KASIRAM PANIA Vs. HURNUNDROY FULCHAND

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Buckland in a suit for damages for breach of a contract for the sale of goods. The terms of the written agreement between the parties made on the 9th August 1918 were a follows: This is written to Bhai Hurnundroyjee Fulchand by Kasiram Pania with their compliments. Further, we have bought from you 45 bales, of Grey Shirtings No.B5- 456-15-15 of Madadeo Company at Rs. 26-8-annas, ready goods; gown due 90 days from the 29th July; allowance and all conditions are according to the outside (co interest and) (that is, contract with European firm), the inside customs(i.e., the customs prevailing amount the Indian merchants). Broker Meghrajee Ramkumar Serowgee.

(2.) The case for the plaintiffs is that as the due date of delivery, namely, the 27th October 1918), was a Sunday, the contract could be performed on the following day, according to a well-known usage in the market which was described in the following terms: There is a well-known usage in the market in connection with European importing firms that if the due date falls on a Sunday or on public holiday, the same is excluded and the following day is taken as the due date. The plaintiff firm and the defendant firm are well aware of the said usage and have always acted in conformity thereto.

(3.) The plaintiffs allege that, according to this usage, the due date for delivery under the contract was the 28th October 1918, when they tendered the goods to the defendants, who refused to accept delivery. The plaintiffs accordingly claim damages on the basis of the difference between the contract rate and the market rate on the due date. The defendants repudiate the claim on the ground that the usage alleged by the plaintiff a has really no existence and assert that transactions are carried on according to a different practice which they described as follows: In transactions with the European firms if the due date falls on a Sunday, delivery is taken and given on the previous Saturday and not on the following Monday. In transactions between Indian firms, the due date is adhered to, irrespective of its being a Sunday or a week day, and delivery is given and taken on the Sunday, if that be the due date.