ROBERTSON, GLADSTONE AND ORS Vs. KASTURY MALL

JUDGEMENT

(1.) It appears to me that the decision of the learned Judge is correct, admitting that a portion of the goods had not been landed on 13th May 1868, when the contract was entered into. The contract states, that "the merchants agree to sell, and the dealers to buy, the goods under mentioned at the price specified below, and on the following terms." The goods are those described ex ships named, and the numbers and marks of the bales are given. The contract then states. "the goods are to be cleared and paid for within 45 days from this date." The dealers agreed to boy the goods upon those terms, and the merchants agreed to sell upon those terms. The first act was to be done by the dealers, for they must clear and pay for the goods, the merchants were not bound to send the goods to the dealer, but the dealers were bound to fetch them away, and they were bound to clear and pay for them within 45 days; the merchants were hound to allow the dealers to clear the goods at any time within the 45 days, and if the defendant had gone to the merchants' godown and requested to be allowed to clear and pay for those goods, the merchants would have been liable, if they had refused to allow the dealers to take them away. The defendant not having performed their contract by clearing and paying for the goods within 45 days, there was no condition precedent which it was necessary for the merchants to prove performance of before they could sue the defendant for breach of the contract; the acts to be performed by the merchants, and those to be performed by the dealer being concurrent acts. I apprehend the merchant was bound to prove that he was ready and willing to perform his part of the contract, or to allow the defendant to clear the goods at any time within the 45 days, at which the dealer might think proper to do so. It would not have been sufficient for the merchant, instead of alleging that he always was ready and willing to perform his part of the contract, to have averred that he was ready and willing to deliver on the last day for the performance of the contract by the defendant, and that the defendant never demanded the performance of the contract within that period. The rule is laid down in Pordage v. Cole 1 Saun. 320, that where two acts are to be done at the same time, neither can maintain an action without showing performance of, or an offer to perform, his part. The same rule is laid down in Peters v. Opie 5 East, 103. From this it appears to me that, independently of the objection which Mr. Justice Macpherson has pointed out in his judgment, the defendant was not bound by this contract with reference to the goods which had not been landed at the time the contract was executed, and the defendant not being bound as to that portion, would not be bound to perform his contract as to the residue. The contract stipulated that "ten days should be allowed from the date of contract for the buyers to examine the goods and claim allowance on the ground of damage, however caused." It appears to me that when the defendant agreed to purchase goods ex the Himalaya and other ships, binding himself not to claim in respect of any damage to the goods for any difference or inferiority in quality or any other defect, unless the claim should be made within ten days, be never contemplated that, in order to examine the goods, it might be necessary for him to go on board the ship or ships, in which the goods had been imported within the Port of Calcutta, for the purpose. Therefore the goods which he intended to buy were goods which were represented to be ex the ships, i. e., landed from the ships, and not goods on board the ships to arrive, or in the course of landing in the Port of Calcutta. I asked Mr. Marindin, in the course of the argument, whether, if damage has been done to these goods in the course of landing in a cargo boat, the loss caused by that damage would have fallen on the defendant; and Mr. Marindin stated that that would be so, for that it was stated in the contract that the goods were to be at the buyer's risk from the date of the contract. Surely the buyer, when these goods were described as ex the ships in which they had been imported, never contemplated that be was to bear the risk of loss on board the ships either at sea or in port, or in consequence of the sinking of the cargo boat in which they were being landed in the river. For the above reasons it appears to me that, independently of the question of the necessity on the part of the plaintiffs to prove their readiness to perform their part of the contract, the defendant was not bound by this contract to take goods on board the ships, and in respect of which, if the contract was binding upon him, he would have been bound to take the risk of any damage or loss to the goods on board ships, or in the course of landing. The decision of Mr. Justice Macpherson ought to be affirmed with costs.

(2.) I am also of opinion that the decision of Mr. Justice Macpherson is correct.

(3.) The plaintiffs entered into a contract with Kastury Mall Ramgopal to sell, and Kastury Mall Ramgopal agreed to buy, certain goods at specified prices. The goods are 123 bales in all, specially marked and numbered. Then comes this clause: "the goods to be cleared and paid for within 45 days from this date." Now if the contract stopped there, certain specified goods being purchased, and there being a provision that the goods were to be cleared and paid for within 45 days, then according to the cases cited from Saunder's Reports, it is plain that the purchaser had the option as to the time at which, within the 45 days, he should clear and pay for the goods.