1931 Present : Maartensz A. J.

RODRIGO v. JINASENA & CO.

227-C. R. Colombo, 50,838.

Prescription-Agreement to supply materials signed by plaintiff-Statement of claim- Defendants letter making part payment- Repudiation of liability to pay balance- Written agreement-Ordinance No. 22 of 1871, ss. 7, 9, and 13.

The plaintiff by a written agreement signed by him undertook to supply the defendant with materials for a steel structure.

In reply to plaintiff's statement of claim the defendant made part payment and by letter repudiated his liability to pay the balance owing to a defect in the materials supplied.

Held, that the letter of the defendant did not amount to a written acknowledgment within the meaning of section 13 of the Prescription Ordinance, but that it may be relied upon to constitute a written agreement falling under section 7, in which case the prescriptive period provided by the section will apply.

THIS was an action for the recovery of a sum of Rs. 160.80 the balance value of materials supplied to the defendant for a steel structure in August, 1927. The action was filed in February, 1929. The defence set up the plea of prescription. It was urged in reply that the defendant by his letter dated March 7, 1928, had acknowledged the debt. The letter was in these terms :-" A loss of more than Rs. 160.80 has been caused to me by such default on your part. I am accordingly forwarding you a cheque for the balance Rs. 195.48, after deducting the said sum of Rs. 160.80."

The learned Commissioner held that the letter took the claim out of the operation of the Prescription Ordinance and entered judgment for the plaintiff.

Rajapakse (with him Kurukulasuriya), for defendant, appellant. Action is for goods sold and delivered. It is prescribed in one year (section 9 of Ordinance No. 22 of 1871). To take the case out of prescription, there must be an acknowledgment in writing or a part payment from which an acknowledgment of the debt and a promise to pay may be inferred. D3 far from being an acknowledgment of a debt states the payment is in full settlement, and therefore no debt is due. 71 C. R. Colombo, 51,101, is not an authority on the point ; if it is, that decision should not be followed in view of several authorities to the contrary. (17 N. L. R. 156; 3 Ceylon Law Reports 92.). section 13 of our Prescription Ordinance is the same as section 1 of Lord Tenterden's Act and the English decisions are to the same effect. 5 S. C. C. 62 ; 1 Ceylon Law Reports 69 ; (1847) 1 Exch. 118 ; (1851) 6 Exch. 839 ; (1902) 1  K. B. 67 ,19 Halsbury ss. 110-111.

Weerasooria for plaintiff, respondent.- D3 refers to a debt due and the part payment is on account. 71 C.R. Colombo, 51,101, is on all fours with this case. The English authorities are all collected in Spencer v. Hemmerde [1 (1922) 2 A. C. 507.]. If D3 is to be construed differently, it is submitted that the action is based on a written contract. The contract need not be in a special form of writing. Any note or memorandum in evidence of the contract is sufficient. It need not be contemporaneous (Idroos v. Sheriff [2 27 N. L. R. 231.] ). The action is, therefore, not prescribed till 6 years, section 7 of Prescription Ordinance (Campbel v. Wijeyasekere [3 21 N. L. R. 431.] ).

Rajapakse, in reply.-Spencer v. Hemmerde (supra) is in my favour. There is no evidence of any writing embodying the agreement. D4 is only an estimate or catalogue of goods to be supplied. It is not signed by the defendant. D3 cannot help the plaintiff. The prescriptive period for unwritten contracts generally is 3 years, see section 8 of the Prescription Ordinance; if the contract be in writing the period is 6 years, see section 7 ; and for a special class of contract, viz., sale of goods the period is 1 year, see section 9 (4 N. L. R. 70 and 21 N. L. R. 317).

April 1, 1931. MAARTENSZ A.J.-

This is an action for the recovery of a