Daniel V. Cooray

 

1941     Present: Howard C.J. and Keuneman J.

 

DANIEL v. COORAY.

 

184-D. C. Colombo, 6,291.

 

Notary Public-Action for damages-Negligence in describing mortgaged property-Purchase of property in execution by mortgagee-Loss in consequence-Loss too remotely connected with negligence-Contribu­tory negligence of plaintiff.

 

The appellant, a Notary Public, was employed by the respondent to invest Rs. 1,000 on the mortgage of the northern block of a certain land belonging to one P. By an error in the appellant's office, the southern block which was not owned by P was mortgaged instead of the northern block. The mortgagor having failed to pay interest, the bond was put in suit and at the execution sale the respondent purchased the land. At the sale the respondent was represented by another Proctor, who was authorised by the respondent to bid on his behalf. The Proctor attended the sale when the conditions of sale and a description of the property sold were read out by the auctioneer.

 

After his purchase the respondent discovered the mistake and claimed damages.

 

Held, that the damage sustained by the respondent was too remotely connected to the negligence of the appellant in wrongly describing the property mortgaged to entitle the respondent to succeed in his claim.

 

Held, further, that the respondent was guilty of contributory negligence in failing to exercise proper diligence before he purchased the property.

 

APPEAL from a judgment of the District Judge of Colombo. The facts appear from the head-note.

 

H. V. Perera, K.C. (with him N. Nadarajah, E. B. Wikremanayake and H. W. Thambiah), for the defendant, appellant.-That there was negli­gence on the part of the defendant in the legal sense is admitted, but

 

defendant's case is that the plaintiff being well aware, at the time of the sale, that the mistake had been made wanted to exploit the situation resulting from it. In any event plaintiff is not entitled to succeed because, if he had exercised due diligence, he could have avoided the result of the negligence of the defendant. The District Judge has misapplied Fernando v. Menikrala Aracci' and Re Polemis See the comments on Re Polemis in Winfield's Law of Torts (1937), pages 78-9. A purchase of property is a voluntary contract based on offer and acceptance. The plaintiff was negligent in his duty of informing himself of the terms of the offer which he accepted. The proximate cause of the loss which plaintiff incurred was his own negligence. See Perlman v. Zoutendyk'.

 

The rule of contributory negligence is applicable-Beven on Negligence , (1908), page 155 ; Winfield's Law oj Torts (1937), page 438 et seq.

 

C. Thiagalingam (with him T. K. Curtis), for the plaintiff, respondent.- On a q

Click Here to Read the rest of this document