071-NLR-NLR-V-20-DIAS-v.-CONSTANTINE.pdf
i 338 )
1918.
Present: Bertram A.G.J. and De Sampayo J*DIAS v. CONSTANTINE123—IX C. Galle, 14,954.
Jurisdiction—Goods supplied by person residing at Galle to a personresiding at Kalutara—Action for value of goods sold—Has GaUeCourt jurisdiction t—Place ofpayment—Sale ofGoodsOrdinance.
Plaintiff, a resident of GaUe, entered into an agreement with thedefendant, who was residing and carrying on business at Kalutara,to supply goods at Kalutara..
There was no express agreement as to the place of payment.Plaintiff brought this action in the District Court of Galle tor thevalue of goods supplied.
Held, that the Court had jurisdiction.
Primd facie, in commercialtransactions,whencashis to bepaid
by one person to another, that means that he is to be paid at theplace where the person who is to receive the money resides or carrieson business.
rj1HE facts are set out in the judgment of the District Judge: —
This is an actionto enforce a payment on asale ofrubber stumps
supplied. The Court has jurisdiction. The plaintiff offered stumpsfor sale by advertisement. The defendant, a seedsman at Kalutara,wrote about them, received a sample by train, sent an agent to inspect,and finally accepted plaintiff’s proposal, presumably by post, withoutleaving his station. Bo that theacceptancewas outiidethe jurisdiction
of the Court, and therefore the contract was definitely made at Kalutara.But the cause of action is the failure of tender of payment to theplaintiff; in the absence of agreement to the contrary, the presumptionis that payment shallbe made to the party towhom itis due at his
residing place or place of business, and thepartieshaveheretoforeacted
on that footing. r?.y> 'ents were tendered by cheque sent to plaintiff.The cause of action begins here
E, W. Jayawardene (with him Prins), for appellant.
llayley, for respondent.
June 8, 1918. Bertram A.C.J.—
The question that we have to determine in this case is a questionof jurisdiction. The question is, Where did the cause of action arise?The action is brought in respect of a non-payment of a sum dueon a contract. Thecontractwas a contractenteredinto for the
supply of goods atKalutaraby a merchantresidingand carrying
( 339 )
on business in Galle. The question, therefore, is, At what placeunder the contract was the payment to be made? The place ofpayment under the contract is .the place where the parties to thecontract intended the payment to be made. In this case thecontract does not expressly mention any place of payment. Con-sequently, what we have to discover is the implied intention of theparties.
There have been several oases in England on this point, and itis a rule of English law that it is the duty of a debtor to seekout and pay his creditor, if the creditor is within the jurisdiction, atthe creditor’s residence or place of business. The relevancy of thatrule in regard to this matter is this, that under the English law, indetermining what was the intention of the parties, this is a circum-stance which the Court naturally looks at. The debtor being underan obligation to seek out and pay his oreditor, the Court assumesthat the parties, if they did not mention the place of payment,contracted on that basis. The cases in English law where thatdoctrine has been laid down are, amongst others, Duval & Company,Limited v. Gans,1 and Rein v. Stein.2 It is said that this is a pointin which the law of England differs from that of Ceylon. I do notthink that is correct. The English law with regard to the sale ofgoods is in force in Ceylon, and part of that English law is theobligation of the debtor to seek out and pay his creditor.
That is not the only fact in the case. Another fact is that theplaintiff is a merchant, as I have said, resident and carrying onbusiness at Galle, supplying goods to order. Any ordinary businessman, carrying on business in this Colony at a particular centre andsending out his goods to distant places in the Colony, expects to bepaid at his place of business. The principle is so laid down byKay L.J. in Rein v. Stein,2 one of the cases above referred to.“ Prima facie, in commercial transactions, when cash is to be paidby one person to another, that means that he is to be paid atthe place where the person who is to receive the money, resides orcarries on business. ” That is the only common sense view. In myopinion the intention of the parties was that the money due uponthe contract should be paid at Galle, at the place where themerchant supplying the goods is resident and carrying on business.It is not necessary for us to go into the question as to wherein fact, the contract was actually concluded, because that is, afterall, only one circumstance.It has very little bearing on the
intention of the parties as to where the money should be paid.
I am of opinion, therefore, that the appeal should be dismissedwith costs.
1)e Sampavo J.—I agree.
Appeal dismissed.* {1892) 1 Q. B. 753
1918.
Bebtram
A.C.J.
Diaav.
Constantin
1 (1904) 2 K. B. 685