124-NLR-NLR-V-56-DHARMARATNE-Appellant-and-FERNANDO-Respondent.pdf
498
WEERASOORIYA J.—Dharmaratne «. Fernando
1955Present: Pulle J, and Weerasooriya J.
DHARMARATNE, Appellant, and FERNANDO, RespondentS. C. 102—D. C. Kalutara, 29,062M
Prescription Ordinance (Cap. 55)—Sections 6, 7,8—Goods sold and delivered—Actionfor- purchase price—Promissory note as evidence of unwritten promise—Prescriptive period.
Where a purchaser of goodB gave the seller, at the time of delivery of the goods,a promissory note in respect of the balance purchase price due from him, and theseller, in his suit for the balance price,relied on the promissory note as evidenceonly of an unwritten promise and did not actually base his action on thopromissory note—.
Held, that, in regard to the issue of prescription, the action was governedby section 8, and not section 7, of the Prescription Ordinance ;tho prescriptiveperiod was therefore one year only, and not three years.
J^^PPEAL from a judgment of the District Court, Kalutara.
Vernon Wijetunge, for the defendant appellant.
Cecil de S. Wijeralne, for the plaintiff respondent.
Cur. adv. vult.
March 22, 1955. Weerasooriya-J.—'
The 2nd defendant*JPPeals against the judgment and decree of thoDistrict Court of Kalutara ordering him to pay the plaintiff-respondenta sum of Re. 800 being the balance purchase price of a motor van whichwas the subject of a sale transaction between the two parties.
WKERA8OORIYA J.—Dharmaraine v. Fernando
400
The plaintiff-respondent brought this action against the 1st and 2nddefendants alleging in the plaint, which was filed on the 24th April, 1952,that they had jointly purchased the van from him on the 3rd September,1949, for Ra. 1,800 of which a sum of Rs. 1,000 was paid to the plaintiffon the same day at the time of delivery of the van to the purchasers whopromised to pay the balance Rs. 800 within a month from that date andalso gave “ a writing According to the evidence adduced this“ writing ” is the promissory note PI by which the 2nd defendant alonepromised to pay the plaintiff the sum of Rs. 800 on demand. Aftertrial the learned District Judge dismissed the action against the 1stdefendant, holding that the van had been purchased only by the 2nddefendant against whom he gave judgment.-
The solo quostion for decision in this appeal is whether at the date ofthe filing of the plaint the action was already prescribed under s. 8of the Prescription Ordinance, which according to the appellant is thesection of the Ordinance applicable to this case.
It is common ground that the promissory note PI relates to the Rs. 800which is the subject of the present claim. It was conceded, howevor,by leumod counsel for the plaintiff at the hearing of the appeal that theaction is not based on it but is based on the alleged liability of the 2nddefendant (and also of the 1st defendant) in terms of the unwritten pro-mise to pay the Rs. 800 (being the balance purchase price) within amonth of the date of sale. That the plaintiff came into Court on thisbasis cannot be doubted, having regard to the terms of paragraph 4 ofthe plaint as well as issue No. 3. The plaintiff’s contention is that not-withstanding that the claim is in respect of goods sold and delivered,in view of this unwritten promise the question of the maintainability ofthe action is governed by s. 7 and not by s. 8 of the Prescription Ordinance.In upholding this contention the learned District Judge observed that anagreement with some degree of formality (whatever that may mean)was in the contemplation of the parties. Possibly he had in mind thedictum of do Sampayo J. in Walker, Sons <Ss Go. Ltd., v. Kandyah 1 thatthe term “ written contract ” in s.6 of the Prescription Ordinanceseemingly refers to a contract entered into with a certain degree of forma-lity and ho therefore thought that the term “ unwritten contract ” ins.7 must be given a corresponding meaning.
In addition to the above case, several decisions of this Court were citedto us as having a bearing on the point involved in this appeal. Most ofthose decisions were discussed in Assen Cutty v. Brooke Bond, Ltd. – which,it appoars to me, furnishes the answer to this point. That case is adecision of a 1 tench of two Judges, and it dealt inter alia w’itli a claim forthe recovery of damages on a breach of warranty as to the quality ofcortain goods sold and delivered on an unwritten contract, and the con-tention raised was whether the transaction was governed by s.7 ors.8of tho Prescription Ordinance. Macdonell C.J. took the view (at page178) that in a case of sale of goods the present section 8 refers only to thounwritten contract for which an action lies owing ,$o the fact of delivery ofthe goods and that where the action lies on some other ground as, forexample, a breach of warranty in delivering goods not up to sample (as» (1019) 21 N. L. R. 317 at 319.» 36 N. L. R. 169.
500
WEERASOORTYA J.—Dharmaratne v. Fernando
in that case) the present s.7 of the Ordinanoe is the governing section.In taking this view he seems to have adopted the reasoning of Ennis J.in CampbeUds Co. v.Wijesekere *, and of Bonser C.J., in Markar v. Hassen *,each of which is also a decision of a bench of two Judges. In the lastmentioned case the claim was for the balance purchase money for a steamlaunch which hod been sold and delivered by the plaintiff. The precisepoint which is raised in the present'appeal did not have to be decided inthat case, the only contention there being 'that a steam launch was not“ goods ” within the meaning of the present s. 8 That contention wasrejected by Bonser C.J. who in holding that “ goods ” mean movableproperty, also expressed himself in the following terms—
“ There is no necessary inconsistency between sections 8 and 9 (nowsections 7 and 8 respectively) of the Ordinance. An action for or inrespect of goods sold and delivered may be, as in the present case,an action upon an unwritten contraot.
I read soction 8 as providing that the period of prescription applyingto the actio venditi in general is to be three years, and section 9 asproviding that in the particular case of a sale of movables where therehas been a delivery to the buyer of the thing sold the period is to bereduced to one year. ”
In the separate judgment of Garvin J- in Assen Cutty v. Brooke Bond,Ltd. (supra) ho came to the same conclusion (at page 190) as MacdonellC.J. but on a different ground, namely that the operation of s. 8 must belimited to the recovery of debts due in respect of the matters specifiedtherein and that only such actions are excluded from section 7. Aspointed out by him in an earlier passage (at page 189) the decision of theFull Bench in de Silva v. Don Louis 8 brings within the operation of s. 6(to the exclusion of s. 8) all actions for or in respect of goods sold anddelivered based on written contracts, and if that case is also relied on toexclude from the operation of s. 8 all actions of a like nature when basedon unwritten contracts (a proposition for which that decision does notappear to be an authority and which was dissented from by Garvin J.himself) no effect whatever would be given to section 8.
Even if it be assumed as proved in the present case that at the time ofthe unwritten contract of sale there was annexed thereto a legally bindingagreement (also not in writing) between the seller and the purchaserthat the balance sum of Rs. 800 was not payable till after the expiryof a month, the contention of learned counsel for the plaintiff that byreason of that agreement the transaction is governed by s.7 to theexclusion of s.8 of the Prescription Ordinance is one whi .h appears tohave been rejected by both the Judges who decided Assen Cutty v. Brook-Bond, Ltd. (supra). Moreover, the' finding of the District Judge that the2nd defendant agreed to pay the balance. Suns of Rs. 800 unconditionallyis against this contention since that finding denotes that if there was anyunderstanding at all that the 2nd defendant could have a month’s timeto pay the balance it #as purely as an act of grace on the part of the
> (1920) 21 N. L. R. 431 at 435.* (1896) 2 N. L. R. 218.
* (1881) 4 S. CbO. 89.
Jiamalingam v. The Jaffnu Central Bus Co., Ltd.5u 1
plaintiff which had no legal consequences. The promissory note PIwhich provides for the payment of Its. 800 on demand confirms thisview.
In my opinion, on the authorities cited, this action must be held to havebeen prescribed within the period of one year under s. 8 of the PrescriptionOrdinance. That period had already elapsed at the date of the filingof the plaint.
The judgment and decree ordering the 2nd defendant to pay the sumof Rs. 800 are set aside and the plaintiff’s action is dismissed with costshere and in the Court below.
Pulle J.—I agree.
Appeal allowed.