1934 Present: Garvin S.P.J.

SILVA v. SILVA.

130-C. R. Matale, 2,415

    Prescription-Running account in respect of goods sold and delivered-Sum acknowledged to be due in writing-Account stated-Period of limitation -Ordinance No. 22 of 1871, ss. 8, 9, 13.

There was an account in respect of goods sold and delivered between plaintiff and defendant, consisting of debit entries in respect of goods sold to the defendant and credit entries in respect of payments by him. On a certain date the accounts were looked into and a balance found to be due, which the defendant acknowledged by signing a document.

Held, that an action to recover the balance was prescribed in three years.

APPEAL from a judgment of the Commissioner of Requests, Matale.

E. Navaratnam (with him Kottegoda), for defendant, appellant.

N. E. Weerasooria (with him Senaratne), for plaintiff, respondent.

December 20, 1934. GARVIN S.P.J.-

This action as originally filed was a claim for goods sold and delivered. The answer was a denial that the defendant had any dealings with the plaintiff after September 4, 1930, or that the sum of Rs. 148.04 claimed was

due. Inasmuch as the plaint was filed on May 17, 1933, the answer was, in effect, a plea that the claim of the plaintiff was barred by lapse of time. The plaintiff then moved to amend his plaint by adding a paragraph as follows: -

" That the accounts between the plaintiff and the defendant were looked into on September 4, 1930, and the defendant signed a statement admitting the correctness of plaintiff's account. "

The application to amend was allowed.

It has been found by the Commissioner that no payment against the plaintiff's claim for goods sold was made by the defendant subsequent to September 4, 1930. He accepted the plaintiff's evidence that accounts were looked into and a balance struck and that the defendant signed the document P. That document is in the following form:-

Bought of-
M. W. Nonis de Silva,
Merchant.

Matale, 4th Sept. 1930.

H. W. Janis Silva, Esq.,
, Naula.

Immediately below the last line of the document there appears a signature which is admitted to be the signature of the defendant.

The Commissioner concludes as follows:-"In my opinion, P is a written settlement of the accounts between the parties". Accordingly he held that the claim was not barred by lapse of time and gave judgment for the plaintiff.

The defendant 'appeals. It is urged on his behalf that this is not an account stated within the meaning of section 8 of Ordinance No. 22 of 1871 and that the claim is one for goods sold and delivered which falls within section 9 and is barred after the lapse of one year.

The accounts referred to are entries in the plaintiff's books of account and consist of debits in .respect of goods sold to-the defendant and credit entries of the moneys from time to time paid by him. This is not a case where there have been mutual dealings between the parties and the accounts showing the claim of each against the other have been looked into and set off one again the other and a balance struck which one of the parties acknowledged and promised to pay to the other. It is, on

the Commissioner's finding, a case in which the defendant examined the plaintiff's accounts and acknowledged that they were correct and that the balance shown was due from him to the plaintiff.

It is settled law in Ceylon that where there have been mutual dealings between the parties and their respective accounts have been examined by them and a balance struck settled and stated, an action based thereon is an action for money due upon an account stated within the meaning of section 8 of Ordinance No. 22 of 1871, and as s