<p>Coussey, J. In this suit the plaintiffs (respondents) obtained judgment against the defendant (appellant) on the first part of their claim for £375 8s. 4d., on his personal account and for £797 7s. 0d. on building account.</p><p>On the appellant’s counterclaim judgment was entered for the respondents.</p><p>The trial Judge later transmitted to this Court a summary of reasons for the judgment and it is now clear that the sum for which judgment was entered on the first part of the claim must be amended from £375 8s. 4d. to £365 8s. 4d. and it is ordered accordingly. Although the appeal is from the judgment, it is cleat from the appellant’s affidavit in support of conditional leave to appeal and from the grounds of appeal in the notice filed, that the appeal now before the Court, with one exception, is only as to the appellant’s counterclaim which was dismissed.</p><p>The one exception is as to the following supplementary ground of appeal:- “That the plaintiff company not being locally registered in the Gold  Coast could not bring the action and therefore have no locus standi in the suit.”</p><p>A submission, not strictly in terms of this ground, has been made to the effect that the person expressed in the writ of summons to be the plaintiffs’ (respondents’) attorney, did not produce his power of attorney in evidence and that on this ground the plaintiffs' action must fail. In support of this proposition, the appellant relies on Stevens v. Schmidt, Kratzert, Claimant, a decision of the Full Court, Accra, dated the 25th August, 1913. In that case the claimant in an inter- pleader suit, a person entirely unknown to the judgment-creditor, failed to prove his power of attorney from a foreign principal. It transpired that the claimant could not say that the goods he interpleaded were the property of his principals. Failing to show the extent of his authority the claimant was held not to be entitled to an order releasing the goods from attachment.</p><p>Here the facts are different. The plaintiffs-respondents sue by their attorney Robert Simmons with whom, prior to the action, the appellant and his Solicitor dealt on the footing that Simmons was the plaintiffs’ agent and attorney. This- is clear from the correspondence.</p><p>Further, the counterclaim filed by the appellant before issue in the suit was joined, is directed to A. Strauss and Co. Ltd., by their attorney Robert Simmons, Kumasi.</p><p>It is in every case desirable that an attorney, suing as such, should produce his principal’s authority if it is in writing. Under the Rules of the Supreme Court in England such an Instrument or a copy attested would be filed in Court and duly verified at the time action was instituted and be open to inspection. In the circumstances of this case, however, since Simmons’ statement on oath that he held the respondents’ power of attorney remained unchallenged throughout the proceedings in the Court below, this point, taken for the first time on appeal, cannot be sustained.</p><p>If the objection had been raised at the proper time we have no doubt that the authority of the respondents’ agent would have been produced and duly proved. A power of attorney even in general terms entitles the attorney to sue.</p><p>The appellant’s counterclaim was in two parts, namely, a claim for an account to be taken of all rubber shipped by appellant to respondents from August, 1942 to January, 1945, inclusive and a claim for commission-on all the rubber purchased by the appellant for the respondent company.</p><p>The agreement between the parties is dated the 19th April, 1943. Shortly stated, it provided that the appellant would, as the respondents’ agent, purchase, manufacture and export rubber in and from the Gold Coast for account and to the respondents’ order; that the appellant would keep accounts of his business and produce such accounts to the company whenever required and render an account of all advances of money already received or to be received by the appellant. The company for its part agreed to remunerate the appellant’s services with a monthly payment of £50 to cover his personal and travelling expenses for the time being. The agreement concludes “A commission is also to be paid to me (the appellant) by the company which I have agreed to leave to the discretion of the company”.</p><p>As against the learned Judge’s finding that there is nothing in the agreement between the parties which obliges the respondents to account to the appellant, j a finding with which we agree, it has been submitted that an agent is entitled to j an account, and a statement in general terms to that effect in 1, Halsbury, Hailsham Edition, page 268, is referred to by appellant’s Counsel. But where parties have made an express contract the agent’s right to an account and the condition under which that right will arise must be ascertained by reference to the terms of the contract.</p><p>Looking at the agreement in this case it is clear that the appellant was a servant and not a partner. There is no provision for a share of profits nor are the respondents under any obligation to report to the appellant the disposal of the goods he ships to the respondents, the duty of the appellant being to buy, process and ship rubber to the respondents and, as pointed out by the learned Judge in his reasons, to account, i.e. to account for the moneys of the respondents employed by him in and about the business in the Gold Coast.</p><p>It is not surprising, therefore, to find that Harrington v. Churchward (1) does not support the appellant's contention. In that case the servant was by the terms of the agreement to receive a salary in proportion to the profits of the venture, and, as is to be expected, he was held to be entitled to an account of the profits of the business in order that his remuneration might be ascertained.</p><p>We are unable to find that the appellant's right to an account was any stronger before the agreement was entered into, namely for the period August, 1942 to 19th April, 1943. During that period the relationship between the parties was, on the evidence, exactly the same as after the latter date.</p><p>Coming to the only other ground of appeal which requires consideration, the learned Judge disallowed the appellant’s counterclaim for commission because “ nothing is stated in the agreement as to the basis upon which commission, if given, is to be calculated, whether on total value of rubber shipped or on profits or in any other way” to quote his finding on this issue.</p><p>It will be as well before considering the point to again set out the words of the agreement upon which the appellant relies as giving rise to this part of the claim:-</p><p>“A commission is also to be paid to me by the company which I have agreed to leave to the discretion of the company.”</p><p>To support his contention that the appellant is entitled to something by way of commission reference is made to two cases Bryant v. Flight (2) and Bird v. M'Gahey (3). In the first case, on a contract “ the amount of payment I am to receive I leave entirely to you “, and in the second case, where the expression was “whatever recompense the board might allow as right and proper” , the plaintiffs were held entitled to recover in an action on a quantum meruit.</p><p>The cases on this subject were considered in Loftus v. Roberts (4). There the promisor agreed to engage the plaintiff who was an actress” at a west end salary to be mutually agreed upon between us “. Vaughan Williams, L.J., summed up the case in the Court of Appeal as follows:-</p><p>“It seems that there is some misapprehension as to the true ground of the decisions in the common law cases which have been cited, viz. Taylor v. Brewer, Bryant v. Flight and Robert v. Smith. The decision in the first of these cases and the third and the dissentient view of Baron Parke in the second, was this-that wherever words which by themselves constitute a promise are accompanied by words which show that the promisor is to have a discretion or option as to whether he would carry out that which purported to be a promise, the result is that there is no contract on which an action can be brought at all.”</p><p>By analogy, if a house is taken for one year and at the end of the year the tenancy is to be continued at a rent to be agreed upon, the latter clause is not an enforceable contract.</p><p>When the contract in this case is looked at it will be seen that there was a remuneration of services at £50 monthly. That would seem to be reasonable remuneration. The words that follow” to cover my personal and unavailing expenses” are ambiguous but we are satisfied, on a construction of the document, that this was payment for the defendant-appellant’s services; and then follows a promise to pay commission in the company’s discretion. It is true that the words used are “a commission is also to be paid” but the absence of any rate of commission or basis of calculation clearly leaves it to the honour of the company and we do not think the company, in all the circumstances disclosed in this case, are open to criticism in resisting the claim.</p><p>For these reasons the appeal fails and is dismissed with costs assessed at £33 15s. 6d.</p><p>Appeal dismissed.</p>