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Present: Hutchinson C J. and Middleton J.
WALKER v. COOKE.
127—D. C. Nuwara Eliya, 153.
“ Tundu ”—Issue of “ tundu ” warrants that the coolies were willing toenter the employment of person accepting “ tundu.”
Plaintiff accepted a “ tundu ” issued by the defendant and paidhim the amount stated in the “ tundu.” A sub-kangany andfourteen coolies who were paid off by the defendant refused toaccompany the head kangany to plaintiff’s estate.
Held, that defendant was bound to pay back the amount of thedebt of the sub-kangany and his coolies to the plaintiff.
Middleton J.—Defendant’s obligation on this “ tundu ” was topay off the coolies mentioned in it from his estate, and to put themin such a position of freedom that the plaintiff might legally engagethem if they chose to go. The issue of the “ tundu ” warrantedfbrther that the coolies were willing to enter the employment of anyperson who took over and paid their debt, and that the presentemployer was in a position to hand them over to a new one.
fJTHE facts appear in the judgment.
Bawa, for appellant.
Schneider (with him V. Grenier), for respondent.
Cur. adv. vult.
August 25,1910. Hutchinson C.J.—
The defendant, the Superintendent of Mayfield estate, issued thefollowing “ tundu ” on a printed form
May 19, 1909.
The under-mentioned coolies will be paid off one month from dateon receipt of their debts after June 1 till June 19, Rs. 4,780'14/100.
Names.—Nallu, head kangany, and one hundred and sixty coolies.Seven coolies at Coast.
W. H. Cooke,Superintendent.
The plaintiff sent to the defendant on June 28 a cheque for thesum named (Rs. 4,780.14), and the defendant accepted it. Theplaintiff alleges that the defendant, in breach of this agreement to payoff the men mentioned in the “ tundu ”, failed to pay off RamasamyKangany and his (14) coolies, who were included in the “tundu,” andwho refused to accompany Nallu, the head kangany, to the plaintiff’sestate, and he brings this action to recover from the defendantRs. 977.52, the amount of the debt due by Ramasamy and hiscoolies. The defendant denies that he failed to pay off Ramasamyand his coolies; and denies that their debt amounted to Rs. 977 • 52.
16J. X. A 93348 (11/49)
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Aug. 25, mo xhe defendant received the plaintiff’s cheque on or about June 28Hutchinson On July 1 hewrote to the plaintiff saying that Nallu wanted two orthree days before being paid off, and that Ramasamy and his (14)
' Walker v. coolies wanted to stop, and would go to Court if Nallu persisted andCooke pay their debt there. To this the plaintiff replied on the 3rd thathe was ready for the men, and that Ramasamy should be paid off,and if he wished to leave the plaintiff’s estate could have his“ tundu.” On the 3rd the defendant mustered all the men, includingRamasamy and his gang, and paid them off, and entered in hispay list that they were paid off, and wrote to the plaintiff the sameday telling him that he had done so, and asking the plaintiff tosend some one to take them over.
Ramasamy and his men refused to go to plaintiff. On the 7ththe defendant wrote to the plaintiff informinghim of this, andsayingthat he had not given Ramasamy work, and that Ramasamy wastaking his debt to Hatton Court the next day ; and he offered tosend to the plaintiff a cheque for Ramasamy’s debt and keep himon. The plaintiff'replied on the 10th saying that Nallu had con-sented, “ so will you please send me the total debt of Rs. 977.52. ”Then it turned out that the amount of Ramasamy’s indebtedness toNallu was disputed ; negotiations followed ; the defendant offeredto pay to the plaintiff the amount which Ramasamy admitted, viz.,Rs. 619, but the plaintiff insisted on being paid Rs. 977.52, theamount at which Nallu put it. Hence this action, which is notfounded on any subsequent agreement by the defendant to payRs. 977 • 52, but on the breach of the defendant’s agreement containedin the “ tundu
The defendant admits that he knew on July 1 that Ramasamyrefused to go. And the plaintiff admits that Nallu had given hima promissory note, which includes the whole amount of the chequewhich he gave to the defendant. The defendant’s agreement iscontained in the “ tundu ” ; it is, that on receipt of their debtsthe coolies will be paid off. The defendant says that he paid themoff, and that that was all he undertook to do ; that he terminatedtheir employment with him, and they were free to go to theplaintiff. The contention on the other side is that a man whogives such a “ tundu ” undertakes, not merely that he will dischargehis indebtedness to them and theirs to him and leave them, so far ashe is concerned, free to go, but also that they are willing to go.That is the real dispute. Does the man who gives the “ tundu ”undertake to hand over the coolies to the man who pays him, andthat they will leave the estate with him ? Or, does he merelyundertake that he has the specified number of coolies on his check-roll and working on his estate, and that he will pay them off andterminate their employment with him ? It is not denied that ifRamasamy and his men had once been taken over by the plaintiffor his agent and had gone away with him the defendant’s
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responsibility would have ceased, but the plaintiff contends that the Auo- 25,1910defendant was bound to hand them over to him, and undertook that Hutchinsonthey were willing to go.C-J-
There is no evidence in this case as to the meaning ofpaying off”walker v.
coolies on an estate. But there are many reported cases in which Cookethe effect of a “ tundu ” has been considered. When a householderor a merchant says that he “ pays off” a servant, he means that hepays the man the wages due to him and discharges him. But thatis not what a planter means. We must take note .of the well-knowncustom of advances. A planter makes advances to his coolies, hemakes them through the head kangany, who gives-him a note tocover die amount; and when he “ pays off” a gang of coolies, hemeans not merely that he pays them their wages, but also that hehas given a discharge for the amount of their advances. When hereceives that amount from another planter, B, both parties intendthat B shall get some consideration for his payment; and theconsideration is that the coolies will transfer their services to him,their indebtedness for their advances being transferred to him ; andhe takes a note from their kangany for the amount. The paying-off planter is bound to hand the coolies over to B or his representative ;if he fails to do that, either because they have bolted, or because theyrefuse to go to B, or for any other reason, he has not fulfilled his partof the bargain. I think that this custom is sufficiently well estab-lished for the Court to take judicial notice of it. See BambarakelleTea Estates Company v. Dimbula Valley Tea Estates Company,lImray v. Palawasen * Whitham v. Pitchche Muttu Kangany.3 Ithink that the defendant is liable to pay to the plaintiff the amountof the indebtedness of the coolies who were amongst those referredto in the “ tundu,” and who refused to go to the plaintiff. If theparties cannot agree on the amount, the District Court must decide it.
The decree of the District Court must be set aside, and the case mustgo back to the District Court, which will enter judgment for theplaintiff for the amount agreed or found to be due; and the defendantmust pay the plaintiff’s costs of the action and of the appeal.
This was an action to recover the sum of Rs. 977 • 52, being thealleged damage due to the plaintiff upon a “ tundu ” transaction.
The parties were superintendents of tea estates, and on May 19,
1909, the defendant issued a “ tundu ” on the following terms :—
The under-mentioned coolies will be paid off one month from dateon receipt of their debts after June 1 till June 19, Rs. 4,780* 14.
Names.—Nallu, head kangany, and one hundred and sixty coolies.
Seven coolies at Coast.y H. Cooke,
> (1909) 2 Cut. L. R. 12.* (1900) 4 N. L. R. 113.
3 (1900) 6 N. L. R. 289.
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The* difficulty arose from a kangany, Ramasamy, and his 14coolies included in the 160 refusing to leave the defendant’s estateand to take up service with the plaintiff owing to Rama$amy’$objection to the head kangany, Nallu. The plaintiff accepted topay the amount mentioned in the “ tundu ” and to take over thecoolies mentioned in it, and on June 28, 1909, sent the defendant acheque for Rs. 4,780*14, which the defendant admitted receiving.
The following issues were framed in the case :—
Did the defendant fail to pay off Sinne Ramasamy Kangany
and his coolies ? Did they refuse to accompany Nallu
to plaintiff’s estate ?
What is the debt due by Sinne Ramasamy Kangany and
his coolies ?
What, if any, damage has plaintiff suffered ?
If plaintiff has sustained any damage, is defendant liable
therefor, and liable to pay the same to plaintiff ?
On the issues the District Judge found that the defendant did payoff Sinne Ramasamy and his coolies ; that they refused to accom-pany Nallu, head kangany, to plaintiff’s estate ; that by the failureof Ramasamy and his coolies to go to the plaintiff’s estate, plaintiffhas suffered damages to the extent of the actual amount of theirdebt, which has not been yet ascertained. On the latter part of thelast issue the District Judge found that the plaintiff’s remedy layagainst Nallu, and dismissed the action. The plaintiff appealed,and it was admitted by counsel for him that if Sinne Ramasamypersonally declined to go when duly paid off, the contract under the“ tundu ” may have been strictly complied with. I take it, how-ever, that counsel meant if he had declined to go after he had beenput at the plaintiff’s disposal.
In accordance with my opinion in the Bambarakette case, I thinkthe defendant’s obligation on this “ tundu ” was. to pay off thecoolies mentioned in it from his estate, and to put them in such aposition of freedom that the plaintiff might legally engage them ifthey chose to go.
The issue of the “tundu” warranted further that the coolieswere willing to enter the employment of any person who took overand paid their debt, and that the present employer was in a positionto hand them over to a new one. I think it is clear on the evidencethat the defendant duly paid off Sinne Ramasamy in time to enablehim to accompany Nallu to the plaintiff’s estate. Sinne Ramasamy,however, refused to go, and was allowed to remain on the defendant’sestate, though not given work to do. The cheque was apparentlyreceived by the defendant on the 28th, and the coolies were paid offby him on July 3, and it is clear from the defendant’s letter, P 5 ofJuly 7, that the; defendant felt that the equity of the case involvedhis paying back to the plaintiff a cheque for Sinne Ramasamy’s
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debt. The question is whether he is liable inlaw.- In my opinionhe is. The defendant says that he knew on July 1 that Ramasamyrefused to go. I think it is clear then that he had not previouslymade the necessary inquiries as to the willingness of the sub-kanganies and their coolies to accompany Nallu. He does not saythat he knew this for the first time on July 1, or that he hadmade any inquiries. There has been no evidence given in the caseof custom in regard to these “ tundus,” but I have no doubt thatMr. Ryan was absolutely right when he said in the Bambarakellecase that the right thing to do in these cases was to send someresponsible person with a pocket check-roll, or to-go oneselfand enter into the new contract with the coolies before paying offtheir debts.
If the plaintiff’s cheque had been stopped at the bank by him onJuly 1 when he got defendant’s letter P 2, and an action brought on. it by the defendant, it seems to me the plaintiff might have success-fully raised the defence of want of consideration as regards SinneRamasamy’s debt. If so, is there not a breach of contract herewhich will enable the plaintiff to recover back his money, the breachbeing the defendant’s inability to fulfil his agreement by handingover the coolies ? The case is by no means free from difficulty, beingone of a contract in connection with the disposal of the services of freehuman beings, but I think its construction must involve the obliga-tion of the grantor of the “ tundu ” to be in a position to deliver overthe men when the new employer comes to take over. Here thedefendant could not have delivered the coolies to the plaintiff, andI think that both in law and equity the plaintiff is entitled to recoverback from him the amount due by Sinne Ramasamy to Nallu,whatever that may be. It seems that great efforts have been madeto arrive at the sum in question out of Court, but without result.Unless the parties can agree to a reasonable sum, which seems tome quite possible after all the inquiries which have been made, theDistrict Judge must further inquire and ascertain what sum is infact due. The judgment of the District Judge will be set aside andjudgment entered for the plaintiff, and the appeal allowed with costsin both Courts.
The case will be sent back for the inquiry I have indicated, ifnecessary. The costs of that inquiry will be dealt with by theDistrict Judge, but if the inquiry is unnecessary, judgment will beentered for the sum agreed on. There is some evidence of anovation, but neither the plaint nor the evidence support it
As-regards the promissory note given by Nallu to the plaintiff,this I think was only given for further security, and will not affectthe plaintiff’s rights against the defendant on the “ tundu ”.
WALKER v. COOKE