1870 SHEARMAN v. FLEMING. refusing to accept, even as consignments, shipments the cost of which so out of all proportion exceeds our limits (say when difference exceeds 5 to 7 per cent." 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, admits 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 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 1870 SHEARMAN v. FLEMING. 1870 v. explained delay, there appears to me to be nothing to warrant any SHEARMAN inference that the plaintiffs intended to adopt the shipments at a cost considerably exceeding the limits to which they had repeatedly told the defendant he must strictly confine himself. FLEMING. 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 admission 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, 1s. 11, 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 v. 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. 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 v. Rum (1) 8 W. R., 335. (2) 2 Mad. H. C., 79. (3) Id., 307. (4) Before Sir Barnes Peacock, Kt., Chief Justice, and Mr. Justice Macpherson. UMESH CHANDRA MOOKERJEE (DE- 13th April 1869. THIS was an appeal from a decision of Mr. Justice Phear. The suit was brought on a promissory note, dated 1st April 1865, by which the defendant promised to pay the sum of rupees 1,000 to the plaintiff, with interest at the rate of 12 per cent. per annum for value received. The defendant on 18th of July 1866 wrote a letter to the plaintiff, which contained the following words:"I further hold myself "responsible to you for the two sums of "rupees 1,000 and rupees 900, respect "ively; the latter sum bearing interest "at the rate of 24 per cent. per annum. "Both these sums of rupees 1,000 and 66 rupees 900 I engage to pay to you, with "interest on the latter as soon as practi"cable." At the original hearing, the defendant raised the defence that the suit was barred by the Law of Limitation, but PHEAR, J., held that the letter of 18th July 1866 was an admission of the debt, and the defend- The defendant appealed from this de- Mr. Branson for the appellant. Mr. Kennedy and Mr. Evans for the respondent. PEACOCK, C. J. (after shortly stating the facts), continued :-It appears to me that this decree ought to be affirmed. The letter is addressed to Mrs. White, but parol evidence was admissible to shew that Mrs. Sageman was known as Mrs. White, and that this letter was given to her. There is an acknowledgment of two dates. It is almost impossible for an acknowledgment in writing so to identify a debt, as that no parol evidence is required for the purpose of completing the identification. In a case under the Statute of Frauds, it was held that, if a letter properly signed does not contain the whole agreement, yet if it actually refers to a writing that does, it will be sufficient, though the latter writing is not signed; and parol evidence is admissible to identify the writing FLEMING. 634 1870 SHEARMAN FLEMING. 66 zan Ali (1). As to the evidence of payment of the bills referred to-Allan v. Bennet (a), Roscoe's as "Trogues Farm;" see Goodtitle v. (a) 3 Taunt., 169. to tion. It is a clear rule of law that parol ambiguity, that is, an ambiguity raised by evidence is admissible to explain a latent evidence. No ambiguity arose upon the face of the acknowledgment, until the parol evidence showed that there were three debts. "When an ambiguity not "apparent on the face of a written in"strument is raised by the introduction of "parol evidence, the same description of "evidence is admitted to explain it; for "example, where a testator devised his "estate called Blackacre, and had two es"tates called Blackacre, evidence was ad"mitted to show which of the Blackacres 66 66 66 I was meant. So, when a man devises an 'estate to his son, John Thomas, and he "has two sons of the name of John Tho 66 mas, evidence may be admitted to show "which the testator intended "-Roscoe's Nisi Prius Evidence, 10th Ed., 23. It therefore appears to me that the evidence was admissible for the purpose of showing that the acknowledgment related to the promissory note upon which the action was brought, and to prove that Mrs. Sageman was the person alluded to under the name of Mrs. White, and that she was the person to whom the note was given. Suppose there were two notes of £1,000 I might further illustrate the case thus. each, one of April 1st, 1865, and one of April 2nd, 1865, and that the one of April 1st had a surety to it; and suppose the defendant said in his letter, "I ac 66 knowledge I owe you £1,000 on my note that the plaintiff could show, by parol evi"of April last." I apprehend it is clear dence, that the acknowledgment referred to the note to which there was no surety. It is further said that there was no acknowledgment to pay interest, and that the defendant acknowledged that he owed the Judge has given too much interest. If from that date at the latest. It may be money on the note, the interest would run that the Judge has given interest from the date of the note, and that he has given a (1) 8 W. R., 513. (b) 1 M. & S., 299. |