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Present : Wood Renton A.C.J. and Ennis J.MOHIDEEN PITOHE276—D. C. Colombo, 35,807.
Action on on agreement to claim shortages—Previous action to claim aportion of shortages—Is action barred t—Civil Procedure Code,34.
Plaintiff and defendant entered into an agreement by which,plaintiff agreed to sell for defendant in Europe Ceylon produce,and defendant agreed to make good shortages on the transactionson receipt of the accounts of the sales. Plaintiff sued to recoverthe .value of some of the shortages. The defendant pleaded thatthe action was barred by section 34, Civil Procedure Code, inasmuchas in a previous case plaintiff had already sued for the recovery ofthe amount of similar shortages under the same agreement, buthad failed to include in that action the subject-matter of the presentclaim, although the account sales in respect of the various consign-ments with which it deals had been received by him before theinstitution of the first case.
Held, that the action was barred.
^lHE facts appear from the judgment.
J. C. Pereira (with him F. M. de 8aram)J for the appellant.
A. St. V. Jayewardene (with him F. H. B. Koch and Sansoni)ffor respondent.
October 10, 1913. Wood Renton A.C.J.—
This appeal must be decided on the materials presented by the„plaint and by the admission of the parties themselves at the trial.Shortly stated, the facts are these. The plaintiff alleges that heand the defendant entered into an agreement in or about the monthof February, 1912, by which he was to sell for the defendant inEurope Ceylon produce delivered to him by the defendant for thatpurpose on certain terms, of which the only material one was thatthe defendant was to be liable to make good shortages on thetransactions on receipt of the accounts of the sales. In the presentcase the plaintiff sues to recover the value of some of these shortages.The defendant meets him by the plea that the action is barred bysection 34 of the Civil Procedure Code, inasmuch as in a previouscase (D. C. Colombo, No. 34,939) he had already sued for therecovery of the amount of similar shortages under' the same agree-ment, but had failed to include in that action the subject-matterof the present claim, although the account sales ii* respect of thevarious consignments with which it deals had been received by himbefore the institution of case No. 24,939. The learned District
Judge has held that in these circumstances the claim is barred,and has dismissed the plaintiff's action with costs. The plaintiffappeals. In my opinion the decision of the learned District Judgeis right. It was conceded by the plaintiff's counsel at the argumentin the District Court that the agreement sued upon in this case isthe same as that sued upon in the previous action, and, as I havealready said, that the account sales were in the plaintiff’s handswhen that action was instituted. The cause of action is the samein both cases. It is the alleged failure of the defendant to dischargethe obligation imposed upon him byl the agreement sued upon tomake good shortages, although the condition precedent to thatobligation taking effect had been complied with. The plaintiffmight have stood in a different position if he had not had at hisdisposal the materials necessary for including in the claim in theprior action the subject-matter of the present one. But admittedlythose materials were at his disposal, and there is nothing either inthe plaint or in the admissions in the District Court to show thatthe ascertainment of the subject-matter of the present, claim wasother than a mere question of computation. I think that theappeal should be dismissed with costs.
Ennis J.—I agree.
MOHIDEEN v. PITCHE