Present: Bertram C.J. and Garvin A.J.
BOULTON v. VAIJJPURAMPILLA1.
134—D. C. Trincomalee, 823.
Creditor requesting debtor to transmit money by post—Loss of money intransmission—Creditors rish—Burden of proof that money wasstolen in post.
Where a creditor asks a debtor to forward the money due. bypost and the money is so transmitted, the risk of loss duringtransmission by post is on the creditor. The onus, however, ofproving that the money was stolen in the post lies on the debtor.
^I^UflS facts are set out in the judgment.
H. J. C. Pereira, K.C. (with him J. 8. Jayawardene and Arula-nandan), for appellant.
A. St. V. Jayawardene, K.C. (with him Peri Sunderam), forrespondent.
Cur. adv. vuB.
December 15,1921. Garvin A.J.—
This was an application to certify certain payments, aggregatingRs. 3,000, made in part satisfaction of the judgment entered incase No. 823 of the District Court of Trincomalee. It was allegedthat on July 22, 1921, a sum of Rs. 1,000 was paid to the plaintiff,and that on August 6 there was remitted to him by post a furthersum of Rs. 2,000, made up as follows : A cheque for Rs. 1,000 and acurrency note for Rs. 1,000. The plaintiff admitted receipt of thesum of Rs. 1,000 paid on July 22 and of the cheque for Rs. 1,000remitted on August 6, but denied that the currency note forRs. 1,000 was received by him.
Upon the evidence led in the case it would seem that, at therequest of the defendant, Mr. Subramaniam, Crown Proctor ofTrincomalee, obtained a cheque for Rs. 1,000 and a currency notefor the like amount, and enclosed it with a letter in an envelopeaddressed to the plaintiff, George Boulton, Inspector of Police,Kurunegala. This letter he handed to his clerk, Ramapillai, whohad seen him place the cheque and the currency note in the envelope,to be sealed. Mr. Subramaniam left the room for a few minutes tofetch some money to cover, the cost of insurance and registration,and on his return he found the letter sealed. This was at about9 or 9.30 a.m. The letter was left with the clerk to be posted,and was ultimately taken to the post by another clerk, Aiyaturai,who was aware of the contents of the envelope. The envelope wasinsured for Rs. 1,000, as it was apparently thought that the fact
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that the oheque was enclosed made no difference. The envelopewas handed in at the Post Office a little after 11 a.m. on August 6.
On August 7 Mr. Boulton received advice that a registeredletter had arrived for him. He went to the Post Office on August 8and took delivery of the registered letter. The seals on the letterappeared to be intact. He walked across to his bungalow, adistanoe of about fifteen fathoms, tearing open the letter as heproceeded. He reached the house and called to his wife, whocame to him as the envelope .was being opened. They found theletter and the cheque, but not the currency note. Mr. Boultonpromptly communicated with Mr. Subramaniam by telegram. Inthis state of the facts the defendant, in effect, invited the Court tphold that Mr. Boulton had received the currency qote, and, havingappropriated it, is now dishonestly resisting his claim to havepayment to that extent certified.
The District Judge has aocepted the evidence of Mr. Boultonand of his wife. I can see no reason whatever for interfering withthat finding on this appeal.
It was urged, however, that, inasmuch as the currency note wasremitted by post at the request of the plaintiff, the loss of themoney during transmission by post must be borne by the plaintiff,and not by the defendant.
This contention can only succeed upon proof that the moneywas despatched by post under circumstances which show that theplaintiff requested the defendant to do so, and agreed to run therisk of loss in transmission.
Having regard to the large sum, which it was intended to transmit,the defendant might reasonably be expected to have produced betterevidence in proof of the fact that the money was, in fact, in theenvelope when it was handed to the postal authorities. It might, forinstance, have been placed in the envelope in the presence of thePostmaster.
The evidence shows that for at least an hour or two the envelopewas left with the clerks, the conduct of one of whom in connectionwith a case of forgery, in which he was a witness, was adverselycommented on by the jury. It was this clerk who; in fact, tookthe letter to the post.
The evidence of Mr. Subramaniam shows that the note was placedby him in the envelope, and the evidence of Mr. Boulton establishesequally clearly that it was not in the envelope when it reached him.It was, therefore, extracted by somebody between those two pointsof time, and it is not possible on the evidence to say that it wasso abstracted only after it had been handed to tho Post Office.
The appellant has, therefore, failed to establish that the moneywas lost in the course of transmission by post.
Though, in view of this finding, it is not necessary to considerthe matter further, I am not satisfied that, in the circumstances
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1921*°* o^se,the plaintiff must be held to have requested the
"*—defendant toforward the money by post, and to have agreed to
Gabvin • take the risk of loss in transmission.
nvSm***** ^hia was a judgment-debt. The plaintiff was entitled to issuetf&ai " *rit for the recovery of the amount of his judgment at once. Hedid not doso, and showed great forbearance. The defendant
appears to have pleaded the plaintiff’s absence at Kurunegala asa reason for not paying him promptly, whereupon the plaintiffappears to have indicated that it was possible for the defendant toremit the money by “ insured post.**
The fact that plaintiff expressly enjoined the defendant to coverthe risk by insurance is to my mind a clear indication that he Wasnot prepared to take the risk of the loss of the money in the post.On the contrary, while suggesting a method by which the defendantmight, if he wished, remit the money, there is a distinct indication thatthe defendant should protect himself by insuring the postal parcel.
For these reasons the appeal is dismissed, with costs.
I have read the judgment of Garvin A.J., and agree with it,except on one incidental point.
The law with regard to the transmission of money by post will befound summarized in Ghitty on Contracts, 16th ed.f p. 789. Theearliest case is that of Warwicks v. Noakes.1 Lord Kenyon therelaid down the law as follows: “ Had no directions been givenalbout the mode of remittance, still this being done, in the usual. way of transacting business of this nature, I should have held thedefendant duly discharged from the moqey he had received asagent. It was so determined in the Court of Chancery forty yearssince; and as the plaintiff in this case directed the defendant toremit the whole money in this way, it was remitted at the periiof the plaintiff.” Subsequent cases indicate there must be eitheran express request or a request .implied by the course of businessbetween the parties, and impose the risk in such cases upon thecreditor. In the present case the direction seems to me explicit-enough. The incidental condition that the money sent should beinsured does not seem to me to throw the risk on the debtor. Itmerely indicates a condition subject to which the sender is authorizedto make use of the post, the object of the insurance being to coverthe risk undertaken by the oreditor. In the present case, however,it is not dearly proved that the money was stolen in the post. Itmay have been so stolen. It may equally well have bjen stolenbeforp the letter was posted. The onuis of proving that the moneywas stolen in' the post lies on the debtor, and in this case ho cannotbe said to have discharged it beyond all reasonable doubt.
BOULTON v. VALLIPURAMPILLAI