Appeal-Re-opening appeal-Where appropriate-Interest on original claim during
period taken by litigation

Judgement-Interest during period of litigation

The appellant obtained' judgment 1 in the Court of Appeal against

·Court: Wasey Sterry C.]., M, Fleming and N. Davidson, JJ.

1 In that judgement the same Court of Appeal held: that a creditor, part
of whose debt is secured by guarantee of a third party and part not, and who
receives in the ordinary course of business goods for sale on account of his
debtor, is entitled to appropriate the proceeds ,of sale to the part which is not
guaranteed (there being no_ direction to the contrary by the debtor) though
. that. part of the debt is later in' date than the guaranteed part. the respondents as guarantors of a debtor for certain sums due by him
to merchants for goods supplied on credit, and interest at 12 percent on'
all such debts up to date of! institution of the suit. The appellant agairi
petitioned 'the Court, of Appeal claiming a revision of the interest to
include the interval occupied by respondents' defence to his claim and

  the appeal.                                                          .

Held: (i) The Court of Appeal has power to reopen an appeal on
'a point not argued in the appeal if it has obviously been', overlooked.

( ii) Appellant is entitled to the interest claimed provided he bas
claimed it properly and did not abandon his claim.

Appeal,

The relevant facts are set out in the judgement of Davidson J.:

April 3, 1917. Davidson J.: The appellant has already obtained
judgment in this court against the respondents as guarantors of Gamil
Agia for the total capital sum due by Gamil Agia to merchants for
goods supplied to him on credit, and interest at 12, per cent on all
such debts up to November 1, 1915, when this action was commenced.
The appellant has now been allowed to claim on a further point in
his appeal interest at 12 per cent from November 1, 1915, to the
date of the judgement of this court, amounting (as amended at the
hearitlg) to £E96.090 m/ms,

\ The court having already held that under - the original guarantee
the appellant was entitled to be indemnified by the respondents for
the whole liability he, had incurred on behalf of Gamil Agia, both
principal and interest at 12 per cent up to November 1, 1915, it
would appear to follow that the appellant should be also indemnified
for any further liability incurred by him in respect ofthe same debts
during the interval occupied by the defence of the respondents to his
claim and the appeal. It is this which he now claims. The respond-
ents declined to pay the sum which has now been found due by them,
and consequently interest at 12 per cent has continued to run against
the appellant up to this date. It must also be remembered that the
finding of this court implies that the appellant had not, by negligence
or delay in approaching or notifying the guarantors, debarred himself
from his right to recover interest at 12 per cent at any rate up to
the date of the action. The respondants have argued that it was the
appellant's own negligence in not notifying the guarantors at the
proper time that caused 'them to defend the action and so caused
this additional delay in payment. But the appellant did notify the
guarantors in March 1915, six months before he brought his action, SO that they had ample time to choose between paying up, and so
saving the interest, or defending the action. They chose the latter
course. 0 The court has found that they were wrong. The delay there-
fore between November 1, 1915, and the date of judgement was
caused by their misapprehension of their rights and not by the delay
of the appellant in notifying them, which he had done 6 months before.

In my opinion, therefore, seeing that the appellant has been held
entitled to the interest for which he had become liable up to November
1, 1915, he is also entitled to the further interest for which he has
become liable during - the period occupied by the defense of the
respondents to his claim, provided that he has claimed it properly and
has not abandoned his claim.

In his original petition of November 1, 1915 he claimed this
interest up to judgement and from judgement to payment clearly and
expressly. But from that date up to the date of judgement in this
court that part of his claim does not appear to have been discussed
or even mentioned either here or in the court below. The appellant
seems to have thought that as this court did not deal with the point,
he must bring a fresh action for this further interest, and he petitioned
the High Court accordingly immediately after our judgement. As the
point has been raised in the original suit he was allowed to argue it
before this court as an additional point. There' are three points for
consideration:

( 1) He accepted judgement against the principal debtor Gamil
Agia for capital and interest up to November 1, 1915, and did not
ask for interest from November 1 to judgment. Does this debar him
from claiming interest up to judgement against the Guarantors? In
my opinion it does not. If he had abandoned this part of his claim
against Agia before he claimed it from the guarantors, it might be
argued that they were released to that extent. But what really hap-
pened was very different. He had already claimed this interest against
the guarantors and when that action was part heard, he accepted a
judgment against Agia which he believed would include this interest,
but which on strict legal construction did not. For all practical
purposes the amount of his judgement against Agia was immaterial as
there was not the slightest chance of recovering anything like the
whole of it from Agia. I consider therefore that it would be pursuing
a technicality to extremes if it were held that his mistake as to the
effect of this immaterial judgement against Agia debarred him from pursuing his material claims against the respondents. As a further
reason it appears to me that as the time during which this interest
has accrued was occupied not by the defence of Agia, hat by the
"defence of the respondents, they are liable on. this part of the claim

as principals rather than as agents for Agia.

(2) The appellant did not press this part of his claim against
the respondents in the court below. Does this debar him from raising
it in the appeal? In my opinion it ought not to do so. He raised
the point in his petition and of course it did not become material
unless the court decided the main point as to the liability of the
guarantors in his favour. Owing to the finding in favour of the
respondents it never did become material. It had been raised in the
petition and I do not think it was an unreasonable course-s-certainly
not an unusual one-to wait for judgement and then if it were favour-
able to remind the court that interest was also claimed up to judgement
and should be included in the decree. Inasmuch therefore as the point
was raised in the petition and impliedly refused in the judgement I
think it was fully open to the appellant in the Court of Appeal.

(3) It was not argued in the appeal and so not included in the
judgment of this court. Was the court right in allowing the appeal
to be reopened on this point? The court certainly had power to do
this and in my opinion took this course rightly as the point was
obviously overlooked. No doubt the appellant ought to have brought
it to the notice of the court, but it must be remembered that he would
be unable to follow the reasoning and arguments of the court in
English, and when the court gave him judgement for the same amount
as against Agia, he not unnaturally thought that he must raise this
point in another action. That he never intended to abandon it is
shown by the fact that he petitioned the High Court next day. I
think it is only fair that he should be given the opportunity of correct-
ing his misapprehension as to the procedure.

No difficulty would have arisen on this point if the respondent
had not tried very hard to get the Appeal reopened on the main
question which had been fully argued and decided. There is all the
difference between allowing the appeal to be reopened on a part of
the claim which has not been discussed or decided and allowing the

. appeal to be reopened for additional arguments or points to be brought
forward on that part of the claim which was decided after full dis-
cussion has been invited and heard.