JUDGMENT Harington, J. - This is an action for damages for conversion of goods. On March 2nd 1905, the Plaintiff sent to Howrah Station a cart loaded with one bale No 27 of Grey shirtings (414), one bale No. 7985 of Dhuties (978) and one box No. 3 of Chuddars. 2. These goods were stolen en route to the station. Between two and three months later the Defendant, Baijnath, was found to have been dealing with some of the goods : and he, together with his servant Beywan, was convicted and sentenced for receiving and disposing of the goods knowing that they had been stolen. 3. The Defendant, Gobind Lal, carried on business in partnership with Baijnath under the style of "Makham Lal Baijnath" as dealers in piece-goods. Gobind Lal took no part in the management whatever: the entire business being in the hands of Baijnath. 4. Some of the stolen goods were traced to one Pooran who purchased them from the Defendant's firm, others were traced to Harihar Prosad at Mirzapure. Both Pooran and Harihar Prosad purchased from Baijnath who purported to sell as the managing member of the firm of Makham Lal Baijnath. 5. The total value of the goods stolen was Rs. 1,598-12 of which Rs. 100 worth was recovered by the Plaintiff through the Police. 6. These facts have been clearly proved: the substantial controversy on the question of fact is whether the firm of Makham Lal Baijnath ever converted the goods or whether Baijnath stole and sold them for his own private purposes. 7. Mr. Dass for the Plaintiff concedes that he must show that the goods were sold for the benefit of and on behalf of the firm because if he does not prove that he will have failed in showing that Baijnath was acting within the scope of his authority. 8. He claims to have proved that there are entries in Kutcha Rokurbook of the firm which show that the monies paid for the stolen goods disposed of by Baijnath were placed to the credit of the firm: and he contends that once having shown that the firm got the proceeds of any part of the goods he becomes entitled to recover from the firm as damages the value of the goods stolen. 9. For the Defendant Mr. 9. For the Defendant Mr. B.C. Mitter contends that the Plaintiff has failed to trace any of the goods to the firm and that in any case the firm is not liable in point of law because Baijnath was acting beyond the scope of his authority and so cannot bind his partner. 10. The Defendant, Gobind Lal, was the capitalist of the two partners. I am satisfied he knew nothing whatever about the theft and that all he did with regard to the firm of Makham Lal Baijnath was to find the capital and draw out money. 12. Harihar Prosad of Mirzapure has given evidence on commission. He says that he twice bought cloths from the firm of Makham Lal Baijnath and once Baijnath brought him clothes to sell on his own account. 14. 13. Referring to his ledger he says the first indent was for goods to the value of Rs. 191-7-6, the second indent was for goods to the value of Rs. 145-6-0. 15. Now in the ledger there is an entry of Rs. 145-6 but under the line in which the entry appears is the figure Rs. 275-7-6. Harihar explains this by saying that it represents the amount of the second indent plus 23 thans of long cloth sold on account of Baijnath; No. 414 said to be part of the stolen bale No. 27 and refers to an entry in his Jakka bohi where this appears. He further says that Baijnath also brought for sale 200 pairs of Dhuties No. 978 and 100 thans of Chuddar. 16. The items making up the sum of Rs. 175-7-3 out of the sum of Rs. 275-7-6 are given, and they correspond with the entries making up Rs. 175-7-3 in the Defendant's Kutcha Rokur: but it is impossible to reconcile the items in the account with the statement that the Rs. 275-7-6 represent the second indent plus Rs. 130 the price of the stolen property sold for the firm by Harihar. The items should show Rs. 145-7-6 the second indent but none of the items added together make that figure. In the Defendant's book the figure is reduced to the amount of the second indent by subtracting Rs. 30 from the Rs. 175-7-6 but there is no explanation in the books as to why this Rs. 30 is deducted. The result, however, is to show that Rs. In the Defendant's book the figure is reduced to the amount of the second indent by subtracting Rs. 30 from the Rs. 175-7-6 but there is no explanation in the books as to why this Rs. 30 is deducted. The result, however, is to show that Rs. 145-7-6 only goes to the credit of the Defendant's firm. 17. Next Harihar says he paid the balance of the Rs. 275-7-6 with a currency note for Rs. 100 numbered 89653. 18. As to this Rs. 100 there is a controversy: it appears in the Defendant's books so there is no question but that it was received but the Defendant says there was a third indent for Rs. 110 on account of goods sold and he produces an account showing this. He alleges that the accounts (rejecting annas and pies) stand thus with Harihar: 1st Indent Rs. 190, 2nd Indent Rs. 145, 3rd Indent Rs. 110, total Rs. 445. The payments he alleges he received are 25, 75, 100, 145 making up Rs. 345 leaving a balance of Rs. 100 which he says was discharged by the note in question. No question arises as to the first indent That is admittedly an ordinary business transaction, and has been paid. The account relating to it has not been translated and there are no accounts produced showing how or when it was paid. There is nothing from which it can be inferred that Rs. 25,75, and 100 were paid. 19. As to the second indent the account in Harihar's books and in the Defendant's books show it to be Rs. 30 in excess of what it ought to be, and in the Defendant's books this sum is deducted so as to reduce the sum passing to the credit of the Defendants to Rs. 145. 20. The third indent for Rs. 110 is denied in toto. There is no evidence as to this indent other than an entry in the Defendant's books. 21. The result of the evidence on this point is to indicate that out of the Rs. 275 the sum of Rs. 145 odd the amount of the second indent is carried to the credit of the Defendant's firm, that a sum of Rs. There is no evidence as to this indent other than an entry in the Defendant's books. 21. The result of the evidence on this point is to indicate that out of the Rs. 275 the sum of Rs. 145 odd the amount of the second indent is carried to the credit of the Defendant's firm, that a sum of Rs. 100 paid by Harihar in respect of the stolen goods is credited in the books of the firm to another account: this account appears in the Defendant's books and does not appear in the books of Harihar. As to the existence of this account there is a dispute. 22. There can be no doubt that the identical note received by Baijnath was credited to the Defendant's firm because the number of the note appears both in the entries in Harihar's book, and in the Defendant's books. 23. The circumstance that monies are credited to the Defendant's firm in the books of Harihar is no evidence as against Gobind that the monies were in fact received by his firm. 24. But the importance of the entries appear when compared with the entries in the Defendant's books for if there be an entry in Harihar's books showing a payment clearly attributable to the stolen goods and if there be a corresponding entry showing that the firm carried that payment to their credit, then the entries become material against the firm. 25. The dealing with regard to the goods was all in the firm's name. The sales purported to be by Makham Lal Baijnath, the forwarding note was in the name of Makham Lal Baijnath. I am satisfied that throughout Baijnath represented himself as acting for the firm. 26. In my opinion it has been proved that a hundred rupee note numbered 89653 paid by Harihar to Baijnath for some of the property of which the Plaintiff is the true owner has been traced to the firm of Makham Lal Baijnath and that is prim facie evidence of a conversion of the property by the firm of which the Defendant is a member. 27. The Plaintiff having given prim facie evidence of conversion, it lies on the Defendant to displace this evidence of conversion by showing that the Rs. 27. The Plaintiff having given prim facie evidence of conversion, it lies on the Defendant to displace this evidence of conversion by showing that the Rs. 100 was not credited in respect of goods belonging to the Plaintiff but in respect of some other goods purchased or sold by the firm in the ordinary way of business. 28. To discharge this onus he produces his own book showing an indent on him by Harihar for goods to the amount of Rs. 110 and says that the Rs. 100 was paid in respect of this indent. 29. This is not sufficient: it is quite possible that the account has been concocted not necessarily with the connivance of the Defendant so as to give an ostensible explanation for the credit of Rs. 100. 30. At any rate, I cannot in the face of Harihar's express denial upon oath hold that there was such an indent merely because It appears in the Defendant's books when the person who made the entries has not been called, nor has any order given by Harihar for the goods been produced. No doubt the Defendant feels a hesitation in calling Baijnath, but when once the money has been traced to his firm he cannot displace the evidence without calling some witness who had personal knowledge of the business of the firm at the time, and can say whether Harihar did give the order for Rs. 110 worth of goods or not. The production of the books, without more, when the accuracy of the account is denied on oath, is not sufficient. 31. There having been a conversion, is the Defendant liable? In my opinion, he is. It was within the authority of Baijnath to sell piece-goods for the firm of Makham Lal Baijnath and to carry the proceeds to the credit of that firm. 32. He has sold certain piece-goods which in fact belong to the Plaintiff and he has credited the proceeds to the Defendant's firm, and that firm has received the benefit of the transaction. 33. 32. He has sold certain piece-goods which in fact belong to the Plaintiff and he has credited the proceeds to the Defendant's firm, and that firm has received the benefit of the transaction. 33. This is sufficient in point of law to render the firm liable on two grounds, first, because inasmuch as Baijnath was acting within his authority in selling the goods and crediting the proceeds to the firm, the sale was a sale by the firm, secondly, because the firm having received the proceeds of the sale of the Plaintiff's goods is bound to account to the Plaintiff for the proceeds The firm cannot as against the Plaintiff's claim retain the proceeds of goods belonging to the Plaintiff. 34. The only question remaining is on what basis are the damages to be assessed? For the Plaintiff it is contended that he is entitled to the whole value of the goods stolen : for the Defendant it is argued that if the firm be liable at all it is only liable for such sums as have been traced to its books representing the property of the Plaintiff. I do not agree with either contention. In my opinion when it has once been shown that the managing partner of the firm of Makham Lal Baijnath has sold large quantities of the Plaintiff's goods, purporting to sell them on behalf of the firm, and it has been shown that with regard to some of the goods at least the proceeds have been received by the firm, that is enough to fix the firm with a prim facie liability to make good to the Plaintiff the value of all his goods sold by the managing member of the firm. 35. The result is that while I disagree with the Plaintiff's contention that the Defendant's liability is to be measured by the value of the goods stolen from the Plaintiff, I think the Plaintiff is entitled to the entire value of the goods received by Baijnath. 36. In this view it becomes unnecessary to discuss the question whether the proceeds of the goods sold to Pooran have been credited in the books of the Defendant's firm. The result is there must be judgment for the Plaintiff. 36. In this view it becomes unnecessary to discuss the question whether the proceeds of the goods sold to Pooran have been credited in the books of the Defendant's firm. The result is there must be judgment for the Plaintiff. With regard to damages if the parties can agree on a figure well and good: if they cannot, there must be a reference to the official Referee to ascertain the amount of and value of the Plaintiff's goods which came into the hands of Baijnath and judgment will be given for the amount so found by the Referee.