G W DAVIS Vs. MAUNGSHWE GO

JUDGEMENT

(1.) This appeal arises out of an action brought by the plaintiff-respondent in the Chief Court of Lower Burma in the exercise of its original civil jurisdiction to enforce the specific performance of an agreement alleged to have been executed by the defendant-appellant on the 4th of April 1906, and in the alternative for damages.

(2.) The first Court dismissed the suit, "being unable to hold that the agreement set up had been proved."the Chief Court on appeal has arrived at a totally different conclusion; it has found that the document was signed by the defendant, and it has accordingly reversed the decision of the first Court, and decreed the plaintiff s claim. The defendant has appealed to His Majesty in Council, and the only question for determination relates to the genuineness of his signature on the agreement in suit, 2. Although the parties are at issue on this, the vital point in the case, there is otherwise singular unanimity on the general facts. In the conflict of opinion between the Courts in Burma, it seems necessary to their Lordships to examine the admitted facts and circumstances as furnishing the safest guide to a correct conclusion.

(3.) When the defendant in 1901 acquired the land regarding which he is said to have executed the agreement, he was, on his own admission, in pecuniary difficulties. He had bought the land, which was mostly waste and undeveloped, with money bor rowed on its mortgage. In 1905 he was undoubtedly in difficulties; one creditor appears to have taken out execution, the principal mortgagee was pressing for repayment, and although, according to his statement even at that time, he had received good offers for the property, they had all fallen through, as each time he had increased his price. It was in these circum. stances that he applied to the plaintiff for accommodation. The arrangement entered into, as one of the learned Judges in the Chief Court observes, was onerous even for Burma. The defendant was to obtain Rs. 50,000 from the Bank of Bengal on the credit of the plaintiff; he was to draw, in conjunction with a Burmese broker Ba Pe or Hpay, who appears only to have lent his name for a small consideration, five bills for Rs. 10,000 each, payable at three months after date in favour of the plaintiff, who was to endorse them over to the Bank of Bengal, to enable the defendant to get them discounted by the Bank. For this accommodation he was to pay the plaintiff interest at the rate of 6 per cent, on the amount of the bills.