( 204 )
DAVITH v. NADORIS.
C. R., Colombo, 442.
Promissory note—Action by indorsee against maker—Failure of consider-ation as between maker and payee—Land purchased, but possessionthereof not delivered—Knowledge of indorsee—Defence againstindorsee.
Plaintiff sued defendant on a promissory note granted by defend-ant to A and indorsed by him to plaintiff. Defendant pleaded thatthe note was granted by him to A for part of'fche purchase amountof a land sold by A to defendant, but that A having failed to putdefendant in possession of the land, the consideration for the notefailed, and that plaintiff took the note with knowledge of thesefacts—
Heidi that the facts disclosed a good defence.
Ramasamy v. Veerappa (i S. C. R. 91) distinguished.
TDLAINTIFF sued defendant on a promissory note granted byhim and endorsed by the payee to plaintiff on the day nextsubsequent to its date. Defendant pleaded that he made andgranted it as part of the consideration for a sale of land to himhy the payee ; that the payee never put him in possession thereof ;and that possession of the land was actually held by certainpurchasers under the payee’s father, whose title was superior tothat which the payee professed to give ; and that the plaintiff hadnotice of all these matters.
( 205 )
At the trial the Commissioner on reading this answer, whichhis predecessor had accepted, dismissed the action.
Bawa appeared for him.
De Vos, for defendant, respondent.
18th May, 1898. Bbowne, A.J.—
Would the defence have been a good one if the payee had beenthe plaintiff ? As at present advised, I consider it would. Thecase differs from the precedent cited at 1 8. C. B. 91, in that therethe possession had been given, and here it had not. Even,however, though the execution of the conveyance was sufficientdelivery of possession to enable the purchaser to sue the possessor,the purchaser on not getting actual possession of the land has, inmy judgment, two courses open to him. He may sue his possessorduly citing his vendor, and if he fails afterwards reclaim the pricehe has paid. Or if he has only promised to pay the price andfinds his vendor’s title was truly defective as against that of thepossessor, he may wait till he shall be sued on his promise andthen plead failure of consideration, taking the risk of having toprove the defect in his vendor’s title.
The position of the indorsee of the note is not better than thatof the payee, if the indorsee had full notice of the matters whichwould preclude the latter from recovering thereon.
I remit the action for trial. No doubt the Commissioner will,
to shorten proceedings at the trial, try to ascertain at as early a
stage as possible the sufficiency of defendant’s proof that plaintiff
had knowledge that the payee’s title was defective, as the defence
will be mainly dependent thereon.
All costs to abide the result.
DAVITH v. NADORIS