( 318 )
BOTJSTEAD et al. v. VANDERSPAR & CO.[Kokarakande Estate Case.]
D. C. Colombo, 21,506.
Evidence Act, ss. 92 and 95.
Messrs. B & B entered into a written contract with Messrs. V tcCo. to sell to the latter " the whole crop (January to December, 1904.inclusive) of Kokarakande estate made into green tea at 30 centsper pound.”. There wasnoestateby thenameof Kokarakande.
It was only a block of 50 acres forming part of Deviturai estate., In.an action by Messrs. B 4 B against Messrs. V Sc Co. for damages forrefusing to takedeliveryofcertainquantitiesof tea tendered under
the contract, theplaintiffssought toprove byoralevidence that- the
words ” the whole crop of Kokarakande estate made into green tea ”were intended to mean the whole crop of the. leaf from the fields onDeviturai estatewhichhadbeenpicked withinsix months of
pruning, and that the words ” Kokarakande estate " were merelyused “ as a mark or trade name.”
Held, that such evidence was inadmissible, its effect being to varythe terms of the written contract.
PPEAL. by the defendants from judgment of the AdditionalDistrict Judge of Colombo (Mr. F. R. Dias).
The defendant company entered into a contract with the plaintiffsfor the purchase of certain tea by letter No. 23/1,292, dated 14thDecember, 1903, which was as follows: —
Forbes Sc Walker.
Contract No. 23/1,292.
L. T. Boustead, Esq.,Colombo, 14th December, 1903.
DearSir,—Webeg to confirm sale made byusthisday on your
account to Messrs. J. J. Vanderspar & Co. of the whole crop (Januaryto December, 1904, inclusive) of Kokarakande estate made into greentea at 39 cents per pound; packed in half chests, the buyers being cre-dited with any bonus paid by the Thirty Committee; to be delivered' asmanufactured.
Thequality tobenearlyas possible the sameasthesamples handed
Theproportiontobeapproximately:youngHyson40 per cent.
Hyson 40 per cent.* Hyson No. 21£ per cent., gunpowder 91 per cent.,siftings 9 per cent.
The sellers bind themselves not to sell any tea under Kokarakande markoutsidethis contractwhilst. the above-mentioned teasareunder delivery.
Any dispute that may arise in connection with this contract to besettled by arbitration.
Per pro Fobbbs & Walker, .A. H. Barber,'
The crop, for the vear is estimated at 100,000 lb. to 120,000 lb.
( 819 )
The terms of this contract were subsequently altered by letterdated 30th May, 1904, which was as follows:—
Messrs. J. J. Vanderspar & Co.,Colombo.
Colombo, 30th May, 1904.
Be Kokarakande Crop, 1904.
Deab Sms,—Wb are authorizedby our principalstoagreeto your
request that the balance of the crap from above estate be converted intoblack tea at 87 cents per lb., with your option of reverting to greens atthe original price of the contract, viz., 39 cents, one'month’s notice beinggiven the seller of such intention.
"All teas now manufactured orbeing manufacturedtobe taken over
unreservedly at the contract price,with the exceptionofinvoiceNo. 9,
which is now under dispute.
In the event of green teas being returned to, the contract price is torevert to 39 cents, regardless of the present standards which are now nulland void, and all future green teas manufacture will be carried out asfar as possible according to your own wishes, provided no additionalcost is entailed to the estate.
Please confirm this arrangementto permit us togive thenecessary
instructions to the estate.
FOBBBS & WAIiEEB.
The plaintiffs, alleging that the defendant company had in Octo-ber, 1904, refused to take delivery of certain quantities of tea tender-ed in terms of the said contract, brought this action to recover asum of Bs. 3,182.65 as damages for breach of contract. The defend-ants pleaded that the tea tendered was not made out of the wholecrop of Kokarakande estate as contracted, and that it was not up tosample, and that they were justified in refusing to accept delivery.
The District Judge gave judgment for the plaintiffs. After deal-ing with the facts, he observed:—
“ From the circumstances above recited it will appear that thesimple point we have to determine is whether or not the teas tenderedto the defendants were ‘ Kokarakande crop ’ as contemplated by thecontract.
“ Before we proceed further we may regard it as proved beyond alldoubt that there is not, and never was, an estate of the name of‘ Kokarakande ’.
“ Even the defendants’ witness, Mr. Hawke, who is now in thedefendants’ service, and who for about nine years "prior to May, 1904,was an assistant superintendent on Deviturai estate, admits thatthere was no such estate, but that ‘ Kokarakande estate ’ was thefancy name under which the green tea made from the young leaf ofall tire Deviturai fields was sold. The position taken up by the
( 820 )
defendants! at least in their answer, is that there was a * Kokara-kande estate,’ and that., as the tea6 tendered did not come fromthere, they were justified in refusing to accept them, and in counter-claiming damages as for a breach of contract by the plaintiffs.
“ I think there is no room for doubt that any person, unacquaintedwith the tea trade or with the special significance of the plaintiffs'fancy name 'for their green tea, can only understand this contractP 10 in one way, namely, that it was intended to refer to the wholegreen tea crop of an estate called ‘ Kokarakande estate Therewas therefore every excuse for Mr. Vanderspar, who was not inCeylon when any of the contracts were made with the plaintiffs, ininterpreting the contract according to the plain English of it, and Iam. quite prepared to accept his statement that, until his corres-pondence with Messers. Forbes & Walker in September, he had notthe slightest idea as to the true origin or methods of manufacture ofthe tea crop his firm had bought. Hence, his rejection of the tendersafter that discovery could not fairly be characterized as being soarbitrary or reprehensible as it has been made out to be.
“ If indeed the defence had been that, when the contract was made,the plaintiffs had one sort of tea in their mind while the defendantshad another, and that therefore the contract was bad for want of aconsensus ad idem, there would have been something in it. Btfc, asI have stated above, that is not the defence. The defendantsaccept the validity of the contract, and we are consequently drivento find out what the contracting parties intended by the expression‘ the whole crop of Kokarakande estate made into green tea.’ Thedefendants' counsel objected to any evidence being admitted toexplain the obvious meaning of these words, but I overruled hisobjection. Under section 95 of our Evidence Ordinance, whenlanguage used in a document is plain in itself, but is unmeaning inreference to existing facts, evidence may be given to show .that itwas used in a particular sense. In the present case the words areperfectly plain, as I have said before, but they are meaningless whenapplied to existing /acts, namely, the non-existence of a Kokara-kande estate. The description of the specific thing sold being in-accurate, the maxim falsa demonstrate non nocet applies, andevidence becomes admissible to show what the real thing intendedwas. It was therefore perfectly legitimate to admit oral testimonyas to the true significance of the words in question, and consequentlyevidence of what transpired with the defendants' representatives,Mr. Walthew, at and before the signing of the contract.
The defendants appealed.
( 821 )
Domhont, K.C. (F. J. de Saram with him), for the defendantsappellants.
H. J. C. Pereira, tux the plaintiffs—respondents.
Our. adv. mlit.
6th February, 1906. Wood Renton, J.—
In this case various issues were raised, decided in the Court below,and argued on appeal. But in .the view I take of the law applicableto it, two points only need be considered: —
Is the contract, whose interpretation is in dispute, a writtencontract, embodied in Messrs. Forbes & Walker’s letter to Mr.Boustead, one of the respondents, dated 14th December, 1903 (P 10),as modified by Messrs. Forbes & Walker’s subsequent letter toMessrs. Vanderspar & Co., dated 22nd September, 1904 (P 11), ora parole contract, of which these letters are merely evidence ?
In the former alternative, can the respondents interpret theterms of the written contract by parole evidence in the way in whichthey have successfully claimed the right to do in the Court below ?
(1) At a somewhat late stage in the argument before us, Mr. H. J.C. Pereira, counsel for the respondents, contended rather faintlythat the real contract between .the parties was a parole contract,evidenced by, but not embodied in, the two letters above referred to.In my opinion this argument is untenable on several grounds. Notonly was it never broached in the Court below, but the respondentsin their plaint treated the letters in question as constitutive of thecontract, and devoted their whole efforts to persuading the DistrictJudge that the case was one in which, notwithstanding the fact thatthe parties had reduced their agreement into writing, parole evi-dence was admissible. Moreover, although the original contract of14th December, 1903, is in effect the brokers’ sold note, it wasproduced and relied upon by the sellers themselves, who received itfrom their agents, the brokers. They made no attempt to show' thatit varied from the bought note, or the signed entry in the brokers’book, or that it was not in fact in accordance with the contract.On the contrary, their main contention both here and below has beenthat they do not challenge its accuracy, but desire only, on theground of latent ambiguity, to explain certain of its terms. Theseconsiderations, it seems to me, dispose of Mr. Pereira’s first point, >whether we have regard to the law as to bought -and sold notes (seeParton v. Crofts, (1864), 33 L. J. C. P. 189; Thompson v. Oardiner(1876)f 1, C. P. D. 777; Sievewright v. Archibald (1851), 17 Q.B. 101),or consider the case as an ordinary one of contract by correspondence.
UJ. N.B4fl20 &/6J)
( 322 )
1906. Although the first letter was not addressed to the appellants,' weFebruary 6. might fairly assume, from the conduct of both parties, that thereWood was a bought note in identical terms. In any event, the secondRbntow, J. letter adopts, in my opinion, all the provisions of the first which itdoes not modify, and the two letters constitute one contract whichwe must deal with as a whole.
(2) I proceed in the next place to inquire whether the parole.evi-dence which it is sought to adduce in aid of the interpretation of thewritten contract in this case is legally admissible. The facts aredearly stated by the District Judge in his careful and able judgment,and I do not propose to recapitulate them here. It is admitted bythe respondents that, according to the plain meaning of words inthe English language, the subject-matter of the sale, as defined bythe letter of 14th December, 1903, was “ the whole crop (January toDecember, 1904, inclusive) of Kokarakande estate made into greentea at 39 cents per pound. ’ ’ The yield of the crop was estimated atfrom 100,000 to 120,000 lbs. The letter of 30th May, 1904, providedfor the conversion of "the balance of the crop from above estate ’’intq black tea at 37 cents per pound, the purchasers having an option" of reverting to green at the original price of the contract.” It isconceded on all hands that if we take the words which the partiesused to express their meaning in their natural sense, what the pur-chasers had a right to expect under their contract was the whole cropof a particular " estate ” called Kokarakande. It appears, however,that there is in fact no ‘ ‘ estate ’ ’ called Kokarakande. Kokarakandeis noly a Mock of some 50 acres forming part of Deviturai estate, andincapable, as it was suggested, of yielding the crop contemplatedby the contract. Here then, say the respondents, we have languageused in a document which although plain in itself " is unmeaning inreference to existing facts.” Section 95 of the Evidence Ordinancetherefore applies, and “ evidence may be given to show that it wasused in a particular sense.” The " particular sense ” which therespondents desire to attach to this latent ambiguity was embodiedby Mr. Pereira at the request of my lord the Chief Justice in thefollowing clause. Instead of “ the whole crop of Kokarakande estatemade into green tea ” we are to read, treating " Kokarakande ” estate“as a mark or trade name,” " the whole crop of the leaf from the fieldson Deviturai estate which had been picked within six months ofpruning.” It may be noted in passing that the evidence shows thatwhile the best green tea is made out of such pickings, green tea canbe made out of the older leaf. It is tolerably clear that the clausewhich I have cited goes far beyond a mere explanation of a latentambiguity, and accordingly Mr. Pereira sought to fortify his position
( 828 )
first by contending that under section 95, if an explanation of alatent ambiguity is admissible at all, the whole transaction inay be Febn^aV *•ripped up and the real intention of the parties shown, and then by Woo'dfalling back on provisos 5 and 0 of section 93 of the Evidence Ordi-nance. Of these provisos the former admits evidence of usage notrepugnant to or inconsistent with the express term of a contract,while according to the latter “ any fact may be proved which showsin what manner the language of a document is related to existingfacts. ” It appears to me that, on each of the grounds above indicated,the respondents’ case fails. I am not satisfied thatthe words of the^original contract are "unmeaning in reference to existing facts ’’under section 95 of the Evidence Ordinance. If there is not an“ estate ’’ called “ Kokarakande, there is at least a property of thatname, on which a crop capable of being converted into green teawas grown. There is a distinction between an inaccurate descriptionand an ambiguous one, and there is English authority for the viewthat when a description as a whole fits no object, but part of itaccurately fits an object, the rest of the description may be rejected(Shepherd's Touchstone, p. 247). The fact—if it be a fact—that theKokarakande block could not yield the estimated crop does notimprove the respondents’ position. It may be a provision which therespondents could not fulfil, and for which they ought to be liablein damages or otherwise to the appellants. It does not make thecontract “ unmeaning." Even if section 95 applied, I do not thinkthat under that section evidence can be given to 6how that thewords " whole crop ’’ meant only the tippings of not more than, sixmonths’ standing. To admit such evidence would be not to explainthe language of the instrument, but to set it aside, under the guiseof effectuating the intention of the parties, and to allow an incon-sistent parole contract to be set up in its place.
In such cases as the present—to quote the language of Lord JusticeBigby in Tn re Grainger (1900) 2Ch. at p. 763—“ the fundamental dis-tinction between evidence simply explanatory of the words them-selves, and evidence sought to be applied to prove intention itself asan independent fact, must never be lost sight of." Mr. Pereira citedto us no anthority which really supports his argument on the pointunder consideration. The Quendon Hall Estate case, Webb v. Byng(1855), 1 K. and J. 580, in any event would not justify the admissionof any evidence contradicting the ordinary English meaning of thewords, "the whole crop.” The case of Goodtitle d. Radford v.
Southern (1815), 1 M. and S. 299, to which his attention was calledby the Court, is really against him. There, in the construction of adevise of " all that portion of my farm called Troguesfarm now in
( 824 )
the occupation of A. C,” evidence was admitted to show that thedevise included other lands of Troguesfarm not in the occupation ofA. C., but the ratio decidendi was that if any lands forming part ofTroguesfarm were excluded, the word “ all ” would not be satisfied.Here the respondents propose not to satisfy or exhaust the words" whole crop,” but to limit and contradict them. On the question ofusage I need say little. No independent evidence was forthcomingto show that the words ” Kokarakande estate ” had acquired as a tradename the full meaning embodied in the clause I have quoted above—nothing less than the proof of this fact would be of any avail—as,according to the respondents themselves, this so-called ” trade name ”was not at first limited to six months’ tippings. Moreover—andthis observation applies equally to the attempt to prove intentionapart from usage and to the argument based on proviso 6 of section92—the clause, which it is sought to import into the contract, iBdirectly repugnant to and inconsistent with its terms as a whole.With that part of the original contract of 14th Deoember, 1903,which speakB ” of the whole crop of Kokarakande estate ” 1 havedealt already. It is equally inconsistent with the following passagesin the letter of 30th May, 1904, ” the crop from above estate,” “ pro-vided no additional cost is entailed to the estate,” ” the necessaryinstructions to the estate.” It is at still more striking variance withthe terms of some of the correspondence which was read to us, buton which I need not dwell. Mr. Pereira admitted the looseness of thelanguage employed in these extracts, but said that it was naturalenough in view of the pressure under which such letters were written.I can only reply that if business men choose to define the subject-matter of their contracts in this slipshod fashion, whether the factbe,due to their misfortune or their fault, they must take the risk ofits consequences. The general rule of law, which does not, save inexceptional cases, under none of which can the present case bebrought, permit written contracts to be varied by parole evidence,is clear, salutary, and must be maintained. As the respondents havenot carried out their contract in its plain and ordinary signification.their action should have been dismissed. The appeal must beallowed with costs.
Layard, C.J. Agreed.
BOUSTEAD et al. v. VANDERSPAR & CO