( 215 )
Present: De Sampayo J.
FERNANDO et al. v. HAMIDD.
15—C. B. Panadure, 13,930.Assignment %f mortgage bond for a small consideration without disclosingthat part payment had been made—Action against assignor forthe balance—Can assignee recover more than the amount paid byhim from debtor t
The defendant, who held a mortgage bond tor Re. 300, assigned' it to the plaintiffs, in consideration of Be. 160 without disclosingthat Rs 144.13 had been previously paid by the mortgagor. – Theplaintiff was able to get judgment, only for the balance, Rs. 165.87,and sued defendant for Rs. 144.13.
Held, that the plaintiffs were entitled to judgment.
Obiter.—The assignee of a bond can recover the full amount ofan assigned instrument though it be more than he paid for theassignment, except, perhaps where the assignment is in the natureof a speculative or litigious transaction.
^HE facts appear from the judgment.
E. W. Jayawardene, for defendant, appellant.
Weeraratna, for plaintiffs, respondents.
( 216 )
May 21, 1919. De Sampayo J.—
The defendant, who held a mortgage bond for Bs. 800, assigned
it .to the plaintiffs, in consideration of Bs. 150 paid to Him by them.It appears to be common ground that nothing was disclosed in theassignment as to any part of the debt due on the mortgage bondhaving been previously received. The plaintiffs sued the mortgagoron the bond, in another action, and were there met with the defencethat out of Bs. 300 due on the bond a sum of Bs. 144.13 had beenpaid by the mortgagor to the defendant. The defendant wasinformed of this plea on the part of the debtor. The result of theaction was that the plaintiffs got judgment only for the balancesum of Bs. 155.87. Accordingly the plaintifEs have brought thisaction to recover from the defendant the sum of Bs. 144.13, forwhich they failed to get judgment in the previous action againstthe mortgagor. Practically the claim is made upon the footingthat the defendant had misrepresented matters to the plaintiffsand induced them to take the assignment. In the answer in thepresent case the defendant admitted that he had received from themortgagor the sum of Bs. 144.13, but pleaded that he had informedthe plaintiffs of that fact, and really meant to assign to the plaintifEsthe balance of the mortgage amount. The principal questionformulated as an issue at the trial was whether the defendantinformed the plaintiffs that he had received the sum of Bs. 144.13.Evidence was given by both parties, but the Commissioner foundthat plaintiffs knew nothing of .that payment until the plea ofpayment was put in by the mortgagor in the previous action, andhe accordingly entered judgment for the plaintiffs for the sum ofBs. 144.13, but disallowed the claim for the further sum of Rs. 100,which the plaintiffs had claimed as costs incurred by them in theprevious action. It seems to me that the judgment of the Com-missioner is perfectly right. Mr. Jayawardene, for the defendant,however, urged that an assignee of a bond of this kind could notby our law recover more than the amount paid by him for theassignment. This question was discussed long years ago, but notthen finally determined, but’ the view taken since has been that thefull amount of an assigned instrument can be recovered, except,perhaps, in a case where the assignment is in a nature of a speculativeor litigious transaction, but no such character is attributable to thepresent assignment. Moreover, the point has not been definitelyraised either in the Court below or in the petition of appeal.
For these reasona I dismiss the appeal, with costs.
FERNANDO et al. v. HAMIDU