127-NLR-NLR-V-18-STUART-v.-HORMUSJEE.pdf
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Present: Shaw J. and De Sampayo J.
STUABT a. HOBMUSJEE*
257—D. C. Colombo, 40>244.
Action under s. 247, Civil Procedure Code—Estoppel—Principal Mffywyon trade in the name of hie agent—Claim by principal when. goods were seized on writs against agent—Evidence Ordinance,s. 115.
®>e doctrine "of estoppel is not a rale of evidence, bat on irrebut-table presumption. If. a party to any proceeding proves that be hasbeen induced ' by the other party to believe in a certain state of factaand to act on snch belief, then, so far as that other party is concerned,the* state of facts must be assumed to be true, and the other partycannot be heard to say that they are sot.
The word M intentionally ” is used in section 116 of the EvidenceOrdinance of 1895 for the purpose of declaring the law here to beprecisely the same as the law of England.
Whatever a man's real intention may be, i.e., in regard to makinga represartation oi facts, if he so conducts himself that a reasonable-man would taire * the representation to be true, and believe that itwasthat he should act upon it, and did act upon it as true,.
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the petty making the representation wonld he precluded from„contesting its truth.*
One . ^orwuajee . acquired the tfbwneegi of one Lawrence, endappointpd him m&njSjger of " Lawrence ft Co.," and by power of attor-wy .gava him the very widest powers of conducting the business,inclosing power * to sign and ' accept bills of exchange. Lawrencehaving1 failed to meet hie acceptances given in respect of certaingoods. ordered by him for 14 Lawrence &Co.,'* the respondent
(judgment-creditor) seised the goods on the premises of Lawrence &Co. Hormnejee claimed, mod on the claim being upheld respondentbrought this action under section 247 of the Civil Procedure Code.
Hetd, in the ckeamstances of this case (see judgment), thatHonnuajee was estopped from denying that the goods were theproperty of Lawrence.
SJI HE facts are set out in the judgment.
Bawat'K,C, (with him F. M. de Saram), for appellant.
Allan Diicberg (with him F. H. B. Koch and H. H> BaHhohmeua*),for respondent.
Cur. adv. unit.
August SI, 1916. Shaw J.~
This action is brought by the respondent under section 247 of theCivil Procedure Code, claiming that certain goods seized in executionin two actions, Nos. 86,900 and 86,909 in the District Court ofColombo, in which he had recovered judgments against one 5*. A.Lawrence, should be declared liable to be sold in execution of thedecrees.
The District Judge lias held that the appellant is estopped by hisconduct and representations from denying that the goods "seized arethe property of the execution-debtor, and has declared that they areliable to be sold in execution, and, has further ordered that, in theevent of the goods having been disposed of by the appellant, heshould pay ,as. damages to the respondent the full amount of thetwo judgments, namely, Bs. 1,787*14, with costs and interestthereon ~ at the rate of nine per cent, until payment. From thisdecision the present appeal is brought.
It appears from the evidence that H. A. Lawrence and his fatherbefore yhim carried on business in the Pettah as tailors. In thetime of .the father the business was carried on under the name of“ D. Lawrence & Co. it does not, however, appear from theevidence what the appellation of the business was after the father’sdeath and prior to its acquisition by the appellant.
In the year 1011 the appellant, Mr. Hormuajee, appears .to haveacquired tl^e business. He. appointed Mr. H. A. Lawrence asmanager,, andj by power of attorney dated March 25, 1911, gave himthe very widest powers of conducting the business, including powerto sign and accept bills of exchange and other mercantile documents
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in #, 1 name of the firm. The premises whore the business vgascarrk on were rented from fche*respondenfc by H. A. Lawrence in &» Shaw J.own i ame, and trade stbbk was ordered. by« Lawrence from *the ^respondent who carried on business as an importer of goods.* and *acceptances were given by.IL A. Laurence for fhe pur£ha$$ price?
In feet appellant, Mr. Hormusjee^ was the undisclosed principalof H A. L&mence, carrying on business as “ Lawrfejce & Co.”
He • tad abo ordered goods Aroiy^F the respondent for anotherbusin ms, whiea he* personally oarried fM in the name of the SewingMach ne Cgirjpany, the indents, for which were signed in his ownname, but hi never informed the respondent or any. one connectedwith lis firm, and never communicated in any way to the publicthat bh was in fact the owner of the business of “ Lawrence & Co.”.
&. Lawrence having failed to meet his acceptances given inrespe&t of certain goods ordered by him for ” Lawrence & Co.,”the respondent- brought the two actions, Nos. 39,500 and 39,509,
District Court, Colombo, against him, and recovered judgment forBs. 1,787.14, and interest at nine per cent.
Execution was taken out under, these judgments, Nand the stock,on the premises of *4 Lawrence & Co.,” consisting largely of thegoods1 in respect of which the unpaid acceptances were given, wasseized. Then for the first time the appellant-, Mr. Hormusjee, cameforward and claimed that he was the owner of the business of“ Lawrence & Co./' and that the stock was therefore his property,and not liable to be seised in execution on a judgment againstH. A. Lawrence.
The .Court having investigated the claim, made an order undersection 244 of the Civil Procedure Code releasing the goods, andleaving the judgment-creditor to bring his action under section 247*which he has now done.
The first point taken on behalf of the appellant was that in anaction under section 247 the onus is upon the plaintiff to establishthe right which he claims to have the property sold in execution ofthe decree, and that therefore the question of an estoppel cannot- arise, the contention being that estoppel is merely a rule of evidenebpreventing certain facts being proved in defence, and therefore notapplicable to an action under section 247, where the plaintiff hashimself to make out his right to have the property sold.
In my view this is too narrow a view to take of the doctrine ofestoppel. By section 115 of the Evidence Ordinance, when oneperson has by his declaration, act, or emission intentionally causedor permitted another parson to believe a thing to be true and to actupon such belief, neither he or ins representative shall be allowedm aigf suit or proceeding between such person or his .representativeto deny the truth of such thing/* If, therefore, a party to anyproceeding*, whether under section 247 of the Civil Procedure Codeor not, proves that he has been ^induced by the other ,party to
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believe in a Certain state of facts wad to act on such belief, then, so far8kinr J. *•#, that other party is concerned, thtf state of facts must be assumed$£"^0 o ,*>’V •firue* *&d the fither party cannot be* heard to say that they axe'Wtirmutrflt onot. * The. doctrine of estoppel is not a rule^of evidence, but rather>an irrdbiittabie presumption, and as such it will be found classed
hi the ftooks^ (See Taylor on Evidence t section 89.) In my opinion,therefore, this contention fails.
.The principal questions arising in this case are, first, whether theappellant has by representation or omission'intentionally caused orpermitted the respondent to believe that H. A. Lawrence was theprincipal of the business of “ Lawrence & Co/*; and second, whetherauoh representation, if'made; amounts to a representation that thestock in trade was his property. I think the answer to both thesequestions should be in the affirmative.
The terms of section 115 of our Evidence Ordinance, which areprecisely the same as those of section 115 of the Indian EvidenceAct, do not enact as law here anything different from the law ofEngland on the subject of estoppel (Dey v. Laha l), and the word“ intentionally " was used in the Ordinance for the purpose ofdeclaring the law here to be precisely the same as the law A England.Parke B; in Freeman v. Cooke,* pointed out that the term “ wilfully ”used in the earlier case, Pickard 0. Seats,3 is really equivalent to
intentionally,** and the word “ intentionally ” has commonlybeen used in subsequent cases when enunciating the doctrine of■estoppel.
By the term “ wilfully '* or intentionally " we must understand,if not that the party represents that to be true which he knows to beuntrue, at least that he means his representation to be acted upon,and that it is acted upon accordingly; and if, whatever a man*sreal intention may be, i.e., in regard to making a representation offact, be so conducts himself that a reasonable man would take therepresentation to be true, and believe that it was meant that heshould act upon it and did act upon.it as true, the party making therepresentation would be equally precluded from contesting its truth.Freeman' v. Cooke* and section 115. of our Evidence Ordinancedoes .not make it a condition* of estoppel resulting, that the person,who by his declaration or.act has induced the belief on which smotherhas acted, was either committing or seeking to commit a fraud.(See Dey p. Laha.1) To apply these principles to the present case,I think.it is clear on the evidence that the appellant intended thatthe public generally, and the persons specially who had transactionsof sale or purchase with “ Lawrence & Co./’ should believe that thebusiness remained that of H. A. Lawrence, who had, and whosefather had before him, previously conducted a similar business in thesame locality. He could give no reason ior adopting the na&e of
Lawrence & Co.,** and to my mind the reason is obvious.
i L L. 8. SO C. 296 (B.C.)* 2 kick. 654. a 6 Ad. & El. 459.
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The gecond question then arises,, namely, whether the represen* < IMS.tatios that the business of " Lawrence & Co.,” was the business of aJT^.i.H. A. Lawrence imports & representation that.the trade fittings*and —»stock on the premises are the property of H. A. Lawrence. 1 think*it does so. At any rote it imports a representation She? tirg fittingsand stock, in so far as they are the property of ” Lawrence & Co.,”belong to H. A. Lawrence.
The respondent has dearly acted on the representation thatH. 4- Lawrence was the owner of the business, and has given creditto the business, trusting to suoh security as the stock might give.
I am therefore of opinion that the District Judge was right in holdingthat the appellants are now estopped from setting up sway claim tq,the goods seized.
One further question, however, remains. The District Judge hasdirected that, in the event of the property being disposed of by theappellant subsequent to its release from the seizure, the appellantshould be condemned to pay as damages to the respondent the fullamount of the two decrees, namely, Bs. 1,787.14, with costs, andinterest'thereon at nine per cent.* ■
The goods have in fact been disposed of by the appellant, andhave realized a very much smaller sum.
In my view all that the respondent is entitled to recover is thevalue of the goods at the time of seizure, less the costs of sale. Noevidence as to the value has been given, but the respondent in hisplaint referred to an annexed schedule, enumerating the goods, andspecifying their value. The appellant by his reply did not put thevalues in issue, and I think tire valuation put upon the goods in theschedule, viz., Bs. 1,416.45, must be taken to be correct.
The amount which the respondent is entitled to recover is there*fore, in my opinion, this sum less three per cent., the Fiscal’s fee onthe sale, or Bs. 1,374 in all.
I would therefore amend the decree by deleting the words “ thefull value of the said two decrees entered in the said two oases, to wit,
Bs. 1,737.14, with costs, and interest thereon at tire rate of nineper cent, per annum till payment in full,” and by substitutingtherefor the words “ the sum of Bs. 1,374, and interest thereon fromtire date of the claim until payment.” ■
Although I think that tire decree should be thus amended in theappellant’s favour, he has failed on tire main ground of appealt would therefore make no order as to tire costs of tire appeal. Therespondent will get his costs of the aotion.
De Sampayo J.—I agree.
Decree amended.