KORSAH-BROWN v. JOHN HOLT & CO. (L'POOL) LTD.

JUDGMENT OF VAN LARE J.A.

This is an appeal from the judgment of Bossman J. dismissing the appellant's counter-claim to an action by the respondents for an amount of £2,555 3s. 9d., being balance of account alleged to be due and owing to them from the appellant, whom the respondents had employed as their Produce Factor at Agona-Swedru.

(His lordship stated the facts, and proceeded):-

The learned trial-Judge, in my view, came to a correct decision in decreeing that the appellant was not entitled to be credited with the value of the 383 bags of cocoa, and also not entitled to any commission on such produce. However, with due respect, the learned trial-Judge erred on the law upon which he grounded his decision. He did not concede that the moment the appellant bought any cocoa in the course of his employment as factor for the respondents, the respondents became vested with the ownership of it. It is my opinion that, having regard to the management and control which the respondents had over the appellant in the discharge of his duties, there existed between the parties the relationship of master and servant.

Assuming therefore, as the learned trial-Judge did, that the appellant did buy the 383 bags of cocoa and stored them in the respondents' shed at Winneba, in my view the ownership became vested in the respondents. It is not the case (as the Judge found) that the general as well as the special property was in the appellant prior to delivery on board for shipment. Nor is it the case that loss, such as would arise from a burglary, would fall on the appellant.

By clause 5 of the agreement (Exhibit "F") it is covenanted that the appellant shall buy produce for and on behalf of the respondents. Clause 6 makes the appellant liable for any loss which the respondents might suffer by reason of such produce not conforming to the standard of purity and quality, etc. If upon purchase the ownership of the produce purchased by the appellant did not vest in the respondents there would be no necessity for clause 6 of the agreement.

Although the appellant, a servant, upon the purchase became a bailee of the goods, and the loss, if any, might at common law fall on the owners of the goods, that is to say the respondents, nevertheless as there was an agreement between the parties as to liability, the respondents would not be liable until the appellant proved to their reasonable satisfaction that the loss was beyond his control.

If the appellant in fact had bought the 383