MAHANT SINGH Vs. U BA YI

JUDGEMENT

(1.) THE facts in this case can be shortly stated. THE plaintiff, who is a building contractor, was employed by the four trustees of a pagoda known as the Kyaikasan Pagoda. THE terms of the employment are set out in a written agreement dated January 1, 1933, and expressed to be made between the Board of the Kyaikasan Pagoda Trustees and the appellant. It is signed by the appellant and each of the trustees. THE respondent was trustee of the estate of a lady called Daw Dwe who had left certain property for charitable purposes. He was not a party to the contract but had orally guaranteed its due performance by the trustees, and in Burma such a guarantee is binding though it is not in writing. THE appellant fulfilled his contract, and there was due to him a sum of Rs. 2,6,082-8-6, less, as the learned trial Judge found, a sum of Rs. 158, which had not been paid. THE appellant thereupon instituted the present action on May 21, 1934, in the High Court in its original jurisdiction, claiming the former sum against the four trustees and the respondent.

(2.) IN the plaint each of the trustees was named as a defendant, and after their names were added the words "all the above four are trustees of the Kyaikasan Pagoda, Thingangyun, and are sued in that capacity. " By his prayer the plaintiff asked for relief against each of the defendants personally and against the respondent in particular as the trustee of Daw Dwe's trust. The sum awarded by the learned trial Judge was obviously due from the respondent and from the trustees personally, but the appellant seems to have thought that his remedy was not against the named trustees but against any one who might from time to time be trustee of the pagoda.

(3.) FROM this decision the respondent appealed to an appellate bench and in that appeal for the first time put forward the contention that the learned Judge erred in law in holding him liable. His liability, it was suggested, should have been held to be discharged by the act of the present appellant in foregoing his claim against the original trustees. The learned Judges of the appellate bench whilst rejecting all the other grounds of appeal held that this contention was well founded, allowed the appeal and condemned the appellant in costs. The question argued before their Lordships was whether they were right in so doing.