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Colonial Cases

Colonial Government v. Nalletamby, 1899

[breach of contract]

Colonial Government v. Nalletamby

Supreme Court of Mauritius
Delafaye C.J. and Moncrieff J., 1899
Source: Decisions of the Supreme Court of Mauritius, 1899

https://archive.org/stream/decisionssuprem01courgoog#page/n1/mode/2up

 

SUPREME COURT

MISER EN DEMEURE - ITS TWO-FOLD OBJECT - WAIVER OF RIGHT TO MISE EN DEMEURE - LETTER FROM DEFENDANT TO PLAINTIFF.

   A "mise en demeure" has a two-fold object, first, to inform the debtor that the creditor intends to insist upon the execution of the contract and then to allow the defendant or the debtor, this warned, to take the necessary steps and make all possible diligence in order to be able to perform his contract as stipulated. 

  A party may dispense with or waive any right which he is entitled to, and he may the more easily be understood to renounce such a right as that to the "mise en demeure" since his position remains intact on the merits of the case.

   Held, where a letter from the defendant to Plaintiff clearly conveyed the intention to inform the latter that he (Defendant) did not mean to go on with the contract except under certain exceptional circumstances, that the Plaintiff was entitled to enter his action without serving on defendant any "mise en demeure."

THE COLONIAL GOVERNMENT v/s NALLETAMBY

Before

His Honor L. V. DELAFAYE, - Acting C.J.

and

His Hon. F. C. MONCRIEFF, Puisne Judge.

The Hon. L. ROUILLARD, - Substitute Procureur General, appears for the Plaintiff.

  1. ROLANDO, - Crown Attorney - Attorney for the same.

The Hon. W. NEWTON, Q.C., - Counsel for defendant.

Mr. E. SAUZIER, - Attorney for the same.

Record No. 27,668.

26th April 1899.

THE JUDGMENT OF THE COURT WAS DELIVERED BY DELAFAYE,  C.J.

   This is a case in which the Government wishes to recover from the defendant a certain sum of money for breach of contract.

   The preliminary plea of the defendant is that the Government had no right of action against him because they have not complied with the formalities prescribed by law; that is to say, they have not put him en demeure to execute his contract.

   The law as to mise en demeure is clear and it has been laid before us in its true light by the learned counsel who appeared for Nalletamby.  There is not doubt that in a case like the present one, the plain tiffs would have been bound to put the defendant  en demeure before they could sue him, were it not for certain documents which have been produced by the Government and which, they say, amount to a mise en demeure, and from which they ask us, supposing we are of opinion that the documents do not constitute a regular mise en demeure, to decree that they prove satisfactorily that Nalletamby had dispensed Government with the  necessity of  complying with the formality of the mise en demeure.

   We have decided the other day that these letters did not amount to a mise en demeure, although two of them, I must say, come very nearly up to the requirements of the mise en demeure, but we have held that they did not constitute the regular mise en demeure that should have been served or notified a case like the present one, and I am not going to alter our ruling on the point.  But there is one letter from Nalletamby upon which we are asked to decide that he has waived his right to claim that the formality of the mise en demeure before action entered be complied with  - that is the letter of the 27th August 1897 - and we have no hesitation in saying that that letter clearly conveys the intention on the part of Nalletamby to inform the Government that he does not mean to go on with the contract except under exceptional circumstances which the Government, naturally enough, were not prepared to accede to.

   There are three letters which should be read together.  There is one of the 23rd August 1897 in which the Government write to Nalletamby as follows:-

With reference to your letter of the 20th instant informing me that you were unable to give the name of the vessel which Mr. Nalletamby proposed to send to Rodrigues for the August, October and December voyages to that dependency, I am directed to request that you will have the goodness to inform me as dearly as possible, as the matter is professing, whether Mr. Nalletamby is prepared or not to perform the required service to and from Rodrigues till the end of the year, in another vessel.

There is another letter of a still more pressing nature, of the 26th August from Government.

I am directed to request that you will have the goodness to inform me without delay whether you are prepared to perform the service for the transport of mails, passengers, goods, &c., between Port Louis and Port Mathurin, Rodrigues, until the end of the year by a suitable vessel.

   Now, on the 27th, the very day after, Nalletamby answers that letter; and the last paragraph of his answer is certainly not a paragraph written currente calamo but has evidently been meditated upon and was written after reflection' it is worded in such terms that it is difficult not to construe it as a very clear intimation to Government of what the intention of Nalletamby is:-

I have now to state that I can only continuer the contract and make two or three more voyages to Rodrigues by a suitable vessel approved of by Government provided that the latter will increase the subvention to Rs. 1500 per voyage.

This can have no other meaning except that Nalletamby had made up his mind not to go one with the contract except under the condition of the increase of subvention that he mentions.  A party may dispense with or waive, any right which he is entitled to, and a party may the more easily be understood to renounce such a right as that of the mise en demeure since his position remains intact on the merits of the case.  The mise en demeure has a two-fold object, first, to inform the debtor that the creditor intends to insist upon the execution of the contract and then to allow the defendant, or the debtor, thus warned, to take the necessary steps and make all possible diligence in order to be able to perform his contract as stipulated.  Well, the letter of Nalletamby shows that he did not mean  to take any advantage of any such mise en demeure not having been served upon him, and that therefore the Government are perfectly eight when they say:-

"having received that letter from Nalletamby, we considered that we were disposed from fulfilling any such formality as the mise en demeure, and we do not believe he has any right to complain of the non-performance of that formality."

   We agree in that view.  The judgment of the Court is, therefore, that the first pleas must be set aside and that the case must be proceeded with on the merits.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School