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Present: Mr. Justice Grenier.
G. B., Colombo, 16,11$.
Stamp—Agreement to allot apace in a booh and for sale of the bode—Ordinance No. ,8 of 1890, Schedule B, Part I.
Plaintiff sued the defendant on an agreement contained in thefollowing document, which w&b unstamped:—
“ Please allot me 6pace in your work not to exceed one-quarterpage, for which I agree to pay you the sum of Bs. 142 ……
This order carries a copy of the above-named book
” (Signed) Hknry Dias.”
Held, that the agreement could be read in evidence, as H isexempt from stamp duty.
HE plaintiff company sued the defendant on an unstampedagreement, the material portions of which were as follows:;—
“ Please allot me space in your work (‘ Twentieth Century Impres-sions of Ceylon ’) not to exceed one-quarter of a page, for which I
agree to pay you the sum of Rs. 142This order carries a
copy of the above-named book.—(Signed) Henry Dias.
On objection taken by the defendant, the learned Commissionerruled that the agreement could hot be read in evidence, as it wasunstamped. After trial the plaintiffs’ action was dismissed.
The plaintiffs appealed.
Hayley, for appellants.—The agreement P 1 relates to the sale ofgoods, and comes under the exemptions in the Schedule to the
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Stamp Ordinance. This is an agreement for the sale of future Mar^lOjaiOgoods. See Ordinance No. 11 of 1896, sections 6 and 59. Counsel Lloyd’s
cited Lee v. Griffin.1Britain
If there be any doubt about the construction of the. Stamp publishingOrdinance, it ought to be read in the way most beneficial to the Com^^J,v’subject, as the Ordinance is one whioh imposes a tax (Kartigeear v.Katherkamer *).
F. de SUva (with him Cooray), for the respondent.—Even in theplaint the agreement is not treated as an agreement for the sale ofgoods (see paragraph 8). The real agreement is for the allotmentof space; the sale of the book is a subsidiary contract. The primaryagreement was for doing work for the defendant’s benefit. Suchan agreement is not within the exception (Fielder v. Bay3). An agree-ment partly for the sale of goods and partly for the sale of a goodwillwas held to require a stamp (South v. Finch*). In Clay v. Yaie* itwas held that a contract for printing and publishing did not comewithin the exception. Counsel cited Alpe’s Law of Stamp Duties, 57.
Cut. adv. vult.
March 10, 1910. Gbxnier J.—
The only question argued on this appeal was whether documentF 1 requires a stamp. It was contended for the appellants, who arethe plaintiffs, that the case falls within the exemption clause in theStamp Ordinance, whereby a memorandum, letter, or agreementfor or resting to the sale of any goods, wares, or merchandise isexempted from stamp duty. On reading the document I think itis clear that whether you call it an “ agreement ” or a letter ” itrelates to the sale of a book called “ The Twentieth Century Im-pressions of Ceylon,” which the plaintiffs were bringing out, andwhich the defendant agreed to pay for in two instalments. Inordering the book the defendant) whose signature is at the foot ofthe document, requested the plaintiffs to allot him a space in theirwork not exceeding one-quarter page, for what the defendant’scounsel stated was intended to be a personal advertisement of thedefendant. Primarily, perhaps, the defendant agreed to pay thesum of Bs. 142 for this small space in the book, but as the order forthe allotment of the space carried, with it an order for a copy of thework, it is reasonable to suppose that what was in the contemplationof the defendant at the time he gave the order was that the plaintiffswere to sell him the book with an advertisement of himself in it.The defendant in reality agreed to pay for the book, and placedhis order with the plaintiffs for it, and so document P 1 amounts tonothing more than a letter or agreement relating to the sale of
1 (1861)30 L. J. Q. B. 262.3 (1829) 4 O. <h P. 61.
* (1883) 5. S. C. C. 123.* (1837) 3 Bingham’s New Cases 60$.
* (1866) 26 L. J. Ex. 237.
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Mar. 10,1910 fas book, and readily falls within the exemption in question. Evencfrturungn. x if the point were doubtful, I should be inclined to favour the-—contention for the plaintiffs, because the defendant has no merits;
Oreate*and his defence rests upon an alleged evasion of stamp duty, for
Britainwhich he was more responsible than the plaintiffs, because the order
Oampan^v. was signed by him, and he agreed that it was not to be subject toBiascancellation. It was his duty, if a stamp were necessary, to have
affixed it in the first instance, instead of waiting till he was suedto raise any objection on that account. But I hold that no stampduty is leviable on this document.
It was contended for the defendant that the agreement was onefor doing some work for the defendant’s benefit in a book that wasto be published, and that an agreement for work and labour donewas within the exception (Fielder v. Bay1). There was no agreementhere for any work and labour to be done by plaintiffs for the defendant.There can be no question that the bringing out of a work of thecharacter under notice necessarily ‘involves a good deal of work andlabour, but they were not for ..the sole benefit of the defendant. Theallotment of a small space for an advertisement of the defendantwas not the result of a contract independent of the order for thebook. The principal element in document P 1 was the order, theallotment of space being altogether an incidental and subsidiarymatter. The. work of printing and bringing out the book wouldhave gone on even if no space had been allotted to defendant. Itake it that what the defendant really intended by signing documentP 1 was that when the book came out a copy of it should be sent him,and in that sense it seems to me that the allotment of a small spacein it was only a secondary consideration connected in only a remotemanner with the order for the book. I find there was an issueframed in the Court below as to whether or not the plaintiffs hadfulfilled the terms of the agreement as embodied in P 1. And theCommissioner has decided that issue against the respondent. Hehas expressly found that the plaintiffs have fulfilled the terms of theagreement, and if P 1 were admissible in evidence, they would beentitled to recover the amount claimed in this action. Practically,therefore, the defendant has not the shadow of a defence on themerits. The plea of prescjription which was raised at the trialincidentally but not in the form of an issue cannot be entertained atthis late stage of the proceedings. The defendant’s counsel beyondsuggesting that the claim was prescribed, if the agreement was tobe construed as one for the sale of goods, does not appear to havepressed the matter any further, and I see no reference to it in thejudgment of the Commissioner.
The judgment of the Court below must be set aside, and thisappeal allowed with costs.
Appeal allowed.
1 (1829) 4 C. & P. 61.