TRIBHOVANDAS NAROTTAMDAS Vs. NAGINDAS VIJBHUKANDAS

JUDGEMENT

(1.) The plaintiffs agreed to buy and the defendants to sell certain goods and entered into a contract. The important part of the contract ( I will leave out the earlier part with its usual preliminaries ) is: Ghaghrapat (cloth cases or bales 19 "Gin" at Re. 0-10-3, inches 34. The above- mentioned goods which are to arrive are sold (to you). Those purchased by us from Graham & Co. are sold to you. Shipment thereof January or February. And there are to be) two to three months in addition. To be delivered early if arrive early. To he delivered as and when the same may be received. To be delivered on the safe arrival of the steamer. Interest (at) eight annas. Sai (allowance) (at) Rs. 2 per case. Fresh clause:-If the goods to arrive come late the purchaser is to take (delivery of the same).

(2.) The case has never been separately tried and we have been dealing with it on the pleadings, the correspondence which ensued between the parties and the contract itself, the important part of which I have just read out. The contract was made on the 15th of September 1917. In July of the following year, i. e., 1918, correspondence between the parties began. It appears that by that time certain goods had been shipped by Graham & Co. to the defendants and it was known to the defendants that the goods were not by any means exactly of the description given in the contract. A sample arrival of the goods within the stipulated period; supposing the ship had been sunk, is it conceivable that under this contract the plaintiff could have claimed damages? As I said before if the seller likes to guarantee the arrival, there is nothing to prevent him from doing so. But that is not what one would expect a prudent man would do, certainly not in September 1917. It seems to me that the onus is really thrown on the plaintiff to show that his seller guaranteed the arrival of the goods and one would require plain wards in the contract to show that the seller had acted in such an imprudent fashion. It would be a different matter if the contract had been for the sale of so many tons or bales of a particular commodity of a particular shipment. Assuming , therefore, that the goods contracted for did not arrive, in my opinion the defendants were absolved from performing their contract and delivering the goods. The plaintiff, therefore, cannot make any claim for damages for non-delivery. The defendants counter-claim on the ground that the plaintiff was bound to take delivery with the allowance, his counsel said, would not be pressed if I found in the defendants favour on the question of the construction of the contract.

(3.) The suit will, therefore, be dismissed. 1 may note that the suit has really been tried on a demurrer and, if my decision is reversed, it will still be open to the defendant to prove the custom set up in the written statement and to prove his counter-claim. Plaintiff will have to pay defendants costs of the action. was sent by the defendants to the plaintiffs, and the defendants suggested that an allowance should be made; that the plaintiffs should take the goods with an allowance. This the plaintiffs declined to agree to on the ground that the goods, which were thus offered them, were not the goods they had contracted to take. Subsequently the goods arrived. The plaintiffs refused to take delivery of them, and now they have brought this suit claiming that the defendants have broken the contract and are liable to pay damages.