098-NLR-NLR-V-16-SENERATNA-v.-SIRIWARDENE.pdf
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IMS.
Present: Wood Renton J. and Pereira J.
SENERATNA v. SIRIWARDENE.
346—D. C. Matara, 6,393.
Prescription—Agreement to pay money mentioned in the attestation clause
of a deed of sale—Trust.
A sold to B a parcel of land for Rs. 600, and it -was agreed between,them that B should pay the Rs. 600 to C, to whom A owed that sum.The faot of the agreement was noted by the notary in the attesta-tion clause of the deed of conveyance. B failed to pay the Rs. 600to C, and A was obliged to pay that sum to C. The question arosewhether A’s right to recover the sum from B was prescribed.
Held, that the note of the agreement between A and B in theattestation clause of the conveyance did not constitute a writtenagreement between A and B, and the term of prescription was nottherefore that in the case of a written agreement.
Held, further, that where no time was fixed for the performanceof a oontract, it should be performed within a reasonable timeaccording to circumstances, and A’s cause of action against Baccrued when, Within a reasonable time, the latter failed to paythe Rs. 500 to C.
Held, further, that, in the circumstances, B was not to bedeemed to have held the Rs. 500 as A’s trustee so as to preventprescription from running against A on the failure of B to pay Cthe Rs. 500.
r"jpHE facts appear from the judgment.
Bawa, K.C., and Mahadeva, for defendant, appellant.
A. St. V. Jayewardene and De Sampayo, K.G., for plaintiff,respondent.
Cut. adv. vult.
February 20, 1913. Pereira J.—
The plaintiff in this case, on February 18, 1903, by deed bearingNo. 3,239, sold and conveyed to one Dissanaike, a notary, a certainparcel of land for Rb. 600, and it waB then agreed between theplaintiff and Dissanaike that the latter should pay. the Rs. 500 to oneWe'eratunga, to whom the plaintiff owed money on bond No. 1,588.The fact that this agreement was entered into was noted in theattestation clause of deed No. 3,239 by the. notary who attestedthat deed. It- is alleged that Dissanaike omitted to pay the
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money to Weeratunga and died in May, 1908, andjbhat plaintiffwas thereafter Obliged to pay Weeratunga the full amount he owedhm on bond No. 1,588; and the plaintiff now seeks to recover theeum of Es. 500 from the defendant, who is the executrix with probateof the last will of Dissanaike. The question is whether the plaintiff’s-claim is not prescribed. It* is argued that the amount claimed bythe plaintiff is really due to him on an agreement in writing, inas-much as there is a note of that agreement in the attestation clauseof deed No. 3,239 as stated above. I cannot accede to this conten-tion at all. The attestation clause is the act of the notary; andwhat appears there is no more than a mere statement .by him tothe effect that the vendor had told him that he would allow thevendee to retain the consideration on the deed “ to pay a sum ofEs. 500 out of the debt due on bond No. 1,588.” However thatmay be, if the breach of the agreement is failure on the part ofDissanaike to pay Weeratunga the sum of Es. 500, it is clear, whetherthe agreement itself were a verbal or written agreement, that theplaintiff’s claim on it is prescribed, because the plaintiff’s cause ofaction to recover the sum accrued to him on the breach of the agree-ment by Dissanaike, and that occurred about February 8, 1903.The agreement was no other than that Dissanaike should payWeeratunga the sum of Es. 500 left by the plaintiff on February 8,1903; in Dissanaike’s hands. No time was fixed for the payment;and where no time is fixed for the performance of a contract, it mustbe performed within a reasonable time according to the circum-stances (Addison on Contracts, p. 128, 10th ed.; see also Poth. 2, 3, 3,and Grot. Intr. 3, 3, 51), so that, in the present case, when Dissa-naike undertook to. pay Weeratunga the Es. 500, he must betaken to have undertaken to pay the money within a reasonabletime, and, inasmuch as the money was not so paid, the plaintiff'scause of action accrued to him on such failure. It has been arguedthat Dissanaike held the money in his hands in trust for theplaintiff, and that therefore no prescription ran against the latter,and the case of Rochefoucault v. Boustead 1 has been cited. In thatcase the Court of Appeal- held that the defendant purchased theestates in claim as trustee for the plaintiff, and held them as suchtrustee. It was held, as a fact, that the defendant never expresslyrepudiated the plaintiff’s title, whatever his trustee in bankruptcymay have done, and that the plaintiff never gave either the defendantor his trustee in bankruptcy to understand that she had given upher claim, and that in the circumstances the principle that merelapse of time in a case of express trust was not a bar applied. Inthe present case there was no trust at all. True, that, in a sense,.the plaintiff entrusted the money to Dissanaike ^ to be paid toWeeratunga, but when Dissanaike failed to do that, the moneyremained in his hands as a mere debt due by Him to the plaintiff.He did not hold it in the capacity of a trustee. I have examined
1913.
Pebktra J.
Seneratna e.Siritoardene
1M8.
Pkbmba 3.
Seneratna, o.Striwardene
the other cases cited by the respondent’s counsel, and suffice it tosay that, equally with the case of Rochefoucault v. Boustead,1 theyare inapplicable. I would set aside the judgment appealed fromand dismiss the plaintiff’s claim with costs.
Wood Renton J.—I agree.