Walsh, J.:— This is an application in revision. Following the ordinary principles recognised in this Court we are not disposed to interfere in such cases merely because there has been a mistake in law in the misapplication of a statute, although it has always been recognised that the powers of the High Court under Section 25 of the Small Cause Courts Act are wider than the powers under Section 115 of the Code. But in this case we think the Court has gone altogether wrong, largely misled by the way in which the plaintiff presented his case, and we were at one time disposed to reduce the decree to a comparatively small amount, namely Rs. 48, the balance due in respect of goods delivered within three years, plus interest thereon, without reference to any part payment which might be applicable to otherwise statute-barred items in the other account. On the whole we have come to the conclusion that this might be hard on the plaintiff and that it would be more satisfactory to remand the case to the Court below to take an account on the proper legal footing so that neither party will have the right to say that in endeavouring to correct what appears to us to be a miscarriage of justice, we have unconsciously perpetrated another. The case will go back to the learned Judge and the legal liability of the defendant will be ascertained according to the correct legal principles which in our view are as follows:—
The suit is brought by a tradesman against a customer for goods sold and delivered. The termini of the period over which such delivery is spread are 12th December, 1916, and the 19th of October, 1918. The suit was brought on the 27th of February, 1920. The Article of the Limitation Act applicable to the suit is Article 52. It is not suggested that any period was agreed upon for credit, and the provision of the law is that for the price of goods sold and delivered, where no period of credit is agreed upon, the period of limitation is three years from the date of the delivery of the goods. It really is a lamentable thing, as appears from cases which come up before this Court, that although the Legislature has with laborious care provided no less than 183 periods of limitation for distinct causes of action and applications, constant confusion is raised about limitation in cases where it ought to be perfectly clear. In the case of a tradesman's account the liability to pay for each item of goods delivered, either day by day or week by week, is in the case of each item the date of the delivery of that particular item, and all the learned Judge had to do in this case was, taking the plaintiff's account of goods sold and delivered which the defendant did not deny, to draw a line at the 27th of February, 1917, items of goods delivered before that date being prima facie statute barred, and then to see with regard to each item of earlier date than the 27th of February, 1917 whether it had been in fact paid, or whether a part payment had been made in respect of that particular item which took the whole item out of the mischief of the statute.
2. The plaintiff apparently gave no evidence except his books which were not disputed, but he went into Court with a perfectly idle contention that he was suing for the balance due on a mutual, open and current account where there had been a reciprocal demand between the parties. It is difficult to see how anybody could believe that really applied to this case, and the learned Judge has rightly held that it did not, but the introduction of it into the case reveals a self-consciousness of weakness on the part of the plaintiff, of which these tactics are frequently indicative, that it was necessary for him to resort to some expedient in order to get out of the difficulty of the statute barred items which were earlier in date than the 27th of February 1917. Having dismissed that argument the learned Judge went on to utilise a perfectly right principle, Sections 60 and 61 of the Contract Act, in applying the payments made by the defendant to the items in the plaintiff's account, and although the, plaintiff had not given evidence he; attributed to the plaintiff an election to apply the payments made by the defendant to, the earlier items in the account, which is the, ordinary thing which one would expect a tradesman to do and an inference which the Court might properly draw in the absence of any evidence to the contrary.
3. The learned Judge in dealing with that point uses this language: “On each date that he made a purchase he also made a certain payment without giving any direction that the payment should be credited only to the purchase of that day. The plaintiff therefore had the option to credit the same to the entire balance due up to that date.” In other words the learned Judge has found, and in our view he ought not to go back upon that finding, that the plaintiff has applied the payments which the defendant paid from time to time to the earlier items in the account, thus reducing the balance due up to the date of the payments made.
4. Where the learned Judge has: gone wrong is that he has treated such a payment as a payment which takes every item out of the mischief of the statute. In other words while in one breath holding that Article 85 of the Limitation Act did not apply, he has in the result in his judgment treated the plaintiff's claim as though it was one amount for which a balance only was being sued for under Article 85. This was not only a misdirection but it was really treating the case as something entirely different from that which in fact it was, and probably treating it as a suit which he had no jurisdiction in law to try. When the matter goes back to him again he must take the plaintiff's account and after giving credit for the payments which the defendant has made apply them in accordance with the plaintiff's election to the earlier items in the account, strike a balance and find out how many items were left still unpaid on the plaintiff's account up to the 27th of February 1917. Unless part payments have been made in respect of each of these items within the meaning of the statute of limitation so as to take the items out of the three years' limit, each item in respect of which no such payment has been made ought to be struck out of the defendant's account. Under the circumstances we think the applicant ought to have the costs of this application. The costs of the hearing in the Court below will abide the result in proportion to failure and success.
5. Case remanded.
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