(APPANA) VENKATASUBBA RAO Vs. RIPLEY & CO

JUDGEMENT

(1.) This appeal arises out of a suit filed by plaintiffs against the defendants claiming Rs. 6,215 as damages for non-performance of a contract to deliver jute. The contract sued upon is marked as Ex. A and is dated 3 September 1925. Under that contract the defendants promised to deliver 224 candies of jute at Rs. 90 per candy of 506ths delivery to be completed before 30 September 1925, A portion of the goods was delivered before 30 September 1925 and after that date some further quantity was delivered. According to the plaintiffs, defendant 1 delivered from 17 September 1925 to 31 October 1925, 111 can dies. In para. 5 of the plaint the plaintiffs state: Defendant 1 has been demanded by letter dated 25 November 1925 to deliver the balance of jute on or before 30 November 1925 but defendant 1 has not complied with the same and has committed default in fulfilling the terms of the contract.

(2.) Then the plaintiffs claim as damages in respect of the undelivered goods the difference between the market price on 30 November 1925 and the contract price, the market price being Rs. 145 per candy. The plaintiffs filed an additional statement dated 21 February 1927 stating that although the delivery was fixed for 30 September 1925 time was extended to 30 November 1925 at the request of defendant 1. They then state that defendant 1 met one C. Sanjiva Rao Naidu and asked him to extend the time. Finally they state: In the mon November, in Bimilipatam defendant 1 met Mr. Manfield in the street and was asked by him when he would complete his contract. Defendant 1 replied that he need not trouble. Mr. Manfield said he did trouble because very little jute left and that if the contract was not completed within the next few days a registered notice would be sent. The plaintiffs waited till 25 November 1925 and issued a notice demanding delivery on or before 30 November 1925.

(3.) In the written statement defendant 1 admits that he did not deliver more than 111 candies. He does not deny the fact that deliveries were continued to be made after 30th September, the date fixed in the contract for performance. His case is that there was no contract to extend the time and that damages should be assessed as on 30 September 1925. The Subordinate Judge assessed damages on 31 October 1925 on the ground that there was extension of time till that date, the defendant making deliveries and the plaintiffs accepting them till then, and passed a decree for Rs. 3,955. Against this decree the defendants appeal.