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Present: De Sampayo and Schneider JJ.
POOVILANGAM CHETTY v. ANTHONY.
216—D. C. Colombo, 3,077.
Contract to deliver naked mill oil at buyer's store.—Oil sent in bigcasks which buyer was unable to unload—Seller not bound to unload..or send oil in smaller easks t
Plaintiff entered into a contraet to supply to defendant, at hisstore, fifty tons of “ naked " oil, i.e., the oil was not to be deliveredin packages or casks, bnt the defendant was to receive the oilput it into his own vessels at his store. The plaintiff sent theoil in big casks, which defendant was not able to unload.
Held, it was not plaintiff's duty to unload, and that it was notplaintiff's duty-to send it in smaller casks.
THE plaintiff-respondent sued the defendant-appellant for iho..
recovery of a sum of Bs. 6,765 as damages due to him byreason of an alleged failure on the part of the defendant to acceptfifty tons of oil in terms of an agreement between the parties.
The defendant filed answer denying that the plaintiff made alegal tender of the oil, or that there was a breach of agreement.on thepart of the defendant. The defendant further claimed in r©con-vention a sum of Bs. 3,410.94 as damages sustained by him byreason of the plaintiff's failure to deliver the oil.
At the trial the following issues weire framed:-—
(1) Did plaintiff fail to tender the oil ?
Did defendant wrongfully refuse to accept the same ?
What damages, if-any, have either party suffered ?
. (4) Did the plaintiff deliver the oil according to the contract ?
The District Judge, after stating the facts, continued as-follows:—
The terms of the contract were that the plaintiff should deliverfifty tons of ordinary naked mill oil, of good merchantable quality,according to sample, at defendant's store at Mutwal, before October 5,1921, at Bs. 29.60 per cwt., less duty.
It is clear, from the evidence that the plaintiff had the oil ready fordelivery, that in fact he tendered oil in pursuance of the terms of thecontract to the defendant, and that the defendant refused to accept it.
The defendant admits that the oil ,was tendered, but his contentionappears to be that owing to the fact that the machinery at his disposal,for taking delivery of the oil, was out of order, the plaintiff should havecomplied with his request that the plaintiff should deliver the oilto him in small barrels, which he (defendant) would supply himself tothe plaintiff.
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MU,Now, the contract required the plaintiff to deliver " naked '* oil,
that i® to say, merely oil, and not any vessels to contain it, and so longaa the plaintiff delivered the oil at the defendant’s store in his ownvessels, he had fulfilled the requirements of the contract in regard todelivery.
The plaintiff did deliver the oil at the defendant’s store, but thedefendant refused to accept it for the reason stated above, and itappears to me that by such refusal the defendant committed a breachof the contract.
The plaintiff was, however, perfectly willing to oblige the defendant,and supply the oil to him thereafter in the defendant’s own vessels,subject to the conditions that he should not be ' responsible for anyleakage in course of transport, and that the oil Bhould be examinedand passed by the defendant at the plaintiff’s premises before it waitput into the defendant’s veBBelb.
Those conditions were quite reasonable ones, for, as the . plaintiffBtates, he could not tell what leakage might take place in the defendant’svessels, nor could he rely on the defendant's vessels being in such a condi-tion that the oil would not be contaminated by reason of thepresence of impurities in those vessels.
The District Judge answered issues (1), (2), and (4) in favour ofplaintiff, and gave judgment for him as prayed for, and dismisseddefendant’s claim in reconvention.
The defendant appealed.
Samarawickreme (with him Wijewardene), for defendant, appellant.
Hayley (with him Canjemanadan), for plaintiff, respondent.
December 4, 1822. Db Sampayo J.—
This is an action for breach of contract. The defendant, by awritten contract entered into through a broker, agreed to buyfrom the plaintiff, who is a millowner, 14 fifty tons ordinary naked milloil, of good merchantable quality, delivered at buyer’s store, beforeOctober 5, 1921.” The plaintiff brought this action for damageson the ground that the defendant failed to take delivery of theoil though tendered by him. On the other hand, the defendant’sdefence is that plaintiff failed to make delivery of the oil contractedfor, and he claims in his turn a sum of Bs. 3,410.94 in reconventionas damages for plaintiff's breach of the contract. It appears thatthe significance of the word ” naked ” in the description of thegoods in the contract is that the oil was not to be delivered inpackages or casks, but that the defendant was to receive the oiland put it into his own vessels at his store. The difficulty betweenthe parties arose from a tender of four tons of oil on September 22,1921. The plaintiff sent these four tons in four big casks, one ineach cart. They were taken to the defendant's store, but itwould seem that there was a conversation between the defendant’smanager and the carters as to the possibility of unloading the~&skB on to the defendant's store or the platfoizn …. Th«
( )manager remarked that the crane that was there was out of. order, tiand would not be able to lift a cask of the weight of the oaskB in de Rtwtvnwhich the oil was sent. The carter himself would seem to havelooked at the crane and agreed that the crane was out of order, poovtiaxgamThere was no suggestion as to any other way of talcing delivery, andthe carters took back the carts. Then ensued certain correspond-ence between the plaintiff and the defendant. In a letter writtenby the defendant on September 27, referring to the incident ofSeptember 22 at his store, he repeats that his' crane was out oforder, and suggests that plaintiff may put the oil into casks thatdefendant himself would send to the plaintiff's mills. Throughoutthe correspondence and the conduct of the parties it would seemthat the defendant’s standpoint was that the casks, big or small, inwhich the oil would be sent must be unloaded into his store or yard.
I do not think there was any obligation on the part of the plaintiffto do that. He was simply to deliver naked oil, and it was thedefendants lookout to receive and pour into such vessels as hechose, but as regards the defendant’s suggestion by his letter ofSeptember 27 the plaintiff was agreeable, and he said he wouldput the oil into defendant’s own casks if sent to his mills, but saidthat he could not guarantee the condition of defendant’s casks, andwished the defendant to be responsible for any leakage duringtransit from the plaintiff’s mills to the defendant’s store. It seemsto me that this was a reasonable request on the part of the plaintiff,but the defendant did not accept the suggestion, but insisted onthe oil being sent to his store in smaller -vessels, so that he may inhis turn fulfil a contract which he had entered into with a foreignfirm. There is no question that the plaintiff had the quantity ofoil ready for delivery all the time. In fact he was anxious thatdefendant should take delivery of the oil because as he indicatedin one of his letters, the oil was accumulating in his mills andcausing him inconvenience. In the later correspondence theplaintiff informed the defendant of that fact, and stated that heWas ready to deliver the quantity according to the contract, andasked for instructions. In fact, in the letter he said: " I herewithtender to you fifty tons, ” but there was no response of a favourablekind from the defendant, and the plaintiff was thereafter obligedto sell the oil at a public auction, at which a lesser amount than thecontract price was realized, and he now claims the difference. Itis further objected by the defendant that, although the plaintiffmay have had a sufficient quantity of oil to be delivered, he did not,in fact, tender delivery after the trouble over the first four tons,but I think the clear conclusion from all the correspondence isthat the defendant was not willing to accept delivery except in theform and manner he insisted upon. So, practically, there was afailure to accept the oil in terms of the contract. Another pointtaken by counsel is that, as a matter of fact, gome part of the oil
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that plaintiff proposed to deliver to the defendant was not goodDa Suoato merchantable oil of the quality contracted for. It appears thatwhen the difference arose between the plaintiff and the defendant,PoosQamgam the plaintiff took the precaution to get Mr. Simpson of the Chamberof Commerce to inspect the oil in his mills and to report. Mr.Simpson made a report certifying to the fact that there were fifty*four pipes containing fifty tons of oil, but he added that they weregood, merchantable, ordinary oil, except five pipes, which, however,the plaintiff was willing to replace. Mr. Simpson did not appearpersonally in Court, but even accepting as proved that the qualityof five pipes was not in accordance with the contract, this is amercantile transaction, and the plaintiff was within his right to replace. any portion that was objected to as being inferior. The fact is thatno difference arose between the parties on such a ground. .Thepoint has not been well investigated, and I do not think , that adefence to the plaintiff's action arose from the report of thesurveyor. I think, on the issues framed, the District Judge's judg-ment is quite right, and in my opinion this appeal fails, and shouldbe dismissed, with costs.
Schneider J.—I agree.
POOVILANGAM CHETTY v. ANTHONY