RAMALINGAM CHETTIYAR Vs. GOKULDAS MADAVJI AND CO

JUDGEMENT

(1.) This is a suit for damages upon a contract to sell 80 candies of cotton at Rs. 414 a candy entered into in June, 1918. The plaintiff appeals.

(2.) He tendered and the defendants took delivery of 36 and odd candies. They declined to take delivery of the remaining 43 and odd candies as the market was falling. The plaintiff re-sold the rejected goods and brought this suit for damages and got a decree. The learned Subordinate Judge gave the plaintiff a decree for damages based on the price prevailing at the end of December. The goods which the defendants would not receive were actually sold in March, 1919, the breach of contract having been on December 26, 1918. The Subordinate Judge took an earlier date, upon the principle that every party to a contract is bound to mitigate the damages as far as possible. The plaintiff got the goods sold through a broker who is P.W. 4. He stated that the cotton season ends with 31 December and that there was no market for cotton for two or three months and so they were unable to sell the goods till Messrs. Harvey & Co. purchased them in March at Rs. 282 a candy. His statement that there was no market for cotton for two or three months is belied by the market report book, Ex. L, which has been filed as evidence on plaintiff's behalf. This shows sales of cotton at varying prices in December, 1918 and in January, February and March, 1919. On certain dates there is an entry that no business was done. The man who kept this book has not been examined as a witness and therefore it is impossible to accept the suggestion now put forward that the prices entered therein do not represent real sales of cotton offered for sale on the dates upon which the price is entered. The Subordinate Judge, therefore, acted reasonably in taking a date in December when the market price of cotton was Rs. 330 as being the price at a date nearer the date of breach than the date on which the goods were actually sold in March.

(3.) The next point which has been argued before us is that the plaintiff is entitled to cartage upon the goods taken from Virudupatti to Tuticorin for which he claimed Rs. 265-12-0 in his plaint. The defendants contented themselves with a statement that the plaintiff was not entitled to any cart-hire and that the amount claimed was excessive. The goods were taken to Tuticorin because the defendants closed their branch of business at Virudupatti. The plaintiff alleged that the defendants asked him to deliver the goods at Tuticorin when they ceased to keep their branch open at Virudupatti. It was evidently on the defendants account that the goods were taken to Tuticorin and delivered there, and the defendants, as thev changed their place of business, must bear the costs incurred by the plaintiff in doing an act necessary on defendants account to be done for the performance of the contract. Although the plaintiff did not specifically include this claim for cartage among his grounds of appeal he appealed in respect of the whole amount claimed by him in the Lower Court which was disallowed. We must therefore allow his appeal in respect of the sum of Rs. 265-12-0, the details of which have not been questioned.