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1870

SHEARDAN

refusing to accept, even as consigaments, shipments the cost of which so out of all proportion exceeds our limits (say when difference exceeds 5 to 73 per cent.”

FLEMING.

NORMAN, J.— The plaintiffs, Messrs. Robinson and Fleming, of Austin Friars in London, sue to recover Rs. 12,011-6 as being due from the defendant to them in respect of bills drawn by the defendant upon the plaintiffs against shipments of jute, and accepted and paid by the plaintiffs.

The first question raised by the defendant was whether the plaintiffs had proved the payment of the bills. The defendant admitted on cross-examination that he had sold the bills in question and received the money.

The plaintiffs produced the bills: one of them bore a receipt proved to be in the handwriting of the cashier of the Chartered Mercantile Bank; two of them were endorsed “ Contents received for the Central Bank of Western India” (one signed by Robert Davidson, and the other by David John, agents in London.) The handwriting of Mr. Davidson and Mr. John was proved, and the fact that they were agents of the Central Bank. A fourth endorsed in blank by the Central Bank of Western India bears an endorsement, “Received from the London and County Bank, R. Nicholas.” No evidence was given to show who Mr. Nicholas was. Three other bills bear simply a blank endorsement of “ Central Bank,” But as they are produced by the acceptor long after the due date, and the defendant, the drawer, adınits that though he endorsed and negotiated them he received no notice of dishonor, and that no demand for payment of the bills was ever made on him, I think it is abundantly proved that the bills must have been paid at or before maturity by the plaintiffs as acceptors.

The defendant consigned to the plaintiffs 657 bales of jute cuttings by the Belle Isle. A portion of this shipment, viz., 575 bales of cuttings, he described as a consignment on account and risk of Messrs. Stevens and Foggo. But he drew in his own name against the entire consignment, without distinguishing the goods on account and risk of Stevens and Foggo. I think it is proved that the plaintiffs in this transaction were dealing

1870

SHEARMAX

V. FLEMING.

with the defendant alone, and giving credit to him, and not to Stevens and Foggo. A perusal of the correspondence confirms me in that conviction. The result is that, in my opinion, the plaintiffs in paying the bill drawn against this shipment paid the money to the use of the defendant and are entitled to look to him for repayment.

(His Lordship read a great deal of the correspondence between the parties, to show the nature of the arrangement and transactions between them. He referred especially to the plaintiffs’ letters of December 26th, 1865, January 10th, 1866, and January 26th, 1866, the defendant's letter of January 22nd, 1866, the plaintiffs of March 10th, the defendant's of February 8th, the plaintiffs' of March 19th, the defendant's of February 22nd, the plaintiffs' of April 3rd, the defendant's of March 8th, and continued.)

The plaintiffs have proved payments under the bills drawn against such shipments, amounting to the sum of £964-3-6, in excess of the amount for which they give credit to the defendant as being the net proceeds of the sale of jute, jute cuttings, and rejections, which, under the foregoing circumstances, they were entitled to treat, and have in fact treated, as consignments on account of the defendant. Mr. Branson, for the defendant, has attempted to show that some of these consignments were at a cost within the limits, but without success. He attempted to show that the plaintiffs did not give notice in proper time to the defendant that they would treat the invoices as consignments. But on looking carefully to the particulars as to the arrival and departure of mails, and to the fact that down to a period after the 7th of April 1866, which is a very important date with reference to this question, the defendant, as appears from a letter of the plaintiffs of the 10th of March 1866, was in the habit of sending the letters including the invoices of his shipments by the mail conveyed by the Peninsular and Oriental Company's steam ship from Calcutta, while the bills drawn against such shipments transmitted by the bankers used to come forward by the Bombay mail, it appears pretty clearly that the plaintiffs did in most instances reply by return of post after receiving the invoices. In the only cases in which there was apparently some slight un

a

1870

explained delay, there appears to me to be nothing to warrant any SHEARMAN inference that the plaintiffs intended to adopt the shipments at a FLEMING.

cost considerably exceeding the limits to which they had repeatedly told the defendant he must strictly confine himself.

In addition to the sum of £964-3-6, there is a sum of £188-5-6, the balance of an old account.

The defendant contended that the suit as to this sum was barred by limitation. But this objection fails. The debt has been distinctly admitted by the defendant in the correspondence which has been put in by the plaintiffs. A letter dated the 22nd of December 1865, written three years before the commencement of this suit, which was instituted on the 17th of November 1868, contains a distinct adınission of the defendant's liabilities on the old account.

The plaintiffs are therefore entitled to a decree for the equivalent of £1,052-9-0, being the aggregate of the two sums of £964-3-6 and £188-5-6, at the exchange of the day for bills on demand, ls. 111, with interest at 6 per cent. from the date of the plaint. The plaintiffs will recover their costs on scale 2.

From this decision the defendant appealed on (inter alia) the following grounds :—That there was not sufficient legal evidence to sustain the suit; that the letters of the plaintiffs should not have been held to be stated or settled or final accounts as between him and the plaintiffs ; that on an average of the whole number of purchases they did not exceed the limits fixed by the plaintiffs ; that even if there had been an excess proved, the defendant was only liable to be debited with the amount of such excess, and that it was not competent for plaintiffs at their option, without the ratification of the said defendant, to treat the agency shipments as consignments; that the portion of the plaintiffs' demand in this case, viz., £188-5-6, being the balance of an old account, was barred by the Law of Limitation, and that no evidence should have been allowed to be given as to the said old account or balance thereon of £188-5-6, inasmuch as the plaint confines all causes of action and demands thereunder to the time between the 31st December 1865 and 31st December 1867; that there was no evidence of the several bills of exchange in the plaint and

1870

pleadings mentioned having been paid by the plaintiffs; and that the plaintiffs were not entitled to treat the various rejected ship- SHEARMAN ments as consignments of and from the defendant, but as shipments made on account of the plaintiffs and by their orders.

v. FLEMING.

Mr. Kennedy, for the appellant, contended as to the £188-5-6 that it was barred by the Law of Limitation. Part payment is not sufficient acknowledgment of debt-Gora Chand Dutt v. Lokenath Dutt (1); and this writing is not sufficient under section 4, Act XIV of 1859—-Khwaja Muhammad Janula v. Venkatarayar (2). The sufficiency of a writing as an acknowledgment is to be judged of by the Court--Kristna Row v. Hachapa Sugapa (3). [PHEAR, J., refers to Umesh Chandra Mookerjee v. E. Sageman (4)]—Luchmun Pershad y. Rum

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(1) 8 W. R., 335.

an admission of the debt, and the defend(2) 2 Mad. H. C., 79.

ant failing on the merits, a decree was (3) Id., 307.

given for the plaintiff for rupees 1,000, (4) Before Sir Barnes Peacock, Kt., Chief with interest as in the promissory note. Justice, and Mr. Justice Macpherson, The defendant appealed from this de

cision. UMESH CHANDRA MOOKERJEE (DEFENDANT) v. E. SAGEMAN (PLAINTIFF).

Mr. Branson for the appellant. 13th April 1869.

Mr. Kennedy and Mr. Evans for the This was an appeal from a decision of respondent. Mr. Justice Phear. The suit was brought on a promissory note, dated 1st April PEACOCK, C. J. (after shortly stating 1865, by which the defendant promised to

the facts), continued :—It appears to me pay the sum of rupees 1,000 to the plaintiff, that this decree ought to be affirmed. with interest at the rate of 12 per cent. per

The letter is addressed to Mrs. White, annum for ralue received. The defend- but parol evidence was admissible to ant on 18th of July 1866 wrote a letter shew that Mrs. Sageman was known as to the plaintiff, which contained the fol- Mrs. White, and that this letter was given lowing words :-“I further hold myself to her. There is an acknowledgment " responsible to you for the two sums of of two dates. It is almost impossible rupees 1,000 and rapees 900, respect for an acknowledgment in writing to

ively; the latter sum bearing interest identify a debt, as that no parol evidence “at the rate of 24 per cent. per annum.

is required for the purpose of completing “ Both these sums of rupees 1,000 and the identification.

rapees 900 I engage to pay to you, with In a case under the Statute of Frauds, it “ interest on the latter as soon as practi- was held that, if a letter properly signed “cable.”

does not contain the whole agreement, yet At the original hearing, the defendant if it actually refers to a writing that does, raised the defence that the suit was barred it will be sufficient, though the latter by the Law of Limitation, but PHEAR, J., writing is not signed ; and parol evidence held that the letter of 18th July 1866 was

is admissible to identify the writing

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1870

SHEARJAN

FLEMING.

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zan Ali (1). As to the evidence of payment of the billsreferred to~Allan v. Bennet (a), Roscoe's tion. It is a clear rule of law that parol Nisi Prius Evidence, 11th Ed., 152. evidence is admissible to explain a latent

Now, if parol evidence is admissible in ambiguity, that is, an ambiguity raised by such a case to identify the writing referred evidence. No ambiguity arose upon the to, it appears to me to follow that parol evi- face of the acknowledgment, until the dence is admissible in this case to identify parol evidence showed that there were the debt referred to. Suppose the defend three debts. “When an ambiguity not ant had said in the letter, “ I acknow- "apparent on the face of a written in

ledge that I owe you £1,000, for which strument is raised by the introduction of “I have given a promissory note,” that “parol evidence, the same description of of itself would not identify the promis- “evidence is admitted to explain it; for sory note referred to. Even if he said, “I example, where a testator devised his “have given you a promissory note of the estate called Blackacre, and had two es“ 1st February 1865,” that would not of “tates called Blackacre, evidence was aditself identify the note ; but some evi- “mitted to show which of the Blackacres dence would be required to shew that was meant. So, when a man devises an this particular note was the note to which “estate to his son, John Thomas, and he the acknowledgment referred. Parol evi- “has two sons of the name of John Thodence is admissible for the purpose of “mas, evidence may be admitted to show showing parcel or no parcel. Thus, where “ which the testator intended”-Roscoe's a testator devised all his farm, called Nisi Prius Evidence, 10th Ea., 23. It Trogues Farm,” it was held that it therefore appears to me that the evidence might be shown of what parcels the farm was admissible for the

purpose of showing consisted, to show what were the parti- that the acknowledgment related to the cular lands to which the writing referred promissory note upon which the action was

Trogues Farm;" see Goodtitle v. brought, and to prove that Mrs. Sageman Southern (6), Roscoe's Nisi Prius Evidence, was the person alluded to under the name 10th Ed., 25. It appears to me therefore of Mrs. White, and that she was the perthat parol evidence was admissible for son to whom the note was given. the purpose of showing what debt was I might further illustrate the case thus. referred to in the acknowledgment; and Suppose there were two notes of £1,000 the plaintiff proves that the debt of each, one of April 1st, 1865, and one rupecs 1,000 is the debt referred to. It of April 2nd, 1865, and that the one of is then said that the plaintiff on cross- April 1st had a surety to it; and suppose examination admitted that there were the defendant said in his letter, “ I acthree debts, and that the acknowledg- “ knowledge I owe you £1,000 on my note ment might as well have referred to “ of April last.” I apprehend it is clear the third debt, as to the other two debts that the plaintiff could show, by parol eviof which she speaks. No doubt, an am- dence, that the acknowledgment referred biguity was created, as the defendant pro- to the note to which there was no surety. mised to pay only two debts, and there It is further said that there was no acwere three debts spoken to by the plain- knowledgment to pay interest, and that tiff.

The question then arose as to the Judge has given too much interest. If which two of the three the acknowledg- the defendant acknowledged that heowed ment related to, But how was that am- money on the note, the interest would run biguity created ? Not by the writing, from that date at the latest. It may be but by the parol evidence of the plaint- that the Judge has given interest from the iff obtained from her on cross-examina- date of the note, and that he has given a

(1) 8 W. R., 513. (a) 3 Taunt., 169.

(6) 1 M. & S., 299.

as

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