HORSFALL v. MARTIN.

HORSFALL v. MARTIN.

C. R., Colombo, 3.

Action for goods sold and delivered on three months' credit-Money due upon an unwritten agreement-Prescription-Ordinance No. 22 of 1871, ss. S, 9.

Though money due for goods sold and delivered on three months' credit may be money due upon an unwritten promise, yet the action brought for the recovery of it falls under section 9 of the Ordinance No. 22 of 1871, and as such is prescribed within one year after the debt became due.

THIS was an appeal from an order of the Commissioner rejecting the plaint tendered by the plaintiff's proctor, as the claim therein mentioned appeared to be prescribed.

The plaint set out that in the month of May, 1898, M. M. B. & Co., whose liquidator was plaintiff, sold and delivered to the defendant certain goods on the agreement that the defendant should pay the price within three months from the date of the sale and delivery. The due date of payment was not specified. It appeared to fall in August, 1898. The action was brought on the 18th April, 1900.

After the Commissioner had rejected the plaint, plaintiff's proctor submitted that the plaintiff was suing, not for goods sold and delivered, but on an unwritten agreement.

The Commissioner was " unable to distinguish this action from an action for goods sold and delivered."

Plaintiff appealed.

Elliott, for appellant.-This is not an action within the scope of section 9 of Ordinance No. 22 of 1871. If it were so, it would be prescribed in one year. But the value of the goods was payable on an unwritten agreement, namely, within three months from the date of the sale. Hence, the action falls within section 8, and is not prescribed within three years from the date of the cause of the action. [Moncreiff, J.-But why did the Legislature use the words " in respect of any goods sold " in section 9?] Section 9 was not meant to limit the operation of section 8, which is complete in itself as to claims for money due upon an unwritten promise.

Cur. adv. vult.

3rd July, 1900. Moncreiff, J.-

The appellant, the liquidator of Messrs. Murdoch, Miller, & Bran well, filed a paint in the Court of requests of Colombo for the price of goods sold and delivered to the defendant by Messrs.

Murdoch & Co., alleging that " it was agreed between the said Murdoch, Miller, & Branwell and the defendant, at the time when such sales were made, that the defendant should pay them the prices mentioned in the said account particulars for the said goods within three months from the date of the sale and delivery thereof.''

The Commissioner said that he could not distinguish the claim from one for goods sold and delivered, and rejected the plaint, because the action was brought after the time was prescribed in accordance with section 9 of the Prescriptive Ordinance.

I agree that it is a claim for goods sold and delivered in the ordinary sense of the term with which I am familiar. The fact that three months' credit was given would not ordinarily alter the nature of the claim. The common indebitatus count for goods sold and delivered lay where credit had been given or a bill taken, but not until the credit expired or the bill became due. But we are here in presence of certain statutory provisions.

Section 8 of Ordinance No. 22 of 1871 provides that actions shall not be maintainable for "money due upon any unwritten promise, contract, bargain, or agreement," unless they are commenced within three years from the date of the cause of action. If this claim falls within section 8 it is not prescribed, because the money is alleged to have become due less than two years ago.

There can be no doubt that the money became due upon an unwritten promise and that, if the provisions of the Ordinance went no further, the plaintiff might bring his action at any time within three years from the date at which the money became due.

We have, however, to consider section 9, which runs thus:- " No action shall be m

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