113-NLR-NLR-V-23-RAMALINGAM-v.-MOHIDEEN.pdf
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Present: Bertram C.J.RAMALINGAM v. MOHTDEEN.
1931.
853—P. C. Jaffna, 14,882.
Contract—Right of action where contract only in part performed—Quan-tum meriut—Hire of motor car to proceed to MuUaittivu and bringback a patient to Jaffna—Breakdown of ear on return journey—Ishirer entitled to claim any portion of stipulated hire t
The accused contracted with the owner of a motor car for astipulated sum to proceed from Jaffna to Mullaittivu and bringback a patient to Jaffna. On the return journey, when the carhad only proceeded about 20 miles, it broke down, and the accusedhad to taka his pataent by carriage to a railway station, 5 miles off,Mid to proceed by train to Jaffna.
Held, .that the accused was not liable to pay any portion ofstipulated sum by way of hire.
t jjlMK facts appear from the judgment.
Balasinghasn, for the defendant, appellant.—The learned Magis-trate is wrong in holding that it was not specially agreed thatnothing was to be paid. Considering the distance, and the factthat the road runs for the most part through jungle and forest,where heip is not available, it is but natural that tbe defendant,should stipulate for a good and reliable car. In any event the*
plaintiff cannot reoover forth© portion of the journey accomplishedby the oar on a quantum merit*.
J.JoaepA, fortherespondeni.—The learned Magistrate was rightin ordering payment of a reasonable sum for the distance covered.
July 28,1921. Bbbtram C.J.—This is an unusual case. It is a complaint under section 49 of theVehicles Ordinance, that a person l as refused to pay to the proprietorof the Vehicle the sum justly due for its hire.
The person against whom the complaint is brought contractedwith the owner of a motor oar to proceed from Jaffna to Mullaittivuand bring back a patient to Jaffna. On the return journey, wl enthe car tad only proceeded abont 20 miles, it broke down, and thetraveller had to take his patient by carriage to a railway station, 5miles off, and to proceed by train to Jaffna.
The defendant, indeed, alleges that the proprietor of the vehicleguaranteed that it would not break down, or that, in otber words,if it broke dawn, nothing would be due. The learned Jndge hasignored this evidence, I think, quite rightly.
It is conceded, however, that the contract was for the motor carto go from Jaffna to Mullaittivu and back to Jaffna. Mr. Josephsays that all that the Judge had to do was to estimate what wasjustly due, that is to say, equitably and justly due in the circum-stances. I take it, however, that in estimating what is justly due,the learned Judge must have regard to the actual contract, and thatcontract was to take the patient all the way from Mullaittivu toJaffna.
I have no authority on the Roman-Dutch law on the matter, butthe English authorities are well established. Hey start fromCutter v. Powell.1 The headnote of that case is: “ If a sailor hiredfor a voyage take a promissory note from his employer for a certainsum, provided he proceed, continue, and do his duty on board fortl e voyage, and before the arrival of the ship he dies, no wages canbe claimed either on the contract or on quantum meriut .” In thenotes the learned author of Smith*8 Leading Cases observes: “ Fewquestions are of so frequent occurrence, or of so much practicalimportance, and at the same time so difficult to solve, as those inwhich a dispute is where an action can be brought by one who hasentered into a special contract, part of which remains unperformed.”
The law as laid down in Cutter v. Powell1 is still the law of England(see page 17 of the volume quoted).
** The law,” says A. L. Smith, M.R., in Sumpter v. Hedges,a “isthat where there is a contract to do work for a lump sum, untilthe work is completed, the price of it cannot be recovered.”
1 Smith'8 Leading Cases, vol. II., from $t Term Reports, 820.
* {1898) 1Q.B. 678.
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Other eases are cited in the same connection. It seems to me im.that this is a reasonable principle to apply to this Colony, andparticularly reasonable in the present case.
What the present complainant contracted for was a motor car ~to take a patient from a house in Mullaittivu direot to a house inJaffna. That contract is not satisfied by the patient first of all beingtaken 20 miles in a car, then transferred by carriage to a railwaystation, and then, with all the inconveniences of railway travellingby train, to another station, and then from that station to his house.
I do not think that it would be equitable in the circumstances thatthe proprietor of the oar should recover anything.
I must, therefore, allow the appeal, with costs.
Appeal allowed.
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