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Present: Drieberg J. and Jayewardene A.J.
SWAMINATHAN v. KARTJNARATNE et al.
42—D. C. Colombo, 22,398.
Motor bus—Contract of sale—Agreement to pay by monthly instalment—Vendor*8 right to take back bus on failure of instalment—Di$-cretionary right—Damages.
Where an agreement (or the sale of a motor bus provided interalia that the seller should have the right to resume possession ofthe bus cm failure of the buyer to pay any of the instalments ofthe purchase price,—
Held, that the right to resume possession was discretionary, andfailure to do so did not debar the seller from maintaining, anaction for the recovery of the purchase money.
A party to a contract is not bound to make speculative effortsto reduce damages.
^ PPEAL from a judgment of the District Judge of Colombo.
The facts appear from the judgment.
H. if. Bartholomews! (with R. C. Fonseka), for plaintiff, appellant.
if. V. Per era, for 1st defendant, respondent.
June 20, 1928. Jayewardene A.J.—
By agreement No. 143 dated May 20, 1926, the plaintiff agreedto sell andhanded overto the defendants a Brockwaymotor bus
No. C 5618for the priceof Rs. 5,500.A sum of Rs. 500 was paid
on the date of the agreement, the balance was to be paid in monthlyinstalments of Rs. 500 each. It was agreed, if the defendantsfailed to keep the bus in good running order or to pay all or any ofthe monthly instalments, that it shall be lawful for the plaintiff totake back possession of the bus at once without any notice to thedefendants wherever it be found and to sell it by public auction inpayment or part-payment of the price. The defendants paid theinstalmentsdue up to August and asum of Rs. 200out of the
Septemberinstalment.The plaintiffinstituted thisaction on
January 24, 1927, on the footing that the October, November,December, and January (1927) instalments and the Rs. 300 out ofthe September instalment, or in all Rs. 2,300, were due, and askingthat the bus be sold according to the terms of the agreement. The1st defendant filed answer pleading that in September, 1926, he
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requested the plaintiff to take back the bus and terminate theIMS.
agreement by forfeiting the sum of Bs. 2,200 already paid, or to sellthe said bus by public auction in terms of the agreement, but that nmas A.J.the plaintiff had failed to do so. The main issues tried werewhether the defendant tendered the bus to the plaintiff in September, nathan v.1926, or thereabouts; whether the plaintiff wrongly refused to take Karunarain*delivery; and whether the plaintiff was bound to accept it even ifthe defendant tendered the bus in September.
The agreement states that if the defendant failed to pay any of themonthly instalments, it shall be lawful for the party of the first part(that is, the plaintiff) to take back possession of the bus. The words€* it shall be lawful ” are simply permissive, but where a power isdeposited with a public officer for the puipose of being used for thebenefit of persons who are specially pointed out, and with regard towhom a definition is supplied by the Legislature of the conditionsupon which they are entitled to call for its exercise, that powerought to be exercised, and the Court will require it to be exercised.
(Julius v. Bishop of Oxford,1)
It can hardly be contended that on this private agreement it wasobligatory or imperative on the plaintiff to resume possession of thebus on the failure to pay the first- instalment. I am of opinion thatthe power was discretionary.
The plaintiff was therefore not bound to take the bus in September,and the fourth issue must be answered in his favour. The corre-spondence however shows that the defendant did not offer to returnthe bus in terms of the agreement. In his letter D 1 datedOctober 25, 1926, the 1st defendant wished the plaintiff to takeback the bus and release him of the burden, or else to reduce theinstalment by half, and he ends by asking for some sort of concession.
In his Proctor’s letter D 4 dated November 16, 1926, the plaintiffis requested to agree to one of three proposals—(1) to allow the defen-dant to pay monthly instalments of Bs. 250, (2) to retake posses-sion of the bus and forfeit the sum of Rs. 2,200 already paid bydefendant, or (3) to consent to the sale of the bus by public auction.
Nothing is said as to any deficiency by the sale of the bus, or asto the value of the bus, which was probably not worth Rs. 3,300 atthe time. The plaintiff was not bound to take back the bus or toconsent to a sale by public auction on those terms. It cannot,therefore, be said that the plaintiff wrongfully refused to takedelivery of the bus, and the second issue must also be answered inthe plaintiff’s favour.
It was contended that the defendant wag in a position to sell thebus to one Simian, and that the plaintiff should have enabled thedefendant to do so and thus minimize his loss. Simian states that
1 (1SS0) 3 App. Cases 214.
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he was willing to pay Es. 2,800 for the bus in about January orFebruary, 1927, The action was instituted on January 24, 1927.A party to a contract is not bound to make speculative attempts toreduce the damages, nor would be be justified in doing so. Theonus of showing that the damages could be minimized is on theparty asserting it. (Bank of China v. American Trading Co.1 andMichael v. Hart.3)
The defendant has failed to show that the plaintiff could havedone anything to mitigate the damages. On the contrary, thedefendant had taken the bus to the Southern Province and left itthere in a disabled condition. On March 17, 1927, the bus wasat the garage of one Carolishamy at the Weligama junction and thedefendant was unable to bring it to Colombo—according to theletter D 8 of 1st defendant’s Proctor; the plaintiff’s statement inhis plaint that he has not been able to see it at all after May 20,1926, is probably true.
In my opinion the appeal succeeds. The plaintiff is not entitled tojudgment for the instalments that fell due after action filed. Letjudgment be entered for the plaintiff as prayed, with the modificationthat the sum payable by the defendant to the plaintiff will beBs. 2,600, and not Bs. 3,600 as stated in paragraphs (a) and (e) ofthe prayer. The plaintiff is entitled to costs in both Courts.
Driebebg J.—I agree.
1 ((894) A.C. 264, 274
* (1902) 1 K. B. 4S2 G. A.