033-NLR-NLR-V-05-LENORA-v.-AMARASEKERA.pdf
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1901.March 27.
LENORA v. AMARASEKERA.
D. C., Colombo, 12,716.
Contract for supply of goods—Place and time of delivery—Failure to takedelivery—Damages—Penalty.
A contracted with B that B should deliver certain goods to A withinone week from the date of the contract, viz., on or before the 17thMarch, and that the delivery should take place at B’s stores. On the- 17th March, A’s manager called ' at B's place of business with a chequeat 8.30 a.m. and 1.30 f.m. in order to take delivery, but not findinghim there, requested him by letter to forward the goods to C's store onthat very day and call at his. A’s. office for payment. B did not complywith this request.
Held, in an action brought by A for damages consequent upon non-delivery, that B had time up to the end of business honrs on the 17tbMarch to make delivery, and that as A did not demand delivery at B'sstore, he was not entitled to succeed in his action.
Held further that where a certain penalty was fixed by agreement fornon-delivery, nothing, in excess of that amount could be claimed.
I
N this case the plaintiff sued the defendant for the recoveryof Rs. 450. of which a sum of Rs. 400 was for damages sus-
tained by reason of the defendant failing to deliver 2,000. teashooks, which he had agreed to deliver to plaintiff within one weekfrom the 10th March, 1899, and the balance Rs. 50 was an advancepaid by the plaintiff to the. defendant in respect of the saidagreement. The defendant, admitting the agreement, pleadedthat he was ready and willing to deliver the tea shooks at hiBstore as agreed but that the plaintiff failed to demand or takedelivery of them there.
The District Judge believed the evidence for the defence,' andfound that the plaintiff did not demand delivery of the tea shooksfrom the defendant within one week of the 10th March, 1899, andoffer to pay for the same immediately after delivery. He enteredjudgment for plaintiff. •
Plaintiff appealed.
Seneviratne. for appellant.
Schneider, for respondent.
27th March, 1901. Bonser, G.J.—
We are agreed to affirm this judgment. Speaking for myself, itseems to me a thoroughly clear case. The defendant entered intoa written agreement with the plaintiff in the following terms: “ I,James W. Amarasekera, in consideration of the sum of Rs. 50-received by cheque No. 424 on the Mercantile Bank of India,Limited, undertake to supply ..Messrs. Arnolis Lenora Bros. &Co. 2,000 tea shooks in good order and~ full size, that is to say,
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containing 1,000 ib. net, within one week horn, date hereof, at therate of Rs. 9.75 per 100. The delivery to take place at No. 29,Maliban street, and payment to be made at the rate agreed imme-diately after delivery. In failure, I bind myself for a penalty ofRs. 300.’' That was the contract dated 10th March, 1899,- and itexpired on 17th March, 1899. The plaintiff sued the defendantfor the breach of that agreement, and claimed Rs. 400 as damagesfor the breach of the contract which they had suffered in con-sequence of having been obliged to buy tea shooks in the openmarket at a higher rate than that mentioned in the oontract.
It seems to me that in no case could they recover more thanRs. 300, as that was the amount fixed by the parties to be paid uponbreach of the agreement. The defendant denied he had brokenthe agreement. He pleaded that the plaintiff did not make anydemand, and that they were ready to complete the contract ontheir part, and that was the issue between the parties.
The case for the plaintiff depended entirely on the evidence of aelerk named William Appu. The plaintiff cannot read or writeEnglish, and William Appu. his clerk, can. and plaintiff admittedthat William Appu was practically the manager of his business.William Appu says that he had been several times in the courseof the week to demand delivery, but the defendant put him off.He says he went on the last day—17th March—quite early inthe morning, and not finding the defendant in his office, he leftfor him a letter, which was produced by the defendant, in thefollowing terms: ‘‘Dear Mr. Amarasekera,—I came to see you.at“ 8.30 a.m.and waited here till 9o’clock. Ishall thank youto-
“ send theteachests to Messrs. <T.M. Robertson & Co.’s storeto-
“ day without fail, and please call over at our office for the cheque,“ or you can send Mr. Dadabhoy.” Dadabhoy is stated to be asort of assistant in the defendant’s business. The defendant saidthat he sent an answer to that letter, but would not comply withthe legal requirements of proof of that answer, and plaintiff deniedhaving received that answer. The District -Judge was unable toaccept the copy produced by the defendant as proof of the originalletter. Inthecourse of the sameafternoon,about 1.30, William
Appu sayshewent again to the defendant’sstore, and thatthe
defendant then showed, him a 150 tea shooks and wanted him tctake those, and he said: “No. I cannot take that number. I“must have the whole 2,000." and thereupon defendant said:“ Come by and by.’’ He went home and reported matters tohis master and did not return again that day, He says bereturned on the following day. , On every occasion that hewent he says he took a cheque book v ith certain blank cheques
1801.March 2t.
Botren,0-
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1901.signed by his master, intending, if the tea tea shooks were delivered,
March 27. to till up the amount of the shooks and hand the cheque to theBoNste^r.J. defendant.
Now, it senis to me that even if we believe this- storyof William Appu–which, however, the District Judge did notbelieve—it falls short of proof that the. plaintiff was readyand willing to take delivery of these shooks and to pay for themimmediately after delivery. As I understand the contract, thedefendant had up to the end of business hours on the 17th Marchto make delivery, and if he had those tea shooks ready, or, if hehad not got them in his warehouse, had procured them from someother source and had them ready to deliver at a reasonable timebefore the close of the business on that day, he would have doneall that was necessary on his part. But, as T said before, theDistrict Judge did not believe William Appu, ancl the only demandof delivery which seems to be proved is that contained in WilliamAppu's letter of 17th March, written at 9 o’clock in the morning;but that letter is not a demand of delivery under the contract.Delivery was to be made at. defendant’s store; that letter ofdemand requests him to make delivery at some other place in thetown of Colombo. Tt seems to me that that is not in accordancewith the contract. For these reasons I think that the plaintiff’saction was rightly dismissed.
JjAWBir., J.—Agreed.