105-NLR-NLR-V-53-SALIH-Appellant-and-FERNANDO-et-al.-Respondents.pdf
Salih v. Fernando
1951
466
Present ; Gpatiaen J. and Gnnasekara J.SALIH, Appellant, and FLRNAHDO et al., RespondentsS. C. 258—D. G. Colombo, 17,762jM
Contract—Bailment—Heirloom—Failure of bailee to deliver goods entrusted—
Measure of damages-—Market value—Sentimental value.
PlaintiffB entrusted certain articles of jewellery to the defendant, who wasa jeweller, for the purpose of repairing them. On the failure of the defendantto return the jewellery, the plaintiffs sued him for the recovery of their propertyor, in the alternative, for compensation for their loss. The action was basedon a simple breach of contract.
Held, that, in the absence of any claim based on tort or on a breach of con-tract accompanied by fraud or deceit, the damages awarded should be confinedto the market value of the minaing jewellery. No additional sum could be claimedon *hp ground of the special nwitimpTiial importance attaching to the jewelleryas a family heirloom.
466
GBATIAEN J.—Salih v. Fernando
.^^.PPEALi from a judgment of the District Court, Colombo.
Cyril E. S. Perera, with A. M. Ameen, for the defendant appellant.
Thiagalingam, K.C., with N. M. de Silva and J. B. M. Fernando,for the plaintiffs respondents.
Cur. adv. vult.
February 13, 1951. Gratiaen J.—
The respondents to this appeal are husband and wife. On the occasionof their marriage in 1937 the second plaintiff received from her fathera substantial dowry including certain valuable articles of jewellerywhich had belonged to her mother. In October, 1945, a brilliant necklaceand three gold bangles which formed part of this gift were in need ofrepairs, and the plaintiffs entrusted them for this purpose to the defendantwho was a jeweller. The arrangement was that the work should becompleted within 10 days; the plaintiffs called twice at the defendant’sshop after the due date, however, but were put off with various excusesand requested to return later. On December 27, 1945, they called again,and on this occasion they were informed that the jewellery had beenlost. The circumstances relating to the disappearance of these valuablearticles were wrapt in mystery, and it is not at all surprising that thelearned District Judge took the view, which I share, that the defendant’sconduct in the matter is open to very grave suspicion.
The defendant was at all relevant times carrying on his activities asa jeweller under the registered business name of “A. Ahamad andCompany ” at premises No. 167, Main Street, Pettah. Having losttheir jewellery in 1945, the plaintiffs spent the greater part of the nextyear in a fruitless search for the person (or persons) whom they couldrun to earth as the proprietor of the particular firm of “ A. Ahamed andCompany ” who was legally responsible to them for what had takenplace. They commenced an abortive litigation against four persons(relatives of the defendant) "who were registered as the proprietors of adifferent business carried on under the trade name of “ A. Ahamed andCompany ” on the same premises. In due course, on March 21, 1947,they sued the proper party in these proceedings for the recovery of theirproperty or, in the alternative, for the recovery of a sum of Rs. 15,000as damages which they estimated to be the measure of their loss. Thedefendant filed an answer denying liability on grounds which he failedto substantiate at the trial. The jewellery entrusted to him was notforthcoming, and in consequence the only serious issue which arose forthe adjudication of the learned District Judge was as to the sum whichshould be awarded to the plaintiffs as compensations for their loss.
On March 23, 1948, the learned District Judge entered judgment infavour of the defendants for a sum of Es. 11,500 representing (a)Rs. 10,260 which he estimated to be the market value of the missingjewellery entrusted to the defendant, (5) Rs. 1,240 as damages for thepain of mind which was undoubtedly occasioned by the loss of the familyheirloom and aggravated t>y the evasive tactics of a dishonest debtor.
GBATIABN J.—Salih v. Fernando
461
The present appeal, dated March 23, 1948, is from the judgmententered against the defendant who claimed that the plaintiffs’ actionshould have been dismissed in toto. Mr. Perera has however abandonedthis wholly untenable position, and restricted his argument before us tothe contention that the additional award of Bs. 1,240 as damages " forpain of mind ” is not justified in law. The appeal was listed for argumentbefore us on January 31, 1951—5 years and 10 months after the noti-fication of the loss of the jewellery—and the only question for ourdetermination is whether the defendant’s liability should, as Mr. Pereranow contends, be restricted to the sum of Bs. 10,260 which his counselaccepts as the market value of the jewellery. Even this liability, whichis now admitted, has not yet been discharged.
The question for our determination turns on the measure of damageswhich should be awarded to the injured party in a transaction of this-nature. The relevant part of the agreement of October 31, 1945, is acontract of bailment, and the cause of action is the failure of the bailee,in breach of his obligations under the contract, to deliver the goodsentrusted to him by the bailors. The plaintiffs in the first instancedemanded the return of their property and, in the alternative, claimedcompensation for their loss. The issues framed at the trial, and the-evidence led in support of those issues, proceeded upon the basis that thegoods were, for a reason which must remain obscure owing to the defen-dant’s unwillingness to explain their disappearance, no longer availableto be delivered to the plaintiffs. In these circumstances the Court is-required (vide section 191 of the Civil Procedure Code which gives effectto the common law principle applicable) to fix “ the amount of moneyto be paid as an alternative if delivery cannot be had ”. There is nodifference between the principles of the Boman-Dutch Law and the-English Law as to how the damages should be assessed where a bailee has,in breach of his contractual obligation, failed to return the property tothe bailor. The dominant rule of law in such cases is the principle ofrestitutio in integrum. The true damnum in contract is a compensation-for patrimonial loss (Voet 39-2-1). In other words, “ the plaintiffmust be placed, as far as money can. do it, in as good a situation as if thecontract had been performed. The fundamental basis is the compensationfor pecuniary loss naturally flowing from the contract. ” BritishWestinghouse Co. v. Underground Railumys of Londonl. It is on this-basis that the learned Judge awarded to the plaintiffs a sum of Bs. 10,260as representing the market value of the missing jewellery.
Mr. Thiagalingam has contended with much force that the assessmentof the jewellery at their market value is in the present case inadequatehaving regard to the special sentimental importance attaching to it asa family heirloom. There is no doubt that the plaintiffs would have-greatly preferred to have retained their jewellery in specie, which theyhad no desire to place on the market for sale. But this, unfortunately,has no relevance where the goods have been entrusted to and lost by athird party under a commercial transaction. The value of the goods in assess– ing damages for breach of contract is “ their market value independently
1 (1912) A. C. at 688.
468
GBATIAEN J.—Salih «. Fernando
of any circumstances peculiar to tlie plaintiffRodacanachi v.
Milbum1. It is not difficult to contemplate a situation where anarticle offered for sale in. the open market may be a family heirloompossessing such historic or sentimental interest as to materially enhanceits value to prospective bidders. But where this is not the case, it is notpossible to place a pecuniaryvalueon the specialpersonal significance,
however real, which attachesto itin the owner’smind.The principle
is well illustrated by Wesselsin histreatise on the“ Lawof Contract in
South Africa ” (Vol. 2 page 921, para. 3192)-" Apersonlets his horse,
of which he is particularly fond, and for which in fact, as he tells thehirer, he would not accept £100. The hirer, by his negligence, causes thedeath of the horse. In reality, the horse is not worth more than £25.Can the owner recover more than £25 as damages ? .The
answer is in the negative, because the Court cannot award as damagesany pretium affect.ionis or any other amount than an indemnity forpatrimonial loss ”. The authority for this proposition is Voet—45-1-9who declares that in such cases account can in no way be taken of anyspecial predilection ”.
It seems to me therefore that, if the present action be regarded as anaction for breachofcontract,the learnedJudge wasnot entitled to
award damages totheplaintiffsfor pain of mind becauseit has not been
established by the evidence that such pain of mind resulted inpatrimonial loss capable of estimation in terms of money. Mr. Perera’sobjection to the award of Rs. 1,260 under this head must therefore beupheld. I agree with Mr. Thiagalingam that “ in estimating the scopeof the liability of the defaulting party, our law draws a distinctionbetween a breach of contract accompanied by fraud or deceit and the caseof a simple breach of contract. The truth of the matter is that wherethere is a breachofcontractaccompaniedby fraud, our law awards
compensation bothoncontractand on tort….and the guilty
party is liable not only for the id quod interest as in a breach of contractwhere no fraud exists, but for other damages as well ”.(Wessels, Vol. 2,
page 944, paras. 3281 to 3283.) The question however is whether thisprinciple can be applied in the present • case. It seems to me that itcannot, because neither the averments in the plaint nor the issues framedat the trial sufficiently raise the allegation that fraud or deceit on thepart of the defendant accompanied the breach of his obligations underthe contract of bailment. If it was intended to claim damages from thedefendant on the basis of a tort, the allegation of fraud or deceit shouldhave been specifically and unequivocally made so that he could havehad the opportunity of meeting it. The present action is, in my opinion,based on contract simpliciter, and it does not therefore arise for considera-ation whether, if damages had been claimed on the basis of a tort, someadditional compensation for pain of mind could properly have been awardedto the plaintiffs. The conclusion I have reached is that in the presentstate of the pleadings and the issues, »the damages awarded should havebeen restricted to Rs. 10,260 which was the market value of the jewellery.
It is unfortunate for the plaintiffs that they did not file a cross-appealagainst the learned Judge’s decree, as there was, in my opinion, a substantial'1 (1886) 18 Q. B. D. 667.
Murugeeu t>. The King
469
ground which would have justified this Court in granting them someadditional relief against the defendant. The plaint specially claimed adecree awarding the plaintiffs legal interest on the sum which thedefendant should be condemned to pay to them by way of compensation.A decree for interest in such cases is, I think, expressly authorised bythe provisions of section 192 of the Civil Procedure Code, and no awardof interest, possibly inadvertently, was made by the learned DistrictJudge. In the absence of a cross-appeal, however, it is not open to thisCourt to order an amendment to the decree by awarding interest at thisstage.
For the reasons which 1 have set out, I would allow the defendant'sappeal by ordering him to pay to the plaintiffs a sum of Rs. 10,260 only.The defendant has substantially failed in his appeal and he must thereforepay to the plaintiffs the costs incurred by them both here and in theCourt below.
Gunasekara J.—I agree.
Appeal partly allowed.