NIMBA LOTU PATIL Vs. MOTIRAM UKA PATIL

JUDGEMENT

(1.) The plaintiff in this suit seeks to recover damages for the breach of a contract of sale of 122 maunds of cotton. The contract of sale was made on the 5th of January 1911 and the weighment was completed on the 9th of January 1911. The contract of sale was then ended by an express agreement that the payment of the price and delivery were to be postponed for two or three days and that on payment of the price delivery was to be effected by substituting the defendant s board for the plaintiff s. It is thus clear that on the 9th of January 1911 the contract was completed and the property in the goods had passed to the defendant. Within a few days, however, the Courts below find, that the defendant committed a breach of this contract to the plaintiff s knowledge. The rights of the parties in these circumstances are quite clear. The goods belonged to the defendant. The plaintiff had the choice of two remedies: either to bring a suit for the recovery of the price, the action being then simply in debt; or after giving due notice to the defendant to sell the goods at the defendant s risk and should they not realise the contract price to recover from the defendant the difference. The plaintiff actually sent the defendant a notice on the 2nd of April 1911 and although the defendant refused to accept it, there can be little doubt that it reached him and being written on a post-card, that he read it. Now, a notice of this kind is made compulsory not in the interest of a plaintiff, situated as the plaintiff was here, but in the interest of the defendant; and the defendant certainly is not complaining that the plaintiff effected the sale too early but rather too late.

(2.) We are, therefore, very clearly of opinion that the plaintiff is entitled to recover from the defendant the difference between the contract price and the price which he realised for this cotton when it was sold at the defendant s risk on the 22nd of April after full and sufficient notice; and that is what he has claimed in this suit.

(3.) We must, therefore, reverse the decree of the Court below and award the plaintiff the full amount claimed less Rs. 86-4-0, to which the plaintiff is not entitled, with all costs throughout.