* (1885) 30 Ch. D. £49.
GARVIN A.C.J,—Bennett v. de Saram,
where the facts and circumstances are identical—vide Kay J. in Coupe v.Collyer This is an action for money lent and advanced and can onlysucceed upon proof that the money claimed had been lent and advanced.No part of Mr. Bennett’s Rs. 22,000 reached Mr. de Saram as it wasmisappropriated by de Vos before the execution of the bond by Mr. deSaram and the handing over to him of the cheque for Rs. 20,150.
Hay ley, K.C., in reply.—When payment is made by cheque therepresentation is not that there are sufficient funds in the bank to meetit but that it will be met when presented.
Cur. adv. vult.
January 24, 1934. Garvin A.C.J.—
The parties to this appeal are the plaintiff who is the appellant and thefirst defendant who is the respondent. They have both been victimizedby a proctor in whom they appear to have placed the most implicit trust.The proctor was Mr. W. A. S. de Vos. The plaintiff Mr. Bennett is aplanter. He had known de Vos for several years, had acted as visitingagent of his estate Non Pareil from 1916 and had from time to timethrough him made investments of money on the security of the mortgageof landed property. In this way he had lent through de Vos aboutRs. 175,000. He regarded de Vos .as a wealthy and honourable man withwhom he could trust his moneys. The respondent Mr. George de Saramwas also one of de Vos’ clients. He had approached de Vos to raise aloan for him in 1924 and had since then been in business relations with-him. It is evident that he too reposed the utmost confidence in de Vos.
The amount raised by de Vos for Mr. de Saram was Rs. 20,000 and thelender was a Mr. Kimber. The repayment of this money was secured bya mortgage of Aturugiriya estate created by bond No. 4,261 of August 21,1924. Early in 1927 de Vos told Mr. de Saram that Mr. Kimber wasrecalling the money lent by him and requested Mr. de Saram to repaythe amount. Mr. de Saram was not in a position to repay the loan andde Vos told him that there was a Mr. Bennett from whom the moneycould be raised. Mr. de Saram assented and de Vos approachedMr. Bennett who agreed to lend Rs. 22,000. Mr. Bennett was not awareof the existence of the mortgage in favour of Mr. Kimber. He was willingto lend Rs. 22,000 on the primary mortgage of Aturugiriya estate, evenas Mr. de Saram was willing to borrow the money and grant a primary ’mortgage over Aturugiriya to take the place of Mr. Kimber’s mort-gage which was to be discharged. On April 20, 1927, de Vos wrote toMr. Bennett as follows : —
,Dear Bennett,—Since writing to you this morning I have heard from
de Saram re loan on mortgage of Aturugiriya estate Rs. 22,000.
This can also be put through now.
On April 22, Mr. Bennett sent to de Vos a cheque for Rs. 22,000 pay-able to de Vos receipt of which was acknowledged by de Vos’ letter ofApril 23, 1927.
In response to a message from de Vos that the bond was ready forsignature, Mr. de Saram on April 26 attended de Vos’ office. De Vosput before him the bond and also a cheque drawn by him on the HongKong and Shanghai Bank for Rs. 20,150 which represented the difference
1 (1890) 62 L. T. Rep. N. S. 927 at 928 and 929.
GARVIN A.C.J.—Bennett v. de Saram.
between Rs. 22,000 the principal sum secured by the bond and a sum ofRs. 1,850 being money due from Mr. de Saram to de Vos. The bond wasduly signed by Mr. de Saram who endorsed the cheque and handed itback to de Vos who was to repay Mr. Kimber and obtain a discharge ofthe bond he held.
Mr. de Saram then left trusting de Vos to pay Mr. Kimber andprocure a discharge of that bond. Shortly after this Mr. Bennett receivedfrom de Vos the bond executed by Mr. de Saram on April 26, and the titledeeds of Aturugiriya estate which were in his possession. ThereafterMr. de Saram ceased paying interest to Mr. Kimber but began andcontinued paying interest to Mr. Bennett through de Vos. At this stageMr. Bennett's impression was that his money had been invested by de Voson a primary mortgage of Aturugiriya estate while Mr. de Saram was ledto believe that his liability to Mr. Kimber had been determined and thatin lieu thereof he was now indebted to Mr. Bennett in the sum of Rs. 22,000secured by a primary mortgage of Aturugiriya.
Mr. de Saram continued to pay interest for about a year. Towardsthe middle of 1928 de Vos sent for Mr. de Saram, complained that theinterest payable to Bennett was in arrears and said that the principaland interest must be paid off. He suggested that Mr. de Saram shouldsell his house “ Gulistan ” in Ward place and pay off the debt. Aftersome reflection Mr. de Saram decided to sell Gulistan and pay off the debtto Mr. Bennett and certain other debts. The sale was left in the hands•of de Vos. The premises were sold on September 28, 1928, for Rs. 58,500.The consideration was left with the firm of which de Vos was the seniorpartner and de Vos was given instructions as to its application. It issufficient to say that de Vos was instructed by Mr. de Saram to pay offhis debt to Mr. Bennett and was trusted to carry out his instructions.Thereafter Mr. de Saram paid no more interest to Mr. Bennett in thebelief that his liability to Mr. Bennett had been extinguished by payment.Indeed on October 28, 1930, Mr. de Saram again borrowed a sum ofRs. 10,000 on what he believed and intended to be a primary mortgage ofAturugiriya estate granted to the lender Daniel Dennehy. This trans-action was negotiated by de Vos who attested the bond in his capacityof Notary Public. Thus Mr. de Saram was left with the impression thathis liabilities to Mr. Kimber and Mr. Bennett had been discharged andthat his only outstanding liability was to Mr. Dennehy. When Mr. Ben-nett, who had not asked for the repayment of the debt due to him and wasnot aware of what de Vos had done, found the interest on the bond heheld falling into arrears he approached de Vos. On November 1, 1929,de Vos sent him a cheque for Rs. 1,540 in payment of interest up toSeptember 30, 1929. He also paid him a sum of Rs. 5,000 on account ofcapital. These payments satisfied Mr. Bennett and assured him thateverything was in order.
In 1931 de Vos was prosecuted in respect of frauds committed by him.It was then found that the sum of Rs. 22,000 entrusted to his firm byMr. de Saram to be paid to Mr. Bennett had not been paid. De Voshad drawn a cheque for the amount. The counterfoil showed a paymentto Bennett and the firm’s books were written up accordingly. De Voshowever admits that the cheque was made payable to himself and that
GARVIN A.C.J.—Bennett v. de Saram.
he misappropriated the money. It was also found that Mr. Kimber hadnot been paid and that the bond in his favour remained undischarged.
Mr. Bennett was thus left with his claim against Mr. de Saram upon abond which was not as it purported to be a primary mortgage but whichwas subject to the prior mortgage in favour of Mr. Kimber. The resultto Mr. de Saram was that the sum of Rs. 22,000 entrusted to de Vos forthe payment of Mr. Bennett’s claim save for a sum of Rs. 5,000 had beenmisappropriated by de Vos and that he was faced with claims by bothMr. Kimber and Mr. Bennett.
Mr. de Saram was a witness in the prosecution of de Vos and admitsthat he then believed he was indebted to Mr. Bennett. If all the factsand circumstances were those above narrated Mr, de Saram was right inhis belief and would clearly be liable to pay Mr. Bennett’s claim. Butcertain other facts have come to light. Mr. Bennett’s cheque forRs. 22,000 had been placed by de Vos to the credit of his personal accountwith the Hong Kong and Shanghai Bank on April 22, 1927. The chequewhich de Vos handed to Mr. de Saram at the time of the execution of thebond in Mr. Bennett’s favour was drawn on the Hong Kong and ShanghaiBank and was dated April 26, 1927. That cheque was found among deVos’ papers. It bears Mr. de Saram’s endorsement but had not beenpassed on to Mr. Kimber or paid by the Bank.
An examination of de Vos’ banking account shows that on April 26the funds at credit only amounted to Rs. 10,549.86, an amount whichwas insufficient to meet a cheque for Rs. 20,150.
In these circumstances Mr. de Saram in his answer to Mr. Bennett’sclaim to recover the money alleged to be lent and advanced by himpleaded (a) failure of consideration, and alternatively (b) that the amountclaimed had been paid.
The plea of payment depended entirely upon proof that de Vos wasexpressly or impliedly authorized by Mr. Bennett to receive payment.The learned District Judge held, I think rightly, that de Vos had noauthority to receive payment on behalf of Mr. Bennett. He certainlywas not expressly authorized by Mr. Bennett who did not instruct himto demand repayment of the money and was in complete ignorance ofwhat de Vos had done. Indeed the jproper inference from the establishedfacts is that Mr. de Saram constituted de Vos his agent to make thepayment. No such payment was made.
The one point in the case was whether • there had been a failure ofconsideration total or partial. The learned District Judge held thatthere was a total failure of consideration, and from this the plaintiffMr. Bennett appeals.
One ground upon which the appeal was pressed upon us was that de Voshad authority to receive the money from Mr. Bennett on behalf of Mr. deSaram and consequently when Mr. Bennett’s money reached de Vos*hands it must be taken to have reached Mr. de Saram.
When Mr. de Saram’s evidence is read as a whole it is, in my opinion,clear that all he did was to assent to de Vos’ suggestion that Mr. Kimber’sclaim should be paid with money to be borrowed from Mr. Bennett. Hisauthority to de Vos was to approach Mr. Bennett and ascertain whetherhe was prepared to lend him (de Saram) Rs. 22,000 on the primary
GARVIN A.CJ.—Bennett v. de Saram.
mortgage of Aturugiriya estate. It was not an authority to de Vos toborrow money from Mr. Bennett as Mr. de Saram’s agent. Nor wasMr. Bennett under any such impression. He had from time to timeinvested money through de Vos. Speaking generally as to the course ofbusiness he said “ I never made the cheque out in favour of the borrower,the reason being that I would require Mb. de Vos to hold it and pay it tothe borrower when I get my security—that is when I get my primary bond,till then Mr. de Vos would hold the money. He held the money ….When I sent my cheque it was understood that Mr. de Vos was to holdit till the borrower gave a primary mortgage and that he was to pay offany prior encumbrances in order to give me a proper primary bond ”.
These and certain other passages in the evidence given by Mr. Bennettto which reference will be made later put it beyond all doubt that in this,as in every other instance in which Mr. Bennett decided to make an invest-ment on the security of a mortgage of property, he sent his cheque tode Vos who was to hold the fund and pay it over only at the actualexecution by the borrower of the bond of mortgage. The money inde Vos’ hands remained Mr. Bennett’s money until it was paid over byhim in exchange for the security.
The learhed District Judge held that de Vos received the money fromMr. Bennett as his agent for the purpose of paying it to Mr. de Saram andnot as Mr. de Saram’s agent. The evidence and the inference from thatevidence appear to me to point to the conclusion that the District Judgewas right.
Inasmuch as he signed the bond the burden of proving failure'of con-sideration total or partial is on the first defendant, Mr. de Saram. Theamount Mr. Bennett claims to have lent Mr. de Saram is Rs. 22,000.de Vos in whose hands that money had been placed handed Mr. de Saramhis own cheque for Rs. 20,150 being the balance after deducting from theprincipal sum an amount of Rs. 1,850 which was due to him from Mr. deSaram. He represented thereby that there were funds in the Hong Kongand Shanghai Bank—the Bank on which that cheque was drawn—tomeet the cheque. Had that cheque been presented payment wouldhave been refused for want of funds as at that date the balance to de Vos’credit was only Rs. 10,549.86. Since this was the account to the creditof which de Vos paid in Mr. Bennett’s cheque it is obvious that he hadalready appropriated for his own purposes a considerable part of themoney entrusted to him.
Indeed, de Vos admits that he . placed Mr. Bennett’s cheque to hiscredit and drew against it for his own purposes. Even Mr. Bennett afteran examination of de Vos’ banking account felt compelled to say, “ NowI find that Mr. de Vos appropriated my money before the bond wassigned He meant of course a part of his money.
How is it possible in .these circumstances to hold that Mr. Bennettthrough de Vos paid Mr. de Saram Rs. 22,000 when all that was left ofMr. Bennett’s money to meet the cheque for Rs. 20,150 was a sum ofRs. 10,549.86? It should here be noted that de Vos had at the timedrawn a further cheque for Rs. 809 on the same account which reducedthe funds over which he had control to Rs. 9,740.86. It is proved beyonddoubt that de Vos could not and did not pay Mr. de Saram—if indeed he
GARVIN A.CJ.—Bennett v. de Saram.
paid him anything at all—any larger sum than Rs. 9,740.86 over andabove the sum of Rs. 1,850 which was set off against Mr. de Saram’s debtto him.
The method of payment adopted by de Vos was to hand Mr. de Saramhis cheque for Rs. 20,150 which purported to be the equivalent in cashof Rs. 20,150. There were no funds to meet that cheque, so that whatMr. de Saram received was a worthless piece of paper while the balanceof Mr. Bennett’s money remained lying to de Vos’ credit at the Bank.This sum is shown by the statement 1 D7 to have been drawn out andappropriated by de Vos in the next few days.
The whole of Mr. Bennett's money has thus been shown to have beenappropriated by de Vos. Mr. de Saram received nothing beyond thecancellation of his debt of Rs. 1,850 to de Vos.
In. these circumstances how can Mr. Bennett claim to recover onthe footing that he lent and advanced Rs. 22,000 to Mr. de Saram?Mr. Bennett’s action must fail unless Mr. de Saram is by estoppel or onsome other principle denied the benefit of his plea of failure of consideration.
No estoppel was pleaded and no issue of estoppel was raised at the trial.Nor was it urged in appeal that there were facts which raised an estoppelas known to our law. But it was argued that in all the circumstances ofthis case the loss resulting from the fraud of de Vos must be borne byMr. de Saram who it was urged by executing this bond and payinginterest on the footing that the money entrusted to de Vos had beenreceived by him enabled de Vos to lull Bennett into a sense of securitybut for which he would have taken early steps to recover his money fromde Vos.
It was sought to support this argument by reference to the case ofGordon v. James'. There is a general resemblance between the facts ofthe two cases. But Gordon v. James (supra) is not an easy case to followor apply except where the facts and circumstances are identical—videKay J. in Coupe v. Collyer *. Gordon v. James (supra) was the case of anEnglish mortgage which had been passed by transfer to James who hadpreviously paid £ 1,000, the consideration therefor into the hands of Dodge,the Solicitor for Gordon. Dodge obtained the transfer by a deceptionpractised on Gordon and handed it to James. Over four years later Dodgebecame bankrupt and the money was lost. Gordon then brought actionagainst James claiming a lien in the nature of a vendor’s lien over theproperty conveyed by way of mortgage for the sum of £1,000. Thejudgment of the Court of Appeal was that James was entitled to set. upagainst Gordon’s equity as unpaid vendor an equity arising from thecircumstances above referred to—i.e., that Gordon by his negligentfailure to make any inquiry of Dodge to whom he had entrusted the deedsinduced James to believe that the £1,000 had reached him and to remainin that belief for five years to the prejudice of his interests.
The case before us is not an action for equitable relief. It is an actionfor money lent and advanced and as such can only, it seems to me, succeedupon proof that the money claimed had been, lent and advanced. Theevidence shows that the plaintiff’s agent did not pay the defendantRs. 22,000 and that the defendant received no money or other benefit by
» (1885) 30 Ch. D. 349.3 (1890) 63 L. TV Rep. ff. S. 937, at
pp. 928 and 939.
GARVIN A.C.J.—Bennett v. de Saram.
the transaction except to the extent of Rs. 1,850 being the amount of hisdebt to de Vos (the agent) which was discharged. Upon what principleis it possible to compel the defendant to make good to the plaintiff theequivalent of the money misappropriated by de Vos to whom the plaintiffhad entrusted the same for payment to Mr. de Saram?
Reference was made to the principle referred to by Story in his work onagency as a maxim of natural justice “ that he who, without intentionalfraud, has enabled any person to do an act, which must be injurious tohimself or to another innocent party, shall himself suffer the injuryrather than the innocent party who has placed confidence in him ”. Thismaxim is mentioned by Story when dealing with the liability of a principalfor the acts of his agent notwithstanding that such acts were done inbreach of private instructions to the agent limiting his authority. Inthe application of this principle it must be remembered that it is a partof the law of agency. It has been proved in the case before us thatMr. Bennett placed Rs. 22,000 iri de Vos’ hands to be paid by him toMr. de Saram in exchange for a primary mortgage of Aturugiriya estate.It has also been proved that more than half that amount had been mis-appropriated by de Vos before he obtained a bond from Mr. de Saram.How is it possible to say that so far in the history of this case de Vos wasenabled to defraud Mr. Bennett by anything Mr. de Saram had done?Moreover Mr. de Saram signed the bond in the belief that he had receivedthe consideration. But it is now apparent that de Vos who wasMr. Bennett’s agent for the purpose of payment passed off a worthlesscheque on Mr. de Saram and thereby obtained his signature. In thesecircumstances the maxim referred to earlier cannot be made the founda-tion for an action by Mr. Bennett to recover from Mr. de Saram moneywhich his agent never lent to Mr. de Saram and which Mr. de Saramnever received even though that agent contrived by a pretence of paymentto obtain his signature to a bond acknowledging receipt of the money.But for the confidence reposed in de Vos by Mr. de Saram who assumedthat de Vos had, as he had undertaken to do, obtained a discharge ofMr. Kimber’s bond this fraud might have come to light earlier, in whichcase Mr. Bennett might possibly have been able to recover from de Vosand Mr. de Saram would certainly have been saved the loss of money leftin de Vos’ hands out of the proceeds sale of Gulistan to be paid toMr. Bennett. But before a person can claim the benefit of the maximhe must show that Mr. de Saram had enabled de Vos to do an act whichcaused him loss or injury. Mr. Bennett’s loss was sustained at the handsof his agent de Vos in whom he had confidence and to whom he hadentrusted the money and was not induced by the act of any person whomMr. de Saram had placed in a position to do the act from which the injurywas sustained. Indeed it was Mr. de Saram who was the victim of thefraud of Mr. Bennett’s agent whereby he was induced to sign a bond fora consideration which he had never in fact received.
I have dealt above with the principal points argued to us in appeal, butno authority was cited nor any clear principle enunciated for the proposi-tion that, apart from estoppel, an action for money lent where as a fact themoney was not paid to and did not reach the borrower can succeed.
DRIEBERG J.—Bennett v. de Saram.
There is an aspect of the case which has not as yet been noticed. Mr. deSaram did benefit by this transaction to the extent of Rs. 1,850 being theamount of his debt to de Vos. It was urged * that the District Judgeshould in any event have given the plaintiff judgment for that amount.But the evidence shows that de Vos who had received Rs. 22,000 out ofthe proceeds sale of Mr. de Saram’s property, Gulistan, did pay Mr. BennettRs. 5,000. If therefore Mr. de Saram was liable to Mr. Bennett in theamount of Rs. 1,850 the latter has received Rs. 5,000 of Mr. de Saram’smoney. Had a cross appeal been entered it might have been necessaryto go more fully into the state of the account between them on the basisof our finding on the points at issue. But no such appeal has beenentered.
I would therefore merely affirm this judgment and dismiss this appealwith costs.
Drieberg J.
The decisive issue in this case is whether there was a failure of con-sideration, total or partial, on the bond in favour of the plaintiff.
In the petition of appeal the point was raised that the first defendant,Mr. de Saram, was estopped by his conduct and by his signature on thehond from pleading a failure of consideration. This was not put forwardby counsel at the hearing of the appeal. The English law of estoppel bydeed does not prevail in Ceylon: Ukku v. Rankiri1 in which the differencebetween a Ceylon deed and a writing under seal in England is noted.There is nothing here to prevent a debtor who has in a bond admitted thereceipt of consideration from proving that he did not in fact receive thatconsideration (Thoongappa Chetty v. Tikiris) ..
Of the Rs. 22,000 given by the plaintiff to de Vos the first defendantreceived only a sum of Rs. 1,850; the balance sum of Rs. 20,150 was notapplied by de Vos in paying off Mr. Kimber nor was it paid to the firstdefendant, unless the passing of the cheque for that sum to him byde Vos at the execution of the bond can be regarded as payment. In myopinion it is not possible in the circumstances under which the cheque waspassed to regard it as a payment. The plaintiff said that it was under-stood between him and de Vos that he was lending the money on aprimary mortgage as in the case of his previous investments on mortgageof land which were put through by de Vos. He said he would not haveissued a cheque in favour of the borrower because he looked to de Vos tohold the money and only pay it when he got his security, a primarymortgage, and that it was de Vos’ duty to see that existing encumbranceswere discharged. De Vos formed the same opinion of his obligations tothe plaintiff. He said it was his duty to see that the plaintiff got aprimary mortgage and that “ would involve my paying off the priormortgage ”. He regarded it as his duty to the plaintiff, he said, to keepthe money for this purpose and that if de Saram had asked him for thecheque he would not have given it to him, by'which I understand him tomean that he would not have let him have control of the cheque. Itfollows therefore that before the bond was signed de Vos was under a
i (1908) 11 N. L. R. 212.* Ramanaihan 1863-1868, p. 1.
DRIEBERG J.—Bennett v. de Saram.
mandate from the plaintiff, implied in the circumstances and acceptedby him, to hold the plaintiff’s money and himself pay what was needed toensure the bond in favour of the plaintiff being a primary one.
No question can arise of the first defendant’s liability to the plaintiffuntil he signed the bond. One contention of the appellant was that deVos was the first defendant’s agent to obtain the Rs. 22,000 and that thefirst defendant became liable to the plaintiff on the payment by theplaintiff of the money to de Vos. I do not think this view is a possibleone, for it is opposed to the facts. The first defendant did not give de Vosa general mandate to get him the money but to find him a lender whowould give him Rs. 22,000 on his executing a bond, but if this contentionis right the first defendant would be liable to the plaintiff even if he hadnot executed a bond.
It is contended that the liability of Mr. de Saram for the Rs. 20,150,in excess of the sum of Rs. 1,850 which he received, follows on his takingde Vos’ cheque for that amount, endorsing it, and handing it back tode Vos at the execution of the bond—that what he did was to acceptRs. 20,150 from the plaintiff through the plaintiff’s agent de Vos andthat he thereafter gave the money to de Vos as his agent to pay qffMr. Kimber. But this can only be if there was a real payment to the. first defendant. What de Vos should have done, if he was acting honestlyand following the usual notarial practice, was to have stated in theattestation that of the consideration Rs. 1,850 was paid to the borrowerand that Rs. 20,150 was retained for the payment of Kimber’s bond.This is in fact what he did do with the money though he stated in theattestation that the whole consideration passed to the first defendant.If the attestation was so drawn it might have attracted the attention ofthe plaintiff, who would no doubt have then asked for proof that theRs. 20,150 had been paid to Mr. Kimber, and if de Vos had misappro-priated the money and not paid Mr. Kimber, Mr. de Saram would not beliable. He therefore certified that the whole consideration was paid tothe first defendant and for that purpose passed him his cheque forRs. 20,150, against which he had not sufficient funds at the time aiidwhich, as he says, he would not have allowed him to keep as that wouldhave been a breach of his duty to the plaintiff. The first defendant saidthat de Vos gave him the cheque for Rs. 20,150, asked him to endorse it,and took it back at once telling him that he had instructions from theplaintiff that he should use the money to pay off the existing mortgage.In making, or rather affecting to make, this payment, de Vos must beregarded as acting as the agent of the plaintiff, but the payment wasfictitious. It cannot be said that, on the passing of the cheque in this man-ner by his agent de Vos, the plaintiff discharged the obligation of paymentwhich followed on the first defendant signing the bond and that de Vosthereafter, on taking the cheque back from the first defendant, becamehis agent for the purpose of payment to Mr. Kimber. In consenting tode Vos retaining Rs. 20,150 for this purpose and impliedly directing himto pay the Kimber mortgage with it, a relation of agency was createdbetween them. But this does not mean that de Vos had discharged hismandate from the plaintiff and undertaken a new one from the firstdefendant. The first defendant did nothing more than assent to de Vos
Jayatileke v. Dona Ana.
carrying out what he said were his instructions from the plaintiffthat is, to retain the money and pay off the existing mortgage; in otherwords, he agreed that the consideration for his acknowledgment ofliability should be the payment and discharge by the plaintiff, throughhis agent de Vos, of his liability to Mr. Kimber with the money whichstill continued to be the plaintiffs and which it was intended shouldremain with the plaintiffs agent de Vos until payment to Mr. Kimber.De Saram could have had consideration to the extent of Rs. 20,150 onlyif that sum was paid to Mr. Kimber, and it was not.
If, as I think, the plaintiffs obligation to the first defendant was notdischarged by the passing of the cheque to him, it does not matter whetherde Vos at the time had or had not money in his account to meet it.
Mr. de Saram had however received consideVation from the plaintiffto the extent of Rs. 1,850. He had accepted de Vos’ statement that thatsum was applied to the discharge of his liability for arrears of interest andcertain charges and expenses. Mr. de Saram in his answer denied thathe had received any consideration on the bond, and in the alternativehe pleaded that if he had, his obligation to the plaintiff was dischargedby his payment to him through his agent de Vos of Rs. 22,000 from theproceeds of the sale of Gulistan. The learned District Judge hasheld, I think rightly, that de Vos did not receive that sum from the firstdefendant as the agent of the plaintiff. But de Vos did pay to theplaintiff a sum of Rs. 5,000 for which the plaintiff gives him credit.Interest on the Rs. 1,850 from date of execution April 26, 1927, to thefiling of the action on August 28, 1931, at 7 per cent, would amount toRs. 561.79. Interest was paid by de Vos to the plaintiff on Rs. 22,000up to September 30, 1929 ; the payment of Rs. 5,000 was on December30, 1930. If the first defendant was liable on the bond to the extent ofRs. 1,850 only, he has paid to the plaintiff more than he was obliged topay, but it is not possible to say precisely to what extent, for questionsmay arise regarding the right of the first defendant to credit for all thepayments made to de Vos on account of interest and even as regards thepayment of Rs. 5,000 towards capital, whether the first defendant cantake credit for anything more of that sum than was due in respect ofRs. 1,850 principal and interest. We were not asked to reserve to thefirst defendant the right to sue for the excess, and it is not thereforenecessary to do more than dismiss the plaintiff’s claim.
I agree that the appeal be dismissed with costs.
Appeal dismissed.