078-NLR-NLR-V-47-RAWANNA-CO-Appellant-and-ARUNACHAPILLAI-Respondent.pdf
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Ratoanna <Ss Co. v. AinnachapiIIai.
1946Present:Howard G.J. and de Silva J.
RAW ANNA & CO., Appellant, and ARTJNACHAPILLAI,Respondent.
285—D. C. Colombo, 14,064.
Sale of goods—Buyer’s liability for non-acceptance of delivery—Quantum ofproof necessary on seller's part—Sale of Goods Ordinance {Cap. 70), s. 37.
Before a buyer can be beld liable to tbe seller for any loss occasionedby bis refusal to take delivery of goods sold there should be evidencethat the seller was ready and willing to deliver the goods and that herequested the buyer to take delivery.
^ PPEAL from a judgment of the District Judge of Colombo.
N. Nadarajah, K.C. (with him C. Renganathan), for the plaintiff,appellant.
H- y~ Perera, K.G. (with him N. Kumaraainghcwn) for the defendant,respondent.
Cur. adv. vult.
HOWARD C.J.—Rawanna db Co. v. ArunaeJiapiUui.
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May 29, 1946. Howard C.J.—
This is an appeal by the plaintiff from an order of the District Judge ofColombo dismissing the plaintiff’s claim and entering judgment in a sumof Rs. 25 with costs on Court of Requests scale on the defendant’s claimin reconvention. The plaintiff claimed a sum of Rs. 802'50 of whichRs. 100 was alleged to have been given as an advance against the price of600 bushels of kurakkan which the defendants sold to the plaintiff by acontract in writing dated March 24, 1942. The remaining Rs. 702-50was claimed as damages for non-delivery of 562 bushels. The contract iscontained in the document P 1 and with regard to the time of performanceit states “ delivery on or before April 7 ”. The plaintiff in his evidencestated that on April 6 he asked for the whole quantity, but was told thatonly 38 bushels could be spared that day. On April 7 he, therefore,took delivery of 38 bushels on the promise of the defendants to give thebalance in a day or two. Plaintiff delivered the 38 bushels to one Markerwho was the person who had bought from him. The plaintiff also statesthat on April 7 he had made up hi3 mind to go to India. On the 8thhe endorsed the contract P 1 asking the defendants to deliver thekurakkan to Marker. He also says that the defendants agreed to deliverto Marker within 4 or 5 days. On April 8 the plaintiff went to Indiaand did not return until June. Mr. D. H. Marker who describes himselfas a Commission Agent and Merchant gave evidence in support of thecase put forward by the plaintiff. He slates that the plaintiff on April 7delivered the 38 bushels of kurakkan to him and handed Hie contract forthe remaining 562 bushels. He also says that he wanted kurakkan inApril and was prepared to take over the whole of the 562 bushels. Hesent on April 7 and several times to the defendants to fetch the 562bushels, but the latter kept putting him off. When the kurakkan was notdelivered he sent a telegram dated May 11,1942, (P 7) to the plaintiff inIndia informing the latter that the defendants were not supplyingkurakkan on the contract and asking for instructions to buy on plaintiff’saccount. On June 22, 1942, the plaintiff’s proctor by P 9 wrote to thedefendants requesting delivery of the 562 bushels of kurakkan andclaiming damages in default of such delivery. By P 10 the defendants’proctor replied to P 9 and stated that the defendants were ready andwilling to deliver on the due date but the plaintiff refused to take deliverythough requested to do so. In consequence of such failure to take deliveryit was maintained that the defendants were compelled to sell the kurakkanbelow the price at which the plaintiff had agreed to purchase. Thedefendants nad therefore suffered damages for which the plaintiff washeld liable.
The learned District Judge seems to have experienced considerabledifficulty in arriving at his verdict. He has found that the plaintifffailed to take delivery of the balance of 562 bushels. At the same timehe finds that the defendants had no stocks to deliver. The learned Judge,therefore, thinks that the defendants are only entitled to nominal damageswhich he fixes at Rs. 25.
On a consideration as to which party has been guilty of a breach ofcontract, regard must be had as to what facts have been established by1*—J.N. A 6X159 (6/46)
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HOWARD C.J.—Rawanna d> Co. v. Arunachapittai.
evidence. It has been proved (a) that the defendants were unable todeliver the full amount of kurakkan on April 7, and were allowed furthertime to deliver the balance, (6) that delivery was to be made at thedefendants’ store, (c) that the balance of kurakkan was not actuallyavailable in the defendants’ store. The first defendant states that onApril 9 he had enough kurakkan to deliver on this contract. Bnt thiskurakkan amounting to 200 bags was in the Customs having come by theFingal from Tuticorin. Before the defendants could succeed they mustestablish that the plaintiff has refused to take delivery of the kurakkan.In this connection section 37 of the Sale of Goods Ordinance (Cap. 70) isworded as follows :—
“ When the seller is ready and willing to deliver the goods, andrequests the buyer to take delivery, and the buyer does not within areasonable time after such request take delivery of the goods, he isliable to the seller for any loss occasioned by his neglect or refusalto take delivery, and also for a reasonable charge for the care andcustody of the goods :
Provided that nothing in this section shall affect the rights of theseller where the neglect or refusal of the buyer to take delivery amountsto a repudiation of the contract”.
There is no evidence in this case that either Marker or the plaintiff wasrequested by the defendants to take delivery. Inasmuch as the kurakkanwas not actually in the store it cannot be said that the defendants wereready and willing to deliver the goods. In these circumstances it isimpossible to support the learned Judge’s finding that the plaintiff hadbeen guilty of a breach of contract.
With regard to the plaintiff’s contention that the defendants havefailed to deliver the kurakkan when called upon by Marker to do so andthereby committed a breach of contract, it would appear that the learnedJudge has without hesitation accepted the evidence of Marker. There isno reason to question his acceptance of that evidence, but it is difficult toreconcile such acceptance with a finding in favour of the defendants.Marker states that he wanted kurakkan in April and that he was preparedto take over the whole of the 562 bushels. That somebody was sentfrom his place to demand delivery. That he sent several times to fetchthe 562 bushels. A witness called Bin Addam, a Natama under Marker,also testified to the fact that on April 7 and April 9 and on four or fivesubsequent occasions he went to the defendants’ store to take deliveryof the kurakkan and nothing was given. The evidence of Marker andBin Addam proves conclusively that the defendants on being called uponto deliver the 562 bushels failed to do so and have thereby committed abreach of contract. The plaintiff claimed damages at the rate of Rs. 1 • 25a bushel, the profit he states he would have made if delivery had beenmade to Marker. The latter in his evidence however states that he wasprepared to pay for the 562 bushels and take them over from thedefendant. That he thinks his price was Rs. 6'75. He also says thatowing to the raid the prices were fluctuating and there was no fixed pricefrom April 1 to 14. In my opinion the plaintiff should be allowed
HOWABD C.J.—Dias v. Wijetunge.
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‘damages at Its. 6*75 less Its. 5*75 a bushel? that is to say on 562 bushelsa sum of Its. 562. The order of the learned Judge is therefore set asideand judgment is entered for the plaintiff for Its. 562 together with costsin this Court and the Court below.
be SiIjVA J.—-I agree.
Appeal allowed.