072-NLR-NLR-V-05-CROOS-v.-GOONEWARDENE-HAMINE.pdf
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CROOS v. GOOXEWARDENE HAMINE.1002.
February 7,
D. C., Kalutara, 2,168.u<and u-
Cause of action—Contract of mortgage and its breach—Parol agreement out-side the mortgage agreement—Civil Procedure Code, s. 5—" Obligation "—
Failure to pay.
C lent money to G upon a mortgage bond. A part of the loan having6een liquidated, C and G entered into a parol agreement that a furthersum should bo advanced to G and the total “ secured " by the same bond,
G, having receivedtheadditional stun andbeingindefault of payment,
eras sued by C onthemortgage bond, butbeingadvised that the action
could not bo maintained on the bond, he moved to withdraw the suit.
G objected and plaintiff's action was dismissed, as he was not ready onthe trial day.
Plaintiff then raised the present action alleging payment to G upona parol agreement. G pleaded res judicata.
Held, that, though the cause of action was in the previous suit thebreach of the contract of mortgage and in the present suit the breach ofthe parol agreement, yet both actions referred to the failure to pay oneand the same debt, and it was the duty of the plaintiff, when he suedthe defendant in the former suit for the money as due upon the mortgage,to have claimed it as due also upon the parol agreement declared uponin the present suit.
Wendt, J.—The word “ obligation," occurring in the definition of‘ cause of action " given in section 5 of the Civil Procedure Code, is tobe understood not in the narrower sense inwhichaparol promise to pay
a promissory noteanda mortgage givenfor thesame debt may be
described as three different obligations (arising from the parol promise,promissory note, and mortgage), but in the wider sense of a liability topay the one sum of money stipulated.,4
I
X this action, instituted on 20th February, 1900, plaintiff allegedthat he lent to the defendants Rs. 1,037.65 on the agreement
that they should pay off the loan by deliveries of arrack; that hereceived from them arrack of the value of Rs. 237.84, and madefurther loans of money on the same understanding; and that onthe 0th September, 1897, there was due to the plaintiff Rs. 944.24,which the defendants had failed to liquidate by delivery of arrackor by cash. He prayed that the defendants be decreed to pay tothe plaintiff Rs. 944.24 with interest thereon. &c.
The defendants denied the agreement as alleged, and 'pleaded“ that on the 5th July, 1898, plaintiff brought against the defendants“ the action No. 1,915 in the District Court of Kalutara to recover“ from them the sum of Rs. 1,875, wherein was included the sum of'■ Hs. 1.037.65 now sued for, and the said action was by decree of** this Court.dismissed with costs, and the said decree still remained“ of full force and effect, and the defendants say that the plaintiff is“ thereby estopped from again suing the defendants for the said sum.”
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1002.
February 7,14 , and U
On the trial day plaintiff admitted that the previous action (D. C.r1,915) was based on a mortgage bond, whereby the present defend-ants mortgaged to plaintiff certain property to secure payment ofRs. 1,500, which he had paid to them on 15th February, 1896,against supplies of arrack; that on 11th February, 1897, he founda balance of Rs. 453.85 due on that bond; that the defendants thenasked him for a further loan of Rs. 1,037.65, so as to bring thedebt up to Rs. 1,500; that it was then agreed that the bondshould secure this amount; that on this understanding he paid thedefendants the sum of Rs. 1,037.65; that after suit No. 1,915 wasfiled, he was advised by his counsel that the evidence in proof ofthe consideration of the mortgage bond, as appearing in the bonditself, would be at variance with the evidence intended to be ledas to the aforesaid sums of Rs. 453.35 and Rs. 1,037.65 making upthe considerations, and therefore he should withdraw the suitNo. 1,915 and institute a fresh suit; that on defendants objecting tothe withdrawal of the suit, the case was fixed for trial; and thatas plaintiff was not ready, the action was dismissed with costs.
The District Judge found that- the claim in the present case wasfor the same or part of the same subject-matter as in D. C., 1,915.He upheld the plea of res judicata and dismissed the action:
Plaintiff appealed.
The appeal was argued on the 7th and 14th February, 1902.
Van Langenberg, for plaintiff, appellant.
Bawa, for defendants, respondent.
Cur. adv. vult.
24th February, 1902. Wendt, J.—
The question in this case is whether the plaintiff is barred fromrecovering the amount of his claim by reason of the judgmentin his former action No. 1,915. The plaintiff seeks to recover thebalance sum of Rs. 944.24 said to be paid under the following cir-cumstances. On the 1.1th February, 1897, plaintiff advanced to thedefendants, who are distillers of arrack, the sum of Rs.. 1,037.65.which defendants promised to liquidate by delivery of arrack tothat value. Five small sums were subsequently advanced on thesame terms up to 6th September, 1897, bringing the total up toRs. 1,182.08; and defendants having made three, deliveries ofarrack, amounting to Rs. 237.84 in value, they remained plaintiff’sdebtors in the sum now claimed, Rs. 944.24. The defendants inanswer denied all the material averments in the plaint, andpleaded that the sum now claimed had been included in theplaintiff’s claim of Rs. 1,875 in action No. 1,915, and that thedismissal of that action is a bar to the present action.
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It appears that in February. 1896, the plaintiff advanced to the 1902.defendant a sum of Bs. 1.500 secured by a mortgage, which wasIf
to be satisfied by deliveries of arrack. The deliveries of arrack
up to the 11th February, 1897, reduced the debt to Bs. 453.35, Won>T’but the defendants wished to have fresh advances up to Bs. 1,500,and the plaintiff then paid them Bs. 1,037.65, and it was agreedthat the mortgage should be considered to be again in force forthe full sum of Bs. 1,500 secured by it. On that footing theplaintiff brought his action No. 1,915 to recover the full principalsum of Bs. 1.500 secured by this mortgage, and a. further sum ofBs.375 as interest at therate stipulated in thebond.The
defendants pleaded complete satisfaction of the bond by deliveriesof arrack. The plaintiff was advised that the parol agreement torevive the bond was invalid, and he thereupon moved to withdrawfrom the action with leave to institute a fresh action. This wasrefused, and plaintiff not being ready to -go to trial, his actionwas dismissed with costs. When examined at the present trial,the plaintiff deposed that he was not now claiming the balanceof Bs. 453.35, to which the original mortgage debt, had beenreduced, but he admitted that the sum of Bs. 944.24 which hewasnow seeking to recoverwas part of the sumsued for in
action No. 1.915.
Upon these facts the District Judge held that the dismissal ofthat action was a bar to the maintenance of the present action,which he accordingly dismissed. It has been argued for theplaintiff that this decision was wrong, because the causes ofaction under the two cases were different; that the cause ofaction in No. 1,915 was the contract of mortgage and its breach,while in the present suit the cause of action was founded uponan agreement outside the mortgage altogether. Now “ cause ofaction ” is defined under section 5 of the Civil Procedure Codeas “ the wrong for the prevention or redress of which an actionmaybe brought,” and as including ” the denial toa right,the-
refusal to fulfil an obligation,the neglect to performa duty,and
the infliction of an affirmative injury.” I think that the" word” obligation " in this definition is to be understood not in thenarrower sense in which aparol promiseto payapromissory
note and a mortgage, although given for the same debt, may bedescribed as three different “obligations,” but in the moregenerally understood senseof a liabilityto paythat sum of
money. Beading the definition in this case, the cause of actionwas the same in both actions, namely, the failure to pay one andthe same debt. That beingso, the plaintiff, whenheclaimed as
due upon the mortgage thesum which henow seeksto recover,
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1802.
February 7,14, and 24.
Wendt, J.
ought to have claimed it also as due by the parol agreement nowdeclared upon. Not having done so, his right under the last men-tioned agreement was a “ right to money which could be
claimed, set up, or put in issue between the parties ’’ to theformer action, and which, whether it was actually so claimed, setup, or put in issue or not, has become, on the passing of the finaldecree, a res adjudicata, which cannot therefore be- made thesubject of the present action for the same cause between thesame parties.
The appeal will therefore be dismissed.
Bonser, C.J.—I agree.
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