoured bill of exchange issued on the aforesaid date. Both the issue and the dishonour of the cheque in question were admitted but the appel736 30 1 C.L.R. Samourides v. HadjlCostas A. Loizou J. lantclaimed byhisdefence that hewasentitled toavoid liability thereunder on two grounds,first as payment of the cheque was subject to a condition precedent that was never fulfilled and secondly because the respondent company should have indem5 nified him for an equivalent sum in the context of their alleged relationship of principal and agent. By way of counterclaim the appellant sought a declaration that the cheque was void and also raised a claim for the recovery of an amount of £1,700.- as money had and received or 10 recoverable on the equitable principle of unjust enrichment or, as damages for breach of contract. The facts of the case as appearing from thejudgment of the learned President are as follows: The respondent Company owned a plant at Ayios Minas 15 where they bottled and packed water from a spring in the area. The appellant is a businessman from Limassol who mediated between the respondents, Sanotrade Ltd., a Lebanese firm for the supply of a quantity of bottled drinking water. It was common ground that the respondent Company was 20 not prepared to enter into a direct contractual relationship with the said Lebanese firm because, as they disclosed to the appellant, of their lack of confidence in Arab businessmen. OnthesecondNovember 1977twoagreementswereexecuted, one (exhibit 2) between the appellant who, as a first party is 25 described therein as "representing by agreement Messrs Charalambous and HadjiCosta Company Ltd., at 6, Mykinon Larnaca,bottlers ofnaturalmineral waterfrom theirspringinAlones Ayios Minas, Cyprus, hereinafter called sellers", and Sanotrade Ltd., of St. Andrews street of 356 Limassol Cyprus, as the 30 secondpartydescribedas"soleownersof Sofresh brand,hereinafter called the buyers". The second agreement, which is the one relevant to these proceedings (exhibit 13),was executed between the respondents as first party, described as "bottlers of natural mineral water 35 from their spring in Alones, Ayios Minas, Cyprus, hereinafter called the sellers", and as second party the appellant "representing by agreement Sanotrade Ltd., of St. Andrews 737 A. Loizou J. Samourides v. HadjiCostas

(1982)street 356, Limassol Cyprus, sole owners of Sofresh brand hereinafter called thebuyers". Itisapparent that the appellant represented himself in exhibit 2,as theagent ofthe respondents and in exhibit 13 as the agent of the foreign principal. At the bottom of exhibit 2 and after the signature of the parties 5 and their witnesses, there appears the phrase, "We have taken due notice of this agreement" and it bears the signature of the directors of the respondent Company. The learned President then dealt with this issue as follows: "It was argued on behalf of the defendant that plaintiffs 10 accepted that defendant was their agent by taking cognizance of his agreement with Sanotrade (exh. 2), a fact signified on the agreement itself. The relationship of plaintiffs with defendants was in no way modified bythe provisions of exhibit 2 and wasexclu- 15 sivelyregulated bytheiragreementwithdefendant embodied in exhibit 13. The two agreements were independent theonefrom theotheralthoughentered intofor thepromotion of the same purpose, viz. the export to Lebanon of a quantity of bottled drinking water. Theplaintiff became 20 personally a party to both agreements removing thereby obstacles otherwise existing in the way of the export materializing for a consideration manifest on a comparison of the two agreements amounting to 20 U.S.A. cents for every case of bottled water exported. Not only were 25 the plaintiffs unwilling to enter into an agreement with Sanotrade Ltd., but refused to have any direct dealings with them in the context of performing their part of the agreement, a fact manifest from the payment bythe defendant himself of sums agreed to be paid to the plaintiffs 30 under exhibit 13such as the payment of a deposit for the purchase of carton boxes and payment for the goods to be supplied". To the aforesaid it has to be added what he said with regard to the introductory part of the two agreements earlier referred 35 to in this judgment:"Notwithstanding this introductory part of the agreements it is expressly stipulated in both contracts that Defendant was personally a party thereto executing the one in the 738 I C.L-R. 5 10 Samouridesv.HadjiCostas A.Loizou J. capacity of a purchaser and the other as a vendor. On any construction of the agreements the inevitable inference is that Defendant became personally a party thereto and acquired rights and undertook liabilities thereunder. Even ifwewereto look outsidetheagreements in order to discern the intention of the parties, an impermissible course for the construction of an agreement subject to certain exceptions that need not concern us here, it emerges that it was all along the intention of the parties that defendant should enter into the agreements personally and not in a representative capacity, for as the defendant explained plaintiffs were totally unwilling to enter into a direct contractual relationship with the foreign importers". Having considered the totality of the circumstances we find 15 noreason to interfere withtheconclusions reached bythe learned President in construing the subject agreement. He has rightly directed himself on the law applicable in such cases by expressly stating that it is an impermissible course to look outside the agreement inorder to discern the intention of the parties,a prin20 ciple which is subject to certain exceptions but which in any event do not come into play in this case. It is well scUled thai where it appears from the terms of a written contract made by an agent that he contracted personally, extrinsic evidence is not admissible to show that, notwithstanding the teims of the 25 contract, it was the intention of the parties that he should not be personally liable thereon, because such evidence would be contradictory to the written contract (see Higgins v. Senior [1841] 8 M. & W. 834; and Sobell Industries v. Cory Bros. [1955J 2 Lloyd's Rep. 82). 30 Moreover it should not be ingnored that the appellant signed theagreement in question in hisown name without qualification, in which case there is authority that "though known to be an agent, is understood to contract personally, unless a contrary intention plainly appears from the body of the instrument, 35 and the mere description of him as an agent, whether as part of the signature or in the body of the contract, is not sufficient indication of a contrary intention to discharge him from the liability incurred by, reason of the unqualified signature". (See Hough v. Manzanos [1879] 4 Ex. D. 104; Hutcheson v. 739 A. Loizou J. Samourides .ν HadjiCostas (1982.) Eaton [1884] 13 Q.B.D. 861), referred to in Pollock and Mulla Indian Contract and Specific Relief Acts 9th edition p. 779). For all the above reasons the first ground of appeal that "the trial Court erred in law and fact in holding that the appellant was not an agent but a party to the said contract and personally 5 liable thereto", should fail. It remains now to consider the second ground of appeal, namely "that the trial Court was wrong in holding that the said bill of exchange viz. cheque, was not issued subject to a condition precedent". The learned President after dealing exhaustively with the facts of the case and the circumstances under which this personal cheque was issued by the appellant, came to the following con­ clusion: 10 " I have carefully considered the facts before me and had occasion to see the defendant and Mr. Charalambous 15 testify before me. I find as a fact that the cheque in quest­ ion was issued by the defendant to the plaintiffs without any qualification intended to compensate them for the default of defendant to fulfil his part of the agreement, exhibit 2,by nottaking delivery of themerchandise prepared 20 by plaintiffs. The remedy of the defendant for the disonour of a cheque for an equivalent amount by Sanotrade lay elsewhere and he can sue Sanotrade. Nor were in my judgment the rights of the defendant under exhibit 1 settled by the agreement of the parties reached towards the end 25 of January 1978; indeed no such contention is put forward either in the defence or in the counterclaim. The sum of £1,700 was paid in part performance of the obligations of the defendant under exhibit 13 for a lawful and valid consideration and cannot be recovered as money had and 30 received. The non delivery of the goods is solely due to the default of the defendant for which he cannot blame the plaintiffs. We cannot divorce the payment of this amount from the agreement (exh. 13) under the terms of which it was paid. And no averment is made by the 35 defendant that plaintiffs are guilty of any breach of the terms of the relevant agreement. On the contrary he seeks to be recompensed from the plaintiff, on a broad view of his counterclaim, as an agent. The claim therefore collapses with our finding that defendant was not, at least 40 740 1'CX.R. 5 Samourides v. HadjiCostas A. Loizou J. for the purposes of the agreement (ex. 13), the agent of theplaintiffs but personally a contracting party. Although it is possible in law for a person to be the agent of more that one principal, with the consent of both principals, the defendant was not in this case the agent of either but a contracting party himself vis-a-vis both, (see North and South Trust Co. v. Berkerly [1971] 1 All E.R. 980). We agree fully with the aforesaid approach of the learned President and weconsiderit unnecessary toenter into a lengthy 10 analysis of either the factual side or the legal aspect relevant to the issues raised by this ground of appeal, as both have been clearly dealt with by him and we agree and adopt fully his reasoning. 15 For all the above reasons this appeal is dismissed withcosts. Appealdismissed with costs. 741