043-NLR-NLR-V-04-IMRAY-v.-PALAWASEN.pdf
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IMRAY v. PALAWASEN.D. C., Ratnapura, 884.
Planter and coolies—Promissory note given by kankani to superintendent—Consideration therefor—Customs of tea planters in Ceylon—Tundu systemof advances—Object for which kankani gives promissory note to superin-tendent—Principal and surety.
Where coolies owed debts to superintendents of various estates onwhich they had been previously working and to Chetties and boutique-keepers, and where it was proved that, according to the custom amongtea planters in Ceylon, one tea planter will not take into his service acooly who had served on another tea estate unless he is satisfied that heis leaving his employer with the latter’s consent, and that he has paid offall the moneys he owed to the former employer in respect of advancesand shop debts ; and where it was usual for the kankani who had collectedthe coolies and taken them to the new employer to grant a promissorynote to him for the amount mentioned in the tundus, or writtenmemorandums of the former employers showing the sum for which thecoolies are indebted,—
Held, upon the evidence led, that such a promissory note was givenby the kankani only as security that the coolies would pay the amountmentioned in the note by working it off; that, so long as the cooliesworked on the estate, the liability of the kankani on the note did notarise ; and that if the coolies ran away or died, the employer could suethe kankani.
And where the kankani joined with P, another kankani who did notlive on the estate where the coolies worked nor superintended the labourhimself, in making the promissory note, and a dispute arose between thetwo makers, when it was found that out of the amount of the promissorynote exactly half thereof had been worked off, and there remained onlythe other half due; and where the employer, having received paymentin full settlement from the plaintiff, transferred to him the wholelabour force together with the promissory note duly endorsed, withouthowever informing him that P (the joint maker), though labouring onanother estate, was recognized as his kankani and might have exercisedsupervision over the coolies to see that they paid their debts ; and whereit was proved that, when coolies go from one estate to another, it wasthe practice of the late employer to hand the promissory note back tothe kankani, and not to his new employer,—
Held, in an action brought by the new employer against P on thepromissory note which he had jointly made with the other kankani, that asthe plaintiff had taken over the coolies without recognizing the defendantas their kankani and so giving him a control over them as regards thepayment of their debts, the position of the defendant as surety for thecoolies was materially affected, and that he was entitled to be dischargedfrom liability on the note in suit.
T
HE plaintiff, alleging himself to be the Manager of Hapugas-tenna estate, stated in his plaint that the defendant and
one Carumbairam Kankani granted a promissory note forRs. 15,560.48 in favour of “ the Superintendent of the New
1900.June SS7.
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1900.Easagala estate ” payable on demand, and that the said super-
June £7.intendent, to wit, P. D. G. Clark, to the plaintiff as Manager of
Hapugastenna estate; that plaintiff had received payment ofRs. 7,780.24 upon the said note; and that there was now due andowing to the plaintiff a balance sum of Rs. 7,780.24, for which heprayed judgment.
The defendant admitted the note as also the endorsementthereof, but he pleaded that it was made and delivered to thepayee under the following circumstances:—According to thepractice and custom among tea planters in Ceylon, when a bodyof coolies employed on one estate leaves the same and takesservice on another estate the superintendent of the latter estatehas to pay to that of the former the amount of the advances madeand debts due to the coolies, which then becomes a debt due bythe coolies to the second estate during their employment; and theamount so paid, or so much thereon as may remain unliquidatedby reduction out of wages or otherwise, is, when the coolies againare discharged from the second estate and take service on anotherestate, in turn paid to the proprietor or superintendent of thesecond estate by the new employer, such bodies of coolies beingunder the leadership of a chief kankani, who receives head-money from the employer for the time being according to thenumber of coolies.
Defendant, after pleading this custom, alleged that in April,1897, the advances and debts of certain coolies who were about tobe discharged from a certain estate amounted to Rs. 15,560.48;that Mr. Clark, Superintendent of the New Rasagala estate,desiring to take them into his service, paid the same amount tohis former employer; that they and their head kankani Carum-bairam went on to the New Rasagala estate; that as collateralsecurity for the said coolies not leaving the said estate withoutdischarging their debt, Carumbairam Kankani and the defendantmade the note in favour of the Superintendent of the New Rasagalaestate, agreeing between themselves to divide the head moneydue in respect of the said coolies; that save as aforesaid therewas no valuable consideration for the making of the said note;that subsequently and before the endorsement of the said noteto the plaintiff, the said coolies were discharged from service bythe Superintendent of the New Rasagala estate and were withCarumbairam Kankani taken into service by the plaintiff- onHapugastenna estate; that, whether the debts of the coolies werepaid up or not, the liability of the defendant on the promissorynote was discharged when the said coolies were discharged fromservice on the New Rasagala. estate and taken into service on
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Hapugastenne estate; that there was no value or considerationfor the endorsement of the note to plaintiff; and that at the timeof such endorsement the plaintiff was fully aware of the circum-stances above stated.
The District Judge, after evidence heard, dismissed the plain-tiff’s action, holding that the note was granted by the makersas only security for debts due by their coolies; that it shouldhave been discharged and returned to the defendant as soon asplaintiff agreed to take over the coolies and pay their debts;that it was proved that this debt of the coolies had been paid byplaintiff to Mr. Clark; and that therefore the defendant, assurety, was entitled to be discharged.
Plaintiff appealed.
Wendt, Acting A.-G., for appellant.
H. J. C. Perera (with Sampayo), for respondent.
Bonser, C.J.—
This is an action on a promissory note brought by the holderagainst one of the makers. The promissory note is dated 30thApril, 1897, and is in the following terms:—“ On demand we, the“ undersigned Palavasam, Head Kankani, and Carbyarum, Kan-“ kani, of above estate, jointly and severally promise to pay to the“ Superintendent of New Rasagala estate the sum of Fifteen“ thousand Five hundred and Sixty Rupees and Forty-eight Cents,“ for value received.”
That promissory note was. made under the following circum-stances. The two makers are kankanis who had collected a labourforce of some two hundred coolies and took that force to theNew Rasagalla estate, of which the superintendent was Mr. Clark.These coolies owed debts to superintendents of various estates onwhich they had been previously working and to Chetties andboutique-keepers. The amount of those debts was the amountfor which the promissory note was given. It is the well-understood practice amongst tea planters that one tea planter willnot take into his service a cooly who had served on anotherestate, unless he is satisfied that he is leaving his employer withthe latter’s consent, and that he has paid off all the moneys beowes to the former employer in respect of advances and shopdebts.
It is usual for the gang of coolies (for there is generally agang under the headship of one kankani) to produce to theperson with whom they wish to take service what is called atundu, which is a written memorandum by the former employerto the effect that he is willing to discharge them from his service
1900.
June 87.
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1900. upon being paid a certain sum stated in the tundu, being theJitne 27. amount of their debts; and it was proved to be the practice thatPonsbb, C.7. the kankani should give to the new employer a promissory notefor that amount after the new employer has paid it to the formeremployer. It was stated in the evidence in this case, and, in myopinion, proved, that these promissory notes are given by thekankanis as security that the coolies would pay that amount byworking it off.
If the coolies run away or die, then the employer can suethe kankani. But the custom is that, so long as the coolies workon that estate, the liability of the kankani on that promissorynote does not arise.
In the present case, a difficulty has arisen in consequencepartly of a quarrel between the two makers of the note andpartly in consequence of the course adopted by Mr. Clark.Mr. Clark was apparently anxious to get rid of this gang, astheir advances were very heavy and amounted to a large sum, andhe found that Mr. Imray was willing to take them off his hands.It appears that the defendant was a sort of sleeping partnerwith the other maker of the note in his labour force, but he didnot live on the estate and superintend the labour himself. Hewas living on another estate in the neighbourhood, where he washead kankani. The coolies were managed entirely by the othermaker, Carbyarum. A dispute arose between Carbyarum andthis defendant, and the defendant was anxious to sever hisconnection with Carbyarum, and so informed Mr. Clark. Mr.Clark gave a tundu to Carbyarum, which was accepted by theplaintiff in this case. By that time the amount of the coolies’debts had been reduced by their having worked off a part of it,and the debt amounted to exactly half of what it was, that is tosay, Rs. 7,780.20, which is the amount sought to be recovered inthis action. The plaintiff paid Mr. Clark this sum to take overthe whole of this labour force. Mr. Clark did not inform Mr.Imray that the defendant had anything to do with these coolies,and, as the District' Judge says, this is the real origin of thetrouble in this case.
The plaintiff thought he was dealing with Carbyarum alone,and had no idea that the defendant had any connection with thecoolies. So that, as far as regards the plaintiff, he is now suingfor a benefit which he had not bargained for when he took overthese coolies, and which he had no idea he was going to get.The evidence is that when coolies go from one estate to anotherthe late employer, when he is paid by the new employer, handsthe promissory note, which had been given him by the kankani
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in security of the debts of the gang, back to that kankani. It ianot the practice to hand it over to the new employer. For somereason or other, which is not explained, Mr. Clark thought fit todepart from the usual practice, and instead of returning thispromissory note to the makers he endorsed it over to the plaintiff,and the latter thereupon put it in suit as against this defendant.I must say I do not quite understand his position, for it wasadmitted at the trial by his counsel that he had been treating theamount for which he now sues the defendant as'the debt of thecoolies, and that he is still making deductions from their wagesin respect of these debts. So that it may be that by this timethere is absolutely nothing due in respect of this debt. In my.opinion, the judge came to a right conclusion in substance, thoughI do not agree with that part of his judgment in which he says thatthis document was not a promissory note. I agree with him in hisfinding as to the custom and the fact that this note was merelygiven as a security to secure Mr. Clark against loss. Again, if thisnote was given as a security and the defendant was merely a surety,his position has been altered materially without his consent.So long as these coolies were employed under Mr. Clark thisdefendant was recognized as his kankani and might haveexercised supervision to see that they paid their debts. Theyhaving now gone to another employer who knows nothing of thisdefendant, and has not recognized him as a kankani of thesecoolies, it is obvious that his position is materially affected.That being so, I am of opinion that the appeal should bedismissed.
Moncrehtf, J.—
I agree with the opinion of the Chief Justice. A kankani whogives a promissory note of this description does so in the capacityof a surety. In this case, the defendant gave the note in accord-ance with the usual custom which prevails, but subject to certainspecial terms binding only on him and on the person to whom hegave the note. When Mr. Clark allowed the coolies to leave theestate, in my opinion he discharged the defendant from hisliability, and had no power to hand over the security to theplaintiff in this case.
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1900.
June ST.
Bonbeb, C.J.