KALLYANJEE SHAMJEE Vs. SHORROCK

JUDGEMENT

(1.) This is an appeal arising out of a suit brought to recover a sum of Rs. 4,455-8 as the price of 469 tons of coal delivered by the plaintiff to the defendants. The delivery is not disputed. But it is pleaded that there has been a breach of contract on the part of the plaintiff, which entitles the defendants to set-off a sum of Rs. 2,079 by way of damages against the sum of Rs. 4,455-8, and on that footing the defendants submit that he is only entitled to receive a sum of Rs. 2,376-8, and this they offered to pay and have actually brought into Court.

(2.) The contract out of which the suit arises is contained in bought and sold notes which, though they are not absolutely in identical terms, may, as Mr. Justice Fletcher says, be taken to be identical for the purpose of the present suit. The sold note on which the plaintiff relies is addressed to Messrs. Banerjee & Co., Managing Agents, Kunji Munji & Company, who may be taken as identical with the plaintiff for the present purpose. It is signed by W.C. Banerjee and runs in these terms: Dear Sirs, I have this day sold by your order and for your account to Messrs. George Henderson and Company, Calcutta, the entire stock at Shalimar Depot or 700-800, say seven or eight hundred tons of best Kusunda steam coal freshly raised and free from shales, slates, water-marks, rubble, dust or other impurities at the rate of Rs. 9-8, say nine rupees eight annas, per ton free in boats at Shalimar. The sellers will not be responsible for any demurrage to the boats. Average basket weights. Payment on completion of delivery.

(3.) The principal question in dispute between the parties is whether delivery of 469 tons was, in the circumstances of this case, a sufficient performance of the contract. This turns upon the question what force should be attributed to the words "the entire stock at Shalimar Depot or 700-800, say seven to eight hundred tons of coal." On the part of the plaintiff who, feeling himself aggrieved by the decision of Mr. Justice Fletcher, has appealed from that decision, it is urged that the mention of 700-800 tons is not binding, that it is merely a statement of expectation and nothing more, and not in any sense a warranty, and that he, the plaintiff, has performed his contract in its entirety by delivering 469 tons, that being "the entire stock at Shalimar Depot." Mr. Justice Fletcher has not accepted that view, and in my opinion rightly. It is not of any great use to refer to decided cases for the purpose of determining the meaning of a contract of this kind. Regard must be had to the actual words used in this case, and to the circumstances under which the parties contracted and to the relative positions of the parties, so far as they are disclosed by the materials before the Court. The position then is this: the owner of this entire stock at Shalimar Depot being a coal merchant, says that it is in quantity 700-800 tons, while there is nothing to suggest before us that the defendants ever saw the coal, or ever visited the Depot at Shalimar. At the same [ time there is no evidence of any custom of trade or usage which would give to the words used any particular meaning in relation to a contract such as this. In the circumstances, I think it is a fair reading of the words to say that there was a promise by the plaintiffs that the coal which constituted their entire stock was 7OO-8OO tons, and that it is impossible to treat the words used as a mere expression of opinion, which was not to carry with it any legal consequences.