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Present: De Sampayo J. and .Schneider A.J.
WALKER, SONS & CO., LTD., v. KANDYAH.
ISO—D. C. Colombo, 50,802
Prescription—Action for repairs effected to motor car and materialssupplied—Orderby letter to effectrepairs;—Writtencontract—
Work and labour done and goods sold—Acknowledgment of liabil-ity to pay part only—Ordinance No, 22 of 1871, ss, 7, 8, 9, and 18.Theplaintiffs filed thisactionon July22, 1919,to recover aearn
of Be. 2,677.42 for repairs effected to a motor car and for materialssupplied between June, 1916, and April, 1918.
The order of the defendant requesting the plaintiffs to effect therepairswasgiven by aletter,and theacceptanceof theorder by
the plaintiffs was also by a letter.
Held, that the contract between the parties was not a writtencontract within the meaning of section 7 of Ordinance No. ‘ 22 of1871,noran unwrittencontract fallingunder section 8,butfell
underthatclass of unwrittencontract speciallyprovidedforby
“ The written contract (under section 7) is one in the nature ofsecurity,. andmust have a certain degree of formality, andit is
difficult to say that the letters exchanged between the parties inconnection with the motor car is a security in this sense.”
Actions for work and labour done ‘ and goods •. sold and delivered^thoughtheseare unwritten contracts, – come within section9, and
not under section 8.
Whentheplaintiffs pressed for payment, the defendantwithin
year from date of action acknowledged ‘ his indebtedness, and pro-mised to pay Bs. 2,000 in full satisfaction.’
Held,thatthis ‘ acknowledgment entitled the plaintiffs torecover
only Bs. 2,000, and not’ the full amount of the claim.
‘HE plaintiffs-respondents sued the defendant-appellant torecover the sum of Rs. 2,677.42 for repairs done to a motorcar and for materials supplied in the work, including a sum of Rs. 250for storage of the car. At the trial the plaintiffs waived the sum ofRs. 250 charged for storage, and the case went for trial on the issue,viz., whether the action was prescribed.
The learned District Judge held that, as a claim for work andlabour done or for goods sold and delivered, the action was pre-scribed under section 9 of the Prescription Ordinance, but that theplea of prescription could not be maintained in view of the acknow-ledgment of the debt and the promise to pay contained in thecorrespondence between plaintiffs and defendant.
The defendant appealed from this judgment.
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1818*A. St. V. Jayawardene, for the defendant, appellant.—The
WeBbeTfltae defendant’s promise to pay was only in respect of a sum of Bs. 2,000,Lid.which he had offered in full settlement of the claim by his letter
oJCandyahp which offer plaintiffs had accepted by their letter P 17.
Plaintiffs, therefore, could not get judgment for any sum in excessof Bs. 2,000. Counsel cited Philips v. Philips.1
L. H. de Alwis, for plaintiffs, respondents.—The action was notprescribed in one year. Section 9 of the Prescription Ordinance,which refers to actions for or in respect of work and labour or goodssold and delivered, does not apply. That section was held to referonly to manual labour, or work of a menial character. It would notinclude a case like the present, where the work of repairs requireda certain degree of engineering skill. Counsel cited Walles v.Philippu; 2 Brohier v. Kallehegamagey; 3 Don Mathes v. Daniel; *Alvapillai v. Sadaiyar; 3 Mack v. Wickremaratne; 6 Gunasekere v.Ratnayake;7 Jayawardene v. leu Lehbe. 8 Again, before the plaintiffscommenced the work, they sent defendant an estimate of the cost ofrepairs and of the parts to be supplied and fitted on, and it was onlyon defendant’s reply in writing agreeing to pay the amount specifiedthat plaintiffs commenced the work. The agreement, therefore,being in writing, section 7 of the Prescription Ordinance applied, andthe claim would not be prescribed inside of six years. Even if thecontract were to be reckoned as an unwritten one, section 8 wouldapply, and the claim only prescribed in three years. Further, theclaim neither fell wholly under the class of “ work and labour ” northat of “ goods sold and delivered,” but contained elements of both.It formed a new class of case, and therefore section 11 of thePrescription Ordinance applied.
A. St. V. Jayawardene, in reply.—The correspondence do notconstitute such a contract in writing as is contemplated by section 7of the Prescription Ordinance. The documents are not stamped,nor are they in the solemn form taken by contracts generally-Section 8 does not apply in this case. No doubt every claim forwork and labour is on an unwritten contract or agreement. Butsection 9 specifically provides for all such unwritten agreements asare for work and labour or goods sold and delivered. It would renderthat section nugatory, if its application in a case like this were deniedon the ground that the claim was on an unwritten agreement.
In Cl ay v. Yates 9 it was held that the printing of a book fell underthe class of ‘‘ work and labour done,” although a certain degree ofskill was required in the task.
Cur. adv. vult.
» 3 Bare 299.‘ 1 Bat. 143.
» Ram. 1872.103.«(1901) 6 N. L. R. 142.
2 Lor. 57.’ 1 Cur. L. R. 264.
« 3 Lor. 22.• (1908) 11 N. L. R. 321.
9 (1856) 1 Bur. <k Norm. 73.
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October 1, 1919. Be Sampayo J.—
The plaintiffs are an engineering firm, and sue the defendant forrepairs effected to a motor car of the defendant and for materialssupplied. We have to decide a question of prescription which thedefendant has raised. The repairs were effected between June,1916, and April, 1918, and this action was brought on July 22, 1919.The defendant pleads that this is an action for work and labourdone and goods sold and delivered, and comes under section 9 of theOrdinance No. 22 of 1871, and is therefore barred by prescription.The order of the defendant requesting the plaintiffs to effect therepairs was given by a letter, and the acceptance of the order by theplaintiffs was also by a letter, and the plaintiffs’ counsel contendsthat the contract between the parties was a written contract withinthe meaning of section 7, and the action will only be prescribed insix years. Section 7 relates to actions “ upon any deed for establish-ing a partnership, or upon any promissory note, or upon any writtenpromise, contract, bargain, or agreement, or other written security.”The written contract, it would seem, is one in the nature of asecurity, and must have a certain degree of formality, and it isdifficult to say that the letters exchanged between the parties inconnection with the motor car is a security in this sense. Theplaintiff’s counsel next refers to section 8, which limits actionsupon an unwritten contract to three years. If the correspondencedoes not constitute a written contract, it must be conceded thatthere was an unwritten contract. But then comes section 9, whichappears to provide specially for actions on certain classes of un-written contracts, and I think that actions for work and labourdone and goods sold and delivered, though these are unwrittencontracts, come within section 9. See the concluding part of thejudgment of Moncrieff J. in Horsfall v. Martin. 1
A Oo., Ltd.
However this may be, there are one or two matters which in anycase appear to enable the plaintiffs to avoid the plea of prescription.The plaintiffs’ bill against the defendant was for Rs. 2,268.95, andthe claim, with the addition of certain other charges, has nowamounted to Rs. 2,677.42. When the plaintiffs pressed for pay-ment, the defendant replied by letter and acknowledged his indebted-ness, and promised to pay Rs. 2,000 in full satisfaction. Thiswas within a year from the date of action. It amounts to anacknowledgment in writing within the meaning of section 13 of theOrdinance, and is evidence of a new contract whereby to take thecase out of prescription. But Mr. Jayawardene is, I think, right inbontending that, granting that to be so, the plaintiffs can, neverthe-less, recover only Rs. 2,000 which was promised, and no more.“ The legal effect of an acknowledgment of a debt barred by theStatute of Limitations is that of $ promise to pay the old debt.
* (1900) 4 N. L. R. 70.
Walker, Sana<bOo.,IM.v, Kandyah
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and for this purpose the old debt fc a consideration in law. It is.revived as a consideration lor the new promise.. But the newpromise, and not the old debt, is the measure of the creditor’srights ” (Philips v. PhiKpt1 per Wigram V.G.). As the plaintiffsare obliged to depend on the defendant’s new promise, judgmentcan only go for Bs. 2.000, and not for the full amount for whichthe District Judge has entered a decree in favour of the plaintiffs.At the trial the plaintiffs waived a sum of Bs. 250, which theyhad charged as store rent, and Mr. Jayawardene suggests thatthe plaintiffs’ claim should be still further reduced by deductingthis sum from the Bs. 2,000. But I do not think this is right. Thewaiver was made in respect of the plaintiff’s full claim, and not inrespect of the amount of Bs. 2,000 promised by defendant. As amatter of fact, the question of restricting the plaintiffs to the amountof the defendant’s promise does not appear to have been mooted inthe District Court.
I would vary the decree by reducing the amount to Bs. 2,000.The defendant’s success in appeal is not substantial, and I wouldgive the plaintiffs the costs of appeal.
Schneidkb J.—I agree. *
* 3 Hare. p. 399.