044-NLR-NLR-V-25-THE-COLOMBO-ELECTRIC-TRAMWAY-AND-LIGHTING-CO.LTD-v.-PERERA.pdf
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Present: Jayewardene A.J.
THE COLOMBO ELECTRIC TRAMWAYS AND LIGHTINGCO., LTD., t>. PEREIRA.151—C. B. Colombo, 6,102.
f ailure to reply to letters—Presumption of admission.
Observation as to* when failure to reply to a letter may beconstrued to amount to an admission of a claim made therein. .
/J'HE facts appear from the judgment.
Mervyn Fonseka (with him Oarvin), for appellant.
jR. L. Bartholomeusz (with him Keuneman), for the respondent.
July 20,1923. Jajewardene A.J.—
At the argument of this case I was much impressed with thecontention for the appellant that the learned Commissioner hadcome to a wrong conclusion on the facts, but on a closer examina-tion of the evidence, specially the documents, I am convinced thatthe finding of the lower Court is correct, although not exactly forthe reasons given in the. judgment. The principal question iswhether the defendant agreed to pay a two-third or a half share ofthe cost of installing an underground main for the supply of electriccurrent to the house of one Fernandez through the defendant’spremises. Hie installation was arranged with the plaintiff com-pany through one Braid, an architect, who constructed the houseon Fernandez's premises, and who had supplied plans for the con-struction of two bungalows on'defendant’s premises. I have nodoubt that in the transaction Braid acted as the agent of bothdefendant and Fernandez. The cost of the installation was agreedon at Rs. 1,600. The defendant’s two-thirds share comes toRs. 1,066*66. He has paid Rs. 800 as half share of the cost, which4ie says was the share.he agreed to pay. The plaintiff company sueshim for the balance, Rs. 266*66. A question was raised as to whetherthe contract was a joint one, in which case the plaintiff contends thathe is entitled to recover the full cost (Rs.1,600) from either Fernandezor the defendant, and so the defendant is bound in any case to paythe balance, Rs. 266*66. I need not discuss this contention in thepresent case, as I have come to a conclusion adverse to the defendanton another point. It also raises very difficult questions on whichI have not heard any argument. The installation of the main17-xt""12(60)29
1923*
( 194 )
1923.
Jaybwab-
DENE A.J.
The ColomboElectricTramwaysand LightingCo., Ltd.,v.Pereira
appeals to have been completed in June or early in July, 1922.The plaintiff company sent their bill to Braid for Rs. 2,010, whichincluded the cost (Rs. 410) of certain wire fittings for whichFernandez alone was responsible. Braid replied by P 7 on July 24,1922, asking the plaintiff to send two distinct accounts as indicatedin that letter, which he said he would pass on to his clients, or which^the plaintiff company might render direct to the defendant andFernandez, if it so preferred. This letter shows that the defendantand Fernandez were each charged Rs. 800, that is, half the cost.Separate accounts were evidently sent by the plaintiff to Braid, whosent defendant’s account to him enclosed in a letter dated July 26.(P 17). This bill also showed that the amount due from thedefendant was only Rs. 800. Fernandez handed to Braid either theaccount sent to him or the one sent to the defendant, and evidentlycomplained that he had been called upon to pay half share, whenthe agreement was that he should pay only one-third, for, onJuly 29, Braid wrote P 14 to the defendant. In this letter Braidstates : “ This account (that is, one for Rs. 800), we regret, was sentin error, as the arrangement between Mr. Fernandez, yourself, andthe signer at the time this was agreed was that you should con-tribute two-thirds this cost of Rs. 1,600. He asked him to forwarda cheque for Rs. 1,066*66. Defendant sent no reply to this letter.Braid wrote again to the defendant at the end of August (D 2) askinghim to send the plaintiff a.cheque for Rs. 1,066*66, which he saidwas considerably overdue, and for the settlement of which theplaintiff was pressing. To this letter, too, no reply was sent.Fernandez paid his one-third share on September 15 (P 8). OnSeptember 19 the plaintiff company wrote P 4 to the defendantdemandingpayment of Rs. 1,066*66, and threateningto sue himunlessthe amount wa.s paid by the 21st of that month. On September 22the defendant wrote to Braid for the first time, apologizing for notacknowledging his letters earlier and stating that the arrangementhe made with Fernandez was to pay half the cost of laying the main,and enclosing a cheque of Rs. 800, which Braid sent to the plaintiff.Braid replied by P 16 of September 23, stating that the arrangementbetween plaintiff and Fernandez was that defendant should con-tribute two-thirds the cost of Rs. 1,600, and that the defendant hadnot previously disputed this point, although Braid had approached,him several times for settlement on that basis. To this letterdefendant replied through his proctors on October 2 (D 3), statingamong other things that the defendant bad never employed Braidas his agent, and that he was the agent of Fernandez, and that heentered into no agreement with Fernandez to pay two-thirds of the .cost. There are some letters in which Fernandez agrees to pay thesum in question, but that was done to induce defendant to payhalf the cost of a boundary wall between his and the defendant’s^premises.
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The failure of the defendant to reply Braid’s letter of July 29(P 14), in which it was clearly stated that defendant had agreed andwas liable to pay two-thirds of the cost of the installation untilSeptember 22 after he had been threatened with an action, amounts,in my opinion, almost to an admission in law of his liability to paya two-thirds share of the cost. This letter must have conveyed tothe defendant the impression that Fernandez himself supportedMr. Braid’s view, as the letter P 14 was written in consequence of avisit to Braid by Fernandez, who handed him the account showinghis liability to pay halt the cost. Defendant did not protest toFernandez either. Mr. Braid also points out in P 16 that thedefendant did not previously dispute his liability to pay two-thirdsof the cost, although he had approached defendant several timesfor settlement.on that basis. It has been held in Wiedeman v. Wal:pole 1 that in certain circumstances the failure to reply to a letteramounts to an admission of a claim made therein. Lord _ Esher.M.R. there said :—
Now there are cases—business and mercantile cases— in whichthe Courts have taken notice that, in the ordinary courseof business, if one man of business states in a letter toanother that he has agreed to do certain things, the personwho receives that letter must answer it, if he means todispute the fact that he did so agree. So, where merchantsare in dispute one with the other in the course of carryingon some business negotiations, and one writes to the other,“ but you promised me that you would do this or that,”if the other does not answer that letter, but proceeds withthe negotiations, he must be taken to admit the truth ofthe statement.
And Kay L.J. said :—
There are certain letters written on business matters, andreceived by one of the parties to the litigation before theCourt, the not answering of which has been taken as verystrong evidence that the person receiving the letter ad-mitted the truth of what was stated in it. In some casesthat is the only possible conclusion which could be drawn,as where a man states, “ I employed you to do this or thatbusiness upon such and such terms,” and the person whoreceives the letter does not deny the statement andundertakes the business, the only fair way of statingthe rule is that in every case you must look at all thecircumstances under which the letter was written, and youmust determine for yourself whether the circumstancesare such that the refusal to reply alone amounts to anadmission.
1923.
Jayewar-DSNE A.J.
The ColomboElectricTramwaysand LightingCo., Ltd., v,Pereira
1 (1891) 2 Q. B. 534.
( 196 )
1928.
JAYEW AR-DENS A.J.
The polombo■ElectricTramwaysand LightingCo„ Ltd,, v.■Pereira
This principle was followed locally in 313—D. C. Colombo, 27,445I think that in this case, if the defendant had not expressly ortacitly agreed to pay a two-thirds share of the costs, he would havereplied to Braid’s letter, P 34, of July 29, pointing out that he onlyagreed to pay a half share, especially as it contained a correction ofa previous letter which showed his liability to pay only a half share.Or, at least, he would, on the receipt of this letter, have pointed outto Fernandez what the real agreement was, but he did neither.He says he felt offended when he received P 14. In all the circum-stances, I feel that this is a case in which a reply to Braid or aprotest to Fernandez might have been properly expected. Hisfailure to do so supports the plaintiff’s contention that defendantagreed to pay a two-thirds share of the cost. I therefore dismissthe appeal, with costs.
Appeal dismissed.