065-NLR-NLR-V-46-SUPPIAH-PULLE-Appellant-and-SAMARAKONE-Respondent.pdf
WIXEYEWABDENE J.—Suppiah PalU and Samarakone.
187
1945Present: Wijeyewardene J.
SUPPIAH PULLE, Applicant, and SAMARAKONE, Respondent226—C. R. Kandy 34,431
Account stated—Credit memo referring to previous balance—Promise to pay. ■
Where a credit memo contained a statement of the value of goodssold “ apart from a previous balance ”, which was given on an accountstated previously between the parties,
Held, that the document may be deemed to contain a writtenpromise to pay the sum, apart from the previous balance.
Sonnedara v. Weerasinghe (1 C. L. W. 328) followed.
^y^PPEAE from a judgment of the Commissioner of Requests, Kandy.
S.R. Wijayatilake for plaintiff, appellant.
No appearance for defendant, respondent.
Cur. adv. vult.
March 1, 1945. Wubyewardene J.—
Plaintiff sued the defendant for the recovery of a sum of Rs. 87.54 onaccount of gods sold and delivered as per credit bills, C 3729 of April 9,1941, and C 4037 of May 8, 1941. He pleaded as an alternative cause ofaction that there was an account stated on May 8, 1941. This alternativeplea was put forward, no doubt, because the claim on goods sold wasclearly prescribed oh March 9, 1944, when the plaint was filed.
In his answer the defendant stated that he paid and settled what waBdue from him to the plaintiff and pleaded further that the plaintiff’sclaim was prescribed.
The parties agreed to go to trial on the following issues: —
Was there an account stated between the parties on April 9, 1941,
and May 8, 1941?
If not, is plaintiff’s action prescribed ?
isa_
WIJEYEWABDKNE J.—Suppiah Ptille and Samarakcme.
The plaintiff produced in evidence the two bills C 3729 and C 4037 andthe defendant admitted that he signed them. The material portions ofthose two bills are as follows:—
Credit Memo.
Bought of SP. K. Suppiah Pillai & Brothers, General Cloth Merchants,.12 and 13, Trincomalee street, Kandy, 9.4.41.
Mr. T. M. Samarakoon, Korala, Dehipe.
Bs. c.Bs. c.
3 yds. Long Cloth……@040…120'
li„Fabrick……@065…098
1,,BrilliantPoplin……@045…045
IfTricolin……@040…060
1,,'Sarong,small……@065…065
1,, Poplin……@1 10…1 10
Total…4 98
To previousbalance…54 98
Total…59.96
C 3729
Sgd. T. M. Samarakoon.
Credit Memo.
•Bought of SP. K. Suppiah Pillai & Brothers, General Cloth Merchants,12 and 13, Trincomalee street, Kandy, 8.5.1941.
Mr. T. M. Samarakoon, Korala, Dehipe.
Apart from previous balance.
10 yds. White Cloth2$ ,, Premeson Poplin8 rolls Thread
Bs. c.Bs. c.
@040…40
@060…150
@012…090
6 40
C 4037
Sgd. T. M. Samarakoon.
The Commissioner of Bequests held that the plaintiff could not relyon the earlier account stated (C 3729) as they have pleaded a later accountstated (C 4037), that the latter document showed only a balance of Bs. 6.46-“ struck as being due from the defendant to the plaintiff ” and that hewas unable to attach any significance to the entry on that documentreading “ apart from previous balance ”. He then proceeded to say“It is on the account stated on May 8, 1941, that plaintiff sued in thealternative cause of action. The position is not the same as thoughplaintiff was suing on the account stated' of April 9, 1941. Plaintiff mustbe held to be bound by his plaint ”. The Commissioner dismissed theplaintiff’s action with costs.
Apptihamy and Wijesmghe.
189
I fchmlr the Commissioner has taken, to say the least, a highly technicalview when he said that the plaintiff should be held to be bound by hieplaint. It should not be forgotten that this is an action in the Court ofBequests and special provisions relating to the pleadings in these Courtsare found in the Civil Procedure Code. Moreover, the matter passedbeyond the stage of pleadings when at the hearing the Commissionerallowed the parties to proceed to trial on the agreed issues one of whichreferred, in unambiguous terms, to the earlier account stated.
The document C 3729 js clearly an account stated (Annamaley Chettiarv. Thornhill) 1. It refers to an earlier balance of Bs. 54.98 and then a hewbalance of Bs. 59.93 is struck.
The document C 4037 may be regarded as an account stated whenread in connection with C3729, but even, if it is not so read, it could bestall considered as containing a written promise to pay Bs. 6.46 apartfrom " the previous balance ” Sonnadara v. W eerasinghe 2.
I set aside the judgment of the Lower Court and direct judgment to beentered in favour of the plaintiff for Bs. 87.54 with legal interest fromdate of action to date of payment. The plaintiff will also be entitled to-costs here and in the Court below.
Appeal allowed.