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CROOS v. GOONEWARDENE HAMINE
NLR5V259
CROOS v. GOONEWARDENE HAMINE.
D. C., Kalutaru, 2,168.
Cause of action-Contract of mortgage and its breach-Parol agreement outside the mortgage agreement-Civil Procedure Code, s. 5-" Obligation ','- Failure to pay.
C lent money to G upon a mortgage bond. A part of the loan having been liquidated, C and G entered into a parol agreement that a further sum should be advanced to G and the total " secured " by the same bond. G, having received the additional sum and being in default of payment, was sued by C on the mortgage bond, but being advised that the action could not be maintained on the bond, he moved to withdraw the suit, G objected and plaintiff's action was dismissed as he was not ready on the trial day.
Plaintiff then raised the present action alleging payment to G upon a parol agreement. G pleaded res judicata.
Held, that, though the cause of action was in the previous suit the breach of the contract of mortgage and in the present suit the breach of the parol agreement, yet both actions referred to the failure to pay one and the same debt, and it was the duty of the plaintiff, when he sued the defendant in the former suit for the money as due upon the mortgage, to have claimed it as due also upon the parol agreement declared upon in the present suit.
Wendt. J. -The word " obligation." occurring in the definition of cause of action " given in section 6 of the Civil Procedure Code, is to be understood not in the narrower sense in which a parol promise to pay a promissory note and a mortgage given for the same debt may be described as three different obligations (arising from the parol promise, promissory note, and mortgage), but in the wider sense of a liability to pay the one sum of money stipulated.
IN this action, instituted on 20th February, 1900, plaintiff alleged that he lent to the defendants Rs. 1,037.65 on the agreement that they should pay off the loan by deliveries of arrack; that he received from them arrack of the value of Rs. 237.84, and made further loans of money on the same understanding; and that on the 6th September, 1897, there was due to the plaintiff Rs. 944.24, which the defendants had failed to liquidate by delivery of arrack or by cash. He prayed that the defendants be decreed to pay to the plaintiff Rs. 944.24 with interest thereon. &c.
The defendants denied the agreement as alleged, and pleaded " that on the 5th July, 1898, plaintiff brought against the defendants " the action No._ 1,915 in the District Court of Kalutara to recover " from them the sum of Rs. 1,875, wherein was included the sum of " Rs. 1,037.65 now sued for, and the said action was by decree of " this Court, dismissed with costs, and the said decree still remained " of full force and, effect, and the defendants say that the plaintiff is " thereby estopped from again suing the defendants for the said sum."
On the trial day plaintiff admitted that the previous action (D. C., 1,915) was based on a mortgage bond, whereby the present defendants mortgaged to plaintiff certain property to secure payment of Rs. 1,500, which he had paid to them on 15th February, 1896, against supplies of arrack; that on 11th February, 1897, he found a balance of Rs. 453.35 due on that bond; that the defendants then asked him for a further loan of Rs. 1.037.65, so as to bring the debt up to Rs. 1,500; that it was then agreed that the bond should secure this amount; that on this understanding he paid the defendants the sum of Rs. 1.037.65; that after suit No. 1.915 was filed, he was advised by his counsel that the evidence in proof of the consideration of the mortgage bond, as appearing in the bond itself, would be at variance with the evidence intended to be led as to the aforesaid sums of Rs. 458.35 and Rs. 1,037.65 making up the considerations, and therefore he should withdraw the suit Mo. 1,915 and institute a fresh suit; that on defendants objecting to the withdrawal of the suit, the cas
