William Comer Petheram, C.J.

1. The questions which are proposed for us in this Referencefrom the Small Cause Court are, first, whether the suit as laid by theplaintiff is legally maintainable; and, secondly, whether, upon the factsstated in the reference, the trustees are entitled to judgment.

2. The facts of the case appear to be these : The plaintiffis a Municipal Commissioner of Howrah and one of the trustees of the HowrahTown Hall Fund. Some time ago, it was in contemplation to build a Town Hall inHowrah, provided the necessary funds could be raised, and upon that state ofthings being existent, the persons interested set to work to see whatsubscriptions they could get. When the subscription list had reached a certainpoint, the Commissioners, including the plaintiff, entered into a contract witha contractor for the purpose of building the Town Hall, and plans of thebuilding were submitted and passed, but as the subscription list increased, theplans increased too, and the original cost, which was intended to be Rs.26,000, has swelled up to Rs. 40,000; but for the whole Rs. 40,000 theCommissioners, including the plaintiff, have remained liable to the contractoras much as for the original contract, because the additions to the buildingwere made by the authority of the Commissioners and with their sanction. Thedefendant, on being applied to, subscribed his name in the book for Rs. 100,and the question is, whether the plaintiff, as one of the persons who madehimself liable under the contract to the contractor for the cost of thebuilding, can sue, on behalf of himself, and all those in the same interestwith him, to recover the amount of the subscription from the defendant.

3. We think he can. Without reference to his being a trusteeor a Municipal Commissioner, we think that under the provisions of the Code ofCivil Procedure he is entitled to bring an action on behalf of himself andothers jointly interested with him. If the action could be maintained on behalfof all, and there were no other section which would preclude this being done,that would cure any technical defect in the case.

4. Then the question is, whether this is a suit which couldbe maintained by the whole of the persons who made themselves liable to thecontractor if they were all joined.

5. It is clear that there are a great many subscriptionsthat cannot be recovered. A man for some reason or other puts his name down fora subscription to some charitable object, for instance, but the amount of hissubscription cannot be recovered from him because there is no consideration.

6. But in this particular case, the state of things is this: Persons were asked to subscribe, knowing the purpose to which the money wasto be applied, and they knew that on the faith of their subscription anobligation was to be incurred to pay the contractor for the work. Under thesecircumstances, this kind of contract arises. The subscriber by subscribing hisname says, in effect,--In consideration of your agreeing to enter into acontract to erect or yourselves erecting this building, I undertake to supplythe money to pay for it up to the amount for which I subscribe my name. That isa perfectly valid contract and for good consideration; it contains all theessential elements of a contract which can be enforced in law by the persons towhom the liability is incurred. In our opinion, that is the case here, andtherefore we think that both questions must be answered in the affirmative,because, as I have already said, we think that there is a contract for goodconsideration, which can be enforced by the proper party, and we think that theplaintiff can enforce it, because he can sue on behalf of himself and allpersons in the same interest, and, therefore, we answer both questions in theaffirmative, and we consider that the Judge of the Small Cause Court ought todecree the suit for the amount claimed, and we also think that the plaintiffought to get his costs including the costs of this hearing.

.

Kedarnath Bhattacharjivs. Gorie Mahomed (26.11.1886 -CALHC)