Chang Min Tat FJ (delivering the judgment of the Court):

This is an appeal from the decision of the learned Judge in Penang allowing an appeal from an O. 14 judgement given by the Senior Assistant Registrar.The Senior Assistant Registrar thought that the respondent had no defence to the claim of the appellant for goods sold and delivered.The defence advanced was that the respondent had paid for the price of the said goods to the salesman of the appellant who dealt with it but the Senior Assistant Registrar found on the evidence of the delivery orders and invoices that such payments were, if made, made in breach of the conditions of sale not being by crossed cheques as specified, and in the light of certain authorities, held that this defence did not raise any triable issue.At the appeal before the learned Judge, the defence of accord and satisfaction was abandoned or not proceeded with, and a new argument addressed to the Judge that in view of the judgement entered by the appellant against this salesman whom it had later joined in the same action, the appellant was barred from proceeding against the respondent.The learned Judge agreed with the respondent that the doctrine of election applied to this case and accordingly set aside the judgement entered against the respondent.

It is now necessary to refer to the pleadings in some detail.The appellant first sued the respondent in the sum of, $110.000 for goods sold and delivered.Subsequent to the writ but before the defence of the respondent was delivered, and very probably as the result of the respondent's representations of payments to the salesman, one Geh Thuan Seng by name, the appellant sought and obtained leave to amend the writ and the statement of claim by including Geh Thuan Seng as the second defendant.In the amended statement of claim, the appellant averred additionally that the respondent had caused loss to it in the sum claimed by making payments other than by crossed cheques in breach of an express term of sale and by failing to demand proper and valid receipts.In the alternative, the appellant charged Geh Thuan Seng with misappropriation and embezzlement of the proceeds of sale.It claimed $110,000 from the respondent and in the alterative, the same sum against Geh Thuan Seng for money had and received.

As for the course of events, the salesman Geh predictably did not appear and did not deliver any defence.The appellant promptly signed judgment against him.

Then after judgment was signed, the respondent delivered its defence.It claimed to have paid the sum of $110,000 in full to the second defendant.It also denied the existence of a term for payment by crossed cheques.Later, in an affidavit filed to oppose the O. 14 application, it exhibited two of the appellant's invoices, which bore, on its allegations, a written acknowledgment by the second defendant of the receipt of the sums mentioned therein less certain discounts.The first invoice was dated 26 May 1974 for $547.20. It was superinscribed with an acknowledgment of the receipt of $536.26 on 5 August 1974.The second was for $563.It was dated 8 February 1974.The acknowledgment and the date are too indistinct on the Xeroxed copy in the Record of Appeal to make out.The amounts of the alleged payments are relatively insignificant, but the purported acknowledgments were relied upon as proving or tending to prove the truth of the respondent's averment of full payment.But if full payment had been made and acknowledgments obtained, it should have been the easiest matter for Mr. Ho Khoon Gniap @ Ho Koon Yet, who made the affidavit and who was one of the original twopartners and at the time of making the affidavit the sole proprietor of the respondent firm, to exhibit all the receipts for the payments.

As for the existence or otherwise of a term for payment by crossed cheques, the appellant's invoices which it exhibited and which were similar to the two exhibited by the respondent, clearly bear a note to the effec