BOX v. PULLENAYAGAM

089-NLR-NLR-V-20-BOX-v.-PULLENAYAGAM.pdf


( 430 )
1918.
[Full Bench.]
Present . Bertram C.J., Shaw and De Sampayo JJ.
BOX t>. PULLENAYAGAM.162—D. G. Kandy, 25,338.J’tmdu—Issueof tumHiby superintendent—Bolting of coolies after
** payingoff ** enroute—Irregular dischargetickets—Action for
damages.
The defendant (superintendent of Mahatenne estate) issued a* tundu■undertaking to pay off Muttiah Kangany and fifty-eight coolies on payment•of their debts (Rs. 5,676.17). The plaintiff (superintendent of Craigheadestate) sent his clerk to Mahatenne with a letter to defendant asking him topermit the clerk to see the coolies, and saying that if he fuind them all.there, and things were as represented to the plaintiff by Muttiah Kangany,the clerk would hand the defendant the plaintiff's cheque for Bs. 5,676.17.The clerk inspected and counted the coolies, and took the gang withhim. On the way three of the coolies bolted. The discharge tickets weresent by defendant by post to the plaintiff; but with respect to four coolies,the tickets were either defective or missing.
The discharge ticket of one of the four coolies (Mariaxnma) did notshow how she came to be employed at Mahatenne. It appeared thatshe had never previously been employed on an estate, but was residingin Colombo. She was engaged without a Magistrate's certificate bythe defendant.
This cooly and another of the four died on the estate. The othertwo shortly afterwards passed on with the kangany to another estateAnd were there engaged, having obtained Magistrate’s certificates; The
( 431 )
superintendent of this estate paid to the plaintiff the whole of the amount(subject to certain immaterial deductions) which the latter had paid onthe original tundu, and the kangany gave a promissory note for this amountto the new employer.
The plaintiff sued the defendant for damages: {a) for refund of the amountpaid in respect of these seven coolies on the tundu ; and (6) in respect *ofihe loss of their labour.
Held, (1) That the defendant was not responsible for any loss incuurredby the plaintiff through coolies bolting en route.
As Mariamma was, whether rightly or wrongly, employed uponMahatenne estate, and had been entered upon the register of the estate,she could have been passed on upon the discharge ticket.
The defect disclosed upon the face of the ticket might no doubt subjectthe superintendent of Mahatenne to a criminal penalty, unless it was provedthat the woman was in fact born in Ceylon. But this did not preventthe plaintiff employing the cooly.
There was a breach of contract with respect to- the other three
coolies. “ By including them in his tundu the defendant impliedly guaranteedthat they were in his employ, and that he would do everything necessaryto terminatetheir employment with him and to enablethemlegally
to be engaged by the plaintiff. The plaintiff is, prima facie, entitled todamages under both heads (a) and (b) mentioned above.’1
Held, further,however, (1) That,in respect of the claimfor arefund
of a portion of the amount of the tundu, the plaintiff having recoveredthe full amount of the tundu was not entitled to any damages,and could not recover any damages on behalf of the kangany, inasmuchas the kangany had suffered no actual damage by any act for which thedefendant was responsible; and
(2) That, in respect of the claim for loss of labour, the plaintiff wasonly entitledtonominal damages,inasmuch as he couldhavesecured
the servicesofthe three coolies,other than Mariamma,by procuring
Magistrate's certificates.
1918.
Box v. PtiUe-nayagam
rjpHE facts are set out in the judgment.
Bawa, K.C. (with him L. H. de Alwis), for the defendant,appellant.—The entire contract is clear- from the letters readin evidence. There is no room for maintaining an action on animplied warranty when the correspondence is so clear. There is noguarantee that the defendant is responsible for the coolies who* donot go to the plaintiff’s estate either in the tundu (see form oftundu in 2 Gur. L. R. 12) or'in the correspondence.
“ Paying off ” coolies means leaving the coolies free to tafteemployment elsewhere. The tundu expired on August 30. ' OnSeptember 27 Mr. Box wrote to defendant asking whether he hadany objection to his taking on the gang; he merely wanted to knowwhether he was at liberty to contract with the kangany and thecoolies. The plaintiff’s clerk went to defendant's estate to take overthe coolies. The handing over the plaintiff's cheque by the clerkwas after .inspecting the coolies, and therefore, after the clerk
( 432 )
1918.
Box v. Pulle-nayagam
was satisfied that the statements in the tundu were correct. Thedefendant is not responsible for any coolies who may bolt en route.
Walker v. Cooke 1 did not hold that in circumstances such asare present here the defendant is liable for the bolting coolies. Ifit holds that it was wrongly decided. Counsel referred to TheBambrakelle Esizles Tea Co., Ltd., v. The Dimbula Valley Tea Go.tLtd.2
As to the objection to employing Mariamma, plaintiff has not provedthat defendant employed her after the Ordinance of 1909 came intoforce. Moreover, the plaintiff is protected by the discharge ticketgiven by the defendant.
The two other coolies, though they had defective discharge tickets,remained on the estate, and were later transferred on a tundu toanother estate by the plaintiff along with this gang.
The other cooly died on the estate. In any case the plaintiff isnot entitled to any damages, because when he brought this actionhe had transferred all the coolies to Sogama estate on a tundu,which included the whole amount he had paid to the defendant(including the amount paid for these seven coolies). The plaintiffhimself admits that he has not lost any part of the advances. Heshould not be allowed to sue to recover damages on behalf of Muttiah,who gave a promissory note for the full amount to Sogama estate.Moreover, the kangany gave the plaintiff a promissory note for thefull amount as soon as he took service under him.
The contract created by the issue of a tundu is merely a contractof a novation of the debt, one creditor is substituted for another.By the issue of a tundu the defendant bound himself to pay off acertain number of coolies, and he was not responsible if the plaintiffcould not employ them. The plaintiff could have got coolies fromelsewhere, and therefore he was not entitled to damages. If at all,he is entitled to nominal damages.
Counsel referred to 14 N. L. R. 131 and 2 C. W. R. 306.
A. St. V. Jayawardene (with him J. W. de Silva), for the plaintiff,respondent,—The obligations arising from the issue of a tundu arecorrectly stated in Walker v. Cooke 1 and Periasamy v. The Anglo-American Direct Tea Trading Co., Ltd 2 Till the coolies arrive on thenew estate and their names appear on the check roll, the paying-offestate is liable. It is only after such employment that the respon-sibility of the paying-off estate ceases. The new employer sends anagent to bring the coolies, but he does not decide the questionwhether the tundu had correctly stated the facts in every detail.
As to damages, can it be said that the paying^off estate is notliable because the kangany gives a promissory note ? The promis-sory note is only a security that the coolies would pay the amountmentioned in the note by working on tht estate. See Wkitham v.
1 {1910) 14 N. L. R. 161.2 (1910) 2 Cur. L. R. 12x
2 (1911) 14 N. L. R. 366.
( 433 ;
Pitohe Muttu Kang any;1 Imray v. Palawasen* In consideringthe question of damages, a proportionate amount of the totalamount of the tundu must be deducted for each cooly not supplied.Otherwise the paying-off estate, after issuing a tundu, may keepback all the coolies who are not indebted to “the estate, and saythat the plaintiff has not sustained any damages.
Our cause of action is that instead of fifty-nine coolies thedefendant gave us fifty-two coolies. The transfer of the coolies toanother estate on a tundu has nothing to do with the obligations ofthe defendant. He has broken the contract, and is liable in damages.
[Argument was adjourned for the next day.]
De Silva continued the further argument for the respondent-—The defendant has broken his contract to supply coolies, and he isliable in damages, even without proof of specific damages.
In the Bambrakelle case 3 damages were allowed calculated at aproportionate part of the total amount of the tundu. As properdischarge tickets were not given, the defendant is liable in damages.
Counsel referred to Soysa v. Anglo-Ceylon and General Estates Co.*
Bawa, K.C., in reply.
Cur. adv. vult.
November 27, 1918. Bertram C.J.—
/•
This case arises out of a tundu given by Mr. Pullenayagam ofthe Mahatenne estate to Mr. Box of the Cholankande estate forfifty-nine coolies (including the kangany, Muttiah). Only fifty-six(including the kangany) appeared at Cholankande, three havingbolted en route. In the ease of four others, whose names wereincluded in the tundu, the . discharge tickets were said to bedefective, or wanting altogether, and it is in respect of these sevencoolies that the action is brought- Damages are claimed, and havebeen awarded, under two heads: —
As a refund of the amount paid in respect of these seven
coolies on the tundu.
In respect of the loss of their labour during the period for
which the gang was employed on Cholankande estate.
It may be mentioned that the cases of these seven coolies remainover after the adjustment between the parties of numerous othercases of coolies in the same gang, who were wrongly named, orwrongly described, or whose discharge tickets or registrations wereotherwise defective.
The three bolters consisted of two Sinhalese and a man who wasentered in the tundu as Weerappen, but in the estate registerand in his discharge ticket as Ramasamy. There was a dispute asto this man, and Mr. Box declined to admit that the man referredto in the discharge ticket as Ramasamy was identical with the
1 1902‘ 6 N. L. B. 289.3 (1910) 2 Cur. L. B., at p. 17.
1(1900) 4 N. L. B. 113.* (1916) 19 N. L. B. 374.
1918.
Box v. PuBe-nayagam
( 434 )
1918.
TtWWPftAllf
O.J.
Box «. Pulle-nayagam
bolting cooly Weerappen, but I am satisfied that the facts areas I have stated them. I will first consider whether Cholankandeestate was entitled to any damages at all in respect of these bolters.
In my opinion an estate which pays off labourers to anotherestate on a tundu is not responsible for any loss incurred by thelatter through coolies bolting en route from one estate to the other.There is no express guarantee to this effect in the ordinary tundu,and no such guarantee could be reasonably implied from thecircumstances of the case. The paying-off superintendent has nocontrol over the coolies when once he has discharged them. Hecannot prosecute them for bolting, as they are no longer in hisservice. Why, then, should he be supposed to guarantee that theywill present themselves?
The claim for a refund of the amount paid in respect of the debtsof the three bolters in this case is based 'upon the decision of thisCourt in Walker v. Cooke.1 In that case Hutchinson C.J. said: “ Doesthe man who gives the tundu undertake to hand over the cooliesto the man who pays him, and that they will leave the estate withhim? Or, does he merely undertake that he has the specified numberof coolies on his check roll and working on his estate, and that hewill pay them off and terminate their employment with him?
(page 162)When he receives that amount from another
planter, B, both parties intend that B shall get some considerationfor his payment; and the consideration is that the coolies willtransfer their services to him, their indebtedness for their advancesbeing transferred to him; and he takes a note from their kanganyfor the amount. The paying-off planter is bound to hand thecoolies over to B or his representative; if he fails to do that, eitherbecause they have bolted, or because they refuse to go to B, or forany other reason, he has not fulfilled his part of the bargain. Ithink that this custom is sufficiently well established for the Courtto take judicial notice of it. . . .
Middleton J. said:“The issue of the tundu warranted further
that the coolies were willing to enter the employment of any personwho took over and paid their debt, and that the present employerwas in a position to hand them over to a new one. …. Thecase is by no means free from difficulty, being one of a contract inconnection with the disposal of the services of free human beings,but, 1 think, its construction must involve the obligation of thegrantor of the tundu to be in a position to deliver over the men whenthe new employer comes to take over. . . . . 99
That case was, however, not a case of coolies bolting en route. Itwas a case in which, after a tundu had been accepted and the chequepaid, a sub-kangany and his gang declined to accompany the headkangany and the other coolies, on the ground of a dispute betweenthe head kangany and the sub-kangany as to the amount of the
'{1910) 14 N. L. R. 161.
( 486 )
debt of the latter to the former. All that the case really decidesis that a planter issuing a tundu impliedly guarantees that thecoolies mentioned in the tundu are willing-^r, to speak morestrictly, have intimated their willingness—to transfer their services.If the coolies who have, expressly or impliedly, intimated thiswillingness after discharge bolt en route, that is an entirely differentmatter. The reference to ” bolting ” by Hutchinson C.J. in theextract above quoted appears to have been a reference to boltingbefore discharge, and was purely obiter. Middleton J. could nothave meant to lay down that the paying-off „ superintendent wasresponsible for the debts of coolies bolting en route. This is plainfrom the case of The Bambrakelle Estates Tea Co., Ltd-, v. The Dim-bula Valley Tea Co., Ltd., 1 where he says (on page 16): “ It is per-fectly clear, that the person issuing the tundu cannot compel the cooliesto go to the estate of the person who pays their debts or to remainthere, and if they desert on the road or after reaching the estate,the person discharging them could not be made liable on that groundalone”
The ease of Walker v. Cooke (supra) is thus no authority for theproposition that the paying-off superintendent guarantees that thecoolies paid off will present themselves for employment, and, inmy opinion, in the absence of an express undertaking, no suchobligation can be imputed to him. The kangany expresses thebusiness view of the situation: “ The loss resulting from such boltingmust be borne by me, the kangany. That is the usual practice.”
In the case, however, a special ground for damages in regard tothe bolting of two of these coolies is contended for. They wereSinhalese coolies, and it is said that the tundu guaranteed thatnone of the coolies were Sinhalese. The schedule to the tundu hadthe following note appended: “ If any Sinhalese are in the gang, thenumber and sex of these should be mentioned, ” and there is anobiter dictum of Middleton J. in the Bambrakelle case that where,on a tundu in this form, no mention is made of Sinhalese, this is animplied warranty that “ there are no Sinhalese in the gang.” Evenif this dictum is accepted, however, it does not assist the plaintiff-These coolies did not bolt because they were Sinhalese, nor is boltinga natural or probable consequence of a cooly’s being a Sinhalese.Nor has any evidence been given to show that if the plaintiffhad known that the gang comprised two Sinhalese, he would haverejected the tundu, or required their exclusion. I do not think,therefore, that any special case for damages has been made out asto these two coolies, on the ground that it was not disclosed thatthey were Sinhalese.
We now come to the cases of the four coolies whose dischargetickets are defective or missing. The first of these was a womancalled Mariamma. Her discharge ticket described her as twenty
* {1910) 2 Our. L.R. 12.
1918.
BranuH
C.J.
Boat v. Pvtte-noyagam
( 436 )
1918.
Bbbtbam
O.J.
Box v. PuQe*nayagam
years of age, and as of the village of Madamangalam, and gave her“ estate where last employed ” as “ Colombo,” and the date of herengagement at Mahatenne as February 14, 1913. That part ofthe discharge ticket which should have stated how she came to beemployed at Mahatenne, as in the case of several other tickets issuedin connection with this tundu, was not filled up. It appeared uponinquiry that she had never previously been employed on anestate; that she had been sent for by her parents, when a girl,from a Colombo boutique, where she was employed,- and wasengaged without a Magistrate’s certificate. It was suggested thatshe was born on the estate, and so could be engaged without acertificate, but there was no evidence of this. As upon the faceof the discharge ticket her engagement appeared to have beenirregular, Mr. Box declined to accept her, and now claims damagesin respect of her. She was allowed to remain upon his estate,where she shortly afterwards died.
Mr. Box, who dealt with the numerous points arising on thistundu with great patience and exactitude, and who acted on legaladvice, was, no doubt, most anxious in all respects strictly to complywith his obligations under the Labour Ordinance, but in this casehe was, in my opinion, unnecessarily conscientious. Rightly orwrongly, the woman had been employed upon Mahatenne estate,and had been entered on the register of the estate, and could,therefore, be passed on upon a discharge ticket. She comes withinthe express words of section 24, i.e., she was a “ labourer ” quittingthe service of an employer ‘‘ by means of a document known as atundu.” The defect disclosed upon the face of the ticket mightno doubt subject the superintendent of Mahatenne to a criminalpenalty, unless it was proved that the woman was in fact born inCeylon. There is, indeed, some authority for the view on whichMr. Box acted in an obiter dictum of Middleton J. in the Bambra-kelle case: “ I think the tundu also impliedly warrants that thegrantee has not knowingly infringed any of the penal provisions ofthe Labour Ordinance in regard to the engagement or employmentof the coolies whom he seeks to discharge on payment of their debtsby a new employer.”
Middleton J. no doubt intended to confine this observation to suchinfringements as would legally preclude the new employer fromengaging the transferred cooly. I do not know what particularinfringements he had in mind as being of this nature, but, as atpresent advised, I do not think that the infringement relied onin this case was in infringement of this nature. I do not think,therefore, that damages can be claimed in respect of this coolyunder either head.
The other three coolies were named Parvadi, Caderai, andPeriacarpen- Parvadi, though a discharge ticket was issued inrespect of her, and though (in my view of the facts) she was included
( 487 )
in the iundu, was described as " non-existing." This apparentlymeans that she was never entered on the Mahatenne register, a iaetwhich is admitted. Mr. Box could not, therefore, engage her on theiundu. She remained on the estate, and shortly afterwards diedthere. There was no discharge ticket for Caderai, but one wasproduced for a woman under a name Pootchie, which was said to bean altos for Caderai. There were several aliases in this gang, andin these cases the check roll name and the iundu name did notcorrespond. No adjustment was made in this case, and Mr. Boxdeclined to accept for Caderai a ticket in the name of Pootchie.No discharge ticket was produced for Periacarpen at all, and noexplanation was given for its absence. Caderai and Periacarpenwere allowed to remain for the time being on the estate. Shortlyafterwards the gang to which they belonged were transferred on aiundu to Sogama estate. Caderai and Periacarpen passed on withthem, having obtained a Magistrate's certificate for engagementeither at Sogama or at Cholankande, probably the former.
With regard to those three coolies, it seems to me that there wasa definite breach of contract. By including them in his iundu, thesuperintendent of Mahatenne impliedly guaranteed that they werein his employ, and that he would do everything necessary to terminatetheir employment with him and to enable them legally to be.engaged by the superintendent of Cholankande. The latter, therefore,is, prima facie, entitled to damages under both the headsmentioned above, i.e.:—
(а)In respect of the money paid out on the iundu on account ofthese coolies; and
(б)In respect of the loss of their labour, the securing of which wasthe object for which he paid out his money.
1018.
Buronmff
OX
Box v. Pulle-nayagam
With regard to the first of these heads, the damages to which asuperintendent in this situation is entitled must, it seems to me,depend on the circumstances of the case. It may be the actualdebt of each cooly whose services are not made available, or it maybe a proportionate part of the total debt of the gang. In Imray v.Palawasen1 and Whitham v. Pitche Muttu Kangany2 it was held onthe facts in those cases that each individual cooly must be taken asdirectly indebted to theestate,and that the kangany was onlythe
* guarantor to the estateofthetotal debts of the gang. Those cases
must, however, now be read in the light of the observations madeupon them by Middleton J. in Aiyappen Kangany Anglo-American Tea Trading Go., Lid.2 In such a case, if similar factswere proved, the appropriate measure of damages under this headwould appear to be the actual amount paid out in respect of thedebt of the coolies whose services were not made available- Thiswas the measure adopted in Walker v. Cooke.* In other cases, if
1 {1900) 4 N. L. R. 113.* (1911) 15 N. L. R., on pp. 27, 28.
* (1902) 6 N. L. R. 289.4 (1910) 14 N. L. R. 161.
( 438 )
1918.
Bertram
O.J.
Box v. Pulle*nayagam
I rightly understand the tundu system, the coolies are not indebtedto the estate but to the kangany, and the kangany is the only personwho is directly indebted to the estate. The debt of the coolies tothe kangany is not necessarily the same as the debt of the kanganyto the estate. It may be less, but in some cases—sometimes spokenof as those of the “ solvent kangany ”—it may even be more. (0/..Kitncn Kangany v. Young1 and Aiyappen Kangany v. Anglo-American Tea Trading Co., Ltd.,2 and see Report of the LabourCommission, 1909, paragraph 6.) In such a case the kangany isreally contracting to supply so many coolies at so much a head, andthe appropriate measure of damages might well be a proportionatepart of the total. This was the measure of damages adopted in theBambrahelle case. As it turns out, it is not necessary for us toinquire what is the appropriate measure in the case now beforeus, as it appears to me that, in view of the subsequent actiontaken by the plaintiff, he. is not entitled to any damages underthis head at all
As has already been mentioned, Muttiah Kangany’s gang didnot stay very long at Cholankande, but were transferred on anothertundu to Sogama estate. On the occasion of this transfer, inmaking up the account for the purpose of the new tundu, Mr. Box(subject to certain deductions and additions hot material to consider)included the whole amount he had paid to Mahatenne estate inrespect of the original tundu, and including, therefore, all thathe had paid in respect of these seven coolies. Mr. Ayscough, thesuperintendent of Sogama, actually paid him a cheque for this sumand took a promissory not for the corresponding amount fromMuttiah Kangany. Thus, as Mr. Box himself puts it, “ By thoseseven coolies not being sent to me, I suffered no pecuniary loss inthe sense of losing any of the advances.” I do not see, therefore,how he can recover any damages in respect of a supposed loss ofthese advances.
The explanation of the claim for damages is that Mr. Box conceiveshimself as suing for damages under this head, not on his own account,but for the benefit of Muttiah Kangany, who has shouldered theliability by giving a promissory note for the whole amount toMr. Ayscough. Though he made no absolute promise to MuttiahKangany, he explained this to him at the time. But I do not see onwhat principle he can do this. When a man has insured himselfagainst any possible damage that may accrue to him through theact or default of another, and recovers the amount insured fromin insurer, he suffers in fact no damage, except what he has paidfor the premium. But he is entitled to sue the person primarilyresponsible for the benefit of the insurer, or, to put it in anotherway, the insurer is entitled to sue in his name- Mr. Box seems tohave regarded Muttiah Kangany (whose promissory note he held)
»(1911) 14 N. L. B. 435.2 (1912) 15 N. L. B. 19.
( 439 )
as being, by virtue of that promissory note, an insurer of Mr. PuIIe-nayagain’s liability to him. But, even if Mutti&h Kangany can beregarded as paying (or procuring the payment of) the amount ofthis liability as an insurer—and, as at present advised, I am notconvinced that he can be regarded as acting in that capacity—theonly amount which Mr. Box could claim, when suing for MuttiahKangany’s benefit, would be the amount of damages which MuttiahKangany has incurred through Mr. Pullenayagam's default. As faras Muttiah Kangany is concerned, he has lost nothing, or. at anyrate, nothing that he can hold Mr. Pullenayagam responsible for.As far as the three bolters, he admits that the loss must fall on him.Of the other four coolies, two are dead (and Mr. Pullenayagam isnot responsibe for their deaths), while the other two are stillmembers of the gang at Sogama, and the kangany’s hold over themfor the purpose of receiving their debts is exactly what it was before.Even, therefore, if Mr. Box could sue for the benefit of MuttiahKangany, neither he nor Muttiah Kangany has suffered any lossunder this head for which Mr. Pullenayagam can be held responsible.No claim, therefore, lies for any damages under this head-
There remains the claim for damages in respect of “ loss oflabour.'1 There can be no doubt that if the proper number oflabourers specified in a tundu are not furnished by reason of causefor which the original employer is responsible, the new employer canrecover, not only the proper portion of the amount advanced, butalso damages for loss of labour. Every labourer is worth somethingto an estate, and if the superintendent does not get the number hebargained for, he is entitled to be compensated. But the personclaiming damages must put forward some basis on which the Courtcan calculate them. In this case the Court is afforded no materialat all for the purpose. In the plaint a sum is claimed enough tobring up the total damages to a round figure, and the District Judgehas awarded this amount, but,, for anything that appears, hemight equally well have awarded half or double that sum. If itwere necessaiy to assess damages in this case, the case would haveto go back to the District Judge for further inquiry for this purpose.I do not think, however, that this course is necessary, as, in thecircumstances of the. case, I am of opinion that the plaintiff isentitled only to nominal damages. It is the duly of any personwho has a claim for damages against another for some act or defaultto do all that is reasonably possible to minimise the damages; inthis case all the three coolies in question were present upon Cholan-kande estate, and were prepared to work on the estate; the only-difficulty was that of the discharge tickets. One had an invaliddischarge ticket, for the second a discharge ticket was tendered ina wrong name, and the third had no discharge ticket at all. It was.open to Mr. Box, however, to secure the labour of these coolies, if he*required it, by applying for a Magistrate's certificate. He was no%
1918.
BntTHAW
C.J.
Box v. PvUe-nayagam
( 440 )
1918.
Bertram
OiJ.
Boxv.Pulle-* nayagam
bound to take this course, and, in view of the trouble he had hadabout this tundu, it is, perhaps, not surprising that he did not do so.Had he done so, his damages would have been reduced to a nominalsum. The only damages, therefore, which he can claim are, in myopinion, nominal damages. Mr. Box was no double put to a verygreat deal of personal trouble and some expense through the defaultof the paying-off employer; but, though he may be entitled tosympathy on that account, the Court cannot award “ moral andintellectual damages ” in respect of such incidents of business life.
In my opinion the plaintiff is entitled to judgment in respectof the three coolies mentioned, with nominal damages, and to hiscosts in the Court below; but the defendant having substantiallysucceeded on the appeal, is entitled to his costs of the appeal. Thedecree of the District Court should be amended accordingly.
Shaw J.—
The defendant, who is the superintendent of Mahatenne estate,issued a tundu, dated August 23, 1915, undertaking to pay offMuttiah Kangany and fifty-eight coolies on payment of their debts,Rs. 5,676.17, within one month. On September 27 the plaintiff,who is superintendent of Craighead estate, wrote to the defendantasking whether the coolies were all working coolies, and whether thedefendant had any objection to his taking on the gang, althoughthe time specified in the tundu had expired. On September 28 thedefendant replied that he had no objection to the plaintiff takingon the gang, and that they were all good working coolies; and onSeptember 30 the plaintiff sent his clerk to Mahatenne with aletter to the defendant asking him to permit the clerk to see thecoolies, and saying that if he found them all there, and things wereas represented to the plaintiff by Muttiah Kangany, the clerk wouldhand the defendant the plaintiff's cheque for Rs. 5,676.17 onpayment of their debts, and he asked the defendant to then paythe coolies off and send their discharge tickets.
The plaintiff’s clerk, and a kangany he brought with him, mustered,inspected, and counted the coolies, and then handed the plaintiff'scheque to the defendant- The defendant then paid off the gangand gave a general discharge note, stating that official dischargetickets would follow by post, and the gang then left Mahatennewith the plaintiff's clerk and kangany.
On the way to Craighead three of the coolies bolted, two beingSinhalese coolies named Kira and Maria and one a Tamil coolynamed Weerappen.
The discharge tickets arrived some time later. There were,however, no discharge tickets to two of the coolies named PeriaCarupen and Caderai, and the discharge ticket for another cooly,Mariamma, did not show that she had a Ragama or Magistrate'sbertificate, or that she was bom in Ceylon.
( 441 )
There was also no discharge ticket in the name of Weerappen,one of the coolies who bolted in transit. There was, however, adischarge ticket for a cooly named Ramasamy, which name theevidence shows was an alias for Weerappen.
A cooly called Parwady arrived with the gang at Craighead, forwhom no discharge ticket was sent. It does not appear from theevidence, however, that he was even one of the gang included inthe tundu, and had he arrived with a discharge ticket, he would havemade one more than the number of coolies included in the twndu.
After the coolies and discharge tickets arrived at Craighead, adispute arose between plaintiff and defendant, the 'plaintiff allegingthat the defendant had committed a breach of contract in respectof the seven coolies named. Muttiah Kangany and the gang,however, remained on at Craighead, and they were entered on thecheck roll of that estate, with the exception of Mariamma, PeriaCarupen, Caderai, and Parwady, and Muttiah Kangany gave to theplaintiff a promissory note in respect of the full amount of thedebts of the entire gang.
In November, 1916, before the present action was brought, theplaintiff paid off the gang to Sogama estate, and received from thesuperintendent of that estate the full amount of the debt of the gang.
Mariamma and Parwady died on the plaintiff's estate prior tothe transfer to Sogama, and Peria Carupen and Caderai obtainedMagistrate's certificates, and are still in Muttiah Kangany *s gangon Sogama estate.
The District Judge has found that there was a breach of contractin respect of the seven coolies referred to, and has given judgmentfor the plaintiff for Rs. 1,000 damages, being Rs. 778 the proportionof the debt of the entire gang attributable to seven coolies, thebalance being general damages.
I find myself unable to read into the contract the various repre-sentations and warranties suggested on behalf of the plaintiff. Allthat can be gathered from the tundu itself and the correspondenceis that the defendant undertook, on receipt of the amount, of thedebt of the gang, to pay off the coolies named, and place theplaintiff in a position to legally employ them. No evidence of anycustom has been given that justifies our reading into the contractany warranty that the coolies will not bolt during the transfer toCraighead, or that there are no Sinhalese amongst the gang. Nordo I think that any such custom has been sufficiently establishedby judicial authority. The whole contention seems to be basedon certain dicta of Middleton J. in The Barnbarahelle Estates Tea Co.,Ltd. The Dimbula Valley Tea Co., Ltd., 1 and Walker v. Cooke. 2In the former case, however, at page 16, the learned Judge makes itclear that in his opinion, the paying-off estate would not be liable ifthe coolies bolted in transit to the new estate. As a matter of fact, it
1918.
Shaw J.
Box v. Putts-nayagam
1 (1910) 2 Gut. L. R. 12.
*(19W) 14 N. L. R.161.
( 442 )
1818;Shaw J.
JBmv. PuUe-nayagtun
appears from the plaintiff’s evidence that the real objection to thetwo coolies Kira and Maria was, not that they were Sinhalese, butthat they had bolted on the way to Craighead, for which the defendantis, in my opinion, clearly not unswerable. The plaintiff has, as hehimself admitted, sustained no damages in the sense of having lostany of the money paid to the defendant in respect of the coolies’debts, because he received a promissory note for the full amountfrom the kangany, which was paid off on the transfer of the gangto Sogama, He cannot, therefore, recover anything in respect ofthis from the defendant. The damages in respect of which theplaintiff can recover from the defendant appear to me to be theloss he incurred in not having been given by the defendant properdischarge tickets, so that he could at once legally employ Mariamma,Peria Carupen, and Caderai. The first of these, even if not bornin Ceylon, had never previously been employed on an estate, anda Magistrate’s certificate could easily have been obtained for herif she had not died. With regard to the other two, reasons for theabsence of discharge tickets do not very clearly appear, but theynvQ now employed with the gang at Sogama on Magistrate’s certi-ficates. The plaintiff has not proved any specified loss to havebeen, sustained by his estate under this head of damage.
I therefore agree that it must be assessed at a nominal amountonly, and agree with the order proposed by the Chief Justice.
T)b Sampayo J.—
This case has been referred to a bench of three Judges, in orderlhat certain legal questions as to the nature of the obligation under-taken by the superintendent of an estate when he issues a tundu forhis coolies may be considered. The tundu, which forms the basisof this action, is not forthcoming, but it appears to have been in theusual form, and referred to Muttiah Kangany and fifty-eight coolies,whose debts were stated to be Bs. 5,676.17. The plaintiff allegesin the plaint that “ by the terms of the said tundu, expressed andimplied, the defendant warranted, inter alia, (1) that all the 6aidlabourers were in his legal employment, and available to be paid offby him; (2) that there were no Sinhalese in the gang; (3) that he hadnot infringed any of the penal provisions of the Labour Ordinance inregard to the engagement or employment of the labourers referredto in the said tundu, or any of them; and (4) that upon payment tohim of the said sum of Bs. 5,676.17, he would pay off the saidlabourers from his service, and would enable a new employer toemploy them under the provisions of the Labour Ordinance. ” Anissue was stated at the trial as to whether the defendant made therepresentations set out in the plaint.
It may be stated at once that the last of the above allegations iscorrect. There is no question that a superintendent whose tunduis accepted is obliged, not only to discharge the coolies, but to fulfilcertain other conditions, such as the issue of discharge tickets, as
( 443 )
required by the Labour Ordinance, so as to enable tEe new employervalidly to take the coolies into his service. The obligation to payoff also implies that the coolies are willing to leave and take employ-ment in the taking-on estate. Walker v. Cooke.1 I do not thinkthat this obligation extends further. It is supposed that thedecision just mentioned is an authority for the proposition that thepaying-off planter is bound to deliver over the coolies to the newemployer, with the result that the former would be liable for breachof contract if the coolies bolted on the way before they reached theestate of the latter. The language of the learned Judges does notbear that construction. Hutchinson C.J. said: “The paying-offplanter is bound to hand the coolies over to the *taking-on planteror his representative; if he fails to do that, either because they
have bolted, or because they refuses to do or for any other
reason, he has not fulfilled his part of the bargain. " Middleton J.<aid that the contract “ must involve the obligation of the grantorof the tundu to be in a position to deliver the men when the newemployer comes to take over. ’’ The custom is for the planter whoaccepts the tundu to send his head kangany or other responsibleperson to the paying-off estate to be present at the discharging ofthe coolies and bring them to the new estate. The grantor of thetundu cannot discharge the coolies at any time and without referenceto the presence of the acceptor of the tundu or his representative,and in that sense he may be said “ to deliver over the coclies. l>I think that this is all that was meant by the learned Judges, andI think there is no further obligation in this respect.
1918*
Pe SampayoJ.
Box v. Ptdle-nayagam
The other terms alleged to be implied in a tundu require someconsideration. To what extent does the paying-off planter warrantthat the coolies are in his legal employment ? In my opinion suchwarranty can exist only so far as is necessary to ensure the vahdengagement of the coolies by the new employer. For example, $hecoolies must not be “ bolters, “ who are still bound by a contractof service to some other estate, and whose employment under thepaying-off planter is therefore precarious. But the plaintiff in thiscase wishes to go further, and require that the paying-off plantershall not have infringed any of the penal provisions of the LabourOrdinance. Thus, he claims damages in respect of the cooly womanMariamma, for whom the defendant himself held no dischargeticket or Bagama certificate or a Magistrate's certificate. In thesecircumstances, the defendant may have incurred the penalty pro-vided in section 23 of the Ordinance No. 13 of 1889, as amended bythe Ordinance No. 9 of 1909, .but Mariamma was in his bona fideemployment, and had not been employed elsewhere before, andthere was no reason why he could not pass her oif to plaintiff, whohaving received a discharge ticket for her from the defendant, wasquite able validly to take her into his service. In my opinion there
1 (1910) 14 N. L. B. 161.
( 444 )
1918.
De SamfayoJ.
Boa v. Ptdle-nayogom
is no warrantly implied in a tundu as regards the legality of theemployment of a oooly under the paying-off planter, beyond thelimited one I have above indicated.
With regard to the inclusion of two Sinhalese coolies in the tundu,the point is not very clear. The very large majority of labourersemployed on estates in Ceylon are, of course, Indian coolies, and atundu may generally, especially in the up-country districts, relateto that class of labourers. But there is nothing to prevent tundusbeing given for Sinhalese coolies if any are employed on an estate,and, indeed, I believe that such tundus are common in the low-country. There is no witness called to prove that a tundu is under-stood as warranting that none of the coolies are Sinhalese, and weare without any material to form an opinion as to what is therecognized custom among planters in this matter. It, however,one is to judge by the form of tundus adopted by the LabourFederation of Ceylon, and said to be similar to those issued by thedefendant and accepted by the plaintiff, no such implication appearspossible, for there is a direction, as regards the particulars requiredto be stated, that “ if any Sinhalese are in the gang, the numberand sex of these should be mentioned. This shows that tundusmay include Sinhalese coolies.
The only other point I need touch upon is with regard to themeasure of damages. If the taking-on planter does not repudiatethe entire contract, but only claims damages in respect of anyshortag of coolies, what are his damages ? Of course, he may claimdamages in respect of the loss of services of the coolies for such timeas may be necessary to procure elsewhere an equivalent number ofcoolies. But as regards the money paid on the tundu, how muchcan he reclaim ? Is it a proportionate share of the total amount,or the actual debts of the coolies included in that amount ? Thetundu system does not involve a detailed account of the individualdebts making up the amount of the tundu. The reason, perhaps,is that generally estates do not keep the separate accounts of theindividual coolies, and the matter is also complicated by the factthat the debts due by the coolies to the kangany are not the sameas the estate advances which the kangany guarantees. But thetaking-on planter is only concerned with the whole amount he pays,and the size of the gang for which he pays it. In this point of view,he appears to me to be entitled to reclaim so much pe/ head inrespect of the missing number of coolies, and in The BambrakeileEstates Tea Go., Ltd., v. The Dimbula Valley Tea Go., Ltd.,1 thiswas considered not unreasonable. In view of the result of this action,however, it is unnecessary'to discuss this question further.
I agree with the opinion expressed by the Chief Justice as regardsthe facts, and I concur in the order proposed.
Varied.
1 (1910) 2. Cur L. R. 12.