TOYO MENKA KAISHA LTD Vs. CHABILDAS NATHUBHAI

JUDGEMENT

(1.) This is a vendors suit in respect of fifty-two bales of yarn being the balance of one hundred bales sold to the defendants on the 13 September 1920, of which seventy-five were for ready and twenty-five for September delivery. The defendants pleaded that the plaintiffs were unable to give delivery of this balance, and that consequently the contracts were cancelled. This defence was abandoned at the trial, and the breach of contract admitted.

(2.) The only remaining question, therefore, is the measure of damages, but this gives rise to questions of some nicety which have been well argued on both sides.

(3.) Turning to the facts, in my judgment the property in the goods did not pass to the defendants. At the date of sale the plaintiffs had two hundred bales in their godown, and though one hundred were delivered the next day to another party, I think there was no appropriation of the suit fifty-two bales to the suit contract, and no assent by the defendants to any such appropriation. The case of Pignataro V/s. Gilroy [1919] 1 K.B. 459, on which the plaintiffs relied, is, I think, clearly distinguishable, for there a delivery order was sent and also a letter pointing out where the goods were. On the above finding, it follows that the plaintiffs cannot rely on the auction sale in March 1921.