[1938] EACA 205

## APPELLATE CIVIL

## BEFORE THACKER, J.

## BABURAM SONI, Appellant (Original plaintiff)

## KASTURI RAM, Respondent (Original defendant) Civ. App. No. 12/1938

Offer and acceptance—Cheque tendered in full settlement—Conduct showing acceptance—Estoppel.

The appellant sold and delivered goods to the respondent. Subsequently there was some dispute as to the settlement of the account and on $4-1-36$ the respondent wrote a letter to the appellant enclosing a cheque for Sh. 1,100 "in full and final settlement" of the transaction. The cheque was presented for payment and duly paid without any communication to the respondent repudiating the suggestion that the cheque was taken in full and final settlement. On 30-8-37 the appellant instituted the suit for the recovery of the full amount of his demand less Sh. 1,100 paid by cheque.

The respondent pleaded that the said cheque was accepted in full and final settlement of the purchase price of the goods. The magistrate held that appellant had by his conduct accepted the cheque in full and final settlement. Appellant appealed.

Held $(13-5-38)$ .—(1) That the magistrate was entitled to hold as a fact that the appellant had by his conduct accepted the cheque in full and final settlement.

(2) That it was not necessary on the part of the respondent to plead estoppel because he was relying on an agreement to accept the cheque in full and final settlement and not on any estoppel.

Daly for the appellant.

Saville for the respondent.

JUDGMENT.—The facts in the case from which this appeal comes appear sufficiently from the judgment of the magistrate in the lower Court.

The short points for decision of this Court of Appeal are whether the appellant accepted the cheque for Sh. 1,100 as full and final settlement of his account and whether or not the respondent should have pleaded estoppel.

The keeping of the cheque was not as a matter of law conclusive that there was an agreement that it was to be in full satisfaction, but it was a question of fact on what terms the cheque was kept: Day v. Mclea (22 Q. B. D. 610).

The magistrate found as a fact that by his conduct the appellant did accept the cheque in full and final settlement and in my judgment there was evidence upon which he could come to that conclusion. 1 am not prepared having read the evidence to hold that the magistrate could not have come to the conclusion he did. The cheque was sent with a letter saying that the cheque for Sh. 1,100 was sent in full and final settlement, after Sh. 1,331/45 had been demanded, and it seems to me, and did to the magistrate, incredible that the appellant should accept that cheque and make no communication thereon to the respondent unless he was prepared to accept it in the terms in which it was sent. If he was not prepared to accept it, then the appellant should have intimated as much to the respond-Further, although the cheque was sent on the 4th January ent. 1936 there appears to have been no correspondence on the matter until 22nd May 1937.

It is argued by the appellant that the respondent relies on estoppel and that estoppel should have been accordingly pleaded. Such however does not seem to me to be the case.

The following passage is taken from Everest and Strode's Law of *Estoppel*, third edition, page $237:$ —

"The general principle of the doctrine of personal estoppel is stated by Lord Denman, C. J., in Pickard v. Sears (6 A. & E. 469) as follows: 'Where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing as the same time".

Paragraph 452 of Halsbury, second edition, Vol. 13, reads as follows:-

"Where one has either by words or conduct made to<br>another a representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that other had acted on such representation and thereby altered his position to his prejudice, an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be ...".

The respondent has not changed his own previous position or been prejudiced by anything that the appellant has done—hence the respondent does not rely on estoppel. The respondent sets up and relies upon the agreement to accept the cheque and the magistrate has found this as a fact and the respondent does not say that the appellant is estopped.

For these reasons the appeal is dismissed with costs.