045-NLR-NLR-V-33-MACK-v.-PERERA.pdf
AKBAR J.—Mack v. Perera.
179
1931Present: Akbar and Maartensz A.J.MACK r. PERERA.
280—D. C. Colombo, 30,211.
Joint tort feasors—Payment of damages by one—Pro fcanfco satisfaction ofliability—Accord and satisfaction.
A payment by one of several tort feasors to the person toho hassuffered damages operates as an accord and satisfaction to the extent
the payment.
Where it is asserted that the payment was in full discharge of theliability, the burden of proof lies on the the party who asserts it.
^^PPEAL from a judgment of the District Judge of Colombo.
F. A. Hayley, K.C. (with him Navaratnam), for defendant, appellant.
B. L. Pereira, K.C. (with him H. E. Oarvin), for plaintiff, respondent.
September 4, 1931. Akbab J.—
In this action the plaintiff claimed against the defendant Rs. 5,000as damages sustained by him in a motor car collision. In his plaintthe plaintiff claimed this sum as the full damages sustained by himin the collision and there is not a word in it showing that he had restrictedthe actual damages to Rs. 5,000 for the purposes of this case. The DistrictJudge gave judgment in favour of the plaintiff for the full sum claimed.Mr. Hayley, who appeared for the appellant, has not contested the findingsof facts of the District Judge, in which he held that the collision was dueto the negligence of the plaintiff, nor has Mr. Hayley urged that theactual damages suffered by the plaintiff was less than the sum claimed,but he has urged the point of law referred to in issues 5 and 6, namely,that the plaintiff had released and discharged either one Seneviratneor Ratnaike or both from all liability, and that this release enured to thebenefit of the defendant. Mr. Pereira who appeared for the plaintiffdid not dispute the various points of law which Mr. Hayley developed
AKBAR J.—Mock 9. Perera,
iso
for the purposes of his argument, and to which I will refer now. Therecan be no doubt at all that the defendant was at the time of the accident-driving a car, which belonged to Mr. Seneviratne. This being so on the*evidence as accepted by the Judge, both Mr. Seneviratne and thedefendant were liable as joint tort feasors for the payment of the damages.Further, an accord and satisfaction of an unliquidated claim for damages-offered by one of the tort feasors and accepted will release the othertort feasors. Soon after the accident the plaintiff sent letters of demandto each of three persons, namely, Seneviratne, Ratnaike, and the defendantclaiming Rs. 30,000 as damages from each. The defendant in His answer'alleged that either Ratnaike (who was also in the car) or Seneviratneor both had paid and settled the claim of the plaintiff and that thissettlement discharged the defendant from all liability. The plaintiff,therefore, had full notice of the point, which the defendant proposedto raise and which was afterwards embodied in issues 5 and 6. Theplaintiff's list of witnesses included the name of his brother, who wasalso in plaintiff's car at the time of the accident. The defendant's listof witnesses included the names of Mr. Ratnaike, the plaintiff, and oneMr. Solomon Rodrigo. Only the plaintiff and the defendant gave*evidence in this case and in his evidence the plaintiff stated that he hadsuffered damages amounting to Rs. 20,000 or Rs. 25,000, but that herestricted his claim to Rs. 5,000. In cross-examination he admittedthat Mr. Seneviratne, who is now dead, came and saw his brother andthat he made good the damages and that Mr. Seneviratne paid Rs. 2,500to his brother. He also admitted that his brother consulted him beforeaccepting the Rs. 2,500 and that his brother accepted the money on hisinstruction, but there were no terms or conditions when the money waspaid. He, however, added that he did not discharge Ratnaike or Senevi-ratne and that the money was paid on account. Upon this evidenceMr. Hayley argued that he had discharged the burden which was onhim on issue No. 5 and that the plaintiff's admission was equivalentto the plaintiff releasing and discharging Seneviratne from all liability.In the case of Croft v. Lvmley and others 1, Lord Campbell C.J. stated’as follows in the course of his judgment: —
“ But there is an established maxim of law that when money is paid,,it is to be applied according to the expressed will of the payer, notof the receiver. If the party to whom the money is offered does notagree to apply it to the expressed will of the party offering it, he mustrefuse it, and stand upon the rights which the law gives him. Wesee no reason why this maxim should not be applied to the transaction-in question. Mr. Martelli might have refused to receive the money* offered, as arrear of rent, and then the plaintiff might have proceededfor the forfeiture. But Mr. Barnes, who offered the money repeatedlytold him that if the money was received, it was to be received andapplied in payment of the arrear of rent due by the lease; and, underthe circumstances, whatever words he might utter, when, acting bythe authority of the plaintiff, he took up the money and carried itaway, in point of law he received it as rent, thereby waiving theforfeiture and confirming the lease.”
1 {1856) L. J., PU2, p. 73..
AKBAB J.—Mack v. Perera.
101
If we apply this test here in spite of Mr. Mack’s so-called- admission,we have no evidence to prove what the expressed will of the party makingthe payment, namely, Mr. Seneviratne was, because the money was paid,to the plaintiff’s brother and he has not been called. Mr. Hayley statedthat under section 106 of the Evidence Ordinance, No. 14. of 1895, thisfact was within the special knowledge of the plaintiff and, therefore,the burden of proving that fact was shifted to the plaintiff. But Mr. Mackstated in his evidence that he was not present when the money was paidto his brother. I fail, therefore, to see how the burden can be shifted onthe plaintiff in the circumstances of this case. Mr. Hayley then arguedthat under illustration (a) of section 106 the intention of Seneviratneas suggested by the character and circumstances of the payment wasthat when he paid the money it was to operate as a complete dischargefrom all liability. I do not think that I can accede to this proposition.Mr. Seneviratne may have made the payment on the understandingthat this sum of Bs. 2,500 was to be. accepted on account, and thathe would be willing to pay a further reasonable sum if the plaintiff wasobliged to incur further expenditure over and above .this sum as a resultof the injuries sustained by him. The burden of proof as I have alreadystated on issue 5 was on the defendant and it was open to him when theplaintiff closed his case to have called the plaintiff's brother to provewhat was the intention of Seneviratne when he paid the sum of Bs. 2,500.Instead of doing this a question was put to Mr. Mack, the plaintiff, incross-examination, in which a reference was made to one SolomonBodrigo, a person who figures in the list of witnesses of the defendant.Mr. Mack stated that “ nothing of the sum of Bs: 2,500 was paid to himby Solomon Bodrigo The defendant when giving evidence said thathe heard from Solomon Bodrigo that the plaintiff had discharged Sene-viratne from all liability when jthe payment was made. This suggeststhat the defendant’s position was that Solomon Bodrigo was presentwhen Seneviratne paid this sum. If so I fail to see why he omitted tocall Solomon Bodrigo to prove what was in Seneviratne *s mind whenthe payment was made. In my opinion the defendant has failed todischarge the onus that was on him under issue 5. In the case of Wright v.The London General Omnibus Company,1 an award of compensation wasmade by the Magistrate against the driver of a hackney carriage uponan information for furious driving and the party injured accepted thecompensation. It was held that this was a bar to a subsequent actionagainst the driver’s employers by the party injured in respect of hisinjuries. In that case provision was made in the English Act for theawarding of compensation by a Magistrate either against the proprietoror the driver for the injuries sustained by the injured person. As Cock-bum C.J. remarked, the intention, no doubt, was that the provisionsof the section should only -be put in force when the damage done wasslight; but the intention of the Act as held by Cockburn C.J. was thatthe award should be binding on the injured person and should in factprevent the subsequent action. The fact that' the plaintiff stated tothe Magistrate that the compensation would not be enough made nodifference to this interpretation, because he drew the money and by so1 {1876-7) L. R. Q., Pt. 2, P. 271.
182
AKBAB J.—S. Mooty v. Kayloyon Che tty.
doing he consented to the principle that no further action should bebrought. I do not think this authority applies to this case because thesole question here is whether the payment by Seneviratne of Bs. "2,500was made by Seneviratne on his expressed intention that such paymentwould release all liability. This does not mean, however, that theplaintiff is entitled to the full sum of Bs. 5,000 claimed by him. It will benoticed that he claimedinthe plaint a sum of Bs. 5,000as the only
damage suffered by himin consequence of the injuries.Hedid not dis-close in his plaint the fact ofthe payment of Bs. 2,500 byMr.Seneviratne,
which he had to admitincross-examination. It doesnotmatter that
in point of fact he has suffered damages amounting to nearly Bs. 25,000and that the letters of demand were for the sum of Bs. 30,000 each. Anyjudgment against a joint tort feasor for damages suffered by the plaintiffwould operate as an accord and satisfaction and would discharge otherjoint feasors from all liability. This being the case the sum of Bs. 2,500already paid must be deducted from the Bs. 5,000 now claimed andtherefore judgment should be entered in favour of the plaintiff for thesum of Bs. 2,500 and interest as claimed by the plaintiff and for costsincurred in the lower Court; but I will make no order as to the costsin this appeal.
Maartensz A.J.—I agree.
Appeal allowed.