BILASIRAM THAKURSIDASS Vs. EZEKIEL ABRAHAM GUBBAY

JUDGEMENT

(1.) In this case the plaintiff brought his action against the defendants claiming damages for broach of contract. The contract was in respect of 300 tons of Brown Java Sugar, which was to be delivered in Calcutta, and the contract price was rupees six and pies six per bazar maund; the goods were to be delivered Ex. Kidderpore Docks Jetty or ghat, and the shipments were to be made by steamers during July to December 1914. The date of the contract was the 4th of June 1914 and the first shipment would have to be made in July. But in the contract there was a clause giving the shipper seven days margin, go that if ho shipped the July shipment by the 7th of August, it would be in accordance with the terms of the contract. It was given in evidence in the course of the case that the length of the voyage would be eleven days but it was said on behalf of the plaintiff that it would be thirteen days, and for the sake of this case we may take it from eleven to thirteen days, so that the first shipment under this contract namely, the July shipment, if the shipper took the whole margin which was allowed to him, that is, the first seven days of August, would be due to be delivered in Calcutta about the 18th or 19th of August. Now, on the 4th of August, as everybody knows, war was declared, and a letter was written a few days afterwards by the defendants in these terms, "We beg to intimate to you that owing to the war no sugar can be shipped from Java without war insurance being effected on payment of extra war rates. We shall thank you to intimate to us if you are prepared to take the sugar on payment of the extra war insurance rates charged therefor. Unless we hear from you within 24 hours agreeing to pay the extra war insurance rates we shall take it that you have cancelled the July to December portions of the above contract which has been ready for despatch from Java." The answer to that from the plaintiff was, "I write to inform you that I am bound by the contract under which I purchased and you have sold me the sugar and that I am prepared to carry out all and only such obligations as are included in the terms of the contract." On the 13th the defendants wrote, "Unless you give us a definite reply to whether yon accept the condition within two days, we shall consider the contract as cancelled." On the 14th the plaintiff replied practically confirming what he had already said that he stood by his contract. On the 18th he wrote complaining "that he had not yet received notice of arrival of July shipment of sugar purchased from the defendants under contract No. 503." On the 18th of August the defendants wrote as follows: "With reference to your letter of the 14th and 18th instant, we regret we cannot add anything now to what we wrote to you on the 13th instant. Please note that we have already cancelled your contract. Farther correspondence with regard to the said contract will be useless." Now, upon that, the first point that was raised by the learned Counsel for the defendants was that that was a repudiation of the contract and that the repudiation took effect from the 15th of August, basing their argument upon the letter of the 13th of August in which they said, "unless you give us a definite reply to whether you accept the condition within two days we shall consider the contract as cancelled." It has been argued on the part of the plaintiff that that was not a definite repudiation and that it gave time for further consideration, further correspondence and further negotiations, and if the defendants had chosen to go back upon what they said in the letter of the 13th of August they could have done so. I think the plaintiff is right upon that point, and that the letter of the 13th August was not a sufficiently definite statement of repudiation, and, as a matter of fact, the actually definite repudiation was not made until the 18th of August 1914. That letter of the 18th was delivered between 6 and 7 P.M. of the 18th, and I do not think it can be seriously disputed that it was too late for the plaintiff to do anything on that day. Therefore, the matter stands in this way, that on the 18th of August the defendants repudiated their contract and definitely told the plaintiff that they were not prepared to carry it out any further. Therefore, there was a breach the contract on the part of the defendants, and the question arises, to what damages the plaintiff was entitled.

(2.) Now, such a question as this in my experience nearly always gives rise to matters which are very difficult to decide, and I do not think that this is an exception in that respect--it does raise difficulty as to the proper measure of damages.

(3.) The first point on this part of the case which was raised by the leading Counsel for the defendants is this: He argued that although the defendants, the sellers, were entitled to deliver the 300 tons of Brown Java Sugar by instalments by shipment in each month, from July down to December, the buyer had not the right to demand delivery by such shipments or instalments but that the sellers, if they had chosen, could have delivered the whole of the consignment--the whole of the 300 tons--in August; or, on the other hand, he could have postponed delivery of the whole 300 tons until the last month specified in the contract. In my judgment that is not a correct construction to be put upon this contract--it is not in accordance with the terms of the contract, nor is it in accordance with the common sense of the matter. I am of opinion that just as a seller had the right to deliver by separate shipments spread over the months from July to December, the buyer in the same way had the right to demand delivery of the goods during those months from July to December. It would be an astonishing proposition from a business point of view that the seller could have delivered by instalments in the way he claimed he had the right to do, yet the buyer was found to take the whole lot at the beginning of the period or at the end of the period. For these reasons, I do not think that the first point raised by the learned Counsel was a good point.