Cur. adv. vult.
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Murdoch & Co., alleging that “ it was agreed between the saidMurdoch, Miller, & Branwell and the defendant, at the timewhen such sales were made, that the defendant should pay themthe prices mentioned in the said account particulars for the saidgoods within three months from the date of the sale and df iverythereof.”
The Commissioner said that he could not distinguish the claimfrom one for goods sold and delivered, and rejected the plaint,because the action was brought after the time was prescribed inaccordance with section 9 of the Prescriptive Ordinance.
I agree that it is a claim for goods sold and delivered in theordinary sense of the term with which I am familiar. The factthat three months’ credit was given would not ordinarily alterthe nature of the claim. The common indebitatus count forgoods sold and delivered lay where credit had been given or a billtaken, but not until the credit expired or the bill became due.But we are here in presence of certain statutory provisions.
Section 8 of Ordinance No. 22 of 1871 provides that actionsshall not be maintainable for ‘‘money due upon any unwrittenpromise, contract, bargain, or agreement,” unless they are com-menced within three years from the date of the cause of action.If this claim falls within section 8 it is not prescribed, becausethe money is alleged to have become due less than two years ago.
There can be no doubt that the money became due upon anunwritten promise andi that, if the provisions of the Ordinancewent no further, the plaintiff might bring his action at anytime within three years from the date at which the money becamedue.
We have, however, to consider section 9, which runs thus: —“ No action shall be maintainable for or in respect of any goods” sold and delivered, or for any shop bill or book debt, or for“ work and labour done, or for the wages of artisans, labourers,“ or servants, unless the- same shall be brought within one year“ after the debt shall have become due.”
If this is a claim “ for or in respect of goods sold and delivered ”within the sense of section 9, it is of course prescribed.
Mr. Elliott argued with some plausibility that the Legislaturemeant to distinguish claims for money due upon unwrittenpromises from claims for the price of goods sold and delivered;and that, if we have here to do with a claim founded upon anunwritten promise, the intention wras to confine the-words “ goodssold and delivered ” in the 9th section to cases in which there isat least no unwritten promise or agreement. We must, however,consider whether the Legislature did not feel that the same
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transactions might come under both heads, and did not speciallyprovide for the exclusion of cases of goods sold and deliveredfrom the operation of the 8th section.
In the first place, are the words “ or in respect of ” used in the9th section due merely to a flourish of the draftsman’s pen, orwere they inserted with the intention of adding a substantialmeaning to the provision?
If they are intended to add to the meaning, I can only conjecturethe intention to be that, although the price of goods sold anddelivered is due on an unwritten promise, no action can bebrought for it, or in respect of it (that is, under the name ofmoney due upon any unwritten promise, contract, bargain, oragreement), unless within one year from the date at which thedebt became due. Is there anything to render this meaningintelligible or reasonable ?
The phrase does not run through the section, the word “ for ”alone is used in the case of shop bills, book debts, work andlabour done, and wages. I cannot understand why the restric-tion, if. intended, was not applied to (for example) work andlabour done as well as to goods sold and delivered. I can see noprinciple in the particular application. In the next place, thesection is carelessly drafted. Actions are not brought for shopbills or work and labour done. They may be brought in respectof or for payment of work and labour done, in respect of or uponshop bills. The draftsman has had a very loose hand on the verypoint in question, and seems to me to have been somewhatindiSerent in his application of the phrases in respect of and for.The words “ in respect of ” are used again in sections 11 and 12,but there I can detect no subtle significance in them. I thinkthat they possess no particular meaning in section 9.
I think, however, that the question may be put to a simple test.Section 8 provides that claims for money due upon unwrittenpromises—and therefore claims for money due upon unwrittenpromises for goods sold and delivered—must be brought withinthree years of the date at which the money becomes due. But itmay be urged that, having said so, the Legislature proceeds atonce in section 9 to except from the terms of section 8 certainmoney claims, amongst which are those for goods sold anddelivered; and that, whether these money claims are based uponunwritten promises or not, they must be prosecuted within oneyear from the date at which they became due.
To test this we must bring the 7th section also into considera-tion. If’ the contention is just, we must be prepared to hold notonly that the claims mentioned in section 9 are excluded from
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the operation of section 8, even when they are founded uponunwritten contracts, but that those same claims, together with theclaims enumerated in section 8, are excluded from the operationof section 7, although they may be founded upon writtencontracts. Having gone carefully through the terms of the threesections, I think that such was the intention of the Legislature,and that the Commissioner was right in rejecting the plaint inthis case.
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