1938 Present: Maartensz and Hearne JJ.

NIBLETT v. COORAY.

241-D. C. Avissawella, 2,110.

Account stated-How it may be established-Writing not essential except under special circumstances-Acknowledgment of debt to take case out of prescription-Ordinance No. 7 of 1840, s. 21.

An account stated may be established by express words or by conduct showing that the party to be charged recognized a specific sum as being due from himself.

The admission must be in writing and signed by the party chargeable, where an account stated is pleaded as an acknowledgment of debt to take the case out of the operation of the Prescription Ordinance or as a promise to answer for the debt or default of another within the meaning of section 13 of the Ordinance.

APPEAL from a judgment of the District Judge of Avissawella.
 
F. A. Hayley, K. C. ( with him C. V. Ranawake ), for defendant, appellant.

H. V. Perera, K. C. (with him E. F. N. Gratiaen), for plaintiff, respondent.

Cur. adv. vult.

April 5, 1938. MAARTENSZ J. -

This was an action to recover from the defendant the sum of Rs. 531. 85 and Rs. 1,853. 12 aggregating Rs. 2,384. 97 alleged to be due on two causes of action.

The defendant admitted his liability subject to his claim in reconvention in respect of the sum of Rs. 531. 85 claimed upon the first cause of action.

The averment in regard to the second cause of action is a bald statement in paragraph 4 of the plaint that the plaintiff employed the defendant as Manager of the plaintiff's depot in Colombo, and upon the termination of the defendant's employment there was found to be due from defendant to the plaintiff the balance sum of Rs. 1,853.12 as appears from the statement of account herewith filed marked ?B? and pleaded as part of this plaint, which said sum of Rs. 1,853. 12 or any part thereof the defendant has failed and neglected to pay though hereto demanded. ?There is no averment as to how and why the defendant became liable to pay the sums of money debited to him in the account ?B?.

The defendant denied that he was the plaintiff's manager or that he owed the plaintiff any sum of money whatever ?under the said head?.

In reconvention the defendant claimed Rs. 815.31 as commission and travelling expenses due to him and Rs. 1,500 as damages for wrongful dismissal. The latter claim for damages was abandoned. The amount due- according to the exhibit D 12 for travelling expenses and commission was reduced to Rs. 410.31.

The plaintiff filed a replication in which he denied that any sum was due to the defendant and for the first time averred a ground upon which the sum of Rs. 1,853.12 could be legally claimed. The averment is as follows : ?The plaintiff also joins issue with the defendant upon the denials contained in paragraph 3 of the answer and states that the sum of Rs. 1,853. 12 was in or about the month of January, 1936, found to be due upon an account stated at Kosgama between the plaintiff and the defendant.?

The action was tried upon the following issues : -

?(1) Was the defendant employed as Manager of plaintiff's Colombo Depot?

(2) Did defendant as such manager and as plaintiff's selling agent become indebted to plaintiff in a sum of Rs. 1,853. 12 as set out in account particulars B?

(3) What amount was still due to defendant at the end of his employment by way of travelling allowance and commission?

(4) Was an account stated between plaintiff and defendant in January, 1936?

(5) If so, was the sum of Rs. 1,853. 12 found due from defendant to plaintiff in respect of the items set out in the account particulars marked B??

It appears from the evidence that from January to March, 1935, the defendant was employed by the plaintiff in Kandy. In March plaintiff's manager, Mr. Bentley Buckle, appointed the defendant to ?run the Colombo Depot". The proposal to appoint the defendant ?to run the Colombo Depot? was made by Mr. Buckle in letter P 1 dated