OBLA K SUBBIER Vs. CMVENKATACHALAPATHI AYYAR

JUDGEMENT

(1.) The contract between the plaintiffs and the defendants was for the sale of 25 bales of yarn to be delivered at the plaintiffs godown at Madura. The defendants paid an, advance of Rs. 1,250. The price at which the goods were to be sold was Rs. 13-2-0 per bundle that is, at the rate of 89 bundles to the bale, Rs. 1,050 per bale. No time was fixed for performance, but the terms of the contract were that the plaintiffs were to intimate the arrival of the bales from the Madura Mills and that the defendants, next day, were to bring the pride and take delivery of the goods. The terms are contained in a letter (Ex. A) written by the plaintiffs agent to the defendants. The defendants accepted 3 bales of the total consignment of 25 bales, and the present suit relates to the remaining bales. As regards 7 of the remaining bales the plaintiffs give notices in their letters Exs. D, G, G1 and G2 but the defendants failed to take delivery. The Subordinate Judge awarded damages to the plaintiffs as regards these 7 bales, calculating the prevailing price at Rs. 9-4-0" at the difference between that and the contract rate of Rs. 13-2-0. In respect OF the remaining 15 bales, the plaintiffs suit was dismissed,

(2.) The defendants appeal and the plaintiffs file a memorandum of objections. As regards the 7 bales, the arrival of which the plaintiffs announced to the defendants, the defendants Vakil's argument is that there was no compliance with the terms of the contract, because the plaintiffs failed to prove that they had goods in their hands available for delivery. On receiving a letter of advice, the defendants were entitled to proceed to the plaintiffs godown and inspect the goods before taking delivery. It has not been established in the present case that the goods never reached the plaintiffs godown, or that they would not have been available if the defendants had applied for delivery. The defendants do not say that they went and saw the plaintiffs godown and found it empty. The conclusion of the Subordinate Judge that the defendants failed to substantiate this contention that the letters of advice were not in accordance with the terms of the contract appears to be correct.

(3.) As regards the rate at which damages were calculated, the evidence of P. W. No. 1 is that the price fell in October to Rs. 12, and Rs. 12-8/and in November to Rs. 9 and Rs, 9-8. Plaintiff's witness No. 2 says 1 hat the price on the 8 of Mast, that is on the 19 February was Rs. 9-4. As the price in November about the time when defendants failed to take delivery had fallen and then varied between Rs. 9 and Rs. 9-8, I think that the Subordinate Judge was right in taking Rs. 9-4 as the mean between these prices, and in calculating damages on the difference between that rate and the contract rate and that he was not misled by referring to the price prevailing at the time when the plaintiffs treated the defendants as having broken their contract through the letter, Ex. II of February 17, 1919. The plaintiffs are not entitled to damages in respect of the remaining 15 bales in respect of which they gave no notice of arrival. Defendants also are not entitled to damages in respect of these 15 bales as they suffered no loss.