Fernando v. Abeyegoonesekera.
Present: Macdonell C.J. and Dalton J.
FERNANDO v. ABEYEGOONESEKERA.
295—D. C. Kandy, 40,341.
Novation—Promise to pay father’s debt—No guarantee—Ordinance No. 7 of1840, s. 21.
Where a person agreed to pay a debt due from his father, after thedeath of the latter,—
Held, that the agreement constituted a novation of the debt and wasenforceable without a writing.
MACDONELL C.J.—Fernando v. Abeyegoonesekera.
HIS was an action to recover a sum of Rs. 325 from the defendantupon a verbal promise made by him to pay the debts of his father,
due to the plaintiffs, as value of goods supplied. The learned DistrictJudge gave judgment for the plaintiffs.
E. B. Wikramanayake (with him Molligoda), for defendant-appellant.—This is an agreement whereby a person charges himself with the debt ofanother. Under section 21 of 7 of 1840, such an agreement cannot beenforced unless it is in writing. The fact of part payment makes nodifference. The doctrine of part performance does not apply in Ceylon(Arsekuleratne v. Perera *).
[Counsel for the respondent objected that the issue had not beenraised in the lower Court.]
The issue is an issue of law and can be raised in appeal. It is not anissue that can be met with evidence. -See the Tasmania case*. Theprinciples laid down in the Tasmania case have been followed in Ceylon(Manian v. Sanmugam3). In any case a Court is boUnd to apply statutelaw whether an issue is raised on it or not (The Attorney-General v.Punchirala').*
H. V. Perera (with him Rajapakse and Alles) for plaintiff, respondent.—The issue is not a pure issue of law. If it had been raised evidence mighthave been led that the original debt had been discharged. The point hasbeen discussed by counsel in the lower Court but the issues seem to havebeen deliberately framed without reference to it. The appellant cannottherefore raise the point in appeal. The contract sued on is not a contractof guarantee. It is either a novation or an indemnity. No writing istherefore required. See Anson on Contracts, p. 77. The evidence of thedefendant himself makes it quite clear that he stepped into the shoes ofthe deceased. The contract would therefore be a novation, 4 Thambyah75, S. C. 172, D. C. Colombo, 25.651, S. C. Minutes, October 12, 1928.
Wikramanayake, in reply.—A party is not bound Jin appeal by anadmission on a point of law in the lower Court (Perera v. Samarakoon3).The issue is a pure issue of law. It is merely the construction of a statute.The whole case in the lower Court was fought on the basis that there wasno writing. This is also obvious from the pleadings and the evidence.It does not matter whether the contract is a guarantee or a novation.English authorities are not applicable here. There is a difference inlanguage between the English Statute of Frauds and Ordinance'No. 7 of1840. Under our Ordinance the test is clearly this : whose (Te7) was theoriginal debt? If the original debt was somebody else’s, the party takingit upon himself cannot be sued unless there is a writing. The terms ofsection 21 of Ordinance No. 7 of 1840 are wide enough to include even anovation.
August 15, 1932. Macdonell C.J.—
In this appeal it appeared that the defendant had given plaintiffs a
verbal promise to pay certain debts of his father, deceased, owing to the
•> 22 N. L,- P,. 249.
•* 21 N, L. R. 51.
29 X. L. R. 342. P. C.
ilS'JO) 15 A. C. 223.
* 23 N. I,., li. 502.
MACDONELL C.J.–Fernando v. Abeyegoonesekera.
plaintiffs and the question fbr decision was, whether this promise wasenforceable wanting anything from the defendant in writing./
'The facts were as follows : —The defendant’s father in his lifetimeowned two stores at Watumulla and Nildandahena respectively, andwas in the habit of/obtaining goods for these stores from the plaintiffs,wholesale merchants in Kandy. At the time of the father’s death in. March, 1930, he was indebted to plaintiffs on account of the Watumullastore ik the sum of Rs. 825.84. On January 20, 1930, shortly that isbefore his death, he conveyed by notarial instrument certain lands tohis son, the defendant, for a consideration of Rs. 1,500. The attestationclause certifies “ that the consideration has been set off as follows:Rs. 477.79 to be paid to Messrs. P. S. Fernando & Co. of Kandy,Rs, 529.51 to be paid to M. K. A. Mohamed Muttaliff’s shop, Rs. 32 to bepaid' to A. M. Mohamed’s shop; Rs. 317 to be paid to Abubakker AliMohamed’s shop on account of debts due by the vendor, and the balancefor the payment of salaries due to the salesmen presently working ; which
sum? the vendee has agreed to settle”. The sums stated total,
it will.be seen, Rs. 1,356.30 out of the named consideration of Rs. 1,500.It is not disputed that defendant entered into possession of the landsso conveyed him by his father. It further appears that in June, 1930,some three months that is after his father’s death, he paid to the plaintiffsnot the Rs. 477.79 mentioned in the attestation clause of the conveyancebut the sum of Rs. 500. The defendant in his evidence maintained atfirst that what he really paid was the Rs. 477.79 named in the attestationclause and that the balance Rs. 22.21 was due to him in reconvention(he did not explain why he did not ask for change when paying theRs. 500). In cross examination he said “ I went to plaintiffs’ firm andsaid I would pay my father’s/debts …/. I paid Rs. 500 and agreed
to pay outstandings,, if any, in excess orRs. 500. Otherwise I wantedchange …. I made a guess at the amount due from my father andpaid that” and in re-examination'he said “I told plaintiff to let meknow how much due to them. I did not know what was named in thedeed The learned District Judge gave judgment for the plaintiffs forRs. 325.84, being the balance of the father’s debt of Rs. 825.84 and thesole reason argued to us on appeal as to why the decision was wrong,was that this promise of defendant was a guarantee and bad underOrdinance No. 7 of 1840, section 13, for lack of writing.
This point was not raised either in defendant’s answer or in the issuesframed. On a separate sheet of the record there occur the following. words : —
“ For defendant. 1. A guarantee must be in writing. 2. Not suedas heir. For plaintiff. Novation of debt—not a guarantee ”, and oneconcludes that these matters were debated by counsel at the trial butthere is no trace of them in the issues. The point that does seem to have- been raised fqr the defendant was prescription ; it is pleaded, an issue wasframed on it, and the judgment decides this plea against the defendant?It was not a point argued to us at all. It is difficult to collect from the.record before us that the point on which this appeal was argued to us,
MACDONELL C.J.—Fernando v. Abeyegoonesekera.
namely, guarantee bad because by parol merely, was ever really beforethe Court of trial. There are words in the judgment that suggest thatthe Court did consider it but they are almost equally consistent withthe conclusion that what the Court really was considering was the pleaof prescription. It seems to be a point raised for the first time in thecase when it is on appeal.
The rule as to a new point, raised for the first time in the Appeal Court,will be found in the judgment of Pereira J. in Appuhhmy v. Nona Hesays—
“ It was held (Sc. in the case of The Tasmania) that a Court ofAppeal ought only to decide in favour of an appellant, on a groundthere put forward for the first time, if it be satisfied beyond doubt,first, that it has before it all the facts bearing upon the newcontention as completely as would have been the case ifthecontroversy had arisen at the trial; and next, that no satisfactoryexplanation could have been offered by those whose conduct isimpugned if an opportunity for explanation had been offered themwhen in the witness box. I am not sure that this ruling would applyto a system of procedure in which the framing of issues at the trial isan essential step except to the extent of admitting a new contentionurged for the first time in the Court of Appeal, which, though nottaken at the trial, is still admissible under some one or other of theissues framed. Under our procedure all the contentious matterbetween the parties to a civil suit is, so to say, focussed in the issuesof law and fact framed. Whetever is not involved in the issues is to-be taken as admitted by one party or the other, and I do not think thatunder our procedure it is open to a party to put forward a ground forthe first time in appeal unless it might have been put forward in theCourt below under some one or. other of the issues framed, and whensuch a ground, that is to say, a ground that might have been putforward in the Court below, is put forward in appeal for the first time,the cautions indicated in the case of The Tamania * may well beobserved ”.
See also per Bertram C.J. in Manian v. Sanmugam This rule seemssubject however to the qualification contained in the judgment of deSampayo J. in Attomey-General'v. Punchirala'. Counsel for respondents,he says, had “ argued that as no issue had been stated as to whether thetalipot, even if genuine, satisfied the requirements of section 6 of theOrdinance (No. 12 of 1840), the action must, as |;he District Judge himselfappears to have thought, fail, in view of the finding as to the genuinenessof the talipot. This is taking a very narrow view of the nature of a trialin the Court of first instance. The issue said to be necessary would havereference merely to the construction of an Ordinance, and no Courtshould refuse to apply statute law, even though there be no formal issuestated on the point. If necessary, the Court should, in pursuance ofthe provision of the Civil Procedure Code in that behalf, frame an issue
I (1912) 15 N. L. R. 811.* (1890) 15 A. C. 223.
(1920) 22 N. L. R. 251.-* (1919) 81 -V. L. B. 51.
Prins v, Sabaratnam.
before delivering judgment”. The effect seems to be that a point oflaw which is a point of law and nothing else can be raised for the first timein a Court of Appeal. But the point that was argued to us in this casedoes not seem to be a pure point of law. Writing or no writing is aquestion of fact, and though there is nothing in the evidence to suggestthat the' defendant did give anything in writing, still in the absence ofany issue on the point or of anything suggesting that it was a pointreally present to the mind of the Court when trying the case, it isimpossible to be certain that there was no writing. If, therefore, I givean opinion on this point, it must not be taken as a ruling that it was one'that the appellant could raise on the appeal in this case.
It seems to me however that if the evidence of the defendant-appellantis rightly apprehended, what he did was not to guarantee the debt of hisdeceased father but to assume that debt himself ; it was a case of novationnot of guarantee, and if a novation, no writing was required. “ If there bean existing debt for which a third party is liable to the promisee, and if thepromisor undertakes to be answerable for it, still there is no guaranteeif the terms of the arrangement are such as to effect an extinguishmentof the original liability. If A says to X, ‘ give M a receipt in full for hisdebt to you, and I will pay the amount ’ this promise does not fall withinthe statute ; for there is no suretyship, but a substitution of one debtorfor another”—Anson on Contract 12th Edition, page 77, citing Goodmanv. Chase3. Here is certainly seems as if there had been a substitutionof one debtor for another, of the defendant-appellant for the estate ofhis deceased father. If so, it is a case of novation and not of guarantee,and it has never been suggested that the statute, Ordinance No. 7 of 1840,enacted that a novation to be valid must • be in writing. It can be byparol merely and still be perfectly valid.
For the foregoing reasons, I am of opinion that this appeal must bedismissed with costs.
Dalton J.—I agree.
FERNANDO v. ABEYEGOONESEKERA