057-NLR-NLR-V-24-SILVA-et-al.-v.-FERNANDO.pdf
( m )Present ■ De Sampayo J,
SILVA et al. v. FERNANDO.
C. R. Colombo, 83,401.
Action by persons trading in partnership to recover money due from 9servant of the business—Partnership agreement not reduced towriting—Is action maintainable J
The plaintiff, alleging that they sgre carrying on business inpartnership, sued the defendant, their servant, to recover a sum ofmoney found, on account being struck, to be due from him.The Commissioner dismissed the action, as there was no' writingto establish the partnership.
Held, that the dismissal was wrong; The action was one purelybetween masters and servant, and the plaintiffs did not seek toestablish a partnership so far as the defendant was concerned,
fp HE facts appear from the judgment.
Samafawickreme (with him Chas. de Silva), for the appellants.Schnkman^for respondent.
July 17, 1922. De Sampayo J.— .
An unnecessary difficulty has been raised in this case whichappears to be a simple one. Three plaintiffs, the third plaintiffbeing the second plaintiff's husband, sued the defendant for therecovery of a sum of Rs. BOO. They allege that the defendant wasemployed by the first and second plaintiffs as .their servant, and wasentrusted with certain moneys in connection with the business theyearned on at a certain place. They further go on to say that thedefendant has quitted their service, and on his leaving an accountwas struck, and a sum of Rs. 309 was found to be due from thedefendant to the first and second plaintiffs. Waiving Rs. 9, theyrestrict the claim in this action to Rs. 300. All the-trouble hasarisen from an unnecessary allegation made by the plaintiffs intheir plaint. For, after giving their respective residences, the firstand second plaintiffs said that they were traders currying on businessin partnership at No. 41, Guile road, Wellawatta. This was anentirely unnecessary allegation so far. as the defendant was con-cerned. That allegation has nothing to do with the claim made.The action was one purely between masters and .servant, and noquestion of law could possibly have arisen for want of any writingto establish a partnership under section 21 of the Ordinance No. 7 of
1982.
(192 )
1992.
X>£ SampayoJ.
Silva V.Fernando
1840, but the point was raised on behalf of the defendant in thecourse of the action, and was upheld by the Commissioner, and theplaintiff’s action was dismissed.. The words of the section referredto clearly show that it has no reference whatever to an action of thiskind. It, provides that no promise, contract, bargain, or a agreementshall be of any avail unless it be writing …. for certainpurposes, among others “for establishing a partnership where thecapital exceeds one hundred pounds.” The plaintiffs did not seekto establish a partnership, so far as the defendant was concerned.There was no contract, promise, or bargain, which had to be provedin the case, for establishing a partnership. In this connectionMr. Samarawickreme, for the plaintiffs, refers me to the judgment ofWood Benton C.J. in Silva v. Silva.x There the action was toenforce a trust which was in respect of a land which was purchased-in the name of one partner out of moneys belonging to the partner-ship. An objection was taken that the action could not be main-tained in the absence of a writing as required by section 21 of theOrdinance No. 7 of 1840. The Chief Justice made this remark:“As at present advised, I do not think that there is anything insection 21 (4) of the Ordinance No. 7 of 1840, or in the decision of thePrivy Council in Pate v. Pate,* to exclude such proof in this case.”The action is not one to “ establish a partnership,” and the evidenceto which exception is taken merely enters into it incidentally as partof the res ge*tce. I think the case should have been heard onevidence. The order of dismissal is set aside, with costs, and theoase sent back for trial in due course.
Sent bach.
'■>5 O'- W. R. 13.
* {1916) 18 Af. L. R. 289.