161-NLR-NLR-V-48-AMERASINGHE-Appellant-and-DE-ALWIS-Respondent.pdf
HOWARD C.J.—Amerasinghe v. de Alwis.
519
1947Present: Howard C. J.
AMERASINGHE, Appellant, and DE ALWIS, RespondentS. C. 143—C. R. Colombo 4,531
Prescription—Repairs to motor car—Work and labour done—Chapter 55,sections 7 and 8.
A claim for repairs effected and materials supplied to a motor car fallswithin section 8 of the Prescription Ordinance and is barred after one year.Walker Sons & Co., Ltd. v. Kandiah (1919) 21 N. L. R. 317, followed.
A
PPEAL from a judgment of the Commissioner of Requests,Colombo.
S. Amerasinghe, for the plaintiff appellant.
S. Canagarayer, for the defendant, respondent.
Cur. adv. vult.
October 10, 1947. Howard C.J.—
The plaintiff appeals in this case from a decision of the Commissionerof Requests, Colombo, dismissing his action with costs. The plaintiffwho carries on business at No. 128, Lauries Road, Bambalapitiya, underthe name and style of British Motors, brought this action against thedefendant for a sum of Rs. 70 on account of certain repairs effected andmaterials supplied to the defendant’s motor car on or about January 28,1944. The defendant filed answer pleading, inter alia, that the cause ofaction was prescribed under the provisions of the Prescription Ordinance(Chapter 55). It was agreed that this issue of prescription should betried as a preliminary issue. The Commissioner considering himselfbound by the case of Walker Sons & Co., Ltd., v. Kandiah1 held that, theplaintiff’s claim is barred by prescription under section 8 of the PrescriptionOrdinance.
Section 8 of the Prescription Ordinance is worded as follows : —
“ No action shall be maintainable for or in respect of any goods soldand delivered, or for any shop bill or book debt, or for work and labourdone, or foF the wages of artisans, labourers, or servants, unless thesame shall be brought within one year after the debt shall havebecome due.”
Counsel for the appellant contends that this section only applies tomanual labour and that the question of prescription in the present case isgoverned by section 7 of the Ordinance. In Walker Sons v. Kandiah(supra) the plaintiffs instituted an action to recover a sum of Rs. 2,677.42for repairs effected to a motor car. The order of the defendant requestingthe plaintiffs to effect the repairs was given by a letter and the acceptanceof the order by the plaintiffs was also by a letter. It was held that thecontract between the parties was not a written contract within themeaning of section 6 of the Prescription Ordinance nor an unwrittencontract falling under section 7, but fell under that class of unwritten
1 (1919) 21 N. L. R. 317.
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HOWARD C.J.—Amerasinghe v. de Alwis.
contract specially provided for by section 8. Actions for work andlabour done and goods sold and delivered, though these are unwrittencontracts, come under section 8 and not under section 7. It was alsoheld that, as the defendant within a year from the date of actionacknowledged his indebtedness and promised to pay Rs. 2,000 in fullsatisfaction, the plaintiffs were entitled to recover only Rs. 2,000 and notthe full amount of the claim. The facts in regard to the nature of theclaim are exactly the same in this case as in Walker Sons v. Kandiah(supra). Counsel for the appellant has pointed out that the latterdecision was contrary to a long line of cases which decided that section 8referred only to manual labour or work of a menial character. It did notrefer to a case where the work of repairs required a certain amount ofengineering skill. In view of the fact that it was held in Walker Sons v.Kandiah that there was an acknowledgment as to Rs. 2,000 of theamount claimed Counsel for the plaintiff asked me to say that the decisionin regard to the ambit of section 8 was obiter and not bindingon me. I am unable to say that the decision is obiter. If it had been,the plaintiff would have had judgment for Rs. 2,677.42 the wholeamount claimed.
Counsel for the plaintiff has cited a number of cases decided before thedecision in Walker Sons v. Kandiah to show that previous to thatcase the Courts had held that section 8 referred only to manual labouror work of a menial character. The cases cited in Walker Sons v. Kandiahare Alvapillai v. Sadayar1; Gunasekera v. Ratnaike2 3 *; Mack v. Wickrema-ratne0; Silva v. Rite he ‘; and Baker v. Siman Appu6. In spite of thesedecisions the Court held that the plaintiffs’ claim was within theambit of section 8 of the Ordinance and not within sections 7 or 8.
Counsel for the plaintiff has also suggested that I should not followWalker Sons v. Kandiah (supra) by reason of the fact that de Sampayo J.in his judgment has misinterpreted the judgment of Moncrieff J. inHorsfall v. Marti)j.”. In the latter case it was held that though moneydue for goods and delivered on three months credit may be money dueupon an unwritten promise yet the action brought for its recovery fallswithin section 8 of the Prescription Ordinance and as such is prescribedwithin one year after the debt became due. In his judgment Moncrieff J.held that any action “ for or in respect of goods sold and delivered ”whether it be upon an unwritten or even on a written contract is excludedfrom the operation of sections 6 and 7 respectively by the provisions ofsection 8. It was to this part of the judgment of Moncrieff J. that deSampayo J. referred in his judgment in Walker Sons v. Kandiah. Aspointed out by Garvin S.P.J. in Assen Cutty v. Brooke Bond, Ltd.1 at p. 189,the extent to which Moncrieff J. held that an action for or in respect ofgoods sold and delivered fell under section 8 to the exclusion of section 6•when the action was based on a written contract his judgment was inconflict with the principle of the decision in K. P. V. Louis de Silva v.A. P. Don Louis 8 which is a judgment of the Full Court. It would
1 (1905)1Balasingham 143.6 (1888) 8 Supreme Court Cicular 185.
1 (1909)1Current Law Reports S64.* (1900) 4 N. L. R. 70.
3 (1901)5N. L. R. 142.7 (1934) 36N. L. R. p.169.
*(1858)3Lorenz 115.• (1881) 4 S. C. C. 89.
WIJEYEWARDENE J.—Hendrick Appuhamy v. Food & Price Control Inspector. 521
appear that the judgment of Moncrieff J. went further than the lawwarranted so far as written contracts are concerned. But this factdoes not in my opinion afford a reason for not following the judgment ofde Sampayo J. in Walker Sons v. Kandiah. The learned Judge in thatcase was not relying on that part of the judgment of Moncrieff J. whichGarvin J. states in Assen Cutty v. Bropke Bond, Ltd. (supra) was not inaccordance with the law.
Like the Commissioner I feel I am bcamd by Walker Sons v. Kandiah.In reaching the decision that I have, I do not in any way depart fromthe principle laid down by Lawrie A.J. in Mack v. Wickremaratne (supra)that work and labour contemplated by section 8 does not include the workof educated men. The work and labour done in the present case would notfall into this category.
The appeal is dismissed with costs.
Appeal dismissed.