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Present: Schneider A.J.i
MENDIS & 00. v. THE HOLLAND CEYLONCOMMERCIAL CO.t-
151—C. B. Colombo, 7G9844*
Sate of goode—Agreement to seU a certain quantity at a specified price—Agreement of seUer with another person to supply the required quantityat a lower price—Refusal of buyer to accept delivery—Measure ofdamages.
Plaintiff entered into a contract with defendants to sell anddeliver a certain qutuitity of desiccated coconuts at 27£ cents apoon<L To £ovef"his contract with defendants the plaintiffpurchased from F at 19 cents a pound the quantity required.The defendants refused to take delivery of 2,730 pounds when Ftendered the same. F refused to deliver the rejected quantity tothe plaintiff. [Eke plaintiff sought to recover from defendants asdamages' a sum of Rs. 232*05r being the profit which he mighthave made had the defendant not broken the contract. ^
HeZd* that the measure of damages is governed by section 48 (3)of the Sale of Goods Ordinance of 1896. The fact that plaintiffdid not have the goods with him (owing* to the refusal of F to. deliver them to him), and that plaintiff could not, therefore, havere-sold the goods,, did not render section 48 inapplicable;
PJ^HE facts appear from the judgment.
H. Bartholomeuez, for defendants, appellants.Samarawichreme, for plaintiff respondent.
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1681. October 18,1921. Schheudeb A.J.
flj. By a contract In writing dated March £5, 1920, the plaintiff soldv.Tfo&ol- to the defendants at the rate of 27$ cents per pound 200 cases' ofdesiccated coconut, each case to contain 130 pounds. Delivery was<7o.to be made during the months of April and May, and^to be completed
by May 20. To cover his contract with the defendants theplaintiff purchased from Messrs. -Fradd & Co. at 19 cents per poundthe same quantity of the goods as that which he had sold to thedefendants. He stood, therefore, tomake a profit of 8$ cents perpound. The defendants wrongfully refused to take delivery of 21cases, containing 2,730 pounds, of the goods sold to them. For thisbreach of their contract the plaintiff in this action sought to recovera sum of E/S. 232*05, or the profit/which he might have made hadthe defendants not broken thei/contract, in their answer thedefendants pleaded that the ^damages which the plaintiff wasentitled to claim should not exceed Rs. 91. It is impossible fromthe answer to collect upon what basis this s uah had been arrived at.Having regard to the pleadings alone, it is quite evident that theparties were at issue as to wtyht should be the measure of damages;and that the plaintiff claimed as damages the profit he might havemade, and the defendants resisted this claiqs^eri^opt pleading whatShould be the measure off the damages. .^The issue framed waswhat damage has the plaintiff suffered ?
In my opinion nhe issues should have been :—
What should be the measure of damages ?
What sum is the plaintiff entitled to as damages ?
. The learned Commissioner gave judgment for the plaintiff for thegum claimed by* him, but not as loss of profit as claimed in theplaint. He thought that section 48 of the Sale of Goods Ordinance,No; 11 of 1896, had no application, inasmuch as the plaintiff had noopportunity of selling the 21 cases of desiccated coconut in the openmarket, because Messrs. Fr&dd & Co. refused to deliver them to theplaintiff himself in consequence of the refusal to accept on the partof the defendants.
Qa appeal, Mr. Bartholomeusz, for the defendants-appeliants,contended that the measure of the damages is governed by theprovisions of section 48 (3) of the Sale of Goods Ordinance of 1896.This contention appears to me to be right. I am unable to agreewith the learned Commissioner that section 48 does not applybecause the plaintiff did not have the goods, and therefore couldnot re-sell them and thereby mitigate the damages.
It is true that Messrs. Fradd & Co. refused to make delivery ofthe rejected goods to the plaintiff, and that their refusal was inconsequence of the act of the defendants in refusing to take deliverywhen tender was made. Bnt that fact .cannot operate to render theprovisions of section 48 inapplicable. That was an ulterior and
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remote consequence arising from an event subsequent to the breachfor which the defendants had not contracted to be liable. It seemsto me, therefore, upon the fads as proved, the measure of damagesM should be the difference between the contract price and the marketor current price at the time or times when the goods ought to havebeen accepted according to the time fixed for acceptance. I amunable to determine the amount of damages upon the evidence onrecord. The precise date of the breach is not given by the plaintiffnor by the defendants. From some evidence called by the: defendants they seem to have regarded the breach as having beencommitted in May, 1920, hut, on the other hand, their own documentD1 points to the breach as having been made-in April.
The decree must be set aside, inasmuch as the measure of damagesas claimed by the plaintiff, and as adopted by the Commissioner, areboth wrong. The case must go for re-trial, because the factsnecessary for assessing the damages have not been proved.
Mr. Samara wickreme, while admitting that the plaintiff couldnot in the circumstances of the case claim the profits he might havemade, sought to uphold the judgment upon the ground that thecase fell within the provisions of section .18, rule 5, of the Sale ofGoods Ordinance. He contended that the property in the goods hadpassed to the defendants, in that the goods had been unconditionallyappropriated to the contract with the implied assent of the buyer,and that the seller was entitled to maintain an action for the priceof the goods, but that in this case the plaintiff had obtained judg-ment only for a’part of that price. I am not certain that theargument is sound, but I need not consider it, as the plaintiff’saction is not for the recovery of the price or part of the price of thegoods, but for recovery of the profit which he has been deprived_ofmaking. If the plaintiff desires to make his claim upon that footing,he would have to re-cast his action. Such an alteration of sheclaim might give rise to a claim for the. delivery of the goods orother defences. I cannot uphold the decree cn the ground putforward by Mr. Samarawickreme. Whether in the circumstancesthe plaintiff should be permitted to re-cast his claim is a questionwhich should be raised and decided in the lower Court.
I set aside the decree and remit the case for assessment of damagesaccording to the measure I have indicated, unless the plaintiff isallowed to amend his plaint and the action has to be decided uponother issues. The costs of the trial already had and of this appealwill follow the order as to costs, which would be finally made by theCommissioner, or by this Court in the event of a second appeal.
Mentis Goo. The Hol-land CeylonCommercialCo-
MENDIS & CO. v. THE HOLLAND CEYLON COMMERCIAL CO