British Ceylon Corporation Ltd. V. The United Shipping Board Et Al.,

1934 Present; Macdonell C.J. and Garvin S.P.J.

British CEYLON CORPORATION  LTD. v. THE
UNITED SHIPPING BOARD et. al.

45 (Inty.)/193 (Final)-D. C. Colombo, 33,424.

    Contract-Agreement to ship cargo-Vessels owned by United States of America and managed by the defendants-Breach of contract-Cause of action-Appeal-Appellants join in one petition-Treated as two petitions-Stamps-Respondents' objection to decree-Evidence on commission-Civil Procedure Code, ss. 755, 756, and 772.

Where the plaintiffs entered into an agreement to ship cargo between Colombo and New York with the agents of the second defendant-Steamship Company, which operated and managed vessels owned by the United States of America, under the direction and control of the first defendant-corporation,-

Held, that the second defendant was liable for the damage sustained by the plaintiff for breach of contract and that the plaintiff had no cause of action against the first defendant.

Where the plaintiff obtained judgment against the second defendant and his action was dismissed as against the first defendant with costs, and where the defendants filed a joint petition of appeal in which they sever in their averments but join in their prayer, the first defendant adding a prayer of its own,-

Held, that the appeal of the defendants, though stated in one document, was severable and Should be treated as two petitions and that it offended against the law as the stamp was only sufficient to cover one petition. In the circumstances the petition of appeal should be rejected.

Held, further, that it was competent for the plaintiff to file an objection under section 772 of the Civil Procedure Code against the decree dismissing his action as against the first defendant with costs, although the latter's appeal was limited to the reversal of the order depriving him of his costs.

Where an application is made by a defendant to issue a commission to examine witnesses in a foreign country, the loss, inconvenience, and delay that may be caused to the plaintiff are factors that should be considered before the application is granted.
N this action the plaintiff company averred that on March 17, 1928, a contract was entered into by Lionel Edwards Ltd. as agents of the defendants and the American-India Steamers of which the defendants were owners, to carry from Colombo to New York, for the plaintiff company, 50 tons of general cargo monthly, from the month of May, 1928, to the month of December, 1928, and that on April 26, 1928, the contract was repudiated and that by reason thereof the plaintiff had suffered loss and damage. Each defendant filed an answer.

The first defendant denied that it was the owner of the vessels and stated that the second defendant managed and operated under its direction the said vessels, which were owned by the United States of America.

The second defendant also denied that it was the owner of the vessels which it operated under the direction of the first defendant. As a special plea, this defendant pleaded that at all times material to the action it acted to the knowledge of the plaintiff company as the agent of the first defendant, and that therefore the plaintiff company had no cause of action against the defendant. They denied that there was a breach of the

contract or that the plaintiff sustained any damages. They further pleaded that if there was a valid agreement the plaintiff committed a breach thereof, whereby they became entitled to claim from the plaintiffs damages. The learned District Judge entered judgment for plaintiffs as against second defendant, the latter's claim in reconvention being dismissed and with costs. Plaintiff's action against the first defendant was dismissed and the first defendant's claim in reconvention was also dismissed.

H. V. Perera (with him Choksy and D. W. Fernando), for defendants, appellants.-The

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