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ANDAPPA CHETTY v. NAYANA et al.
NLR19V392
1916 Present : Wood
Renton C.J. and De Sampayo J.
ANDAPPA CHETTY v. NAYANA et al.
427-D. C. Colombo, 45,652.
Promissory note-Notice of
dishonour-Waiver-Sending case back for further adjudication after ascertaining
pinch of the case.
A person should not be held to have waived a right of which he was unaware.
Where a payee of a note promised, subsequent to the dishonour to pay the amount
of the note, he cannot be taken to have waived his right to notice of dishonour,
unless he was aware at the time he made his promise to the indorsee that the
note had, in fact, been dishonoured.
WOOD RENTON C.J.-" It does not appear , to me that it would be safe, now
that a fresh pinch in the case has been ascertained, to send it back upon any
terms for further inquiry and adjudication."
THE
facts are set out in the judgment.
Hayley, for plaintiff, appellant. -
F. M. de Saram, for third defendant, respondent.
November 21, 1916. WOOD RENTON C.J.-
This is an action by the second indorsee of a promissory note against the first
and second defendants, who were its makers, the third defendant, the payee, and
the fourth defendant, the first indorsee. The fourth defendant consented to
judgment. The plaintiff has obtained judgment against the first and second
defendants. The learned District Judge has dismissed his action against the
third defendant, on the ground that the latter had not received due notice of
dishonour as required by section 48 of the Bills of Exchange Act, 1882. The
plaintiff appeals.
It is not disputed by Mr. Hayley, who has argued the case on his behalf, that
under section 48 of the Bills of Exchange Act the third defendant was entitled
to notice of dishonour. But he contends, in the first place, that the learned
District Judge has wrongly decided on the facts that notice of dishonour was not
given; and, in the second place, that, in any event, the third defendant had
waived his right to such notice by promising to pay the amount due on the note,
subsequent to its dishonour, to the plaintiff himself. Mr. Hayley has, in the
last place, asked us to consider whether, should his appeal fail on the facts
and on the law, the case ought not to be sent back to the District Court, even
upon stringent terms as to
costs, for the framing and trial
of the issue of waiver. The view taken by the learned District Judge of the
evidence in support of the plaintiff's case may be summarized thus. The only
witness examined for the plaintiff was the fourth defendant, who, as I have
already mentioned, had consented to judgment being entered up against him. The
fourth defendant said that he had, in the first place, demanded payment from the
third defendant upon two separate occasions; that the third defendant put him
off each time, saying that he would pay, and when he was further pressed,
promised to get the money from the makers and pay the plaintiff then. The makers
did not pay, and the note was dishonoured. The fourth , defendant then went a
third time to the third defendant, told him that he was not well and intended
going to India, and asked for payment. The third defendant put him oft, saying
that he would pay. The learned District Judge remarks that at this juncture he
himself called attention to the fact that, so far, there was no proof of notice
of dishonour, and he adds that shortly afterwards the fourth defendant was asked
the direct question how he knew that the first and second defendants had not
paid the plaintiff, and at once replied that he had learnt that fact from the
third defendant himself. The impression created on the mind of the District
Judge by the fourth defendant's evidence in this matter obviously was that when
the pinch of the case as to the want of notice of dishonour had been ascertained
the fourth defendant" proceeded to supply the gap. It is impossible for us to
say that the finding of the District Judge on the facts, resting
