NANNIER Vs. N M RAYULU IYER, NAGASAMI IYER

JUDGEMENT

(1.) This is a suit for damages for breach of contract. The defendants contracted with the plaintiffs for the purchase of 25 bales of yarn of certain quality, orders for which had already been placed by the plaintiffs Bombay agents with the agent of Peolad Factory at Bombay. The price was Rs. 21-8-0 per box and each bale was to contain 20 boxes of 10 lbs each. The Varthamanam letter, Ex. A, is dated 27th August 1918. The plaintiffs allege that the defendants accepted delivery of 5 bales in accordance with the plaintiffs arrival advice on the 2nd September 1918, but they afterwards did not pay for or take delivery of the remainder of the goods. The plaintiffs claim Rs. 3,405-15-8 or the difference between the contract and the market prices prevailing at the dates of the breaches. The defendants in their written statement, rely on time as being of the essence of the contract, and they say also that the plaintiff s were not justified in selling the unaccepted goods against the defendants which they did on the 27th January 1919, there having been a breach on 13th October 1918. The written statement was filed on 12th April 1919. On the 11th October 1919 an additional written statement was put in consequence, it is said, of an examination caused to be made by the defendants of small quantity of the yarn contained in the bales accepted by them. In the additional written statement they plead that the goods offered by the plaintiff weighed only 8 1/2 lbs. as against 10, that the yarn was not No. 20, and that the dye was not fast. For these reasons they were tot bound to receive the bales.

(2.) The only issue that we are really concerned with in the case is Issue No. 5:

(3.) This issue inter alia was settled on the 3rd September 1919 and no additional or amended issue seems to have been thought necessary in consequence of the additional written statement of the defendants. This, as far as I can see, seems to have been completely neglected throughout. The Additional Subordinate Judge in fact notices that no supplementary written statement was filed by the defendants with reference to the alternative claim to damages which the plaintiffs were allowed to add to para. 10 of the plaint on 9th October 1920. The case on which the defendants went to trial throughout was that the plaintiffs should have delivered the 25 bales within a month. This has been found against by both the Courts and is of course, binding on us in second appeal. The Additional Subordinate Judge, however, held that the plaintiffs were bound to prove that the goods tendered and refused wore in accordance with the contract in respect of quality and that, therefore, this, not having been proved, all that the defendants could recover in consequence of the breach committed by the plaintiffs was the amount of their advance.