1931 Present: Akbar and Maartensz A.J.

MACK v. PERERA.

280-D. C. Colombo, 30,211.

Joint tort feasors-Payment of damages by one-Pro tanto satisfaction of liability-Accord and satisfaction.

A payment by one of several tort feasors to the person who has suffered damages operates as an accord and satisfaction to the extent the payment.

Where it is asserted that the payment was in full discharge of the liability, the burden of proof lies on the the party who asserts it.

APPEAL from a judgment of the District Judge of Colombo.

F. A. Hayley, K.C. (with him Navaratnam), for defendant, appellant.

R. L. Pereira, K.C. (with him H. E. Garvin), for plaintiff, respondent.

September 4, 1931. AKBAR J.-

In this action the plaintiff claimed against the defendant Rs. 5,000 as damages sustained by him in a motor car collision. In his plaint the plaintiff claimed this sum as the full damages sustained by him in the collision and there is not a word in it showing that he had restricted the actual damages to Rs. 5,000 for the purposes of this case. The District Judge gave judgment in favour of the plaintiff for the full sum claimed. Mr. Hayley, who appeared for the appellant, has not contested the findings of facts of the District Judge, in which he held that the collision was due to the negligence of the plaintiff, nor has Mr. Hayley urged that the actual damages suffered by the plaintiff was less than the sum claimed, but he has urged the point of law referred to in issues 5 and 6, namely, that the plaintiff had released and discharged either one Seneviratne or Ratnaike or both from all liability, and that this release enured to the benefit of the defendant. Mr. Pereira who appeared for the plaintiff did not dispute the various points of law which Mr. Hayley developed

for the purposes of his argument, and to which I will refer now. There can be no doubt at all that the defendant was at the time of the accident. driving a car, which belonged to Mr. Seneviratne. This being so on the evidence as accepted by the Judge, both Mr. Seneviratne and the defendant were liable as joint tort feasors for the payment of the damages. Further, an accord and satisfaction of an unliquidated claim for damages-offered by one of the tort feasors and accepted will release the other tort feasors. Soon after the accident the plaintiff sent letters of demand to each of three persons, namely, Seneviratne, Ratnaike, and the defendant, claiming Rs. 30,000 as damages from each. The defendant in his answer-alleged that either Ratnaike (who was also in the car) or Seneviratne or both had paid and settled the claim of the plaintiff and that this settlement discharged the defendant from all liability. The plaintiff, therefore, had full notice of the point, which the defendant proposed to raise and which was afterwards embodied in issues 5 and 6. The plaintiff's list of witnesses included the name of his brother, who was also in plaintiff's car at the time of the accident. The defendant's list of witnesses included the names of Mr. Ratnaike, the plaintiff, and one Mr. Solomon Rodrigo. Only the plaintiff and the defendant gave evidence in this case and in his evidence the plaintiff stated that he had suffered damages amounting to Rs. 20,000 or Rs. 25,000, but that he restricted his claim to Rs. 5,000. In cross-examination he admitted that Mr. Seneviratne, who is now dead, came and saw his brother and that he made good the damages and that Mr. Seneviratne paid Rs. 2,500 to his brother. He also admitted that his brother consulted him before accepting the Rs. 2,500 and that his brother accepted the money on his instruction, but there were no terms or conditions when the money was paid. He, however, added that he did not discharge Ratnaike or Seneviratne and that the money was paid on account. Upon this evidence Mr. Hayley argued that he had discharged the burden which was on him on issue No. 5 and that t