HOW ABU C.J.—Amarasuriya and Don Elaris.
1944Present: Howard C.J. and Wijeyewardene J.
AMARASURIYA, Appellant, and DON ELARIS, Respondent.
14-—D. C. Colombo, 13,454.
Contract—Sale of ehests for immediate delivery—Agreement for postponement of
delivery—No variation, of contract—Measure of damages.
The plaintiff bought of the defendant five thousand chests on contractnotes dated June 11, 1941, and June 30, 1941, delivery of the chests to beimmediate.
On plaintiff’s request for delivery within the period of the contract,the defendant asked for an extension of the time of delivery and theplaintiff agreed to a postponement of delivery till September, 1941.
Held (in an action by plaintiff for damages for breach of contract),that the original contract was unaltered and that the new arrangementwith regard to delivery had reference only to the mode of performing it.
Held, further, that the plaintiff was entitled to damages assessed on – the-basis of the difference between the contract price and the market pricein September, 1941.
A PPEAL from a judgment of the District Judge of Colombo.
C. Thiagalingam (with him E. F. N. Gratiaen), for the defendant,appellant.
H. V. Perera, K. C. (with him N. M. de Silva and R. N. llangakoon), forthe plaintiff, respondent.
Cur. adv. vult.
October 13, 1944. Howard C.J.—
The defendant in this case appeals from the judgment of the AdditionalDistrict Judge, Colombo, ordering him to pay the plaintiff the sum. of
HOWARD C.J.—Amarasuriya and Don Elaris.
Rs. 6,149.50 and costs and dismissing his claim in reconvention. Theplaintiff brought his action on two contracts dated June 11, 1941, andJune 30, 1941. These contracts were contained in two notes “ P 1 ” and“ P 2 ”, signed by the defendant, and are as follows: —
Don Elaris & Son.
24, Alston Place,Cinnamon Cardens,Colombo, 11th June, 1941.
B. Amarasuriya & Co.,Poster Lane,Maradana.
With reference to the writer’s .telephone conversation with yourMr. B. Amarasuriya this afternoon, we confirm the sale of 5,000 No. 1Pull Chests @ Rs. 2/25 each. (Pive thousand) Immediate delivery.
Yours faithfully,Don Elaris & Son,Sgd. (Illegible).”
24, Alston Place,Cinnamon Gardens,Colombo, 30th June, 1941.
” P 2.
Don Elaris & Son.
Messrs. B. Amarasuriya & Co.,Poster Lane,
With reference to your Mr. B. Amarasuriya’s telephone conversationwith the writer, we confirm the sale of 5,000 (Five thousand) New MomiFull Chests in shooks, No. 1 Qty @ Rs. 2/25 each immediate delivery.
Yours faithfully,Don Elaris & Son,Sgd. (Illegible). ’'
The defendant delivered 2,250 of .the 10,000 new Momi Chests to besupplied under the two contracts, and the plaintiff has brought this actionclaiming damages, for the failure of the defendant to deliver the remaining7,750 chests. In finding in favour of the plaintiff the learned Judgehas held that the defendant in breach of contract failed .to deliver 7,750chests and, so far as damages are concerned, the plaintiff is entitled toclaim the difference between the contract price of the chests, priceRs. 2.25, and the market price in September Rs.- 3.75. Giving thedefendant credit in Rs. 5,762.50 the value of the 2,250 chests delivered,and Rs. 413, value of goods supplied, he finds that there is a sum ofRs. 6,149.50 due to the plaintiff. The defendant in reconvention claimedthe sum of Rs. 5,475.50 the value of the 2,250 chests, supplied under thecontract.
490HOW ABO C.J.—Amarasuriya and Don Elaris.
The facts with regard to the delivery of the chests under the contractsare as follows: On June 11, 1941, the day of the first contract, the 'plaintiff wrote P 3 asking the defendant to deliver the 5,000 chests.According to the plaintiff no chests were sent to him on that deliveryorder. The receipt of this delivery order was admitted by the defendant’sCounsel. A further delivery order “ P 4 ” was sent to the defendanton July 7, 1941. The plaintiff is unable to say whether he was suppliedwith any chests on “ P 4 In fact no witness is in a position to sayon which day the 2,250 chests were delivered. On August 15, 1941,the plaintiff wrote “ P -5 ” to the defendant. In this letter he referredto the two contracts and stated that only 2,000 chests had so far beendelivered and although the plaintiff’s lorry had on several occasionscalled for the balance, the defendant had failed to deliver a single chest.The plaintiff also warned the defendant that, unless arrangements weremade for the delivery of the balance, he would be compelled to buy themelsewhere. The defendant replied to this letter by “ P 6 ” dated August"19, 1941, in which he stated that, the plaintiff was having 20,000 chestslanded by ss. Hakono Maru. Also that the defendant expected 50,000chests on orders, but could not say when they would arrive. Also thatthe defendant could have delivered another 4,000 chests if the plaintiffhad sent for them prior to July 15. The defendant further said that hewould supply the plaintiff if he received the expected shipment by thess. Hakodato Maru. The plaintiff replied to “ P 6 ” by P 7 ” datedAugust 21, 1941. In .this letter the plaintiff pointed out that thedefendant sold for immediate delivery of 10,000 chests and that theexpected arrival of other chests had nothing to do with this purchase.The plaintiff also said that in view of present conditions he was preparedto wait unt.il September 5 for the delivery of the balance of 8,000 chests.After this date the plaintiff would purchase them elsewhere on thedefendant’s account and at his risk. On August 21, 1941, the plaintiffsent the defendant a further delivery order for 250 chests, “ P 9 ”, andon August 27 one for 1,000 chests, “ P 10 ”. Delivery of 250 chests wasmade on “ P 9 ”. With regard to ” P 10 ” the defendant replied by“ P 11 ” of the same date stating that he had not a single chest in stockand that he was entirely dependent on the arrival of the shipment byss. Hakodato Maru. On September 16, 1941, the plaintiff’s Proctorby ‘ ‘ P 14 ” claimed damages from the defendant by reason of his failureto deliver 7,750 chests. By “ P 15 ” of September 18, 1941, the defendantpleaded for further time for delivery of the chests. By P 16 ofSeptember 23, 1941, the defendant’s Proctor wrote to the plaintiff’sProctor alleging that the position which had arisen was partly causedby the plaintiff's failure to take delivery in July and August whendeliveries were not according to the plaintiff’s requirements. In .thisletter the defendant’s Proctor contended that the defendant was in aposition to make immediate delivery after the making of the contracts.It was also urged that further chests on order from Japan had notmaterialized for reasons over which the defendant had no control. Inthese circumstances it was contended that the defendant was relievedfrom any obligation to deliver the balance. The letter also containeda plea for further time to supply the balance. On October 2, 1941, .the
HOWAED C.J.—Amarasuriya and Don Elaris.
plaintiff by “ P 17 ” wrote to the defendant repudiating the allegationmade by the latter’s Proctor in “ P 16 ” and offering to give the defendantfurther time to deliver the balance on condition that “ P 16 ” was with-drawn and the defendant agreed to pay Rs. 8,087 in the event of a failureto deliver the balance of the chests by the end of October. By “ P 20 ”of October 17,1941, the defendant’s Proctor informed the plaintiff’s
Proctor that the defendant could not agree to the proposal contained in“ P 17 ”.
Before the District Judge, and in this appeal, Counsel for the defendantmaintained the position that had been put forward by the defendant'sProctor in “ P 16 ”. This position may be summarized as follows : —
The contract was not for sales of “ specified ” or ascertained
The defendant had at the time of the contract enough stocks from
which the plaintiff could have taken delivery within contracttime.
There was no obligation on the part, of the defendant to keep stocks
after the expiry of the contract time. No request was madeto the defendant to extend the time allowed to the plaintiffto take delivery.
“ Immediate ” delivery means delivery within a week or ten days.
In exceptional eases and by arrangement an extension of oneweek may be allowed.
Even if the defendant did not have the chests available for delivery,
damages claimed by the plaintiff should be ascertained on thebasis of difference between contract rates and market valueat the dates of expiry of contract times.
(/) If the contracts were regarded as subsisting after July 27, .there hasbeen frustration of the contracts by reason of the “ freezingorders ”.
The learned District Judge has found that the plaintiff did not postponetaking delivery and hence the contract was not extinguished by anydelay on his part in taking delivery. In my opinion that finding cannotbe challenged. The two contracts were made respectively on June 11and 30. Between these two dates no deliveries were made. Neitherduring this period nor at any time did the defendant require the plaintiffto take delivery nor ask him why he did not take delivery. On the otherhand on August 15, 1941, by “ P 5 ” the plaintiff complained about thenumber of chests so far delivered in the following terms: —
We have to refer you to your letters dated 11th and 30th June,1941, regarding 10,000 Momi Full Chests No. 1 quality sold to us forimmediate delivery. Of this amount we have .taken delivery of 2,000chests only. Although our lorry has called for the balance on severaloccasions you have failed to deliver to us a single chest. Unless youmake arrangements to give us delivery of the balance 8,000 chestswithin a week on receipt of this letter, we shall be reluctantly compelledto buy them elsewhere on your account.
HOWARD C. J.—Amarasuriya and Don D laris.
We may mention that these chests were sold to us for immediatedelivery and therefore should have been available to us when our lorrycalled for them and also could not have been disposed of withoutreference to us.
The delay in delivering these chests has placed us in an awkwardposition with our customers whose orders we had accepted against ourpurchase from you.”
The reply, “ P 6 ”, to this letter is instructive. It suggests that deliverycould have been made of another few thousand chests prior to about'July 15, if the plaintiff had sent for them. There is not a suggestion.that the defendant had called on the plaintiff to take delivery and the'latter had refused to do so or asked that delivery should be postponed.Moreover at the end of the letter there is a reference to difficulties overthe Japanese shipments and a request for forbearance by the plaintifffor any irregularity on the part of the defendant. It was not until thedefendant’s Proctor wrote “ P 16 ” of September 23, 1941, that anysuggestion was made of the plaintiff’s responsibility for the delay intaking delivery. The fact that this letter was written is all the moreremarkable inasmuch as on September 18, 1941, the defendant hadwritten “ P 15 ” asking for time until the end of October to deliver thebalance. No suggestion was made in this letter that the plaintiff was inany way responsible for the delay in taking delivery. The defendantdoes not admit the receipt of ” P 7 ”, the plaintiff’s reply to ‘‘P 6 ”. Thisletter was duly registered and must have been received by the defendant.In it the plaintiff asks why his lorry was sent back on July 7 without the5,000 chests called for by his order of June 11, 1941. The plaintiff alsostated he was prepared to give the defendant time until September 5,1941, for the delivery of the 8,000 chests. In the light of the factsrelating to the delivery of the chests it is now relevant to consider theposition which has been taken up by the defendant. His Counsel hascontended that whether the plaintiff failed to take delivery or the defend-ant to make delivery the contract must be regarded as cancelled at somedate in July and damages assessed as if cancellation took place at suchdate. Section 50 of the Sale of Goods Ordinance is as follows: —
“ 50.(1) Where the seller wrongfully neglects or refuses to deliver
the goods to the buyer, the buyer may maintain an action against theseller for damages for non-delivery.
The measure of damages is the estimated loss directly andnaturally resulting, in the ordinary course of events, from the seller’sbreach of contract.
Where there is an available market for the goods in question,the measure of damages is prima facie to be ascertained by thedifference between the contract price and the market or current priceof the goods at the time or times when they ought to have beendelivered, or, if no time was fixed, then at the time of the refusal todeliver. ’ ’
Mr. Thiagalingam maintains that the words “ immediate delivery ” in thecontract introduce a mercantile custom that the goods must be deliveredwijbhin a week or 10 days of the contract. Hence, delivery should have
HOWARD C.J.—Amaraswriya and Don Elaris.
been made in the case of the first contract by about June 18 and in th^.case of the second contract by July 7. Delivery not having been somade the breach of the contract took place on those days and havingregard to section 50 (3) of the Ordinance the damages must be ascertainedby reference to the market or current prices on those days. It may besaid at this stage that the prices had risen very considerably in September.I do not think that the defendant has proved the existence of anymercantile custom by which “ immediate delivery ” meant deliveryjvithin 7 or 10 days. In support of this contention he called Mr. Englandof the Commercial Company who stated that, as far as his Companywas concerned, 5,000 chests would generally be delivered within a week.But He also stated that to a certain extent the period of delivery woulddepend on the number of lorries available and the'buyer’s requirements.If keeping a buyer’s chests did not inconvenience the Company and theywanted to oblige the client, they would keep the chests for two weeksbut not beyond that.
Even if it is assumed that strict compliance with the terms of thecontract necessitated the use of the term ‘•immediate delivery” beingtranslated into an obligation to deliver within a week or ten days, it isnecessary to consider what was the effect of the conduct of the partiesto this contract on this obligation. No demand was made by thedefendant that the plaintiff should take delivery nor until August 15,1941, did the plaintiff call the defendant to account for non-delivery ofthe balance. In this connection section 12 (1) of the Ordinance is wordedas follows: —
“ Where a contract of sale is subject to any condition to be fulfilledby the seller, the buyer may waive any condition, or may elect to treatthe breach of such condition as a breach of warranty and not as aground for treating the contract as repudiated.”
If the defendant was under an obligation to deliver in July, the plaintiffin my opinion waived that obligation and did not treat the contract asrepudiated until his Proctor wrote “ P 14 ” of September 16,1941.
It is, however, contended by Mr. Thiagalingam that this waiver amountedto a variation of the written contracts of June 11 and 30, and such varia-tion could only be evidenced by a written agreement. In this connectionhe refers to section 5 (1) of the Ordinance which is worded as follows: —
“ A contract for the sale of any goods shall not be enforceable byaction unless the buyer shall accept part of the goods so sold, andactually receives the same, or pay the price or a part thereof, or unlesssome note or memorandum in writing of the contract be made andsigned by the party to be charged or his agent in that behalf.
In support of this contention the case of Hai~risons & Crosfield, Ltd. v.Adamally & Go.1 was cited. In this case it was held that where there isdefault in delivery of the goods within the contract period and nosubsequent requests on the part of the vendor to extend the time fordelivery, the measure of damages is the difference between the contract
1 5 C. W. S. 232.
HOWARD C.J.—Amarasuriya and Don Elaris.
price and the market price when the goods ought to have been delivered.
In his judgment at page 235, Shaw J. stated as follows: —
“ There is no evidence from which any new contract, subsequentto the breach, cam properly be inferred for the delivery of the balanceof the chests at a subsequent date nor indeed could any such contractbe enforced in the absence of a note or memorandum in writing signedby the defendants or their agents.”
Mr. Thiagalingam in regard to the present case maintains there is no notesigned by the defendant from which any new contract subsequent to thebreach can be inferred. Shaw J. in coming to this conclusion differentiat-ed the case before him from the cases of Ogle v. Earl Vane 1 and Hickmanv. Haynes 2. In Ogle v. Earl Vane the defendant by bought and soldnotes contracted to sell to the plaintiff 500 tons of iron, delivery to extendto July 25. Owing to an accident to his furnaces the defendantdelivered none of the iron by that date nor up to February followingwhen the plaintiff went into the market. At the trial, from correspond-ence between the parties, it appeared that the defendant repudiated hisliability on the ground that non-delivery was due to inevitable accident,but proposed that the plaintiff should take iron of a different quality.This offer was declined by the plaintiff. It was held that there wasevidence from which the Jury might infer that the plaintiff’s delay wasat the defendant’s request; that, as the evidence went to show, not anew contract, but simply a forbearance by the plaintiff at the request ofthe defendant, the Statute of Frauds did not apply; and that theplaintiff was entitled to a verdict for the full measure of damages, that isto say the difference between the contract price and the market price inFebruary when he repudiated the contract. In his judgment at page279, Kelly C.B. stated as follows: —
“ But the case does not stop there; there is the letter of December29, pointed out by my brother Keating, which shows that a personalcommunication had taken place between the brokers, or one of them,and Shaw, the defendant’s agent, and the broker had been informedthat it would take three months to put the furnaces in repair, andthat this information had been communicated to 1 all ’ the brokers’
‘ friends ', of whom the plaintiff was one, and they had waited for thethree months and more. Surely, again, this communication, from thedefendant implied a request to the plaintiff and the other parties toforbear, and the plaintiff’s waiting was an acquiescence in this request.Can it reasonably be contended that that which has been called a ruleof law as to the measure of damages, but which is rather a mere rule ofpractice, is to prevail under all circumstances ? It would be contraryto common sense and justice, when there has been a series of proposalsby the defendant involving delay for his own benefit, and acquiescenceon the part of the plaintiff, that because there may be no bindingcontract, varying the terms of the former contract, the plaintiff is to betied down to the strict letter of the rule as to the measure of damagesfor the non-delivery of goods, and not be entitled to the damagesconsequent upon the delay. I think, without entering into the question
' * 1868 L. R. 32. Q. B. 272.
2 L. R. 10. C. P. 598.
HOWARD C.J.—Amaras-uriya and Don E laris.
whether there is such a positive rule of law or not, we cannot do other-wise, under the circumstances of the present case, than hold theplaintiff to be entitled to the larger measure of damages.”
The same principle was applied by the Judges in Hickman v. Haynes(supra) in which Findley J. at page 603 stated as follows: —
“ The proposition that one party to a contract should thus dischargehimself from his own obligations by inducing the other party to givehim time for their performance, is, to say the least, very startling,and if well founded will enable the defendants in this case to makeuse of the Statute of Frauds, not to prevent a fraud upon themselves,but tg commit a fraud upon the plaintiff. It need hardly be said thatthem must be some very plain enactment or strong authority to forcethe Court to countenance such a doctrine.
The Statute of Frauds contains no enactment to the effect con-tended for. The utmost effect of the 17th section is to invalidateany verbal agreement for the sale of goods in certain cases; and,even if a verbal agreement for extending the time for the delivery ofgoods already agreed to be sold is within the statute—as to which seeper Martin B., in Tyers v. Rosedale and Ferryhill Iron Co. (L. R. 8. Ex305 in error, L. R. 10 Ex. 195) and Leather Cloth Co. v. Hieronimus1the plaintiff in this case is not attempting to enforce any such verbalagreement, but is suing on the original agreement which was inwriting.”
The following passage at page 605 from the said judgment is alsorelevant: —
“ The result of these cases appears to be that neither a plaintiffnor a defendant can at law avail himself of a parol agreement to varyor enlarge the time for performing a contract previously entered intoin wilting, and required so to be by the Statute of Frauds. Butso far as this principle has any application to the present case, itappears to us rather to preclude the defendant from setting up anagreement to enlarge the time for delivery in answer to the plaintiff’sdemand, than to prevent the plaintiff from suing on the originalcontract for a breach of it. There was, in truth, in this case nobinding agreement to enlarge the time for delivery. The county courtjudge finds that the plaintiff permitted the defendants to postpone,for their own convenience, the acceptance of the iron in dispute,and that the voluntary withholding delivery at the request of thedefendants was usual in the ordinary course of dealings of a similarkind in the iron trade. This finding, in fact, shows that at any timein June either party could have changed his mind, and required theother to perform the contract according to its original terms; seeTyers v. Rosedale and Ferryhill Iron Co. as decided in error, reversingthe decision below. (L. R. 8 Ex. 305.)”
It is interesting to note that in Ogle v. Earl Vane (supra) the request forforbearance was made by the vendor after the contract had been broken,whilst in. Hickman v. Haynes (supra) the request was made by the
1 L. R. 10. Q. B. 140.
8 L. R. 10 Ex. 195.
HOWARD C.J.—Amarastiriya and Don Elans.
purchasers both before and after the time for completing the contracthad expired. Lindley J., in his judgment, at page 606, states that thisdistinction does not appear to the Court to be material.
A number of cases on tbis matter were reviewed in exhaustive mannerbv McCardie J. in Hartley v. Hymans1. In this ca-se, it was held asfollows: —
“ Where, after the expiration of the period of delivery fixed by acontract for the sale of goods, the buyer by his letters and conductleads the seller to entertain the belief that the contract still subsistsand to act upon that belief at serious expense to himself, a new agree-ment may be implied that the period for delivery is extended and thatdelivery may take place within a reasonable time of which notice. i$to be given by the buyer to the seller.*’
The facts were as follows: —
“ By a contract coming within section 4 of the Sale of Goods Act,1893, and duly made in writing, the plaintiff agreed to sell to thedefendant 11,000 lbs. of cotton yarn, delivery to begin in September,1918, and to be at the rate of 1,100 lbs. per week, failure to deliverwithin the stipulated time to render the contract liable to cancellationby the defendant, and incomplete deliveries not to be taken intoaccount- Delivery should have been completed by November 15,1918. The plaintiff delivered no yarn till October 26, 1918, when hedelivered 550 lbs., and thereafter on various dates from the end ofNovember, 1918, to the end of February, 1919, he delivered sevenfurther quantities averaging upward of 500 lbs. each. During all thisperiod and the early part of March, 1919, the defendant by his letterscomplained of the delay and asked for better deliveries, but thereby ledthe plaintiff to entertain, the belief that the contract still subsisted,and to act upon that belief at expense to himself. On March 13, 1919,the defendant, having given no previous notice requiring delivery inany reasonable time, wrote to the plaintiff cancelling the order, andhe thereupon refused to take any further quantity of the yarn. Theplaintiff brought an action against the defendant for damages forrefusing to take the remainder of the yam.”,
After reviewing a number of cases McCardie J. held as follows: —
‘ ‘ (1) That the defendant waived his right to insist that the contractperiod terminated on November 15, 1918. The waiver is evidencedby writing, even though it took place after November 15. Waiver isnot a cause of action but a man may be debarred by the doctrine ofwaiver for asserting that an original condition precedent is still operativeand binding. In view, moreover, of the fact that the plaintiff acted(at great expense to himself) upon the footing that the waiver hadtaken place, it would, I conceive, be wrong to allow the defendant toinsist on the terms of the original contract as to time.
(2) I hold that (in so far as estoppel differs from waiver) thedefendant is estopped from saying that the period for delivery expiredon November 15, 1918, or from asserting that the contract ceased to
* (1920) 3 K. B. 475.
HOWAED O.J.—Amarasuriya and Don Elaris.
be valid on that date. Inasmuch as the defendant led the plaintiff tobelieve by letter, as well as conduct, that the contract was still subsist-ing, and inasmuch as the plaintiff acted on that belief at serious expenseto himself, it would be unjust to allow the defendant to assert that thedelivery period ended on November 15. I shall apply to this casethe principle asserted by the Court of Appeal in Bentsen’s Case1 andapproved by the Court of appeal in Panoutsos Case2.
I hold that upon the letters passing between the parties I can,and ought to, imply a new agreement that the contract period shouldbe extended beyond November 15, 1918—i.e., until the defendant hadgiven a notice to the plaintiff requiring delivery within a reasonableperiod. I here imply such agreement.”
The position that has arisen in this case is, I need hardly say, differentfrom that in Hartley v. Hymans (supra). In both eases it is the sellerwho was in default in making delivery on the contract date. In bothcases the buyer failed on such default to repudiate the contract andcontinued business on the assumption that the contract was still alive.On the other hand in this case it is not, as in Hartley v. Hymans (supra)the buyer who is seeking to maintain that the breach of the contract tookplace at the earlier date, but the seller who is in default. In thiscase the defendant, the seller, showed by his conduct and his lettersthat the contract was still subsisting. Hence it would be unjust to allowhim to assert that the delivery period ended in July. In my opinionHartley v. Hymans, Ogle v. Earl Vane and Hickman v. Haynes (supra) areall authorities that lend support to the contentions pih forward on behalfof the plaintiff.
The principle laid down by McCardie J. also receives support from twocases duly considered by him in the course of his judgment. The first ofthese cases was Bentsen v. Taylor Sons <& Co. (supra). This was a charterparty case in which the ship sailed a month later than the contract date-The defendants, the charterers, therefore, had the right to repudiate. Theydid not do so. It was held that the conduct of the defendants amountedto a waiver of such right to repudiate and that they were liable for freight-under the charter party, but were entitled as against the plaintiff to suchdamages as they could prove they had sustained by reason of the breachof the condition. In the course of his judgment Bowen L.J. stated thelaw as to waiver thus : —-
” Hid the defendants by their acts or conduct lead the plaintiffreasonably to suppose that they did not intend to treat the contractfor the future as at an end, on account of the failure to perform thecondition precedent?
The second of these cases is Panoutsos v. Raymond Hadley Corporationof Hew York (supra) in which the dictum of Bowen L.J. in Bentsen v.Taylor Sons & Co. (supra) was cited with approval by Lord Reading C.J-
(1893) 2 Q. B. 274, 283.
(1917) 2 K. B. 473.
HOWAB.D C.J.—Amarasu-riya and Don Elcris.
In support of his contention Mr. Thiagalingam also cited the ease ofPlevins v. Downing I. The plaintiffs in this case were the vendors, andfailing to deliver pig-iron in July were in default. In October a verbalarrangement was made by the parties for delivery after this date. Theplaintiffs, thereupon, forwarded iron which the defendant refused toaccept. The plaintiffs failed in their action because they were unable to-show that they were ready and willing to fulfil the original contract andbecause the incident in October consisted of a verbal arrangement only.In the opinion of McCardie J. Plevins v. Downing (supra) decides that anew binding agreement cannot, when the Statute of Frauds applies, <be made by mere conduct or by word of mouth either before or after thecontract has expired. In order to show that there is nothing in Plevins v.Downing (supra) contrary to the contention put forward by the Counselfor the plaintiff I need only cite the following passage from the judgment<of Brett J.: —
“ Where the vendor, being ready to deliver within the agreed time,is shown to have withheld his offer to deliver till after the agreed timein consequence of a request to him to do so made by the vendee beforethe expiration of the agreed time, and where after the expiration of theagreed time, and within a reasonable time, the vendor proposes todeliver and the vendee refuses to accept, the vendor can recoverdamages. He can properly aver and prove that he was ready andwilling to deliver according to the terms of the original contract.He shews that he was so, but that he did not offer to deliver withinthe agreed time because he was within such time requested by thevendee not to do so. In such case it is said that the original contractis unaltered, and that the arrangement has reference only to the modeof performing it. But, if the alteration of the period of delivery weremade at the request of the vendor, though such request were madeduring the agreed period for delivery, so that the vendor would beobliged, if he sued for a non-acceptance of an offer to deliver after theagreed period, to rely upon the assent of the vendee to his request,he could not aver and prove that he was ready and willing to deliveraccording to the terms of the original contract. The statement showsthat he was not. He would be driven to rely on the assent of thevendee to a substituted time of delivery, that is to say, to an alteredcontract or a new contract. This he cannot do so as to enforce hisclaim. This seems to be the result of the eases which are summed upin Hickman v. Haynes (supra).”
In this case the plaintiff has proved that he was willing to acceptdelivery within the period of the contract. In fact his lorry CE 1643was" sent on July 7 accompanied by a delivery order for 5,000 chests.The defendant has asked for an enlargement of time for delivery. Theplaintiff in these circumstances agreed to a postponement of the time fordelivery. In such a case the original contract is unaltered and the newarrangement has only reference to the mode of performing it. In Hartleyv. Hymans (supra), McCardie J. also stated that in coming to a conclusionhe felt he was acting in consonance with Plevins v. Downing (supra). He
(1875-76) 1 C. P. D. 220.
J A YE JTLiE ICE J.— Haturusinghe and Ukku Amma4'd9
also cited with approval the dictum of Bailhache J. in Dudley, Clarice &Hall v. Cooper, Ewing & Co. (unreporfced). This di'ctum which, in myopinion, is relevant so far as the present case is concerned, is as follows: —“It is quite open to a buyer to say when deliveries are late andhe has been extending the time that he will not take further deliveryunless they are made within some reasonable time which he is entitledto designate. ”
This is precisely the position taken up by the plaintiff in this case.
For the reasons I have given the appeal is dismissed with costs.
Wu^yewakoehte J.—I agree.
AMARASURIYA, Appellant, and DON ELARIS, Respondent