SAHU MAHADEO PARSHAD Vs. KANDHAIA LAL

JUDGEMENT

(1.) This second appeal arises out of a suit brought by one Mahadeo Parshad to recover damages from Kanhaia Lal and another owing to non-delivery of certain coal. The terms of the contract between the parties have been re-produced by the learned Subordinate Judge in his judgment. They may be thus translated: "Five railway carriages of charcoal will be despatched from Manikpur and will be wieghed over at the godown at the rate of 91/2 annas per maund. The coal on the trucks on arrival will be shown; if approved, the coal will be supplied at the godown; if not approved, the coal will be sold and I will supply charcoal of the kind obtainable in the bazar." Then follow the words "miti jeth sudi puranmashi"; and the word "tain" afterwards. The defendant was to supply charcoal up to the 25th of June 1907. The Court of first instance found that of the five trucks of charcoal, four were supplied before the 26th of June 1907. One of these trucks was accepted by the plaintiff and three were rejected but rejected on grounds not shown to be sufficient.

(2.) The Court of first instance found that after the 26th of June 1907, namely, in March 1908, one truck of coal was supplied by the defendants and accepted by the plaintiff. With regard to this truck of coal, he held that there had been a breach of contract on the part of the defendants and damage on account of this breach to the extent of Rs. 309-6 had been incurred by the plaintiff. He accordingly gave a decree for this sum of Rs. 309-6.

(3.) The defendants appealed and the learned Judge who heard the appeal found that the sale of one truck of coal in March 1908 at the contract rate was made in performance of the contract and that the plaintiff had waived the performance of the contract within the specified time and was not entitled to any damage.