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Present: Ennis J. and Loos A.J.
CAMPBELL & CO. v. WUESEKEBE.
101—D. G. Colombo, 47,033.
Prescription Ordinance, ss. 7, 8, and 9—Action for goods sold—Written contract—Repudiation of contract—What constitutes repudiation7
Section 9 of the Prescription Ordinance, 1671, does not apply to a contractof sale made in writing and signed by the parties; it applies to an unwrittencontract, which can be enforced by an action owing to the goods having beendelivered.
HE facts appear from judgment of the District Judge (P. E.Pieris, Esq.):—
Thedefendantinthis case,whois carrying on businessinColombo,
enteredinto . certainagreementswiththe plaintiffs,a tradingfirmin the
city ofLondon,bywhich heundertook to supplythem with aquantity
of Ceylon copra and coconut oil. The defendant delivered a certainproportion of these goods, but the plaintiffs complain that by hiscablesof May19and 22, 1916,he refused toabide byhiscontract
or make further shipments thereon, and they claim from the defendanta sum of £8,676 as damages.
( 482 )
The defendant, subject toanadmission of liability inrespect to an
item of £24. Be. which need not be discussed at this stage, denies thattherehas been abreachof hisagreement.Heavers that the cables
were despatched by bim merely with a view to making arrangementsfor a re-sale, thatnegotiations fora re-salewerecarried on till – June
2, 1916, when the defendant, finding that the parties could not agree,intimated to the plaintiffs that he would ship the balance due; theplaintiffs refused to accept such balance.
The limit of time fixed under the agreement had expired long beforethe despatch of the cables. The defendant says that that the time hadbeenextended bytheplaintiffs,who arenotprepared unqualifiedly
to admit the alleged extension. For the moment it may be assumedthat there was ' such an extension.The main question to decide ie
whatis the meaning tobe attached to thetwocables, and what was
their effect ….
It is abundantly evident fromthe documents which, sofar, havebeen
discussed that this was nottheintention of the defendant whenhesent
the telegrams P 1 and P 2. Those telegrams were, meant to be anexpress declaration ofdefault, and were understood assuch by the
plaintiffs, who took action on that footing. It was not open to thedefendant at a subsequent date and of his own choice to re-establish thestatus quo ante. Thetelegrams werea refusal onthepart of the
defendant,, to abide byand carry outhis contracts,andthe plaintiffs
accepted and acted on such refusal as a breach of the contracts.
In view of thisfindingitis not necessarytogo intothequestion
of the alleged extension of time, as that is no longer material.
The defendant has in the9thparagraph of his answersety upaclaim
in . reconvention, whichhe estimates atBs. 28,306.63.Hedeclares that
on the goods supplied by him between April 8, 1914, and Hay 26,1916, the plaintiffs intheir accountshave debitedhimwith certain
amounts not due from him.Theplaintiffshavereplied thatsuch a
claim is barred by prescription, and it is necessary to decide which sectionof the Prescription Ordinance, No. 22 of 1871, governs the case. Thegoods were supplied in terms of written contracts. The plaintiffs contendthat section 9 applies. This provides “ that no action shall be main-tainable for or inrespectofanygoods soldanddelivered, orfor any
shop bill or book debt,orforwork andlabour done,orfeu the
wages ofartisans,labourers,or servants,unlessthesameshallbe
brought within one year after the debt shall have become due."
Por the defendant it is urged that the section which applies is the7th,where it is laiddownthat “ no actionshallbe maintainable—upon'
any written promise, contract, bargain, or agreement—unless such actionshall bebroughtwithin sixyears fromthe dateofthebreachof
such written promise, contract, bargain, or agreement."
The principle to be followed in dealing with this question has beenlaid downby theFull Courtin the casereportedon page89 ofthe
Fourth Volume of the Supreme Court Circular. There the plaintiff claimedrent on a notarially executed lease.
It wasurged that the claimwas governedby section 8, which refers to
actions “ for the recovery of rent,” and not by section 7. The SupremeCourt held as follows:—“ We are clearly of opinion that it falls underthe7th section. Itwasargued that asthe8th section expressly
Campbell <9Co. v. Wye-eeJcere
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speaks of tent," the 7th section must apply to agreements other than1920.
agreements to pay rent under a lease. We think, however, that the~~ –
converse is the case, and that the word “ rentin the 8th section means GovWi^rent payable under obligations other than snch as are mentioned in'e there
Following this principle I hold that the claim in re-oonvention isgoverned by the 7th section of the Prescription Ordinance.
The cost of this trial will be the costs in the cause.
Samarawickreme (with him R. L.Pereira), for defendant,,
A. St. V. Jayawardene (with him Barthoiomeusz and Canakaratne)*for plaintiffs, respondents.
Cur. adv. vuIt..
March 2, 1920. Ennis J.—
In this case there is an appeal and a cross-appeal. The plaintiffsclaimed Bs. 53,625 for the breach of certain contracts to ship copraand coconut oil. The defendant admitted his liability on one ofthese cpntracts entered into in January, 1916; but for the contract,entered into in November, 1915, he denied his liability. Thelearned Judge found in favour of the. plaintiffs, and the appeal is bythe defendant.
It was argued for the appellant that the learned Judge was wrongin bolding that the defendant had repudiated the contract. Thealleged repudiation is found in the document P 1, in which thedefendant gave definite notice to the plaintiffs that he would notship the balance of copra and oil due under his contracts. It wasurged that in sending this telegram the defendant merely meant topropose that the plaintiffs should enter into a further contract withhim for the re-sale of the. balance. It is merely a question of fact.
The words of the document P 1 are not capable of that interpretation,,and the letters upon which the appellant relies do not show that the-plaintiffs had agreed to re-sell to the defendant any of the goods theypurchased.
It was next urged that if P 1 were a repudiation of the contract,,it was only operative if it had been accepted and acted upon. Somedistinction was drawn between the two positions of “ accepted ””and “ acted upon,” but I am unable to follow the argument uponwhich it was based, or to hold that the cases cited are authorities insupport of the contention. One of those cases was Johnstone v.
MRUng,1 Leake on Contract (p. 33) was also referred to. Both ofthese authorities seem to indicate that all that is necessary is tonotify the acceptance of the repudiation, and that would be sufficientacting upon the acceptance. The plaintiffs notified the defendant inP 16 as to the action they would take, offering to re-sell the balance of
1 16 L. J. Q.B.D, 460.
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Campbell &Co. «■ Wye-sekere
goods due at certain prices. This offer was subject to a reply intwenty-four hours. The defendant refused the offer. The oontraotthereupon terminated.
In the circumstances the appeal fails, and I would dismiss it,with costs.
With regard to the cross-appeal, this is an appeal by the plaintiffson a finding on the 17th issue that the defendant’s claim in recon-vention was not prescribed by section 7 of the Ordinance No. 22 of1871. The contention for the plaintiffs is that the defendant’s claimin reconvention is for the price of goods sold and delivered, and it isurged that section 9 of Ordinance No. 22 of 1871 applies. Section 9reads:—
“ No action shall be maintainable for or in respect of any goodssold and delivered, or for any shop bill or book debt, or forwork and labour done, or for the wages of artisans, labourers,or servants, unless the same shall -be brought within oneyear after the debt shall have become due.’’
No case has been cited to us where the words “ action for or inrespect of any goods sold and delivered ” has been brought underreview.
The defendant’s contract with the plaintiffs is a lengthy document,and has only to be glanced at to show that it is not an ordinary caseof goods sold and delivered.'
The contention for the plaintiffs was that sections 7 and 8 of theOrdinance No. 22 of 1871 exhaust the entire field tof the contract.Section 7 provided the limitation for actions on written contracts,and section 8 of the limitary period for actions on unwritten contracts,and that being so there was no room for section 9, unless section 9were regarded as a special enactment over-ruling the provisions ofsections 7 and 8.
The defendant, on the other hand, contended that section 7,which related to written contracts, would apply, and that sections 8and 9 must be read- together as both relating to unwritten contracts.The rule of construction was enunciated in the case of Pretty v.Solly 1 referred to in Craies Statute Law (4th ed., p. 201):—
“ The general rules which are applicable to particular and generalenactments in statutes (if they are repugnant) are very clear.The only difficulty is in their application. The rule is thatwhenever there is a particular enactment and a generalenactment in the same statute, and the latter, taken in itsmost comprehensive sense, would over-rule the former, theparticular enactment must be operative, and the generalenactment must be taken to affect only the other parts of thestatute to which it may properly apply.”
* (1859) 26 Beav. 606.
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So in this oase the only difficulty is not in the rule to be applied,but in the application. It is not easy to -s.ee whether section 7 wasmeant as a particular enactment over-ruling both sections 8 and 9or section 9, the particular enactment over-rules sections 7 and 8.The Full Court case of Silva v. Lewis 1 held that section 7 was sucha particular enactment as compared to section 8; while the oase ofMarkar v. Hassen * decided that, as between sections 8 and 9, section9 was the particular enactment. This oase was for goods sold anddelivered. Whatever that expression may mean, section 9 unques-tionably applied in the oase, and it was so held.
With reference to the meaning of the term “ goods sold anddelivered, ” I would refer to section 4 of the Sale of Goods Ordinance,No. 11 of 1896. (That Ordinance was enacted long after theLimitation Ordinance, but is referred to by way of illustration.)That section provides that a contract for the sale of goods shall notbe enforceable by action unless the buyer has accepted part of thegoods sold; or has paid the price or a part of it; or unleB thecontract has been reduced to writing and signed by the party to becharged. It would seem, them, that a contract for goods sold anddelivered applies rather to an unwritten contract, which can beenforced by an action owing to the goods having been delivered,rather than to the contract made in writing and signed by theparties. In the circumstances I would hold that this is not a caseof goods sold for which an action lies owing 'to the fact of delivery,but rather a case where the action is brought on the written contract,i.e., it is not the action which is concisely known as one for the priceof goods sold and delivered. I would accordingly regard section 7of the Ordinance No. 22 of 1871 as a special enactment over-rulingsection 9.
In the circumstances the decision of the learned District Judgeon the issue decided by him would be right. I would accordinglydismiss the cross-appeal, with costs.
Campbell <bCo. v. Wije-
* (1896) 2 N. L. R. 218.
1 4 8.0. C. 89.
CAMPBELL & CO. v. WIJESEKERE