098-NLR-NLR-V-19-ANDAPPA-CHETTY-v.-NAYANA-et-al.pdf
(892)
1916.
Present : Wood Benton C.J. and De Sampayo J.
ANDAPPA OHETTY 1>. NAYANA et ol.
497—D. O. Colombo, 45,662.
Promissory note—Noticeof dishonour—Waiver—Sending # ease bach for
further adjudication after ascertaining. pinch of the ease.
A person Bhooldnotbeheld to havewaived a rightofwhich he
was unaware.
Where a payeeofanote promised-,subsequent to'thedidimobr
to pay the amount of the note, he cannot be taken to have waivedhis right to notice of dishonour, unless he was aware .at the time' djemade his promisetotheindorsee thatthe note had,,intoot, bean
dishonoured'.
Wood Benton .C.J.—“ It does not appear , to me that it wouldbe •safe, now that fresh pinch in the case has been ascertained, tosend it back upon any terms for further inquiry and adjudication."
rjp HE facts are set out in the judgment.
Hay ley, for plaintiff, appellant. •
M. de Saram, for third defendant, respondent.
November 21, 1916. Wood Benton O.J.—
This is an action by the second indorsee of a promissory noteagainst the first and second defendants, who .were its makers, thethird defendant, the payee, and the fourth defendant, the firstindorsee. The fourth defendant consented to judgment. Theplaintiff has obtained judgment against the first and -second defend-ants. The learned District Judge has dismissed his action againstthe third defendant, on the ground that the latter had not receiveddue notice of dishonour aB required by section 48 of the Bills-.QfExchange Act, 1882. The plaintiff appeals.
It is not disputed by Mr. Hayley, who has argued the case :on lga;behalf, that under section 48 of the Bills of Exchange Act the tlmddefendant was entitled to notice of dishonour. But he contends, inthe first place, that the teamed District Judge ha's wrongly decidedon the facts that notice of dishonour was not given; and, in 'thesecond place, that, in any event, the third defendant had waivedhis right to such notice by promising to pay the amount due on thenote, Subsequent to its dishonour, to the plaintiff himself. Mr.Hayley has, in the last place, asked us to consider whether, shouldhis appeal fail on the facts and on the law, the case ought not tooe sent back to the District Court, even upon stringent terms as to
( 393 )
costs, for the framing and trial of the issue of waiter. The view1918.
taken by the learned District Judge of the evidence in support ofwood
the plaintiff's case may be summarized thus. The only witness Rbktok O.J.
examined for the plaintiff was the fourth defendant, who, as I have Andappa
already mentioned, had consented to judgment being entered up OKetty v.
against him. The fourth defendant said that he had, in the first Nayanq,
place, demanded payment from the third defendant upon two
separate occasions; that the third defendant put him off each time,
saying that he would pay, and when he was further pressed, promised
to get the money from the makers and pay the plaintiff then. The
makers did not pay, and the note was dishonoured. The fourth .
defendant then went a third time to the third defendant, told him
that he was not well and intended going to India, and asked for
payment. The third defendant put him off, saying that he would
pay. The learned District Judge remarks that at this juncture he
himself called attention to the fact that, so far, there was no proof
of notice of dishonour, and he adds that shortly afterwards the fourth
defendant was asked the direct question how he knew that the first
and second defendants had not paid the plaintiff, and at once
replied that he had learnt that fact from the third defendant
himself. The impression created on the mind of the District Judge
by the fourth defendant’s evidence1 in this matter obviously was
that when the pinch of the case as to the want of notice of dishonour
had been ascertained the fourth defendant' proceeded to supply the
gap. It is impossible for us to say that the finding of the'District
Judge on the facts, resting as it does on an incident of this kind
which passed under his own personal observation, is erroneous.
The plaintiff did not allege in his plaint that notice of dishonourhad been given to the third defendant. The point was, however,expressly taken in the answer, and at. the commencement of thehearing the plaintiff’s proctor moved to amend the plaint byalleging that notice of the dishonour of the note had been dulygiven to the third defendant. It was clearly the duty of the plaintiff ,at this stage, if he intended to rely, on a waiver of notice, to ask thata direct issue on that point should be framed and tried. It is quiteprobable that had this course been adopted the third defendantwould himself have come forward at the trial and given his versionof the circumstances. No such issue, however, was asked for., andthe case was disposed of solely on the question whether notice ofdishonour had been given or not. Mr. Hayley has referred us tothe1 provisions of section 50 (2) (b) of the Bills of Exchange Act,
1882, under which waiver of notice may be either express or implied,and has asked us to infer from the third defendant's promise to pay,subsequent to the dishonour of the note, that he had waived hisright to notice. It is clear law, however, and equally clear goodsense, that a man should not be held to have waived a right of whichhe is unaware, and unless it results from the evidence that the third
(394)
1916.
WoodKenton C.<
AndappaGhetty v.Nay ana
defendant, at the time when he made his ultimate promise to paythe amount due on the note, was aware that the note had, in fact,been dishonoured, he was not, and could not be, in a position tosay whether he would or would not take his stand on his legal rightto have notice of that dishonour. It is sufficient in this connectionto refer to the English cases of Mackenzie v. Mackenzie 1 andPtcktn v. Graham2 in which the- principle just cited is clearly laiddown. Mr. Hayley called our attention to the decision of the Courtof Common Pleas in Cordery v. Colville, 3 where it was held that ifa drawer of a bill of exchange, after the time for giving notice ofdishonour had expired, promised to pay the bill, that is a waiver ofnotice, and that if there is no plea of waiver, the Court will addsuch a plea. In that case Byles J. held that a promise to pay abill, whether made before or after the time for giving notice hasexpired, is evidence that due notice has been given, that a promiseto pay the bill before the time for giving notice has expired mayalso be used as evidence that notice has been dispensed with, andthat a promise made after the time for giving notice has expired isevidence that notice has been waived. The decision in Cordery v.Colville 3 does not, however, in my opinion, conflict in any way withthe principle laid down in the two cases just cited. The report showsthat the acceptor of the bill had promised to pay at a public housekept bythe defendant;that onthe day on whichthe bill became
due theplaintiff calledat thedefendant’s publichouse and saw
his wife; that the accepter was not present; that the plaintiff showedthe bill to the defendant’s wife, told her w'hat he wanted, and thenwent away; and that when about two months afterwards theplaintiff and the defendant met, the latter promised to pay the bill.-Upon this evidence a verdict had been given to the plaintiff. Themotion in the Court of Common Pleas was a motion to set it aside.The Court refused to interfere, and it is not difficult to see that therewere circumstances in the case from which a full knowledge on thepart ofthe defendantof theacceptor’s defaultmight fairly be
inferred. It does not .appear to me that it would be safe, now thata fresh pinch in the case has been ascertained, to send it back uponany terms for furtherinquiryand adjudication.The danger, to
which the District Judge has called attention, of evidence being1shaped to meet a legal difficulty that has been pointed out would^then present itself in an accentuated form.
I would dismiss the appeal, with costs.
De Sampayo J.—I agree.
Appeal dismissed.
i (1787) 1 Term. Repr716,i 2 (1833) 1 Cr. £ M. 725.
3 (2863) 32 L. J. C. P. 210.