Back
ADAICAPPA CHETTY v. THOS. COOK & SON
NLR31V385
Present: Fisher C.J. and Drieberg J. 1930
ADAICAPPA CHETTY v. THOS. COOK & SON.
64-D. C. Colombo, 27,296.
Cheque-Loan transaction-Payment guaranteed
by agent of bank-Liability of bank-Authority of agent-Power of attorney-Money
had and received-Stamp Ordinance, No. 82 of 1909, s. 37 (1)- Document filed with
plaint-Registration of Business Names Ordinance, No. 6 of 1919-Trading in
partnership.
The plaintiff, in pursuance of an agreement to lend money to P, gave him certain
cheques drawn in favour of the defendant bank,
the proceeds of which were placed to P's credit at the bank.
At the same time P drew four cheques in favour of the plaintiff, which were
endorsed by D, an agent of the bank, as follows:
" Payment of cheque guaranteed-Per pro THOS. COOK & SON (BANKERS). (Signed) D."
Held (in an action on the cheques brought by the plaintiff against
the bank), that the cheques were converted into bills of exchange by the
endorsement of D, but that the bank was not liable as D had no authority to bind
the bank.
Held also, that the plaintiff had no cause of action to recover the
amount of the cheques from the bank as for money had and received or money paid
under a mistake.
Held further (on a construction of the power of attorney given to
D by the bank), that the power to draw and endorse bills of exchange did not
include authority to accept a bill.
Where a document which has been filed with the plaint is referred to in the
course of the evidence and considered by the Judge, it must be deemed to have
been admitted in evidence, and no objection can afterwards be raised against its
reception on the ground that it has not been properly stamped.
Where a Chetty managed the business of his father acting as his agent, the
father and son did not constitute a " firm " as defined in the Registration of
Business Names Ordinance, No. 6 of 1918.
THIS was an action
brought by the plaintiff to recover from the defendant bank a sum of Rs. 170,000
on four cheques drawn by a person trading as Phillip & Co., on the bank in
favour of the plaintiff and endorsed by an agent of the bank as follows: -
" Payment of this cheque on March 5, 1928, guaranteed-per pro THOMAS COOK & SON
(BANKERS), LTD. (Signed) J. M. DAVIS."
The claim was based upon four causes of action. In the first cause of action,
the plaintiff stated that in consideration of a sum of Rs. 170,000 paid to the
bank by the plaintiff the bank agreed to pay him the amount of the cheques.
The first alternative cause of action treated the endorsement on the cheques as
an acceptance of bills of exchange and claimed the money on that basis.
The second alternative cause of action was a claim based upon a promise by the
bank to repay the money.
The third alternative cause of action was for
money had and received by the bank. The fourth alternative cause of action
alleged that under the mistaken belief that the bank had accepted the cheques
and agreed to pay the sums due on them, the plaintiff paid the said sum of money
of Rs. 170,000 to the bank. The learned District Judge found against the
defendant on the grounds of money had and received and money paid under a
mistake and gave judgment in favour of the plaintiff for a sum of Rs. 155,000.
F. A. Hayley, K.C. (with him Keuneman and Ferdinands), for defendant,
appellant.-The fact that certain of the cheques which comprised the total sum of
Rs. 170,000 in dispute were drawn in favour of the defendant bank does not alter
the real nature of the transaction, which was a loan to Peiris by the plaintiff,
who was under the impression that Davis' guarantee bound the defendant bank.
Davis had in fact no power, express or implied, to bind the defendant bank by
his acts on January 3, 1928. His power of attorney on behalf of the bank had
been cancelled on December 30, 1927, and the fact that the plaintiff had no
notice of this cancellation does not alter the case. D
