072-NLR-NLR-V-20-VALLIAPPA-CHETTY-v.-SILVA.pdf
( 340 )
1918.
Present: Bertram C.J. and De Sampayo J.
VALLIAPPA CHETTY t>. SILYA.
124—I). G. Galle, 15,588.
Promissory note■—Materiel alteration—Noteanullity—Maynote beread
in evidence on an action for money lent ?
“ A Court of Appeal ought only to decide in favour of anappellant on a ground put forward for the first time (in appeal),if it be satisfied beyonddoubt thatithas beforeit all thefacts
bearing upon the newcontention,ascompletelyas wouldhave
been the case if the controversy had arisen at the trial.
Obiter.—The effect ofmaterial alteration of apromissorynote
is to make the note absolutely void. Though the note is a nullity,it can be used as evidence in support of a claim put in someother way.
rJ'HE facts are set out in the judgment of Bertram C.J.
J. S. Jayawardene, for the defendant, appellant.
A. St. V. Jayawardene, for the plaintiff, respondent.
July 1, 1918. Bertram C.J.—
In this case we have first to consider the findings of fact of thelearned Distils Judge. They are, perhaps, not so clear and explicitas they might be. The learned Judge had at first to consider thecase of the parties with regard to the payment. He heard theevidence of both sides, and he rejected the evidence of the defendant.He then had to consider the question of the amount of the interest.The plaintiff has sworn that the amount of the interest was 18per cent., and that this amount was filled in when the note wassigned. The defendant said that it was 12 per cent., and that thefigure 18 was filled in after the note was signed. Hie learned Judgehad, therefore, to consider whether the amount of the interest wasfilled in at all, or whether the note was left blank. On that questionhe rejected the evidence of the plaintiff. He was, therefore, inthis position. He had rejected the. evidence of the defendant onthe question of payment. He . had rejected the evidence of theplaintiff on the question whether the note was a blank note. Hethen had to apply his mind in this state of affairs to the conflictof evidence as to the amount of the interest, and he speaks asthough, under those circumstances, he was logically bound to acceptthe account given by the defendant. He says, “ that being so,.
( 341 )
the rate must be taken as the defendant states, namely, 12. Ido not wholly follow that reasoning. But I will take it as afinding of fact on the conflict of evidence between the plaintiff andthe defendant, and as meaning that the learned Judge accepts theevidence of the defendant.
The point there taken was a point purely as to the amount ofinterest. It was a side issue. It was a question which was not veryfully or strenuously fought by the defendant, nor very elaboratelyconsidered by the learned Judge. But now in this Court, for thefirst time, the appellant takes a new point. It is entirely new,because a perusal of the record shows that it had not occurred to thedefendant in the whole history of the case—neither in the affidavitasking leave to defend, nor in the pleadings, nor in the argument.It is here contended that the finding of fact of the learned Judgethat the rate of interest agreed upon was 12 and not 18, and thatthe note had been filled up, after signature, with a figure which wasin excess of the agreed figure, voids the whole note, and that,therefore, the plaintiff cannot even recover the amount which thelearned Judge on his previous finding in the case had fmmd tobe due.
The question is, Can this point be taken at this stage of the case?In the case of The Tasmania,1 the House of Lords declined to gointo a point taken in the Court of Appeal, which had not b?en takenin the Court below. Lord Herschell said: “ The conduct of a causeat a trial is governed by, and the questions asked of the witnessesare directed to, the point then suggested, and it is obvious that nocare is exercised in the elucidation of facts not material to them.It appears to me that, in these circumstances, a Court of Appealought onlv to decide in favour of an appellant on a ground there putforward for the first time, if it be satisfied beyond doubt, fust, thatit has before it all the facts bearing upon the new contention, ascompletely as would have been the case if the controversy hadarisen at the trial. ”
Well, now, it is true that there was an issue raised as to theamount of the interest agreed upon. It is true that that was before1he Court, and th'at the parties ought to have put forward theirwhole case on that point. But that point was before the Court, asI have said, as a side issue. There is no question that, if it had beenraised on the plefedings, and if an issue had been formulated, it wouldhave been much more seriously considered, both by the parties and bythe Judge. What is more, if the point as to the effect of the allegedalteration had been then raised, there is no question .that the plaintiffwould have asked leave to supplement his pleadings by claiming theamount due apart from the promissory note, and there is no ques'tioDon the English decisions that, if he had been given the opportunity
1918.
Bertram
C.J.
Valliappa
O Hetty v.Silva
1 (1890) L. R. A. C. 223.
( 342 )
1918.
Bxbsbah
OJ.
VaUiappaChetty v.Silva
then, even though the note was void by the alteration, he could haveused the note as evidence of what used to be called the “ moneycount. " On that point, if authority is needed, it will be found
in thf case of Master v. Miller1 and the cases there cited, inparticular the case of Sutton v. Toomer.2
Under those circumstances, it appears to me that the principleslaid down by the House of Lor^s in The Tasmania3 in substanceapply. The facts bearing upon the new contention are not ascompletely before the Court as they would have been if the contro-versy had arisen in- the District Court, and, therefore, I think theappellant should not be allowed to take the point now.
The only consideration urged to the contrary is this, that theeffect of the alteration of the note is to make the note absolutelyvoid. I am disposed myself, although it is not necessary to decidethe point, to take that view of the law. Section 64 of the Bills ofExchange Act, 1882, was intended to codify the law as it was laiddown in the case of Master v. Miller.1 It uses the word “ avoids,”and the same word is used in that case, and the Judges in that casedefinitely declared that any material alteration in an instrument,whether a deed or a promissory note, makes it a nullity as a deedor a promissory note, although it appears from later authoritieslhat though the instrument is a nullity in that capacity, it can beused as evidence in support of the claim, if the claim can be put insome other way. The question is, Does the fact that for this purposethe promissory note is a nullity enable the appellant to raise a pointin this Court which he could not have raised under ordinary circum-stances? I do not think that there is any magic in the fact thatthe document was a nullity. The principles I have above explainedapply, whether the document in question is void, or whether it isonly voidable. In my opinion, therefore, the appeal should bedismissed with costs.
De Sampayo J.—
I am of the same opinion. Counsel for the appellant cited thecase of Wiiewardene v. Appu 4 in support of his argument. But i.twill be found that in that case the point was expressly raised, andan issue was stated in the District C ■*urt, not only as to the alterationof the promissory note, but as to the right of the plaintiff to sue onit if there was such an alteration. This Court, moreover, upheldthe objection, without making any order as to costs. I, therefore,think that the case cited does not help the appellant in this ease.
Appeal dismissed.
1 Smith's Leading Cases, Vol. 2, 808.3 {1890) L. R. A. C. 223.
8 (1827) 7 B.dbC. 416.* {1915) 18 N. L. R. 318.