Present: Ennis J. and Loos A.J.

CAMPBELL & CO. v. WIJESEKERE.

101-D. C. Colombo, 47,033.

Prescription Ordinance, ss. 7, 8, and 9-Action for goods sold-Written contract- Repudiation of contract-What constitutes repudiation?

Section 9 of the Prescription Ordinance, 1871, does not apply to a contract of sale made in writing and signed by the parties; it applies to an unwritten contract, which can be enforced by an action owing to the goods having been delivered.

THE facts appear from judgment of the District Judge (P. E. Pieris, Esq.): -

The defendant in this case, who is carrying on business in Colombo, entered into certain agreements with the plaintiffs, a trading firm in the city of London, by which he undertook to supply them with a quantity of Ceylon copra and. coconut oil. The defendant delivered a certain proportion of these goods, but the plaintiffs complain that by his cables of May 19 and 22, 1916, he refused to abide by his contrast or make further shipments thereon, and they claim from the defendant a gum of £3,575 as damages.

The defendant, subject to an admission of liability in respect to an item of £24. 5s. which need not be discussed at this stage, denies that there has been a breach of of his agreement. He avers that the cables were despatched by him merely with a view to making arrangements for a re-sale, that negotiations for a re-sale were carried on till June 2, 1916, when the defendant, finding that the parties could not agree, intimated to the plaintiffs that he would ship the balance due; the plaintiffs refused to accept such balance.

The limit of time fixed under the agreement had expired long before the despatch of the cables. The defendant says that that the time had been extended by the plaintiffs, who are not prepared unqualifiedly to admit the alleged extension. For the moment it may be assumed that there was such an extension. The main question to decide is what is the meaning to be attached to the two cables, and what was their effect ....

It is abundantly evident from the documents which, so far, have been discussed that this was not the intention of the defendant when he sent the telegrams P 1 and P 2. Those telegrams were meant to be an express declaration of default, and were understood as such by the plaintiffs, who took action on that footing. It was not open to the defendant at a subsequent date and of his own choice to re-establish the status quo ante. The telegrams were a refusal on the part of the defendant to abide by and carry out his contracts, and the plaintiffs accepted and acted on such refusal as a breach of the contracts.

In view of this finding it is not necessary to go into the question of the alleged extension of time, as that is no longer material.

The defendant has in the 9th paragraph of his answer set up a claim in reconvention, which he estimates at Rs. 28,308.63. He declares that on the goods supplied by him between April 8, 1914, and May 26, 1916, the plaintiffs in their accounts have debited him with certain amounts not due from him. The plaintiffs have replied that such a claim is barred by prescription, and it is necessary to decide which section of the Prescription Ordinance, No. 22 of 1871, governs the case. The goods were supplied in terms of written contracts. The plaintiffs contend that section 9 applies. This provides " that no action shall be maintainable for or in respect of any goods sold and delivered, or for any shop bill or book debt, or for work and labour done, or for the wages of artisans, labourers, or servants, unless the same shall be brought within one year after the debt shall have become due."

For the defendant it is urged that the section which applies is the 7th, where it is laid down that " no action shall be maintainable-upon any written promise, contract, bargain, or agreement-unless such action shall be brought within six years from the date of the bre