UNION TRADING COMPANY v. ISAAC COLLINS HAYFORD AND KWOFIE MENSAH

Howes, J.

In this suit, originally placed on the undefended list, the plaintiffs claim from the first defendant as principal, and the second as surety, the sum of £49815" " s. 1d. being balance of an account in respect of cash advances made to the first defendant for the purchase of cocoa, alternatively, as money had and received by the defendants to the plaintiffs' use.

The amount of the plaintiffs' claim was, in the course of the trial, reduced to £4952 s. 4 d. Service on the second defendant was effected by substituted service, by order of this Court dated 13th December, 1930.

There were two agreements; one for the employment of the defendant Hayford as a storekeeper, and another as a produce buyer, the due performance of both agreements being guaranteed by the second defendant, up to any deficiency not exceeding £500, that might occur in the first defendant's accounts.

The defendant Hayford in his affidavit for leave to defend, admitted owing the plaintiffs £9210 s. 2 d., but disputed the balance of their claim.

Although the case took a very long time to try, there are but two issues; one of fact, and the other of law.

The question of fact is whether or not 188 bags of cocoa were delivered by Hayford to the plaintiffs' factor in charge of their station at Insu Siding.

There are really two questions of law, Firstly, whether the fact that the plaintiffs have instituted suits and recovered judgment against two sub-buyers (Ebizi and Sain) to whom Hayford had given advances for the purchase of cocoa, but who did not supply the equivalent value in cocoa debars the plain tiffs from continuing to debit Hayford, as a shortage, with the amounts for which the plaintiffs have recovered judgment.

Secondly whether in the case of Chief Kofi (another sub-buyer to whom Hayford had given an advance) the fact that the plaintiffs after going into accounts with him have accepted from him a promissory note for the value of the cocoa short-supplied by him to Hayford, debars the plaintiffs from debiting Hayford with this sum £2217 s. as a deficiency.

The three sub-buyers and the value of the cocoa short-supplied by them to Hayford are :-

■(&" Chief Kof Tekyi " □( )-□( )-□( )-□( ) £22170@&" Ebizi - " -" - " -" - " 25710@&" Kobina Sain - " □( ) " - " □( )-□( ) 6966@& £117114)

This sum of £117 11s. 4 d. has been debited to Hayford in his account by the plaintiffs as a deficiency.

As I understand the position, Hayford gave, out of the moneys he received from the plain