COOVERJEE BHOJA Vs. RAJENDRA NATH MUKERJEE

JUDGEMENT

(1.) This is a suit by the buyers to recover damages against the seller for breach of contract for nondelivery of certain manganese ore. The contract was entered into through a firm of brokers, Messrs. Buskin & Co., and is in the following terms: Calcutta: Messrs. Martin & Co. 22 August, 1906. Dear Sirs, We have this day bought by your order and on your account from Messrs. Cooverjee Bhoja, 19, Pollock Street, The following manganese ore 5,000 tons at Rs. 14 per ton in waggons. The ore to be delivered at Kamptee or other neighbouring station, B.-N. Railway, 500 tons in October, 1,000 tons in November, 1,500 tons in December 1906, or larger quantities each month if practicable, the whole 5,000 tons to be completed not later than the 15 February 1907. Quality of ore to be similar to that shown by the analyses already taken, copies of which are hereto attached. Buyers or other representatives to sample and analyse each parcel at place of delivery and such quantity only as may be approved by buyers to be despatched. Should the ore be found on analysis to contain less than (50 per cent.) fifty per cent. of manganese, the seller agrees to give an allowance of six (6) annas per unit for the inferiority.

(2.) To the bought note sent to the plaintiffs, Messrs. Martin & Co., were attached two copies of certain analyses which had been made on behalf of the defendant of the ores from his mines. No such copies were attached to the sold note as the defendant had the original analyses in his possession.

(3.) The suit came on for hearing before Harington J. who gave judgment in favour of the plaintiffs for Rs. 25,000 and costs. Against this judgment the defendant has appealed., Upon the appeal coming for hearing before us, three questions have been argued on behalf of the appellant: (i) Whether there was any concluded contract between the parties by reason of the fact that no copies of the analyses were attached to the sold note? (ii) Whether, if there was a valid contract, the tender of certain ore, known as Domree ore, was a good tender within the meaning of the contract? (iii) As to the principle on which the learned Judge has assessed the damages.